Magistrate Cannot Summon Accused In Silence: Kerala High Court Sets Aside Non-Speaking Order On Protest Complaint

“Order Must Reflect Why The Refer Report Is Not Accepted”, In a significant ruling on the duty of Magistrates while dealing with protest complaints, the Kerala High Court on 16/02/2026 held that when a police final report terms a complaint false, a Magistrate cannot take cognizance on a protest complaint without indicating, at least briefly, why he disagrees with the investigating officer.

Justice G. Girish set aside the order of the Judicial First Class Magistrate Court-III, Thrissur, which had taken cognizance under Section 406 read with Section 34 IPC against Fr. Jerome Cherussery and others, despite a refer report and an adverse Forensic Science Laboratory report. The High Court remanded the matter for fresh consideration with a direction that the Magistrate must pass a reasoned order reflecting application of mind.

The case arose from Crime No. 284/2007 of Viyyur Police Station and C.C. No. 4141/2017, where the petitioners were accused of criminal breach of trust and forgery.

Allegation Of Salary Misappropriation Through Blank Cheques

The de facto complainant, a former Trained Graduate Teacher at Devamatha CMI Public School, alleged that the Manager, Principal, Accountant and others had obtained signed blank cheques from him, withdrew his entire salary, and disbursed only a portion, thereby committing offences under Sections 406 and 465 IPC.

The complaint was forwarded under Section 156(3) Cr.P.C. for investigation. The police, after investigation, filed a refer report concluding that the allegations were false. Aggrieved, the complainant filed a protest complaint. Initially, the protest complaint was dismissed under Section 203 Cr.P.C., and even the Sessions Court declined interference.

On further challenge, the High Court remanded the matter for enquiry under Section 202 Cr.P.C. During the enquiry, the Magistrate obtained a report from the Regional Forensic Science Laboratory. Thereafter, by order dated 27.12.2017, the Magistrate took cognizance under Section 406 read with Section 34 IPC and issued summons.

The operative portion of the order simply stated, “There is sufficient ground to proceed against the accused u/s.406 IPC r/w.34 IPC… Issue summons.”

“Totally Silent As To Whether Refer Report Was Considered”

Justice G. Girish found the impugned order legally infirm. The Court observed that the Magistrate’s order was “totally silent as to whether the learned Magistrate had the occasion to take into consideration the findings of the Investigating Officer in the refer report.”

The High Court emphasized that when a protest complaint is filed against a final report stating that the complaint is false, the protest complaint must be treated as an objection to the acceptance of that report. If the Magistrate chooses to proceed under Section 204 Cr.P.C., the order must disclose, at least briefly, why the final report is not being accepted.

The Court observed, “It is always desirable that in the order, if it is one passed by him under Section 204 Cr.P.C., he shall briefly state the reason why the final report (refer report) is not accepted.”

Even if the order does not explicitly reject the refer report, the records must reveal that the Magistrate considered all relevant materials and applied his mind before concluding that sufficient grounds exist.

Silence On FSL Report: “Legal Infirmity”

A significant aspect of the case was that the allegation of forgery was subjected to forensic examination. The Regional Forensic Science Laboratory report did not support the allegation of forgery.

Despite this, the Magistrate proceeded against the accused for criminal breach of trust without discussing the impact of the FSL findings. The High Court noted that the order was silent as to why the Magistrate concluded that an offence under Section 406 IPC was made out “notwithstanding the fact that Annexure-C report of the Forensic Science Laboratory did not support the allegation of forgery.”

This failure, according to the Court, reflected lack of proper application of mind and vitiated the order.

Reliance On Parameswaran Nair v. Surendran

The Court relied on the decision in Parameswaran Nair v. Surendran and Another, 2009 (1) KHC 801, which had elaborately discussed the law laid down by the Supreme Court regarding the necessity of reflecting application of mind at the stage of taking cognizance.

While acknowledging that a detailed judgment is not required at the summoning stage, the Court reiterated that the order must indicate that the Magistrate considered the refer report and relevant materials before disagreeing with the investigating officer.

Order Set Aside, Matter Remanded

Finding no reason to sustain the non-speaking order, the High Court set aside the order dated 27.12.2017 taking the complaint on file and issuing summons.

The matter was remanded to the Judicial First Class Magistrate Court-III, Thrissur, with specific directions to reconsider the protest complaint afresh. The Magistrate was directed to consider the refer report, the materials relied on by the investigating officer, and the FSL report, and then decide whether the accused are liable to be proceeded against.

The Court made it clear that the fresh order “shall reflect the reasoning in brief as to why he agreed or disagreed with the findings of the Investigating Officer in the refer report.”

The judgment reinforces a critical procedural safeguard in criminal jurisprudence: a Magistrate cannot mechanically issue summons when the police have filed a final report declaring the complaint false. Even at the stage of cognizance, there must be visible application of mind, especially when forensic evidence and investigative findings favour the accused.

The ruling serves as a reminder that while the threshold for summoning is low, it is not perfunctory, and judicial orders must demonstrate consideration of material evidence and reasons for departure from investigative conclusions.

Date of Decision: 16/02/2026