Crl.M.C Nos.1324 & 1352 of 2007, High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 Crl.MC.No. 1324 of 2007() ------------------------CC.113/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM ADVOCATE & NOTARY, S/O. LATE M.PRABHAKARAN PILLAI, KUMMAMPALLIL, GEETHANJALI NAGAR, VYTTILA P.O., MADASSERIL HOUSE, NEAR HOLY CROSS CONVENT, BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PUBLIC PROSECUTOR SRI.MANOJ P. KUNJACHAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/10/2011,ALONG WITH CRMC NO. 1352 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C.NO.1324/2007 ## APPENDIX PETITIONERS' ANNEXURES: ANNEXURE A: A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE STATE OF KERALA IN CRIME NO.1320/06 OF CENTRAL POLICE STATION, ERNAKULAM. - ANNEXURE B: A TRUE COPY OF THE MEMORANDUM OF W.P.(C).NO.30463/06 OF THE HON'BLE HIGH COURT OF KERALA FILED BY THE PETITIONERS. ANNEXURE C:A TRUE COPY OF FINAL REPORT UNDER SECTION 173 CR.P.C IN CRIME NO.1320/06 OF CENTRAL POLICE STATION. ANNEXURE E:TRUE COPY OF THE CR.M.P NO.1445/2007 DATED 20.4.2007 FILED BY THE 2ND PETITIONER BEFORE THE JFCM COURT-II, ERNAKULAM. RESPONDENT'S ANNEXURE:NIL ## **C.T. RAVIKUMAR, J.** **- -- - - -- - - - - - - -- - - - - - - - - - - - - - - -** ## **Crl.M.C Nos.1324 & 1352 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of October, 2011** ## **ORDER** Accused Nos.1 and 2 in C.C.113 of 2007 on the file of the Judicial First Class Magistrate Court-II, Ernakulam are the petitioners in the former criminal miscellaneous case and accused No.3 therein is the petitioner in the latter criminal miscellaneous case. They are indicted under sections 120 B and 211 of the Indian Penal Code. 2. The allegations in Annexure-A complaint in writing by the Assistant Commissioner of Police, Narcotic Cell, Kochi City who is the Investigating Officer in Crime No.1320 of 2006 of Central Police Station, Kochi City filed before the Judicial First Class Magistrate Court-II, Ernakulam are as follows:- The first petitioner who was the standing counsel for the Travancore Devawom Board in the High Court of Kerala was removed from the post at the instance of Sri.G.Raman Nair, the then President of the Travancore Devawom Board and on account of its animosity, the petitioners entered into a criminal conspiracy to implicate CW4 Sri.G. Raman Nair and his son as accused in a criminal case and with that motive, filed a criminal complaint before the Commissioner of Police, **Crl.M.C.1324 & 1352/07** 2 Kochi City. In the said criminal complaint, it is falsely alleged that CW1 Smt. Chandrika, at about 6.30 p.m on 4.10.2006 met the second petitioner in Crl.M.C.No.1324 of 2007/second accused and told her that she got something to discuss with and took second petitioner herein in a car assuring that she would be taken to her residence in that car after such discussion. It is further alleged that the second petitioner was taken to 'Kanchan Ganga Apartments' situated behind 'Luciya Food Court' Palarivattom. CWs 2 and 3 and four other unidentified persons were waiting there and they got into the same lift and the second petitioner was then, taken to Flat No.504. She was unlawfully detained there and severely manhandled and they forcibly took second petitioner's signature in certain blank papers under threat and coercion and a sum of Rs.500/was forcibly taken from her purse, it is further alleged. Later, at about 2.30 p.m, she was taken to her residence in another car. Based on the said complaint, carrying such allegations, by the second petitioner in Crl.M.C.No.1324 of 2007, Crime No.1320 of 2006 was registered in the Central Police Station, Ernakulam against one Harikrishnan, one Chandrika, one Muruka Das viz., CWs 2, 1 and 3 respectively in C.C 113 of 2007 and four other identifiable persons for offences punishable under Sections 120B, 143, 147, 294(b), 342, 323, 354, 506(i) and 384 read with **Crl.M.C.1324 & 1352/07** 3 149 IPC. F.I.R was then forwarded to Judicial First Class Magistrate Court-II, Ernakulam. The Assistant Commissioner of Police, Narcotic Cell, Kochi City who conducted investigation in the said crime filed a final report marked as Annexure-C in Crl.M.C.1324 of 2007, before the Judicial First Class Magistrate Court-II, Ernakulam. Annexure- C final report is a refer report to the effect that the said case is false. In the circumstances, the investigating officer in crime No.1320 of 2006 before the Judicial First Class Magistrate Court-II, Ernakulam filed Annexure-A complaint as well, along with Annexure-C refer report, alleging commission of offences under Sections 120B and 211 of the Indian Penal Code by the petitioners in the above criminal miscellaneous cases. Cognizance was taken thereon and it is taken to file as C.C.No.113 of 2007 under sections 120B and 211 of the Indian Penal Code. The above criminal miscellaneous cases have been filed in the said circumstances raising various contentions and mainly with the prayer to quash Annexure -A complaint, which is Annexure-D in the latter Crl.M.C. 3. I have heard the learned counsel for the petitioners and also the learned Public Prosecutor. 4. Quadruple contentions have been raised by the petitioners. The offences alleged against them are non-cognizable offences and **Crl.M.C.1324 & 1352/07** 4 therefore, firstly, it is contended that since they being congnizable offences, investigation could not have been conducted without the order of a Magistrate having power to try such cases or committed the case for trial. Thus, there is infraction of the provisions under section 155 of the Code of Criminal Procedure, it is contended. Secondly, it is contended that in terms of the provisions under Section 195(b)(i) and (iii) of the Code of Criminal Procedure, Annexure-A complaint is not maintainable. Thirdly, it is contended that the action on the part of the Magistrate in taking congnizance on Annexure-A complaint before accepting or rejecting Annexure-C final report is illegal and warranting interference. Lastly, it is contended that on Annexure-C refer report, notice was not issued to the informant as contemplated in law. Cognizance could be taken on a protest complaint. In fact, the Magistrate is not bound by the opinion formed by the Investigating Officer and the Magistrate can disagree with the findings in Annexure-C report as well, and take the view that there is sufficient ground for proceeding further and take cognizance and issue process. 5. As already noticed hereinbefore, the second petitioner in Crl.M.C.No.1324 of 2007 is the first informant in crime No.1320 of 2006 of Central Police Station, Kochi City whereon a final report under Section 173(2) of Code of Criminal Procedure viz., Annexure -C, referred as such **Crl.M.C.1324 & 1352/07** 5 in Crl.M.C.No.1324 of 2007, was submitted before the Judicial First Class Magistrate Court -II, Ernakulam. The learned counsel for the petitioner in Crl.M.C.No.1324 of 2007 submitted that no notice was issued to the second petitioner on Annexure-C refer report. At the same time, paragraph 7 of the Crl.M.C reads thus:- “On receipt of the notice on Annexure C the 2[nd] petitioner filed application praying for time for filing objection. Time is granted and thereafter it is extended from time to time and that is not so far expired. That is to say refer report evidenced by Annexure C is not so far accepted by the learned Magistrate. However, for abundant caution the 2[nd] petitioner filed a protest complaint making the very same allegations made in the F.I.S in Crime No.1320/06 before the court below.” 6. Obviously, the second petitioner has already filed Annexure-E protest complaint (Crl.M.P.No.1445/07) in Crime No.1320/06 of Central Police Station, before the Judicial First Class Magistrate Court-II, Ernakulam. What is relevant as regards these cases is that Annexure-C refer report is not yet accepted or rejected. Even then, Annexure- A complaint has been filed by the Investigating Officer in the above Crime No.1320/06 alleging commission of offences under sections 120 B and 211 of the Indian Penal Code against the petitioners in the above cases, for causing registration of crime No.1320 of 2006 under sections 120B, 143, 147, 294(b), 342, 323, 354, 506(i) and 384 read with 149 IPC and for **Crl.M.C.1324 & 1352/07** 6 causing conduct of an investigation. It is alleged that the petitioners have committed criminal conspiracy in respect of an offence punishable under section 211 of the Indian Penal Code. With respect to the entitlement of the informant in crime No.1320 of 2006 of Central Police Station, Kochi City, viz., the second petitioner in Crl.M.C.1324 of 2007 to a notice and hearing on Annexure- C refer report, there cannot be any dispute. In fact, the said position is settled by the decisions of this Court in _**Parameswaran Nair v. Surendran (2009) (1) KLT 794**_ and that of the Hon'ble apex court in Minu Kumari and another v. State of Bihar and others reported in _**(2004) 7 SCC 768**_ and _**2006(4) SCC 359**_ . The learned Public Prosecutor also submitted that as long as Annexure- C final report is a refer report, the first informant in crime No.1320 of 2006 viz., the second petitioner in Crl.M.C 1324 of 2007, is entitled to notice and hearing in the light of the aforesaid decisions of the Hon'ble Apex Court. The right of the second petitioner to file a protest complaint is also not in dispute. Admittedly, Annexure -C refer report has not so far been accepted or rejected by the court and that Annexure-E protest complaint is now pending consideration before the Judicial First Class Magistrate Court-II, Ernakulam. Since it is pending, I do not propose to consider the maintainability or otherwise of Annexure-E protest complaint, at this stage. But, the question is whether **Crl.M.C.1324 & 1352/07** 7 at this stage whether a complaint carrying allegation of commission of offence under Section 211 or even under section 182, I.P.C, would lie. As already noticed, a Magistrate is not bound by the opinion formed by the Investigating Officer. He may disagree with the findings in the report and take the view that there is sufficient ground for proceeding further and take cognizance and issue process. That apart, even if refer report is accepted that will not take away the power of the Magistrate to take cognizance on the protest complaint, subject to its maintainability and in accordance with law. I am adverting to these positions only to consider whether at this stage, that is, before, accepting or rejecting the final report under section 173(2) and before considering the protest complaint whether a charge of commission of offence under section 211, I.P.C would lie. In this case, admittedly, before the rejection or acceptance of the refer report, the investigating officer in Crime No.1320/06 has filed Annexure-A complaint alleging commission of offences under sections 120B and 211, I.P.C against the petitioners. There can be no doubt with respect to the position that the scope, if any, for a charge under section 211, I.P.C and of criminal conspiracy to commit the said offence in the circumstances, would depend upon the decision of the Magistrate on Annexure-C report as also on the protest complaint. If the Magistrate takes the decision to take cognizance **Crl.M.C.1324 & 1352/07** 8 of offence either on the original complaint or on a protest complaint, no charge under sections 120B and 211, I.P.C, on the allegations in Annexure-A would lie against the petitioners, at this stage. Therefore, the question is, before accepting or rejecting Annexure-C final report whether congnizance should have been taken on Annexure- A complaint filed by the Investigating Officer in Crime No.1320 of 2006 and taken it on file as C.C.No.113 of 2007. Certainly, the main question is whether Annexure-A complaint carrying allegation of commission of offences under Section 211 of the Indian Penal Code and a further allegation of criminal conspiracy to commit the said offence under Section 211, is maintainable. 7. As already noticed hereinbefore, Annexure -C refer report is yet to be accepted or rejected by the court. In the decision in _**Parameswaran Nair's case**_ (supra), this Court held that notice to the defacto complainant upon receipt of refer report is not an empty formality and that the complainant is having a right to be heard and also he could pursue the Magistrate to take congnizance on the protest complaint. In the decision in _**2006 (4) SCC 359 (supra)**_ , the Hon'ble apex court held that on submission of the police report under section 173(2), the informant is entitled to a notice and an opportunity of being heard at the time of consideration of the said report. When that be the position, there cannot be **Crl.M.C.1324 & 1352/07** 9 any doubt with respect to the position that the action in taking cognizance on Annexure-A wherein allegation of commission of offences under sections 120B and 211 of the Indian Penal Code is made for having caused registration of crime 1320 of 2006 of Central Police Station, Kochi City and investigation thereon, before considering Annexure-C refer report and taking a decision thereon, is illegal. Only if Annexure-C report is accepted, there is any scope for alleging commission of offences under Sections 120B and 211 of the Indian Penal Code against the petitioners in the facts and circumstances of the case. In other words, if it is not accepted, undoubtedly, there cannot be an allegation of commission of such offences against the petitioners. Now, I may deal with the contention regarding the very maintainability of Annexure- A complaint in the light of the provisions under section 195 of the Code of Criminal Procedure. 8. For a consideration of the said question, it is only proper and profitable to refer to Section 195, and it, to the extent it is relevant for the purpose of deciding this case, reads thus:- 195(1)-No Court shall take cognizance-- - (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both **Crl.M.C.1324 & 1352/07** 10 inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate] 9. A perusal of section 195 would reveal that it consists of three parts and the second part pertains to chapter XI of the Indian Penal Code that deals with the false evidence and offences against public justice. Section 195 limits the power of taking cognizance under section 190. Going by section 195(1)(b)(i) and (iii), no court shall take cognizance of an offence under section 211 as well when such offence is alleged to have been committed in or, or in relation to, any proceeding in any Court or of any criminal conspiracy to commit or attempt to commit or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii) thereof, except **Crl.M.C.1324 & 1352/07** 11 on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that court is subordinate. As already noticed hereinbefore, in this case, an F.I.R was registered and forwarded in Crime No.1320 of 2006 to the Judicial First Class Magistrate Court-II, Ernakulam and it is thereafter that Annexure-C report has been filed before that court. The Magistrate has not accepted or rejected the said refer report. In short, it is pending before that court. Annexure-E protest complaint is also pending before that court, going by the contention of the second petitioner in Crl.M.CNo.1324 of 2007. It is in this stage that alleging commission of offences under sections 120B and 211 of the Indian Penal Code against the petitioners the Investigating Officer in Crime No.1320 of 2006 filed Annexure-A complaint along with Annexure-C final report. In view of the said position obtained in these cases on hand, there cannot be any doubt with respect to the applicability of the provisions under section 195 of the Code of Criminal Procedure. The question is, whether cognizance should have been taken on Annexure -A complaint filed by the investigating officer in crime No.1320 of 2006 of the Central Police Station, Kochi City carrying a complaint regarding the allegation of offences under section 120B and 211 against the petitioners. Going by the second part of section **Crl.M.C.1324 & 1352/07** 12 195 as extracted above, no cognizance could be taken for any of the offences specified in sub-clause (i) or sub-clause (ii) of section 195(1) of the Code of Criminal Procedure, or of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subclause (i) or sub-clause(ii) except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf or of some other Court to which that Court is subordinate. Section 211, I.P.C is an offence specified in sub-clause (i) of section 195 (1) of the Code of Criminal Procedure. Admittedly, in this case, there is no complaint in writing by the Judicial First Class Magistrate Court-II, Ernakulam. So also, that court had not authorised in writing in that behalf to any of the officers of the Court. Obviously, cognizance was taken on Annexure- A complaint which was filed by the investigating officer in crime No.1320 of 2006. Annexure- A complaint would reveal that the allegation against the petitioners is that they have committed offences under sections 120B and 211 by causing registration of Crime No.1320 of 2006 and causing conduct of an investigation thereon. Evidently, the allegation of criminal conspiracy is in respect of commission of an offence under section 211. Filing Annexure-A complaint during the pendency of Annexure-C refer report by the investigating officer in crime No.1320 of **Crl.M.C.1324 & 1352/07** 13 2006 of Central Police Station, itself would amount to an attempt to assert by the police of a right to prejudge the matter before judicial determination as held in _**Ramdeo v. State of Rajasthan**_ reported in _**AIR 1962 Rajasthan 149**_ . In the circumstances, I have no hesitation to hold Annexure- A is not maintainable in the light of section 195(1)(b)(i) and (iii) of the Code of Criminal Procedure. Therefore, no congnizance should have been taken on Annexure-A complaint. I am fortified in my view by a decision of the Hon'ble Apex court in _**State of Punjab v. Brij Lal**_ ( _**AIR (1969) SCC 355)**_ . It is held thereunder by the Hon'ble Apex court that it is not open to a magistrate to take cognizance of any offence alleged to have been committed under sections 182, 193 or 211 of the Indian Penal Code unless there has been appropriate compliance with the provisions under section 195(1)(b) of the Code of Criminal Procedure. It is further held therein that prosecution for such offences could not continue for non-compliance of section 195(1)(b) of the Code of Criminal Procedure. Since the offence of criminal conspiracy, in these cases, is in respect of commission of offence under section 211 of the Indian Penal Code, it would fall under section 195 (1)(b)(iii). In the said circumstances, no purpose will be served by allowing continuance of prosecution on account of non-compliance with the provisions under section 195(1)(b) of the Code of Criminal Procedure. **Crl.M.C.1324 & 1352/07** 14 It is unnecessary to go in to the other contentions in the circumstances. Therefore, these are fit cases to invoke extraordinary jurisdiction under section 482 of the Code of Criminal Procedure. For the foregoing reasons, Annexure-A complaint in Crl.M.C.1324 of 2007 which is Annexure-D in Crl.M.C.No.1352 of 2007and all further proceedings based on AnnexureA/Annexure-D against the petitioners are quashed. The above criminal miscellaneous cases are accordingly allowed. **(C.T. RAVIKUMAR, JUDGE)** spc **Crl.M.C.1324 & 1352/07** 15 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **Crl.M.C.1324 & 1352/07** 16