K. Parukutty Amma and K.K.Chandran v. Dr. T.R. Sahasranamam, N. Shamsudheen Kunju, Raveendran M.K., V.M. Gopala Menon, P. Rajan, State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932** **Crl.MC.No. 5080 of 2010()** - **-------------------------** **CRRP.57/2004 of SESSIONS COURT, THRISSUR CRMP.936/2004 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR** **....................** ## **PETITIONER(S): REVISION PETITIOERS/COMPLAINANTS:** - **------------------------------------------------------------------------------------** **1. K. PARUKUTTY AMMA, W/O. LATE K.KRISHNAN, PROPRIETOR, M/S.KRISHNA AGENCIES, K.W.D., INDIAN OIL DEALER, WEST PERINGAVU, THRISSUR-18.** **2. K.K.CHANDRAN S/O. K.PARUKUTTY AMMA, MANAGER, KRISHNA AGENCIES, K.W.D., INDIAN OIL DEALER, WEST PERINGAVU,THRISSUR-18.** **BY ADVS. SRI.T.M.CHANDRAN, SRI.S.SUJITH, SRI.V.A.SASIDHARAN, SRI.JOSEPH ALBIN NEDUMTHALLY.** ## **RESPONDENT(S): ACCUSED:** - **--------------------------------------------** **1. DR. T.R. SAHASRANAMAM, S/O.RAMANATH IYER, NO.21/241, AYODHYA, SANTHI NAGAR, THRIKKUMARAKUDAM ROAD, THRISSUR(PARTNER, S.K.S. IYER & SONS).** **2. N. SHAMSUDHEEN KUNJU, DISTRICT SUPPLY OFFICER, AYYANTHOLE, THRISSUR-3, S/O. NOORUDHEEN KUNJU,JAS MANZIL HOUSE, CHANGANASSERRY TALUK, KOTTAYAM DISTRICT - 686 101.** **3. RAVEENDRAN M.K., THRISSUR TALUK SUPPLYOFFICER,THRISSUR-20.** - **4.. V.M. GOPALA MENON, THRISSUR DISTRICT COLLECTOR (FORMER), AYYANTHOLE, THRISSUR-3.** **5. P.RAJAN, THRISSUR ADDITIONAL DISTRICT MAGISTRATE, THRISSUR-3.** **6. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R6 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **THOMAS P. JOSEPH, J.** **-------------------------------------Crl.M.C. No.5080 of 2010 -------------------------------------Dated this the 8[th] day of March, 2011.** ## **ORDER** Petitioners are the complainants in Crl.M.P.No.936 of 2004 of the court of learned Chief Judicial Magistrate, Thrissur. They alleged that respondent Nos.1 to 5, of whom respondent Nos.2 to 5 are Government officials in furtherance of their common intention committed offences punishable under Sections 167, 197, 198, 464, 465, 466, 471, 473 and 474 read with Section 34 of the Indian Penal Code. It is alleged that the first petitioner is a kerosene whole sale dealer and the second petitioner is the son of the first petitioner who allegedly managed the business of the first petitioner. Their case is that after 1987 a person having underground storage facility alone is entitled to be appointed as kerosene wholesale dealer (for short, “the KWD” but, the Additional District Magistrate, Thrissur (respondent No.5) granted licence to respondent No.1 in violation of law. There is also an allegation that relevant records were forged by respondent Nos.1 to 5, in furtherance of their common intention to facilitate grant of licence in favour of respondent No.1. Learned Magistrate proceeded under Section 200 of the Code of Criminal Procedure (for short, “the Code”) and recorded the sworn statement of petitioners/complainants. In the meantime petitioners filed the application to summon certain documents from the appropriate authority. But that application was not considered. Learned Chief Judicial Magistrate considered the sworn statement of petitioners and the **Crl.MC No.5080/2010** 2 complaint and came to the conclusion that since respondent Nos.2 to 5 are public servants and the offences alleged are done in discharge or purporting to be in discharge of their official duty respondent Nos.2 to 5 cannot be proceeded against in the absence of sanction under Section 197 of the Code. Observing so, the complaint was dismissed by Annexure-2, order under Section 203 of the Code. Petitioners, aggrieved by the said order preferred a revision before the learned Sessions Judge, Thrissur as Crl.R.P.No.57 of 2004. Learned Sessions Judge by Annexure-3, order dated 19.06.2010 has confirmed the order of learned Chief Judicial Magistrate. In doing so reliance was placed on the decisions in **Padmarajan C.V. v. Government of Kerala (ILR 2009 (1) Kerala 36)** and **Baby v. State of Kerala (2009 (3) KLT S.N.9 - Case No.10)** . Learned counsel for petitioners contend that finding entered by the courts below is not correct in that it is not merely the grant of a licence in favour of the first respondent in violation of law which is alleged in the complaint but there are allegations regarding forgery of documents by respondents 1 to 5 in furtherance of their common intention to facilitate grant of KWD to the first respondent. It is contended by learned counsel that commission of forgery and other offences as alleged in the complaint is not part of official duty of respondent Nos.2 to 5, nor could it be said that it is purporting to be in exercise of their duty that the said acts were done and in the circumstances, learned Chief Judicial Magistrate was not correct in holding that sanction under Section 197 of the Code is required. Learned Sessions Judge also went wrong in holding that sanction is required **Crl.MC No.5080/2010** 3 and hence the complaint is liable to be dismissed. It is submitted by learned counsel that learned Chief Judicial Magistrate was not correct in not considering the application submitted by the petitioners to call for relevant documents from the authority concerned which would have revealed that documents produced by the first respondent were forged. Learned counsel has invited my attention to Annexure-IV, photocopy of proceedings of the District Collector, Thrissur dated 16.02.2005 where it is stated that the said officer was satisfied that the licence produced by SKS Iyer (said to be the first respondent) was forged. 2. Learned Public Prosecutor contended that on the allegations made in the complaint, respondents 2 to 5 have acted in discharge of their official duty and hence sanction under Section 197 of the Code was required. Learned Chief Judicial Magistrate was therefore correct in dismissing the complaint in the absence of sanction. 3. Before going to the question raised by the learned counsel it is necessary to consider whether the procedure adopted by the learned Chief Judicial Magistrate is legal and proper. Under Section 197 (1) of the Code, the court take cognizance against persons mentioned therein only with the previous sanction as mentioned therein when an offence is alleged to be committed by such person while acting or purporting to act in the discharge of his official duty. It is not as if sanction is required to be obtained after cognizance is taken. **Crl.MC No.5080/2010** 4 Section 190 (1) of the Code says that subject to the provisions of the said Chapter any Magistrate of first class or any Magistrate of second class specially empowered in this behalf under Sub-section (2) of the said Section may take cognizance of any offence upon receiving a complaint of facts which constitute such offence, upon a Police report of such facts or upon information received from any person other than a Police Officer, or upon his own knowledge, that such offence has been committed. In the present case what is relevant is Subclause (a) of Sub-section (1) of Section 190 of the Code, taking cognizance upon receiving a complaint of facts which constitute such offence. Learned Chief Judicial Magistrate has proceeded to record the sworn statement of petitioners/complainants. Section 200 of the Code states that “a Magistrate taking cognizance of an offence on complaint” shall examine upon oath the complainant and the witnesses if any present. In otherwords the question of recording of sworn statement of petitioners under Section 200 of the Code could arise only after the Chief Judicial Magistrate took cognizance of the offences on receiving a complaint of facts which constitute such offence as required under Section 190(1)(a) of the Code. Learned counsel for petitioners has referred to me the decision of the Supreme Court in **Shivjee Singh v. Nagendra Tiwary and others [(2010) 7 SCC 578]** , paragraph 10. There it is observed that “an analysis of the above reproduced provisions shows that when a complaint is presented before a Magistrate, he can, after examining the complainant and his witnesses on oath, take cognizance of an offence.” **Crl.MC No.5080/2010** 5 According to the learned counsel, therefore the Magistrate is to take cognizance of the offence after examination of the complainant and his witnesses. I am afraid that argument cannot be accepted in the light of various decisions of the Supreme Court, the latest being in **Srinivas Gundluri and others v. Sepco Electric Power Construction Corporation and others** **[(2010) 8 SCC 206]** , paragraph 19. There, in paragraph 19 the decision in **Devarapalli Lakshminarayana Reddy v. V.Narayana Reddy [(1976) 3 SCC 252]** is quoted with approval which is as under: “It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. This is clear from the use of the words 'may take cognizance' which in the context in which they occur cannot be equated with 'must take cognizance'. The word 'may' gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a mater which was **Crl.MC No.5080/2010** 6 primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.” It is therefore clear from the said observation that cognizance is to be taken by the Magistrate, if it is on a private complaint before he proceeds to conduct enquiry under Section 200 or 202 of the Code. 4. That leads me to the question whether learned Chief Judicial Magistrate was obliged to consider the question of necessity of sanction to take cognizance against respondents 2 to 5 before taking cognizance. In **Abdul Wahab Ansari v. State of Bihar [AIR 2000 SC 3187]** it is stated that previous sanction of the competent authority is a pre-condition for court to take cognizance if the offence is alleged to be committed by the accused while acting or purporting to act in discharge of his official duty, the question of applicability of Section 197 touches jurisdiction of the Magistrate in the matter of taking cognizable and therefore, there is no requirement that the accused should wait for taking the plea that cognizance was taken without prior sanction of the competent authority till the charges are framed. That decision leads me to the conclusion that the issue regarding sanction under Section 197(1) of the Code is a matter which the learned Magistrate has to primarily consider before taking cognizance under Section 190 of the Code and before proceeding to conduct **Crl.MC No.5080/2010** 7 inquiry under Sections 200 and 202 of the Code. In that view of the matter it appears to me that the learned Chief Judicial Magistrate has committed an illegality in taking cognizance of the offences and conducting inquiry under Section 200 of the Code even before deciding on the question whether sanction under Section 197(1) of the Code was necessary to proceed against respondents 2 to 5 having regard to the nature of allegations made in the complaint and requirement of sanction under Section 197(1) of the Code as explained by the Supreme Court in various decisions on the point. In considering whether sanction is required, learned Chief Judicial Magistrate at that stage is only concerned with the allegations in the complaint. If from the allegations in the complaint it is revealed that no sanction is required, cognizance is taken and if in the inquiry conducted under Section 200/202 of the Code it is revealed that sanction is necessary, the Chief Judicial Magistrate could refuse to issue process to such accused against whom sanction is found necessary and drop the proceedings against such accused (see **Nagraj v. State of Mysore – AIR 1964 SC 269** ). It appears that this aspect of the matter was not considered either by the learned Chief Judicial Magistrate or the learned Sessions Judge. 5. Learned counsel has a contention that in the nature of the allegations made in the complaint and the offences attributed to respondents 2 to 5 sanction is not required since forgery is not part of the official duty of a **Crl.MC No.5080/2010** 8 public servant. That is a matter which I am not required to consider in this proceeding. I leave that matter to the learned Chief Judicial Magistrate to consider at the stage of deciding whether sanction under Section 197(1) of the Code is required to take cognizance of the offences attributed against respondents 2 to 5. Learned Magistrate has also to look into the complaint, before deciding to take cognizance or not whether it contains sufficient allegations constituting any offence. Bald allegations are not sufficient. No cognizance can be taken in the absence of particulars of the offence given in the complaint. Particulars are necessary to decide whether the alleged acts were done in the discharge of official duty of respondents 2 to 5. [See **Pulin Behari Das v. Emperor (13 Cri.L.J. 609)** and **Sharda Prasad v. State of Bihar (AIR 1977 SC 1754)** ]. A complaint should contain a statement of facts relied upon as constituting the offence with as much certainty as the nature of the case would admit. It is not sufficient that the words of the Section of the Statute are literally copied. It is also the settled position of law that if the allegations in the complaint are not sufficient to take cognizance of any offence, the Magistrate has to reject the complaint. **Crl.MC No.5080/2010** 9 6. It is seen that complaint is preferred by two persons. Question whether a joint complaint is maintainable in the light of the decision of this Court in **Zain Sait v. Intex-Painter [1993 Cri.L.J. 2213]** and if not, whether any of the petitioners can be allowed to continue the complaint by himself is also a matter which the learned Chief Judicial Magistrate has to consider. Resultantly Annexures-II and III, orders and the order taking cognizance on Crl.M.P.No.936 of 2004 of the court of learned Chief Judicial Magistrate, Thrissur are set aside and that complaint is remitted to that court for fresh consideration and disposal in the light of the observations made above. I make it clear that I have not made any observation regarding the sufficiency or otherwise of the averments in the complaint to take cognizance of any offence relating to any person or the requirement or otherwise of sanction under Section 197(1) of the Code. Petitioners shall appear before the learned Chief Judicial Magistrate on 31.03.2011. **THOMAS P.JOSEPH, Judge.** ## **cks**