IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 Crl.MC.No. 3487 of 2010(A) ------------------------- CC.1000/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... PETITIONER(S): ACCUSED ---------------------- 1. RAJAN, S/O.RAJAPPAN, CANNAYYAR HOUSE, KOTTARAKONAM, VELLACHIPARA.P.O., MANCODE VILLAGE, VILAVANCODE TALUK, KANYAKUMARI DISTRICT. 2. DAISY, CANNAYYAR HOUSE, KOTTARAKONAM, VELLACHIPARA.P.O., MANCODE VILLAGE, VILAVANCODE TALUK, KANYAKUMARI DISTRICT. 3. SHAJI, CANNAYYAR HOUSE, KOTTARAKONAM, VELLACHIPARA.P.O., MANCODE VILLAGE, VILAVANCODE TALUK, KANYAKUMARI DISTRICT. 4. SANITHA, CANNAYYAR HOUSE, KOTTARAKONAM, VELLACHIPARA.P.O., MANCODE VILLAGE, VILAVANCODE TALUK, KANYAKUMARI DISTRICT. BY ADV. SRI.R.GOPAN RESPONDENT(S): COMPLAINANTS --------------------------- 1. STATE OF KERALA, REPRESENTED VIA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. R.BINDU, D/O.ROSAMMA, PLAVILA PUTHEN VEEDU, ANCHUMARAKALA, VELLARADA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT, PIN-695 018. R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN R2 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3487 of 2010(A) APPENDIX PETITIONERS ANNEXURES: A: COPY OF THE AGREEMENT DATED 13.5.2005 EXECUTED BETWEEN THE 1ST PETITIONER AND 2ND RESPONDENT B: COPY OF THE ORDER DATED 10.8.2005 IN CRL.O.P. NO:6095/2005 OF THE MADURAI BENCH OF TAMIL NADU HIGH COURT C: COPY OF THE ORDER DATED 13.10.2005 IN C.M.P. NO:7993/2005 OF JUDICIAL MAGISTRATE COURT-I, KUZHITHURAI D: COPY OF THE C.M.P. NO:10353/2005 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, NEYYATTINKARA DATED 13.10.2005 E: COPY OF THE FIR IN CRIME NO:598/2005 OF VELLARADA POLICE STATION DATED 14.10.2005 F: COPY OF THE FINAL REPORT IN CRIME NO:598 OF 2005 OF THE VELLARADA POLICE STATION G: COPY OF THE CMP NO:7525/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III NEYYATINKARA FILED BY THE 2ND RESPONDENT H: COPY OF THE DEPOSITION OF 2ND RESPONDENT IN C.M.P. NO:7525/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, NEYYATTINKARA DATED 22.11.2007 I: COPY OF THE DEPOSITION OF SUKUMARAN IN CMP NO:7525/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, NEYYATTINKARA DATED 17.5.2008 J: COPY OF THE DEPOSITION OF CW3 IN CMP NO:7525/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, NEYYATTINKARA DATED 17.5.2008 RESPONDENTS ANNEXURES: NIL //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. No: 3487 OF 2010 (A) ------------------------------------------ Dated this the 13th day of December, 2011 O R D E R Petitioners are the accused in C.C.No:1000/2008 of Judicial First Class Magistrate Court-III, Neyyattinkara. Complaint was, at first, filed by the complainant before the Sub Inspector of Police, (All Women Police Station), Kuzhithurai. There the parties were called and the matter was reported to have been settled by entering into an agreement. Hence that complaint was not pressed by the complainant. Thereafter, the same complainant approached the High Court of Madras, Madurai Bench for registering F.I.R. When that petition came up for consideration on 10.8.2005, after taking instructions from the Government Pleader, it was stated that no further action need be taken in the matter. Hence that petition was dismissed. Again complaint was filed by the complainant before Judicial First Class Magistrate Court-I, Kuzhithurai. That complaint, after Crl. M.C. No: 3487 OF 2010 (A) -2- conducting investigation, was dismissed by the learned Judicial First Class Magistrate, Court-I, Kuzhithurai, as per Annexure-C Order, taking note of the earlier settlements and the dismissal of the petition by the High Court of Madras, Madurai Bench. 2. The learned counsel for the petitioners submits that raising the same allegation another complaint was filed by the wife, on the very same date, before Judicial First Class Magistrate Court-III, Neyyattinkara. Annexure-D is that complaint. The learned counsel submits that the complainant suppressed the factum of dismissal of the petitions mentioned earlier and also the refer report filed by the police. That complaint was forwarded to the police for investigation. The police, after investigation, referred the case as 'false'. Thereafter, it seems the complainant filed a protest complaint, Annexure-G, reiterating the very same allegations. There the complainant and two witnesses were Crl. M.C. No: 3487 OF 2010 (A) -3- examined. Thereafter, the learned Magistrate took cognizance of the case. 3. The learned counsel for the petitioners submits that the complainant willfully suppressed the factum of dismissal of her earlier complaints and that the learned Magistrate has not applied his mind before taking cognizance, especially since the police had already referred her case as 'false'. 4. The learned counsel for the respondent submits that the learned Magistrate has taken cognizance of the case based on the statements given by the complainant and two witnesses and so the cognizance taken cannot be faulted with. However, in view of the fact that the learned Magistrate has not applied his mind especially in view of the fact that the earlier petitions were dismissed and also because the police has referred the case as false, it is just and proper that the impugned order taking cognizance Crl. M.C. No: 3487 OF 2010 (A) -4- against the petitioner is quashed. The learned Magistrate will re-consider the entire issue and will consider the refer report and the earlier petitions and orders passed thereon, before proceeding further in the matter. This petition is disposed of accordingly. N.K. BALAKRISHNAN, JUDGE jjj