Point of Law: Stage of taking of cognizance of the offence and issuing process, and the stage when the charge is to be framed against the accused or alternatively the accused is to be discharged are different stages as per the Code.

ORDER :

This Criminal Miscellaneous Case is filed to quash the proceedings in C.C.No.624/2021 on the file of the Judicial First Class Magistrate Court – I, Kottarakkara as against the petitioner.

2. Petitioner is the 2nd accused in the above case. The 2nd respondent herein filed a private complaint before the Judicial First Class Magistrate Court - I, Kottarakkara against the petitioner and another alleging offences punishable under Sections 120B, 192, 193, 182, 469, 471 r/w Section 34 IPC. Annexure-I is the complaint. The learned Magistrate has taken cognizance under Sections 193, 182, 469, 471 and 120(B) IPC. Aggrieved by the order taking cognizance and also against Annexure-I complaint, this Criminal Miscellaneous Case is filed.

3. The short facts in Annexure-I complaint are like this: The Government of Kerala has constituted a Commission of Inquiry under the Commissions of Inquiry Act for the purpose of making an inquiry into an issue which is known as 'Solar Scam and allied financial transactions'. Accused No.1 in Annexure-I complaint was one of the witnesses before the Solar Scam Commission. It is the case of the 2nd respondent/complainant that the 1st accused in Annexure-I made baseless and wild allegations against the then Chief Minister of Kerala, Ministers, M.L.As etc., in the proceedings before the said Commission as CW 108. Petitioner herein, who is the 2nd accused in Annexure-I complaint, is the Member of the Legislative Assembly from Pathanapuram Assembly Constituency. The 1st accused in Annexure-I complaint produced and marked a letter before the Commission on 13.05.2016 allegedly written by her on 19.07.2013 as Ext.X-531, X-639(b). According to the complainant, this letter was marked under the pretext that the 1st accused wrote this letter while she was in police custody in relation to the investigation of Crime No.368/2013 of Perumbavoor Police Station. The 1st accused was arrested on 03.06.2013 by the Perumbavoor Police in connection with Crime No.368/2013. She was remanded to judicial custody and was send to the Sub Jail, Pathanamthitta. Before admitting in the jail, her body was searched by the jail authorities and they had found a letter. The 1st accused was permitted to keep the letter in her custody while in jail, is the submission of the complainant in Annexure-I complaint. On 23.07.2013, Adv.Phenny Balakrishnan came to the jail to collect the letter. The Superintendent of jail permitted the 1st accused to hand over the letter to Adv. Phenny Balakrishnan after receiving a proper receipt indicating the number of pages of the letter. After the issuance of a receipt to Adv. Phenny Balakrishnan, the letter was collected by him from the 1st accused. It is also the case of the complainant in Annexure-I that, in the course of proceedings before the Commission of Inquiry itself, CW58 - Mr.Viswanatha Kurup who was the Superintendent of jail, Pathanamthitta was examined and deposed before the Commission that the 1st accused had handed over a letter/notes to her lawyer, Adv. Phenny Balakrishnan on 23.07.2013 at Pathanamthitta jail. It was deposed by the said Mr.Viswanatha Kurup that, Adv. Phenny Balakrishnan executed a receipt to the effect that the letter has only 21 pages. The receipt was marked as Ext.X-174 before the Commission. Further, it has come out in evidence before the Commission that the 1st accused sent a complaint dated 28.07.2013 through Superintendent, Attakulangara jail to the Additional Chief Judicial Magistrate, Ernakulam which was marked as Ext.X-190 before the Commission. The learned Magistrate forwarded the complaint to the Station House Officer, Ernakulam North Police Station for investigation. It is submitted that, there is no allegation against anybody in that complaint. However, it is the case of the 2nd respondent/ complainant that, Ext.X-531 and 639(b) letter produced by the 1st accused and marked on 06.06.2016 in the Commission had 25 pages. It is also submitted that in this letter the 1s