C. Rajan v. State of Kerala and Sajeevan M.K. (CRL.M.C.No.5472 of 2016, Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 21ST DAY OF MARCH 2017/30TH PHALGUNA, 1938** **Crl.MC.No. 5472 of 2016 () ---------------------------** **AGAINST THE ORDER/JUDGMENT IN CC 366/2016 OF THE CHIEF JUDICIAL MAGISTRATE,THALASSERY CRIME NO. 1097/2015 OF CHAKKARAKKALLU POLICE SATION , KANNUR** **PETITIONER(S)/ACCUSED:-:** **-----------------------** **C.RAJAN, AGED 66 YEARS, S/O.CHANDU, CHANDROTH HOUSE, MACHERY, MOWANCHERY P.O., KANNUR DISTRICT, PIN - 670 613.** **BY ADVS.SRI.ABU MATHEW SRI.AJU MATHEW** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND DEFACTO COMPLAINANT:-:** **-----------------------------------------------------------------** **1. STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, CHAKKARAKKALLU POLICE STATION, KANNUR DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** **2. SAJEEVAN M.K., AGED 47 YEARS, S/O.GOVINDAN, KANHARAKKANDY HOUSE, MACHERY, MOWANCHERY P.O., KANNUR DISTRICT, PIN - 670 613.** **R2 BY ADV. SRI.I.V.PRAMOD R1 BY ADV.SRI.M.R.DHANIL, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16.2.2017,THE COURT ON 21.3.2017 PASSED THE FOLLOWING:** **Crl.MC.No. 5472 of 2016 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------ANNEXURE A1. TRUE COPY OF THE FIR IN CRIME NO.1097 OF 2015 OF CHAKKARAKKALLU POLICE STATION ALONG WITH COMPLAINT FILED BY THE PETITIONER.** **ANNEXURE A2. TRUE COPY OF THE FINAL REPORT DATED 06.12.2015 IN C.C.NO.122 OF 2016 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY.** **ANNEXURE A3. CERTIFIED COPY OF THE FIR IN CRIME NO.69 OF 2016 OF CHAKKARAKKALLU POLICE STATION ALONG WITH COMPLAINT IN C.M.P.NO. 114 OF 2016 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT,THALASSERY.** **ANNEXURE A4. CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.366 OF 2016 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **TRUE COPY** **SKS** **P.A TO JUDGE** ## **A.M.BABU, J.** ------------------------------ CRL.M.C.NO.5472 OF 2016 -----------------------------Dated 21[st] March, 2017 ## **ORDER** Petitioner is the accused in CC 366/2016. The case is pending before the Court of the Chief Judicial Magistrate, Thalassery. The petitioner seeks to quash the final report in that case. The relief is sought under Sec.482 of Cr.P.C. 2. The petitioner is a licensee of a ration shop. From that shop only the second respondent purchases rationed articles. A dispute arose between them in relation to the ration card of the second respondent. An incident occurred at 5.30p.m on 7.11.2015 at the premises of the ration shop. The petitioner gave first information statement on the same day. Annex-A1 first information report was registered against the second respondent under Secs 294 (b) and 324 of IPC. Annex-A2 final report was filed after completing investigation. Cognizance was taken by the learned Chief Judicial Magistrate. The case was numbered CC 122/2016. The second respondent, in the mean time, moved a 2 CRL.M.C.NO.5472 OF 2016 complaint before the Chief Judicial Magistrate. The complaint was forwarded to the local station house officer under Sec.156(3) of Cr.P.C. The station house officer, on receipt of the complaint, registered annex-A3 first information report against the petitioner under Secs 323 and 341 of IPC. Annex-A4 final report was filed. The learned Chief Judicial Magistrate took cognizance against the petitioner. That case is CC 366/2016. Admitted facts are stated above. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 4. Annex-A4 final report is sought to be quashed. The petitioner has taken different grounds to get it quashed. Those grounds are (i) the allegations against the petitioner in annex-A3 FIR and annex-A4 final report are false, (ii) the complaint which led to the registration of annex-A3 FIR was highly belated, (iii) such a belated complaint should not have been forwarded under Sec.156(3) of Cr.P.C, (iv) the complaint was forwarded without complying with the direction issued by the Supreme Court of India, (v) the 3 CRL.M.C.NO.5472 OF 2016 station house officer registered the FIR on receipt of the complaint without conducting any inquiry or investigation, (vi) the investigating officer filed annex-A4 final report without considering annex-A1 FIR and annex-A2 final report and (vii) cognizance was taken by the Chief Judicial Magistrate upon annex-A4 final report without any evidence against the petitioner. The grounds are taken in the memorandum of Crl.M.C not in the above order. But the grounds will be considered in this order in the above order. 5. Ground no.(i). An incident admittedly had taken place at 5.30p.m on 7.11.2015. There are two versions about the incident. The petitioner contends that his version is true and the other version is false. Which is true and which is false are not matters which can be decided in a proceedings under Sec.482 of Cr.P.C. Therefore ground no. (i) is not impressive. 6. Ground nos(ii) and (iii). The incident was on 7.11.2015. The complaint against the petitioner was filed only on 14.1.2016. There was indeed delay in filing the complaint. The complaint is a part of annex-A3 FIR. There 4 CRL.M.C.NO.5472 OF 2016 are allegations in the complaint against the petitioner for a Magistrate either to forward it under Sec.156(3) of Cr.P.C or to take cognizance and proceed under Chapter XV of Cr.P.C. The delay in filing the complaint was explained in the complaint itself. It is stated therein that the police did not take any action against the petitioner, despite the information given by the second respondent, as the petitioner had political support. The explanation may be true or false. That too is not a matter for this court to inquire into in a proceedings under Sec.482 Cr.P.C. It is a matter for the trial court to consider after collection of evidence. Annex-A4 final report is not liable to be quashed on grounds (ii) and (iii) 7. Ground no.(iv). The Supreme Court holds that magistrates should insist on an affidavit of the complainant before forwarding the complaint under Sec.156(3) of Cr.P.C. The decision is **Priyanka Srivasthava vs. State of Uttar Pradesh ((2015) 6 SCC 287).** The petitioner alleges that the second respondent did not file an affidavit. It appears that the decision of the Supreme Court did not come to the 5 CRL.M.C.NO.5472 OF 2016 notice of the learned Chief Judicial Magistrate when he forwarded the complaint. The failure to file an affidavit does not appear to be that grave so as to visit with the dire consequence of quashing the entire proceedings in CC 366/2016. No prejudice is stated to have been caused to the petitioner by reason of the failure to file an affidavit in support of the allegations in the complaint. Ground no.(iv) too is not sufficient to quash the proceedings. 8. Ground no.(v). The learned Chief Judicial Magistrate forwarded the complaint under Sec.156 (3) Cr.P.C specifically directing the station house officer to register a case and conduct investigation. Sec.156(3) Cr.P.C empowers magistrates who are empowered under Sec.190 Cr.P.C to order an investigation as mentioned in Sec.156(1) Cr.P.C. The station house officer who receives a complaint forwarded to him under Sec.156 (3) Cr.P.C has no freedom or discretion to refrain from registering a case or conducting investigation. He cannot conduct any inquiry or investigation to decide whether a case should be registered or not. He is duty bound to register a case on receipt of a complaint 6 CRL.M.C.NO.5472 OF 2016 forwarded under Sec.156(3) Cr.P.C and then conduct investigation. Ground no.(v) also goes. 9. Ground nos(vi) and (vii). These are vague grounds. Statements of witnesses recorded under Sec.161 Cr.P.C shall be part of the final report (see Sec.173 (5) Cr.P.C). The petitioner suppressed those statements. He should have produced those statements to substantiate his contention that there was no material to charge him and take cognizance against him. Ground nos (vi) and (vii) are also without any merit. 10. The Crl.M.C fails. It deserves only dismissal. Dismissed. sks/16.3.2017 **A.M.BABU Judge**