Crl.M.C.4582/2021 & Crl.M.C.4705/2021

Crl.M.C.4582 & 4705 of 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA, 1943 CRL.MC NO. 4582 OF 2021** **CMP 681/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PERUMBAVOOR PETITIONER/5TH ACCUSED** ADVOCATE SHERMAN.A.GEORGE AGED 53 YEARS, S/O.GEORGE, KAKKANATTU HOUSE, NO.4, KEETHI NAGAR, MUVATTUPUZHA.P.O,ERNAKULAM-686661. BY ADVS. A.RAJASIMHAN AYYAPPADAS V ## **RESPONDENTS/STATE AND ANOTHER** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 ADVOCATE K.P.WILSON, AGED 55 YEARS KOLENCHERIL VEEDU, KUTHUKUZHI.P.O, KOTHAMANGALAM, ERNAKULAM-686691. BY ADV SHRI.SAJJU.S., SENIOR P.P. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2.12.2021 ALONG WITH CRL.M.C.4705/2021, THE COURT ON 12.01.2022 PASSED THE FOLLOWING: Crl.M.C.4582 & 4705 of 2021 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA, 1943** **CRL.MC NO. 4705 OF 2021** **CMP 681/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PERUMBAVOOR PETITIONERS/3RD, 4TH AND 6TH ACCUSED** 1 ADV. V.M.BIJUKUMAR, AGED 46 YEARS S/O MADHAVAN NAIR, VAZHAPPILIYIL HOUSE, KUTHUKUZHY P.O, KOTHAMANGALAM, ERNAKULAM-686691. 2 ADV.PEEYUS A..KOTTAYAM AGED 53 YEARS S/O ANTONY, NO.3 ANCHORAGE, PALLIYIL LANE, OFF.FORESHORE ROAD, KOCHI-682016. 3 ADV.R.AJITHKUMAR, AGED 49 YEARS S/O RAMAN NAIR, ANANDBHAVAN, PAZHOOR, PIRAVOM P.O, MUVATTUPUZHA, ERNAKULAM-686664. BY ADVS. P.VIJAYA BHANU (SR.) SRUTHY N. BHAT HRITHWIK D. NAMBOOTHIRI ARJUN S BENEDICT AJMAL AHMED R. ## **RESPONDENTS/DE FACTO COMPLAINANT** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, Crl.M.C.4582 & 4705 of 2021 3 ERNAKULAM, COCHIN-682031. 2 STATION HOUSE OFFICER PERUMBAVOOR POLICE STATION, PERUMBAVOOR, ERNAKULAM, PIN-683542. 3 ADV.K.P.WILSON AGED 55 YEARS (S/O. NOT KNOWN TO PETITIONER), KOLENCHERRY HOUSE, KUTHUKUZHY P.O, KOTHAMANGALAM-686691 BY ADVS. SHRI.SAJJU.S., SENIOR G.P. SHAJI JOSEPH SRI.SAJJU.S SR PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2.12.2021 ALONG WITH 4582/2021, THE COURT ON 12.1.2022 PASSED THE FOLLOWING: Crl.M.C.4582 & 4705 of 2021 4 ## COMMON ORDER Dated : 12[th] January, 2022 1. Crl.M.C.4705/2021 & Crl.M.C.4582/2021 have been filed - seeking to quash complaint and consequent FIR in Crime No.1717/2021 of Perumbavoor police station in pursuance of the order of Judicial First Class Magistrate Court, Perumbavoor by forwarding complaint under Section 156(3) of the Code of Criminal Procedure, 1973. 2. Petitioners in Crl.M.C.4705/2021 are accused Nos.3, 4 and 6 and the petitioner in Crl.M.C.4582/2021 is accused No.5 in Crime No.1717/2021 of Perumbavoor police station. Since both Crl.M.Cs have been filed for quashing FIR in Crime No.1717/2021 of Perumbavoor police station both were heard together. 3. According to the petitioners they are practicing lawyers in various courts in Kerala State. Third Crl.M.C.4582 & 4705 of 2021 5 respondent in Crl.M.C.4705/2021 and 2[nd] respondent in Crl.M.C.4582/2021 is the de facto complainant, who will be referred as 3[rd] respondent hereinafter, is also a lawyer practicing at Kothamangalam. Third respondent filed a private complaint under Section 190 and 200 of the Code of Criminal Procedure, 1973 (in short the Code) as Crl.M.P.681/2021 before the Judicial First Class Magistrate Court-I, Perumbavoor. First accused is the father of the victim referred to in the complaint and second accused is alleged to be residing together with the first accused. The allegation in the complaint filed by the third respondent in brief is that, he is the counsel appearing for the wife of first accused Jayasree before the Family Court, Muvattupuzha and Magistrate court, Kothamangalam. First petitioner/third accused (hereinafter referred as third accused) is the counsel appearing for first and second accused before the Family Court, Muvattupuzha and Magistrate Court, Kothamangalam. Second petitioner/4[th] accused was the Crl.M.C.4582 & 4705 of 2021 6 counsel appearing for the first and second accused before the High Court for bail. 4. Petitioner in Crl.M.C.4582/2021/5[th] accused (hereinafter referred as 5[th] accused) and 3[rd] petitioner/6[th] accused including the 7[th] accused are friends of the 3[rd] and 4[th] accused. Under the influence of these accused, using the daughter of the first accused, a false complaint was lodged against the 3[rd] respondent and attempted to extract money from him. It is also alleged that, accused Nos. 3 to 7 are giving legal advice to the 1[st] and 2[nd] accused and they are acting as per their advice. The daughter of the 1[st] accused gave birth to a child on 5.2.2014 when she was 17 year old and utilising 1[st] and 2[nd] accused, extracted an amount of Rs.1 Crore from different persons, alleging paternity of the child born to the first accused and some of the influential persons at Kothamangalam sexually exploited her and one among them is the father of the child born to the victim. On the complaint of the daughter of the 1[st] accused, a Crl.M.C.4582 & 4705 of 2021 7 criminal case was registered against the 3[rd] respondent and his wife Jayasree, who is the mother of the victim, and the accused contacted the 3[rd] respondent and demanded money for withdrawing the case registered against him. But the 3[rd] respondent/de facto complainant did not accept such demand. On the basis of that allegation, 3[rd] respondent filed private complaint as Crl.M.P.681/2021 arraying petitioners as accused Nos.3, 4, 5 and 6 before the Judicial First Class Magistrate, Kothamangalam alleging offence punishable under Sections 376, 406, 420, 120B r/w 34 IPC. The copy of the complaint has been produced as Annexure-A1 in Crl.M.C.4705/2021. 5. According to the learned counsel for the petitioners, for the sole reason that the petitioners accepted the brief of the opposite party of the 3[rd] respondent, he became enmical towards them and in order to wreck vengeance against them, he filed Annexure-1 complaint with mala fide intention to defame and harass them. The Magistrate without applying judicial mind, in Crl.M.C.4582 & 4705 of 2021 8 blatant violation of mandatory procedure prescribed by the Apex Court in Priyanka Srivastava & Anr. v. State Of U.P.& Ors (2015 (6) SCC 287 = 2015 KHC 4244), forwarded the complaint under Section 156 (3) to the SHO and in pursuance of the same, Crime No.1717/2020 of Perumbavoor police station was registered against the petitioners and others. Copy of the FIR is produced as Annexure-A2. 3[rd] respondent has not even complained or alleged any overt act so as to attract the offence under Section 376 IPC against the petitioners. 6. It is also their contention that the reason for personal grudge for the 3[rd] respondent is that, Kothamangalam Bar Association initiated steps to expel the 3[rd] respondent from the membership of Association on the basis of complaint filed by the 3[rd] accused for lodging frivolous complaint against the Association members. In pursuance of the same, a general body of Kothamangalam Bar Association was convened in which a unanimous decision was taken to Crl.M.C.4582 & 4705 of 2021 9 expel the 3[rd] respondent from the membership of Kothamangalam Bar Association. The true copy of that minutes has been produced as Annexure-A3. It is further contended that the 4[th] accused appeared for the victim in Crl.M.C.5464/2013 filed by the 3[rd] respondent for quashing the FIR registered in Crime No.967/2013 of Kothamangalam police station for the offence punishable under Sections 23 and 34 of Juvenile Justice (Care and Protection of Children) Act, 1996 and Sections 7 and 8 of Protection of Children from Sexual Offences Act (PoCSO Act) and Section 354 and 354A of Indian Penal Code. That Crl.M.C has been dismissed as per Annexure-A4 judgment dated 14.11.2018. 4[th] accused filed vakalath for Adv.Girish Chandran who was the respondent in Crl.M.C.2680/2014 filed by the 3[rd] respondent to quash the private complaint filed by Adv.Girish Chandran in C.C.89/2014 against 3[rd] respondent before the Judicial First Class Magistrate, Kothamangalam for the offence punishable under Sections 499, 500, 501, 502 r/w 34 Crl.M.C.4582 & 4705 of 2021 10 IPC. It is further contended that 6[th] accused was the counsel appearing for Adv.Girish Chandran who filed private complaint against 3[rd] respondent in C.C.89/2014 on the file of Judicial First Class Magistrate Court, Kothamangalam. True copy of the complaint filed against the 3[rd] respondent in C.C.89/2014 has been produced as Annexure-5. 7. Notice was issued to the respondent. Sri.Saju S., Senior Public Prosecutor appeared on behalf of respondents 1 and 2. 3[rd] respondent appeared in person. Heard both sides. 8. It is vehemently contended by the counsel for the petitioners that even if the entire allegations in Annexure-A1 complaint is accepted in its entirety, it will not constitute any offence against the petitioners. Solely because the petitioners happened to accept the brief of the opponent of the 3[rd] respondent, Annexure-A1 complaint has been filed against them. It is further contended that the 3[rd] respondent has no locus standi to file a private Crl.M.C.4582 & 4705 of 2021 11 complaint alleging that there is threat to the life of the victim who is the accused in S.C.462/2015 on the file of Additional District and Sessions Court (For the trial of cases relating to atrocities and sexual violence against Women and Children), Muvattupuzha. True copy of the final report in S.C.462/2015 is produced as Annexure-A8. It is also his contention that even as per the allegation in Annexure-A1 complaint, crime is committed within the jurisdiction of Kothamangalam police station with mala fide intention, without filing the complaint before the jurisdictional Magistrate Court at Kothamangalam, 3[rd] respondent filed complaint before the Judicial First Class Magistrate Court-I, Perumbavoor. In short, according to the counsel, the complaint filed against the petitioners as well as the crime registered against them, is in absolute disregard of settled principles of law and hence is liable to be quashed. 9. 3[rd] respondent strongly supports the registration of Crl.M.C.4582 & 4705 of 2021 12 crime and the allegations in the complaint. According to him, the filing of the complaint and registration of the crime against the petitioners is perfectly in compliance with the procedures prescribed under law and hence, there is no reason whatsoever to quash the complaint and the FIR. 10. The powers under Section 482 Cr.P.C can be exercised by this Court to prevent abuse of process of court or otherwise to secure the ends of justice. The situations where this court can exercise jurisdiction under Section 482 is also no more res integra. 11. Before going to the factual aspects, it is apposite to discuss the position of law in this regard. It is relevant to quote State of Karnataka v. L.Muniswamy (AIR 1977 SC 1489) wherein it has been held that, the High Court is entitled to quash the proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of Crl.M.C.4582 & 4705 of 2021 13 justice require it. 12. In Gorige Pentaiah v. State of A.P. ((2008) 12 SCC 531) it has been held by the Apex Court while dealing with Section 482 that if any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. 13. The Apex Court had given guidelines in the context of exercising powers under Section 482 Cr.P.C/Article 226 of the Constitution of India in State of Haryana and Others v. Ch.Bhajan Lal and Others (AIR 1992 SC 604 = 1992 SCC (Cri) 426) and paragraphs No.104 is relevant which reads thus : In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have Crl.M.C.4582 & 4705 of 2021 14 extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as Crl.M.C.4582 & 4705 of 2021 15 contemplated under Section 155(2) of the Code 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 14. The learned counsel for the petitioners in this context relied on M/s Neeharika Infrastructure Pvt. Ltd. v.State of Maharashtra and others (AIR 2021 SC 1918 = 2021 (3) KHC 25). In that case, the principal issue was whether the High Court would be justified in passing interim order either staying Crl.M.C.4582 & 4705 of 2021 16 further investigation in the FIR/complaint or interim order in the nature of “no coercive steps” and/or not to arrest the accused either pending investigation by the police/investigating agency or during the pendency of the question quashing the petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India, pending before the High Court. While considering that issue, the law on the exercise of powers by the High Court under Section 482 Cr.P.C or under Article 226 of the Constitution of India to quash the FIR/complaint and the parameters of exercise of such powers and get all the power by the High Court under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India are required to be referred as the very parameters which are required to be applied while quashing the FIR, will also be applicable while granting an interim stay/protection. Paragraph 7.3 to (7) is highlighted by the learned counsel which read as follows :- Crl.M.C.4582 & 4705 of 2021 17 “7.3 Then comes the celebrated decision of this Court in the case of Bhajan Lal (supra). In the said decision, this Court considered in detail the scope of the High Court powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed: “102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- Crl.M.C.4582 & 4705 of 2021 18 cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 15. So from the above settled principles, it can be concluded where criminal proceeding is manifestly attended with mala fides or when the allegations in the FIR and other materials accompanying the FIR do not disclose a cognizable offence justifying an Crl.M.C.4582 & 4705 of 2021 19 investigation or whether the proceeding is maliciously instituted with ulterior motive for wrecking vengeance on the accused due to private or personal grudge etc, this Court would be justified in exercising the jurisdiction vested under Section 482 Cr.P.C. 16. Annexure-A1 would reveal that the petitioners are the Advocates appearing for the opposite party to the case filed by the 3[rd] respondent before the Family Court, before the High Court and 6[th] accused who is alleged to be a friend of accused Nos.3 and 4 is also an Advocate. It is their specific contention that, solely for the reason that they have accepted the brief of the opposite party of the de facto complainant in the legal proceedings, the 3[rd] respondent became enmical and to wreck vengeance, Annexure-A1 complaint has been filed which resulted in the registration of FIR. It is also their specific contention that without proper application of mind and in violation of the mandates of the Apex Court in 20 Crl.M.C.4582 & 4705 of 2021 Priyanka Srivastava's case, the complaint was forwarded by the Magistrate under Section 156(3) of the Code. 17. In paragraph 6 of the complaint itself, it has been specifically alleged that accused 3 to 7 are the advisers and Advocates of accused Nos.1 and 2 and it is as per their advice that accused 1 and 2 are acting. It is also alleged that on several occasions, accused persons approached the 3[rd] respondent and pressurized him to withdraw the complaint filed by the minor victim and attempted to grab money. It is further alleged that at the instigation and conspiracy of accused Nos.3 to 7, accused 1 and 2 came to the house of the 3[rd] respondent on several occasions and 3[rd] respondent was baselessly made as accused in the cases. Accordingly accused have committed the offence under Sections 406, 420, 120B, 376 r/w 34 IPC. But apart from the bald allegation, no materials are produced and no witnesses were also cited to substantiate the allegations made against Crl.M.C.4582 & 4705 of 2021 21 the petitioners. 18. It is in this context, that contention of the learned counsel for the petitioners based on Priyanka Srivastava's case assumes importance. That was a case in which the complainant/3rd respondent in that case availed housing loan from a financial institution using the loan account in the name of de facto complainant and his wife. Consequent to the default in payment of instalments, proceedings under Section 13(2) of the Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated. 19. While disposing the matter, in paragraph 27, the Apex Court had given certain guidelines while dealing with applications under Section 156(3) Cr.P.C by the Magistrate which is relevant in this context to be quoted which reads as follows :- “Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue Crl.M.C.4582 & 4705 of 2021 22 directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.” 20. In the present case, even if the averments in the complaint is accepted in its entirety, there is no material prima facie to substantiate the allegations in the complaint as against the petitioners. They are only advocates appeared for the opposite party of the 3[rd] respondent before the Courts of law . So also, there is nothing to indicate in the complaint that he has complied Section 154(1) of the Code since there is no averments in the complaint that he has given any information relating to the commission of offence, either orally or in writing, to the officerin-charge of police station. Only on refusal on the Crl.M.C.4582 & 4705 of 2021 23 part of the SHO concerned, the aggrieved person as per sub-section (3), empowered to send the substance of the information either in writing or by post to the Superintendent of Police concerned. Here the averments in the complaint would not reveal that he has filed any complaint before the SHO. Paragraph No.8 of the complaint only says about filing of complaint before the Dy.S.P., Chief Minister etc. So there is non compliance of Section 154 (1) and (3) of Cr.P.C. There is a specific direction by the Apex Court in Priyanka Srivastava that there has to be prior applications under section 154(1) and 154(3) while filing petitions under section 156(3) and both the aspects should be spelt out in the complaint and necessary documents to that effect should be filed. In Annexure A1 there is no reference with regard to the compliance of section 154(1) and no document also attached with the Annexure A1 with respect to that. There is reference with regard to the complaint filed to Dy.S.P.,and S. P. and chief minister. So there is Crl.M.C.4582 & 4705 of 2021 ## 24 non compliance of Section 154(1) & 154(3). That has been insisted by the Apex Court to make the applicants more conscious and to see that no false complaint is made. 21. The learned counsel for the petitioners also relied on Anil Kumar v. M.K.Aiyappa (2013 (10) SCC 705 = 2013 (4) KLT 125= 2013 (4) KLJ 370 = 2013 KHC 4790) . In that case, the question arose whether the Special Judge/Magistrate can refer the matter under Section 156(3) of the Code for investigation against a public servant with out authority or sanction order and it was held that once it is noticed that there was no previous sanction the Special Judge/Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) of the Code. Paragraph 8 of the said judgment is relevant to be extracted which reads as follows :- “We may first examine whether the Magistrate, while exercising his powers under Section 156(3) Cr.P.C., Crl.M.C.4582 & 4705 of 2021 25 could act in a mechanical or casual manner and go on with the complaint after getting the report. The scope of the above mentioned provision came up for consideration before this Court in several cases. This Court in Maksud Saiyed case (supra) examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.” 22. From the above, it is clear that the application of mind by the Magistrate before exercising the Crl.M.C.4582 & 4705 of 2021 26 jurisdiction under Section 156(3) is mandatory and the application of mind by the Magistrate should be reflected in the order. 23. In Asha v. P.K.Joseph and Another (2019 (3) KLT 13 = 2019 (3) KHC 219) a learned Single Judge of this Court while dealing with the scope of Section 156 (3) of the Code emphasized the duty of the court to protect the interest of the respondent/accused also at the time of conducting enquiry or forwarding the complaint to the police for investigation. Paragraph Nos.29 and 30 of the said judgment are relevant in this context which read as follows :- “29. When a complaint alleging commission of a cognizable offence is received by the Magistrate, he has two options. He may either apply his mind for the purpose of proceeding under Section 200 of the Code and the succeeding sections or he may pass an order under Section 156(3) of the Code for investigation by the police. An order made under Section 156(3) of the Code is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). A complaint disclosing cognizable offence may well justify a Crl.M.C.4582 & 4705 of 2021 27 Magistrate in sending it under Section 156(3) of the Code to the police for investigation. Normally, a Magistrate may not proceed to examine the complainant under Section 200 and proceed to conduct enquiry under Section 202 of the Code. It Crl.M.C.No.11/2015 may consume valuable time of the court. There is no reason why the time of the Magistrate should be wasted when primarily the duty to conduct investigation in cases involving cognizable offences is with the police. When a Magistrate receives a complaint and if the facts alleged in the complaint disclose the commission of an offence, he is not bound to take cognizance. If on a reading of the complaint, he finds that the allegations therein disclose commission of any cognizable offence and that forwarding the complaint under Section 156(3) of the Code to the police for investigation will be conducive to justice, he may adopt that course. But, there is no provision of law which compels a Magistrate to refer the matter to the police. The Magistrate has discretion in the matter. There may be occasions when the Magistrate may exercise his discretion and take cognizance of the offence. The discretion is to be judicially exercised by the Magistrate. In all cases, the Magistrate shall not adopt the easy way of forwarding the complaint under Section 156(3) of the Code unmindful of the consequences of such action. The court has a duty to protect the interest of the Crl.M.C.No.11/2015 respondent/accused also since at the time of conducting inquiry or forwarding of the complaint to the police for investigation, he has no right of hearing. The complainant has no legal right or Crl.M.C.4582 & 4705 of 2021 28 privilege to insist that the Magistrate shall not take cognizance and without taking cognizance, refer the matter to the police. (See Gopal Das Sindhi v. State : AIR 1961 SC 986, Lakshminarayana Reddy v. Narayana Reddy : AIR 1976 SC 1672, Madhao v. State of Maharashtra : (2013) 5 SCC 615, Nirmala Devi v. State of Kerala : 2014 (2) KLT 254 and Muhammad Salim v. Sangeetha : 2014 (1) KHC 657). 30. A direction under Section 156(3) of the Code is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where the Magistrate takes Crl.M.C.No.11/2015 cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed". Exercise of discretion by the Magistrate in this regard is guided by the interest of justice from case to case (See Ramdev Food Products v. State of Gujarat : AIR 2015 SC 1742). 24. In the present case, Annexure-A1 complaint produced from the side of the petitioners would show Crl.M.C.4582 & 4705 of 2021 29 the order passed by the Magistrate while making reference under Section 156(3) which reads as follows:- “Complainant present. Heard. Forwarded to SHO, Perumbavoor for conducting investigation and report u/s.156(3) of Cr.P.C, 1973”. 25. So the above order itself would show that the Magistrate has mechanically forwarded the complaint as a matter of course without any application of mind and hence that itself will vitiate the registration of the crime, which enables this Court to quash the proceedings initiated against the petitioners based on Annexure-A1 complaint and A2 FIR. It has also come out that the petitioners are practicing lawyers appearing for the opposite party of the de facto complainant in various courts referred above. It is their specific case that it is out of that ill-will for appearing for the opposite party in cases filed by the 3[rd] respondent against 1[st] and 2[nd] accused that Crl.M.C.4582 & 4705 of 2021 ## 30 this complaint was filed maliciously to wreck vengeance. It has been discussed in the previous paragraphs that the complainant could not bring in any material to substantiate the allegations and no witnesses are also cited and there is also non compliance of Section 154(1) & 154(3) Cr.P.C in filing complaint. Without adverting to any of those factors and settled principles of law, Magistrate simply referred the complaint for investigation under Section 156(3) mechanically. So for securing the ends of justice, it is necessary to quash further proceedings against accused Nos.3, 4, 5 and 6 in Crime No.1717/2021 of Perumbavoor police station by exercising the inherent powers vested with this court under Section 482 Cr.P.C. 26. In the result, Crl.M.C Nos.4582/2021 and 4705/2021 are allowed and entire proceedings initiated against the petitioners/accused Nos.3, 4, 5 and 6 in CMP.681/2021 filed before the Judicial First Class Magistrate Court, Perumbavoor and FIR in Crime Crl.M.C.4582 & 4705 of 2021 **==> picture [16 x 10] intentionally omitted <==** No.1717/2021 of Perumbavoor police station is hereby quashed. Sd/- M.R.Anitha, Judge Mrcs/3.1.22 Crl.M.C.4582 & 4705 of 2021 32 ## **APPENDIX OF CRL.MC 4582/2021** PETITIONER ANNEXURES Annexure A1 CERTIFIED COPY OF THE FIR NO.1717 OF 2021 OF PERUMBAVOOR POLICE STATION Annexure A2 CERTIFIED COPY OF CMP NO.681/2021 OF JFCMI, PERUMBAVOOR Annexure A3 CERTIFIED COPY OF THE CHARGE SHEET REPORT IN SC NO.462/2015 OF ADDITIONAL SPECIAL COURT, MUVATTUPUZHA. Annexure A4 TRUE COPY OF THE PLAINT IN O.S.NO.675/2019 OF MUNSIFF COURT, KOTHAMANGALAM. Crl.M.C.4582 & 4705 of 2021 33 ## **APPENDIX OF CRL.MC 4705/2021** ## PETITIONER ANNEXURES |Annexure A1|TRUE COPY OF CRL.M.P 681/21 FILED BEFORE| |---|---| ||THE JUDICIAL FIRST CLASS MAGISTRATE COURT-| ||1 PERUMBAVOOR.| |Annexure A2|TRUE COPY OF THE FIR IN CRIME NO.1717/2021| ||OF PERUMBAVOOR POLICE STATION.| |Annexure A3|TRUE ATTESTED COPY OF THE MINUTES OF THE| ||GENERAL BODY MEETING OF KOTHAMANGALAM BAR| ||ASSOCIATION HELD ON 09.04.2021.| |Annexure A4|TRUE COPY OF THE JUDGMENT DATED 14.11.2018| ||IN CRL M.C.5464/2013.| |Annexure A5|TRUE COPY OF THE COMPLAINT FILED BY| ||ADVO.GIRISH CHANDRAN AGAINST THE 3RD| ||RESPONDENT IN C.C. 89/2014 IN THE FILE OF| ||JUDICIAL FIRST CLASS MAGISTRATE COURT,| ||KOTHAMANGALAM THROUGH 3RD PETITIONER| ||HEREIN.| |Annexure A6|TRUE COPY OF THE PLAINT IN O.S. 675/2019| ||IN THE FILES OF MUNSIFF COURT,| ||KOTHAMANGALAM.| |Annexure A7|TRUE COPY OF THE TEXT BEING PROPAGATED| ||THROUGH FACEBOOK AND WHATSAPP AGAINST THE| ||PETITIONERS.| |Annexure A8|TRUE COPY OF THE FINAL CHARGE IN| ||S.C.462/2015 IN THE FILE OF ADDITIONAL| ||DISTRICT AND SESSIONS COURT (FOR THE TRIAL| ||OF CASES RELATING TO ATROCITIES AND SEXUAL| ||VIOLENCE AGAINST WOMEN AND CHILDREN),| ||MUVATTUPUZHA.|