Allowed

B.Kusuma Kumari v. State of Kerala

Kerala HC18 Sept 2012Crl.MC/1393/2007

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition challenging the taking of cognizance under Cr.P.C. 204, the Kerala High Court set aside the Magistrate's order. The Court held that the complaint was filed without additional evidence after the police had already referred the earlier report as false and suppressed critical facts regarding investigation bias.

What did the court decide?

Cognizance under C.C. No. 86/2007 set aside; matter remitted to learned Magistrate for fresh consideration; complainant directed to appear on 11.10.2012.

B.Kusuma Kumari Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

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TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934

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Crl.MC.No. 1393 of 2007 ( ) --------------------------CC.86/2007 of J.M.F.C.- I, DEVICOLAM

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PETITIONER(S)/ACCUSED.:

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SMT. B.KUSUMA KUMARI, FORMERLY, JUNIOR SUPERINTENDENT, DISTRICT LABOUR OFFICE, KOLLAM, PRESENTLY WORKING AS JUNIOR SUPERINTENDENT, DISTRICT LABOUR OFFICE THIRUVANANTHAPURAM.

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BY ADVS.SRI.R.V.SREEJITH

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SRI.JELSON J.EDAMPADAM

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COMPLAINANT(S)/THE STATE AND THE COMPLAINANT.:

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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR

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HIGH COURT OF KERALA, ERNAKULAM.

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2. G.GANESAN, S/O. GOPALAN, SREE GAYA HOUSE, MASIVAYALKARA, MARAYOOR.

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BY ADV. SRI.M.G.KARTHIKEYAN

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BY PUBLIC PROSECUTOR SRI. ROY THOMAS

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

CRL.M.C.1393/07

-2-

APPENDIX

PETITIONER'S EXHIBITS:

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ANNEXURE A: COPY OF THE PRIVATE COMPLAINT CMP NO.473/05 ON THE FILE OF THE HON'BLE JFCM COURT DEVIKULAM. ANNEXURE B: COPY OF THE REPORT DT.05.01.06 SUBMITTED BY THE MARAYOOR POLICE BEFORE THE HON'BLE JFCM COURT DEVIKULAM. ANNEXURE C: COPY OF THE PROTEST COMPLAINT (CRL.M.P.68/06) DT.09.01.06. ANNEXURE D: COPY OF THE REGISTERED DEED OF MARRIAGE BEARING NO.215/95 OF THE KOTTAKKAKAM SUB REGISTRAR'S OFFICE ANNEXURE E: COPY OF THE RELEVANT PAGES OF THE RATION CARD OF THE PETITIONER AND THE COMPLAINANT. ANNEXURE F: COPY OF THE LEASE-DEED DT.15.08.1999 EXECUTED BY THE COMPLAINANT.

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RESPONDENT'S EXHIBITS: NIL

//True copy //

PA to Judge

das

N.K.BALAKRISHNAN, J.

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==================

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Crl.M.C. No. 1393 of 2007

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========================= Dated this the 18^th day of September, 2012

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ORDER

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Petitioner is the sole accused in C.C.86/07 of J.F.C.M-I, Devikulam. It is alleged that the petitioner/accused was married by the complainant. They lived together for about two years. A complaint was filed before the learned Magistrate on 03.06.2005. That was forwarded to the police for investigation under Sec.156(3) of Cr.P.C. The offences alleged there in are under Secs.323, 307 and 390 of IPC. (It seems section was not correctly quoted). After investigation a refer report was filed by the police stating that the allegations are false. Annexure B is the refer report so filed by the police on 05.01.2006. Again a complaint was filed by the very same complainant against the petitioner herein and seven others. That complaint was filed on 09.01.2006.

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Crl.M.C.No.1393/2007

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: 2 :

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The learned counsel for the petitioner submits

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that the names and addresses of “seven others” are not seen mentioned. That apart, the second complaint dated 09.01.2006 is exactly the repetition of the first complaint dated 03.06.2005. The fact that the police, after investigation, referred the case as false was conveniently suppressed by the complainant. No additional evidence or material was furnished by the complainant along with the second complaint-Annexure C. The very fact that after investigation, the complaint (Annexure A) was referred as false would clearly show that the complainant has approached the court with unclean hands.

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Learned counsel for the petitioner submits that three witnesses cited in the complaint were examined by the learned Magistrate. But the fact that, those three witnesses were questioned by the police during investigation pursuant to the order passed on Annexure A was also not disclosed to the learned Magistrate. When it is a case, which was referred by the police after

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Crl.M.C.No.1393/2007

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: 3 :

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investigation unless there are additional materials or that there are materials to say that the police conducted a partisan or biased investigation or that the police did not collect certain materials which ought to have been collected, the complainant cannot, by simply filing a complaint, request the court to take cognizance. In this case, without producing any additional materials and also suppressing the fact that the police referred the case as false, the complaint was filed and based on the statement given by PW1 and witnesses cognizance was taken. This, according to the learned counsel, would clearly show that the learned Magistrate did not apply his mind and has mechanically issued the process under Sec.204 of Cr.P.C.

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Since the learned Magistrate did not consider all the aspects while taking cognizance, this petition is to be allowed and the matter is to be remanded to the learned Magistrate to consider the matter afresh. In the result, this petition is allowed. The cognizance taken

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Crl.M.C.No.1393/2007

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: 4 :

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against the petitioner in C.C.No.86/2007 of J.F.C.M, Devikulam is set aside.

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The matter is remitted back to the learned Magistrate to consider the entire matter afresh and to

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pass appropriate orders. The complainant has to appear before the learned Magistrate on 11.10.2012.

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sd/-

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N.K.BALAKRISHNAN, JUDGE

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das

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// True copy // PA to Judge

B.Kusuma Kumari v. State of Kerala

Case brief

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B.Kusuma Kumari v. State of Kerala

Case brief

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