IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 Crl.MC.No. 1130 of 2009(E) ------------------------------------- AGAINST THE ORDER DATED 25/02/2009 IN CMP. NO. 2603 /2009 IN CC.410/2007 OF JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM. .................... PETITIONER/ACCUSED: ---------------------- ABDUL RAHIM, S/O.ALIYARUKUNJU, NJARAKKALAZHIKATHU VEEDU, THEKKEKARA CHERRY, KANJAVELI, TRIKKARUVA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.SUNNY ZACHARIA SRI.S.BIJU (KIZHAKKANELA) RESPONDENTS/ STATE AND COMPLAINANT: ----------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUSEELA, KIZHAKKATHIL VEEDU, NJARAKKALAZHIKATHU VEEDU, KANJAVELI P.O., KOLLAM. R1 BY PUBLIC PROSECUTOR MR. GIKKU JACOB, R2 BY ADV. MR.C.R.SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 1130 of 2009-E ================== Dated this the 8th day of June, 2009. O R D E R Second respondent filed a complaint before Judicial First Class Magistrate Court-I, Kollam, alleging that petitioner committed offences under Sections 448, 509 and 294(a) of Indian Penal Code. Learned Magistrate forwarded the complaint for investigation under Section 156(3) of Code of Criminal Procedure. After investigation, Sub Inspector of Police filed Annexure A1 refer report stating that the complaint was falsely made by second respondent. Second respondent thereafter filed a protest complaint, which was taken cognizance by learned Magistrate without proper enquiry. Petitioner challenged the order taking cognizance before this Court in Crl.M.C.No.4393/2003. Under Annexure A2 order, this Court quashed the order and found that the Magistrate should have considered the refer Crl.M.C.No.1130/2009-F -2- report as well as statements of complainant and witnesses before taking cognizance. Magistrate was therefore directed “to consider afresh the matter and summon the witnesses mentioned in the complaint as well as consider the refer report and thereafter only issue summons to the accused”. The Magistrate without complying with the directions, issued summon to the petitioner. Petitioner then filed Annexure A4 petition before the Magistrate pointing out that cognizance should not have been taken without complying with the directions of this Court in Annexure A2 order and therefore the proceedings is to be dropped. Under Annexure A5 order, learned Magistrate dismissed the petition holding that cognizance was taken by his predecessor and though originally cognizance was taken for the offence under Section 294(b) also, subsequently it was omitted and cognizance was taken only for the offences under Sections 448 and and 509 of Indian Penal Code and it was on satisfaction of the Magistrate and successor Crl.M.C.No.1130/2009-F -3- Magistrate is not competent to review that order. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure A5 order as well as the order taken cognizance on the protest complaint. 2. Learned Counsel appearing for petitioner and learned Counsel appearing for second respondent were heard. 3. Annexure A5 order passed by the Magistrate itself establish that after Annexure A2 order of this Court, neither the complainant nor the witnesses was present nor their statements recorded. Still summons was issued after taking cognizance, evidently without complying with the directions given by this Court. The Magistrate is not competent to flout the directions of this Court. When in Annexure A2 order it is found that in the light of the refer report, Magistrate should have recorded the sworn statements of the complainant as well as the witnesses before taking cognizance and should consider the refer report also he Crl.M.C.No.1130/2009-F -4- could have issued summons only thereafter. The Magistrate is not entitled to take cognizance and issue summons before recording the statements of the complainant and his witnesses. When cognizance was taken in violation of the directions given by this Court, the order can only be quashed. I do so. 4. The petition is allowed. Magistrate is directed to conduct an inquiry as directed in Annexure A2 order and decide thereafter whether cognizance is to be taken or not. M.SASIDHARAN NAMBIAR JUDGE dkr