Mohammed Saheer v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 6[TH] DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945 CRL.MC NO. 5493 OF 2016 ``` ``` CRIME NO.193/2008 OF Chittar Police Station, Pathanamthitta AGAINST THE JUDGMENT IN CC 756/2014 OF JUDICIAL MAGISTRATE OF ``` ## **`FIRST CLASS,RANNI`** ## **`PETITIONER/2ND ACCUSED:`** ``` MOHAMMED SAHEER AGED 46 YEARS S/O. NOORUDEEN, AGED 46 YEARS, MANGALATH HOUSE, BLAANGAD, CHAVAKKAD VILLAGE, THRISSUR DISTRICT. BY ADV SRI.RAJIT ``` ## **`RESPONDENTS/STATE/DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2THOMAS VARGHESE, AGED 41 YEARS, MELEDATH HOUSE, RAANI TALUK, SEETHATHOD VILLAGE, PATHANAMTHITTA DISTRICT, PIN- 689 667. ``` ``` SENIOR PUBLIC PROSECUTOR SRI RENJITH GEORGE SENIOR PUBLIC PROSECUTOR SRI P K DENNY DEVASSY ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.11.2023, THE COURT ON 06.11.2023 PASSED THE FOLLOWING: ``` Crl.M.C.No.5493/2016 2 ## _**A. BADHARUDEEN, J.**_ _**================================** Crl.M.C No.5493 of 2016_ _================================ Dated this the 6th day of November, 2023_ ## _**O R D E R**_ This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure Code and the prayers in this petition are as under: _“1. Quash the proceedings pending against the petitioner_ _as C.C.756/2014 of the learned Judicial First Class Magistrate Court, Ranny, arising from Crime No.193/08 of Chitaar Police Station;_ _2. Grant such other relief deemed fit to this Hon’ble_ _Court.”_ 2. Petitioner is the 2nd accused in Crime No.193/2008 of Chittaar Police Station, now pending as C.C.No.756/2014 on the files of the Judicial First Class Magistrate Court, Ranni. Crl.M.C.No.5493/2016 3 3. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor appearing for the State. Though notice was served upon the 1st respondent, he did not appear. 4. The learned counsel for the petitioner raised 2 contentions in this petition to justify quashment of the proceedings. The first point argued is that as per the prosecution case, there is no allegation to the effect that the petitioner borrowed any amount with dishonest intention and thereby cheated the defacto complainant or any others. The second point argued is that cognizance taken by the Magistrate in this crime, acting on the final report filed by the police, is illegal. The learned counsel for the petitioner argued that cognizance taken by the Magistrate on the finding that the petitioner herein along with accused 1 and 3 committed offence punishable under Section 420 r/w Section 34 of the Indian Penal Code is non-est, since the Magistrate miserably failed to comply the mandate of Section 202(1) of the Code of Crl.M.C.No.5493/2016 4 Criminal Procedure (`Cr.P.C’ for short), wherein it has been specifically provided as under: _“Any Magistrate, on receipt of complaint of an offence which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:_ _PROVIDED that no such direction for investigation shall be made--_ _(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or_ _(b) where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200._ _xxxx xxxx xxxx”_ 5. According to the learned counsel for the petitioner, the amendment introduced w.e.f 21.06.2006 to the Code of Criminal Crl.M.C.No.5493/2016 5 Procedure brought into the words “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction”. Therefore, the Magistrate, on receipt of complaint of an offence which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. It is specifically argued that in this case, non compliance of Section 202(1) Cr.P.C, is foreseeable when the learned Magistrate took cognizance against the petitioner, who has been residing outside the jurisdiction of the Magistrate, and the same would go to the root of the matter. Accordingly the cognizance is bad in law. 6. While appraising the contentions raised by the learned counsel for the petitioner, in this matter, evidently as per the Crl.M.C.No.5493/2016 6 address shown in the F.I.R and the final report at the time of cognizance, the petitioner has been residing in Chavakkad village of Thrissur district. Initially the complaint was lodged before the Judicial First Class Magistrate, Ranni against accused 1 to 3 on the allegation that accused 1 to 3 offered job of an Electrician in Al Hilari Exporting Company, Dubai, with a monthly salary of Rs.18,000/-. Further the accused agreed to provide job to one Saji. Accordingly, the complainant and Saji reached Chennai during April, 2008, and they were subjected to medical test by paying Rs.1,000/- as fee. Thereafter, they jointly received Rs.35,000/from the complainant and Saji and failed to offer the job. Further Rs.20,000/- was received by accused No.3 from one Tiju, offering job abroad. The allegation is that the accused borrowed Rs.35,000/- from the complainant; Rs.35,000/- from the second witness; Rs.20,000/- each from the first and third witnesses, further Rs.30,000/- each from witness Nos.5 to 26 and Rs.40,000/- each Crl.M.C.No.5493/2016 7 from witness Nos.27 to 29. This is the base on which the complainant alleged commission of offences punishable under Section 420 r/w Section 34 of I.P.C. 7. On receipt of the complaint, the learned Magistrate forwarded the same to Chittaar police for investigation under Section 156(3) of Cr.P.C. After investigation, the police filed final report against accused Nos.1 to 3, in terms of Section 173(2) of Cr.P.C, alleging commission of a cognizable offence. Thereafter, acting on the final report, the learned Magistrate took cognizance in this matter and issued summons to the accused, including the petitioner. Going by the narration of the address of the 2nd accused/petitioner herein, it is true that he is residing outside the jurisdiction of the learned Magistrate at the time of filing of the complaint, investigation by the police, filing of the final report and at the time of cognizance by the Magistrate. 8. The learned counsel for the petitioner placed decision of the Apex Court reported in [2014 KHC 638] _**Vijay Dhanuka etc. v.**_ Crl.M.C.No.5493/2016 8 ## _**Najima Mamtaj Etc.**_ , wherein the Apex Court held as under: _“(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. “(underlining ours) Section 202 of the Code, inter alia, contemplates postponement of the issue of the process “in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not. The words “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” was inserted by Section 19 of Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f 23rd of June, 2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows:_ _“False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend subsection (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding_ Crl.M.C.No.5493/2016 9 _out whether or not there was sufficient ground for proceeding against the accused.” The use of the expression `shall’ prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression “shall” and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate. In view of the decision of this Court in the case of_ _**Udai Shankar Awasthi v. State of Uttar Pradesh** , (2013) 2 SCC 435, this point need not detain us any further as in the said case, this Court has clearly held that the provision aforesaid is mandatory. It is apt to reproduce the following passage from the said judgment:_ _“40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the AmendmentAct, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquiry into the case himself, or to direct investigation to be made by a police officer, or by_ Crl.M.C.No.5493/2016 10 _such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases.” (underlining ours) In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code._ 9. In _**Vijay Dhanuka etc. v. Najima Mamtaj Etc.**_ ’s case ( _supra_ ), the Apex Court also considered the meaning and scope of the word “inquiry” and held as under: _(g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate Court;_ _xxx xxx xxx_ _“It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or Court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any.”_ 10. On these background, the points pose for consideration are: (1) Whether an inquiry by the Magistrate or an investigation by a police officer or by such other persons, as Crl.M.C.No.5493/2016 11 directed by the Magistrate, contemplated under Section 202(1) of Cr.P.C is mandatory, before cognizance of an offence, when the accused is a person residing at a place beyond the area in which the Magistrate exercises his jurisdiction? (2) If mandatory, on what contingencies compliance would become mandatory? 11. In this connection, it is to be noted that postponement of issue of process, keeping the case at the pre-cognizance stage, against the accused, who has been residing outside the jurisdiction of the Magistrate, without having an inquiry by the Magistrate himself or without directing an investigation to be done by the police officer or by such other persons, as the Magistrate thinks, is mandatory on two contingencies dealt under Section 202 (1) of Cr.P.C, which are as under: (i) when the Magistrate receives a complaint of an offence which he is authorised to take cognizance; (ii) which has been made over to the Magistrate under Crl.M.C.No.5493/2016 12 Section 190 of Cr.P.C. 12. When considering the 2 contingencies dealt under Section 202(1) of Cr.P.C, the same is confined to (1) when the Magistrate receives a complaint, disclosing a cognizable offence and (2) when the Chief Judicial Magistrate makes over a case under Section 192 of Cr.P.C, thereupon such Magistrate may hold an inquiry. 13. In this regard, it is necessary to refer the definition of the terms `complaint' defined under Section 2(d), `police report' as defined under Section 2(r) and `investigation' defined under Section 2(h) of Cr.P.C are necessary, which are extracted as under: _“2(d): `complaint’ means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report._ _Explanation: A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such_ Crl.M.C.No.5493/2016 13 _report is made shall be deemed to be the complainant._ _2(r): `police report’ means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173._ _2(h): `investigation’ includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.”_ 14. Section 190 of Cr.P.C deals with cognizance of offences by Magistrate. It has been provided therein that the Magistrate may take cognizance of any offence : (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. 15. Section 192 Cr.P.C deals with making over of cases to Magistrates by the Chief Judicial Magistrate after taking cognizance of an offence. Crl.M.C.No.5493/2016 14 16. Going by the definition, `police report’ in a cognizable offence means, a report forwarded by a police officer to a Magistrate under Section 173(2) of Cr.P.C. But a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a `complaint’; and the police officer by whom such report is made shall be deemed to be the complainant. Thus, a police report disclosing a non-cognizable offence alone is a deemed complaint; whereas report filed under Section 173(2) Cr.P.C is not a complaint as contemplated in Section 202(1) of Cr.P.C. Therefore, when the Magistrate receives a complaint of facts which constitute a cognizable offence committed by an accused, who has been residing outside the jurisdiction of the Magistrate, the Magistrate shall comply the mandate of Section 202(1) of Cr.P.C in the matter of inquiry or investigation before taking cognizance and issuance of process against the accused shall be postponed till completion of the Crl.M.C.No.5493/2016 15 inquiry or investigation, required under Section 202(1) of Cr.P.C and a decision as to whether issue of process to the accused is necessary after taking cognizance of the offence/s to be made shall be based on the outcome of such inquiry or investigation, as the case may be. To the contrary, when the Magistrate receives a police report as defined under Section 2(r) of Cr.P.C, the Magistrate is legally empowered to take cognizance without following the mandate of Section 202(1) of Cr.P.C in the matter of inquiry or investigation. Indubitably investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf, as defined under Section 2(h) of Cr.P.C. 17. This legal position is very clear following the ratio in _**Udai Shankar Awasthi v. State of Uttar Pradesh**_ ( _supra_ ) and _**Vijay Dhanuka etc. v. Najima Mamtaj Etc.**_ ( _supra_ ) that in the above Crl.M.C.No.5493/2016 16 contingencies, compliance of Section 202(1) inquiry by the Magistrate or an investigation to be made by a police officer or any such other persons as the Magistrate thinks fit is mandatory. 18. On a meticulous reading of Section 202(1) of Cr.P.C, in juxtaposition with the other provisions dealt in detail, the same would not make it mandatory that an inquiry or investigation contemplated therein to be followed by a Magistrate before taking cognizance, acting on a police report arose out of _suo motu_ investigation by the investigating officer, or on the basis of an investigation done as directed by the Magistrate under Section 156(3) of Cr.P.C, which culminated in filing of a police report as defined under Section 2(r) of Cr.P.C, and as provided under Section 173(2) of Cr.P.C. Section 190(1)(b) of Cr.P.C specifically provides that Magistrate can take cognizance of offence upon a police report of such facts. 19. Therefore, it has to be concluded that the Magistrate, on Crl.M.C.No.5493/2016 17 receipt of a complaint of an offence which he is authorised to take cognizance on receipt of a complaint which has been made over to him under Section 192 Cr.P.C, shall make an inquiry into the allegations therein or direct an investigation to be made by police or by such other persons as he thinks fit when the accused has been residing at a place beyond the jurisdiction of the Magistrate. At the same time, when police report is filed under Section 173(2) of Cr.P.C disclosing commission of cognizable offence/s by the accused, who is residing outside the jurisdiction of the Magistrate, acting on the final report, a Magistrate could very well take cognizance of the matter and in such a case, compliance of Section 202(1) Cr.P.C, as argued by the learned counsel for the petitioner, is not mandatory. Here the final report filed by the police is one disclosing commission of a cognizable offence punishable under Section 420 of I.P.C, within the ambit of Section 173(2) of Cr.P.C and as such the cognizance taken by the Magistrate in this case, Crl.M.C.No.5493/2016 18 without complying inquiry or investigation, is perfectly in order. 20. Inasmuch as the first challenge raised by the learned counsel for the petitioner is concerned, on scrutiny of the final report, it is discernible that _prima facie_ materials are in abundance to see the allegation of commission of offence punishable under Section 420 r/w Section 34 of IPC by the accused, the petitioner herein and, therefore, this is a fit case where trial is necessary. Therefore, none of the contentions raised by the petitioner to close the proceedings would succeed and resultantly, the Crl.M.C must fail. Accordingly, this Crl.M.C stands dismissed. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_ Crl.M.C.No.5493/2016 19 ## **`APPENDIX OF CRL.MC 5493/2016`** ``` PETITIONER'S ANNEXURES ``` ``` ANNEXURE ATRUE COPY OF THE COMPLAINT SUBMITTTED BY THE 2ND RESPONDENT. ``` ``` ANNEXURE BTRUE COPY OF THE F.I.R. REGISTERED AGAINST THE PETITIONER. ANNEXURE CTRUE COPY OF THE CHARGE SHEET IN CRIME NO. 193/2008 OF THE CHITAAR POLICE STATION. ```