IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2268 of 2010()
1. CHINCY, 41/149, AMMANKOVIL ROAD,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. BENNY VARGHESE, AGED 40 YEARS,
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :08/10/2010
O R D E R
M.SASIDHARAN NAMBIAR, J.
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Crl.M.C Nos.2268, 2920, 3387 & 3449 OF 2010
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Dated this the 8th day of October, 2010.
O R D E R
Petitioners in Crl.M.C Nos.2268, 2920, 3387, 3449 of 2010
are respectively accused 1 to 7 in C.C.No.126 of 2008. Petitions
are filed under Section 482 of Code of Criminal Procedure to
quash the cognizance taken on a private complaint filed by the
first respondent.
2. The learned counsel appearing for the petitioners and the
first respondent in person were heard.
3. Learned counsel appearing for the petitioners argued that
based on the first information furnished by one Manju, Crime No.
64 of 2007 was registered and later during the investigation, first
respondent filed a private complaint and after a final report has
been submitted in Crime No.64 of 2007 which was taken
cognizance as O.S.No.171 of 2007, learned Magistrate has taken
cognizance of the offences without conducting an enquiry under
Section 202 of Code of Criminal Procedure or without considering
the final report submitted. It is therefore argued that the
cognizance taken is to be quashed in view of the statement that
Crl.M.C Nos.2268, 2920, 3387 & 3449 OF 2010 2
the address of the petitioner in Crl.M.C 2268 of 2010 shown is not
correct and he is not residing within the territorial limits of Judicial
First Class Magistrate, Muvattupuzha and, therefore, it is
mandatory that an enquiry under Section 202 of Code of Criminal
Procedure is to be conducted before taking cognizance and as it
was reiterated a report was called for from the learned
Magistrate, and whether inquiry under Section 202 Code of
Criminal Procedure was conducted.
2. The report submitted to the learned Magistrate shows
that after recording the statement of complainant’s witness who
was present, it was adjourned for further evidence and one more
witness was examined. It is only thereafter learned Magistrate has
taken cognizance of the offences.
3. First respondent made available certified copy of the
proceeding paper in CC.126 of 2008. The proceeding paper shows
that complaint was filed on 17.04.2007 and it was posted for
recording statement of the complainant and witness and it was
adjourned the adjourned date finding that Crime.No.64 of 2007
was already registered and being investigated, the learned
Magistrate postponed the enquiry as the investigation in
Crime.No.64 of 2007 of Piravom Police station is to be completed.
Crl.M.C Nos.2268, 2920, 3387 & 3449 OF 2010 3
The proceeding dated 30.11.2007 shows that a final report in
Crime No.64 of 2007 was submitted for verification and it was
posted to 7.12.2007 on which day the learned Magistrate has
recorded that based on final report cognizance was taken against
the accused Nos.3 and 4 and one Chakkappan. It is there after
the case was posted for recording the statement of the first
respondent under Section 244 of Code of Criminal Procedure. The
statement of the first respondent and one witness was recorded
on 15.12.2007. It was thereafter adjourned to further evidence on
11.1.2008. On that day complainant was represented, one
witness was present and their sworn statements were recorded
and thereafter it was posted for hearing. The order dated
18.3.2008 reads:-
“Petitioner present. Perused the records. Sub
Inspector of Police, Piravom has already filed charge sheet
in Crime No.64 of 2007 regarding the incident against A3
and A4 herein and another. Petition has made out the
involvement of A1, A2, A5 to 9 here in as accused Nos.1 to
7 filed as C.C.No.126 of 2008. Issue summons to accused
to 24.5.2008”
4. Summons was issued as provided under Section 202 of
Code of Criminal Procedure. The question is whether the said
cognizance taken is to be quashed on the contentions raised by
the petitioners.
Crl.M.C Nos.2268, 2920, 3387 & 3449 OF 2010 4
5. Though learned counsel appearing for petitioners
vehemently argued that the learned Magistrate has not
considered the final report submitted in Crime.No.64 of 2007 and
without applying the mind, mechanically it was taken cognizance
of the offences, on a private complaint. In the light of the
proceeding paper recorded by 18.3.2008, I cannot agree with the
submission. When taking cognizance on a private complaint, the
Magistrate is not to record the reasons for taking cognizance.
Order must reflect the fact that Magistrate applied mechanical
mind on the relevant facts. The order dated 18.3.2008 shows that
Magistrate has considered the relevant facts and decided to take
cognizance as against some of the accused alone, on satisfying
that they are also involved in the incident or they are not seen
involved as per the final report. In such circumstances, I do not
find it just or proper to exercise jurisdiction of this Court under
Section 482 of Code of Criminal Procedure to quash the
cognizance taken. Petitioners are entitled to raise all the
contentions raised herein before the learned Magistrate and seek
an order of discharge as provided under Section 245 (1) of Code
of Criminal Procedure. The learned counsel appearing for the
petitioner in Crl.M.C.No.3387 of 2010, Fifth accused, submitted
Crl.M.C Nos.2268, 2920, 3387 & 3449 OF 2010 5
that she did not received any summons. So fifth accused is at
liberty to appear before the learned Magistrate and raise all the
contentions. The learned counsel submitted that presence of the
petitioners may be dispensed with for that purpose. It is up to the
petitioners to apply before Magistrate under section 205 of Code
of Criminal Procedure to dispense with his presence. If such an
application is filed, learned Magistrate not to insist for the
personal presence of the petitioners for that purpose. Cri.M.Cs are
disposed of as above.
M.SASIDHARAN NAMBIAR, JUDGE.
mns