IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 Crl.MC.No. 3963 of 2005(A) -------------------------- CC.1685/2002 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... PETITIONER(S)/ACCUSED 1 AND 2: --------------------------------------- 1. INDUSHEKHARA PANIKER, S/O.RAGHAVA MENON, LAKSHMI, HOUSE NO.2706, POONITHURA P.O., THRIPOONITHURA. 2. SRIKANTH, S/O.INDUSHEKHARA PANIKER, LAKSHMI, HOUSE NO. 2706, POONITHURA P.O., TRIPOONITHURA. BY ADV. SRI.C.HARIKUMAR RESPONDENT(S)/DEFACTO COMPLAINANT AND STATE: ------------------------------------------------------------ 1. P.KRISHNA KUMAR, S/O.RAMAN MENON, KRISHNASREE, PALLIYIL MADOM, POONITHURA P.O., TRIPOONITHURA. 2. STATE OF KERALA, REPRESENTED BY S.I. OF POLICE, HILL PALACE POLICE STATION BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.L.P.ARAVINDAKSHAN FOR R1 SRI.S.SANKARAN THAMPI FOR R1 PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.14459/05 IN CRL.M.C.NO.3963/05 //DISMISSED// 6.4.09 SD/-M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.3963 OF 2005 ----------------------------------------------------- DATED THIS THE 6th DAY OF APRIL, 2009 O R D E R The petitioners herein are accused Nos.1 and 2 in C.C.No. 1685/2002 pending before the Court of Additional Chief Judicial Magistrate, Ernakulam. 2. The first respondent herein filed a protest complaint dated 6.7.2002, against petitioners 1 and 2, copy of which is produced as Annexure A4. It was taken cognizance by the learned Additional Chief Judicial Magistrate after recording the sworn statement of the complainant/first respondent and issued non-bailable warrant against the accused 1 and 2 who were absent on 21.10.2005 as revealed from the copy of the proceedings paper, Annexure A5 and posted to 2.1.2006. Meanwhile, petitioners 1 and 2 filed this Crl.M.C. on 28.11.2005 under Section 482 of Cr.P.C.with the prayer to quash the proceedings against the petitioners in Annexure A4 complaint and all further proceedings pursuant to the same. This Court as per order dated 29.11.2005 has ordered interim stay as prayed for, CRL.M.C.No.3963/05 -2- for two weeks. Subsequently, as per order dated 26.7.2006, stay has been extended until further orders. 3. Today, when this petition taken up for hearing, the learned counsel for petitioners submitted that the case was not settled as represented on the last hearing dates, for the reason that the second petitioner herein is studying for MBA at Australia. There is no representation for the de facto complainant/1st respondent. 4. Heard the learned counsel appearing for the petitioners. 5. It is submitted by the learned counsel for the petitioners that the first respondent herein preferred a civil case which was settled already and is disposed of. There is chance for settlement in this case also. But, this petition is of the year 2005 and has not been settled and there is no meaning in posting the case again for settlement. 6. Originally Crime No.271/01 was registered against petitioners 1 and 2 on 15.8.2001 on the basis of the first information statement given by the first respondent herein from Government Taluk Hospital, Tripunithura for the offence under Section 324 read with Section 34 of IPC, as revealed from Annexure A1. Annexure A2 is the copy of the final report in Crime No.271/01, wherein it was reported that the case was a mistake of facts and filed a report, copy of which CRL.M.C.No.3963/05 -3- was given to the complainant/first respondent. Annexure A2 is dated 31.8.2001. Thereafter, on 6.7.2002, the first respondent herein filed a protest complaint under sections 190 and 200 of Cr.P.C. against petitioners 1 and 2 before the Court of Additional Chief Judicial Magistrate, Ernakulam. It was taken on file by the learned Magistrate as C.C.No.1685/2002, after conducting 202 enquiry. Sworn statement of the complainant was also recorded as revealed from Annexure A3. Thus, it is revealed that the learned Magistrate has taken cognizance of the case on the finding that prima facie case is there to proceed against petitioners 1 and 2 and issued summons to accused for their appearance. The petitioners/accused 1 and 2 were absent and the applications filed by them to excuse their absence were dismissed and non-bailable warrant was issued against the accused. The learned counsel for petitioners relied on the decision of this Court reported in Kader v. State of Kerala (1999(3) KLT 262). Paragraph 6 of the said decision reads as follows: “6. The main question that has to be decided in the case is whether in the nature of the case, the final report filed by the police in Crime No.147/92 aforementioned should have been taken into account before taking cognizance of the case. No decision of this Court or of the Supreme CRL.M.C.No.3963/05 -4- Court has been placed before me which will throw light on the above aspect. But the learned counsel for the petitioners placed reliance of the decision in Daleep Singh v. Magan (1996 Crl.L.J.190). The contention raised in that case was that the Magistrate was bound to send for the report of the SHO in the matter of final report filed based on the information given by the complainant in the private complaint before taking cognizance. The learned Judge of the Rajasthan High Court who decided the case dealt with the same in some extenso.” In the present case, on a perusal of the complaint, copy of which is produced as Annexure A4, it is revealed that 202 enquiry was conducted by the learned Magistrate and took cognizance of the case on the satisfaction that prima facie case is there to proceed against the petitioners under sections 447, 324 and 506(ii) read with Section 34 of IPC. Whether, the petitioners have committed the above-mentioned offences, is to be decided by the learned Magistrate on the basis of the evidence to be let in by the prosecution and on the basis of the defence evidence, if any. This Court cannot come to a conclusion that no offence has been committed by the petitioners as alleged in the complaint, Annexure A4. It is the duty of the trial Judge. Section 482 of Cr.P.C. can be applied only sparingly and in rarest of rare cases and CRL.M.C.No.3963/05 -5- with caution. No such reason has been made out in the present petition to invoke the inherent jurisdiction of this Court to exercise that power. There is nothing to substantiate the contention of the petitioners that the learned Magistrate has not conducted 202 enquiry and is an empty formality. The complainant has stated regarding the earliest refer report of the police, both in the complaint as well as in the sworn statement, given by him. Thereafter, the Magistrate has taken cognizance of the present case. Considering the facts and circumstances of this case, I find no merits in this petition, which is liable to be dismissed. In the result, the Crl.M.C. is dismissed. The presence of the second petitioner/second accused can be exempted by the learned Additional Chief Judicial Magistrate on proper application and his presence can be insisted only if it is absolutely necessary at appropriate stage. M.C.HARI RANI, JUDGE. dsn