Kerala High Court
John Samuel vs The State Of Kerala on 2 February, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY, THE 24TH DAY OF FEBRUARY 2014/5TH PHALGUNA, 1935
Crl.MC.No. 4859 of 2013
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C.C NO. 567/2012 OF MUNSIFF MAGISTRATE COURT, SASTHAMKOTTA.
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CRIME NO.70/2008 OF SASTHAMKOTTA POLICE STATION, DATED 02.02.2008.
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PETITIONER/ACCUSED 1 TO 4:
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1. JOHN SAMUEL, AGED 59 YEARS,
S/O.SAMUEL, PALAVILAYIL, IVERKALA,
PADINJATTEKKARA, VADAKKU, KUNNATHOOR VILLAGE,
KOLLAM DISTIRCT.
2. JENSAN, AGED 24 YEARS,
S/O.JOHN, PALAVILAYIL, IVERKALA,
PADINJATTEKKARA, VADAKKU, KUNNATHOOR VILLAGE,
KOLLAM DISTIRCT.
3. JESSON JOHN, AGED 26 YEARS,
S/O.JOHN, PALAVILAYIL, IVERKALA,
PADINJATTEKKARA, VADAKKU, KUNNATHOOR VILLAGE,
KOLLAM DISTIRCT.
4. SARAMMA JOHN, AGED 52 YEARS,
W/O.JOHN SAMUEL, PALAVILAYIL, IVARKALA,
PADINJATTEKKARA, VADAKKU, KUNNATHOOR VILLAGE,
KOLLAM DISTIRCT.
BY ADV. SRI.N.UNNIKRISHNAN
RESPONDENTS/ COMPLAINANT/ STATE:
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1. THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 036.
2. BEENI , AGED 68 YEARS,
S/O.MATHAI, IVARKALA, NADUVILA MURIYIL,
CHARUVIL, PUTHEN VEETIL, KUNNATHOOR VILLAGE,
KOLLAM DISTRICT-690 520.
R1 BY PUBLIC PROSECUTOR SRI.N.SURESH
R2 BY ADV. SMT.SHERLY THOMAS
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24-02-2014,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Msd.
Crl.MC.No. 4859 of 2013
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APPENDIX
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PETITIONER(S)' ANNEXURES:
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ANNEXURE A1: ATRUE COPY OF F.I.R 70/2008 DATED 02-02-2008.
ANNEXURE A2: ATRUE COPY OF THE CHARGE SHEET AND FINAL REPORT
SUBMITTED ON 15-02-2008 BY SUB- INSPECTOR OF POLICE,
SASTHAMKOTTA.
ANNEXURE A3: ATRUE COPY OF THE COMPLAINT C.M.P NO.1127/2012.
ANNEXURE A4: ATRUE COPY OF THE DEPOSITION STATEMENT OF THE CW 2
IN C.M.P NO.1127/2012.
ANNEXURE A5: ATRUE COPY OF THE DEPOSITION STATEMENT OF THE CW 3
IN C.M.P NO.1127/2012
RESPONDENT(S)'ANNEXURES:
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NIL
//TRUE COPY//
P.A.TO JUDGE.
Msd.
K. Ramakrishnan, J.
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Crl.M.C.No.4859 of 2013
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Dated this, the 24th day of February, 2014.
O R D E R
This is an application filed by the petitioners who are accused Nos. 1 to 4 in C.C.No.567/12 on the files of Munsiff- Magistrate Court, Sasthamkotta, to quash the proceedings of the case under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that petitioners are accused in Crime No.70/08 of Sasthamkotta Police Station registered on the basis of the statement given by the de facto complainant who is the second respondent herein, alleging offences under Sections. 323, 324 and Section 34 of Indian Penal Code. The allegation was that, on 01.02.2008, at about 5.30 p.m, petitioners 1 to 4, in furtherance of their common intention of voluntarily causing hurt to the de facto complainant, the second respondent, attacked him and caused pain to his lower jaw and also caused pain and swelling on his chest and stomach. After investigation, police submitted final report before the Judicial First Class Magistrate Court, Sasthamkotta, on 15.02.2008 alleging offences under Sections. 324, 325 and Section 34 of Indian Penal Code deleting Crl.M.C.No.4859 of 2013 : 2 : petitioners 2 and 4 from the array of accused. The court proceeded with the trial of the case by issuing summons to the witnesses. CW1, who is the de facto complainant did not appear before the court. Two other witnesses who appeared before the court were examined but declared hostile by the prosecution. Thereafter, the de facto complainant appeared and filed another complaint alleging that due to the influence of petitioners, the Sasthamkotta police had deleted petitioners 2 and 4 from the array of accused and not included offences under Section 326 of Indian Penal Code and alleging all these things showing all the petitioners as accused and incorporating Section 326 of Indian Penal Code also, a private complaint was filed and after conducting enquiry, the learned magistrate has taken cognizance of the case as C.C.567/12 and issued summons to the petitioners. According to the petitioners, the procedure adopted is illegal and the court should not have taken the case on file separately as court has got power to alter the charge on the basis of the evidence later if it is found that grave offence has been committed other than the offences mentioned by the police and also invoking Section 319 of Code of Criminal Procedure implicate other persons as accused as well. Further, the present complaint is barred by limitation Crl.M.C.No.4859 of 2013 : 3 : under Section 468 of Code of Criminal Procedure. So, according to the petitioners, Annexure A3 case has to be quashed. So, the petitioners filed this application seeking the following relief:
"i) To call for the records leading to Annexure-A3
ii) Issue appropriate order or direction quashing Annexure-A3 complaint."
3. Second respondent appeared through Counsel. Heard the Counsel for the petitioners, learned Public Prosecutor and the Counsel for the second respondent. I also called for a report from the Judicial First Class Magistrate Court, Sasthamkotta, regarding the present stage of both the cases and the report reads as follows:
As per the reference cited above, the Hon'ble High Court of Kerala directed this court to report about the present stage of the C.C.No.367/08, which is pending before this court.
It is respectfully submitted that the accused in this case are facing trial for the offences punishable under sections. 324, 325 read with section 34 of IPC. And it is further submitted that on 04.08.2011 my learned predecessor in office framed charge against the accused and issued summons to CW1 to CW3. And on 18.04.2012 CW2 Viswanathan and CW3 Somarajan were present before the court and they were examined as PW1 and PW2. And there after none of the witnesses were examined.
It is humbly submitted that the last posting of the case was on 22.01.2014. And on that day the both accused were Crl.M.C.No.4859 of 2013 : 4 : present and CW1 was also present before the court. And from 22.01.2014 the case was adjourned to 06.03.2014 to call along with the connected case.
It is further submitted that, the connected case C.C.No.567/12 is also posted to 06.03.2014. And on 22.01.2014 the learned counsel for the accused in C.C.No 567/12 filed an affidavit with respect to pendency of Crl.M.C.No.4859/13. And the learned counsel also produced the stay order of the Hon'ble High Court of Kerala in Crl M.A.No.8497 in Crl.M.C.No 4859/2013 dated 29.11.2013. Hence the case was posted to 06.03.2014.
Therefore, it is most humbly submitted that these are the circumstances transpired behind the case. And this report is submitted before your honoured office for the kind consideration."
4. The Counsel for the petitioners submitted that the second complaint after two years of the alleged incident is clearly bar by the limitation and the magistrate should not have taken cognizance of that case.
5. On the other hand, the Counsel for the second respondent submitted that only when the complainant came to know about the filing of the earlier report that certain persons were omitted and grave offences were not added, he filed the complaint and magistrate was perfectly justified in taking cognizance of the case on that basis. In such cases, the magistrate has to consider both the case taken on file on the basis of private complaint and also on the basis of police report Crl.M.C.No.4859 of 2013 : 5 : and dispose of the cases simultaneously.
6. It is an admitted fact that earlier on the basis of the statement given by the present second respondent, Annexure A1 crime was registered as Crime No.70/08 against the present petitioners alleging offences under Sections. 323, 324 and Section 34 of Indian Penal Code. It is also an admitted fact that the incident happened in that case on 01.02.2008. It is also in a way admitted that after investigation, Annexure A2 final report was filed by the investigating officer against petitioners 1 and 3 alone deleting petitioners 2 and 4 from the party array and adding Section 325 of Indian Penal Code and deleting Section 323 of Indian Penal Code and that was taken on the file as C.C.No.367/08 on the file of the Judicial First Class Magistrate Court, Sasthamkotta, where the present petitioners 1 and 3 appeared and it is now posted for examination of witnesses and PWs 1 and 2 were already examined. It is also seen from the report that the present second respondent filed a private complaint showing accused Nos.1 to 4 the present petitioners as accused and also incorporating Section 326 of Indian Penal Code as well along with other offences alleged and after conducting enquiry under Section 202 Code of Criminal Procedure, the learned Crl.M.C.No.4859 of 2013 : 6 : magistrate has taken that case on file as C.C.No.567/12 and summons was ordered to all the accused persons. It is at that time that the petitioners have come before this court to quash the second case namely C.C.No.567/12.
7. As regards the question of limitation is concerned, if the complainant had come to know that the previous investigation was not properly conducted and all the accused persons were not implicated in the case and proper offences has not been incorporated, then, in view of Sakiri Vasu Vs. State of U.P. 2008 (1) KLT 724 (SC), the remedy available to the de facto complainant is to file a private complaint showing all these facts. Since it is not a refer report, there is no possibility of complainant getting notice on filing of the final report by the police. He can only file the private complaint showing the short comings in the earlier investigation only when he came to know about the filing of the report by the police. In this case, he came to know about the same only when he received summons from the court to give evidence in police report case. So, under the circumstances, it cannot be said that magistrate was not justified in taking cognizance of the second complaint filed by the complainant on the same set of facts but, showing different offences and different persons, Crl.M.C.No.4859 of 2013 : 7 : as the delay has been explained in the complaint itself and the cause of action will arise for the person to file the second complaint only when he came to know about the filing of the earlier complaint to his dissatisfaction. In cases where cases were taken on the basis of private complaint and on police report in respect of the same incident, then, the magistrate is empowered to consider both the cases simultaneously and dispose of the same simultaneously. So, there is no illegality committed by the magistrate in taking cognizance of the second case in this case. The accused are at liberty to raise all their contentions before the magistrate at the time of trial of that case. The question regarding limitation considered by this court at this stage is only for the limited purpose as to whether the magistrate was justified in taking cognizance after more than two years of the incident alone and not for any other purposes. If the petitioners can establish before the magistrate that the de facto complainant had knowledge about the filing of the report even earlier and if he has not filed a complaint, then that also can be considered by the magistrate on the basis of evidence to be adduced in that case. So, I don't find any reason to quash the proceedings at this stage and the petitioners can very well appear before the concerned Crl.M.C.No.4859 of 2013 : 8 : magistrate court and take all defences before that court as both the cases are now almost ripe for trial. Once the petitioners appeared before the magistrate court in C.C.No.567/12, then, the magistrate is directed to consider the bail application and conduct enquiry as provided under Code of Criminal Procedure in respect of the second complaint filed by the second respondent and if prima facie case is made out for framing charge, then consider that and pass appropriate orders in that case after hearing the petitioners. Till the enquiry is completed and charge is framed in C.C.No.567/12, the magistrate is directed to keep in abeyance the pronouncement of the judgment in C.C.No.367/08. The de facto complainant is directed to co-operate with the trial of the case in C.C.No.367/08 which has been taken on file by the magistrate on the basis of the police report.
With the above observation and direction, the petition is disposed of.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge