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.
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CRL.M.C.No.3963 OF 2005
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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,
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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
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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