Crl.M.C. No. 2672 of 2019 (D), High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **Crl.MC.No.2672 OF 2019(D)** **CMP 3130/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS-III, KOTTAYAM CRIME NO.259/2019 OF KOTTAYAM WEST POLICE STATION, KOTTAYAM** ## **PETITIONERS/ACCUSED Nos.1 & 2:** **1 K.ANILKUMAR, AGED 49 YEARS, S/o KARUNAKARA PANICKER, SAUPARNIKA HOUSE, MUHAMMA P.O., ALAPPUZHA. 2 BEENA R NAIR, AGED 45 YEARS, W/o ANIL KUMAR, SAUPARNIKA HOUSE, MUHAMMA P.O., ALAPPUZHA.** **BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** **1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031, (CRIME NO 259/2019 OF KOTTAYAM WEST POLICE STATION, KOTTAYAM DISTRICT) 2 SHAJI K.V, AGED 50 YEARS, S/o VASU, KOTTARATHIL HOUSE, MARIATHURUTH KARA, AYMANAM VILLAGE, KOTTAYAM WEST, KOTTAYAM DISTRICT – 686 015** **R1 BY PUBLIC PROSECUTOR SRI. RAMESH CHAND R2 BY ADVS. SRI.C.S.MANILAL SRI.M.K.SUBHAKARAN SRI.SABU S.KALLARAMOOLA SRI.S.NIDHEESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.2672 of 2019 2 ## **CR** ## **ORDER** A second complaint by the defacto complainant referred under Section 156(3) Cr.P.C. for investigation without noticing the earlier complaint on the same set of facts and transaction and the cognizance taken thereof for the offence under Section 415, 420 r/w Section 34 IPC is under challenge on the ground of suppression of earlier complaint. It is submitted that it really amounts to abuse of process of the court and cannot be sustained and took support from the legal position laid down in **Priyanka Srivastava v. State of U.P. [2015 (2) KLT 451** (SC)], wherein the Apex Court observed that the practice of filing complaints in a routine manner without taking responsibility and reference of the same under Section 156(3) Cr.P.C. should be avoided and the Magistrate can in proper cases insist the complainant to file an affidavit in support of the allegations along with the complaint. The relevant portion of the said judgment is extracted below: _“27. In our considered opinion, a stage has come in this country, where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an_ Crl.M.C.No.2672 of 2019 3 _appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of the allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”_ Crl.M.C.No.2672 of 2019 4 2. The legal position so settled was followed by this Court in **Prasanth v. C.V.Kuriakose and Another (2020(4) KHC 795)** and **Kakkanattu Balagopalan Nair Deepu @ Deepu K.B. v. State of Kerala and Another (2017(1)KHC 862)** . 3. Apart from the requirement of filing an affidavit in support of the complaint, provisions are made under Section 210 Cr.P.C. to meet a situation wherein two parallel proceedings are initiated, i.e. a case instituted otherwise than on a police report (hereinafter referred to as complaint case) and an investigation by the police, which is in progress in relation to the offence, which is the subject matter of the complaint case. When it is brought to the notice of the Magistrate before whom the complaint case is pending, he shall stay its proceedings of enquiry or trial and call for a report on the matter from the police officer conducting the investigation. Section 210 Cr.P.C. is extracted below for reference: ## **Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.-** (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the - subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. Crl.M.C.No.2672 of 2019 5 (2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.” (emphasis supplied) 4. There is no scope for staying the investigation which is in progress except the further proceedings in the complaint case under Section 210 Cr.P.C.. An investigation by the police has been recognized as a separate proceedings so as to stay the enquiry or trial of complaint case till the completion of investigation by the Police. The section does not lay down any difference in its application based on whether the investigation was commenced before or after the institution of the complaint case. On the other hand, the words used “it is made to appear to the Magistrate during the course of enquiry or trial” would clearly suggest that an investigation which was commenced before or after the institution of the complaint case would be a valid ground to exhaust the remedy under Section 210 Cr.P.C. The section gives an exhaustive nature so as to invoke the power to stay its own proceedings irrespective of whether the investigation was commenced before or after the institution of complaint Crl.M.C.No.2672 of 2019 6 case. But, the investigation for the purpose of Section 210 Cr.P.C. must be understood with its validity and the ground which would attract Section 156 Cr.P.C. and it shall not be a ruse to stall the complaint case pending before a competent court. Hence, it is within the jurisdiction of the court wherein the complaint case is pending, to go into the question whether an investigation is validly commenced under Section 156 Cr.P.C. and that it is not a device or ruse to stall the complaint case, for which the Magistrate can certainly call for a report from the investigating agency and can even go into the details of investigation commenced and its progress. The said legal position is squarely applicable to a case wherein sanction under section 155 Cr.P.C. is required. The necessity to submit an affidavit along with the complaint is to make the complainant more responsible for the allegation levelled against and not for defeating a criminal proceedings validly initiated. The requirement of filing an affidavit along with the complaint must be understood in relation to the application of Section 210 Cr.P.C. and hence it shall not be a ground to quash or to set aside the complaint case or its further proceedings simply on the reason that it was initiated by suppressing the investigation by the police on the same set of facts, otherwise Section 210 Cr.P.C. would stand redundant to a large extent. The procedure to be followed is to stay the complaint case till the submission of final report. 5. Hence there will be a direction to the Magistrate to stay the Crl.M.C.No.2672 of 2019 7 proceedings in the complaint case till the submission of final report and call for a report from the police officer as envisaged under Section 210 Cr.P.C. The Crl.M.C. is accordingly disposed of. ## **Sd/-** **P.SOMARAJAN** **JUDGE** sv Crl.M.C.No.2672 of 2019 8 ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** ## **ANNEXURE-I** **CERTIFIED COPY OF THE COMPLAINT SEEMS TO HAVE BEEN FILED ON 19.2.2019 (CMP NO 821/19) BY THE 2ND RESPONDENT BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS-III, KOTTAYAM** **ANNEXURE-II CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO 259/2019 OF KOTTAYAM WEST POLICE STATION** - **ANNEXURE-III CERTIFIED COPY OF THE PROCEEDINGS SHEET IN CMP No. 821/2019 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-III, KOTTAYAM** - **ANNEXURE IV CERTIFIED COPY OF THE CMP NO 3130/18 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-III, KOTTAYAM** - **ANNEXURE V CERTIFIED COPY OF THE PROCEEDINGS SHEET IN CMP NO 3130/18 IS PRODUCED ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-III, KOTTAYAM.** **RESPONDENTS' ANNEXURE: NIL** **// TRUE COPY //** **P.A. TO JUDGE**