Raji v. State of Kerala and Balachandran

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.` ``` WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944 ``` ## `CRL.REV.PET NO. 499 OF 2014` ``` [AGAINST THE ORDER ISSUING PROCESS IN C.C.NO.1898 OF 2013 ON THE FILE ``` ## `OF THE MUNSIFF-MAGISTRATE, PARAVUR]` ## `REVISION PETITIONER/ACCUSED:` ``` RAJI, W/O.VIKRAMAN PILLAI AGED 50 YEARS RESIDING AT ASHA NIVAS, POOTHAKKULAM CHERRY, POOTHAKKULAM VILLAGE, KOLLAM TALUK ``` ``` BY ADV. SRI.M.T.SURESHKUMAR ``` ## `RESPONDENTS/STATE AND APPELLANT:` ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031 2BALACHANDRAN S/O.VISWANATHAN ACHARY, MOOLAVILA PADINJATTETHIL KURUMANDAL CHERRY, PARAVUR VILLAGE, KOLLAM TALUK R1 BY BY SMT.SEENA C. PUBLIC PROSECUTOR R2 BY ADV. SRI.LIJU M.P ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL.RP No.499 of 2014 2 ## **O R D E R** ``` The petitioner is the sole accused in C.C. No.1898/2013 on the file of the Judicial First Class Magistrate Court, Paravur. The aforesaid crime was registered based on a private ``` ``` complaint submitted by the 2[nd] respondent herein ``` ``` before the Director General of Police, which was forwarded for investigation to the Station House Officer, Paravur Police Station. On the basis of ``` ``` the same, Crime No.161/2011 was registered, alleging offences punishable under Sections 188 ``` ``` and 341 r/w 34 of the Indian Penal Code (IPC). Annexure-2 is the F.I.R. After completing the ``` ``` investigation, the police submitted Annexure-4 ``` ``` final report against the petitioner for the offences punishable under Sections 188 and 341 ``` ``` of IPC. The learned Magistrate had taken ``` ``` cognizance of the same, and now the matter is pending as C.C.No.1898/2013. Thereafter, as per ``` CRL.RP No.499 of 2014 3 ``` Annexure-5, the summons was issued to the ``` ``` petitioner. This Crl.RP is filed against the act ``` ``` of taking cognizance of the said offence by the learned Magistrate and issuance of summons to the petitioner. ``` ``` 2.Heard Sri.M.T.Suresh Kumar, the learned ``` ``` counsel for the petitioner, Smt. Seena C., the ``` ``` learned Public Prosecutor for the State and Sri. ``` ``` Liju M.P., the learned counsel for the 2[nd] respondent. ``` ``` 3.The learned counsel for the petitioner ``` ``` would submit that the interference is required under sections 397 and 401 of Cr.PC by this Court as the act of taking cognizance and issuance of summons by the learned Magistrate ``` ``` was against the statutory stipulations contained ``` ``` in Cr.P.C. It is pointed out that the major ``` ``` offence alleged is under section 188 of IPC and ``` ``` by virtue of the operation of section 195(1(a) ``` ``` of Cr.PC, no cognizance of the offence can be ``` CRL.RP No.499 of 2014 4 ``` taken except on a complaint submitted by a public servant whose order was violated. It is further contended that, under no circumstances, ``` ``` the offence under section 188 of IPC would be attracted in this case, as the specific allegation against the petitioner is that she violated an interim injunction passed by the Munsiff Court, Paravur and obstructed the defacto complainant from opening the shop room which he occupied as a tenant of the petitioner herein. According to the learned counsel for the petitioner, under no circumstances can the violation of an order of injunction be treated as something that would attract the offence under section 188 of IPC. It is also his case that the offence under section 341 IPC is also not attracted as no ingredients establishing the same are available in the materials produced by the prosecution. ``` ``` 4.On the other hand, the learned Public ``` CRL.RP No.499 of 2014 5 ``` Prosecutor and the learned counsel for the 2[nd] ``` ``` respondentwouldopposetheaforesaid ``` ``` application. ``` ``` 5.The learned counsel for the 2[nd] ``` ``` respondent would further contend that the prayer ``` ``` sought in this application is beyond the scope ``` ``` of the revisional powers of this Court under ``` ``` Section 397 and 401 of Cr.PC, as the basic order ``` ``` under challenge, is the order passed by the ``` ``` learned Magistrate to issue summons to the ``` ``` accused, which is interlocutory in nature. ``` ``` 6.I have gone through the records. ``` ``` 7.One of the crucial contentions raised by the learned counsel for the petitioner is with ``` ``` regard to the sustainability of the prosecution of the offence punishable under section 188 of the IPC. It is pointed out that section 188 IPC would be attracted only in cases where an order promulgated by a public servant lawfully ``` CRL.RP No.499 of 2014 6 ``` empowered to promulgate such order is violated ``` ``` or disobedience was shown to such order. In this case, the basic allegation against the petitioner is that the defacto complainant, who was the tenant of the shop room which stood in the name of the husband of the petitioner ``` ``` herein, was forcibly evicted in violation of the ``` ``` order of injunction passed by the competent court. The learned counsel for the petitioner places reliance upon the decision rendered by this Court inKunjuraman Asari v. Chellappan Nair [1952 KLT 547] to contend that the refusal to comply with the civil injunction order would not attract the offence under section 188 of ``` ``` IPC. In the said decision, this Court dealt with a similar case, and after elaborately discussing the legal position in this regard, it was ``` ``` observed that an order of injunction could not ``` ``` be treated as an order passed by an officer as contemplated under section 188 of IPC. It was ``` CRL.RP No.499 of 2014 7 ``` specifically observed in the said decision that ``` ``` in the case of disobedience or breach of any order passed by the competent court granting injunction proper remedy is to approach the court concerned under O.39 R.2 of the Code of Civil Procedure or to move for contempt of court. It is clearly held that the offence under ``` ``` section 188 IPC would not be attracted in such ``` ``` circumstances. I am in complete agreement with ``` ``` the view taken by this Court in the aforesaid decisions. Going by the statutory stipulation contained in section 188 of IPC, it is very much ``` ``` evident that what is contemplated as an offence under the said provision is disobedience shown to an order passed by a public servant. An order passed by a court of law cannot be treated as an order coming within the scope of the said ``` ``` provision. ``` ``` 8.Even if it is assumed for the argument ``` ``` sake that an offence under section 188 IPC would ``` CRL.RP No.499 of 2014 8 ``` be attracted in the facts and circumstances of ``` ``` the case, the cognizance taken by the learned Magistrate on the same and the decision to issue ``` ``` summons to the accused is liable to be interfered with. As rightly pointed out by the learned counsel for the petitioner, section ``` ``` 195(1)(a) of Cr.PC contemplates explicitly that the cognizance for the offences punishable under Sections 172 to 188 (both inclusive) of IPC can ``` ``` be taken only on the basis of a complaint submitted by a public servant concerned or some other public servant who is administratively subordinate to him. In this case, cognizance has ``` ``` been taken based on a police report submitted under section 173(2) of Cr.PC, and since section ``` ``` 195(1)(a) Cr.PC specifically contemplates a complaint submitted by a public servant to take ``` ``` cognizance under section 188 of IPC, under no ``` ``` circumstances such an act of taking cognizance can be taken as a legally sustainable one. The ``` CRL.RP No.499 of 2014 9 ``` learned counsel for the petitioner also places ``` ``` reliance upon Poulose K.K. v. State of Kerala ``` ``` [2013(4)KLT 687],wherein this question was ``` ``` explicitly considered and observed that no ``` ``` offence under section 188 of IPC can be taken ``` ``` cognizance by Court otherwise than on a ``` ``` complaint filed by Public Servant concerned. ``` ``` Cognizance was taken in this case based on a ``` ``` police report. Therefore it is a clear violation ``` ``` of section 195(1)(a) of Cr.PC, and hence it is ``` ``` liable to be interfered with. ``` ``` 9.As regards the offence under section 341 ``` ``` of IPC also, I find some force in the ``` ``` contentions put forward by the learned counsel ``` ``` for the petitioner. The offence of section 341 ``` ``` IPC is attracted only when the defacto complainant was prevented by the accused from ``` ``` proceeding in any direction in which that person has a right as such. Annexure-1 is the complaint ``` ``` submitted by the defacto complainant, and ``` CRL.RP No.499 of 2014 10 ``` Annexure-3 is the statement given by the defacto ``` ``` complainant before the Police. ``` ``` 10.I have carefully gone through the same. But I could not find any specific allegation against the petitioner for attracting the aforesaid offence. In such circumstances, I am of the view that the offence under section 341 IPC is also not attracted in this case. ``` ``` 11. In this regard, the learned counsel for the 2[nd] respondent raised a contention as to the sustainability of the revision petition in respect of an order passed by the learned Magistrate to issue summons to the accused. It was pointed out that the same is an ``` ``` interlocutory order, and the bar, as contemplated under section 397(2) of Cr.PC, would come into play. In response to the ``` ``` aforesaid contention, the learned counsel for ``` ``` the petitioner relies on the decision rendered by the Hon’ble Supreme Court in Amar Nath and ``` CRL.RP No.499 of 2014 11 ``` Others v. State of Haryana and Others ``` ``` [1977(4)SCC 137]. In the said case, the question whether the order to issue a summons to the accused is interlocutory, was explicitly considered. After examining the various provisions in this regard, it was observed by the Hon’ble Supreme Court in the manner as follows: ``` ``` “10. xxx xxx xxx. It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced, or that any right of their's was not involved by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightaway was merely an interlocutory order which could not be revised by the High Court under sub-sections (1) and (2) of Section 397 of the 1973 Code. The order of the Judicial Magistrate summoning the appellants in the circumstances of the present case, particularly having regard to what had preceded, was undoubtedly a matter of moment, and a valuable right of the appellants had been taken away by the Magistrate's passing an order prima facie in a mechanical fashion without applying his mind. We are, therefore, satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a ``` CRL.RP No.499 of 2014 12 ``` serious question as to the rights of the appellants to be put on trial. ``` ``` 11. For these reasons, the order of the Judicial Magistrate, First Class, Karnal dated November 15, 1976 cannot be said to be an interlocutory order and does not fall within the mischief of sub-section (2) of Section 397 of the 1973 Code and is not covered by the same. That being the position, a revision against this order was fully competent under Section 397(1) or under Section 482 of the 1973 Code, because the scope of both these sections in a matter of this kind is more or less the same.” ``` ``` In the light of the observations made by the ``` ``` Hon’ble Supreme Court as above, I find that, the ``` ``` order to issue summons to the accused is a revisable order, and it cannot be treated as a ``` ``` mere interlocutory order. The said order affects ``` ``` the rights of the accused and compels the ``` ``` accused to face the trial. If the learned ``` ``` Magistrate had passed the said order without properly applying his mind and the cognizance ``` ``` was taken erroneously, nothing would preclude ``` ``` this Court from exercising the powers under ``` ``` section 397 r/w. 401 of Cr.PC. In this case, I have already found that the learned Magistrate took the cognizance without proper and ``` CRL.RP No.499 of 2014 13 ``` justifiable grounds and therefore, interference ``` ``` is required. ``` ``` In such circumstances, this Crl.R.P. is allowed. The order of taking cognizance passed by the Judicial First Class Magistrate, Paravur, as C.C.No.1898/2013 and Annexure-5 summons issued to the petitioner are hereby set aside. ``` ## `Sd/-` ``` ZIYAD RAHMAN A.A. JUDGE ``` pkk