P.N. SAGAR and P. ASOK KUMAR v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 19TH DAY OF AUGUST 2016/28TH SRAVANA, 1938** **CRL.REV.PET.NO. 64 OF 2005 ( ) -------------------------------** **AGAINST THE JUDGMENT IN CRMP NO.1501/2000 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PUNALUR DATED 22-09-2004** **------------------------** **REVISION PETITIONER(S)/COMPLAINANTS::** **-----------------------------------** **1. P.N. SAGAR, SREEKOVIL, PANANGAD, PUNALUR.** **2. P. ASOK KUMAR, SREEKOVIL, PANANGAD, PUNALUR.** **BY ADV. SRI.T.RAJESH** **RESPONDENT(S):** **--------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-------------------------------Crl. Rev.Pet. No.64 of 2005 ---------------------------------Dated this the 19[th] day of August, 2016** ## **O R D E R** This revision petition is filed by the complainants in Criminal M.P. No.1501 of 2000 of the Judicial First Class Magistrate Court-III, Punalur which was filed under Secs.324, 334 and 331 read with Sec.34 of the Indian Penal Code ('IPC' for short). The 2[nd] complainant's case is that on 24.07.1999 at 2.00 a.m., the accused entered into his house and threatened to kill the 1[st] complainant. A2 sprinkled chilly powder into eyes of the 1[st] complainant. When the 2[nd] complainant attempted to telephone the police, A3 interfered and A2 strangulated the neck of the 1[st] complainant by using a towel thereby committed the aforesaid offences. In this incident they filed a complaint in the Judicial First Class Magistrate-III, Punalur which was forwarded to Sub Inspector of Police, Punalur under Sec.156(3) Cr.P.C, where they registered a crime and after conducting Crl. Rev.Pet. No.64 of 2005 2 investigation, they referred the case. Being aggrieved by that, they preferred a complaint in the trial court. 2. Complainant examined two witnesses in the trial court. After hearing the complainant and perusing the evidence, the learned Magistrate dismissed the complaint. Being aggrieved by that, the complainants approached this Court with this revision petition. 3. According to Sec.203 of the Code of Criminal Procedure, if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. 3. Four Judge bench of the honourable Supreme Court in **Chandra Deo Singh** Vs. **Prokash Chandra Bose and Another [AIR 1963 SC 1430]** held that the High Court has further relied upon the investigation Crl. Rev.Pet. No.64 of 2005 3 made by the police in the complaint of Panchanan Roy. All this will be clear from the following passage in its judgment: “ The version of these two witnesses (Pannalal Saha and Sankar Ghose) is supported by the fact that the police when they went to the locality found a dead bird and a pair of shoes and a pair of black half pants in wet condition. This find of the dead bird and the pair of shoes etc. has not explained on the version given by Panchanan Roy, Upendra Mondal and Tarapado Naru. Mr. Ajit Kumar Dutt stated that the inquiring Magistrate was not right in examining Pannalal Saha and Shankar Ghose at the suggestion of an advocate for the accused Chabbi Bose and that the latter should not have been allowed at the inquiry. When however there had already been a full investigation into the case by the officers under the supervision of the Superintendent of Police, it was desirable and proper for the inquiring magistrate to made a careful inquiry and not merely an one sided inquiry by examining such witnesses as might be produced by an interested party. Moreover, in this case, the learned magistrate was inquiring into both the complaints simultaneously and necessarily he could look at the evidence as a whole. In fact, two separate cases ought not to have been started at all, even though there were two separate complaints giving two different versions. These complaints were more or less Naraji petitions against the final report submitted by the police. There was only one incident in the course of which Crl. Rev.Pet. No.64 of 2005 4 Nageswar Singh has lost his life. Therefore on the basis of the two Naraji petitions it would have been proper to hold one inquiry rather than two separate though simultaneous inquries.” In **Nathi Rai v. State of UP [ (1981) 3 SCC 575]** when no allegation is made against the appellant proceeding against the appellant on the basis of such complaint would be abuse of process of court. A three bench Judge of the apex court in **Nirmaljit Singh Hoon v. State of West Bengal and Another [(1973) 3 Supreme Court** ## **Cases 753]** held as follows: The Police officer acting under Section 156(3) is not a delegate of the Chief Presidency Magistrate and the investigation by him is not an investigation b or on behalf of the Magistrate. The police authorities have under Sections 154 and 156 of the Code a statutory right to investigate into cognizable offence without requiring any sanction from a judicial authority and even the High Court has no inherent power under Section 561-A of the Code to interfere with the exercise of that statutory power. King-Emperor v. Khwaja Nazir Ahmed, AIR 1945 PC 18: 71 IA 203, relied on Once an investigation by the police is ordered by a Magistrate, the Magistrate cannot place any limitations ## Crl. Rev.Pet. No.64 of 2005 5 on or direct the officer conducting it as to how to conduct it. Secondly, before Magistrate can be said to have taken cognizance of an offence under Section 190(1)(a) of the Code, he must have not only applied his mind to the contents of the complaint presented before him but must have done so for the purpose of proceeding under Section 200 and the provisions following that section. But where he has applied his mind only for ordering an investigation under Section 156(3) or issuing a warrant for purposes of investigation, he cannot be said to have taken cognizance of the offence. (Para 35) R.R. Chari v. State of U.P., AIR 1951 SC 207: 1951 SCR 312, 320-321: 1951 SCJ 302; Jamuna Singh v. Bhadsi Sah, (1964) 5 SCR 37 : AIR 1964 SC 1541: (1964) 2 SCJ 439, relied on (ii) The object and purpose of Section 195(1)(c) is that it is the court before which an offence is alleged to have been committed in respect of document produced in a proceeding before it by a party to such proceeding, which should file or caused to be filed a complaint and not a private party. The words “such court” used in Section 195(1)(c) of the Code mean the very court before which a party to a proceeding in that court has produced or tendered in evidence a document in respect of which the offence is alleged to have been committed. Clause (c), means that it is that court before which there is a proceeding and a party to such a proceeding is said to have committed an offence in respect of a document produced or tendered in evidence by him, on whose complaint the offence can be ## Crl. Rev.Pet. No.64 of 2005 6 taken cognizance of. (Para 36) Thus the proper construction of Section 195(1)(c) is that when a party to a proceeding before any court produces or tenders in evidence a document in respect of which an offence, e.g. Section 471 read with Section 467, is alleged to have been committed, it is that court before which the document is produced or tendered in evidence which can file a complaint regarding such an offence and a Magistrate cannot take cognizance of such an offence except upon a complaint by such court or a court subordinate to it. (para 37) (iii) The object of examination of the complainant and his witness under Section 200 of the Code of Criminal Procedure is to ascertain whether there is prima facie case against the person accused of the offence in the compliant, and to prevent the issue of process on a complaint which is ether false or vexatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding. (Para 22) ## **Per Khanna,J.** (iv) If the Magistrate before whom the complaint is made or to whom it has been transferred, after considering the statement on oath of the complainant and his witnesses and the result of enquiry or investigation under Section 202 is of the opinion that there is no sufficient cause for proceeding, he may for reasons to be recorded briefly, dismiss the complaint, if, on the contrary, the Magistrate taking cognizance of the offence is of the opinion that there is sufficient cause for proceeding, he should issue ## Crl. Rev.Pet. No.64 of 2005 7 process against the accused in accordance with Section 204 of the Code. It may be that the evidence which is required to be adduced by the complainant at that stage may not be sufficient for recording a finding of conviction, but that fact would not absolve the complainant who wants the Magistrate to issue a process against the accused person from leading some credible evidence as may prima facie show the commission of the offence. (Para 55) (v) Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. The word “sufficient ground” used in Section 203 and in Section 209 have been construed to mean the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit, and not sufficient ground for the purpose of conviction. (para 22) R.C. Ruja v. State of Bombay, 1958 SCR 618: AIR 1958 SC 97: 1958 SCJ 266; Vadilal Panchal v. Ghadigaonkar, (1961) 1 SCR 1: AIR 1960 SC 1113: 1960 Cri.L.J. 1499; Chandra De Singh v. Prokash Chandra Bose, (1964) 1 SCR 639: AIR 1963 SC 1430: (1964) 1 SCJ 202, relied on (vi) A document can be said to have been produced in a court when it is not only produced for the purpose of being tendered in evidence, but also for some other purpose. (Para 35) Crl. Rev.Pet. No.64 of 2005 8 4. After considering the statements of oath, the learned Magistrate opined that there are no sufficient grounds for proceeding further, hence he dismissed the complaint. I find no illegality in the above dismissal. There is no merit in this revision petition and it is dismissed accordingly. Sd/- **P.D. RAJAN, JUDGE** NS/20/08/2016 / True Copy / P.A. To Judge