High Court Kerala High Court

Indushekhara Paniker vs P.Krishna Kumar on 6 April, 2009

Kerala High Court
Indushekhara Paniker vs P.Krishna Kumar on 6 April, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3963 of 2005(A)


1. INDUSHEKHARA PANIKER,
                      ...  Petitioner
2. SRIKANTH, S/O.INDUSHEKHARA PANIKER,

                        Vs



1. P.KRISHNA KUMAR, S/O.RAMAN MENON,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.C.HARIKUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :06/04/2009

 O R D E R
                        M.C.HARI RANI, J.
        -----------------------------------------------------
                 CRL.M.C.No.3963 OF 2005
      -----------------------------------------------------
      DATED THIS THE 6th DAY OF APRIL, 2009

                             O R D E R

The petitioners herein are accused Nos.1 and 2 in C.C.No.

1685/2002 pending before the Court of Additional Chief Judicial

Magistrate, Ernakulam.

2. The first respondent herein filed a protest complaint

dated 6.7.2002, against petitioners 1 and 2, copy of which is

produced as Annexure A4. It was taken cognizance by the

learned Additional Chief Judicial Magistrate after recording the

sworn statement of the complainant/first respondent and issued

non-bailable warrant against the accused 1 and 2 who were

absent on 21.10.2005 as revealed from the copy of the

proceedings paper, Annexure A5 and posted to 2.1.2006.

Meanwhile, petitioners 1 and 2 filed this Crl.M.C. on 28.11.2005

under Section 482 of Cr.P.C.with the prayer to quash the

proceedings against the petitioners in Annexure A4 complaint and

all further proceedings pursuant to the same. This Court as per

order dated 29.11.2005 has ordered interim stay as prayed for,

CRL.M.C.No.3963/05 -2-

for two weeks. Subsequently, as per order dated 26.7.2006, stay has

been extended until further orders.

3. Today, when this petition taken up for hearing, the learned

counsel for petitioners submitted that the case was not settled as

represented on the last hearing dates, for the reason that the second

petitioner herein is studying for MBA at Australia. There is no

representation for the de facto complainant/1st respondent.

4. Heard the learned counsel appearing for the petitioners.

5. It is submitted by the learned counsel for the petitioners

that the first respondent herein preferred a civil case which was settled

already and is disposed of. There is chance for settlement in this case

also. But, this petition is of the year 2005 and has not been settled

and there is no meaning in posting the case again for settlement.

6. Originally Crime No.271/01 was registered against

petitioners 1 and 2 on 15.8.2001 on the basis of the first information

statement given by the first respondent herein from Government Taluk

Hospital, Tripunithura for the offence under Section 324 read with

Section 34 of IPC, as revealed from Annexure A1. Annexure A2 is the

copy of the final report in Crime No.271/01, wherein it was reported

that the case was a mistake of facts and filed a report, copy of which

CRL.M.C.No.3963/05 -3-

was given to the complainant/first respondent. Annexure A2 is dated

31.8.2001. Thereafter, on 6.7.2002, the first respondent herein filed a

protest complaint under sections 190 and 200 of Cr.P.C. against

petitioners 1 and 2 before the Court of Additional Chief Judicial

Magistrate, Ernakulam. It was taken on file by the learned Magistrate

as C.C.No.1685/2002, after conducting 202 enquiry. Sworn statement

of the complainant was also recorded as revealed from Annexure A3.

Thus, it is revealed that the learned Magistrate has taken cognizance

of the case on the finding that prima facie case is there to proceed

against petitioners 1 and 2 and issued summons to accused for their

appearance. The petitioners/accused 1 and 2 were absent and the

applications filed by them to excuse their absence were dismissed and

non-bailable warrant was issued against the accused. The learned

counsel for petitioners relied on the decision of this Court reported in

Kader v. State of Kerala (1999(3) KLT 262). Paragraph 6 of the

said decision reads as follows:

“6. The main question that has to be decided in the case

is whether in the nature of the case, the final report filed

by the police in Crime No.147/92 aforementioned should

have been taken into account before taking cognizance of

the case. No decision of this Court or of the Supreme

CRL.M.C.No.3963/05 -4-

Court has been placed before me which will throw light on

the above aspect. But the learned counsel for the

petitioners placed reliance of the decision in Daleep Singh

v. Magan (1996 Crl.L.J.190). The contention raised in

that case was that the Magistrate was bound to send for

the report of the SHO in the matter of final report filed

based on the information given by the complainant in the

private complaint before taking cognizance. The learned

Judge of the Rajasthan High Court who decided the case

dealt with the same in some extenso.”

In the present case, on a perusal of the complaint, copy of which is

produced as Annexure A4, it is revealed that 202 enquiry was

conducted by the learned Magistrate and took cognizance of the case

on the satisfaction that prima facie case is there to proceed against the

petitioners under sections 447, 324 and 506(ii) read with Section 34 of

IPC. Whether, the petitioners have committed the above-mentioned

offences, is to be decided by the learned Magistrate on the basis of the

evidence to be let in by the prosecution and on the basis of the

defence evidence, if any. This Court cannot come to a conclusion that

no offence has been committed by the petitioners as alleged in the

complaint, Annexure A4. It is the duty of the trial Judge. Section 482

of Cr.P.C. can be applied only sparingly and in rarest of rare cases and

CRL.M.C.No.3963/05 -5-

with caution. No such reason has been made out in the present

petition to invoke the inherent jurisdiction of this Court to exercise that

power. There is nothing to substantiate the contention of the

petitioners that the learned Magistrate has not conducted 202 enquiry

and is an empty formality. The complainant has stated regarding the

earliest refer report of the police, both in the complaint as well as in

the sworn statement, given by him. Thereafter, the Magistrate has

taken cognizance of the present case. Considering the facts and

circumstances of this case, I find no merits in this petition, which is

liable to be dismissed.

In the result, the Crl.M.C. is dismissed. The presence of the

second petitioner/second accused can be exempted by the learned

Additional Chief Judicial Magistrate on proper application and his

presence can be insisted only if it is absolutely necessary at

appropriate stage.

M.C.HARI RANI, JUDGE.

dsn