Usha Devi v. State of Kerala

Crl.R.P.No.104/21 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944_ ## _CRL.REV.PET NO. 104 OF 2021_ _AGAINST THE ORDER/JUDGMENTCMP 2699/2020 OF JUDICIAL MAGISTRATE_ _OF FIRST CLASS -I, ALAPPUZHA_ ## _REVISION PETITIONER/COMPLAINANT:_ _USHA DEVI, AGED 42 YEARS, W/O.LATE K.K. MAHESAN, KOOTTUMKAL HOUSE, MARARIKULAM NORTH, P/W-4, CHERTHALA, ALAPPUZHA._ _BY ADVS. C.D.ANIL SRI.OMAR SALIM SHRI.SRAVAN M.S._ ## _RESPONDENT/RESPONDENT:_ _STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031._ ## _BY SRI.VIPIN NARAYAN, GOVERNMENT PLEADER_ _THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ Crl.R.P.No.104/21 2 ## **O R D E R** The petitioner is the complainant in CMP.No.2699 of 2020 on the file of the Judicial First Class Magistrate Court-I, Alappuzha. The petitioner is aggrieved by the order dated 29.12.2020 passed in the aforesaid CMP, which was a private complaint submitted by the petitioner alleging the commission of an offence under Section 306 of the Indian Penal Code in connection with the death of her husband. As per the said order, the learned Magistrate directed to conduct an inquiry under Section 202 Cr.P.C., instead of referring the complaint to the police for investigation under Section 156(3) Cr.P.C. According to the petitioner, before committing suicide, the petitioner's husband left a suicide note, which contained indications of the identity of the persons responsible for his death. It was the contention of the petitioner in the complaint that, the aforesaid aspects have to be investigated by the police and therefore, she sought an order referring complaint for investigation under Section 156(3) Cr.P.C. 2. However, when the complaint came up for consideration before the learned Magistrate, it was observed that, in connection with the very same incident, crime No.781 of 2020 had been Crl.R.P.No.104/21 3 registered by the Mararikulam Police, and FIR was submitted before the Sub Divisional Magistrate Court, Alappuzha under Section 174 Cr.P.C, for unnatural death. The learned Magistrate found that, since there is already an FIR registered in connection with the same incident, a reference under Section 156(3) for investigation is not warranted and the decision to conduct an inquiry under Section 202 Cr.P.C. was taken in such circumstances. Aforesaid order is under challenge in this Crl.Revision Petition. 3. Heard Sri.D.Anil Kumar, learned counsel for the petitioner and Sri.Vipin Narayan, learned Public Prosecutor for the State. 4. The specific contention of the learned counsel for the petitioner is that, the reasons cited by the learned Magistrate, to conduct an inquiry under Section 202 of Cr.P.C, instead of directing the police to conduct an investigation, cannot be treated as a proper procedure, considering facts and circumstances of the case . It is pointed out that the registration of Crime No.781 of 2020 by Mararikulam Police under Section 174 Cr.P.C. cannot be treated as an FIR, as contemplated under Section 154 Cr.P.C, and hence the decision taken by the learned Magistrate, declining the prayer for directing the police conduct an investigation was not proper. It is Crl.R.P.No.104/21 4 specifically contended that an FIR under Section 154 of Cr.P.C is to be registered based on a complaint or on receipt of information, which reveals a cognizable offence, whereas the purpose of initiation of proceedings under Section 174 Cr.P.C. is only to conduct an inquiry in respect of unnatural death or death in suspicious circumstances. It is the case of the learned counsel for the petitioner that, the scope of the inquiry contemplated under Section 174 Cr.P.C is very much limited and the moment it is revealed that the death of the deceased was due to the commission of any offence, a crime has to be registered under Section 154 Cr.P.C and the same has to be placed before the jurisdictional Magistrate. 5. On the other hand, the learned Public Prosecutor, would point out that, since this Court is exercising revisional powers under Section 401 Cr.P.C, by virtue of Sub Section 2 of Section 401 Cr.P.C., the affected parties (counter petitioners in the complaint) are entitled to be heard before any orders are passed. The learned Public Prosecutor also places reliance upon **Manharibhai Muljibhai Kakadia and Another v. Shaileshbhai Mohanbhai Patel and Others (2012 (10) SCC 517)** and **Raghu Raj Singh Rousha v. Shivam Sundaram Properties Private Limited and another [(2009) 2 SCC 363],** and contended that the persons who Crl.R.P.No.104/21 5 are named as accused in the private complaint submitted by the petitioner before the learned Magistrate has to be impleaded and to be heard before any further orders are passed. 6. When the Crl. Revision Petition came up for consideration today, the learned counsel for the petitioner brought my attention to the notice issued by the police to the informant in crime No.781 of 2022, wherein it is mentioned that after completing the inquiry under Section 174, Police decided to drop further action in this regard. The aforesaid aspect is confirmed by the learned Public prosecutor as well, and it is pointed out that the police have already submitted a report in this regard before the Sub Divisional Magistrate, Alappuzha, on 08.08.2022. 7. In the light of the subsequent developments, the embargo, according to the learned Magistrate in referring the matter for further investigation under Section 156(3), is no longer in existence. Normally, upon receipt of a complaint under Section 190 Cr.P.C., the learned Magistrate has to take a decision as to whether it is to be referred for investigation under Section 156(3) to the Police or to take cognizance of the offence after conducting any inquiry under Section 202 Cr.P.C. In this case, the learned Magistrate had exercised the discretion to conduct an inquiry under Crl.R.P.No.104/21 6 Section 202 Cr.P.C, only because of the reason that, at the relevant time, Crime under Section 174 Cr.P.C. was already registered, and an investigation was ongoing in respect of the same. Now since the police already informed the petitioner that they are not conducting the investigation in the matter any longer, based on the crime registered under Section 174, it is only proper that the aforesaid matter be re-considered by the learned Magistrate. This is mainly because, as rightly pointed out by the learned counsel for the petitioner, initiation of proceedings under Section 174 of Cr.P.C cannot be treated as an FIR as contemplated under Section 154 of Cr.P.C. The purpose and scope of Sections 154 and 174 of Cr. P.C are entirely different, and both provisions deal with two different situations. An FIR under Section 154 of Cr.P.C is to be registered, when the police receive information, revealing the commission of a cognizable offence. On the other hand, as far as the proceedings under Section 174 of Cr.P.C is concerned, the inquiry to be conducted is as to the cause of the death of the deceased, to find out whether it was the result of the commission of a crime or not. 8. The scope of Section 174 of Cr.P.C came up for consideration before the Honourable Supreme Court in **Manoj** **Kumar Sharma & others v. State of Chattisgarh and another** Crl.R.P.No.104/21 7 **[(2016) 9 SCC 1].** In the said decision, it was observed that the proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person had died under suspicious circumstances or an unnatural death and if so, what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him, or under what circumstances he was assaulted is foreign to the ambit and scope of proceeding under Section 174 of the Cr.P.C. It was further observed by the Honourable Supreme Court that, Sections 174 and 175 of the Code afford a complete Code in itself for the purpose of “inquiries” in cases of accidental or suspicious deaths and are entirely distinct from the “investigation” under Section 157 of the Code. 9. The Honourable Supreme Court reiterated the aforesaid view in **Rhea Chakraborty v. State of Bihar and another [(2020) 20 SCC 184].** In the said decision, after referring to **Manoj Kumar Sharma’s case (supra),** it was observed that the proceedings under Section 174 of Cr.P.C are not in the nature of investigation undertaken after filing an FIR under Section 154 of Cr.P.C. Crl.R.P.No.104/21 8 10. In this case, the learned Magistrate rejected the prayer sought by the petitioner/complainant to refer the matter for investigation under Section 156(3) of the Cr.P.C, solely on the reason that the police were conducting an investigation based on the crime registered under Section 174 of the Cr.P.C. In light of the principles laid down by the Honourable Supreme Court, the aforesaid view and the consequent order passed are not legally sustainable. Under no circumstances can the proceedings under Section 174 of the Code be treated at par with an FIR under Section 154. The inquiry, which was being conducted by the police, would not come within the “investigation” based on an FIR registered under Section 154 of the Code. Now the police have concluded the said inquiry and dropped the proceedings. Hence, it is all the more necessary that an “investigation” after registering an FIR be registered in case the complaint submitted by the petitioner reveals a cognizable offence. In such circumstances, the order passed by the learned Magistrate in CMP.No.2699 of 2020 is liable to be set aside with a direction to reconsider the same. 11. In this regard, on perusal of the records, I am of the prima facie opinion that the averments in the complaint and materials produced along with the same reveal certain aspects which may Crl.R.P.No.104/21 9 require an investigation by the Police as it may not be possible for an individual to successfully collect evidence in connection with the same, without the aid of an effective investigation by the police. Therefore, while considering the complaint submitted by the petitioner, the aforesaid aspect is also to be considered by the learned Magistrate. 12. With regard to the objection raised by the learned Public Prosecutor as to the necessity to implead the counter petitioners in the complaint and the opportunity to be granted to them, I am of the view that, the issuance of notice to them at this stage is not necessary. This is particularly because, the decision under challenge in this Crl.M.C. is in relation to an order passed by the learned Magistrate, by which the discretion was exercised by the learned Magistrate about the procedure to be adopted for proceeding further, based on the complaint. The petitioner's grievance is regarding the learned Magistrate's decision to have an inquiry conducted under Section 202 Cr.P.C, instead of referring the matter to the police for investigation under Section 156(3) Cr.P.C. Even if the prayer sought by the petitioner is allowed and the matter is directed to be referred for investigation under Section 156(3), the counter petitioners in the complaint need not be heard at that stage. Crl.R.P.No.104/21 10 In **Manharibhai Muljibhai Kakadia (supra),** which is relied on by the learned Public Prosecutor, the subject matter of the dispute was related to the dismissal of a complaint after conducting an inquiry under Section 202 Cr.P.C. In that circumstances, it was held that the High Court could not have invoked its revisional powers without hearing the accused in the light of the statutory stipulation contained in Section 401(2) of Cr.P.C. Therefore, the factual situation in that case was different. ## 13. Similarly, in **Raghu Raj Singh Rousha v. Shivam Sundaram Properties Private Limited and another [(2009) 2** **SCC 363]** , the Honourable Supreme Court set aside the order passed by the High Court, in which interference was made by the High Court in the order of the Magistrate, rejecting the prayer to refer the matter for investigation under Section 156(3) of Cr.P.C. However, there is a crucial aspect which distinguishes the said case from the facts of this case. In **Reghu Raj Singh Rousha’s case (supra)** , the order passed by the learned Magistrate was after finding that the dispute is a private dispute between two parties and an investigation by the police is not necessary. Moreover, the learned Magistrate had also taken cognizance of the private complaint. In this case, there is no finding that the police Crl.R.P.No.104/21 11 investigation is unnecessary. On the other hand, the prayer for referring the matter for investigation under Section 156(3) was rejected on the sole ground that, an investigation under Section 174 of Cr.P.C was pending at the relevant time. Therefore, it was not a case where the court arrived at a finding that no police investigation was necessary. Moreover, while rejecting the prayer sought under Section 156(3), apparently, the learned Magistrate was under the impression that, in the light of registration of crime under Section 174 of Cr.P.C, there is already an FIR and hence, a reference under Section 156(3) was not warranted. I have already found that, in the light of the principles laid down by the Honourable Supreme Court, proceedings under Section 174 of the Code cannot be equated with an FIR under Section 154 of the Code. Therefore, the decision taken by the learned Magistrate was based on a wrong interpretation of the law. 13. Another crucial distinguishing feature is that in **Reghu Raj Singh Rousha’s case (supra),** it was observed that the dispute was private in nature, as it pertains to certain transactions based on a Memorandum of Understanding between the parties. However, in this case, the allegation is in connection with the suicide of the husband of the petitioner, who left a suicide note Crl.R.P.No.104/21 12 specifically indicating the involvement of certain persons in instigating him to do the said act. Therefore, the facts of this case point out the necessity to have an investigation by the police, whereas, in **Reghu Raj Singh Rousha’s case** , it was found by the Honourable Supreme Court that the Magistrate applied his mind and found that the police investigation was not necessary. 14. Thus, from the above, it is evident that the factual situation in the decisions in **Reghu Raj Singh Rousha’s case (supra)** and **Manharibhai Muljibhai Kakadia's (supra)** are entirely different from that of this case. The decision which is under challenge is the one taken by the learned Magistrate to conduct an inquiry under Section 202 of the Cr.P.C, instead of referring the matter for investigation under Section 156(3). The prayer sought by the petitioner is to refer the matter for investigation under Section 156(3) of Cr.P.C. Even if the learned Magistrate passes an order to issue an order invoking that provision, issuing notice to the counter petitioners named in the complaint may not be necessary at that stage. To be precise, while considering the complaint submitted by the petitioner, the possible orders that the Magistrate could have passed are, (1) to refer the matter for investigation to the police under Section 156(3), or (2) to order an inquiry under Section 202 Crl.R.P.No.104/21 13 of Cr.P.C. Even in both scenarios, issuance of notice to the accused at that stage was not necessary, and the accused does not have any right to be heard. Therefore, when the challenge is raised against such an order in Revision Petition, the accused cannot be treated as a person prejudicially affected so as to warrant a notice as contemplated under Section 401(2) of Cr.P.C. 15. Moreover, in this case, I am not directing the Magistrate to initiate any proceeding against the counter petitioners, but on the other hand, the direction is only to re-consider the complaint and take a fresh decision in the matter of options between Section 156(3) and 202 of Cr.P.C. As mentioned above, notice to the counter petitioners is unnecessary in both circumstances. Therefore, I am of the view that the counter petitioners named in the complaint cannot be treated as persons prejudiced by the order passed by this court. Hence the contention of the learned Public Prosecutor as to the necessity of impleading the counter petitioners in the complaint, as respondents in the revision petition, is rejected. In the result, this Crl.R.P is allowed, and the order dated 29.12.2020 in CMP No.2699 of 2020 passed by the Judicial First Class Magistrate Court-I, Alappuzha, is hereby set aside. The order passed by the Judicial First Class Magistrate Court-I, Alappuzha on Crl.R.P.No.104/21 14 21.12.2020 is also set aside. The learned Magistrate is directed to re-consider CMP.No.2699 of 2020 afresh and pass appropriate orders in the light of the observation made in this order, after specifically taking note of the contents of the said complaint and materials produced along with the same. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/13.8.22