IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 Crl.Rev.Pet.No. 2565 of 2009() ------------------------------ FILED UNDER SECTION 397 & 401 OF Crl.P.C AGAINST THE ORDER DATED 22.05.2009 IN CRIME NO.478 OF 2008 OF PANDALAMPOLICE STATION WHICH IS ON THE FILE OF J.F.M.C, ADOOR ------------------------------------- REVN. PETITIONER/COMPLAINANT: -------------------------------- ASHA, D/O. SAVITHRI, AGED 27, PUTHUSERIKAVIL VEEDU, KARITHOTTA P.O., KIDANGANOOR, PATHANAMTHITTA DISTRICT. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS-STATE AND ACCUSED: -------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRASANTH, AGED 27, S/O. LATE SASIDHARAN NAIR, GEETHANJALI HOUSE, MELECHARUVILA, KAZHAKKUTTAM VILLAGE, THIRUVANANTHAPURAM. Public Prosecutor : SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2565 of 2009 --------------------------------------- Dated this 10th day of August 2009 ORDER Heard counsel for petitioner and Public Prosecutor who took notice for respondent No.1. 2. The order under challenge is one accepting the refer report submitted by the police. Since vide the impugned order, the refer report has only been accepted and in the light of the decision of this court in Lilly Varghese V. E V Radhakrishnan (1965 KLT 1234) which principle should apply to the acceptance of refer report it is not necessary to issue notice to respondent No.2 and hence notice to him is dispensed with. 3. Petitioner claimed to be the wife of respondent No.1 and alleged that the latter subjected her to physical and mental cruelty attracting the offence under section 498A of the Indian Penal Code. Police registered the case on the information given by petitioner and after investigation submitted a refer report. According to the learned counsel for petitioner, refer report was filed for the reason that petitioner is not the legally wedded wife of respondent No.2. On receipt of refer report learned magistrate issued notice to the petitioner. She appeared through counsel on 02-04-2009 and requested time to file a protest complaint. Learned magistrate granted time and posted the case on 02-05-2009. That day there was Crl.R.P.No.2565 of 2009 2 no sitting and hence the case was posted on 22-05-2009. That day petitioner remained absent. No protest case was also filed. Learned magistrate after referring to the absence of petitioner and her not filing the protest complaint ordered that “hence refer report is accepted”. Learned counsel complaints that there was no willful failure or latches on the part of petitioner in not filing the protest complaint. Petitioner was laid up due to back ache. At any rate for the mere absence of a protest complaint learned magistrate should not have accepted the refer report without application of mind. 4. When a refer report is submitted under section 173 of the Code of Criminal Procedure stating that no offence is disclosed, the magistrate could either accept it, direct further investigation or take cognizance of any offence disclosed from the materials produced. Application of mind on refer report and other documents if any produced along with is required. On going through the order under challenge it is seen that the refer report is accepted for the only reason that there is no protest complaint. That, in my view is not proper. Hence the order is liable to be set aside. At the same time I am inclined to give an opportunity to the petitioner to prefer protest complaint if any. Resultantly this revision is allowed. The order under challenge is set aside and the matter is remitted to the court of Judicial Magistrate Crl.R.P.No.2565 of 2009 3 of First Class, Adoor for fresh consideration of the refer report and documents produced along with. I make it clear that it will be open to the petitioner to file protest complaint if otherwise she is entitled to that course. Petitioner shall appear in the court below on 19-09-2009. If any such protest complaint is preferred by petitioner in the meantime, learned magistrate shall consider that along with refer report and other documents as provided under law and pass appropriate orders. THOMAS P JOSEPH, JUDGE Sbna/