IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 Crl.MC.No. 3195 of 2009 --------------------------------------- CC.601/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... PETITIONERS: 1. SUNNY STANELY, S/O.STANLEY MORRIS, AGED ABOUT 42 YEARS, MARAM VEEDU, EZHUPUNNA SOUTH P.O., CHERTHALA. 2. GEORGE MORRIS, AGED ABOUT 47 YEARS, PARTNER, KARUMANCHERI FINANCIERS, HEAD OFFICE, EZHUPUNNA SOUTH P.O., CHERTHALA. 3. BENNET MORRIS, AGED ABOUT 57 YEARS, DO. DO. 4. PAUL MORRIS @ POLACHAN, AGED ABOUT 52 YEARS, DO. DO. 5. KEVIN, S/O.BENNET MORRIS, AGED 27, DO. DO. 6. RANJI, S/O.PAUL MORRIS, AGED 32, DO. DO. 7. JOHNY, COLLECTION AGENT, DO. DO. BY ADV. SRI.K.R.VINOD RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. K.P.VIJAYAN, S/O.PARAMESWARAN, KALAPPURAKKAL VEEDU, ERAMALLOOR P.O., CHERTHALA. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3195 of 2009 -------------------------- ORDER Petitioners are the ccused in C.C.No.601/2009 on the file of Judicial First Class Magistrate's Court-II, Cherthala, taken cognizance for the offences under Sections 383, 384, 385, 386 and 387 read with Section 34 of Indian Penal Code on Annexure-A1 protest complaint filed by the second respondent. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that learned Magistrate should not have taken cognizance of the offences, on a protest complaint, in the light of Annexure-A2 refer report. 2. Learned counsel appearing for the petitioners was heard. 3. Learned counsel vehemently argued that the order taking cognizance by the learned Magistrate does not show that the refer report or the materials, produced along with the refer report, were even considered by the learned Magistrate while taking CRMC 3195/09 2 cognizance of the offences and as held by this Court in Parameswaran Nair v. Surendran (2009 (1) KLT 794), the cognizance taken is bad and therefore, it is to be quashed. 4. Annexure-A4 proceedings paper shows that learned Magistrate has recorded the sworn statement of the complainant and two other witnesses and thereafter heard the complainant and then only had taken cognizance of the offences. Even though the sworn statements of three witnesses were recorded, learned Magistrate has relied on only on the sworn statements of CW1, the complainant and CW3. The statement of CW3 was read over by the learned counsel. Though the order taking cognizance does not show that refer report was also considered, on the facts and circumstances of the case, I do not find it, in the interest of justice, to quash the cognizance taken, when Annexure-A4 shows that in answer to the summons issued under Section 204 of Code of Criminal Procedure, petitioners have already appeared before the Magistrate. 5. As cognizance was taken on a protest complaint and the offences are to be tried as in a warrant trial, CRMC 3195/09 3 otherwise than on a police report, learned Magistrate has necessarily to examine the complainant and his witnesses as provided under Section 244 of Code of Criminal Procedure in the presence of the petitioners. Petitioners are entitled to cross-examine the witnesses at this stage, if they so choose. They are also entitled to seek an order of discharge as provided under Section 245 of Code of Criminal Procedure. Learned Magistrate can proceed to the next step by framing charges, as provided under Section 246 of Code of Criminal Procedure, only after hearing the accused and finding that it is not a case for discharge. Petitioners are at liberty to file a separate petition for an order of discharge under Section 245 of Code of Criminal Procedure. If a petition is filed, Magistrate to consider the same and pass appropriate order in accordance with law. Petition is disposed. 17th November, 2009 (M.Sasidharan Nambiar, Judge) tkv