Muhammed Irshad v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 11[TH] DAY OF JULY 2023 / 20TH ASHADHA, 1945 CRL.REV.PET NO. 275 OF 2021** **AGAINST Crl.M.P.564/2021 OF JUDICIAL MAGISTRATE OF FIRST** **CLASS -II, KASARAGOD** ## **REVISION PETITIONER/COMPLAINANT:** **MUHAMMED IRSHAD AGED 31 YEARS, S/O. K.ABDULLA MASTER OCC. BUSINESS, RESIDING AT IRSHAD MANZIL, NAIKAPPU, KUMBALA P.O, KASARGODE.** **BY ADVS. SRI.BIJU ANTONY ALOOR SRI.K.P.PRASANTH SMT.ARCHANA SURESH SMT.T.S.KRISHNENDU** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 SRI.K.A.NOUSHAD,PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.07.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P. No.275/21 **-:2:-** **“C.R.”** ## **BECHU KURIAN THOMAS, J. -------------------------------Crl.R.P. No.275 of 2021 ---------------------------------** Dated this the 11[th] day of July, 2023 ## **ORDER** Revision petitioner challenges an order issued by the Judicial First Class Magistrate's Court-II, Kasaragod in Crl.M.P. No.564 of 2021. By the impugned order, the learned Magistrate has refused to forward the complaint to the police for investigation under section 156(3) Cr.P.C and has instead decided to provide an opportunity to the complainant by directing his examination under section 200 Cr.P.C. 2. The revision petitioner, who is the complainant, alleged that the accused had obtained an amount of Rs.94,00,000/from the complainant allegedly for improving a company by the name 'Rastech Engineering' owned by accused 1 and 2. The complainant is alleged to have been induced to make investments in the above company by even the remaining accused, who made him believe that they were receiving profits Crl.R.P. No.275/21 **-:3:-** from the investments made by them. 3. The complainant alleged that the accused had approached him in January 2012 and induced him to deposit Rs.One Million Qatar Riyal, while accused 3 to 5 came to the house of the complainant on 26.02.2012 and informed him that they have also invested in the business and are deriving income. Based upon the aforesaid inducements and promises, the complainant and his friends are alleged to have invested large amounts of money in 2012 with the expectation that they would get a share of the profit. However, in 2013, when the complainant demanded his share of profits, it was misrepresented that the company could not be started. Thereafter, accused requested further amounts to be deposited, which was also done in June, 2013. Later, on realising that the office of the accused in Qatar was closed, revision petitioner enquired about it which resulted in accused 1 and 2 abusing the complainant and even stating that they had no intention to return the money. 4. Later, the complainant returned to India on 25.01.2014 and tried to contact accused 1 and 3 to 5 and again, they abused the complainant and threatened him. It is also alleged that when Crl.R.P. No.275/21 **-:4:-** the father of the defacto complainant filed a nomination for contesting in an election, mediation talks were conducted and with the intervention of the seventh accused, it was promised that the disputes would be settled before October, 2019. It is the case of the complainant that the nomination to contest the election was withdrawn by the father of the complainant based upon the settlement arrived at. However, it was subsequently realised that the assurance given by the seventh respondent regarding the settlement was only a game played by them. 5. The learned Magistrate, by the impugned order dated 29-03-2021, went through the documents produced and noticed that the alleged transaction is stated to have occurred more than a decade ago and rejected the request to refer the matter to the police for investigation and instead thought it fit to examine the complainant under section 200 Cr.P.C. 6. Aggrieved by the order directing the examination of the complainant under section 200 Cr.P.C, and declining to refer the matter to the police for investigation under section 156(3) Cr.P.C, the revision petitioner has approached this Court in this criminal revision petition. 7. Sri. Biju Antony Aloor, the learned counsel for the Crl.R.P. No.275/21 **-:5:-** revision petitioner, contended that the order of the learned Magistrate is irregular and improper. According to him, when a complaint is filed under section 190 Cr.P.C, the Magistrate has no option other than to refer the same to the police for investigation under section 156(3). The learned counsel asserted that, in view of the decision of the Supreme Court in **M/s Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd. v. The State** **of Maharashtra and Another** (Crl. Appeal No.680/2021), there is no option for the Magistrate other than to refer to the police, whenever he is in receipt of a complaint alleging offences, for investigation under section 156(3) Cr.P.C. 8. Sri. K.A.Noushad, the learned Public Prosecutor, on the other hand, submitted that there is no merit in the revision petition. It was submitted that the Magistrate has the discretion to decide whether to refer the matter for investigation or to proceed to take the statement of the witnesses and to issue or not to issue process. 9. On a consideration of the rival contentions and on a perusal of the impugned order, it is evident that the revision petitioner has not been put to any prejudice, and none of his rights have been affected by the order under challenge. The Crl.R.P. No.275/21 **-:6:-** impugned order only observes that the complaint need not be referred for investigation to the police under section 156(3) Cr.P.C, and instead, the Court has called upon the complainant to be examined under section 200 Cr.P.C. 10. The learned Magistrate has, in the impugned order, observed that the alleged transaction had occurred several years ago and that the circumstances alleged do not require a police investigation. The learned Magistrate has also noticed that the procedure under section 156(3) Cr.P.C, is not the only option available to the Magistrate and that the circumstances require examination of the complainant under section 200 Cr.P.C. 11. The contention of the learned counsel for the revision petitioner that when a complaint is filed, the Magistrate has no option other than to refer the complaint for investigation to the police under section 156(3) Cr.P.C. is, according to me, without merit and contrary to law. The decision in **M/s Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd. v. The State of Maharashtra and Another** (Crl. Appeal No.680/2021), relied upon by the revision petitioner, does not lay down such a proposition. The decision only refers to the options available to the Magistrate. Of course, the situation would be different if the Crl.R.P. No.275/21 **-:7:-** Magistrate is of the view that the allegation is of such a nature which cannot be proved otherwise than by a police investigation and requires extensive material to be unearthed. In complaints alleging offences like murder, sexual offences and other similar crimes, it would be desirable and even essential that the matter be investigated by the police. However, a parallel cannot be drawn in respect of offences under sections 420,and 406 IPC or other similar offences. Further, when the Magistrate is not prima facie satisfied from the allegations in the complaint that an investigation by the police is required, in the absence of any peculiar circumstance rendering such an order perverse, this Court would seldom interfere. 12. In the decision in Smt. **Nagawwa v. Veeranna Shivalingappa Konjalgi and Others** [(1976) 3 SCC 736], the Supreme Court had observed that in the process of taking cognizance and issue of process to the accused, the Magistrate has to form an opinion that a prima facie case is made out against the accused. At that stage, the Magistrate is also competent to consider whether there are inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant. It was observed in the said decision that “ _the_ Crl.R.P. No.275/21 **-:8:-** _Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused_ ”. 13. The decision in **Nagawwa’s case** (supra) was relied upon by the Supreme Court in **Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others** [(2015) 12 SCC 420], where it was even observed that if the complaint on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under section 190(1)(a) Cr.P.C and the complaint can simply be rejected. ( _see paragraph 21_ ). Further, the use of the word ‘may’ in section 156(3) of Cr.P.C indicates a discretion to the Magistrate to refer or not to refer the complaint to the police. Of course, the discretion must be exercised properly. 14. In view of the above discussion, it is evident that when a complaint alleging the commission of an offence is filed before a Magistrate’s court, the learned Magistrate has the option to Crl.R.P. No.275/21 **-:9:-** either refer the complaint for investigation under section 156(3) Cr.P.C or to proceed to examine the complainant under section 200 or even to reject the complaint, if it is satisfied that an offence is not disclosed. As observed earlier, in either case, it is not for this Court to substitute its own decision for that of the Magistrate or to examine the case on merits in the absence of any perversity. However, the situation could be different when the alleged crime is one of murder, rape or other heinous crimes. In such a situation, the word ‘may’ in S.156(3) can take the colour of a mandatory requirement. 15. On a perusal of the impugned order, this Court is satisfied that the learned Magistrate was justified and acted in accordance with the law by directing the complainant to be examined under section 200 Cr.P.C. instead of referring the case to the police for investigation under section 156(3) Cr.P.C. Therefore there is no merit in this criminal revision petition, and it is dismissed. **Sd/-** ## **BECHU KURIAN THOMAS** **JUDGE** vps Crl.R.P. No.275/21 **-:10:-** ## **APPENDIX** ## **PETITIONER'S/S' ANNEXURES** **ANNEXURE A COPY OF THE ORDER PASSED IN CRL.M.P. NO. 564/2021 DATED 29.03.2021.**