M.B. Moideen Kunju v State of Kerala and Musthafa

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 18[TH] DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943 CRL.MC NO. 1459 OF 2017 [CRIME NO.337/2014 OF Binanipuram Police Station, Ernakulam] [AGAINST CC NO.574/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- II, ALUVA] ## PETITIONER/ACCUSED: M.B. MOIDEEN KUNJU S/O.M.K.BEERAN, MEZHUKKATTIL HOUSE,EDATHALA P.O., ALUVA. BY ADVS. SRI.ROSHEN.D.ALEXANDER SMT.TINA ALEX THOMAS ## RESPONDENTS/STATE & DEFACTO COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2 MUSTHAFA S/O. MUHAMMED, PALLIMUTTATHIL VEETTIL,PANAYIKKULAM, ALANGADU VILLAGE,PARAVUR TALUK. FOR R1 SMT.MAYA M.N. PP FOR R2 SHRI.SHAIJAN C. GEORGE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 4.2.2022, THE COURT ON 18.2.2022 PASSED THE FOLLOWING: CRL.MC No.1459 of 2017 2 ## O R D E R The petitioner is the accused in C.C.No.574 of 2016 on the file of the Judicial First Class Magistrate Court-II, Aluva. The cognizance was taken by the learned Magistrate for the offence punishable under Section 452 of the Indian Penal Code (IPC,) even though the complaint submitted by the 2[nd] respondent herein contained the offences punishable under Sections 406,420,294B, 307 and 506(2) of IPC besides the offence under Section 452 IPC. 2. The case of the petitioner is as follows: The petitioner is stated to be a business man and is a relative of the 2[nd] respondent. Earlier, the petitioner submitted a complaint before Benanipuram Police Station against the 2[nd] respondent and certain other persons, alleging offences punishable under sections 406,420,465,468,471,120B r/w Section 34 of the IPC. The allegations raised by the petitioner against the 2[nd] respondent and other accused in the aforesaid complaint was that, while the petitioner was holding the position of the Managing Director of a Company namely M/s Alwaye Techno Engineering Pvt. Ltd., the accused therein conspired together and created false documents for the purpose of cheating and by using such forged documents as genuine CRL.MC No.1459 of 2017 3 documents, submitted the same before the Registrar of Companies and removed the petitioner from the directorship of the company. It was also stated that, later, the accused therein sold the Company to the strangers and thereby committed the offences mentioned above. After completing the investigation, the police submitted Annexure-A2 final report against the accused persons therein for the offences punishable under Sections 406,420,465,468,471 r/w. Section 34 of the IPC. The Judicial First Class Magistrate CourtII, Aluva had taken cognizance on the said complaint and now it is pending as C.C.No.459/2015. It is the case of the petitioner that as a retaliation and counterblast to the aforesaid complaint, the 2[nd] respondent later filed Crl.M.P.No.931/2014 initially before the Judicial First Class Magistrate Court, Paravur which was later transferred to the Judicial First Class Magistrate Court-II, Aluva alleging offences under Sections 406,420,452,294B,307,506(2) of the IPC. Annexure A3 is the said complaint. The aforesaid complaint contains two allegations. It is alleged that, the 2[nd] respondent had lent a total amount of Rs.26 lakhs to the petitioner at different points of time and when the 2[nd] respondent demanded the money back, the petitioner herein on 23.1.1998 at about 6 p.m. trespassed into the residence of the 2[nd] respondent and threatened him with a knife pointing at his CRL.MC No.1459 of 2017 4 chest. However, no complaint was submitted in respect of the same. But later, on 15.4.2014, the very same incident was allegedly repeated and the complaint was submitted. The learned Magistrate referred the complaint to the police for investigation under section 156(3) of the Code of Criminal Procedure (Cr.PC) and accordingly Crime No.422/2014 was registered by Benanipurm Police Station which is AnnexureA4 produced in the Crl.MC. After completing the investigation, the police submitted Annexure-A5 final report referring Annexure-A3 complaint as false. Upon submission of Annexure A5 refer report, the learned Magistrate issued a notice to the 2[nd] respondent and upon receipt of which, he submitted a protest complaint as Crl.M.P.No.2203/2015 before the learned Magistrate which is Annexure-A6. An inquiry under Section 202 was conducted thereon by the learned Magistrate and thereafter summons was issued to the petitioner herein after taking cognizance for the offences punishable under Section 452 of the IPC and the case is numbered as C.C.No.574/2016. 3. This Crl.M.C. is filed by the petitioner seeking to quash all further proceedings in C.C.No.574/2016. 4. Heard Sri.Roshen D. Alexander, the learned counsel for the petitioner, Smt.Maya M.N., the learned Public Prosecutor for the State and Sri. Shaijan C. George, the learned counsel for the 2[nd] respondent. CRL.MC No.1459 of 2017 5 5. The learned counsel for the petitioner contends that, the act of taking cognizance by the learned Magistrate on the protest complaint submitted by the 2[nd] respondent is bad in law, particularly because of the reason that, while taking cognizance, the materials produced by the police through Annexure A5 final report was not taken into consideration. It is contended that, a detailed investigation has been conducted by the police pursuant to the allegations contained in Annexure-3 complaint submitted by the 2[nd] respondent and after examining the relevant witnesses as well as materials, the police came to the conclusion that the allegations are false. It is also contended by the learned counsel that, the submission of Annexure-A3 complaint itself is as a counterblast to the case registered against the 2[nd] respondent and other accused persons which is now pending as C.C.No.495/2015 before the very same court. The learned counsel also places reliance upon the judgment rendered by this Court in Parameswaran Nair v. Surendran [2009 (1) KLT 794] to canvass the proposition that the protest complaint can be entertained by the court only if it is shown that there is manifest error in the earlier order or manifest miscarriage of justice therein or the complainant was able to bring any new facts which he had no knowledge or could not be produced earlier despite due diligence. CRL.MC No.1459 of 2017 6 6. On the other hand, the learned counsel appearing for the 2[nd] respondent contends that, the protest complaint submitted by the 2[nd] respondent is in fact an objection to the opinion expressed by the police through the refer report and the same cannot be treated as a second complaint. The learned Magistrate has applied his mind properly as is evident from the order passed by the learned Magistrate on 29.6.2016 in Crl.M.P.No.2203/2015, which is produced as Annexure A9 along with Crl.M.A.No.2/2022 by the petitioner. By specifically referring to the order mentioned above, it is contended by the learned counsel for the 2[nd] respondent that, the learned Magistrate found that, there are materials to proceed with the case for the offence punishable under section 452 of the IPC and while passing the said order, the learned Magistrate has taken into consideration the contents of the refer report as well. He places reliance upon Chinnaswamy and Others v. N. Purushothaman and Another [2018(1) KLT 943], Nupur Talwar v. Central Bureau of Investigation, Delhi and Another [(2012)2 SCC 188] and B.Chandrika v. Santhosh and Another [(2014) 13 SCC 699] to canvass the proposition that the right to file a private complaint/protest complaint is a legal remedy available to the petitioner, which cannot be curtailed under any circumstances. It is contended that, if the learned Magistrate was satisfied upon perusal of the CRL.MC No.1459 of 2017 7 materials produced along with the said complaint as to a prima facie case, there is no legal impediment in taking cognizance of the offence and proceed with the same. In such circumstances, the learned counsel for the 2[nd] respondent seeks for dismissal of the Crl.M.C. 7. The specific case put forward by the learned counsel for the petitioner is that, an exhaustive investigation has been conducted by the police and all the witnesses cited by the 2[nd] respondent herein were examined. The opinion that the complaint of the 2[nd] respondent was false, was expressed by the police after investigating all the relevant materials. Since the aforesaid investigation was conducted on the basis of a private complaint submitted by the 2[nd] respondent, which was referred for investigation under section 156(3) of Cr.P.C, the conclusions arrived at by the police after conducting investigation thereon could not have been discarded by the learned Magistrate while taking cognizance on the second complaint submitted by the 2[nd] respondent. As mentioned above, he places reliance upon the judgment in Parameswaran Nair’s case (supra) and contends that in Annexure A6 private complaint, he could not point out specifically, any manifest error or manifest miscarriage of justice in the previous order nor he could produce any new materials which were not available with the police. CRL.MC No.1459 of 2017 8 8. This Court in Parameswaran Nair’s case (supra) considered the manner in which the final report submitted by the police under Section 173(2) of Cr.PC referring the complaint as false, is to be treated and framed guidelines for further proceedings to be taken thereon. After elaborately discussing the various precedents on the point, the legal proposition in that regard were summed up in paragraph 17 of the said judgment as follows: _“17. The well settled legal propositions can be summed up as follows:_ _(1) When a final report is made by an officer of the Police Station under subsection 2 of S.173 of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process._ _(2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report._ _(3) Magistrate can direct further investigation under sub-section 3 of S.156._ _(4) Magistrate can take cognizance on the final report itself under S.190(1)(b) disregarding the opinion of the Police and issue summons._ _(5) Magistrate can take cognizance on the original complaint, where investigation under sub-section 3 of S.156 was earlier_ CRL.MC No.1459 of 2017 9 _ordered and record the statement of the complainant and the witnesses as provided under S.200 and can conduct an inquiry, In that inquiry Magistrate can direct investigation by a Police officer or such other officer as provided under S.202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued._ _(6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second complaint it will lie only if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with due diligence could not have brought forward in the previous proceedings.”_ Going by the legal propositions laid down by this Court in the said judgment it can be seen that the learned Magistrate is not bound by the opinion of the investigating officer and he can discard the report, if he is satisfied that there are sufficient materials to proceed further. In such circumstances, the learned Magistrate can take cognizance of the offence and issue process. However, on the other hand, if the learned Magistrate decides to accept the report, he can drop the proceedings after granting opportunity to the complainant. When notice is received, the complainant can raise his contentions before the learned Magistrate as to why the police report shall not be accepted. Upon considering those objections, the learned Magistrate can either accept the said objections and take cognizance of the same on the basis of the materials CRL.MC No.1459 of 2017 10 produced through the final report of the police or conduct an inquiry under Section 202 of the Cr.PC and it is also competent for the Magistrate to direct further investigation in the matter by invoking power under Section 156(3) of Cr.PC. It is also stated that, if the learned Magistrate accepts the final report and drops the proceedings, after considering the objections raised by the de facto complainant, still the de facto complainant can submit a second complaint and the said complaint can be entertained by the Magistrate, if it is shown that there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with the due diligence would not have brought forward in the previous proceedings. A specific guideline has been stipulated by this Court in Parameswaran Nair’s case (supra) as to the manner in which a final report submitted by the police under Section 173(2) of the Cr.PC referring the complaint as false to be dealt with. 9. The question that arises here is as to whether the procedure adopted by the learned Magistrate in this case is in tune with the legal proposition as laid down by this Court as above. When we examine the aforesaid aspects, it can be seen that the learned Magistrate, after receipt of final report, issued notice to the 2[nd] respondent and CRL.MC No.1459 of 2017 11 thereupon the 2[nd] respondent appeared and submitted Annexure-A6 complaint before the learned Magistrate. Considering the facts and circumstances, the aforesaid complaint can be treated as an objection submitted by the 2[nd] respondent as to the opinion expressed by the police after conducting the investigation. Annexure A9 is the order passed by the learned Magistrate in the aforesaid complaint. It is discernible that, even though summons was ordered, the same was issued in Crl.M.P.No.220/2015 which is Annexure A6 complaint submitted by the petitioner and it is the subsequent complaint. The learned counsel for the petitioner submitted that as the summons was issued on Annexure A6 which is the subsequent complaint, it has to be treated that the learned Magistrate has already accepted the final report submitted by the police and hence in the absence of any manifest error or manifest miscarriage of justice, the same cannot be entertained. However, while considering the aforesaid contention, the observations made by this Court in Parameswaran Nair’s case (supra) at paragraph 18 become relevant which is as follows: _“18. When the Magistrate issue notice to the complainant on receipt of the final report and grants opportunity to the complainant to show why cognizance of the offence is to be taken and the complainant files a protest complaint, it is to be treated only as his objections to the final report, stating his reasons why the report cannot be accepted. If the Magistrate records his statement and that of the_ CRL.MC No.1459 of 2017 12 _witnesses and decides to take cognizance of the offence, after considering all the materials including the final report made by the Police under sub-section 2 of S.173, it is advisable for the Magistrate to record that the final report is not accepted and on the entire materials he is of the opinion that there is ground to proceed and issue summons under S.204 of Code of Criminal Procedure. But the fact that no specific order was recorded that final report is not accepted or fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by themselves are not fatal, if the records show that Magistrate has considered all the relevant materials and applied his mind. If after complying these procedures, an order not to take cognizance is passed by the Magistrate, then a second complaint will lie, only if there was any manifest error or manifest miscarriage of justice in the previous order or the complainant relies on new facts or materials which was not to his knowledge or with reasonable diligence could not have brought forward in the previous proceedings.”_ It is categorically observed by this Court that, merely because of the reason that no specific order was recorded to the effect that the final report is not accepted or that the decision to take cognizance of the offence was recorded in the protest complaint, it cannot be concluded that, the final report was accepted by the learned Magistrate, provided the order passed by the learned Magistrate indicates that he has considered all the relevant materials while passing the said order. Thus, the crucial question to be considered is whether while passing the order taking cognizance, the learned Magistrate has taken into CRL.MC No.1459 of 2017 13 consideration the contents of the final report also. When we consider Annexure A9 order passed in this case, it can be seen that, even though it is stated that, the records were perused, it is not clear as to whether an exercise of consideration of the materials brought out in the final report submitted by the police, was made or not. In such circumstances, a specific conclusion as to whether the learned Magistrate had accepted the final report and the cognizance was taken on Annexure A6 complaint alone is not very clear. Therefore, it cannot be concluded that the procedure as contemplated under Parameswaran Nair’s case (supra) was followed by the learned Magistrate. 10. In such circumstances, I am of the view that Annexure A9 order is to be set aside and the matter has to be remanded back for fresh consideration by following the procedure contemplated in Parameswaran Nair’s case (supra). 11. In the result, by invoking the powers of this Court under Section 482 Cr.PC I hereby set aside Annexure A9 order passed by the Judicial First Class Magistrate Court-II, Aluva in Crl.M.P.No.2203/2015 and the matter is remanded back to the learned Magistrate for fresh consideration of the issue in the light of the principles laid down in Parameswaran Nair’s case (supra). It is made clear that, the learned Magistrate upon hearing the Public Prosecutor and the 2[nd] respondent has to consider the CRL.MC No.1459 of 2017 14 question as to whether Annexure A5 final report is to be accepted or not. For the aforesaid purposes, Annexure-A6 complaint is treated as an objection to Annexure A5 final report. If the learned Magistrate is satisfied that, the final report is not acceptable and an inquiry is to be conducted by himself, he is entitled to conduct such inquiry in the original complaint under sections 202 Cr.PC and he is also competent to order a further investigation in the matter. If the learned Magistrate finds that there are materials to proceed further, the summons can be issued. If there are no grounds to proceed, he can dismiss the complaint as well. It is made clear that, for considering the question as to issuance of process, the learned Magistrate has to consider the materials brought out in the investigation and the averments in Annexure A6 complaint as well. Thereafter, a decision has to be taken as to taking cognizance on original complaint or protest complaint. It is made clear that, at the time of consideration of the issue of taking cognizance, the learned Magistrate need to hear the complainant as well as the learned Public Prosecutor alone. With the above observations, this Crl.MC is disposed of. Sd/- ZIYAD RAHMAN A.A.,JUDGE pkk CRL.MC No.1459 of 2017 15 ## APPENDIX OF CRL.MC 1459/2017 PETITIONER’S EXHIBITS: |ANNEXURE-A1|TRUE COPY OF THE FIR IN CRIME NO. 337/2014| |---|---| ||OF BINANIPURAM POLICE STATION.| |ANNEXURE-A2|TRUE COPY OF THE CHARGE SHEET IN CC NO.| ||459/2015 OF THE FILES OF THE JUDICIAL FIRST| ||CLASS MAGISTRATE COURT - II, ALUVA.| |ANNEXURE-A3|TRUE OF THE COMPLAINT IN CRL.M.P NO.| ||931/2014.| |ANNEXURE-A4|TRUE COPY OF THE FIR LODGED IN CRIME NO.| ||422/2014 OF BINANIPURAM POLICE STATION.| |ANNEXURE-A5|TRUE COPY OF THE FINAL REPORT IN CRIME| ||422/2014 OF BINANIPURAM POLICE STATION| ||FILED BEFORE THE JUDICIAL FIRST CLASS| ||MAGISTRATE COURT - II, ALUVA.| |ANNEXURE-A6|TRUE COPY OF THE PROTEST COMPLAINT IN| ||CRL.MP NO. 2203/2015 ON THE FILES OF| ||JUDICIAL FIRST CLASS MAGISTRATE COURT - II,| ||ALUVA.| |ANNEXURE-A7|TRUE COPY OF THE STATEMENT DATED 08.2.2016.| |ANNEXURE-A8|TRUE COPY OF THE ORDER ISSUING SUMMONS IN| ||CC NO. 574/2016 OF JUDICIAL FIRST CLASS| ||MAGISTRATE COURT -II, ALUVA.|