Kerala High Court
Shihab vs State Of Kerala on 3 June, 2020
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942
Crl.MC.No.3631 OF 2015
OS 67/2011 DATED 30-06-2014 OF MUNSIFF'S COURT,TIRUR
CRL.RP 43/2011 DATED 05-02-2015 OF ADDITIONAL SESSIONS
COURT - III, MANJERI
PETITIONERS/ACCUSED:
1 SHIHAB
S/O. KUNCHALAVI HAJEE,MUNDEKKAT HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT
2 MUNDEKKAT SADIK
S/O.ABOBACKER,MUNDEKKAT HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT
3 ERANDAPPURATH APPU @ VELAYUDHAN
S/O.ITTAMAN,ERANDAPPURATH HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT
4 ERANDAPPURATH MADHUSOODANAN
S/O. KRISHNAN,ERANDAPPURATH HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT
5 PONIYERI AYOOB
S/O. MUHAMMED,PONIYERI HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT
6 AMBITTAKATH SANKARAN
S/O. KRISHNAN EMBRANTHIRI,AMBITTAKATH HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPAURAM DISTRICT
7 AMBITTAKATH KARNAN
S/O.MADHAVAN EMBRANTHIRI, AMBITTAKATH HOUSE,
PONMUNDAM,ATHRUSSERI, MALAPPURAM DISTRICT
Crl.M.C.No.3631 of 2015
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8 HAMZA
S/O. KUNHIMOIDEEN,KADUVAKANCHERI HOUSE,
KARINKAPPARA P.O,ATHRUSSERI,MALAPPURAM DISTRICT
BY ADVS.
SRI.K.P.SUDHEER
SRI.Y.JAFAR KHAN
RESPONDENTS/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT
OF KERALA,ERNAKULAM,KOCHI 682 031 REPRESENTING
SUB INSPECTOR OF POLICE, KALPAKANCHERY POLICE
STATION, KALPAKANCHERY 676 551,
MALAPPURAM DISTRICT
2 THADATHIL ISMALU
S/O.AHAMEDKUTTY,PONMUNDAM,ATHRUSSERI,
MALAPPURAM DISTRICT PIN 676 304
*3 PATHUMMAKUTTY
AGED 50 YEARS
D/O THADATHIL ISMALU,THADATHIL HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT,
PIN 676304
*4 KHADEEJA
AGED 48 YEARS
D/O THADATHIL ISMALU,THADATHIL HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT,
PIN 676304
*5 SAINABA
AGED 45 YEARS
D/O THADATHIL ISMALU,THADATHIL HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT,
PIN 676304
Crl.M.C.No.3631 of 2015
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*6 SULAIKHA
D/O THADATHIL ISMALU, AGED 42 YEARS,THADATHIL
HOUSE,PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT,
PIN 676304
*7 RAMLATH
AGED 40 YEARS
D/O THADATHIL ISMALU,THADATHIL HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT,
PIN 676304
*8 MUHAMMED KUTTY
AGED 38 YEARS
S/O THADATHIL ISMALU,THADATHIL HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT,
PIN 676304
*9 ALI
AGED 36 YEARS
S/O THADATHIL ISMALU,THADATHIL HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT,
PIN 676304
*10 ASIYA
AGED 34 YEARS
D/O THADATHIL ISMALU,THADATHIL HOUSE,
PONMUNDAM,ATHRUSSERI,MALAPPURAM DISTRICT,
PIN 676304
* IMPLEADED AS ADDL R3 TO ADDL R10 AS PER ORDER
DTD 4.6.2019 IN CRL MA NO.1/2019 IN CRL MC
3631/2015.
R2 BY ADV. SMT.ANJALI G.KRISHNAN
R3-10 BY ADV. SRI.C.M.MOHAMMED IQBAL
R1 BY ADV.SRI.BINEESH E.C., PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
03.06.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.3631 of 2015
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Dated this the 3rd day of June, 2020
O R D E R
The petitioners are the accused in Annexure A1 private complaint filed before JFCM-I, Tirur, against them for offences punishable under Sections 143, 147, 447, 452, 379, 427, 506(i) read with Section 149 IPC.
2. The learned Magistrate after conducting Section 202 enquiry in the matter, dismissed the complaint under Section 203 Cr.P.C. holding that there were no sufficient grounds to proceed with the complaint against the accused. This impugned order was challenged before the Additional Sessions Judge-III, Manjeri, in Crl.R.P.No.43/2011 and the learned Sessions Judge set aside the order by ordering remittal of the matter.
3. It is seen from the impugned order that while remitting the case back, it directed the Crl.M.C.No.3631 of 2015 :-5-:
court below to try and dispose of the matter after giving sufficient opportunities to both sides.
4. Challenging that the direction given in the operative portion of the revisional order is wrong and opposed to legal procedure and further that there were no grounds which persuaded the learned revisional Judge to interfere with the order passed by the learned Magistrate, this Crl.M.C. has been filed.
5. I heard the learned counsel for petitioners as well as party respondents.
6. During the pendency of this proceedings, the original complainant who is the 2nd respondent passed away and his legal heirs were brought on record as additional respondents.
7. Looking at the impugned order, I am satisfied that the procedure adopted by the learned Magistrate is thoroughly wrong and opposed to the Crl.M.C.No.3631 of 2015 :-6-:
procedure established by the provisions of Cr.P.C. It is surprising as to how without process being issued to accused and an attempt being made for framing charge against them, trial could have been ordered and matter directed to be dispose of within a time frame. Under Section 398 of Cr.P.C., the court which chooses to interfere with an order passed under Section 203 Cr.P.C. has to give the matter again back to the Magistrate concerned ordering reconsideration of the matter and examine the need for issue of process against the accused in the private complaint. The learned Magistrate instead of following this procedure went to the extent of ordering trial itself, which is against the procedure contemplated in Chapter XIX of Cr.P.C., even assuming that commission of offences triable as warrant cases was prima facie established made out.Crl.M.C.No.3631 of 2015
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8. Learned counsel for the petitioners submitted that in fact, there are no sufficient grounds for proceeding against any of the accused and the learned revisional Judge failed to take notice of the refer report submitted by the police as well as judgment in O.S.No.67/2011 dismissing the claim of the de facto complainant on merits. I do not propose to go into the merits of the case at all since I am satisfied that the impugned order of the revisional court is vitiated by illegality. The matter has to go back to the learned Magistrate over again and he has to reconsider the question as to whether sufficient grounds have been established for proceeding against the accused and there is need for issue of process to them.
In the circumstances, this Crl.M.C. is allowed setting aside the impugned revisional order dated 5.2.2015. The Judicial First Class Magistrate-I, Crl.M.C.No.3631 of 2015 :-8-:
Tirur, will reconsider the question as to whether there are sufficient grounds for proceeding against the accused and I make it clear in that process, the accused are not entitled to be heard at all. Since the original complainant is reported to be dead, the learned Magistrate shall proceed with the complaint after giving an opportunity to the legal heirs to come on record. It is further directed that this matter shall be disposed of as expeditiously as possible at any rate within a period of six months from the date of receipt of a copy of this order.
All pending interlocutory applications are closed.
Sd/-
T.V.ANILKUMAR JUDGE ami/ Crl.M.C.No.3631 of 2015 :-9-:
APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE SECOND RESPONDENT HEREIN AS CMP NO.2763/2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE-1,TIRUR DATED 11/5/2011 ANNEXURE A2 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO 54/2011 OF KALPAKANCHERRY POLICE STATION ANNEXURE A3 TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE KALPAKANCHERRY POLICE IN CRIME NO.54/2011 ANNEXURE A4 TRUE COPY OF THE ORDER DATED 1/9/2011 IN CMP NO 2763/2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE-1,TIRUR ANNEXURE A5 CERTIFIED COPY OF THE JUDGMENT DATED 30/6/2014 IN O.S NO 67/2011 ON THE FILE OF THE MUNSIFFS COURT,TIRUR ANNEXURE A6 CERTIFIED COPY OF THE ORDER DATED 5/2/2015 IN CRL RP NO 43/2011 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE- III, MANJERI ANNEXURE A7 TRUE COPY OF THE SUMMONS RECEIVED TO THE 7TH PETITIONER FROM JFCM-1,TIRUR