IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 Crl.Rev.Pet.No. 1675 of 2008() ------------------------------ CP.1/2008 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONERS/ACCUSED: --------------------- 1. KAPPIL MUHAMMED PASHA, AGED 52 YEARS S/O.LATE ABDULKHADER, ‘GREEN VIEW’ KAPPIL, PALAKUNNU. 2. T.K.MOOSA, AGED 44 YEARS S/O.LATE T.K.ABDULLA, RESIDING AT THEKKEKARA, PO.UDUMA. BY ADV. SRI.SUNNY MATHEW RESPONDENTS/COMPLAINANT & STATE: ----------------- 1. MURUGADASAN, AGED 26 YEARS, S/O.BALAKRISHNAN, VADAKKEVEETIL, PALAKUNNU. 2. THE S.I. OF POLICE,BEKAL POLICE STATION 3. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU FOR R2 & 3 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP 1675/2008 OR DER ON CRL.M.A..5061 OF 2008 IN CRRP 1675 OF 2008 DISMISSED 29/9/2008 SD/- M. SASIDHARAN NAMBIAR, JUDGE. Okb/- /TRUE COPY/ P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 1675 OF 2008 ------------------------------------------ Dated this the 29th day of September, 2008 O R D E R Petitioners are the accused in a private complaint filed by first respondent before Judicial First Class Magistrate Court, Hosdurg. The case of the first respondent/complainant was that on 27.10.2007 while the complainant along with one Haneefa was proceeding in the motorcycle and reached in front of Palakkunnu Bhagavathi Temple at about 11 a.m., petitioners along with Shereef, Khader, Kathim, Shiyas and eight other unidentifiable persons wrongfully restrained him and attacked him and Haneefa with dangerous weapons and thereby committed offences under Sections 143, 147, 148, 341, 323, 324, 308 and 427 read with section 149 of Indian Penal Code. Case of first respondent in the complaint was that on recording his first information statement, Bekal police registered crime 443 of 2007 against petitioners and others and later filed a report to the effect that petitioners herein are not involved in the case and the case is being investigated against others and CRRP 1675/08 2 four of the accused obtained anticipatory bail from the High Court and in such circumstances private complaint is filed as against the petitioners. Learned Magistrate as per the order dated 1.1.2008 recording prima facie case issued summons by taking the case on file as C.P.1 of 2008. This petition is filed under sections 397 and 401 of Code of Criminal Procedure challenging the order taking cognizance. 2. Learned counsel appearing for petitioners and learned public prosecutor were heard. Though notice was served on first respondent, he did not appear. 3. Learned counsel appearing for petitioners submitted that police is yet to complete the investigation and file a final report in crime 443 of 2007 and in such circumstances learned Magistrate was not justified in taking cognizance of the case as against petitioners and in any case learned Magistrate should have waited the filing of the final report in the case and therefore the order is illegal. Learned public prosecutor submitted that learned Magistrate should have proceeded as provided under section 210 of Code of Criminal Procedure and necessary orders may be passed. 4. The complaint filed by first respondent itself reveals that on the basis of the first information statement recorded by CRRP 1675/08 3 Bekal Police, crime 443 of 2007 was registered and petitioners were also two of the accused in that case along with others. But based on the initial investigation a report was filed before the Court in Crime 443 of 2007 that petitioners are not involved in the crime. The investigation is in progress and final report is yet to be submitted. It is in such circumstances a private complaint was filed. 5. As rightly pointed out by learned public prosecutor, on the facts learned Magistrate should have proceeded as provided under section 210 of Code of Criminal Procedure. Under sub section (1) of section 210, when in a case instituted otherwise than on a police report and it is made to appear to the Magistrate, during the course of inquiry or trial that an investigation by the police is in progress in relation to the offence, which is the subject matter of the inquiry or trial held by him, Magistrate shall stay the proceedings and call for a report on the matter from the police officer conducting the investigation. Under sub section (2), if a report is made by the investigating officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the case and the case arising CRRP 1675/08 4 out of police report as if both the cases were instituted on a police report. On the other hand as provided under sub section (3), if the police report does not relate to the accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial of the complaint case, which was stayed by him in accordance with law. In such circumstances the learned Magistrate, when it was disclosed in the complaint itself that investigation by the police is in progress and a final report as provided under section 173 of Code of Criminal Procedure is yet to be made, should have stayed the inquiry as provided under section 210(1). But as cognizance of the offences were taken on the private complaint, the learned Magistrate is directed to stay the case under sub section (1) of Section 210 of Cr.P.C. and call for a report and thereafter proceed as provided under sub sections (2) or (3) of section 210, in accordance with law when report is filed. Revision is disposed of accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-