PAILY AND OTHERS Vs. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, AND OTHERS

JUDGEMENT

(1.) Accused Nos.1 and 2 in C.C. No.1791 of 2011 before the Judicial First Class Magistrate Court-II, Cherthala have approached this Court under Section 482 Cr.P.C., 1973 seeking to quash Annexure-A1 complaint and further proceedings in C.C. in the above case.

(2.) Heard the learned counsel for the petitioners and the learned Public Prosecutor.

(3.) The complainant/2nd respondent initially filed Annexure-A2 complaint against the petitioners alleging that on 8.3.2009 at about 8 pm, they restrained the complainant and physically assaulted him with a common intention. It is alleged that thereby the accused were liable to be punished under Section 341 and 323 read with Section 34 IPC. The complaint was filed before the Judicial First Class Magistrate Court-II, Cherthala. It was referred under Section 156 (3) Cr.P.C., 1973 for investigation. After investigation, a final report was filed, referring the case as false. The final report (Annexure-A4) was filed before the Court on 15.6.2009. It is a well settled principle that the court has three options in such cases. The first option is that the court can accept the final report and close the case. Second option is to take cognizance on a negative report and proceed with the case and the third option is to send the matter for a further investigation by invoking Section 173 (8) Cr.P.C., 1973 In this case, the court has accepted the negative final report only on 28.9.2012. But, much before that, the complainant/2nd respondent filed Annexure-A1 compliant, alleging that on 9.8.2011, he got information that the Police referred the matter. In fact, Annexure-A1 complaint was filed before the Court has taken a decision on Annexure-A4 final report. It is further contended by the learned counsel for the petitioners that the complaint is not legally maintainable. This submission has to be accepted. The remedy of the aggrieved person for referring his complaint is to file a protest complaint and it can be done at the time when the court takes a decision on the final report. As mentioned above, the court has accepted the final report only on 28.9.2012, whereas Annexure-A1 complaint was filed on 12.8.2011. This cannot be treated as a protest complaint. Having regard to the facts and circumstances, I find that the court wrongly took cognizance on Annexure-A1 complaint and issued process. Therefore, the prayer in the petition is legally allowable. In the result, the petition is allowed. Annexure-A1 compliant and all other proceedings in C.C.No.1791 of 2011 before the Judicial First Class Magistrate Court-II, Cherthala are hereby quashed.