IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4294 of 2010()
1. BADRUNNISA, AGED 50 YEARS,
... Petitioner
2. MRS.MISRIYA, AGED 26 YEARS,
3. MR.IRFAN, AGED 35 YEARS,
Vs
1. SUNAINAZ, AGED 21 YEARS,
... Respondent
2. SUB INSPECTOR OF POLICE,
3. STATE REP.BY PUBLIC PROSECUTOR,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :22/10/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No. 4294 OF 2010
===========================
Dated this the 22nd day of October,2010
ORDER
Petitioners are the accused and first
respondent the de facto complainant in
C.C.511/2010 on the file of Chief Judicial
Magistrate, Kasaragod. First respondent filed
Annexure II complaint before Chief Judicial
Magistrate, Kasaragod alleging that
petitioners, along with the first accused
therein, the husband of the first respondent
committed the offence under section 498A read
with section 34 of Indian Penal Code. It was
sent for investigation under section 156(3) of
Code of Criminal Procedure. Crime 12/2009 of
Manjeshwar Police Station was registered. After
investigation Annexure III final report was
submitted as against the husband alone,
stating that there is no material against
Crl.M.C.4294/2010 2
others and deleting petitioners from the array of
the accused. The learned Magistrate has taken
cognizance of the offence under section 498A, 323,
and 324 read with section 34 of Indian Penal Code
on Annexure III final report as C.C.233/2009.
First respondent filed Annexure I complaint as
against petitioners incorporating paragraph 11,
which was not there originally in Annexure II
complaint stating that petitioners also tortured
and harassed her demanding dowry. Learned
Magistrate after conducting inquiry under section
202 of Code of Criminal Procedure took cognizance
of the offence as C.C.511/2010. This petition is
filed under section 482 of Code of Criminal
Procedure to quash the cognizance taken.
2. Learned counsel appearing for the
petitioners was heard.
3. The argument of the learned counsel is that
when learned Magistrate has taken cognizance on
Annexure III report accepting the final report
whereunder after investigation the Investigating
Crl.M.C.4294/2010 3
Officer has reported that there is no material to
show that petitioners committed any offence,
learned Magistrate should not have taken cognizance
on Annexure I complaint, which could only be a
second complaint which is not maintainable.
Learned counsel also argued that when after
investigation, no material was disclosed as against
petitioners, learned Magistrate should not have
taken cognizance of the offence on Annexure I
complaint.
4. On hearing the learned counsel, I cannot
agree with the submission that for the reason that
Annexure II final report was accepted and
cognizance was taken against the husband, learned
Magistrate cannot take cognizance of the offence
against petitioners on a protest complaint filed by
the first respondent he is satisfied of a prima
facie case. When a final report is submitted
stating that one of the accused committed the
alleged offence, no notice will be issued by the
learned Magistrate, to the de facto complainant.
Crl.M.C.4294/2010 4
So first respondent has no opportunity to oppose
the findings or acceptance of Annexure III final
report as such. In Annexure I complaint first
respondent specifically alleged the ingredients of
the offence as against the petitioners. It is
after satisfying on the inquiry conducted under
section 202 of Code of Criminal Procedure, learned
Magistrate has taken cognizance. It cannot be said
that cognizance taken is illegal. Petitioners are
at liberty to raise all the contentions including
the absence of specific allegations in Annexure II
complaint originally filed against the
petitioners. Petitioners are entitled to cross
examine the witnesses to be examined under section
244 of Code of Criminal Procedure and seek an order
of discharge under section 245(1) of Code of
Criminal Procedure. If petitioners file an
application to dispense with their presence for the
purpose of claiming discharge under section 245(1)
of Code of Criminal Procedure or recording the
evidence under section 244 of Code of Criminal
Crl.M.C.4294/2010 5
Procedure, learned Magistrate not to insist for
their presence.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006