Remanded

Abdul Jabbar v. State of Kerala

Kerala HC9 Dec 2022Crl.MC/233/2018

Case brief

AI extract

What is this about?

The High Court set aside the order taking cognizance in a criminal case due to a mechanical process by the Magistrate, citing landmark precedents, and remanded the matter for reconsideration, including compliance with Priyanka Srivastava requirements.

What did the court decide?

Order taking cognizance set aside; matter remanded to the learned Magistrate to reconsider including compliance with Priyanka Srivastava requirements.

Abdul Jabbar Vs State of Kerala — Cheating and Forgery | Kerala HC (2022)

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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 ZIYAD RAHMAN A.A.

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FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944

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CRL.MC NO. 233 OF 2018

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[TO QUASH PROCEEDINGS IN C.C.NO.1619/2016 ON THE FILE OF THE CHIEF

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JUDICIAL MAGISTRATE COURT, THALASSERY]

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PETITIONERS/ACCUSED NO.1, 3 TO 6:

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1ABDUL JABBAR,AGED 60 YEARS,S/O.KUNHU MUHAMMED,MAMMAYIL
THEKKEPURAYIL VEEDU,P.O.MATTOOL.

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2 KRISHNA KUMAR

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ACCOUNTANT,PRESTIGE EDUCATIONAL TRUST & KANNUR,MEDICAL
COLLEGE & SUPERFICIALITY HOSPITAL,P.O.ANCHARAKKANDY.

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3 KRISHNAN ADMINISTRATOR,PRESTIGE EDUCATIONAL TRUST & KANNUR MEDICAL COLLEGE & SUPERFICIALITY HOSPITAL,P.O.ANCHARAKKANDY.

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4 SAHADEVAN

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OFFICE STAFF,PRESTIGE EDUCATIONAL TRUST & KANNUR MEDICAL COLLEGE & SUPERFICIALITY HOSPITAL,P.O.ANCHARAKKANDY.

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5 SANGEETH OFFICE STAFF,PRESTIGE EDUCATIONAL TRUST & KANNUR,MEDICAL COLLEGE & SUPERFICIALITY HOSPITAL,P.O.ANCHARAKKANDY. BY ADVS.

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SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.V.VINAY

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RESPONDENTS/STATE AND COMPLAINANT:

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1 STATE OF KERALA REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031.

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2 P.T.TOMY,AGED 47 YEARS,S/O.THOMAS,PERUNNAKKOT HOUSE,KOOTHUPARAMBA AMSOM,AMBILADU DESOM,THALASSERY,NIRMALAGIRI P.O,KANNUR-670701.

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R1 BY SMT. SEENA C. PUBLIC PROSECUTOR R2 BY SHRI P.T.TOMY(PARTY-IN-PERSON)

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 8.12.2022
THE COURT ON 9.12.2022 PASSED THE FOLLOWING:

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CRL.MC No.233 of 2018 2

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O R D E R

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The petitioners are the accused Nos. 1 and 3

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to 6 in C.C.No.1619/2016 on the file of the Chief
Judicial Magistrate Court, Thalassery. The
cognizance was taken by the learned Magistrate in
the above case on Annexure-1 complaint submitted
by the 2nd respondent, which was numbered as
Crl.M.P.No.5619/2015. The offences alleged are
punishable under Sections 120B, 420, 465, 468, 471
r/w. Section 34 of the Indian Penal Code (IPC).

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2.The allegation against the petitioners and

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other accused are as follows:

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Accused are the persons managing the affairs
of the Kannur Medical College. The petitioners

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entered into a contract with the 2nd

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respondent/complainanttosupplynecessary

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manpower for filling up the vacancies of security

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CRL.MC No.233 of 2018 3

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staff and other similar workers in the said
Medical College for a period of one year. Later,
the said period was extended by the management.
According to the complainant, based on certain
complaints filed by the workers allegedly engaged
by the complainant, the Labour Officer, Kannur,
issued notice to him seeking his explanation. When
the said notice dated 24.01.2014 was received, the
2nd respondent approached the 1st accused with the
said notice, and he assured that he would look
after the matters with respect to the said notice
and thereby pacified him. Later, he received
another notice on 01.02.2014 wherein the 2nd
respondent/complainant was required to appear
before the Labour Officer on 10.02.2014. Upon
appearing before the Labour Officer on that date,
it came to the notice of the 2nd respondent that,
as per the records maintained in the District
Labour Office, the 2ndrespondent/complainant

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CRL.MC No.233 of 2018 4 submitted reply notices to the Labour Officer. The case of the 2^nd respondent/complainant is that such reply notices were never issued by him, and the same were forged. The complaint was submitted in such circumstances and after conducting an inquiry under Section 202 of Cr.PC, the learned Magistrate had taken cognizance of the same as per the order dated 30.11.2016. This Crl.M.C is filed in such circumstances for quashing all further proceedings pursuant to Annexure-A1 complaint.

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3.Heard Sri.S. Rajeev, the learned counsel
for the petitioners, Smt.Seena C., the learned
Public Prosecutor for the State and the 2nd

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respondent, who appeared in person.

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4.One of the crucial contentions put forward
by the learned counsel for the petitioners is

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that, even if the allegations contained in the
complaint are taken as correct, no offence against

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CRL.MC No.233 of 2018 5

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the petitioners would be attracted. It is further
contended that, the complaint was not submitted by
following the procedure contemplated by the
Hon’ble Supreme Court in the decision reported in
Priyanka Srivastava v. State of U.P.[2015(2)KLT

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451(SC)], wherein it was stipulated that the

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complaint has to be accompanied by an affidavit in
support of the allegations. It is also contended
that, while taking cognizance of the complaint,
there was no proper application of mind by the

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learned Magistrate, and the order by which the

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cognizance was taken does not reflect the

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satisfaction of the learned Magistrate as to
whether the offences are attracted or not.

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5.On the other hand, the 2nd respondent who

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appeared in person, opposes the said contention by
pointing out that the learned Magistrate had taken
cognizance of the offence after recording his
statement, and under no circumstances can the same

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CRL.MC No.233 of 2018 6

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be interfered with. It is pointed out that the
contentions raised by the petitioners with regard
to the ingredients of the offence are a matter
which has to be considered during the course of
trial and the same is beyond the scope of the
proceedings under Section 482 Cr.PC.

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6.I have gone through the materials placed on

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record. As mentioned above, one of the most

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crucial contentions raised by the petitioners is
that, while taking cognizance of the Annexure-A1
complaint, there was no proper application of mind
by the learned Magistrate. The order by which the
learned Magistrate took cognizance was passed on
30.11.2016 which reads as follows:

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“Cognizance states u/s 120B, 420, 465, 468, 471 r/w.
34 IPC. Taken on file as CC 1619/2016. Summons to
accused by Registered Post.”

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7.On going through the aforesaid order,

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I find some force in the contention put forward by

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CRL.MC No.233 of 2018 7

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the learned counsel for the petitioners. This is

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mainly because it is a well settled position of
law that, while taking cognizance, the order must
reflect that the learned Magistrate has applied
his mind to the facts of the case. In Pepsi Foods
Ltd. and Another v. Special Judicial Magistrate
and Others [(1998)5 SCC 749], it was observed by
the Hon’ble Supreme Court as follows:

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“28. Summoning of an accused in a criminal case
is a serious matter. Criminal law cannot be set
into motion as a matter of course. It is not
that the complainant has to bring only two
witnesses to support his allegations in the
complaint to have the criminal law set into
motion. The order of the Magistrate summoning
the accused must reflect that he has applied
his mind to the facts of the case and the law
applicable thereto. He has to examine the
nature of allegations made in the complaint and
the evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that the
Magistrate is a silent spectator at the time of
recording of preliminary evidence before
summoning of the accused. The Magistrate has to
carefully scrutinise the evidence brought on
record and may even himself put questions to
the complainant and his witnesses to elicit
answers to find out the truthfulness of the
allegations or otherwise and then examine if
any offence is prima facie committed by all or
any of the accused.”

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CRL.MC No.233 of 2018 8

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The Hon’ble Supreme Court in Birla Corporation

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Ltd. and Another v. Adventz Investments and
Holdings Ltd. and Others [(2019)16 SCC 610] it was
observed in paragraph 34 of the said decision as
follows:

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“34. The order of the Magistrate summoning the
accused must reflect that he has applied his
mind to the facts of the case and the law
applicable thereto. The application of mind has
to be indicated by disclosure of mind on the
satisfaction. Considering the duties on the
part of the Magistrate for issuance of summons
to accused in a complaint case and that there
must be sufficient indication as to the
application of mind and observing that the
Magistrate is not to act as a post office in
taking cognizance of the complaint, in Mehmood
Ul Rehman, this Court held as under:-

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“22. ….the Code of Criminal Procedure requires
speaking order to be passed under Section
203 Cr.P.C. when the complaint is dismissed and
that too the reasons need to be stated only
briefly. In other words, the Magistrate is not
to act as a post office in taking cognizance of
each and every complaint filed before him and
issue process as a matter of course. There must
be sufficient indication in the order passed by
the Magistrate that he is satisfied that the
allegations in the complaint constitute an
offence and when considered along with the
statements recorded and the result of inquiry
or report of investigation under Section
202 Cr.P.C., if any, the accused is answerable
before the criminal court, there is ground for
proceeding against the accused under Section
204 Cr.P.C., by issuing process for appearance.
The application of mind is best demonstrated by
disclosure of mind on the satisfaction.
If there is no such indication in a case where
theMagistrateproceedsunder Sections

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CRL.MC No.233 of 2018 9

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190/204 Cr.P.C., the High Court under Section
482 Cr.PC. is bound to invoke its inherent
power in order to prevent abuse of the power of
the criminal court. To be called to appear
before the criminal court as an accused is
serious matter affecting one’s dignity, self-
respect and image in society. Hence, the
process of criminal court shall not be made a
weapon of harassment.”

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In the light of the aforesaid observations made by
the Hon’ble Supreme Court and the principles laid
down therein, it was obligatory on the part of the
learned Magistrate concerned to record the reasons
for taking cognizance. The satisfaction to issue
summons based on the appreciation of materials
produced along with the complaint has to be
reflected in the order of taking cognizance. It is
not necessary that at the stage of issuance of
process to the accused, a detailed order is to be
passed. However, the order must contain the
materials explaining the reasons for arriving at
the satisfaction briefly.

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8.When taking into account the order passed

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CRL.MC No.233 of 2018 10

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by the learned Magistrate in this case by which

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cognizance was taken, I am of the view that, the

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same does not indicate any satisfaction on the

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part of the learned Magistrate as to the materials

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placed on record and the adequacy of the same for

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taking cognizance. It appears that the cognizance

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was taken in a mechanical manner which is not

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permissible in the light of the principles laid
down by the Hon’ble Supreme Court. In such

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circumstances, the matter requires to be

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reconsidered and, therefore, the order of taking
cognizance, which is produced as Annexure-V in

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this Crl.M.C., is set aside, and the matter is

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remanded back to the learned Magistrate to re-
consider the same. It is further clarified that,

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as the petitioners specifically raised a

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contention that the filing of the complaint was
without complying with the requirements stipulated

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by the Hon’ble Supreme Court inPriyanka

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CRL.MC No.233 of 2018 11 Srivastava’s case (supra), while re-considering the complaint, the said aspect shall also be taken into consideration.

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This Crl.M.C. is disposed of subject to the

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above.

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Sd/-

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 ZIYAD RAHMAN A.A.

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JUDGE

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pkk

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CRL.MC No.233 of 2018 12

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APPENDIX OF CRL.MC 233/2018

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`PETITIONERS’ ANNE`	`XURES`
`ANNEXURE I`	`CERTIFIED COPY OF THE COMPLAINT SUBMITTED BY` `THE 2ND RESPONDENT`
`ANNEXURE II`	`TRUE COPY OF THE AGREEMENT DATED 31.10.2011`
	`EXECUTED BETWEEN THE MANAGEMENT AND THE 2ND` `RESPONDENT`
`ANNEXURE III`	`TRUE COPY OF THE REGISTRATION CERTIFICATE`
	`DATED 10.10.2012 ISSUED IN FAVOUR OF THE 2ND` `RESPONDENT.`
`ANNEXURE IV`	`A TRUE COPY OF THE LETTER ISSUED BY THE 2ND` `RESPONDENT TO THE CHAIRMAN, KANNUR MEDICAL` `COLLEGE.`
`ANNEXURE V`	`CERTIFIED COPY OF THE ORDER TAKING COGNIZANCE`
	`IN C.C.NO.1619/2016 DATED 30.11.2016`
`ANNEXURE VI`	`TRUE COPY OF THE LETTER DATED 11.12.2013`

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`RESPONDENTS’ ANNEX`	`URES`
`ANNEXURE R2(A)`	`JUDGMENT DT.12.01.2017 OF CJM,` `THALASSERY`	`COURT,`
`ANNEXURE R2(B)`	`JUDGMENT DATED 16.3.2017 OF CJM` `THALASSERY`	`COURT,`
`ANNEXURE R2(C)`	`JUDGMENT DT.5.6.2018 OF CJM COURT, THAL`	`ASSERY`
`ANNEXURE R2(D)`	`LETTER DT.28.2.2018 ISSUED BY DISTRICT` `CHIEF, KANNUR`	`POLICE`
`ANNEXURE R2(E)`	`LETTER DT.5.3.2018 ISSUED BY DY. S.P.,`	`KANNUR`
`ANNEXURE R2(F)`	`LETTER` `DT.15.3.2018` `ISSUED` `BY` `CHAKKARAKKAL PS`	`SHO,`
`ANNEXURE A1`	`APPOINTMENT LETTER ISSUED BY THE PET` `NO.3 TO THE RESPONDENT AS THE MANAGER` `ROYALE HOTEL`	`ITIONER` `OF PARK`
`ANNEXURE A2`	`COMPROMISE DOCUMENT EXECUTED BY`	`THE`
	`RESPONDENT ON BEHALF OF HOTEL PARK` `ENTRUSTED BY THE MANAGEMENT`	`ROYALE`
`ANNEXURE A3`	`RECEIPT ISSUED BY THE CENTRAL POLICE S` `ERNAKULAM TO THE RESPONDENT ON A COMP` `GIVEN ON BEHALF OF HOTEL PARK ROYALE`	`TATION,` `LAINANT`
`ANNEXURE A4`	`COMMUNICATION AND REPLY FOR THE CO` `GIVEN BY RESPONDENT IN THE CHAKK` `POLICE STATION, DY.S.P. OFFICE THAL` `S.P.OFFICE KANNUR AND HOME MINISTER`	`MPLAINT` `ARAKKAL` `ASSERY,`
`ANNEXURE A5`	`REPLY FOR THE COMPLAINT GIVEN BY RES`	`PONDENT`

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CRL.MC No.233 of 2018 13

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	`IN THE CHAKKARAKKAL POLICE STATION, DY.SP`
	`OFFICE THALASSERY, S.P.OFFICE, KANNUR AND` `HOME MINISTER`
`ANNEXURE A6`	`COPY OF THE CHEQUE SIGNED AND ISSUED BY THE` `PETITIONER NO.2 AND 4 TO THE RESPONDENT FOR` `CLEARING SALARY FOR CLEANING EMPLOYEES OF` `ANJARAKANDY MEDICAL COLLEGE`
`ANNEXURE A7`	`COPY OF THE CHEQUE SIGNED AND ISSUED BY THE` `PETITIONER NO.2 & 4 TO THE RESPONDENT FOR` `CLEARING SALARY FOR CLEANING EMPLOYEES OF` `ANJARAKANDY MEDICAL COLLEGE, WITH SERVICE` `TAX.`
`ANNEXURE A8`	`COPY OF THE CHEQUE SIGNED AND ISSUED BY THE` `PETITIONER NO.2 TO RESPONDENT FOR CLEAR THE` `WAGES OF CLEANING STAFF OF ANJARAKANDY` `MEDICAL COLLEGE`
`ANNEXURE A9`	`COPY OF THE CHEQUE SINGED AND ISSUED BY THE` `PETITIONER NO.1 TO THE RESPONDENT FOR` `CLEARING THE WAGES OF CLEANING STAFF OF` `ANJARAKANDY MEDICAL COLLEGE`
`ANNEXURE A10`	`COPY OF THE CHEQUE SIGNED AND ISSUED BY THE` `PETITIONER NO.2 AND 4 TO THE RESPONDENT FOR` `CLEARING THE WAGES OF CLEANING STAFF OF` `ANJARAKANDY MEDICAL COLLEGE.`
`ANNEXURE A11`	`COPY OF THE CHEQUE SIGNED AND ISSUED BY THE` `PETITIONER NO.2 & 4 TO THE RESPONDENT FOR` `CLEARING THE WAGES OF CLEANING STAFF OF` `ANJARAKANDY MEDICAL COLLEGE`
`ANNEXURE A12`	`COPY OF THE CHEQUE SIGNED AND ISSUED BY THE` `PETITIONER NO.2 AND 4 TO THE RESPONDENT FOR` `CLEARING THE WAGES OF CLEANING STAFF OF` `ANJARAKANDY MEDICAL COLLEGE`
`ANNEXURE A13`	`DOCUMENT SHOWING PAYMENT LIST OF EMPLOYEES` `ISSUED BY THE PETITIONER 2 AND 4 FOR THOSE`
	`EMPLOYEES NOT PARTICIPATING EMPLOYEES STRIKE`
`ANNEXURE A14`	`COPY OF THE BIO-DATA OF 48 TEMPORARY` `EMPLOYEES ISSUED FOR COMPROMISING EMPLOYEES` `STRIKE AS DEMANDED BY THE MEDICAL COLLEGE` `MANAGEMENT. THE 1ST PETITIONER HEREIN GOT` `POLICE PROTECTION ORDER FROM THE HON’BLE HIGH` `COURT IN 2013 AGAINST 7 OUT OF 48 TEMPORARY` `(SERIAL NO.11 TO 17) IT SHOWS THAT THESE` `TEMPORARY WORKERS WERE DIRECTLY EMPLOYED BY` `THE PETITIONER NO.1 IN 2013-2014.`
`ANNEXURE A15`	`COPY OF THE BIO-DATA OF 10 TEMPORARY` `EMPLOYEES ISSUED FOR COMPROMISING EMPLOYEES` `STRIKE AS DEMANDED BY THE MEDICAL COLLEGE`

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CRL.MC No.233 of 2018 14

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	`MANAGEMENT`	`.`
`ANNEXURE A15(A)`	`COPY OF`	`THE BIO-DATA OF 10 TEMPORARY`
	`EMPLOYEES`	`ISSUED FOR COMPROMISING EMPLOYEES`
	`STRIKE AS` `MANAGEMENT`	`DEMANDED BY THE MEDICAL COLLEGE`
`ANNEXURE A15(B)`	`COPY OF`	`THE BIO-DATA OF 10 TEMPORARY`
	`EMPLOYEES`	`ISSUED FOR COMPROMISING EMPLOYEES`
	`STRIKE AS` `MANAGEMENT`	`DEMANDED BY THE MEDICAL COLLEGE`
`ANNEXURE A15(C)`	`COPY OF`	`THE BIO-DATA OF 11 TEMPORARY`
	`EMPLOYEES`	`ISSUED FOR COMPROMISING EMPLOYEES`
	`STRIKE AS` `MANAGEMENT`	`DEMANDED BY THE MEDICAL COLLEGE`
`ANNEXURE A16`	`COPY OF TH` `ANJARAKAND`	`E NEWS SHOWING EMPLOYEES STRIKE AT` `Y MEDICAL COLLEGE`
`ANNEXURE A17`	`COPY OF TH`	`E AGREEMENT BETWEEN AMAL AMENITIES`
	`AND ANJAR` `SMT. BANCY`	`AKANDY MEDICAL COLLEGE SIGNED BY` `ON BEHALF OF AMAL AMENITIES.`
`ANNEXURE A18`	`COPY OF T`	`HE DOCUMENT PROVING OWNERSHIP OF`
	`PETITIONER` `BANGALORE`	`NO.1 AS THE OWNER OF HOTELS AT` `& ERNAKULAM`
`ANNEXURE A1`	`MEMORANDUM`	`OF WRIT PETITION(CIVIL) FILE`

Abdul Jabbar v. State of Kerala

Case brief

What is this about?

What did the court decide?

Abdul Jabbar v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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