Cibi.K.Cherian vs State Of Kerala

M.R.Anitha, J

This Crl.M.C. has been filed by the petitioner/accused in C.C.No.875/2018 on the file of the Judicial First Class Magistrate Court, Thripunithura.

The petitioner/accused (hereinafter be referred as petitioner) is a lawyer enrolled with Bar Council of Kerala and is active in his profession. The

second respondent/defacto complainant (hereinafter be referred as the second respondent) is the wife of the brother-in-law of the petitioner. The

second respondent is working as a nurse at Vijayakumara Menon Hospital at Thripunithura. The marital relationship of the second respondent with her

husband I.e, the brother in law of the petitioner has been strained by 2015. Several litigation are pending between them.

The petitioner filed Vakalath for the brother-in-law and conducted the case in M.C.No.27/2016 filed by the second respondent before the Grama

Nyayalaya, Kolencherry. That provoked the second respondent and she made allegations against the petitioner one after the other. Initially, the second

respondent filed a complaint against the petitioner before the SHO, Thripunithura, alleging commission of offence under Section 341 and 506 (1) of

Indian Penal Code. After investigation, that case was referred as false and the Judicial First Class Magistrate Court, Thripunithura accepted the refer

report. The second respondent and her husband initiated proceedings before the Family Court, Ernakulam for the custody of the child. The child was

reluctant to go with the second respondent. Thereafter she filed a complaint against the petitioner and that was numbered as C.C.No.991/2017 on the

file of the Judicial First Class Magistrate Court, Ernakulam. Against which the petitioner filed Crl.M.C.No.5611/2018 before this court and the entire

proceedings was quashed. Subsequent to that the present case was registered against the petitioner, based upon a protest complaint filed by the

second respondent. The petitioner is totally innocent and case has been filed only to damage his reputation and hence, this Crl.M.C. has been filed.

Notice was issued to the respondents. The first respondent appeared through the learned Senior Public Prosecutor. The second respondent

appeared through Adv.Bobby Rapheal C.

Heard both sides.

According to the learned counsel for the petitioner, the second respondent is the wife of his brother-in-law and there are series of litigations pending

between the second respondent and her husband and he had been defending the brother-in-law in some cases and out of that enmity, this false

complaint has been filed against him.

The main contention of the learned counsel for the petitioner is that the Magistrate has taken on file the protest complaint in absolute disregard of

settled principles of law. According to him, the complaint filed by the second respondent before the police was referred as false and Annexure 4(a) is

the copy of the final report. But without considering or evaluating the refer report, the learned Magistrate taken the case on file and issued summons

to him. Annexure 5 is the order by which the summons was issued to the petitioner. It would go to show that after taking the sworn statement of the

complainant and the witnesses finding that there is a prima facie case was made out, the case was taken on file under Section 341 and 506 (1) IPC.

Obviously, the refer report was not considered at all.

In this context, the learned counsel brought to my attention Parameswaran Nair v. Surendran (2009(1) KLT 794) wherein a learned Single Judge of

this Court has dealt with in detail the circumstances under which a protest complaint can be entertained.

 “12. If the original complaint stood dismissed by the acceptance of the refer report submitted after investigation the protest complaint if any filed can only be

treated as a second complaint. If so, the protest complaint will lie only if there was a manifest error or manifest miscarriage of justice in the earlier order or new facts

which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings is adduced. When this is the

legal position, it is not lawful to the Magistrate to ignore the final report submitted by the police under Section 173 (2) of the Code. Magistrate is bound to consider

the final report and decide which of the options available to him is to be exercised. xxx

xxx xxx

If Magistrate finds that in spite of all the objections raised, the final report is to be accepted he can accept it and drop the proceeding. At that stage Magistrate

can entertain a second complaint. But such a complaint will lie only if there was manifest error or manifest miscarriage of justice or new facts which the complainant

had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings. The Magistrate cannot therefore ignore the final

report altogether and consider only the protest complaint and the sworn statement of the witnesses recorded in that enquiry.

The well settled legal propositions can be summed up as follows;

(1) When a final report is made by an officer of the Police Station under sub-s.(2) of S.173 of Code of Criminal Procedure, if the Magistrate is not inclined to take

cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his

submissions to persuade the Magistrate to take cognizance of the offence and issue process.

(2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for

proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and

issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report.

(3) Magistrate can direct further investigation under sub-s. (3) of S. 156.

(4) Magistrate can take cognizance on the final report itself under S. 190(1)(b) disregarding the opinion of the police and issue summons.

(5) Magistrate can take cognizance on the original complaint, where investigation under sub-s.(3) of S.156 was earlier ordered and record the statement of the

complainant and the witnesses as provided under S.200 and can conduct an inquiry, In that inquiry Magistrate can direct investigation by a police officer or such

other officer as provided under S.202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be

issued.

(6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second

complaint it will lie only if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts

which the complainant had no knowledge of or with due diligence could not have brought forward in the previous proceedings.

When the Magistrate issue notice to the complainant on receipt of the final report and grants opportunity to the complainant to show why cognizance of the

offence is to be taken and the complainant files a protest complaint, it is to be treated only as his objections to the final report, stating his reasons why the report

cannot be accepted. If the Magistrate records his statement and that of the witnesses and decides to take cognizance of the offence, after considering all the materials

including the final report made by the police under sub-s.(2) of S. 173, it is advisable for the Magistrate to record that the final report is not accepted and on the entire

materials he is of the opinion that there is ground to proceed and issue summons under S.204 of Code of Criminal Procedure. But the fact that no specific order was

recorded that final report is not accepted or fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by

themselves are not fatal, if the records show that Magistrate has considered all the relevant materials and applied his mind. If after complying these procedures, an

order not to take cognizance is passed by the Magistrate, then a second complaint will lie, only if there was any manifest error or manifest miscarriage of justice in the

previous order or the complainant relies on new facts or materials which was not to his knowledge or with reasonable diligence could not have brought forward in the

previous proceedingsâ€​.

So, the protest complaint can be entertained if the Magistrate accept the report under Section 173(2) and dropped the proceedings after granting

opportunity to the complainant if there are manifest error or manifest miscarriage of justice in the previous order and there was any exceptional

circumstances like new facts which the complainant had no knowledge or with due diligence could not have brought forward in the previous

proceedings. In the present case, the impugned order passed by the learned Magistrate does not even refer about the final report filed and whether

any exceptional circumstances or any new materials could be brought out which could not have been brought in previous proceedings with reasonable

diligence. So the impugned order passed by the learned Magistrate simply based on the sworn statement of the complainant and the witnesses cannot

be sustained in law and hence and it is liable to be set aside.

In the result, Crl.M.C. allowed and the order in CMP No.1396/2017 dated 26.06.2018 is set aside and the Judicial First Class Magistrate Court,

Thripunithura is directed to pass fresh orders in compliance of the dictum laid down in Parameswaran Nair v. Surendran (2009(1) KLT 794) referred

above.