Amitha Razzak W/o Muhammed Shaafi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 3RD DAY OF SEPTEMBER 2013/12TH BHADRA, 1935** **Crl.Rev.Pet.No. 1157 of 2013 () --------------------------------** **CMP 374/2013 of ADDL.CHIEF JUDICIAL MAGISTRATE (EO), ERNAKULAM DATED 10-05-2013 CRIME NO. 1731/2012 OF ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM** ## **REVISION PETITIONER(S)/COMPLAINANT:** **-------------------------------------** **AMITHA RAZZAK W/O.MUHAMMED SHAAFI, 68/1406, A.C.S.ROAD KALOOR.P.O, ERNAKULAM-682017.** **BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.C.P.UDAYABHANU** ## **COMPLAINANT(S)/RESPONDENT:** **---------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI.LIJU.V.STEPHEN.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **stu** ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No.1157 of 2013** = = = = = = = = = = = = = = = Dated this the 3[rd] day of September, 2013 ## **O R D E R** The Revision petitioner is the defacto complainant in Crime No.1731/2012 of Ernakulam Town North Police Station. The revision petitioner lodged a complaint against her husband and his sister alleging commission and continuance of cruelty and criminal breach of trust constituting offences under Sec.498A, 403 and 406 of the Indian Penal Code to the SHO in writing on 24/09/2012. In support of the above allegations, two medical reports evidencing extreme cruelty that the revision petitioner had suffered also produced. It is alleged that the revision petitioner suffers reactive depression from the willful conduct of her husband and the second accused, his sister. The Station House Officer did not register the crime reported to him. The substance of the information was then submitted in writing to the Commissioner of Police on Crl.R.P.No.1157 of 2013 **==> picture [7 x 9] intentionally omitted <==** 28/09/2012. The Deputy Commissioner in charge of the Commissioner on 28/09/2012 ordered the SHO to register a crime and to investigate. At last, the SHO was constrained to register a crime under Section 498A IPC. At the time of investigation, 28 original documents were seized under mahazar and the statement of the complainant was recorded. The statements of the complainant's parents were also recorded. The statement of the Doctor who issued the medical certificates was also recorded. The complainant had provided the names of six persons acquainted with the facts and circumstances of the case but the SHO deliberately omitted to record the statements of the witnesses who are acquainted with the facts and circumstances of the case. In spite of the registration of the crime, cruelty continued in diverse ways. 2. According to the revision petitioner, the allegations in the complaint supported by the statements of the witnesses and the documents produced during the course of Crl.R.P.No.1157 of 2013 **==> picture [7 x 10] intentionally omitted <==** investigation disclose the offence alleged against the accused. Even though their investigation disclosed the offence alleged against the accused, the SHO filed a refer report stating that the allegations are mistake of facts. 3. While so, the revision petitioner filed a petition under Sec.156(3) of Cr.P.C seeking a direction to the SHO, North Police Station to file a report regarding the present status of the investigation in this case. In that petition, the revision petitioner had alleged that the Investigating Officer did not care to proceed against the accused in respect of the offences under Sec.403 and 406 IPC, though the petitioner had clearly stated in the complaint about the criminal breach of trust and misappropriation committed by the accused. It is also alleged that the Investigating Officer did not care to question the material witnesses and to collect the proper evidence relating to the offence alleged against the accused. In short, the grievance projected in that petition is that the investigation was Crl.R.P.No.1157 of 2013 **==> picture [7 x 9] intentionally omitted <==** conducted in a casual and unscientific manner. After considering the allegations raised in the petition, the learned Magistrate dismissed the petition relegating the petitioner to file a protest complaint and made an observation that such a course of proceedings is suitable and convenient in the facts and circumstances of the case. This order is challenged in this revision petition. 4. Shri.M.K.Damodharan, the learned senior counsel for the Revision petitioner submits that the learned Magistrate went wrong by proceeding in defiance with the settled legal position. The learned senior counsel drew my attention to the decision of a Bench of Supreme Court comprised of three judges reported in **Bhagwant Singh v. Commissioner of Police** [1985(2) SCC 537]. The learned counsel further pointed out that on receipt of the refer report, the Magistrate has three options only. 5. In view of the contention, the only question to be considered is whether there is any illegality or impropriety Crl.R.P.No.1157 of 2013 **==> picture [7 x 10] intentionally omitted <==** in the proceedings relegating the revision petitioner to file a protest complaint, on receipt of the refer report under Sec.173(2) of the Cr.P.C, stating that a protest complaint is more suitable and convenient to the complainant. 6. Let us examine the legal position well settled by the three-Judge Bench of the Apex Court in decision reported in **Bhagwant Singh v. Commissioner of Police and another** (1985(2) SCC 537), which held as follows: “Now, when the report forwarded by the officerin-charge of a police station to the Magistrate under Sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under Sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been Crl.R.P.No.1157 of 2013 6 committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under subsection (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced becaused the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is Crl.R.P.No.1157 of 2013 7 clearly recognised by the provisions contained in subsection (2) of Section 154, sub-section(2) of Section 157 and sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer-in-charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being beard so that he can make his submissions, to persuade the Magistrate to take cognizance of the offence and issue process.” 7. Going by the impugned order, it could be seen that apparently the learned Magistrate has not meticulously applied his mind to the contents of the report. The learned Chief Judicial Magistrate has not made any specific observation as to the allegations raised by the revision petitioner in the petition filed under Section 156(3) or to the findings arrived at by the Investigating Officer on the basis Crl.R.P.No.1157 of 2013 **==> picture [7 x 10] intentionally omitted <==** of the facts and circumstances revealed from the investigation. In view of the above decision, indisputably, it is incumbent up on the Magistrate to apply his mind on the report and to arrive at a finding adopting any of the three courses open to him as provided in the decision cited above. Here, the investigating officer has filed a refer report stating that the allegations against the accused are mistake of fact. So the learned Chief Judicial Magistrate was inclined to adopt one of the three courses given below. “He may accept the report and drop the proceedings or he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or he may direct further investigation to be made by the Police under Sec.156(3) Cr.P.C. require the Police to make a further report”. This decision is seen followed in **Minu Kumari and Another v. State of Bihar** [2006(4) SCC 359] and reiterated the above proposition. Crl.R.P.No.1157 of 2013 9 8. But, in the instant case, the learned Magistrate, without considering the report, relegated the revision petitioner to file a protest complaint and made an observation that such a course is suitable and convenient in the facts and circumstances of the case. I am unable to agree with the said observation also. It is true that protest complaint is a remedy available to the complainant whose complaint was refused as mistake of fact. It is to be remembered that investigation includes all proceedings under the code for collection of evidence and that machinery is available in the hands of police only. Needless to say, such evidence collected through the process of investigation by the Police would lead to a successful prosecution; when comparing with the scope of a protest complaint and that is why the complainants usually prefer reference to Police for investigation under section 156 (3), than an enquiry under Sec. 202 of the Cr.P.C. In the light of the decision referred above, certainly, the learned Chief Crl.R.P.No.1157 of 2013 10 Judicial Magistrate should have applied his mind on the contents of the report and ought to have adopted any of the three courses referred above. Therefore, I find that the impugned order is illegal and unsustainable under law. 9. Hence, I set aside the impugned order and the matter is remitted back to the Court of the Chief Judicial Magistrate (EO). The learned Magistrate is directed to consider the refer report on merits and pass orders in accordance with the Supreme Court decision. Needless to say, in compliance with the direction of the Supreme Court in the above decision, the parties shall be given an opportunity to address at the Bar on the refer report, before passing the order afresh. The revision petition is disposed of accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge. Crl.R.P.No.1157 of 2013 11 //True copy// P.A to Judge.