High Court of Kerala dismissed a plea quashing proceedings under Crl.MC. 3454 of 2017. The petitioners challenged the maintainability of a second complaint filed after a prior complaint and attached FIR were dismissed as false in investigation reports.
The Criminal Miscellaneous application was dismissed with no relief granted to the petitioners.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 3RD DAY OF NOVEMBER 2017/12TH KARTHIKA, 1939
Crl.MC.No. 3454 of 2017 ()
AGAINST THE ORDER/JUDGMENT IN CC 754/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERINTHALMANNA CRIME NO. 182/2014 OF KOLATHUR POLICE STATION, MALAPPURAM
PETITIONER(S)/ACCUSED:
1. SUNNY, S/O. OUSEPH, AGED 48 YEARS, MUTTATH HOUSE, PALACHODE P.O., KOLATHUR, PERINTHALMANNA.
2. RAJU, S/O. THOMAS @ PAPPACHAN, AGED 55 YEARS, CHAKKUMMOOTTIL HOUSE,
PALACHODE P.O., KOLATHUR.
3. BINOY, S/O. THOMAS, AGED 42 YEARS, PAVVATHIL HOUSE, PALACHODE P.O., KOLATHUR, PERINTHALMANNA.
4. TENSON, S/O.CLEETUS, AGED 40 YEARS, PULIKKAD HOUSE, PALACHODE P.O., KOLATHUR, PERINTHALMANNA.
5. DYGEN S/O. CLEETUS, AGED 33 YEARS, PULIKKAL HOUSE, PALACHODE P.O., KOLATHUR, PERINTHALMANNA.
BY ADV. SRI.MANSOOR.B.H.
RESPONDENT(S)/STATE & DEFACTO COMPLAINANT/INJURED:
1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, THROUGH STATION HOUSE OFFICER, KOLATHUR POLICE STATION, MALAPPURAM DISTRICT.
Crl.MC.No. 3454 of 2017 ()
2. ELIYAMMA W/O.PUNNOOSE, AGED 65 YEARS, PALLIYAPARAMBIL HOUSE, KURISHUPALLY, PALACHODE P.O., PALACHODE - 679 338, PERINTHALMANNA. R2 BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI R1 BY PUBLIC PROSECUTOR SMT.M.N.MAYA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.10.2017, THE COURT ON 3.11.2017 PASSED THE FOLLOWING:
Crl.MC.No. 3454 of 2017 () ---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
ANNEXURE A TRUE COPY OF THE COMPLAINT IN CC 754/2016 PENDING TRIAL ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATES COURT - I, PERINTHALMANNA.
ANNEXURE B TRUE COPY OF THE FINAL REPORT IN CRIME NO. 182/2014 OF KOLATHUR POLICE.
ANNEXURE C TRUE COPY OF THE FINAL REPORT IN CRIME NO. 185/2014 OF KOLATHUR POLICE STAION.
RESPONDENT(S)' EXHIBITS : NIL
/TRUE COPY/
P. A. TO JUDGE
Pn
SUNIL THOMAS, J.
Crl. M. C. No. 3454 of 2017
Dated this the 3rd day of November, 2017
O R D E R
The accused in C.C. No.754/2016 has approached this Court to quash the above proceedings pending before the Judicial First Class Magistrate Court 1, Perinthalmanna. The allegation of the 2nd respondent, who is the de facto complainant is that, on 21.05.2014 at about 5.30 p.m., the petitioners attacked the de facto complainant as a sequel to a previous enmity and caused bodily injuries. They also outraged the modesty of the victim. Complaint was laid and cognizance was taken for offences punishable under Sections 323, 341, 354, 427, 506(1) read with 34 of IPC.
Crl. M. C. No. 3454 of 2017 2
the case raised against the petitioners was false and requesting to refer the matter. The court accepted it. Subsequently, the petitioners filed Annexure A private complaint before the Magistrate narrating the same set of allegations which was investigated into and found to be false. The petitioners contending that the cognizance taken on the basis of the second complaint was not legally sustainable and hence liable to be quashed, has approached this Court.
earlier occasion, after conducting investigation on the same set of allegations, the Police had arrived at same conclusion that the complaint was false. It was argued that the court, even after ordering further investigation, accepted the report which has become final. In the above circumstance, a second complaint on the same set of allegations is not legally sustainable.
Crl. M. C. No. 3454 of 2017 3
report filed by the Police, after investigation. It was held that, three options were available to the Magistrate, if a positive report is filed. It was held that if a negative report is filed, still the court has got three other options. It was contended that when the option is exercised and final report is accepted by the court below, a complaint on the same set of allegations is not legally sustainable.
Crl. M. C. No. 3454 of 2017 4
sufficient ground for proceeding. It was held that second complaint on the same set of facts could be entertained only in exceptional circumstances, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In a subsequent decision in Rakesh & Another V. State of U.P. & Another (CDJ 2014 SC 668) the question that arose before the Hon'ble Supreme Court was whether after accepting a negative final report submitted by the Police, the Magistrate can take action on the basis of a protest petition filed by the complainant/first informant. Relying on the decision in Mahesh Chand (supra) the Court held that, only because the Magistrate has accepted the final report, it would not by itself stand in the way to take cognizance of the offence on a protest complaint. The contention of the petitioners in the above case that once the final report was accepted by the learned Magistrate, it has become functus officio and was denuded of all powers to proceed in the matter was rejected by the Hon'ble Supreme Court. Complaint itself discloses that there is a specific pleading
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that even though crime was registered earlier, the Police did not question the complainant thereafter nor conduct an effective investigation except inspecting the place of occurrence. Two witnesses were examined and the medical evidence was also relied. It was only thereafter process was issued and cognizance taken by the Magistrate.
In the light of the settled legal position, I find no merit in the contention set up by the learned counsel for the petitioners. Crl.M.C. fails and is dismissed.
SUNIL THOMAS, JUDGE.
Pn
2 issues framed by the court
Whether a criminal complaint filed on the same set of allegations as in a dismissed FIR is legally sustainable.
Whether the acceptance of a final report by the Magistrate deprives the court of power to proceed on a subsequent protest complaint.
Colour shows how this judgement treated each authority
Parameswaran Nair V. SurendranReferred¶41
Parameswaran Nair V. Surendran (2009 (1) KLT 794)
Mahesh Chand V. B. Janardhan Reddy & AnotherRelied on¶44
Mahesh Chand V. B. Janardhan Reddy & Another (CDJ 2003 SC 063)
Rakesh & Another V. State of U.P. & AnotherRelied on¶46
Rakesh & Another V. State of U.P. & Another (CDJ 2014 SC 668)
SUNNY
RAJU
BINOY
TENSON
DYGEN
STATE OF KERALA
SUNIL THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
