IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 CRL.MC.NO. 651 OF 2010() ------------------------ (CRIME NO.28 OF 2010 OF THE PONNANI POLICE STATION) PETITIONER(S): PETITIONER ------------------------------- R.SURESH KUMAR , S/O.RAVEENDRAN NAIR, ANDIKKATTIL BUILDINGS, GURUVAYOOR ROAD, POOTHOLE, THRISSUR. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENTS --------------------------------------- 1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ABDUL RASHEED, S/O.KUNJI AHAMMED, NADUVIL KANUMAN KUZHIYIL VEEDU, KADNJERI PO, KALADI AMSOM, VELLOORKUNNAM, R1 BY PUBLIC PROSECUTOR SRI.B.JAYASURYA R2 BY ADVS.SRI.T.K.SAIDALIKUTTY & SRI.A.A.ZIYAD RAHMAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/08/2010, THE COURT ON 02/09/2010 PASSED THE FOLLOWING: CRL.MC.NO. 651 OF 2010 :: ORDER ON CRL.M.A.No.942/10 IN CRL.MC.NO. 651 OF 2010( DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 02.09.2010. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN, J. --------------------------------------- Crl.M.C.No.651 of 2010 --------------------------------------- Dated this the 2nd day of September, 2010 O R D E R The above petition has been filed under Section 482 of the Code of Criminal Procedure {for short 'the Code'} to quash all proceedings arising from Crime No.28/2010 of Ponnani Police Station. 2. Petitioner is the sole accused in the above crime, the registration of which arose from an order passed by the Judicial Magistrate of the First Class, Ponnani, directing an investigation under Section 202(1) of the Code, in a private complaint filed by the 2nd respondent. 3. The 2nd respondent, hereinafter referred to as 'the complainant', filed a private complaint before the Judicial Magistrate of the First Class, Ponnani, alleging the commission of offences punishable under Section 138 of the Negotiable Instruments Act {for short 'the Act'} and Crl.M.C.No.651 of 2010 :: 2 :: Sections 420 and 471 of the Indian Penal Code against the petitioner, hereinafter referred to as 'the accused'. A cheque for a sum of Rs.8,50,000/- was drawn by the accused in the name of a business concern affixing its seal, and, that instrument, on presentation in due course, was dishonoured with the endorsement "account closed" and on the date on which the instrument was issued, the business concern named in the instrument was not in existence, is the gist of the allegation imputed by the complainant to prosecute the accused for the aforesaid offences punishable under the Indian Penal Code as well, apart from the offence under Section 138 of the Act, for filing a complaint after issuing a notice on dishonour of the cheque, which was not responded to with payment within the statutory period. 4. The learned magistrate, after recording the sworn statement of the complainant, passed an order under Section 202(1) of the Code, directing an Crl.M.C.No.651 of 2010 :: 3 :: investigation by the police, deferring the issue of process to the accused. The police, on receiving the order, has registered a crime for offences under Sections 470 and 471 of the IPC and investigation thereof is being continued, is the basis for filing this petition for quashing the criminal proceedings contending that it is per se illegal. 5. I heard the counsel for the accused and also the complainant. Learned Public Prosecutor was also heard. 6. At the time of hearing, apart from challenging the impropriety and illegality in registering the crime by the police, when an investigation is ordered under Section 202(1) of the Code by the magistrate, the learned counsel for the accused has also assailed the direction issued for investigation through the police by the magistrate. The accused is not residing within the area of jurisdiction of the above magistrate, is the submission of Crl.M.C.No.651 of 2010 :: 4 :: the counsel to contend that there was flouting of the mandatory requirement covered in examining the complainant and all his witnesses before issuing an order for investigation by the police under Section 202(1) of the Code. 7. A report from the court below was called for in view of the irregularities imputed over the investigation by the police registering a crime on the basis of orders passed under Section 202(1) of the Code in a private complaint. The report received from the magistrate would disclose that after recording the sworn statement of the complainant, it was posted for perusal of the records and thereafter on the submissions made by the counsel for the complainant requesting for an investigation by the police, an order was passed under Section 202(1) of the Code, directing such investigation. Pursuant to such order, the police has registered the crime as above for offences under Sections 420 and 471 IPC. Crl.M.C.No.651 of 2010 :: 5 :: 8. In the light of the report, disclosing as above, the case records were called for and perused. Procedure followed by the magistrate on the complaint, after recording the sworn statement of the complainant, is challenged as irregular. The magistrate having taken cognizance could not have referred the matter for investigation by police at all and he should have proceeded in the matter himself, contends the counsel for the accused. The apex court in Bhagat Ram v. Surinder Kumar and others {[2004] 11 SCC 622} considering a fact situation identical to the present case has stated that “as to when cognizance of an offence is taken will depend upon the the facts and circumstances of each case and it is not possible to state the same with precision”. In the above reported case after examining the complainant and witnesses, finding that it was necessary to further probe into the matter, the magistrate directed investigation by police. The order so passed was held to be strictly in Crl.M.C.No.651 of 2010 :: 6 :: accordance with Section 202(1)(b) of the Code. In the present case, the magistrate has called for an investigation after examining the complainant, deferring the issue of process to the accused. The magistrate had already taken cognizance by examining the complainant and hence the investigation by police under Section 202(1)(b) of the Code is irregular, the challenge canvassed is meritless as the order for investigation spells out that the magistrate found that it was necessary to further probe in the matter. In the decision cited supra, the apex court has held that 'it is only when the magistrate applies his mind for the purpose of proceeding under Section 200 of the Code of Criminal Procedure and subsequent sections that it can be positively stated that he has taken cognizance'. Even assuming that there is impropriety or illegality in the passing of an order under Section 202 of the Code, at this stage, before process was issued, the petitioner can have no legal right to impeach its correctness or illegality or Crl.M.C.No.651 of 2010 :: 7 :: irregularity, since no process has been issued to him by the court. What he can impeach is only the registration of the crime by the police and proceeding with an investigation as such when the order has been passed under Section 202(1) of the Code. No doubt, such registration of a crime was a patent mistake committed by the police, without noticing that it was only an investigation ordered under Section 202(1) of the Code in a private complaint. So much so, the crime registered thereof by the police for offences under Sections 420 and 471 of the IPC against the accused is liable to be quashed, but the police is bound to comply with the order passed by the magistrate under Section 202(1) of the Code by investigating the offences and filing a report before the court. 9. The non-examination of all the witnesses of the complainant before passing an order for investigation under Section 202(1) of the Code by the magistrate Crl.M.C.No.651 of 2010 :: 8 :: contending that the accused is not residing within the area of jurisdiction of the magistrate and as such, the mandatory procedural requirement covered by the above Section of the Code has been flouted in passing such an order, canvassed by the learned counsel for the petitioner cannot be given unmerited consideration. The apex court in Rosy v. State of Kerala {2000 (2) SCC 230} adverting to the above aspect has held that the failure of the magistrate to comply with the requirement of examining all witnesses would not, by itself, vitiate the proceedings. Taking note that in a previous decision in Kewal Krishan v. Suraj Bhan {AIR 1980 SC 1780} where a view, different from the above, had been taken, the apex court has again clarified the position in Shivjee Singh v. Nagendra Tiwary {2010 AIR SCW 4064} stating thus: “With a view to clarify legal position on the subject, we deem it proper to observe that even though in terms of the proviso to Crl.M.C.No.651 of 2010 :: 9 :: Section 202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so. Such an order passed by the Magistrate cannot be nullified only on the ground of non- compliance of proviso to Section 202(2).” Though the above decision has been rendered with regard to the examination of all the witnesses of the complainant in a case which required committal to the Sessions Court, the position cannot be different in relation to the examination of the witnesses of the complainant under Crl.M.C.No.651 of 2010 :: 10 :: Section 202 (1) as well, where the accused is not residing at a place within the area of the magistrate exercising the jurisdiction. At any rate, since in the present case the magistrate has already ordered for an investigation through the police and deferred the issue of process to the accused, nothing prevents him from directing the complainant to produce his witnesses and examine them, if need be, after receiving a report from the police, to consider the question of issuance of process against the accused. That being so, the challenge pressed into service by the counsel for the accused, with reference to the non-examination of all the witnesses of the complainant, at this stage, has no value or merit. 10. In the result, the crime registered against the accused as Crime No.28/2010 of Ponnani Police Station shall stand quashed, but with a direction that the police has to comply with the order of the magistrate passed under Section 202(1) of the Code, on the complaint Crl.M.C.No.651 of 2010 :: 11 :: as ordered, and file a report before the magistrate, after completion of the investigation. The court below, on receipt of the report from the police, shall proceed with the complaint and dispose it of in accordance with law. Crl.M.C is disposed of as indicated above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//