Shaji Thomas S/o M.K. Thommen v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 3RD DAY OF FEBRUARY 2014/14TH MAGHA, 1935 Crl.MC.No. 1013 of 2012 () --------------------------AGAINST THE ORDER IN CMP 1587/2012 IN CMP NO.1020/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,NEYYATTINKARA DATED 16-03-2012 ## PETITIONER(S)/COMPLAINANT: ---------------------------------------------- SHAJI THOMAS S/O.M.K.THOMMEN, MANAGING DIRECTOR THOMAS HOTELS AND RESORTS PVT.LTD., TC 2/48(3) MANJANGAL HOUSE, PATTOM P.O., THIRUVANANTHAPURAM. BY ADVS.SRI.B.S.SWATHY KUMAR SMT.P.V.SOBHANA SMT.V.BEENA RESPONDENTS/STATE & RESPONDENTS : -------------------------------------------- ## 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031. ## 2. DAMIYAN LOUIS S/O.CHINNAPPAN LOUISE, SACRED HEART HOUSE AMBALATHUMOOLA, CHOWARA P.O., NEYYATTINKARA THIRUVANANTHAPURAM-695501. ## 3. JOHN PAUL LOUIS S/O.DAMIEN LOUIS, SACRED HEART HOUSE, AMBALATHUMOOLA CHOWARA P.O., NEYYATTINKARA THIRUVANANTHAPURAM-695501. 4. CYRIL MORAES S/O.ESTHOR MORAES, ST.JACOB HOUSE, PULLUVILA PULLUVILA P.O., POOVAR, KARUMKULAM VILLAGE NEYYATTINKARA, THIRUVANANTHAPURAM-695525. R2 TO R4 BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) R2 TO R4 BY ADV. SRI.A.R.DILEEP R2 TO R4 BY ADV. SMT.NAVA VARGHESE R1 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07.01.2014, THE COURT ON 03.02.2014 PASSED THE FOLLOWING: CRL.MC NO.1013/2012 ## APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A TRUE COPY OF THE TAX RECEIPT DATED 2.6.1993 ANNEXURE B TRUE COPY OF THE COMMUNICATION DATED 24.2.2011 ISSUED BY THE VILLAGE OFFICER, KOTTUKAL ANNEXURE c TRUE COPY OF THE CMP NO.1020/2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEYYATTINKARA DATED 3.2.2012 ANNEXURE D TRUE COPY OF THE CMP NO.1587/2012 IN CMP NO.1020/2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEYYATTINKARA DATED 3.2.2012 ANNEXURE E TRUE COPY OF THE ORDER IN CMP NO.1587/2012 IN CMP NO.1020/2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEYYATTINKARA DATED 3.2.2012 RESPONDENTS' EXHIBITS: ANNEXURE R3(a) A TRUE COPY OF THE AWARD DATED 3.10.1956 IN CASE NOS.506 AND 509 ANNEXURE R3(b) A TRUE COPY OF THE JUDGMENT DATED 20.12.2002 IN OS NO.1094/93 ON THE FILE OF FIRST ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA ANNEXURE R3(c) A TRUE COPY OF THE EXTRACT OF TP ACCOUNT REGISTER ANNEXURE R3(d) A TRUE COPY OF THE EXTRACT OF FORM OF FIELD REGISTER //TRUE COPY// ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.M.C. No.1013 of 2012** ## **-------------------------------------Dated this the 03[rd] day of February, 2014.** ## **ORDER** Petition filed under Section 482 of the Code of Criminal Procedure (for short, “Cr.P.C.”). 2. The prayer in the petition reads as follows: _“On these and other grounds to be urged at the time of hearing it is most humbly prayed that this Hon'ble Court may be pleased to allow the Criminal Miscellaneous Case, set aside Annexure.E and direct the Judicial First Class Magistrate Court-II, Neyyattinkara to forward Annexure.C to the Vizhinjam Police Station under Section 156(3) of the Code of Criminal Procedure.”_ 3. Petitioner is the complainant, who approached the learned Magistrate with a complaint, alleging that the accused have falsely created documents and filed the same in a civil suit between the petitioner and the accused. Allegation in the complaint is that the accused together forged documents to grab valuable land belonging to the complainant and thereby they committed offences punishable under Sections 193, 209, 465, 468 and 471 read with Section 34 of the Indian Penal Code (for short, “IPC”). 4. Annexure C is the complaint filed by the petitioner. The 2 Crl.MC No.1013/2012 petitioner is the Director of a private limited company, running a hotel and resort. In order to expand the business of the company, they purchased about seven acres of land from various owners and constructed a compound wall enclosing the land. Accused with a nefarious intention of grabbing a portion of the land, created false documents by fabricating the signature and seal of Village Officer, Kottukal and filed a civil suit. They secured interim orders in the suit against the complainant. When the matter gained the attention of the complainant, he conducted an enquiry and found that the documents produced in the suit by the accused were fabricated with a malicious intention. Therefor, the complainant sought information under the Right to Information Act from the Village Office and got information to the effect that the documents produced by the accused in the suit are forged ones. Hence the complainant contended that the accused are liable to be prosecuted for the said offences. 5. Annexure A, the revenue receipt, is said to have been falsely created by the accused persons. Annexure B is the information received from the Village Officer concerned. According to the complainant, it makes his case probable that Annexure A is a rank forgery. 6. Trial court on receiving the complaint decided to conduct an enquiry under Section 200 Cr.P.C. Grievance of the petitioner is that the 3 Crl.MC No.1013/2012 complaint ought to have been forwarded to Police under Section 156(3) Cr.P.C. Therefore, he approached the court below with Annexure D petition. That was dismissed by the learned Magistrate as per Annexure E order. The reasoning stated by the learned Magistrate for dismissing the petition is that a criminal court has no jurisdiction to review its earlier order. No one can dispute this proposition so long as Section 362 Cr.P.C. bars a criminal court from reviewing or altering orders, except to correct a clerical or arithmetical error. Learned Magistrate is fortified in his decision by a binding precedent of the Supreme Court in **Dharmeshbhai Vasudevbhai and others v. State of Gujarat and others ((2009) 6 SCC 576)** also. 7. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 8. Learned counsel for the petitioner contended that considering the nature of allegations, the learned Magistrate at the first instance itself should have forwarded the complaint to Police under Section 156(3) Cr.P.C. instead of proceeding to enquire into the matter under Section 200 Cr.P.C. Learned counsel would contend that the initial order and the impugned order passed by Magistrate resulted in miscarriage of justice. 9. Prayer made in the complaint is to forward the same to Police under Section 156(3) Cr.P.C.. This Court, at least in two decisions, has 4 Crl.MC No.1013/2012 clearly held that a petition with a mere request that the same be forwarded for investigation to Police is not maintainable. It is the law that a Magistrate, taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any under Section 200 Cr.P.C. and if not satisfied, to conduct an enquiry under Section 202 Cr.P.C.. Decisions rendered in **Sreenivasan v. Nair (2005 (2) KLT 396)** and **Arul V.Nair v. State of Kerala (2007 (4) KHC 597)** clearly narrate the options available to a Magistrate when he receives a complaint. He may either apply his mind for proceeding under Section 200 Cr.P.C. and the succeeding Sections in Chapter XV Cr.P.C. or he may order investigation by Police under Section 156(3) Cr.P.C. In **Arul V.Nair** 's case (supra) it has been clearly held by the learned Single Judge thus: _“......... The argument that Annexure A1 was really not a complaint filed with a view to request the Magistrate to take action under the Code and falling under S.2(d) CrPC but only a petition under S.156(3) CrPC requesting to forward the matter to the police for investigation, is misconceived. In the first place, S.156(3) CrPC does not contemplate any application. Secondly, what the Magistrate can forward to the police under sub-section (3) of S.156 read with sub-section (1) thereof is only a matter on which he is competent to take cognizance under_ 5 Crl.MC No.1013/2012 _S.190 CrPC. Even if what is filed before the Magistrate is a petition falling under S.190(1)(c) CrPC that again is an information on the basis of which the Magistrate is competent to take cognizance. It is only if the matter before the Magistrate answers the description under clauses (a) to (c) of S.190(1) CrPC can it be forwarded to the police under S.156(3) CrPC. For that reason also it is doubtful whether a petition for merely forwarding the matter under S.156(3) CrPC is maintainable. Whether or not the matter is to be forwarded to the Police under S.156(3) CrPC is something within the discretion of the Magistrate and the complainant cannot insist on forwarding the matter to the police. ............”_ Therefore, I am of the definite opinion that the contention of the complainant that the complaint should have been forwarded to Police under Section 156(3) Cr.P.C. is misconceived. 10. Now I shall consider the legality of Annexure E order. As mentioned above, learned Magistrate is correct in saying that he cannot review his earlier order, whereby he decided to proceed with the matter under Section 200 Cr.P.C. It is relevant to note in this context that offences punishable under Sections 193 and 209 IPC cannot be taken cognizance of by the learned Magistrate on the basis of Annexure C complaint. 6 Crl.MC No.1013/2012 Section 195(1)(b)(i) Cr.P.C. clearly shows that no court shall take cognizance of offences under Sections 193 and 209 IPC, except on a complaint in writing of that court or by such officer of the court. Therefore, to that extent, the complaint is not maintainable. Offences remaining in the complaint are punishable under Sections 465, 468 and 471 read with Section 34 IPC. The question to be resolved is whether the learned Magistrate committed any legal error in proceeding with steps under Section 200 Cr.P.C. 11. According to the learned counsel for the petitioner, the nature of allegations would clearly show that false documents like revenue receipts, etc. were cooked up by the accused through the help of some unknown persons. In otherwords, the complainant is not in a position to disclose the identity of all the accused persons involved in falsely creating the documents. Complicity of other accused could be revealed only on a thorough investigation by Police. Hence, the facts and circumstances of the case would clearly indicate that the learned Magistrate should have applied his discretion to forward the complaint under Section 156(3) Cr.P.C., contended the learned counsel. 12. In order to substantiate this contention, learned counsel for the petitioner relied on the decision in **Mona Panwar v. Hon'ble High Court of** 7 Crl.MC No.1013/2012 ## **Judicature at Allahabad through its Registrar and Others (2011 KHC** **4098)** . It is mentioned therein that when a complaint was presented before the Magistrate, he has mainly two options, i.e., one is to pass an order as contemplated by Section 156(3) Cr.P.C. and the second is to direct examination of the complainant upon oath and the witnesses present, if any, as mentioned in Section 200 Cr.P.C. and to proceed with the matter as per the following Sections. It is also mentioned therein that an order under Sub-section (3) of Section 156 Cr.P.C. is in the nature of peremptory reminder or intimation to the Police to exercise its plenary power of investigation under Section 156(1) Cr.P.C. 13. Apex Court in **National Bank of Oman v. Barakara Abdul Aziz and another ((2013) 2 SCC 488)** held that an investigation under Section 202 Cr.P.C. is different from an investigation contemplated under Section 156 Cr.P.C. as it is only for the satisfaction of the Magistrate to decide whether or not there is sufficient ground for him to proceed with the matter. Regarding the scope of enquiry under Section 202 Cr.P.C., following are the observations made therein: _“........The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint:_ 8 Crl.MC No.1013/2012 _(i) on the materials placed by the complainant before the court;_ _(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and_ _(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.”_ 14. Learned counsel for the petitioner heavily relied on the decision in **Madhao and another v. State of Maharashtra and another** **((2013) 5 SCC 615)** to argue that in appropriate cases Magistrate should have resorted to the option of getting the complaint investigated through the investigative machinery of Police. Following quotation from the decision is pressed into service: _“When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) CrPC will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a_ 9 Crl.MC No.1013/2012 _matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. Thus, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) CrPC can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a) CrPC. If he does so, he is not required to examine the complainant on oath because he was not taking cognizance of any offence therein. However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3)._ _Where a Magistrate chooses to take cognizance on complaint he can adopt any of the following alternatives:_ _(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 CrPC and record the evidence of the complainant or his witnesses._ _(b) The Magistrate can postpone the issue of process and direct an enquiry by himself._ _(c) The Magistrate can postpone the_ 10 Crl.MC No.1013/2012 _issue of process and direct an enquiry by any other person or an investigation by the police.”_ 15. I have anxiously considered the challenges raised by the petitioner against Annexure E order. It is evident from Annexure D affidavit and petition, filed by the petitioner before the trial court, that the learned Magistrate has posted the matter for enquiry under Section 200 Cr.P.C. It can be stated that it would be proper for the Magistrate to conduct an enquiry under Section 202 Cr.P.C. reckoning the nature of allegations, nonetheless it shall not be forgotten that the Magistrate has a judicial discretion in this matter. Section 202 Cr.P.C. would show that the Magistrate can enquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit. Therefore, the petitioner appears to be presumptive that the Magistrate would proceed to enquire into the case himself for the purpose of deciding whether or not there is sufficient grounds for proceeding. I am of the view that the petitioner can request the Magistrate to direct investigation in the matter by Police by invoking Section 202 Cr.P.C. I find no necessity to set aside Annexure-E order. As mentioned above, the Magistrate has a judicial discretion to proceed under Section 200 Cr.P.C. and if he is not satisfied that the materials brought out are sufficient to take cognizance, he can proceed under Section 202 Cr.P.C. I find no merit in the 11 Crl.MC No.1013/2012 apprehension of the petitioner. However, it is made clear that the learned Judicial First Class Magistrate-II, Neyyattinkara shall apply his mind to the facts and circumstances to find out whether an investigation into the matter under Section 202 Cr.P.C. is to be made through a Police Officer in this matter. With this observation, the petition is disposed. All pending interlocutory applications will stand dismissed ## **A. HARIPRASAD, JUDGE.** **cks**