IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 CRL.REV.PET.NO. 1057 OF 2009() -------------------------------------------- CP.153/2008 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA .................... REVN. PETITIONER(S): 6TH ACCUSED ----------------------------------------------------- ADV.PRIJI.P.A.,AGED 35 YEARS, S/O.ARAVINDAN,RESIDING AT PRIYA SADANAM, PATTATHANAM P.O.,KOLLAM-21. BY ADV. SRI.RAJIT RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------------------------- 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. DILEEP,AGED 38 YEARS, S/O.ABUBACKER,ABU BUILDINGS, PUTHUKULANGARA WARD,UZHAMALAKKAL, NEDUMANGAD VILLAGE,THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK R1 ADV. SRI.T.R.ASWAS FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO. 1057 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of August, 2009 O R D E R -------------- This revision is in challenge of proceeding of learned Judicial First Class Magistrate, Kattakkada taking cognizance in C.P. No.153 of 2008 of that court against petitioner/accused No.6. 2. Respondent No.2 is the husband of one Simi who filed a complaint against him and his relatives for offence punishable under Section 498A of the Indian Penal Code (for short, “the IPC”), in the court of learned Chief Judicial Magistrate, Kollam. That complaint was forwarded to the police for investigation. Police registered Crime No.405 of 2005. It is stated that respondent No.2 was arrested on 16.12.2005 and produced before learned Chief Judicial Magistrate on 17.12.2005. He was released on bail on 19.12.2005. Thereafter respondent No.2 filed a complaint in the court of learned Judicial First Class Magistrate on 28.12.2005 alleging that relatives of his wife had summoned him to their house at Kollam on 30.11.2005, he was illegally detained in the house and his bag containing the keys of his jewellery shop, money and other things was stealthily taken by his wife and others including the petitioner herein who is an Advocate by CRL. R.P. No.1057 of 2009 -: 2 :- profession. He further alleged that it was through the intervention of police that he was saved from illegal detention and he learnt that his jewellery shop at Kattakkada was looted by the relatives of his wife. According to respondent No.2, petitioner who is the counsel appearing for his wife was also a party to the said unlawful act. Complaint was forwarded to the police for investigation. Respondent No.2 filed W.P (C) No.5475 of 2006 in this Court complaining that investigation is not proper and is not proceeding in the correct line. This Court summoned the case diary and found that investigation was not proceeding in the correct line. As per judgment dated 21.3.2006 this Court directed that investigation shall be handed over to the Crime Branch (CBCID). It is submitted that thereafter on 22.6.2006 local police submitted a report under Section 173(2) of the Code of Criminal Procedure (for short, “the Code”) stating that no offence is made out. Respondent No.2 filed Contempt Case No.148 of 2006 in this Court for taking action for violating the direction in the judgment dated 21.3.2006. It is not disputed that as directed by this Court in the said order, CBCID subsequently investigated the case. They, on their part submitted final report on 22.12.2007 again stating that no offence is made out. In the meantime learned magistrate had accepted the final report submitted by the local police. However CRL. R.P. No.1057 of 2009 -: 3 :- pursuant to the report submitted by the CBCID notice was given to respondent No.2 who filed, what is commonly called a 'protest complaint'. On that complaint learned magistrate recorded sworn statement of respondent No.2 and two witnesses. Based on that material learned magistrate passed the impugned order on 18.9.2008 directing that case is taken on file as C.P. No.153 of 2008 against accused Nos.1 to 5 and petitioner/accused No.6 for offence punishable under Sec.395 of the IPC. Summons was ordered to accused Nos.1 to 5 and petitioner. That order is under challenge in this revision. It is contended by learned counsel that there was no sufficient material before learned magistrate to issue summons to the petitioner. Learned counsel says that petitioner was only discharging his professional duty as an Advocate for the wife of respondent No.2 and that he has been falsely implicated in a serious case involving offence under Sec.395 of the IPC. It is also the contention of learned counsel that the CBCID had conducted a thorough investigation into the entire matter which according to learned counsel disclosed that respondent No.2 on the date of the alleged incident was not even having a valid licence issued by the local authority to run a Jewellery shop. He further submitted that even the licence issued from the Legal Meteorology Department was not current as on the date of the CRL. R.P. No.1057 of 2009 -: 4 :- alleged incident. Further contention of learned counsel is that statement of witnesses questioned by the CBCID would reveal that there was no jewellery in the shop of respondent No.2 at the relevant time when it was allegedly looted by accused Nos.1 to 5 and petitioner. Learned counsel says that two witnesses produced by respondent No.2 before learned magistrate are said to be professional drivers. While the CBCID had questioned almost all neighbouring shop owners no offence was disclosed. Learned counsel for respondent No.2 submitted that it was based on the materials before learned magistrate that case was taken on file and summons was issued to the petitioner and others. According to the learned counsel investigation conducted was shabby as police wanted to favour petitioner and other accused as is evident from the fact that even after this Court issued direction to hand over the investigation to the CBCID local police continued the investigation and submitted final report. Learned counsel has placed reliance on the decision of this Court in Parameswaran v. Surendran (2009 (1) KLT 794). According to the learned counsel mere fact that in the impugned order learned magistrate has not referred to the materials produced by the Investigation Officer is not fatal. Learned counsel has referred me to the observations in paragraph 18 of the decision relied on by him. CRL. R.P. No.1057 of 2009 -: 5 :- 3. It is trite law that when the Investigation Officer submitted a final report under Section 173(2) of the Code stating that no offence is disclosed it is well and within the power of the learned magistrate concerned either to accept the report as such or, if the materials on record revealed commission of offence to proceed against the offender for such offence or if necessary, direct further investigation under Sec.173(8) of the Code. If the learned magistrate decided to accept the report as such it must be with notice to the first informant. In this case notice on the refer report was given to respondent No.2 and he filed objection to that report which in common parlance is called a protest complaint. Certainly it was within the power of the learned magistrate to conduct an enquiry on that complaint. It is accordingly that sworn statement of respondent No.2 and his witness were recorded. But the impugned order dated 18.9.2008 does not show that learned magistrate had referred to or even perused the report submitted by the CBCID and the materials produced along with that report while deciding to proceed against petitioner and others. It is true that the mere fact that it is not stated in so many words that learned magistrate is not satisfied with the refer report is not fatal if otherwise the issue of summons to the accused can be sustained. That is what this Court had observed in paragraph 18 of the decision CRL. R.P. No.1057 of 2009 -: 6 :- in Parameswaran's case. But in this case the impugned order dated 18.9.2008 would not reveal that learned magistrate had even referred to the report and connected materials produced by the CBCID. It was necessary and proper that learned magistrate referred to that report and materials produced while considering the sworn statement of complainant and his witnesses particularly in a case of this nature where a serious offence is alleged against petitioner and other accused persons. On going through the order under challenge I find that consideration was given by learned magistrate to the report and materials produced by the CBCID. Viewed in that line I am persuaded to think that the order under challenge is not legal and proper and requires interference. 4. It is true that accused Nos.1 to 5 are not before me either as petitioners or respondents. But it is by the same impugned order which I found is not legal and proper that learned magistrate has proceeded against accused Nos.1 to 5 also. There is no reason why the benefit of this order should not go to accused Nos.1 to 5 also notwithstanding that they are not parties to this revision. Having found that the order under challenge is liable to be set aside, I hold that the benefit of that finding should go to accused Nos.1 to 5 as well. Learned magistrate has to consider the materials collected in CRL. R.P. No.1057 of 2009 -: 7 :- the enquiry conducted by him as well as the final report and materials produced by the CBCID before deciding whether summons has to be issued to petitioner and other accused. I make it clear that I have not in any way expressed any opinion about the acceptability or otherwise of the final report or materials produced by the CBCID or the materials collected by the learned magistrate in the enquiry. Learned magistrate has to decide the matter afresh after consideration of the materials on record as above stated. I also make it clear that it will be open to respondent No.2 if he is otherwise entitled to do so in law, to produce further witnesses in support of his complaint. Resultantly, this revision petition is allowed. Order under challenge concerning petitioner as well as accused Nos.1 to 5 is set aside and the matter is remitted to the court of learned Judicial First Class Magistrate, Kattakkada for fresh consideration and appropriate orders in the light of the observations made above. THOMAS P.JOSEPH, JUDGE. vsv