K.S. Balasubramanian v. Biju Kochupaul and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Kemal Pasha
Judgment Date: 2016-06-30
Court Decision / Holding: Crl.M.C. allowed; Annexure-II order quashed.
Final Disposition: Allowed; Annexure-II order quashed.

Parties to the Case

Appellants / Petitioners

K.S. Balasubramanian

Respondents

Biju Kochupaul
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• M.K. Damodaran (Sr.)
• N. Nandakumara Menon (Sr.)

Counsels for Respondents

• P.K. Vijayanmohanan
• Gilbert George Correya
• Nishil P.S.
• J. Vimal
• Antony Robert Dias
• Kum. P.K. Reshma (Kalarickal)

Case Synopsis & Summary

This High Court of Kerala deals with the ambit of Section 156(3) Cr.P.C. and Chapter XV Cr.P.C. in a complaint filed in the ill‑famed Chandra Bose murder case. The petitioner, K.S. Balasubramanian, then Kerala State Police Chief, challenged an Enquiry Commissioner and Special Judge (Vigilance), Thrissur order that, after partially dismissing the complaint as against certain respondents, proceeded to direct a preliminary inquiry against others. The central issue is whether a court that has invoked Chapter XV can, thereafter, revert to the stage of Section 156(3) Cr.P.C. The petitioner’s counsel contends that such reversion is impermissible and contravenes established law, citing the Supreme Court in CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. and Another (2005) 7 SCC 467. The judge scrutinizes the sequence: whether the court conducted an inquiry without recording oath under Section 200 Cr.P.C., whether certain respondents were absolved while others remained in contention, and whether the matter was then quickly verified under 156(3). The court concludes that the Annexure-II order, which effectively separated respondents and persisted with inquiry under Chapter XV, is illegal. Accordingly, the criminal miscellaneous case is allowed, and Annexure-II is quashed, restoring the matter in a manner consistent with due process.

Provisions of Law Cited

Section 156(3) Cr.P.C.Chapter XV Cr.P.C.Section 200 Cr.P.C.Section 203 Cr.P.C.

Legal Doctrines & Maxims

Reversion to pre-cognizance stage after Chapter XV inquiry is impermissible (as applied by reference to CREF Finance Ltd. v. Shree Shanthi Homes)
Once cognizance is taken and Chapter XV is invoked, the magistrate cannot revert to the pre-cognizance stage to invoke Section 156(3) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the applicant argued that once the court below invoked Chapter XV Cr.P.C. and dismissed parts of the complaint against some respondents, it could not revert to the pre-cognizance framework under Section 156(3) Cr.P.C. The argument rests on the proposition that cognizance having been taken and a Chapter XV inquiry initiated, the court cannot oscillate between stages. The counsel relied on CREF Finance Ltd. v. Shree Shanthi Homes to support the view that such reversal is impermissible and that the proper remedy would involve procedure under Sections 200 and 203 Cr.P.C., not a fresh inquiry under 156(3). The petitioner contends that insistence on quick verification while continuing action against others violates the statutory sequence and due process, and that the order is therefore liable to be quashed.

Contentions of Respondents

The order records the petitioner's line of argument; explicit arguments from respondents are not detailed in the document. The text indicates focus on the legality of reverting between stages rather than presenting a distinct respondents’ counter-argument.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. and Another	(2005) 7 SCC 467	Positive	The court cites this decision to support the proposition that once cognizance is taken under Chapter XV, the court cannot revert to the pre-cognizance stage and invoke Section 156(3) Cr.P.C.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **THURSDAY, THE 30TH DAY OF JUNE 2016/9TH ASHADHA, 1938** **Crl.MC.No. 2242 of 2015 -------------------------** **ORDER DATED 25-03-2015 IN CRL.MP 434/2015 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR** **....** ## **PETITIONER(S)/1ST RESPONDENT:** **----------------------------** **K.S.BALASUBRAMANIAN, KERALA STATE POLICE CHIEF, POLICE HEAD QUARTERS, VAZHUTHAKKAD, THIRUVANANTHAPURAM.** **BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.VIJAYAMOHANAN SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. SRI.J.VIMAL SRI.ANTONY ROBERT DIAS KUM.P.K.RESHMA (KALARICKAL)** **RESPONDENT(S)/PETITIONER & STATE:** **---------------------------------** **1. BIJU KOCHUPAUL, S/O.KOCHUPAUL, CHAKRAMATTIL HOUSE, KAIPPARAMBU THRISSUR - 680 546.** **2. STATE OF KERALA, REPRESENTEED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031** **R2 SENIOR BY PUBLIC PROSECUTOR SRI.C.RASHEED** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** **Crl.MC.No. 2242 of 2015** **-----------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES:** **-----------------------** **ANNX.I - TRUE COPY OF THE COMPLAINT DATED 23.03.2015 FILED BY THE 1ST RESPONDENT BEFORE THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR.** **ANNX.II - TRUE COPY OF THE ORDER DATED 25.03.2015 IN CRL.M.P.NO.434 OF 2015 OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR.** **RESPONDENT(S)' ANNEXURE:** **------------------------** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **[CR]** ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` Crl.M.C. No.2242 of 2015 ````````````````````````````````````````````````````````````` _Dated this the 30[th] day of June, 2016_ ## **O R D E R** ~ ~ ~ ~ ~ ~ Can the Special judge, after dismissing that part of the complaint as against some of the respondents, invoke the power under Section 156(3) Cr.P.C., as against the rest of the respondents? This is precisely the question to be decided here. 2. This matter relates to the ill-famed Chandra Bose murder case. Alleging that the then DGP of the State, who is the petitioner herein, had extended some favours to the accused in the case and had thereby committed criminal misconduct, the present complaint was filed before the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur. 3. Apart from the petitioner, some other respondents Crl.M.C.2242/2015 : 2 : were also arraigned as respondents in the complaint. The court below has passed the impugned order in the form of Annexure-II, by applying its mind in the matter and by concluding that specific allegations were not raised against respondents 2, 3, 6, 7 and 14 in the complaint, and therefore, as far as the said respondents were concerned, any further proceedings were not required. The court below, through the impugned order, has ordered a preliminary inquiry into the allegations against respondents 1, 4, 5, 8 to 13 and 15 in the complaint. The 1[st] respondent in the complaint is the present petitioner. 4. Heard learned Senior Counsel for the petitioner Sri.M.K.Damodaran and Sri.N.Nandakumara Menon, and the learned Director General of Prosecutions. 5. Both the learned Senior Counsel for the petitioner have raised a question of law in the matter. It has been argued that, here is a situation wherein the court below has Crl.M.C.2242/2015 : 3 : reverted back to the stage of Section 156(3) Cr.P.C., after invoking the powers under Chapter XV Cr.P.C. 6. The aforesaid argument forwarded by the learned Senior Counsel seems to be perfectly correct. A complaint is filed by arraigning 15 respondents. The court below has applied its mind and traced out that some of the respondents are not liable to be proceeded against. Precisely, the court below has found that no criminal liability can be fastened to those respondents. Therefore, the application of mind by the court below can only be deemed to be the procedure contemplated under Chapter XV Cr.P.C. At the same time, it is a fact that the court below has not even cared to examine the complainant on oath under Section 200 Cr.P.C. Even without examining the complainant on oath, the court below has proceeded with the matter and precisely conducted an inquiry and found that certain respondents were not liable to be proceeded Crl.M.C.2242/2015 : 4 : against. 7. Thereafter, it is strange to note that the court below has decided to order a quick verification in the matter as far as the other respondents are concerned. Therefore, it is evident that after invoking the powers under Chapter XV Cr.P.C., the court below has reverted back to the stage of Section 156(3) Cr.P.C., which is quite impermissible as per law. An identical situation was dealt with by the Apex Court in the decision in _**CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. and Another** [(2005) 7 SCC 467]_ , wherein it was held that if the Magistrate once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of the power under Section 156(3) Cr.P.C. 8. In this particular case, it is evident that the court below, has even though not mentioned that the court below Crl.M.C.2242/2015 : 5 : has conducted an inquiry, in fact, the court below has dismissed that part of the complaint relating to respondents 2, 3, 6, 7 and 14 in the complaint, by exercising the powers contemplated under Chapter XV Cr.P.C. When the court below has finally decided the matter relating to some of the respondents and such respondents were absolved from criminal liability, and has decided to proceed against the petitioner and some other respondents, it is as good as invoking the power of inquiry as contemplated under Chapter XV Cr.P.C. Only through an inquiry, the court below could have decided to avoid some of the respondents from further proceedings. Such a dismissal of the complaint relating to some of the respondents could only one under Section 203 Cr.P.C. At the same time, the court below could not have entered such a dismissal without recording the statements of the complainant, and witnesses, if any. Only after considering such statement/statements, the court Crl.M.C.2242/2015 : 6 : below could have passed such an order of dismissal under Section 203 Cr.P.C.. 9. The entire exercise made by the court below in this matter is _per se_ illegal. The court below ought not have absolved some of the respondents from criminal liability and thereafter forwarded the complaint for quick verification or investigation, as the case may be, under Section 156(3) Cr.P.C. The court below, after invoking the powers under Chapter XV Cr.P.C., could not have reverted back to the stage of Section 156(3) Cr.P.C. again in the very same complaint. Matters being so, Annexure-II order passed by the court below is liable to be quashed. In the result, this Crl.M.C. is allowed and Annexure-II order passed by the court below is quashed. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/30/06 _// True Copy //_ _PA to Judge_