Cognizance under Sections 354A IPC and 120(o) KP Act justified, but 500 and 501 IPC not maintainable under Section 199 Cr.P.C.

ORDER

Petitioner is the accused in C.C.No.1517/2016 on the file of the Judicial First Class Magistrate Court-II, Ernakulam. The above case is charge-sheeted against the petitioner alleging offences punishable under Sections 354A , 500 and 501 of the Indian Penal Code (for short, IPC ) and Section 120 (o) of the Kerala Police Act (for short, KP Act).

2. The petitioner is a former army ofÏcer and the second respondent is the Chief Co-ordinating Editor of Asianet News. The case was registered based on a complaint filed by the 2nd respondent alleging that the petitioner had defamed the defacto complainant and also committed the offences alleged in the final report in a speech made by him at BTH Hotel, Ernakulam. According to the petitioner, even if the entire allegations in the final report are accepted, the offences alleged are not made out and therefore prayed for quashing the final report.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. I also heard the learned counsel for the 2^nd respondent.

4. The counsel for the petitioner submitted that even if the entire allegations in the final report are accepted, the offences alleged in the final report are not made out. The counsel for the petitioner also submitted that the learned Magistrate who took cognizance has not applied his mind before taking cognizance. It is submitted that, it is fundamental in criminal law that, as per Section 199 Cr.P.C., no court can take cognizance of an offence punishable under Chapter XXI IPC , except upon a complaint made by some persons aggrieved by the offence. It is submitted that the learned Magistrate took cognizance under Sections 500 and 501 based on a Police charge when there is a clear bar under Section 199 Cr.P.C. Hence the counsel submitted that, the same itself shows that the learned Magistrate has not applied his mind. Therefore the counsel submitted that if this Court feel that the final report as such need not be quashed, this Court may at least quash the order taking cognizance because it is an order passed without application of mind.

5. The counsel for the 2^nd respondent and also the Public Prosecutor fairly conceded that there is a clear bar in Section 199 Cr.P.C. to take cognizance under Sections 500 and 501 IPC and therefore taking cognizance based on the final report submitted by the Police under and 501 is not sustainable. But the counsel for the 2^nd respondent submitted that, it is a clear case in which the offences under Section 354A and Section 120 (o) of the Kerala Police Act are attracted. The Public Prosecutor also supported the same.

6. This Court considered the contentions of the petitioner and the respondents. As submitted by both sides, the learned Magistrate erred in taking cognizance under Sections 500 and 501 IPC based on a Police report in the light of the prohibition under Section 199 Cr.P.C. Therefore taking cognizance under and 501 is to be set aside.

7. What remains is Section 354A IPC and Section 120 (o) of the KP Act. The first contention of the counsel for the petitioner is that since the learned Magistrate has taken cognizance even for Sections 500 and 501 , that itself shows that the learned Magistrate has not applied his mind and therefore taking cognizance as such may be set aside for all the offences. I cannot agree with the same. If the learned Magistrate took cognizance for different offences in an order and if this Court found that taking cognizance as far as some of the offences concerned are bad, this Court need not set aside the order taking cognizance