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Shafeek vs Inspector Of Police on 27 February, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

WEDNESDAY,THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940

Crl.MC.No. 1416 of 2019

AGAINST THE ORDER/JUDGMENT IN CMP 3082/2018 of JUDICIAL MAGISTRATE
OF FIRST CLASS, PONNANI

PETITIONER/S:

SHAFEEK
AGED 40 YEARS
S/O ABDUL SALAM,THEKKEPARAMBIL
HOUSE,KOLLENPADI,PONNANI.PO-679577,
MALAPPURAM DISTRICT.

BY SHAFEEK(PARTY IN PERSON)

RESPONDENTS/STATE:

1 INSPECTOR OF POLICE, PONNANI POLICE STATION
PONNANI POLICE STATION,MALAPPURAM DIST,
KERALA,PIN-679584.

2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM,KOCHI-682031.

BY SR. PUBLIC PROSECUTOR SRI AMJAD ALI

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
27.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 1416 of 2019

2

ORDER

The petitioner herein is the complainant in C.M.P.No.3082

of 2018 on the file of the Judicial Magistrate of the First Class,

Ponnani. The said petition was filed under Section 156(3) of the

Cr.P.C with a prayer to order police investigation in respect of an

alleged act of assault committed on the petitioner by the family

members of his wife.

2. According to the petitioner, criminal proceedings inter alia

under Section 498A of the IPC and under the provisions of the

Protection of Women from Domestic Violence Act, 2005 were

initiated against him by his wife. He challenged the same before the

Hon’ble Supreme Court and by separate orders the proceedings

were quashed.

3. According to the petitioner, during the pendency of the

proceedings, as notice could not be served on the respondents, the

Apex Court permitted notice by Dasti Service and he was ordered to

file affidavit of service as per Annexure-A2 order. He went to the

residence of his wife to serve notice as serving officer. On 13.7.2018

at 4.45 pm, he was wrongfully restrained and was subjected to
Crl.MC.No. 1416 of 2019

3

brutal assault by a group of persons. On hearing the news that the

petitioner was lying near the house of his wife without clothes, his

mother went there with a shirt. She was subjected to assault by the

wife of the petitioner, her father and brother. This incident had taken

place at at 5.15 p.m. on the same day. The petitioner and his

mother were admitted in the same hospital and the police were

intimated. They recorded the statement of his mother and

registered a crime. However, the police ignored the petitioner and

refused to record his statement or register a crime at his instance.

4. According to the petitioner, his mother was not present at

the spot at 4.15 pm when he was subjected to assault. Since both

the acts were distinct and separate, the police were bound to

register separate crimes. When the petitioner was assaulted, several

others had taken part in the incident. Left with no alternative, he

approached the learned Magistrate and requested that an

investigation be ordered by the police. A report was called for by the

learned Magistrate on 18.7.2018 to ascertain whether a crime had

been registered. On 21.7.2018, the case was taken up even in the

absence of the petitioner and without even hearing him, accepted

the statement of the police that a crime had already been registered
Crl.MC.No. 1416 of 2019

4

and closed the matter. The said order is under challenge.

5. Heard the petitioner, who argued the matter in-person. I

have also heard the learned Public Prosecutor.

6. Having considered the submissions, I am of the view that

gross injustice has been done to the petitioner by closing the

matter. In the report filed before the learned Magistrate by the

Station House officer, it was mentioned that an FIR had already

been registered. This was accepted by the court below and the CMP

was closed. The learned Magistrate ought to have granted an

opportunity to the petitioner to clarify the issue involved.

7. For the aforementioned reasons, I am not able to sustain

the order passed by the learned Magistrate. I quash the same. The

learned Magistrate is directed to take back the complaint on file and

proceed in accordance with law. The petitioner shall appear before

the learned Magistrate on 11.03.2019.

This petition is disposed of as above.

Sd/-

RAJA VIJAYARAGHAVAN V.,
JUDGE

avs
Crl.MC.No. 1416 of 2019

5

APPENDIX
PETITIONER’S/S EXHIBITS:

ANNEXURE A1 TRUE COPY OF THE ORDER OF HON.SUPREME
COURT OF INDIA IN THE SLP.CRL 1885/2018
(CRL.APL.1364/2018),IN THE MATTER OF
SHAFEEK V/S STATE OF KERALA, ORDER DATED
12.11.2018.

ANNEXURE A2 TRUE COPY OF THE ORDER OF HON.SUPREME
COURT OF INDIA,DATED 02.07.2018,THAT
ORDER SHOWS DASTI SERVICE IS PERMITTED.

ANNEXURE A3 TRUE COPY OF THE DASTI NOTICE OF THE
HON.SUPREME COURT IN THE MATTER OF SLP
CRL.1885/2018.

ANNEXURE A4 TRUE COPY OF THE LETTER OF ASST.REGISTRAR
OF HON.SUPREME COURT GIVEN TO SHAFEEK S/O
ABDUL SALAM,THEKKEPARAMBIL HOUSE,PONNANI.

ANNEXURE A5 TRUE COPY OF WOUND CERTIFICATE OF
SHAFEEK,DTD 14.07.2018, EDAPPAL HOSPITAL
PVT LTD.

ANNEXURE A6 TRUE COPY OF THE INTIMATION LETTER GIVEN
BY THE HOSPITAL AUTHORITIES TO THE POLICE
AS THIS PETITIONER/SHAFEEK IS BEING
TREATED IN I.P AS ALLEGE TO HAVE BEEN BY
NUMBER OF PERSONS.

ANNEXURE A7 TRUE COPY OF DISCHARGE CERTIFICCTE OF
SHAFEEK,DTD 08.08.2018,EDAPPAL HOSPITALS.

ANNEXURE A8 TRUE COPY OF COMPLAINT CMP 3082/2018
FILED BEFORE THE HON.JFCM COURT,PONNANI.

ANNEXURE A9 TRUE COPY OF THE ORDER OF HON.JFCM
COURT,PONNANI IN THE COMPLAINT CMP
NO.3082/2018,ORDER DATED 18.07.2018.
Crl.MC.No. 1416 of 2019

6

ANNEXURE A10 TRUE COPY OF FIR NO.290/2018 OF PONNANI
POLICE STATION,MALAPPURAM DIST.

ANNEXURE A11 TRUE COPY OF THE ORDER OF THE HON.HIGH
COURT OF KERALA IN CRL.M.C.8015/2018
WHICH ONE STAYED THE PROCEEDINGS IN FIR
290/2018.

ANNEXURE A12 CERTIFIED COPY OF THE DIARY EXTRACT OF
THE HON’JFCM COURT-PONNANI IN CMP
3082/2018.

ANNEXURE A13 TRUE COPY OF THE REPORT SUBMITTED BY THE
SI OF POLICE-PONNANI, BEFORE THE HON.JFCM
PONNANI AS A REPLY TO THE ORDER OF CMP
3082/2018.

ANNEXURE A14 TRUE COPY OF THE FIR 297/2018 WHICH IS
DOWNLOADED FROM THE SITE OF KERALA
POLICE.

ANNEXURE A15 TRUE COPY OF THE ORDER OF HON.JFCM
COURT,PONNANI IN THE COMPLAINT CMP
3082/2018,ORDER DATED 21.07.2018,AS CMP
CLOSED.

ANNEXURE A16 TRUE COPY OF THE JUDGMENT OF THE HON.

HIGH COURT OF KERALA IN THE WRIT APPEAL
71/2019,DATED 15.01.2019.

RESPONDENTS’S/S EXHIBITS:

NIL

avs //TRUE COPY// P.A TO JUDGE

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