A magistrate must consider police refer reports when taking cognizance of private complaints to ensure procedural fairness.

O R D E R

This Criminal Miscellaneous Case is filed to quash the proceedings in C.C.No.1460/2015 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam.

2. It is a private complaint filed by the 3rd respondent against the petitioners alleging offences punishable under Sections 454 , 379 r/w 34 IPC . The learned Magistrate taken cognizance for the offences under Section 379 r/w 34 . According to the petitioners, before filing the complaint, the police registered a case and referred the matter. The grievance of the petitioners is that, without considering the refer report, the learned Magistrate taken cognizance. Hence this Crl.M.C is filed.

3. Heard the learned counsel appearing for the petitioners, the learned counsel appearing for the

3rd respondent and the learned Public Prosecutor. 4. This Court perused the order taking cognizance which is produced as Annexure – A1. A perusal of Annexure – A1 would not show that the learned Magistrate has taken note of the refer report while taking cognizance in Annexure – A2 private complaint. It is settled by this Court in Parameshwaran Nair v. Surendran [ 2009 (1) KLT 794 ] that the learned Magistrate is bound to consider the refer report also while taking cognizance based on a private complaint. The relevant portion of the above judgment is extracted hereunder: “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 knowledge of or with reasonable diligence could not have brought forward in the previous proceedings is adduced. When this is the legal position, it is notlawful to the Magistrate to ignore the final report submitted by the police under Section 173 (2) of the Code. Magistrate is bound to consider the final report and decide which of the options available to him is to be exercised.”

5. Similarly in Kader v. State of Kerala [ 1999 (3) KLT 55 ], this Court considered the same point which is extracted hereunder:

“7. The Court noted that the scope of enquiry under S.202 is the ascertainment of the truth or falsity of the allegations made in the complaint on the materials placed by the complainant before the Court for the limited purpose of finding out whether the prima facie case for issue of process has been made out and for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. Nevertheless, the Court has a duty to protect the interest of the absent accused also because at the particular stage, the accused has no say in the matter and the matter is decided without notice to him. It is, therefore, open to the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent the accused therein from being called upon to face obviously frivolous complaint and to find what material there is to support the allegations made in the complaint. The Magistrate has a duty not only to bring to book a person or persons against whom grave allegations are made in the complaint but also to protect the interest of the absent accused in such matters. What all matters he should take into consideration to arrive at the conclusion that he should take cognizance of the offence, will depend upon the facts and circumstances of each case. He has necessarily to consider the allegations made in the complaint and the statement of the complainant recorded under S.200 Cr.P.C. as also of the witnesses examined under S.202 of the Cr.P.C. Along with that, he has also to consider the result of enquiry or investigation, if any, held by the police. It cannot be said that the said data is not an essential factor. The consideration of the materials under S.202 of the Cr.P.C. is not an