Jayson Varghese, Thomas Varghese, Annamma Varghese and Jessy Shibu v. State of Kerala and Ansu Achankunju

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934 Crl.Rev.Pet.No. 1072 of 2012 () ------------------------------CC.107/2012 of J.M.F.C. - II, MAVELIKKARA REVISION PETITIONER(S)/ACCUSED: ------------------------------ 1. JAYSON VARGHESE S/O.THOMAS VARGHESE, ALUMMOOTTIL JAYA VILLA, MANGAD ELAMANNOR.P.O., PATHANAMTHITTA DISTRICT. 2. THOMAS VARGHESE ALUMMOOTTIL JAYA VILLA, MANGAD, ELAMANNOR.P.O. PATHANAMTHITTA DISTRICT. 3. ANNAMMA VARGHESE W/O.THOMAS VARGHESE, ALUMMOOTTIL JAYA VILLA, MANGAD ELAMANNOR.P.O., PATHANAMTHITTA DISTRICT. 4. JESSEY SHIBU ALUMMOOTTIL JAYA VILLA, MANGAD, ELAMANNOR.P.O. PATHANAMTHITTA DISTRICT. BY ADVS.SRI.BECHU KURIAN THOMAS SMT.TINA ALEX THOMAS RESPONDENTS/STATE AND COMPLAINANT: ------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. ANSU ACHANKUNJU D/O.ANNI ACHANKUNJU, PALAVILAYIL PUTHENVEEDU KARIMULACKAL, KOMALLOOR.P.O., CHUNAKKARA VILLAGE PIN-690 505. BY ADV. SRI.R.PADMAKUMAR-R2 BY ADV. SRI.P.ARAVIND PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN-R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **“C.R** ” ## **C.T. RAVIKUMAR, J. ========================== CRL.R.P. No.1072 OF 2012 ==========================** Dated this the 1[st ] day of August, 2012 ## **ORDER** This revision petition is directed against the order of the Court of Judicial First Class Magistrate-II, Mavelikkara in CMP.No.408/2012 in C.C.No.107/2012. At the very outset, I may state that it is the non-reflection of the procedures followed by the learned Magistrate, at least in succinct, in the said order that paved way to this, otherwise avoidable, legal proceedings. An encapsulation of facts is necessary for the disposal of this case as also for understanding the raison d'etre for the said remark. 2. The revision petitioners are arraigned as accused in the said case. The second respondent herein filed a private complaint viz., C.M.P.No.40/2012 alleging commission of offences under **Crl.R.P.1072 of 2012** 2 sections 3, 4 and 6 of the Dowry Prohibition Act against the revision petitioners. That was taken on file as C.C.No.107/2012 by the learned Magistrate and, accordingly, ordered to issue summons under section 204 of the Code of Criminal Procedure for the attendance of the revision petitioners as per the impugned order. 3. The revision petitioners contended that the impugned order was passed by the learned Magistrate without conducting an enquiry by either himself or by causing an investigation by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not sufficient ground exists for proceeding with the complaint. It is also contended that being persons residing outside the jurisdiction of the learned Magistrate, it was mandatory to conduct such an enquiry or investigation under section 202 Cr.P.C. Taking into account the said specific contention of the revision petitioners that no enquiry under section 202 Cr.P.C was conducted despite they being residents of a place beyond the area in which the learned **Crl.R.P.1072 of 2012** 3 Magistrate exercises his jurisdiction, this Court issued notice and stayed all further proceedings in C.C.No.107 of 2012 as per order in Crl.M.A.No.3729 of 2012 in the captioned revision petition. Pursuant to the receipt of notice, the second respondent appeared through counsel. The learned counsel for the second respondent assertively submitted that an enquiry as contemplated under section 202 Cr.P.C was, in fact, conducted by the learned Magistrate before ordering issuance of summons under section 204 Cr.P.C. In the circumstances, this Court called for a report from the learned Magistrate, through the Registry. Consequently, such a report was received. It is evident from the said report that CMP.No.408 of 2012 was filed by the second respondent herein on 6.2.2012 alleging commission of offences punishable under sections 3, 4, and 6 of the Dowry Prohibition Act against the revision petitioners and evidence from the complainant and two witnesses were taken oath as part of the enquiry under section 202 Cr.P.C. on that day itself. Thereupon, on 14.2.2012, the case was taken on file as C.C.No.107 of 2012 for offences punishable under **Crl.R.P.1072 of 2012** 4 sections 3, 4 and 6 of Dowry Prohibition Act in view of the enquiry conducted under section 202 Cr.P.C. As already noticed hereinbefore, the core contention of the revision petitioners is that the impugned order was passed by the learned Magistrate without conducting an enquiry or investigation under section 202 Cr.P.C though it is mandatory to conduct such an enquiry in view of the fact that they are residing at a place beyond the area of jurisdiction of the learned Magistrate. In view of the aforesaid report, the said contention will not survive any further. When faced with such a situation, the learned counsel for the petitioners contended that the impugned order is not a speaking order inasmuch as no reason has been explicitly given thereunder. Obviously, it is an order passed under section 204 Cr.P.C ordering for issuance of process. But the question is whether section 204 mandates the learned Magistrate to explicitly state the reason for ordering issuance of summons. That question is no more res integra in view of the Apex Court's decision in **Nupur Talwar v. Central Bureau of Investigation** reported in **2012 (3) KLT S.N.8 (C.No.10)** **Crl.R.P.1072 of 2012** 5 **SC** . In **Nupur Talwar's** case, the Hon'ble Apex Court held:- “Section 204 Cr.P.C does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is no where mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.” The Hon'ble Apex court further held as hereunder:- “The matter can be examined from another perspective. The Code of Criminal Procedure expressly delineates irregularities in procedure which would vitiate proceedings. S.461 thereof, lists irregularities which would vitiate proceedings. S.461 thereof, lists irregularities which would lead to annulment of proceedings. In the list of irregularities indicated in S.461 of the Code of Criminal Procedure, orders passed under S.204 thereof, do not find a mention. In a situation, as the one in hand, S.465(1) of the Code of Criminal Procedure, protects orders from errors, omissions or irregularities, unless “a failure of justice” has been occasioned thereby.” **Crl.R.P.1072 of 2012** 6 4. In the circumstances, I have no hesitation to hold that the order impugned does not call for any interference on the aforesaid ground especially, in the light of the decision in **Kacheru Singh v. State of Uttar Pradesh** reported in **AIR 1982 SCC 784.** It was held therein that summons issued to an accused by a Magistrate need not be quashed by a High Court for the reasons that if eventually the Magistrate comes to the conclusion that no offence was made out against the accused, he himself can pass an order of discharge or acquittal. In view of the said position, the second contention of the revision petitioners must also fail. 5. The learned counsel for the second respondent as also the learned Public Prosecutor submitted that to avoid recurrence of such situations as in this case, this Court may look into the question regarding the quintessential element that is desirable to be reflected in an order issued under section 204 Cr.P.C for evidencing application of mind by learned Magistrates for proceeding further with a complaint **Crl.R.P.1072 of 2012** 7 and adherence with the mandatory procedures under the Code. Issuance of process under section 204 Cr.P.C is a preliminary step in the stage of trial contemplated in Chapter XX of the Code. True that going by the said section, it is not imperative on the Magistrate to state explicitly the reason for issuing summons. Still, it cannot be lost sight of the fact that an order passed thereunder is revisable, though this Court will be loath to interfere with such an order. Hence, it is preferable to state succinctly the reason/material that enabled the Magistrate for forming the opinion that the complaint is worth proceeding with. I am fortified in my view by the decision of the Hon'ble Apex Court in **Nupur Talwar's** case (supra). In that case, the Hon'ble Apex Court considered the term 'sufficient ground to proceed' and held that the said term is different and distinct from the term 'sufficient to prove and establish guilt'. In other words, existence of sufficient grounds for proceeding with the complaint in the opinion of the Magistrate concerned alone is required to pass an order for issuance of process under section 204. I am of the view that that the **Crl.R.P.1072 of 2012** 8 expression 'in the opinion of a Magistrate' employed in the section means and can only mean that the Magistrate has to merely form an opinion as to the sufficiency of grounds for proceeding against the accused person/persons and it does not require him to record any reason for his doing so. At the same time, the requirement of a brief order indicating the application of mind is expected of him at that stage. The expressions “opinion” and “sufficient ground” give an indication that it is only desirable and proper to show on what material, if not all the materials, he has issued the process as it would reveal application of mind. It will be suffice to indicate about perusal of final report, statements under section 161 or 164 Cr.P.C if cognizance is taken and decided to issue process upon a report made by a police officer but, if it was done pursuant to the receipt of a complaint of facts constituting such an offence by indicating at least, whether or not an enquiry or investigation has been made. The Hon'ble Apex Court in **Nupur Talwar's** case (supra) found that in circumstances explained thereunder, narration of what had prompted **Crl.R.P.1072 of 2012** 9 the Magistrate to summon the complainant as an accused is necessary. I am of the view that narration of reason/material in brief that prompted issuance of summons is desirable in respect of orders which are revisable as it would give an opportunity to the revisional court to view the matter after realising the manner of understanding of the Magistrate of the matter. Such an indication would certainly avoid a litigation like the case on hand. During these days of docket explosion, it is only desirable and proper to do anything and everything legally permissible and possible to avoid multiplication of legal proceedings. In this case, as already noticed, this Court called for a report and that report when obtained revealed that an enquiry under section 202 Cr.P.C was conducted and it is in view of the said enquiry conducted that the court took the case on file as C.C.No.107 of 2012 after forming the opinion that the complaint is worth proceeding with and ordered to issue process under section 204. An indication as to the conduct of enquiry as contemplated under section 202 Cr.P.C in the impugned order would have and could have desisted **Crl.R.P.1072 of 2012** 10 the revision petitioners from filing this revision petition and they would have resorted only to the remedies available to them before the learned Magistrate. Having perused the report referred above, I do not find any illegality, error or impropriety in the impugned order and in the said circumstances, it did not invite interference invoking the revisional jurisdiction. This revision petition is liable to fail and accordingly, it is dismissed. Sd/- **C.T. RAVIKUMAR (Judge)** spc **Crl.R.P.1072 of 2012** 11 ## **========================== CRL.R.P. No.1072 OF 2012 ==========================** Dated this the 2[nd] day of July, 2012 ## **ORDER** Fate of this revision petition depends upon the question whether an inquiry as contemplated under Section 202 of the Code of Criminal Procedure was contemplated prior to the issuance of process. The learned counsel for the revision petitioners submitted that no such inquiry was conducted whilst the learned counsel for the respondents assertively submitted that such an inquiry was conducted. 2. In the circumstances, call for a report from the Judicial **Crl.R.P.1072 of 2012** 12 First Class Magistrate Court-II, Mavelikkara as to ascertain whether an inquiry as contemplated under Section 202 of the Code of Criminal Procedure was conducted in C.C.No.107 of 2012 in C.M.P.No.408 of 2012, within a period of two weeks from today. ## **Crl.M.A.No.3729 of 2012** The interim order shall stand extended by three weeks. **C.T. RAVIKUMAR (Judge)** kvr/ **Crl.R.P.1072 of 2012** 13 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **Crl.R.P.1072 of 2012** 14