IMPORTANT POINT
A Magistrate's order taking cognizance must be a reasoned one, reflecting an application of mind to the facts and law, and must not be cryptic or irrational.

ORDER :

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

This Crl M C has been filed under Section 482 of the Code of Criminal Procedure, seeking the following reliefs;

“This Hon’ble Court may be pleased to call for the records relating to the order dated 1.10.2016 made in CC 275/2016 on the file of the Judicial First Class Magistrate II, Mavelikkara, (Annexure A5) and all further proceedings in CC 275/2016 on the file of the Court of Judl. 1st Class Magistrate Court-II, Mavelikkara, pursuant to Annexure A5 thereto may be quashed by allowing this Crl. M.C.”

2. Heard the learned Counsel for the petitioner and the learned Counsel appering for the 2nd respondent/de-facto complainant.

3. In this matter, a private complaint, copy of which is produced as Annexure A1, was filed before the Judicial First Class Magistrate II, Mavelikkara, by the complainant/2nd respondent herein, alleging that the accused herein committed the offences punishable under Sections 294(b), 323 and 354 of IPC. The learned Magistrate recorded the sworn statement of the complainant and two witnesses while conducting enquiry contemplated under Section 202 of Cr.PC. Thereafter, the learned Magistrate passed an order on 23.07.2016, which is as under:

“Complainant present. Heard. Prima facie case is made out for the offence punishable u/s 294(b), 323 and 354 IPC and case is taken on file as CC.275/16. Issue summons to accused. Return of summons. Call on.”

4. In fact, the said order is not produced before this Court and it was forwarded by the learned Magistrate when requested by this Court and the order produced before this Court is a subsequent one, copy of the same is produced as Annexure A5, whereby, the learned Magistrate ordered that “Complainant present. Steps seen taken today. Issue summons to accused. Call on.”

5. The learned Counsel for the petitioner argued at length to convince this Court that, even though cognizance was taken as per order dated 23.07.2016, the same also is a cryptic order, without application of mind by the Magistrate. According to the learned Counsel for the petitioner, on scrutiny of the statement given by the complainant CW1, her husband CW2 and a person in the nearby shop as CW3, the same would not make any offence under Sections 294(b), 323 and 354 of IPC, prima facie to justify cognizance of the said offence as per order dated 23.07.2016. Therefore, the entire proceedings are vitiated and the same are liable to be quashed.

6. It is specifically pointed out by the learned Counsel for the petitioner further that the de-facto complainant herein is none other than the former Secretary of Palamel Service Co-operative Society Ltd No.4013, and she was suspended from service with effect from 24.01.2016, on the allegation that she swindled away Rs.17,51.131/-from the Society. The petitioner herein is the President of the Society, and it is at his juncture, misappropriation was detected. As a sequel thereof, apart from suspending the de-facto complainant from service, crime was registered against her. Thereafter, she was prosecuted as per the proceedings in CC No.524/2018 and convicted and sentenced for the offence punishable under Section 409 of IPC. The judgment in CC No.524/2018 dated 13.05.2024 has been placed for the perusal of this Court. Annexure A14 produced before this Court is the copy of FIR which led to conviction in CC No.524/2018. The learned Counsel for the petitioner relied on the decision of the Apex Court in M/s. Pepsi Foods Ltd and Another v. Special Judicial Magistrate and Others 1998 KHC 1055, with reference to paragraph No.28, while stressing the point that the order taking cognizance shall be a reasoned order with application of mind by the Magistrate, where it was held as under:

“Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal l