NOUFAL M.S. and BUNNIYA MEEN ANWAR v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944** **CRL.A NO. 114 OF 2021** **AGAINST THE ORDER DATED 29.11.2019 IN CRL.M.P.NO.3199/2019** **OF PRINCIPAL SESSIONS COURT, THRISSUR** ## **APPELLANTS/2ND & 3RD ACCUSED :** - **1 NOUFAL M.S., AGED 35 YEARS, S/O.SIDHIK, P.O.CHIRAMANANGAD, MADAPPATTUPARAMBIL HOUSE, PANNITHADAM DESOM, CHIRAMANANGAD VILLAGE, CHIRAMANANGAD P.O., THALAPILLY TALUK, THRISSUR DISTRICT - 680 604.** - **2 BUNNIYA MEEN ANWAR, AGED 56 YEARS, CHIRAKKAL HOUSE, CHIRAMANENGAD P.O., MARATHAMKODE, THALAPILLY TALUK, THRISSUR DISTRICT - 680 840.** **BY ADVS. N.M.MADHU SRI.P.P.HARRIS SMT.C.S.RAJANI SHRI.SOHAIL AHAMMED HARRIS P.P.** ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** - **2 KRISHNAN AGED 65 YEARS S/O.LATE PARANGODAN, KOMARATH HOUSE, UROOB NAGAR, PALLAPURAM P.O. - 680 732, PONNANI, MALAPPURAM DISTRICT.** **BY ADV RAJIT** **BY SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **26.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.Appeal NO.114 OF 2021** -:2:- **“C.R.”** ## **J U D G M E N T** This is an appeal filed assailing order in Crl.M.P.No.3199 of 2019 dated 29.11.2019, on the file of the Special Judge(Principal Sessions Judge), Thrissur under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter will be referred as SC/ST Act for convenience). Accused Nos.2 and 3 in the above case are the appellants. Respondents herein are the defacto complainant and the State of Kerala. 2. I shall refer the parties in this appeal as ‘complainant’, ‘accused’ and 'State' for convenience. 3. It is submitted by the learned counsel for the accused that as per Annexure-A2 order, the learned Special Judge directed investigation under Section 156(3) of Cr.P.C. by forwarding a complaint filed by the complainant to the **CRL.Appeal NO.114 OF 2021** -:3:- Town West Police, Thrissur. It is submitted by the learned counsel for the accused that the order is illegal and the same is without application of mind as to whether a cognizable offence/offences has/have been made out in the complaint. 4. Per contra, the learned counsel for the complainant would submit that going by the allegations in the complaint, the materials are sufficient to see prima facie commission of cognizable offences under Sections 120-B and 347 of IPC as well as under Sections 3(1)(p), 3(1)(q), 3(2) (va) and (vi) of the SC/ST Act and therefore, under Section 154 of Cr.P.C., the Police Officer is bound to register FIR. He also submitted that under Section 156(1) of Cr.P.C., the Police Officer's power to investigate a cognizable case is provided in tune with Section 154 of Cr.P.C. Therefore, even without the order of a Court, the Investigating Officer has a statutory obligation to register FIR in the given facts of this case and to investigate the same. In view of the above legal position, the investigation ordered by the learned Special **CRL.Appeal NO.114 OF 2021** -:4:- Judge requires no interference and this appeal is liable to be dismissed. 5. The learned Public Prosecutor appeared for the State has produced CD in this matter. Similarly, a report dated 19.02.2021 given by the Investigating Officer also has been placed. As per the report, it is stated that the investigation in this matter not completed so far and it is neceesary to arrest and recover materials from the accused. The learned Public Prosecutor also supported the order impugned and prayed for dismissal of the appeal. 6. It is relevant to note further that the anticipatory bail canvassed by the first accused in this crime was earlier dismissed by this Court as per order dated 05.01.2021 in B.A.No.3774 of 2020 and the arrest and interrogation of the appellant has been stayed in this matter. 7. On appraising the rival contentions, it is relevant to extract Section 156 of Cr.P.c. The same is as under: **CRL.Appeal NO.114 OF 2021** -:5:- ## “ **156. Police Officer's power to** ## **investigate cognizable cases** (1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable cases 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 above mentioned. “ 8. A plain reading of the provision would make it clear that any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable cases 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. Section **CRL.Appeal NO.114 OF 2021** -:6:- 156(3) empowers any Magistrate empowered under section 190 of Cr.P.C. to order such an investigation and the said power applies to the special Judge as well _mutatis and mutandis._ 9. In [(2014) 2 SCC 1], [AIR 2014 SC 187], **Lalitha Kumari v. Government of U.P.,** the Apex Court considered the impact of Section 154 of Cr.P.C and it was held that if any information disclosing commission of a cognizable offence laid before an officer-in-charge of the police station satisfying the request under Section 154(1) of Cr.P.C., the said police officer has no other option except to register a case on the basis of such information. However, exemptions carved out in the matter of certain categories of cases wherein, before registration of FIR, preliminary enquiry held necessary. In this matter, commission of offences under Sections 3(1)(p), 3(1)(q) and 3(2)(va) of the SC/SC Act are alleged to be committed by the accused along with IPC offences under Sections 120-B and 347. The said offences **CRL.Appeal NO.114 OF 2021** -:7:- would not include the category of cases excluded by the Apex Court in **Lalitha Kumari** 's case (supra) warranting preliminary enquiry. It is submitted by the learned counsel for the complainant that when the Police failed to register case in relation to the occurrence mentioned in the complaint he had filed complaint under Section 190 of Cr.P.C. before the Special Court, since the Special Court shall have the power to conduct enquiry as provided under Section 200 of Cr.P.C. to decide upon whether cognizance has to be taken or to dismiss the complaint or to order investigation under Section 156(3) of Cr.P.C. No doubt, it is the trite law starting from [AIR 1951 SC 207], **R.R.Chari v. State of Uttar Pradesh** that when the Magistrate applies his mind to the contents of the complaint for the purpose of ordering investigation under Section 156(3) of Cr.P.C., he cannot be said to have taken cognizance of the offence. Following **R.R.Chari** 's case (supra) in the subsequent decisions of the Apex Court also, the law has been settled that the Magistrate **CRL.Appeal NO.114 OF 2021** -:8:- has the power to order investigation under Section 156(3) of Cr.P.C. at pre-cognizance stage, whereas powers under Section 202 of Cr.P.C. to be invoked after cognizance. 10. In this context, it is necessary in the interest of justice to consider the parameters before forwarding a complaint under Section 156(3) of Cr.P.C. In this connection, I would like to refer the relevant judgments of the Apex Court in this regard. 11. In a decision of the Apex Court in **Anil Kumar v. M.K.Aiyappa** reported in (2013) 10 SCC 705 : (AIR 2014 SC (Supp) 1801), it was held as under: “11. The scope of S.156(3) Cr.P.C. came up for consideration before this Court in several cases. This Court in Maksud Saiyed case [(2008) 5 SCC 668 : (AIR Online 2007 SC 332)] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under S.156(3) and held that where jurisdiction is exercised on a complaint filed in terms of S.156(3) or S.200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under S.156(3) against a public servant without a valid **CRL.Appeal NO.114 OF 2021** -:9:- sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone throuogh the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under S.156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor Special Judge which, in our view, has stated no reasons for orderin investigation.” 12. In another decision of the Apex Court reported in (2010) 4 Supreme Court Cases 185 : (AIR 2010 SC 1877) titled **Rameshbhai Pandurao Hedau v. State of** **Gujrat** , it has been stated that while the power to direct a police investigation under S.156(3) is exercisable at the precognizance stage, the power to direct an investigation or any enquiry under S.202(1) is exercisable at the post-cognizance stage, when the Magistrate is in seisin of the case. 13. The same view has been expressed in **Suresh Chand Jain case** reported in (2001) 2 SCC 628 : **CRL.Appeal NO.114 OF 2021** -:10:- (AIR 2001 SC 571) : 2001 SCC (Cri) 377 as well as in **Dharmeshbhai Vasudevbhai case** , reported in (2009) 6 SCC 576 : (2009) 3 SCC (Cri) 76 : 2009 CriLJ 2969 (SC) and in **Devarapalli Lakshminarayana Reddy case** , reported in (1976) 3 SCC 252 : 1976 SCC (Cri) 380 : AIR 1976 SUPREME COURT 1672. The settled legal position has been enunciated by the Hon'ble Supreme Court in several decisions. The powers under S.156(3) can be invoked by the Magistrate at a pre-cognizance stage, whereas powers under S.202 of the Code are to be invoked after cognizane is taken on a complaint, but before issuance of process. 14. The decision of the Apex Court in **Dilawar Singh v. State of Delhi case,** reported in(2007) 12 SCC 641 : (AIR 2007 SC 3234) : (2008) 3 SCC (Cri) 330, the difference in the investigative procedure in Chapters XII and XV of the Code has been recognized and in that case the Hon'ble Supreme Court also appears to have taken the view that any Judicial Magistrate, before taking cognizance of an **CRL.Appeal NO.114 OF 2021** -:11:- offence, can order investigation under S.156(3) of the Code and in doing so, he is not required to examine the complainant since he was not taking cognizance of any offence therein for the purpose of enabling the police to start investigation. In this case, the decision in **Suresh Chand Jain case** reported in (2001) 2 SCC 628 : (AIR 2001 SC 571) : 2001 SCC (Cri) 377 also referred. 15. In this matter, as per Annexure-A2 order, the learned Special Judge passed the order to the following effect: “Report received from Station House Officer, Thrissur West Police Station stating that no case was registered in connection with this incident. So this complaint is forwarded to Station House Officer, Town West Police Station for investigation under Section 156(3) Cr.P.C.” 16. Indubatably, the legal position is clear that the Magistrate or the Special Judge while order in investionation under Section 156(3) of Cr.P.C. shall no do the **CRL.Appeal NO.114 OF 2021** -:12:- same in a mechanical manner and the Magistrate or the Special Judge shall apply his mind without overlapping the thin line separating the stage of pre-cognizance and limiting the power outside the purview of cognizance. The Magistrate or Special Judge shall read the complaint and make a primary satisfaction that the allegations mentioned in the complaint would make a prima facie case involving commission of cognizable offences and the said application of mind should be reflected in the order. On recording such prima facie satisfaction alone the Magistrate or the Special Judge shall forward a complaint for investigation under Section 156(3) of Cr.P.C. 17. In this matter, reading the order impugned what has transpired is that the learned Special Judge in very mechanical manner without applying the mind and without making a finding that the allegations in the complaint constituted commission of cognizable offence, issued direction for investigation under S.156(3) of the Code, **CRL.Appeal NO.114 OF 2021** -:13:- ignoring the very spirit of the law, in terms whereof the Special Judge has been authorized/empowered to issue direction for investigation under S.156(3) of the Code. Thus, the direction under S.156(3) is issued as per the impugned order could not be justified and the same requires interference. In the result, this appeal stands allowed and the order impugned stands set aside. It is ordered that the learned Sessions Court, Thrissur shall consider Annexure-A4 complaint filed by the defacto complainant afresh within the mandate of Section 190 read with Section 156(3) of Cr.P.C. and the settled law discussed herein above and pass fresh order. The learned Special Judge shall do the said exercise within a period of thirty days from the date of receipt or production of a copy of this judgment. It is specifically made clear that the Investigating Officer who has been vested with power to register a **CRL.Appeal NO.114 OF 2021** -:14:- cognizable offence under Section 154 read with 156(1) of Cr.P.C. as settled in **Lalitha Kumari** 's case (supra) can suo motu register a crime afresh and he can investigate the same and the said right is kept in tact and this judgment shall not bar such statutory action. Sd/- **A. BADHARUDEEN JUDGE** rkj **CRL.Appeal NO.114 OF 2021** -:15:- ## **APPENDIX OF CRL.A 114/2021** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**| |---|---| |**ANNEXURE A1**|**TRUE COPY OF THE COMPLAINT IN CRL**| ||**M.P.NO.3199/2019 ON THE FILES OF THE**| ||**SESSIONS COURT, THRISSUR.**| |**ANNEXURE A2**|**CERTIFIED COPY OF THE ORDER DATED**| ||**29/11/2019 IN CRL.M.P.NO.3199/2019**| ||**PASSED BY THE SESSIONS COURT, THRISSUR.**| |**ANNEXURE A3**|**TRUE COPY OF THE FIRST INFORMATION**| ||**REPORT IN CRIME NO.863/2019 OF THRISSUR**| ||**TOWN WEST POLICE STATION.**| |**ANNEXURE A4**|**TRUE COPY OF THE COMPLAINT SUBMITTED BY**| ||**THE FIRST APPELLANT'S WIFE BEFORE THE**| ||**S.I. OF POLICE, WEST TOWN P.S.,**| ||**THRISSUR.**| |**ANNEXURE A5**|**TRUE COPY OF THE AGREEMENT EXECUTED BY**| ||**THE FIRST APPELLANT AND 2ND RESPONDENT.**| |**ANNEXURE A6**|**TRUE COPY OF THE REPORT SUBMITTED BY**| ||**THE ASST. COMMISSIONER OF POLICE,**| ||**THRISSUR BEFORE THE DISTRICT PRINCIPLE**| ||**SESSIONS COURT, THRISSUR.**| |**ANNEXURE A7**|**TRUE COPY OF THE ORDER DATED 13/12/2019**| ||**PASSED BY THE SESSIONS COURT, THRISSUR.**| |**ANNEXURE A8**|**TRUE COPY OF THE ORDER DATED 05/01/2021**| ||**IN BAIL APPL.NO.3774/2020.**|