LOID JUDE MANAKKAT v. THE STATE OF KERALA represented by the Public Prosecution and M.C.XAVIER

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 14TH DAY OF SEPTEMBER 2012/23RD BHADRA 1934 Crl.Rev.Pet.No. 1112 of 2012 () ------------------------------CRMP.602/2012 of J.M.F.C.-II, CHERTHALA CR.NO.595/2010 OF AROOR POLICE STATION ## REVISION PETITIONER(S)/IST ACCUSED: ---------------------- LOID JUDE MANAKKAT MANAKKAT HOUSE, AROOR P.O, ALAPPUZHA DISTRICT. BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.SAJU WAHAB SRI.P.PRIJITH ## RESPONDENTS/COMPLAINANT(S): --------------- 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ## 2. M.C.XAVIER S/O.CHEEKU, MANAKKAT HOUSE, AROOR P.O CHERTHALA, ALAPPUZHA DISTRICT, KERALA PIN 688 534. R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20-07-2012, THE COURT ON 14-09-2012 PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1112 of 2012 () ## APPENDIX PETITIONER'S EXHIBITS - ANNEXURE I: TRUE COPY OF PLAINT IN OS NO.17/2009 OF SUB COURT, CHERTHALA. - ANNEXURE II: TRUE COPY OF COMPLAINT FILED BY THE REVISION PETITIONER BEFORE THE AROOR POLICE STATION. - ANNEXURE III: TRUE COPY OF RECEIPT ACKNOWLEDGING THE RECEIPT OF COMPLAINT. - ANNEXURE IV: TRUE COPY OF COMPLAINT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE AROOR POLICE STATION. - ANNEXURE V: TRUE COPY OF CMP NO.9370/2010 FILED BY THE 2ND RESPONDENT BEFORE THE JFCM COURT, CHERTHALA ON 28.10.2010. - ANNEXURE VI: TRUE COPY OF NOTICE ISSUED TO THE DEFACTO COMPLAINANT. - ANNEXURE VII: TRUE COPY OF FINAL REPORT IN CRIME NO.595/10 OF AROOR POLICE STATION. - ANNEXURE VIII: TRUE COPY OF PETITION FILED by the REVISION PETITIONER BEFORE THE JFCM COURT, CHERTHALA. - ANNEXURE IX: TRUE COPY OF NOTICE ISSUED TO THE DEFACTO COMPLAINANT BY THE JFCM COURT, CHERTHALA DATED 02.02.2012. - ANNEXURE X: TRUE COPY OF OBJECTION FILED BY THE ASSISTANT PUBLIC PROSECUTOR DTD. 28.02.2012. - ANNEXURE XI: TRUE COPY OF ORDER IN CRLMP NO.602/2012 IN CR.NO.595/2010 DTD.30.03.2012 OF JFCM II COURT, CHERTHALA. RESPONDENTS' EXHIBITS : NIL // TRUE COPY // TKS P.S. TO JUDGE ## **“C.R”** ## **C.T.RAVIKUMAR, J.** ---------------------------Crl.R.P.No.1112 of 2012 ---------------------------Dated 14[th] September, 2012 ## **ORDER** The revision petitioner was the petitioner in Crl.M.P.No.602 of 2012 on the file of the Court of the Judicial First Class Magistrate-II, Cherthala. Whether culpability could be attributed on the Investigating Officer and the officer who laid the final report, in a petition forwarded for investigation under section 156(3) of the Code of Criminal Procedure, on the ground of non-filing of a complaint against the defacto complainant for giving false evidence and also for misusing their officiality as public servants, in case, the report under section 173(2) Cr.P.C. on such complaint is a closure report dubbing the case as a mistake of fact? This question arises in the following factual matrix:- The petitioner was arraigned as the first accused in Crime No. 595 of 2010 of Aroor Police Station under sections 447, 506(1), 294(b) and 427 read with section 34 of the Indian Penal Code, virtually registered at the instance of the second respondent herein. As a matter of fact, Annexure-V complaint filed by the second respondent herein before the Court of the Judicial First Class Magistrate-II, Cherthala was forwarded for investigation under section 156(3) Cr.P.C. and the Crl.R.P.No.1112/2012 2 aforesaid crime was registered pursuant thereto. After completing the investigation Annexure-VII report viz., a closure report, was filed before the learned Magistrate stating that it is a false case. On obtaining the copy of the said closure report Crl.M.P.No.602 of 2012 was filed by the revision petitioner herein mainly with the prayer to call the Investigating Officer and the officer who submitted the final report in Crime No.595 of 2010 of Aroor Police Station to report before the court as to the reasons why a complaint was not registered against the defacto complainant for giving false evidence and misusing their official power conferred on them as public servants, before any order is passed on the final report. After considering the said application the learned Magistrate dismissed that application as per the order dated 30.3.2012. This revision petition has been filed in the said circumstances with the prayer to set aside the order dated 30.3.2012 passed by the learned Magistrate in Crl.M.P.No.602 of 2012 in Crime No.595 of 2010 of Aroor Police Station and further, to direct Aroor Police to proceed against the second respondent under sections 182 and 193 of the Indian Penal Code. ## 2. Admittedly, the second respondent herein was not made a party, in Crl.M.P.No.602 of 2012 before the learned Magistrate. That apart, the prayer for direction to Aroor Police to proceed against the second respondent under sections 182 and 193 IPC was also not made Crl.R.P.No.1112/2012 3 therein. That petition was seriously opposed by the State by filing a detailed counter affidavit. After hearing both sides the learned Magistrate framed the point whether the prayer in the petition is allowable, for consideration. 3. Admittedly, Crime No.595 of 2010 of Aroor Police Station was registered on receipt of the complaint filed by the second respondent before the Court of the Judicial First Class Magistrate-II, Cherthala forwarded for investigation, under section 156(3) Cr.P.C. After completing the investigation in the above crime Annexure VII closure report was filed under section 173 Cr.P.C. The learned Magistrate also took note of the fact that the second respondent, the defacto complainant, was not made a party in Crl.M.P.No.602 of 2012 and observed that the attempt on the part of the revision petitioner herein was to get some orders behind the back of the defacto complainant. If the petition was bonafidely and genuinely made, he would have definitely impleaded the defacto complainant as a party to that application, it was observed. Such an observation was made, essentially, taking into account the fact that the allegation in the complaint is to the effect that the police officers had failed to register crime against the defacto complainant under sections 182 and 193 IPC. It was found by the learned Magistrate that in order to attract section 182 IPC it is incumbent Crl.R.P.No.1112/2012 4 on the complainant to specifically plead and prove the injury or annoyance caused to him. On perusing the averments in the petition the learned Magistrate also found that a civil dispute was, then pending between the revision petitioner herein and the second respondent herein. In this case, the respondents have registered the aforesaid crime against the revision petitioner herein and other co-accused, admittedly, pursuant to the receipt of the complaint forwarded for investigation under section 156(3) Cr.P.C. by the learned Magistrate. The prayer of the revision petitioner in Crl.M.P.No.602 of 2012 moved before the learned Magistrate, itself would reveal that the final report was not then, accepted by the learned Magistrate and the proceedings were also not then dropped. There can be little doubt that, in terms of the position of law, the learned Magistrate was to issue notice to the informant/defacto complainant and to afford him an opportunity of being heard at the time of consideration of the refer report for the purpose of deciding whether to accept the same. At any rate, no culpability can be attributed on the Investigating Officer or the superior officer who filed the final report on completion of such investigation for the reason that after finding the allegations in the private complaint as false they had not registered a crime against the defacto complainant. No specific provision has been brought to my notice making it mandatory for such officers to register a crime against the informant in such circumstances and making them Crl.R.P.No.1112/2012 5 liable for prosecution for such inaction. It is to be noted that the very prayer of the revision petitioner is to call respondents 1 and 2 therein to report the reasons as to why a complaint was not made against the defacto complainant for giving false evidence and misusing the official power conferred on them as public servants, before any order is passed on the final report. There is no rationale behind the prayer thus made. There can be no doubt with respect to the position of law that a final report is not binding on the court and the court has to make a judicial decision as to whether it should be accepted or not. That apart, I do not find any reason to interfere with the finding of the learned Magistrate that the action on the part of respondents 1 and 2 therein in registering a crime pursuant to an order passed by that court under section 156(3) Cr.P.C. and commencing, continuing and completing the investigation thereon and then submitting a final report could not form the basis for a complaint against them solely for the reason of not filing a complaint against the defacto complainant, on referring the case as false. As rightly, held by the learned Magistrate, revision petitioner has no locus standi to dictate the police to register a crime or to file a complaint against the defacto complainant. No provision of law has been brought to my notice mandating that in such circumstances it is incumbent on the Investigating Officer or the officer laying the final report (closure report) to file a complaint against the defacto complainant for giving false Crl.R.P.No.1112/2012 6 evidence and misusing their official position as public servants. 4. The very prayer of the revision petitioner to call for such reasons, before any order is passed on the final report cannot said to be made without any purpose. In view of the decision of the Hon'ble Apex Court in **Bhagawant Singh** v. **Commissioner of Police** (AIR 1985 SC 1285) when a Magistrate gets a negative report he has to choose between one of the following four courses:- 1. To accept the report and drop the proceedings. 2. To direct further investigation to be made by the police. 3. To investigate himself or refer for the investigation to be made by another Magistrate under section 159 Cr.P.C. 4. To take cognizance of the offence under section 200 as a private complaint which the materials are sufficient in his opinion and if the complainant is prepared for that course. The procedures to be adopted by a Magistrate when a final report which happens to be a refer report is made by an officer of a Police Station under Section 173(2) Cr.P.C. have been dealt with in detail by this Court in the decision in **Parameswaran Nair** v. **Surendran** ( **2009 Crl.L.J. 2762 (Ker.** ). No doubt, it is realising that such courses are open to the learned Magistrate on receipt of a negative report that the revision petitioner sought for the specific prayer to call for such report carrying reasons for non-filing of a complaint or non-registration of a crime, Crl.R.P.No.1112/2012 7 before any order is passed on the final report. In the circumstances, I do not find any impropriety in the observation made by the learned Magistrate that the attempt on the part of the revision petitioner was to get some orders behind the back of the defacto complainant. In this context, it is also to be noted that the revision petitioner who filed Crl.M.P.No.602 of 2012 without making the defacto complainant a party to it filed this revision petition making the defacto complainant a party. While challenging the legality and sustainability of the order passed by the learned Magistrate in Crl.M.P.No.602 of 2012 the revision petitioner made the defacto complainant a party viz., as the second respondent to this revision petition but, sought for a prayer which is distinct and totally different from the prayer that was made in Crl.M.P.No.602 of 2012 in Crime No.595 of 2010 of Aroor Police Station before the learned Magistrate and upon which the impugned order dated 30.3.2012 was passed. In this revision petition, the prayer made is for setting aside the impugned order passed by the learned Magistrate in Crl.M.P.No.602 of 2012 and for a further direction to the Aroor police to proceed against the second respondent under sections 182 and 193 IPC. The second limb of the prayer was conspicuously absent in Crl.M.P.No.602 of 2012. It is also pertinent to note that while challenging the order in Crl.M.P.No.602 of 2012 the revision petitioner has not made respondents 1 and 2 in that Crl.M.P. as parties to this revision petition. At any rate, Crl.R.P.No.1112/2012 8 the revision petitioner is not justified in making the prayer in this revision petition to direct the police to register a crime against the second respondent for offences under sections 182 and 193 IPC, especially when the learned Magistrate is to consider the refer report and to decide which course that is open to choose/has to be chosen in the light of the decision in **Bhagawant Singh's** case (supra). While considering the tenability of the said prayer made in this revision petition it is apposite to refer to Sections 182 and 193 of the Indian Penal Code and also Section 195 Cr.P.C. Section 182 I.P.C. deals with the punishment for giving to any public servant any false information, with intent to cause public servant to use his lawful power to the injury of another person and Section 193 I.P.C. deals with the punishment for giving false evidence in any stage of a judicial proceeding or for fabricating false evidence for the purpose of being used in any stage of a judicial proceeding. True that an investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice under Explanation 2 to Section 193 I.P.C. The section makes only a positive act of giving false information punishable and at any rate, the section does not require that action must always be taken. An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may Crl.R.P.No.1112/2012 9 not take place before a Court of Justice under Explanation 3 to Section 193 I.P.C. Now, let us see Section 195 Cr.P.C. Section 195(1)(a)(i) reads thus:- “ **195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.** - (1) No Court shall take cognizance- - (a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or .............................. except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;” ## Section 195(1)(b)(i) reads thus:- - “(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 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 ........................ 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.” Crl.R.P.No.1112/2012 10 The object of the specific provisions under Section 195 Cr.P.C. is to protect persons from being unnecessarily harassed by vexatious prosecution in retaliation. A perusal of the section would make it abundantly clear that the right to prosecute in cases falling under Section 182 I.P.C. which covered by Section 195 Cr.P.C. is vested only in public servant concerned or of some other public servant to whom he is administratively subordinate. Cognizance could be taken by the Magistrate in such case/cases covered by Section 195(1)(a)(i) only on a formal complaint in writing duly presented by a public servant or his superior and not in otherwise. So also a perusal of Section 195(1)(b)(i) would reveal that it limits the power of taking cognizance under Section 190 Cr.P.C., only on a complaint in writing by the court mentioned therein or by such officer of the court as that court may authorise in writing in that behalf or some other court to which that court is subordinate. In short, it is to be safely concluded that it is for the public servant concerned or for the public servant to which he is subordinate who is authorised to make a complaint if he is of the opinion that a complaint is to be filed. So also, the right to prosecute for offences falling under Section 193 I.P.C. covered by Section 195(1)(b)(i) Cr.P.C. is with the concerned court or under its authorisation in writing in that behalf by such officer of that court or with some other court to which that court is subordinate. In short, I have no hesitation to hold that in Crl.R.P.No.1112/2012 11 such cases covered by the bar of Section 195 Cr.P.C. there is absolutely no scope for filing a private complaint. The embargo in Section 195 Cr.P.C. takes away the right to prosecute in respect of the aforesaid offences by way of filing a private complaint. That be so, what cannot be done directly cannot be done or permitted to be done indirectly. Going by Section 195 Cr.P.C. no court shall take cognizance except in the manner contemplated by Section 195 Cr.P.C. and consequently, no jurisdiction to refer the case under Section 156(3) Cr.P.C. to the police for investigation or to issue a direction to proceed under the aforesaid sections to the police on a private person's complaint. In view of the forgoing reasons I do not find any error, illegality or impropriety warranting interference in exercise of the revisional jurisdiction. The petitioner is not entitled to the reliefs sought for. This revision petition is liable to fail and accordingly, it is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS