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2023 Supreme(Online)(KER) 18643
HIGH COURT OF KERALA
RAJA VIJAYARAGHAVAN, J
SRI.ANISH GOPINATHAN – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 5871 2020
C.P.SAJI, SRI.P.ANIYAN, SMT.P.DEEPA MOHAN, SMT.PRIYA NAIR
A court must consider all relevant reports before proceeding with a summons, especially when a refer report indicates no valid offense.
Headnote:
Criminal Law - Quashing of Proceedings - IPC Sections 294(b), 341, 323 - Discussion of Non-Cognizable Offenses.
Fact of the Case:
The petitioner, charged under IPC Sections 294(b), 341, and 323, sought to quash criminal proceedings initiated without considering a refer report indicating only a non-cognizable offense under Section 323.
Finding of the Court:
The court determined that the learned Magistrate overlooked the refer report indicating that no cognizable offense was established, leading to an improper issuance of summons against the petitioner.
Issues: Whether the proceedings should be quashed due to failure to consider the refer report indicating the offense was non-cognizable.
Ratio Decidendi: The issuance of summons was invalid as it ignored a pending refer report that suggested no valid cognizable offense was committed.
Final Decision: The court directed the Magistrate to consider the refer report and decide accordingly.
ORDER
The petitioner is the accused in C.C. No. 1024/2016 on the file of the Judicial Magistrate of First Classs-VIII, Ernakulam. In the aforesaid case, he is facing prosecution for the offense punishable under Sections 294 (b), 341, and 323 of the IPC . The aforesaid case has arisen from Crime No. 61/2014 of the Maradu Police Station.
2. After the submission of the final report in the above case, a petition was submitted by the father of the petitioner before the Superior Police Officers seeking further investigation on the premise that the petitioner was falsely implicated. Pursuant to the same, a refer report was submitted before the learned Magistrate. In the refer report, the investigating officer mentioned that as against the petitioner herein, the only offense made out is under Section 323 of the IPC , and the same being non-cognizable, no FIR could have been validly registered. On receipt of the refer report, notice was issued to the 2nd respondent to ascertain whether he has any objection in accepting the refer report. While the proceedings were pending as aforesaid, the case was transferred to the Judicial Magistrate of the First Class VIII- Ernakulam. The learned Magistrate, without noticing the refer report, issued a summons to the petitioner. It is in the afore circumstances that this petition is filed seeking to quash the entire criminal proceedings.
3. When the matter had come up for consideration on 08.06.2023, this Court issued the following order:
“The learned counsel appearing for the petitioner would refer to Annexure A5, and it is submitted that after completion of the investigation in Crime No.61 of 2014 of the Maradu Police Station, a refer report was submitted on 22.9.2014. In the report, the investigating officer mentioned that as against the petitioner herein, the only offense made out is under Section 323 of the IPC , and the same being non-cognizable, the refer report was being submitted. Though notice to the complainant was issued, no orders were passed on the refer report. Later, the case, which was pending before the Judicial First Class Magistrate - I, Kochi, was transferred to Judicial First Class Magistrate Court -VIII, Maradu, and the case was taken on file as C.C.No.1024 of 2016 under Section 294 (b), 341 and 323 of the . The learned counsel contends that the procedure adopted by the learned Magistrate is clearly illegal.
Registry shall forward a copy of Annexure A5 as well as A6 proceedings to the learned Magistrate and call for the report as what had transpired on 23.2.2016 and 5.3.2016. The learned magistrate shall state whether the refer report was accepted or rejected and the procedure that was followed before taking cognizance and numbering the case as C.C.No.1024 of 2016”.
4. In response, a report from the learned Magistrate dated
15.06.2023 has been placed before this Court, which reads thus:
“As per the case records, charge sheet in this case was filed on
10.1.2014 and it was taken on file on 29.4.2014. While so, Assistant Police Commissioner, District Crime Records Bureau filed a report to the effect that reinvestigation is being conducted as per the order No.D1(a)37579/2014 EC dated 5.7.2014 of the Kochi City Police Commissioner. After having conducted re-investigation, Refer Report was filed on 22.9.2014 and it was posted for consideration after issuing notice to the de facto complainant.
While so, this court started functioning in the year 2015 and cases have been transferred from various courts enbloc to this court. This case was also transferred to this court during that time and it was taken on file as CC 1024/2016 on 5.3.2016 by my learned predecessor. The records shows that on 23.2.2016 while the refer report was pending for consideration, the case records were transferred to this court and on 5.3.2016, it was taken on file of this court. The pendency of the refer report somehow evaded the notice of the presiding officer, maybe due the influx of case files to the newly establis
