IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 Crl.MC.No. 4313 of 2011() ------------------------- CC.234/2010 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... PETITIONER(S): ACCUSED 1 AND 2; --------------------------------------------------- 1. UNNIKRISHNAN, S/O. KUMARAN, PANDIYATH HOUSE, NEDUPUZHA DESOM, KOORKANCHERY VILLAGE, THRISSUR TALUK. 2. T.B.SAJEEVAN, S/O. BHASKARAN, THERKKAYIL HOUSE, KANNIMANGALAM DESOM, KOORKANCHERY VILLAGE, THRISSUR TALUK. BY ADVS. SRI. P. VIJAYA BHANU, SENIOR ADVOCATE SRI. M. REVIKRISHNAN SRI. UNNI SEBASTIAN KAPPEN RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------------------------------------ 1. K.K.SAJEEVAN, S/O. KUTTAPPAN, KOZHIPARAMBIL HOUSE, VAISSERY DESOM, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK-680503. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. JASMINE. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PN Crl.MC.No. 4313 of 2011() APPENDIX PETITIONER(S) ANNEXURES ANNEXURE A: COPY OF THE ORDER IN CRMC 3299/2008 OF THIS HON'BLE COURT DATED 4-11-2008. ANNEXURE B: COPY OF THE PRIVATE/PROTEST COMPLAINT PREFERRED BY THE 1ST RESPONDENT. ANNEXURE C: COPY OF THE REFER REPORT SUBMITTED BY THE TOWN EAST POLICE, THRISSUR IN CR.NO.635/2001 OF THAT STATION. ANNEXURE D: COPY OF THE PROCEEDINGS SHEET IN CC 234/2010 OF THE COURT OF CHIEF JUDICIAL MAJISTRATE, THRISSUR. ANNEXURE E: COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WPC 1517/2008 DATED 4-3-2008. ANNEXURE F: COPY OF THE FINAL REPORT IN CC 426/2002 OF THE CHIEF JUDICIAL MAJISTRATE COURT, THRISSUR. RESPONDENTS' ANNEXURES : NIL /TRUE COPY/ P. A. TO JUDGE PN N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C.No. 4313 of 2011 ------------------------------------------ Dated this the 16th day of December, 2011 ORDER Petitioners are accused Nos. 1 and 2 in CC.234/10 of CJM, Thrissur. The offences alleged against them are under Sections 420, 465, 467, 468 and 477-A r/w 34 IPC. The learned counsel for the petitioners submits that the police after conducting investigation had referred the case as 'mistake of fact'. Thereafter the complainant filed a protest complaint and the Magistrate took cognizance for the offence as stated above. It is further submitted that based on the complaint filed earlier cognizance was taken by the learned Magistrate. It was challenged before this court As per Annexure – A order, the cognizance taken by the court below was set aside and the learned Magistrate was directed to conduct proper inquiry under Section 202 Cr.P.C. and pass appropriate further order under Section 203/204 Cr.P.C. Crl.M.C.No. 4313 of 2011 -: 2 :- 2. Two witnesses were thereafter examined on commission. But the fact that the final report was filed by the police referring the case as false was not duly considered by the learned Magistrate. According to the learned counsel, the learned Magistrate has not properly applied his mind taking note of the facts and circumstances of the case. The petitioner contends that the cognizance taken by the court below has to be quashed. The case is of the year 2010. The fact whether the statements given by the complainants and the witnesses are sufficient or not are yet to be considered. Since the court below has to record pre-charge evidence under Section 244 Cr.P.C., the accused are getting opportunity to cross-examine these witnesses even during that stage. They can also file an application to the court below for discharge in which Crl.M.C.No. 4313 of 2011 -: 3 :- case the learned Magistrate will consider that application. Petitioner can raise all his contentions before the court below. This petition is disposed of as above. N.K. BALAKRISHNAN, JUDGE. smvd