In Crl.M.C. 8998/2019, the Kerala High Court dismissed the petition filed by accused nos. 5-7 challenging the Magistrate's order framing charge. The Court held no error or miscarriage of justice warranted interference under Section 482 Cr.P.C. to quash the summons.
The Criminal Miscellaneous Case was dismissed without any merits.
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 ZIYAD RAHMAN A.A.
TUESDAY, THE 4TH DAY OF JANUARY 2022 / 14TH POUSHA, 1943
CRL.MC NO. 8998 OF 2019
[CRIME NO.2623/2015 OF Kayamkulam Police Station, Alappuzha]
[AGAINST THE ORDER DATED 2.11.2019 IN C.P.NO.61/2019 IN CMP
NO.8667/2017 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-I,
KAYAMKULAM]
PETITIONERS/ACCUSED NOS. 5 TO 7:
1 RANIMOL, AGED 40 YEARS W/O SANTHOSH,SANTHOSH VIHAR (POOVAKKATT VEEDU), KEERIKKAD SOUTH, KEERIKKAD.
2 DEVAKI, AGED 67 YEARS W/O SUDHAKARAN, ,SANTHOSH VIHAR (POOVAKKATT VEEDU), KEERIKKAD SOUTH, KEERIKKAD.
3 REMYA, AGED 36 YEARS W/O RAJAN BABU, RAJ VIHAR (POOVAKKATT VEEDU), KEERIKKAD SOUTH, KEERIKKAD. BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SRINATH SRI.RAJAN G. GEORGE
RESPONDENTS/STATE AND COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 K.SASI, AGED 59 YEARS S/O KUNJU PANICKER, KAIRALI VEEDU, KEERIKKAD SOUTH, KEERIKKAD, ALAPPUZHA DISTRICT, PIN - 690 502.
Crl.M.C.No. 8998 of 2019 2
BY ADV SRI.P.R.HARIKUMAR FOR R2
BY ADV. MAYA M.N. PUBLIC PROSECUTOR FOR R1
THIS CRIMINAL MISC. CASE HAVING BEING FINALLY HEARD ON 07.12.2021, THE COURT ON 4.1.2022 PASSED THE FOLLOWING:
Crl.M.C.No. 8998 of 2019 3
O R D E R
The petitioners herein are the accused Nos.5 to
7 in C.P.No.61/2019 on the file of the Judicial First Class Magistrate Court-I, Kayamkulam. The aforesaid committal proceedings is on the basis of a private complaint submitted by the 2nd respondent herein which was numbered as C.M.P.No.8668/2017 against 7 persons including the petitioners herein for the offences punishable under Sections 143,147,148,149,324,308,341,506(ii) of the Indian Penal Code (IPC).
follows:
Earlier, on the basis of a complaint submitted by the 2nd respondent, the Sub Inspector of Police, Kayamkulam has registered F.I.R. No.2628/2015 against the petitioners herein alleging offences under Sections 143, 147, 149, 323, 324, and 447 of
the IPC. The allegation against the petitioners and
Crl.M.C.No. 8998 of 2019 4
other accused was that, on 31.7.2015 at 19.30
hours, the petitioners, their husbands along with one Dileep and Sangeetha came to the southern courtyard of the shop of the de facto complainant. The said Dileep pushed the defacto complainant and the 2nd accused beat him with an iron rod on his
forehead and shoulders. The allegations against the petitioners herein was that they had hit him. The motive of the said assault was stated to be to
evict the de facto complainant from the property which he had purchased from one Sudhakaran, who is the brother of the 5th accused.
Crime No.2623/2015 was also registered by the Kayamkulam Police arraying the 2nd respondent herein, his wife and two sons as accused, alleging commission of offences punishable under Sections 294(B), 323, 324, 452, 308 r/w. Section 34 of the
IPC. The aforesaid crime was registered on the basis of information submitted by the said Dileep
Crl.M.C.No. 8998 of 2019 5
who is the 1st accused in Crime No.2628 of 2015. The allegation in Crime No 2623/2015 was that the 2nd respondent along with the other accused persons trespassed into the house of one Sasidharan and hit the de facto complainant therein on his head with an iron rod and thereby caused injury to his head.
Crl.M.C.No. 8998 of 2019 6
Sections 323,324,452,308 r/w. Section 34 of (IPC) which is now pending trial.
Crl.M.C.No. 8998 of 2019 7
learned Magistrate and the same is now pending as C.C.No.295/2016.
private complaint came to the notice of the learned Magistrate. Accordingly it was ordered that in order to inquire into the said complaint and to conduct a trial in compliance of Section 210 of the Cr.PC., the Calendar Case was adjourned. The complainant in the private complaint who is the 2nd respondent herein was directed to be present for the purpose of inquiry under Section 202 of the Cr.PC. Accordingly, an inquiry as mentioned above was conducted during which, the 2nd respondent and 4 other witnesses were examined. After considering the aforesaid complaint, statements of witnesses and the documents produced, the learned Magistrate as per order dated 2.11.2019 issued summons to accused Nos. 1 to 7, by numbering the same as C.P. No.61/2019. The committal proceeding was initiated
Crl.M.C.No. 8998 of 2019 8
by the learned Magistrate in view of the fact that, the learned Magistrate found that there are ingredients to attract the offence under Section 308 of the IPC which is an offence triable by a Sessions Court. Even though the police report submitted in connection with the said incident contained only four accused, in the committal proceedings, the petitioners were also implicated as accused persons. The petitioners herein are challenging the aforesaid order of issuing summons to the accused persons.
Perumpallikuttiyil, the learned counsel for the petitioners, Smt.Maya M.N., the learned Public
Prosecutor for the 1st respondent and
Sri.P.R.Harikumar, the learned counsel for the 2nd respondent.
Crl.M.C.No. 8998 of 2019 9
herein and also to incorporate the offence under
Section 308 of the IPC which were not there in the final report submitted by the police are not legally sustainable. According to him, the police had conducted a detailed investigation in the matter and found that there are only four accused persons in the alleged incident and the offences alleged against them are under Sections 447, 323, 324 r/w. Section 34 of the IPC alone. The learned counsel further contends that, unless the 2nd respondent is able to show that there were any manifest error or manifest miscarriage of justice in the investigation conducted by the police, the learned Magistrate could not have entertained a private complaint. According to him, the order passed by the learned Magistrate on 2.11.2019 (Annexure-13) is without proper application of mind and also the same is not at all a speaking order. The
Crl.M.C.No. 8998 of 2019 10
judgment rendered by this Court in Parameswaran Nair v. Surenderan [2009(1)KLT 794] was relied upon by the learned counsel in this regard.
respondent contends that, the police failed to
conduct a proper investigation in the matter and
had omitted to incorporate proper offences in the final report even though there were materials to establish the offence under Section 308 of IPC. The learned counsel brought my attention to the wound certificate of the de facto complainant wherein he had sustained head
injury, namely, lacerated wound on scalp (4x1cm). The history of the alleged cause of
injury is noted in wound certificate as “five persons trespassed into the house and attacked
Crl.M.C.No. 8998 of 2019 11
him with an iron rod”. It was also pointed out
that, consequent to the injuries, he had undergone treatment for five days as inpatient in the hospital. He also pointed out that, the incident in Crime No.2623/2015 wherein the 2nd respondent was an accused, has occurred at 8 p.m. on 31.7.2015 but on the other hand, the incident in Crime No.2628/2015 has taken place at 7.30 p.m. However, the police had registered the F.I.R. against the 2nd respondent herein initially and only thereafter the F.I.R. was registered on the complaint submitted by the 2nd respondent herein. It is also contended by the learned counsel for the 2nd respondent that the learned Magistrate has passed an order to issue summons after being convinced of the materials attracting the offence under Section 308 of the IPC and also the involvement of the petitioners herein. While passing such an order, it was not
Crl.M.C.No. 8998 of 2019 12
obligatory on the part of the learned Magistrate
to pass a detailed order. If sufficient indications are there to show that the said order was passed after examining the entire materials available on record, no interference
thereon can be made by invoking powers under Section 482 of the Cr.PC.
whether Annexure-13 order passed by the learned Magistrate wherein summons issued to the accused Nos. 1 to 7 is proper or not. In Parameswaran
Nair ’s case (supra), this Court observed in
detail with regard to the procedure to be adopted when a subsequent complaint is submitted after the submission of the final report. The relevant paragraphs of the said decision are extracted hereunder:
“15. In practice when a complainant receives a notice from the Magistrate intimating the submission of a final report by the Police to the effect that no offence is made out, informing that the report is being considered by the Magistrate, he files a
Crl.M.C.No. 8998 of 2019 13
complaint which in common usage is termed protest complaint. So long as cognizance was not taken on the first complaint and only an order for investigation under S.156(3) at pre cognizance stage was ordered, the complaint is not effaced from the file. Hence the Magistrate at the stage of considering the final report under S.173(2) is entitled to take cognizance of the offence on the materials furnished by the Police under S.190(1)(b) rejecting the opinion of the Police or is entitled to take cognizance under S.190(1)(a) on the original complaint after recording the statement of the complainant and his witnesses as provided under S.200 or even direct investigation under S.202 and conduct an inquiry and decide whether on all these materials whether process is to be issued under S.204. The protest complaint if any filed at that stage cannot be treated as the second complaint, attracting the limitations of a second complaint. Such a protest complaint can only be treated as an objection to the final report submitted under S.173(2). On filing of such a protest complaint or an objection to the final report, Magistrate is bound to consider the final report with the documents and statements produced and decide whether cognizance is to be taken on the Police report under S.190(1)(b) of the Code. If not Magistrate can record the statement of the complainant and his witnesses and even can direct an investigation under S.202 and based on the inquiry decide whether process is to be issued under S.204 or complaint is to be dismissed under S.203.
16. If Magistrate finds that in spite of all the objections raised, the final report is to be accepted he can accept it and drop the proceeding. At that stage Magistrate can entertain a second complaint. But such a complaint will lie only if there was manifest error or manifest miscarriage of justice or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings. The Magistrate cannot therefore ignore the final report altogether and consider only the protest complaint and the sworn statement of the witnesses record in that enquiry.
17. The well settled legal propositions can be summed up as follows:
(1) When a final report is made by an officer of the Police Station under sub-section 2 of S.173 of Code of Criminal Procedure, if the Magistrate is
Crl.M.C.No. 8998 of 2019 14
not inclined to take cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process.
(2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report.
(3) Magistrate can direct further investigation under sub-section 3 of S.156.
(4) Magistrate can take cognizance on the final report itself under S.190(1)(b) disregarding the opinion of the Police and issue summons.
(5) Magistrate can take cognizance on the original complaint, where investigation under sub-section 3 of S.156 was earlier ordered and record the statement of the complainant and the witnesses as provided under S.200 and can conduct an inquiry, In that inquiry Magistrate can direct investigation by a Police officer or such other officer as provided under S.202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued.
(6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second complaint it will lie only if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with
Crl.M.C.No. 8998 of 2019 15
due diligence could not have brought forward in the previous proceedings.
18. When the Magistrate issue notice to the complainant on receipt of the final report and grants opportunity to the complainant to show why cognizance of the offence is to be taken and the complainant files a protest complaint, it is to be treated only as his objections to the final report, stating his reasons why the report cannot be accepted. If the Magistrate records his statement and that of the witnesses and decides to take cognizance of the offence, after considering all the materials including the final report made by the Police under sub-section 2 of S.173, it is advisable for the Magistrate to record that the final report is not accepted and on the entire materials he is of the opinion that there is ground to proceed and issue summons under S.204 of Code of Criminal Procedure. But the fact that no specific order was recorded that final report is not accepted or fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by themselves are not fatal, if the records show that Magistrate has considered all the relevant materials and applied his mind. If after complying these procedures, an order not to take cognizance is passed by the Magistrate, then a second complaint will lie, only if there was any manifest error or manifest miscarriage of justice in the previous order or the complainant relies on new facts or materials which was not to his knowledge or with reasonable diligence could not have brought forward in the previous proceedings.”
Crl.M.C.No. 8998 of 2019 16
case, the 2nd respondent in Annexure-6 has clearly mentioned about a biased investigation conducted by the police due to the influence of
a political leader. Even though the said allegation by itself is not sufficient to entertain the said application, the facts and other materials available on record are to be
carefully scrutinized for examining whether there is any such error or miscarriage of justice. In this case, it is evident from the
wound certificate which forms part of Annexure-3 final report that the de facto complainant has sustained injury on his scalp and the history of the same was stated to be on account of the assault by an iron rod. Since, it is an attack on the head of the 2nd respondent with a dangerous weapon such as iron rod, the same can be a reason for attracting the offence under
Section 308 of the IPC, which was not
Crl.M.C.No. 8998 of 2019 17
incorporated in the FIR in Crime No.2628/2015 or
in the final report submitted thereon. However, it is to be noted that, in Crime No.2623/2015 which was registered against the 2nd respondent herein, the defacto complainant therein is seen
to have been sustained similar nature of injuries. In the said case, the police had charge sheeted the defacto complainant herein and other accused persons for various offences
including offence under Section 308 IPC. The aforesaid aspect creates a doubt as to the manner of investigation conducted by the police.
array while Annexure-3 final report was submitted. On the other hand, while conducting
Crl.M.C.No. 8998 of 2019 18
inquiry under Section 202 of the Cr.PC on the
basis of Annexure-6 complaint submitted by the 2nd respondent herein, all the witnesses including the 2nd respondent and 4 other witnesses have clearly mentioned about the role of the accused persons herein. In such circumstances, it cannot be concluded that, the act of issuing summons to all the accused persons by the learned Magistrate is erroneous. It is true that, the order passed by the learned Magistrate is not a speaking order. However, the
said order clearly refers to the wound certificate as well as the statements of witnesses recorded during the course of inquiry. In such circumstances, I have no reason to assume that the learned Magistrate has not
applied his mind while taking such a decision.
As contended by the learned counsel for the 2nd respondent, while issuing summons to the accused
Crl.M.C.No. 8998 of 2019 19
persons, it is not mandatory for the learned Magistrate to pass a very detailed order (it would be be more appropriate to do so) to
establish that there was proper application of mind while issuing such an order. Here in this case, I am convinced that the learned Magistrate has applied his mind and arrived at a conclusion as to the necessity for issuing summons to the accused persons for the offences alleged in Annexure-6 complaint. Since the veracity of the allegations contained therein is a matter of evidence, I am of the view that this is not a fit case in which the powers of this Court under
Section 482 of the Cr.PC is to be invoked.
In such circumstances, I do not find any
merit in this Crl.M.C and accordingly it is dismissed.
pkk
Crl.M.C.No. 8998 of 2019 20
APPENDIX OF CRL.MC 8998/2019 PETITIONER’S ANNEXURES:
| ANNEXURE 1 | A TRUE COPY OF FIRST INFORMATION REPORT IN CRIME NO. 2628/15 OF KAYAMKULAM POLICE STATION. |
|---|---|
| ANNEXURE 2 | A TRUE COPY OF FINAL REPORT DATED 05-12- 2015 IN FIR NO. 2623/15 OF KAYAMKULAM POLICE STATION. |
| ANNEXURE 3 | A TRUE COPY OF FINAL REPORT IN CRIME NO. 2628/15 OF KAYAMKULAM POLICE STATION. |
| ANNEXURE 4 | A TRUE COPY OF APPLICATION ALONG WITH DISCHARGE/REFERENCE CARD ISSUED TO THE 2ND RESPONDENT (DEFACTO COMPLAINANT). |
| ANNEXURE 5 | A TRUE COPY OF DEPOSITION OF THE DEFACTO COMPLAINANT (CW1) AS PW1. |
| ANNEXURE 6 | A TRUE COPY OF CMP NO. 8668/17 DATED 19-12- 2017. |
| ANNEXURE 7 | A TRUE COPY OF EVIDENCE OF THE 2ND RESPONDENT /DEFACTO COMPLAINANT DATED 23- 05-2012. |
| ANNEXURE 8 | A TRUE COPY OF EVIDENCE OF WITNESS NO.2 EXAMINED IN CMP NO. 8668/17. |
| ANNEXURE 9 | A TRUE COPY OF EVIDENCE OF WITNESS NO.3 EXAMINED IN CMP NO. 8668/17. |
| ANNEXURE 10 | A TRUE COPY OF EVIDENCE OF WITNESS NO.4 EXAMINED IN CMP NO. 8668/17. |
| ANNEXURE 11 | A TRUE COPY OF EVIDENCE OF WITNESS NO.5 EXAMINED IN CMP NO. 8668/17. |
| ANNEXURE 12 | A COPY OF PROCEEDINGS IN C.P. NO. 61/19. |
| ANNEXURE 13 | A COPY OF ORDER DATED 02-11-2019 TAKING COGNIZANCE OF C.P. 61/2019. |
3 issues framed by the court
Whether the High Court should exercise powers under Section 482 Cr.P.C. to quash the order framing charge issued by the learned Magistrate.
Whether the Magistrate can take cognizance against accused not included in the police Final Report when a private complaint alleges a new offence of grievous hurt.
Whether the order issued by the Magistrate was passed without proper application of mind.
Colour shows how this judgement treated each authority
Parameswaran Nair v. SurenderanReferred¶69
Parameswaran Nair v. Surenderan [2009(1)KLT 794]
2 provisions across 1 enactments
RANIMOL AND ANS.
STATE OF KERALA
K.SASI
ZIYAD RAHMAN A.A.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
