ORDER :

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.

2. 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.

3. 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.

4. 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.

5. Heard both sides.

6. 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.

7. 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.

8. 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