IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2020 of 2008()
1. THOMAS GEORGE, JESSY BHAVAN, WARD NO 10,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. REJI CHERIAN, TC 19/903,KESAVUDEVU ROAD,
3. SAM JOHN, S/O JOHN SAM, KATTUVILA VEEDU,
4. GANESH KUMAR, S/O MADHAVAN PILLAI, VP NO
For Petitioner :SRI.SUMAN CHAKRAVARTHY
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :27/05/2008
O R D E R
R.BASANT, J
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Crl.M.C No.2020 of 2008
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Dated this the 27th day of May, 2008
ORDER
On an F.I statement lodged by the petitioner, a crime was
registered alleging offences punishable, inter alia, under Sections
143, 323, 341 and 354 r/w 149 I.P.C. After completing the
investigation, final report was filed in that case alleging offences
punishable under Sections 323 and 354 r/w 34 I.P.C. Cognizance
has been taken. The matter is pending before the learned
Magistrate now as C.C.No.1024 of 2002. The petitioner submits
that he was aggrieved by the said final report filed by the police.
He therefore filed a private/protest complaint in 2004. The matter
dragged on and ultimately on 06.03.06, cognizance was taken by
the learned Magistrate against the very same accused 1 to 3 for
offences punishable under Sections 323 and 354 r/w 34 I.P.C.
Accused had entered appearance in that case also. Both cases
are pending before the learned Magistrate.
2. The petitioner now – on 26.05.08, has rushed to this
Court with a grievance that the cognizance taken by the learned
Magistrate is not justified in that no cognizance has been taken of
Crl.M.C No.2020 of 2008 2
the offence punishable under Section 392 I.P.C. My attention has
been drawn to the averments in the private complaint in which
the specific grievance is that no cognizance has been taken of the
offence punishable under Section 392 I.P.C. The petitioner, in
these circumstances, contends that the course adopted by the
learned Magistrate is incorrect. Relying on the decision in
Mathew Abraham v. Gopalakrishnan [2007 (4) KLT 1009], the
learned counsel for the petitioner contends that not taking
cognizance under Section 392 I.P.C amounts to dismissal of the
complaint under Section 392 I.P.C and in so far as no reasons
have been given for dismissing the said part of the complaint
under Section 392 I.P.C, reasons which ought to have been given
in terms of Section 203 Cr.P.C have not been given.
Consequently it is contended that the impugned order dated
06.03.06 warrants interference.
3. On the question of law there can be very little doubt
that the learned Magistrate, when he refuses to take cognizance
of certain offences alleged in the complaint, has to pass a
reasoned order explaining why cognizance was not taken of those
offences. That position is well settled by the decision in Mathew
Abraham v. Gopalakrishnan.
Crl.M.C No.2020 of 2008 3
4. Any and every inadequacy in the proceedings
conducted before the learned Magistrate will not certainly
persuade this Court to invoke the extraordinary inherent
jurisdiction under Section 482 Cr.P.C. What was the petitioner
doing all the while ? Why did the petitioner not prefer a revision
or take any steps to challenge the order not taking cognizance
under Section 392 I.P.C without giving reasons for the same ?
The learned counsel for the petitioner offers only the explanation
that his counsel verified the records only recently and realized
that no cognizance has been taken of the offence punishable
under Section 392 I.P.C.
5. I am satisfied that there is no warrant for invocation of
the powers under Section 482 Cr.P.C in the facts and
circumstances of this case. I cannot lose sight of the fact that the
accused are waiting before the court below from 2002,
cognizance in the final report having been taken then. The
petitioner, who has slept over his rights, has omitted to challenge
the order not taking cognizance under Section 392 I.P.C though
that is a revisable order. The inadequacy in the order cannot now
persuade this Court to invoke the jurisdiction under Section 482
Cr.P.C.
Crl.M.C No.2020 of 2008 4
6. Moreover, I am of opinion that no prejudice or failure of
justice is likely to result as the learned Magistrate, if he is satisfied
in the course of the trial that the offence under Section 392 I.P.C
has also been made out, shall be at liberty to take appropriate
action to redress the grievance of the petitioner. Suffice it to say
that I am not persuaded to agree that any direction under Section
482 Cr.P.C need be issued now.
7. This Crl.M.C is dismissed with the above observations.
(R.BASANT, JUDGE)
rtr/-