Muhammad Salim v. Sangeetha and The Sub Inspector of Police, Karunagappally Police Station, Kollam District, and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 6TH DAY OF FEBRUARY 2014/17TH MAGHA, 1935** ## **Crl.MC.No. 40 of 2014** **-------------------------------** **AGAINST THE ORDER IN CRMP 12088/2013 of JUDICIAL FIRST CLASS MAGISTRATE COURT - I, KARUNAGAPPALLY** **-------------** ## **PETITIONER(S):** **---------------------** **MUHAMMAD SALIM, AGED 50 YEARS S/O. USMANKUTTY, VAYALIL HOUSE, KADATHUR MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT.** **BY ADVS.SRI.SUNNY MATHEW SRI.A.ARUNKUMAR** **RESPONDENT(S): --------------------------** ## **1. SANGEETHA,** **D/O. RAVEENDRAN, CHALIL HOUSE THEKKUMMURI KIZHAKKEKARA MURI, THAZHAVA VILLAGE KARUNAGAPPALLY TALUK, KOLLAM DISTRICT-680001.** **2. THE SUB INSPECTOR OF POLICE, KARUNAGAPPALLY POLICE STATION, KOLLAM DISTRICT-680001.** **3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2,3 BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No. 40 of 2014 .................................................. Dated this the 6[th] day of February, 2014. “CR” ## **O R D E R** This is an application filed by the petitioner, who is the complainant in Crl.M.P.No.12088/2013, for a direction to the Judicial First Class Magistrate Court, Krunagappally, to forward the complaint to the second respondent, for investigation under Section 156(3) of the Code of Criminal Procedure (hereinafter referred to as 'the Code') under Section 482 of the Code. 2. It is alleged in the petition that the petitioner filed Crl.M.P.No.12088/13 on the files of the Judicial First Class Magistrate Court, Krunagappally with an allegation that the first respondent herein agreed to sell 7 ares of property to the petitioner for a consideration of Rs.39,000/- per cent and received Rs.2,40,000/- as advance. In the agreement for sale, it has been specifically averred by the first respondent that a pathway having a width of 2 meters leading to the said property also belongs to her and the same also will be assigned to the petitioner. But, on enquiry, it was revealed that the first respondent has no right, interest or ownership over the said 2 Crl.M.C.No. 40 of 2014 pathway and it belongs to a total stranger to the transaction by name one Mohanan. It is a clear case of cheating punishable under Section 420 of the Indian Penal Code. So, the petitioner filed the above complaint before the Magistrate court for sending it to investigation under Section 156(3) of the Code of Criminal Procedure. But the learned Magistrate decided to conduct an enquiry into the matter by himself and directed the complainant to produce his witnesses after recording his sworn statement. The action of the Magistrate decided to conduct enquiry by himself is being challenged by the petitioner by filing this application seeking the following reliefs: 1. To pass an order directing the Judicial Magistrate of First Class, Karunagappally to forward Crl.M.P.No.12088/2013 to the 2[nd] respondent for investigation u/s 156(3) of the Cr.P.C. 2. Any other reliefs which may be prayed for from time to time. 3. Since this Court felt that this petition can be disposed of at the admission stage itself, I have heard the Public Prosecutor as well and dispensed with notice to first respondent as he has no say at this stage. 4. According to the counsel for the petitioner, without 3 Crl.M.C.No. 40 of 2014 investigation by the police, it is not possible for him to prove the case and conducting enquiry by the Magistrate will cause prejudice to him. The learned Public Prosecutor submitted that there is no illegality committed by the Magistrate warranting interference of this Court. 5. The case of the complainant in the complaint was that he entered into a sale agreement with the first respondent in respect of 7 ares of property and the first respondent has agreed to assign the right of way also as per the said agreement. Later, he came to understand that the first respondent has no right over that pathway. Not knowing that the first respondent has no such right, the petitioner has entered into an agreement with the first respondent. But the case of the petitioner was that the first respondent was aware of the same even a t the time of executing the sale agreement. I am not at this stage going into the merits of the case for the purpose of disposal of this application. 6. A complaint has been filed under Section 190(1)(a) read with Section 200 of the Code of Criminal Procedure. The prayer in the complaint was to refer the complaint to the police for investigation under Section 156(3) of the Code of Criminal Crl.M.C.No. 40 of 2014 4 Procedure. Before going into the facts of the case, the relevant sections will have to be considered. 156. **Police officer's power to investigate cognizable case:-** (1) Any officer in charge of a police station may, without the order of a Magistratew, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned. 190. **Cognizance of offences by Magistrate:-** (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), 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. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 200. **Examination of complainant:** - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the 5 Crl.M.C.No. 40 of 2014 witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate; Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192; Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them. 202. **Postponement of issue of process:-** (1) Any Magistrate, on receipt of a complaint of an offence of 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 Sessions;or (b) where the complainant has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. 6 Crl.M.C.No. 40 of 2014 (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath; Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. (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. 7. It is clear from Section 156(3) of the Code of Criminal Procedure that, it was not mandatory for the Magistrate to forward the complaint to the police for investigation under Section 156(3) of the the Code of Criminal Procedure. If the Magistrate feels that he himself can conduct enquiry under Section 202 of the Code of Criminal Procedure, the Magistrate can conduct enquiry by himself instead of forwarding the complaint to the police under Section 156(3) of the Code of Criminal Procedure. 8. In the decision reported in **Sreenivasan v. Nair** (2005 (2) KLT 396) it has been held as follows: “When a complaint is received by the 7 Crl.M.C.No. 40 of 2014 Magistrate, he has two options. He may either apply his mind for the purpose of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of Criminal Procedure. He may instead of proceeding under Chapter XV, order investigation by the police under Section 156 (3) of Cr.P.C. When the Magistrate decides to proceed under S.200, he is said to have taken cognizance of the offence. If he refers the case to police, he cannot be said to have taken cognizance of any offence. If complaint is referred to Station House Officer under S.156(3), the Police has to register a case and investigate the same. The discretion is that of the Magistrate. There is no provision of law which compels a Magistrate to refer the matter to the police. But, since the Magistrate has taken cognizance and decided to conduct enquiry under Section 202 Cr.P.C, this Court cannot compel the Magistrate to refer the complaint to the police under Section 156(3) of the Code of Criminal Procedure”. The same view has been taken by the Division Bench of Allahabad High Court in the decision reported in **Sukhwasi v. State of U.P.** (2008 Crl.L.J472). 9. In this case though the petitioner wanted to complaint to be forwarded to the police for investigation under Section 156(3) of the Code of Criminal Procedure, the Magistrate has opted the second option of conducting enquiry by himself and had taken the sworn statement of the complainant and directed the complainant to produce the witnesses to prove the allegations in the complaint. Further, under Section 202 of the Code of Criminal Procedure, if the Magistrate wants to Crl.M.C.No. 40 of 2014 8 postpone the issue of process, then the Magistrate can direct the complainant to produce all his witnesses and after examination of the witnesses produced, if the Magistrate is satisfied that there is prima facie case to proceed with the complaint, then he can issue process to the accused under Section 204 of the Code of Criminal Procedure. If the Magistrate is not satisfied, then he can dismiss the complaint under Section 203 of the Code of Criminal procedure. If the petitioner wants to produce the documents, he can produce the document before the Magistrate. If he is not in possession of the original document, then he can produce the registration copy of the documents obtained from the Registrar's office and produce the same before the court to prove prima facie his case. 10. So, I don't find any reason to issue a direction as sought for in this petition, since there is no illegality committed by the Magistrate in proceeding with the complaint by conducting enquiry under Section 202 of the Criminal Procedure Code. Further, since the Magistrate has decided to conduct enquiry u/s 202 of the Code, then it is not proper for this Court to send the complaint to the police for investigation u/s 156(3) of the Code as well. So the petitioner is not entitled to Crl.M.C.No. 40 of 2014 9 get the relief claimed in the petition invoking the provisions u/s 482 of the Code and the same is liable to be dismissed. The petition is dismissed. Communicate this order to the concerned court. ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge