Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE26H DAY OF FEBRUARY20147TH PHALGUNA, 1935 Crl.MC.No. 3000 of 2013 () --------------------------- AGAINST THE ORDER
IN Crl.Rev.Pet 2645/2009 of HIGH COURT OF KERALA DATED2401-2012 AGAINST THE ORDER
IN CMP43782008 of J.M.F.C.-I(FOREST OFFENCES),TPA DATED2505-2013 CRIME NO. 121/2006 OF KARIMANNOOR POLICE STATION , IDUKKI PETITIONER(S)/PETITIONER/ACCUSED: ---------------------------------------------------------------- SLEEBA THOMAS @ SLEEBA.M.T, AGED51YEARS S/O.LATE THOMAS, MULLACKAL HOUSE, (MURIMATTATHIL) POOTHRIKA.P.O, PUTHENCRUZ, ERNAKULAM. BY ADV. SRI.PAUL K.VARGHESE COMPLAINANT(S)/RESPONDENTS/COMPLAINANT: ------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
2. SEENAMOL ABRAHAM,, AGED45YEARS D/O.ITTAN, KUNNAPPILLIL VEEDU, ASANPADIBHAGOM MULAPPURAMKARA, NEYYASSERI VILLAGE, THODUPUZHA TALUK IDUKKI DISTRICT. R2 BY ADVS. SRI.M.B.SANDEEP SMT.R.PRIYA SRI.V.VISAL AJAYAN SMT.B.DHANYA R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON2602-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3000 of 2013 () --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- ANNEXURE-I A TRUE COPY OF THE COMPLAINT FILED BY THE2D RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT,THODUPUZHA DATED217/2006 ANNEXURE-II A TRUE COPY OF THE FINAL REPORT IN CRIME NO12106 OF THE KARIMANOOR POLICE STATION DATED2511/2006 ANNEXURE-III A TRUE COPY OF THE DOCUMENT NO.3136/2006 F THE KARIKODE SRO DATED277/2006 ANNEXURE-IV A TRUE COPY OF THE AGREEMENT PREPARED BY ADVOCATE BIJU PARANILAYAM DATED277/2006 ANNEXURE-V A TRUE COPY OF THE STOP MEMO SUBMITTED BY SRI.PAULOSE TO THE FEDERAL BANK LTD.,KOLENCHERY BRANCH DATED287-2006 ANNEXURE-VI A TRUE COPY OF THE PLAINT IN O.S.NO.13/2007 OF THE SUB COURT, THODUPUZHA DATED231/2007 ANNEXURE-VII A TRUE COPY OF THE COMPLAINT IN CC.180/2009 FILED BY THE SRI.KURIAKOSE AGAINST THE PETITIONER'S BROTHER IN LAW SRI.KURIAKOSE BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE VADAKKANCHERRY DATED113/2009 ANNEXURE-VIII A TRUE COPY OF THE COMPLAINT FILED BY SRI.PAULOSE BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT THODUPUZHA DATED102-2010 ANNEXURE-IX A TRUE COPY OF THE ORDER
OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT,THODUPUZHA IN CMP.664/10 DATED102-2012 ANNEXURE-X A TRUE COPY OF THE JUDGMENT
IN CRL.RP.2645/2009 OF THE HONOURABLE HIGH COURT OF KERALA,DATED241-2012 ANNEXURE-XI A TRUE COPY OF THE MEDICAL EXAMINATION CONDUCTED BY DR.MARY KUTTY JOSE THODUPUZHA GOVT.TALUK HOSPITAL DATED98-06 ANNEXURE-XII A TRUE COPY OF THE2D RESPONDENT BEFORE THE FAMILY COURT, THODUPUZHA ANNEXURE-XIII A TRUE COPY OF THE JUDGMENT
IN OP.207/06 OF THE FAMILY COURT, THODUPUZHA DATED315.2011 ANNEXURE- XV A TRUE COPY OF THE ORDER
IN CC.570/2013 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT,THODUPUZHA DATED255/2013. Crl.MC.No. 3000 of 2013 () -2- RESPONDENT(S)' EXHIBITS --------------------------------------- NIL //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN, J.
------------------------------------------ Crl.M.C. No. 3000 of 2013 ------------------------------------------ Dated this the 26th day of February, 2014 ORDER
Petitioner challenges Annexure XV Order passed by the Judicial First Class Magistrate-I, Thodupuzha, as per which cognizance was taken against the petitioner for offences under sections 420 and 323 of IPC.
2. Originally, the 2nd respondent filed Annexure I complaint before the learned Judicial First Class Magistrate, Thodupuzha. Without noticing the bar under section 198 of Cr.P.C., in respect of offences under sections 493, 494 and 495 mentioned in that complaint, it was forwarded to the Police for investigation under section 156(3) of Cr.P.C. Final report Annexure II was filed alleging that the accused committed offences under sections 493, 494, 495, 323, 420, 377 and 376 of IPC. Thereafter, the case was committed to Crl.M.C. No. 3000/2013 -2- the court of Session. At that stage the accused therein moved this court by filing Annexure X petition (Crl.R.P. No.2645/2009). This court, as per Annexure X Order dated 24.01.2012, allowed the Revision Petition and the act of the learned Magistrate in taking cognizance of the offences under sections 493, 494 and 495 along with offences under sections 323, 420, 377 and 376 on the police report was set aside and the committal order was quashed. But liberty was given to take cognizance of the offences under section 420 and 323 of IPC on the basis of the complaint, ignoring the final report.
3. Presumably thinking that complaint alone is sufficient even when the complainant was absent, the learned Magistrate passed Annexure XV order. It is stated therein that the petitioner (complainant) was absent and application was filed on his behalf. The relevant portion of Crl.M.C. No. 3000/2013 -3- that order reads: "Heard both sides. I am satisfied that prima facie case is made out only u/S. 420 and 323 IPC. The petitioners has alleged all offences relating marriage in this case. But all these offences are not made out as these offences are co related. Taking in account the order of the Hon'ble High Court also only S.420 and 323 IPC is made out. Hence taken on file as C.C. No.570/13, u/S.420 and 323 IPC. Issue summons to accused." [So many mistakes are seen in the Order] 4. The learned counsel for the petitioner submits that this Court, as per Annexure X order, only meant that the learned Magistrate can proceed on the original complaint. It does not mean that the learned Magistrate can straight away take cognizance without following the procedure prescribed under section 200 and the succeeding provisions of Cr.P.C. There is nothing in Annexure XV order to show Crl.M.C. No. 3000/2013 -4- that the complainant was examined and/or her witnesses were examined. The learned counsel submits that no such procedure was followed by the learned Magistrate.
5. According to the learned counsel, as it stands, what is available is only the original complaint and nothing more and so Annexure XV order is to be quashed. The procedure adopted by the learned Magistrate is illegal and unsustainable. The complaint is now before the learned Magistrate. In the light of the directions issued by this Court in Crl.R.P. 2645 of 2009 dated 24.01.2012, the learned Magistrate should not have taken cognizance simply on the basis of the complaint. The learned Magistrate shall proceed as required under Chapter XV of the Code.
6. In the result, this Criminal M.C. is disposed of as stated below: Crl.M.C. No. 3000/2013 -5- The cognizance taken by the learned Magistrate is set aside. The matter is remanded to the learned Magistrate to follow the procedure prescribed under Chapter XV of Cr.P.C. The complainant will appear before the learned Magistrate on 21.03.2014. He will produce witnesses also on that date or on a day fixed by the learned Magistrate. The learned Magistrate will record their statements and proceed in accordance with law. Sd/- N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to judge jjj