K P HAMEED Vs. STATE OF KERALA

JUDGEMENT

(1.) In this petition filed under Sec. 482 Crl.P.C, the petitioners who are accused Nos.1 and 2 in C.C.No. 119 of 2004 on the file of the J.F.C.M. Malappuram for offences punishable under Sections 323, 341 and 506(1) read with Sec. 34 I.P.C, seek to quash the aforesaid proceedings before the Magistrate.

(2.) Adv. Sri. Sunil v. Mohammed, the learned counsel appearing for the petitioners/accused made the following submissions before me in support of his contentions:-

(3.) I am afraid that I cannot agree with the above submissions. The filing of a complaint or the initiation of criminal proceedings before a court and the taking cognizance of the offence or issuing process are distinct and different. So far as the complainant is concerned, as soon as he has filed a complaint before a competent court of law, he has done everything which is required to be done by him at that stage. Thereafter it is for the Magistrate to consider the matter, apply his mind and to take the appropriate decision of taking cognizance, issuing process or any other action which the law contemplates. The complainant has no control over the proceedings of the Magistrate. Due to various reasons it may not be possible for the court or the Magistrate to issue process or take cognizance. But the complainant cannot be penalized for such delay on the part of the court nor can he be non-suited for the failure or omission by the Magistrate in taking the appropriate action under the code. In a case where the complainant has approached the Court well within the time prescribed by law the proceedings cannot be abruptly terminated for the failure or omission on the part of the court in taking the above action prescribed by law. If the court were to penalize the complainant for no fault of his but for the delay or inaction on the part of the court itself, the court would be injuring the suitor for no fault of his, thereby attracting the maxim "actus curiae neminem gravabit" (an act of Court shall not prejudice any party). If section 468 were to be interpreted otherwise it may not survive the test of constitutionality when matched on the touchstone of Article 14 of the Constitution of India. (Vide Japani Sahoo v. Chandrasekhar Mohanti 2007 Crl. L.J. 4068 S.C.).