IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 587 of 2007()
1. K.C.BALAN, S/O. CHATHU,
... Petitioner
2. VINEESH, S/O. SOMAN,
3. SANTHOSH, S/O. RAJU,
4. ANOOP, S/O. BABURAJ,
Vs
1. A.K.JUBEE, S/O. ANDI,
... Respondent
2. SUB INSPECTOR OF POLICE,
3. ASSISTANT COMMISSIONER OF POLICE,
4. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :21/03/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.587 of 2007
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Dated this the 21st day of March 2007
O R D E R
The petitioners are accused in C.P.No.61/06 before the
learned Judicial First Class Magistrate Court III, Kozhikode.
Cognizance has been taken on the basis of a private complaint
filed by the complainant that is the first respondent herein. The
grievance of the petitioners is that cognizance has been taken
and process issued against the petitioners in gross disregard of
the settled provisions of law. Active and alert application of
mind to the relevant facts has not been made by the learned
Magistrate. In these circumstances, it is prayed that cognizance
taken may be set aside.
2. The report of the learned Magistrate was called for.
The learned Magistrate fairly submits that cognizance was taken
without adverting to the final report submitted by the
investigating officer wherein the investigating officer had found
that the allegations are not sustainable. The learned Magistrate
submits that cognizance was taken without adverting to the
principles in Vijayalaxmi v. Thomas [2002(3)KLT 530]
Crl.M.C.No.587/07 2
3. Notice has been given to the learned counsel for the
respondent. The learned counsel for the respondent has not
entered appearance. I am, in these circumstances satisfied that
the matter can be disposed of on merits now.
4. In as much as cognizance has been taken admittedly
without properly adverting to the legal principles, I am not in
any way intending to express any opinion on merits about the
acceptability of the complaint. I am satisfied that cognizance
taken can be set aside and the learned Magistrate can be
directed to consider the matter afresh. The learned Magistrate
must consider the matter afresh uninfluenced by the course
adopted by the learned Magistrate earlier or the course adopted
by this court in setting aside the cognizance taken. In short, the
matter will have to be considered afresh and appropriate
decision taken on the question whether cognizance deserves to
be taken. Needless to say, the learned Magistrate can call for
the refer report in the case even if it were filed before some
other court.
(R.BASANT, JUDGE)
jsr
Crl.M.C.No.587/07 3
The grievance of the petitioner is that cognizance has been
taken by the learned Magistrate in a private complaint filed by
the respondent/complainant without reference at all to the
negative final report filed earlier before the learned Chief
Judicial Magistrate by the investigating police official. This, the
counsel contends, runs counter to the dictum in Vijayalaxmi v.
Crl.M.C.No.587/07 4
Thomas [2002(3)KLT 530]. Call for a report from the learned
Magistrate. Was the final report available before the learned
Magistrate when cognizance was taken? Give notice personally
to the learned counsel for the first respondent who is appearing
before the court below and file a memo to that effect in ten days.
Further proceedings shall stand stayed till 20/03/2007.
Call on 20/03/2007.
Crl.M.C.No.587/07 5
R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006