IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 Crl.MC.No. 4525 of 2008() ------------------------- CP.76/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, ,ALAPPUZHA .................... PETITIONER(S): ACCUSED NOS. 2, 4 AND 5 -------------------------------------- 1. P.M.JOHNACHAN, AGED 59 YEARS, S/O.MATHEW, PULICKAL VEEDU, THATHAMPALLY WARD, ALAPPUZHA. 2. ROSMI JONACHAN, AGED 18 YEARS, D/O.JOHNACHAN, PULICKAL VEEDU, THATHAMPALLY WARD, ALAPPUZHA. 3. K.J.MARIAMMA, W/O.JOHNACHAN, AGED 57 YEARS, PULICKAL VEEDU, THATHAMPALLY WARD, ALAPPUZHA. BY ADV. SRI.G.PRIYADARSAN THAMPI RESPONDENT(S): STATE AND DEFACTO COMPLAINANT -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JAMES, S/O.MATHEW, AGED ABOUT 70 YEARS, PULICKAL VEEDU, THATHAMPALLY WARD, ALAPPUZHA. PUBLIC PROSECUTOR SRI. P.A. SALIM. SRIR.AZAD BABU FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4525 of 2008 ------------------------------------------------- Dated this the 14 day of January, 2009 ORDER The petitioners face indictment in two prosecutions - both relating to the same incident. In respect of an alleged incident which took place on 8.10.2007, the police had registered a crime. Investigation was conducted and a final report was filed. Allegations were raised against six accused persons, including the petitioners herein i.e. A2, A4 and A5. Charges were raised against them under Secs. 324 and 323 read with Sec.34 I.P.C. Cognizance has been taken by the learned Magistrate. The matter is pending before the learned JFMC-I, Alleppey. 2. The de facto complainant i.e. the second respondent herein, was dissatisfied with the final report filed. He therefore filed a private complaint arraying as many as eight accused persons. The petitioners are arrayed in that private Crl.M.C. No. 4525 of 2008 -: 2 :- complaint also as A2, A4 and A5. Allegations are raised that the said eight accused persons had committed offences punishable under Sections 307 and 326 read with Sec.34 I.P.C. The learned Magistrate, after examining the complainant and one witness, has taken cognizance of the offences under Sections 307 and 326 read with Sec.34 I.P.C. Proceedings are pending before the learned Magistrate as C.P. 76 of 2008. 3. The petitioners had, at this juncture, come to this Court complaining about the unjustified cognizance taken against them. The learned counsel for the petitioners submits that before taking cognizance of the offence under Section 326 I.P.C., the learned Magistrate had not insisted on any documents or oral evidence to entertain the threshold satisfaction that a grievous hurt has been suffered by the victim. The learned counsel raises a grievance that before taking cognizance of the serious offence punishable under Section 307 I.P.C., the requirement of the proviso to Sec. 202(2) Cr.P.C. that all witnesses must be examined when the offence complained of is exclusively triable by a Court of Session has not been complied with. 4. For the reason that the cognizance has been taken without sufficient application of mind and for the further reason Crl.M.C. No. 4525 of 2008 -: 3 :- that the proviso to Sec.202(2) Cr.P.C. has not been complied with, the learned counsel for the petitioners submits that the cognizance taken against them is liable to be quashed. 5. Notice was given to the complainant who has appeared through counsel. A report of the learned Magistrate was called for. The learned Magistrate in the report makes a categoric statement that the procedure, as insisted by law, has not been followed. In para-9 of the report the learned Magistrate reports: “Para-9Cognizance was taken after examining the witnesses produced. Due to an oversight the complainant was not called upon to produce all the witnesses. A doctor and another remains to be examined. That was a mistake. Appropriate direction may be given in this regard”. 6. There is no serious dispute now that the cognizance taken against the petitioners and other accused in C.P. 76 of 2008 by the learned JFMC-I, Alleppey, is legally unsustainable and deserves to be quashed. However, I make it clear that it shall be open to the learned Magistrate to continue the proceedings on the basis of the private complaint filed by the Crl.M.C. No. 4525 of 2008 -: 4 :- respondent/complainant in accordance with law and take appropriate further action. 7. The learned counsel for the petitioners submits that on the date of the alleged occurrence, the 4th accused i.e. the second petitioner, was below the age of 18 years and she is hence a juvenile. Cognizance cannot be taken by the regular court and the case against her has to be dealt with only by the Juvenile Justice Board under the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short `the Act'). That contention has to be raised before and considered by the Magistrate concerned and it is not necessary for me to express any final opinion on the question. Certainly the learned Magistrate, before issuing summons as also whenever such a question is raised, will have to consider the question of juvenility of the indictee in accordance with the provisions of the Act. 8. The learned counsel for the complainant submits that the complainant wants time to adduce evidence to show that the police have not conducted a proper investigation and that appropriate wound certificate has not been produced before the court. Therefore, the 2nd respondent may be given an opportunity to produce such wound certificate which really relates to the injury suffered by the victim. Needless to say, the Crl.M.C. No. 4525 of 2008 -: 5 :- 2nd respondent can place such material before the learned Magistrate at the stage of enquiry under Sec.202 Cr.P.C. 9. In the result: (a) This Crl.M.C. is allowed. (b) C.P.No.76/08 pending before the learned JFCM-I, Alappuzha, against the petitioners and other co-accused is hereby quashed. (c) It is observed that the learned Magistrate must continue with the proceedings in accordance with law and take appropriate decision in the matter giving the 2nd respondent an opportunity to examine all witnesses. (R. BASANT, JUDGE) Nan/ Crl.M.C. 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