Crl.M.C. No.6252 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942** ## **Crl.MC.No.6252 OF 2018** **SC 499/2016 OF SESSIONS COURT, ERNAKULAM** ## **PETITIONERS/ACCUSED NOS.1 AND 2:** - **1 DR.JOSEPH FREEMAN MOTHA, AGED 57 YEARS, S/O.LESLIE MOTHA, MOTHA HOUSE, HOUSE NO.19/7, MULANKUZHI, MALAYATTOOR P.O., ERNAKULAM DISTRICT.** **2 SMT.MARY SUNI, AGED 52 YEARS, W/O.DR.JOSEPH FREEMAN MOTHA, MOTHA HOUSE, HOUSE NO.19/7, MULANKUZHI, MALAYATTOOR P.O., ERNAKULAM DISTRICT.** **BY ADVS. SRI.GEORGE SEBASTIAN SRI.ARUN LUCKOSE ABRAHAM** ## **RESPONDENTS/DEFACTO COMPLAINANT AND STATE:** - **1 SUDHA VIJAYAN, W/O.VIJAYAN, AMBADAN HOUSE, NEAR PRIMARY HEALTH CENTRE, THURAVOOR, THURAVOOR P.O., NEAR ANKAMALY, ERNAKULAM DISTRICT, PIN - 683 572.** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R1 BY ADV. SRI.ANANDAN PILLAI SRI.C.K.SURESH SPL GP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON** **08.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 Crl.M.C. No.6252 of 2018 ## **C.R.** ## **P.B.SURESH KUMAR, J.** **----------------------------------------------Crl M.C.No.6252 of 2018** **-----------------------------------------------** **Dated this the 8th day of September, 2020** ## **O R D E R** Annexure - D private complaint and all further proceedings thereon including S.C. No.499 of 2016 on the files of the Sessions Court, Ernakulam, are under challenge in this proceedings under Section 482 of the Code of Criminal Procedure (the Code). The petitioners who are husband and wife are the accused in Annexure - D private complaint as also in S.C. No.499 of 2016. 2. The first respondent belongs to a Scheduled Caste. The first respondent and the accused who are Government servants are residing in adjacent houses. On 08.06.2015, the first respondent gave an information to Angamaly Police alleging that the accused have insulted and humiliated her at her place of residence on 02.06.2015 by calling her caste name. A crime was accordingly registered by the police against the accused on the same day as 3 Crl.M.C. No.6252 of 2018 Crime No.1115 of 2015 for the offences punishable under Section 294(b) of the Indian Penal Code (the IPC) and Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act), as it stood then. While the investigation in the case was progressing, on 06.07.2015, the first respondent instituted Annexure - A private complaint before the Court of the Judicial Magistrate of the First Class, Angamaly. The allegation in the First Information Statement given by the first respondent, on the basis of which Crime No.1115 of 2015 was registered and the allegation in Annexure - A private complaint are one and the same. In Annexure - A private complaint, the first respondent did not, however, disclose the registration of Crime No.1115 of 2015 and the investigation conducted thereon. On 09.07.2015, the learned Magistrate forwarded Annexure - A private complaint to Angamaly Police for investigation, invoking the power under Section 156(3) of the Code. On the basis of the said direction, another crime was registered by Angamaly Police against the accused as Crime No.1302 of 2015. Annexure - B is the First Information Report in the said case. Having noticed that Crime No.1115 of 2015 has been registered on the same allegations and the investigation in the said case was progressing, Annexure - C closure report was filed by the Police in Annexure - B crime on 10.07.2015. On 30.07.2015, the first respondent filed Annexure - D private complaint before the very 4 Crl.M.C. No.6252 of 2018 same court alleging that Annexure - C closure report was filed without conducting any investigation. In Annexure - D private complaint also, there is no reference about Crime No.1115 of 2015 and the investigation conducted thereon. In Annexure - D private complaint, the court issued summons to the accused and committed the case for trial to the Special Court under Section 209(a) of the Code. Annexure - E is the order passed by the court in this regard on 13.06.2016. Pursuant to Annexure - E order, the Sessions Court took cognizance of the offences alleged in Annexure - D private complaint, viz, the offences punishable under Sections 3(1)(v), 3(1) (x) and 3(1)(xv) of the Act as it stood then, and issued summons to the petitioners. As noted, the petitioners are aggrieved by Annexure - D private complaint and all further proceedings thereon. 3. Heard the learned counsel for the petitioners, the learned counsel for the first respondent as also the learned Public Prosecutor. 4. The learned counsel for the petitioners contended that insofar it was disclosed in Annexure - C report that Annexure B case was closed in the light of Crime No.1115 of 2015 and the investigation thereon, the learned Magistrate ought to have ascertained the fate of the investigation in Crime No.1115 of 2015 before proceeding further with Annexure - D private complaint. According to the learned counsel, Annexure -E order being one Crl.M.C. No.6252 of 2018 5 issued without ascertaining the said fact, the same is unsustainable in law. It was also argued by the learned counsel that even otherwise, the allegations do not disclose any offence, particularly the offences punishable under the Act. 5. On being asked as to the fate of the investigation in Crime No.1115 of 2015, the learned Public Prosecutor submitted that a closure report has been filed in the said case also as early as on 08.09.2015 as it was found on investigation that the case is a false one. 6. The learned counsel for the first respondent submitted that the learned Magistrate was not precluded from entertaining Annexure - D private complaint on account of the investigation in Crime No. 1115 of 2015. Placing reliance on Rule 7(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (the Rules) as it stood then, the learned counsel also submitted that in so far as the investigation in Crime No.1115 of 2015 has not been completed within the time stipulated in the said Rule, the learned Magistrate cannot be found fault with for having entertained Annexure - D private complaint. 7. In reply to the submissions made by the learned counsel for the first respondent, the learned counsel for the petitioners pointed out that the first respondent has no case in Annexure - D private complaint that the investigation in Crime 6 Crl.M.C. No.6252 of 2018 No.1115 of 2015 has not been completed within the time stipulated in Rule 7(2) of the Rules. It was also pointed out by the learned counsel that there was no whisper even in Annexure - D private complaint about Crime No.1115 of 2015. 8. I have bestowed my attention to the contentions advanced by the learned counsel for the parties on either side. Insofar as Annexure - A private complaint was filed on the same allegations, on the basis of which Crime No.1115 of 2015 was registered, and in so far as the investigation in the said case was progressing, the police cannot be found fault with for having closed Annexure - B case, even though the same was one registered on the basis of the direction issued by the jurisdictional Magistrate under Section 156(3) of the Code, for the police is precluded from registering a second crime against the same accused on the same set of allegations [See **Thanchand and Others v. State of Rajasthan and Another** (1998 Crl.L.J. 3700)]. The question that arises for consideration, however, is as to whether the Magistrate was justified in committing Annexure - D private complaint for trial in terms of Annexure - E order. 9. No doubt, Section 190 of the Code empowers a Magistrate to take cognizance of any offence upon receiving a complaint of facts which constitute such offence. Section 210 of the Code, however, prescribes the procedure to be followed when there Crl.M.C. No.6252 of 2018 7 is a complaint case and police investigation in respect of the same offence. Section 210 of the Code reads thus: ## “ **210. 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. (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.” As noted, sub-section (1) of Section 210 of the Code precludes the Magistrate from proceeding with a complaint if he finds during the 8 Crl.M.C. No.6252 of 2018 course of the inquiry or trial 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 said sub-section also provides that in such situations, 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. Though the expression used in sub-section (1) of Section 210 is “offence”, the same has to be understood as the occurrence or transaction in which the offence has been committed. Similarly, the report which the Magistrate is required to obtain from the Police Officer conducting the investigation in terms of sub-section (1) of Section 210 is the final report of investigation, whether it be a positive one or a negative one. A reading of sub-sections (2) and (3) of Section 210 which prescribe as to the procedure to be followed by the Magistrate after obtaining the report under sub-section (1) of Section 210 indicates that the Magistrate can thereupon proceed with the complaint. In other words, if the Magistrate finds during the course of the inquiry or trial in a complaint 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 proceed with the complaint only after ascertaining the result of the investigation in the case registered by the police on the same allegations. It is, therefore, evident that the purpose of the Section is to ensure that 9 Crl.M.C. No.6252 of 2018 the inquiry or trial in a case instituted on a complaint and inquiry or trial on the basis of the police report in respect of the same incident do not proceed tangentially but proceed in tandem. To put it otherwise, if the police report affirms the case of the complainant and the Magistrate takes cognizance of the offence, the Magistrate can close the complaint as unnecessary. Similarly, if the police report negatives the case of the complainant and the Magistrate does not take cognizance of the offence, the Magistrate shall proceed with the inquiry or trial which was stayed by him. Likewise, if the police report affirms the case of the complainant only as regards one of the accused and if the Magistrate chooses to take cognizance of the offence as against him, the Magistrate shall proceed with the inquiry or trial which was stayed by him as regards the remaining accused in the complaint, as if both the cases were instituted on the police report, as clarified in sub-section (2). Similarly, if the police report does not relate to any accused in a complaint case, then also the Magistrate shall proceed with the inquiry or trial which was stayed by him, as clarified in sub-section (3). 10. Coming to the case on hand, since Annexure - D private complaint is one filed in the nature of a protest complaint on the premise that Annexure - C closure report was filed in Annexure - B crime without conducting any investigation, it was obligatory for the Magistrate to look into the question as to the manner in which 10 Crl.M.C. No.6252 of 2018 the investigation in Annexure - B crime was conducted and the reasons, on the basis of which Annexure - C closure report was filed. If the Magistrate had made an attempt to ascertain the aforesaid facts, the reasons, on the basis of which Annexure – C closure report was filed in Annexure - B crime would have straight away come to the notice of the Magistrate. The fact that there is no reference about Crime No.1115 of 2015 in Annexure - E order passed by the Magistrate is sufficient to infer that Annexure - E order was one passed without taking note of Annexure - C closure report. In other words, Annexure - E order is one passed without application of mind. Taking cognizance of an offence on a complaint or committing a complaint for trial to the Court of Session on the premise that the same is exclusively triable by the Court of Session, are powers to be exercised by the Magistrate with utmost care and caution and after due application of mind, for the same would have serious repercussions on the rights of the accused. When the Code insists that the Magistrate shall ascertain the status of the investigation, if investigation in respect of the same occurrence is progressing when the Magistrate proceed to exercise the power to take cognizance of an offence on a complaint or to commit a complaint for trial to the Court of Session, the Magistrate shall necessarily comply with the said procedure, or else, the resultant action would be vitiated. In the case on hand, the learned Magistrate could not comply with the 11 Crl.M.C. No.6252 of 2018 procedural requirements of sub-section (1) of Section 210 of the Code, as it did not apply mind while dealing with Annexure - D complaint. Needless to say that Annexure - E order is unsustainable in law. 11. Having regard to the totality of the facts and circumstances of the case, I am of the view that the Crl.M.C. can be disposed of directing the learned Magistrate to deal with Annexure - D complaint afresh, after taking into consideration, the closure report dated 08.09.2015 in Crime No.1115 of 2015. In the result, Crl.M.C. is disposed of setting aside Annexure - E order of the Magistrate, and directing the Magistrate to proceed with Annexure - D complaint afresh, having regard to the closure report in Crime No.1115 of 2015. Sd/- **P.B.SURESH KUMAR, JUDGE.** ## **YKB** 12 Crl.M.C. No.6252 of 2018 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A** **A TRUE COPY OF CMP NO. 939/2015 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ANKAMALY.** **ANNEXURE B A TRUE COPY OF THE FIR IN CRIME NO.1302/2015 OF ANKAMALY POLICE STATION.** **ANNEXURE C A TRUE COPY OF THE REFER REPORT IN CRIME NO.1302/2015.** ## **ANNEXURE D** **A CERTIFIED COPY OF THE CMP NO.1015/2015 OF THE JFCM COURT, ANKAMALY.** ## **ANNEXURE E** **A TRUE COPY OF THE ORDER OF COMMITTAL PASSED BY THE JFCM COURT, ANKAMALY DATED 13.06.2016.** ## **RESPONDENT'S/S EXHIBITS:** ## **NIL** ## **//TRUE COPY//** ## **PA TO JUDGE**