IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 Crl.MC.No. 4300 of 2005() ------------------------- CMP.2999/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... PETITIONER: ------------ ANNIE JYOTHIS, D/O.C.C.JOSEPH, CHAKKALAKKAL, THRIKKAKKARA.P.O, CHMBUMUKKU, VAZHAKKALA VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN SRI.S.KRISHNAKUMAR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, KALAMASSERY, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ANTO BASTIN (RETD.COMPANY EMPLOYEE KALIPARAMBIL VEEDU, SOUTH KALAMASSERY DEVELOPMENT PLOT.P.O. 3. MARYKUTTY BASTIN, (RETD. SUB ENGINEER, K.S.E.B.), W/O.ANTO BASTIN, KALIPARAMBIL VEEDU, KALAMASSERY DEVELOPMENT PLOT.P.O. 4. CHANCHEL ROSE, W/O.GEORGE JOSEPH, MADATHIPARAMBIL, CHERANALLOOR, KALIPARAMBIL VEEDU, SOUTH KALAMASSERY DEVELOPMENT PLOT.P.O. 5. GEORGE JOSEPH, (SUB INSPECTOR OF POLICE, EDAPPALLY TRAFFIC WING), MADATHIPARAMBIL, CHERANALLOOR.P.O, ERNAKULAM. CRMC 4300/05 -2- R1 BY PUBLIC PROSECUTOR SRI C.M. NAZAR BY ADV. SRI.P.B.ASOKAN FOR R2 TO R5 SMT.P.LATHA FOR R2 TO R5 SMT.A.C.ANITHA FOR R2 TO R5 SRI.SANU MATHEW FOR R2 TO R5 SRI.E.A.THANKAPPAN FOR R2 TO R5 SRI.R.VINU RAJ FOR R2 TO R5 SRI.P.J.UNNIKRISHNAN FOR R2 TO R5 PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A NO.15483/05 IN CRL.M.C.NO.4300/2005 DISMISSED. 23-5-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// V.K.MOHANAN, J. ---------------------------------------------- CRL.M.C.N0.4300 OF 2005 ---------------------------------------------- Dated, 23rd May , 2008. ORDER This Crl.M.C. is preferred by the widow, the complainant in Annexure A1 complaint, aggrieved by Annexure A3 order of the court below by which the court declined the request of the petitioner to send the complaint for investigation under section 156(3) of Cr.P.C. 2. The petitioner herein preferred a private complaint, C.M.P.No.2782/2005, a copy of which is produced along with this Crl.M.C as Annexure A1 before the Judicial Magistrate of the First Class-II, Aluva under sections 190 and 200 of the Cr.P.C. for the offences punishable under sections 302 read with Section 201 and 34 of the Indian Penal Code. Annexure A1 is the complaint dated 26-9-2005. A perusal of Annexure A1 complaint would show that the complainant got married to one Mr.Bigil Paul Kaliparambil Veedu. South Kalamassery, Development Plot P.O., on 20.6.2004 in accordance with the Christian religious rites and customs at St.Michel's Church, CRMC 4300/05 :-2-: Kakkanadu. Accused Nos. 1 and 2 in the complaint are the parents of her husband. 3rd accused is the sister in law of the complainant and the 4th accused is her husband. The allegation in brief as disclosed from Annexure A1 complaint is that, after the marriage the accused were harassing the complainant and they were demanding more wealth from the complainant's house towards dowry. It is also the case of the complainant that the accused always found sadistic pleasure in nagging the complainant's husband saying that he is impotent and is incapable of consummating the marriage. According to the complainant, the harassment continued and the same was reached in an unbearable and intolerable stage by December, 2004. On giving information about the situation to her parents, she was taken back to her parental home. Subsequently, all of the accused assured the complainant that there will not be any problem in future and that the complainant's husband will arrange a rented house and that they will start separate residence. According to the complainant, on the basis of the said assurance, the CRMC 4300/05 :-3-: complainant was brought back to the matrimonial home by her father by the second week of December. According to the complainant, even thereafter, the harassment continued demanding more money and according to the complainant, she was threatened on several occasions. It is specifically stated in the complaint that her father, taking into account her wellbeing, purchased a property in the joint names of the complainant and her husband. The said incident made the accused accelerating the harassment and the situation became more aggravated. It is also stated that the complainant was having fond regards for the institution of marriage and therefore she convinced her father that she would somehow manage the situation at the matrimonial home. After much persuasion, the father of the complainant had taken back the complainant to her matrimonial home on 22-7-2005 and entrusted her to her husband. It is also stated in the complaint that she was assaulted in front of her father and thereafter also the complainant was continued to harass by the accused. It is specifically stated that the complainant's CRMC 4300/05 :-4-: husband had taken her back to her parental home and had gone to his work. He had returned to the complainant's house after the work on the next day, i.e on 23-7-2005 and had returned to his residence after some time. It is also specifically averred in the complaint that on 23-7-2005 at 9.p.m., the husband of the complainant informed her over telephone that accused Nos.3 and 4 were also in his house and all the accused were compelling him to go out of his house. It is also stated that the complainant was later told by her husband that the harassment towards him continued the whole night. It is also stated that on 24-7-2005 at about 9 a.m., the husband of the complainant informed her that he will soon be reached her parental house. In paragraph 12 of the complaint it is stated that on 24-7-2005 at 11.30. a.m a neighbour by name Antony told the complainant's father that a neighbour of the complainant's husband's residence informed him over telephone that the husband of the complainant is admitted in the hospital in a very serious condition. On getting such information, the complainant CRMC 4300/05 :-5-: along with her relatives rushed to Ernakulam Medical Centre Hospital, Palarivattom wherein he was admitted in the intensive care unit in a critical condition. According to the complainant, none of the relatives of the husband was in the hospital and no money was spent by any of the accused for the treatment of her husband. In paragraph 13 of the complaint, it is specifically averred that the 4th accused who is a Sub Inspector in Kerala Police had influenced the hospital authorities and thereby restrained them from giving intimation regarding the incident and the factum of admission of the husband of the complainant in hospital to the local police in time and thereby prevented them from collecting the evidence from the place of occurrence and circumstances of the incident. In the same paragraph it is averred that complainant's husband became conscious on 1-8-2005 and the complainant was allowed to talk to him on 2-8-2008. At that time the husband of the complainant told her that he had not consumed poison by himself and that a complaint has to be preferred to the police. It is further stated in the CRMC 4300/05 :-6-: complaint that the complainant or her father was not in a condition to prefer a complaint on 2-8-2005 as suggested by her husband. It is further stated in the complaint that the husband of the complainant became unconscious again on 3- 8-2005 and he continued in the unconscious condition there after and died on 7-8-2005 at about 8.30 p.m. It is further stated that the accused have removed the articles and all the things and belongings of the husband of the complainant from his residence and the accused have changed the entire scene of the place of occurrence and tampered the evidence. The accused have not cared even to receive the dead body of the complainant's husband after postmortem in the Medical college Hospital, Alappuzha. In paragraph 15 of the complaint it is stated that the entire subsequent acts of the accused were very suspicious and pointing towards their guilty consciousness. Accordingly, the Ist accused was admitted by the other accused in the Sacred Heart Hospital, at Painkulam, Thodupuzha after the incident while the husband of the complainant was in hospital. It is also stated that the CRMC 4300/05 :-7-: accused who are claiming that the husband of the complainant consumed poison is not disclosing the incident or its details to the complainant or to her relatives. The accused are giving different explanations to others regarding the incident. According to the complainant, accused Nos. 2 to 4 have purposefully admitted the Ist accused in mental hospital to create an impression that he is a mental patient with a calculated view to prevent disclosure of the real facts by him. In paragraph 17 it is further stated that the above said acts of the accused up to 24-7-2005 are offences punishable under sections 498A and 306 of IPC. It is further submitted that there are valid and strong circumstantial evidence to hold that Bigil Paul had not consumed poison by himself and that the accused have forcibly administered poison to him and murdered him. The accused had tampered some of the strong material evidence and thereby to vanish evidence in support of the adverse circumstances of the incident. Therefore according to the complainant, the act of the accused amounts to offences punishable under sections 302 read with CRMC 4300/05 :-8-: section 201 and 34 of the IPC. In paragraph 18 of the complaint, it has been stated that the incident took place within the limits of Kalamassery Police Station and the father of the complainant had preferred petitions on 8-8-2005 and also on 28-8-2005. But the police had not taken any effective measures due to the undue influence and pressure of accused persons. In paragraph 19, the relief is moulded in the following words: “In the interest of justice it is just and necessary to take this complaint into the file of this Honourable Court and proceed against the accused or to forward the same to Kalamassery Police Station for investigation under section 156 of the Code of Criminal Procedure and prayed accordingly”. In the complaint itself, a list of certain witnesses and documents are shown. (emphasis supplied). 3. Counsel for the petitioner submitted that Annexure A1 complaint dated 26-9-2005 was filed on the same date which was numbered as CMP 2782/2005 and the same was adjourned to 15-10-2005 on which date the sworn statement CRMC 4300/05 :-9-: of the complainant was taken and it was again adjourned. According to the counsel for the petitioner, since the complaint was not sent for investigation under section 156 (3), the complainant had preferred Annexure II petition on 19/10/2005 which was adjourned to 4-11-2005 for hearing. Petitioner was heard on 4-11-2005 and the same was adjourned for orders to 8-11-2005. Since the order was not ready on 8-11-2005, the petition was again adjourned to 11- 11-2005 and again adjourned to 14-11-2005 on which date the order was passed in Annexure A2 petition. Annexure A3 is the order dated 14-11-2005 in CMP 2999/2005. According to the Magistrate, the request for entrusting investigation under section 156(3) with the police cannot be entertained since the sworn statement of the complainant is already recorded and the complaint stands posted for further enquiry as the offence alleged is exclusively triable by court of Session and therefore according to the Magistrate, statements of the entire witnesses have to be recorded and the court has to consider whether offences as alleged in the complaint are CRMC 4300/05 :-10-: made out. It is also stated by the Magistrate that the court had already decided to proceed under section 202(2) Cr.P.C. and the statement of the complainant is also recorded and now the court cannot revert back and forward the complaint to police for investigation and call for report as specified under section 202 (1) Cr.P.C. Another reason given by the court is that since the court had started the mandatory euquiry on the complaint as specified by proviso (a) to Section 202(1) Cr.P.C., by recording the statement of the de facto complainant, the court cannot give a go bye to the enquiry initiated or conducted under proviso (a) to Sec.202 (1) Cr.P.C and forward the complaint to police for investigation. It is the above order challenged in this petition and prays that Annexure II petition may be allowed. 4. I have heard the counsel for the petitioner as well as the respondent and also the learned public Prosecutor. 5. Counsel for the petitioner submits that going by the complaint, it can be seen that very serious offences which are exclusively triable by the Sessions court are alleged against CRMC 4300/05 :-11-: the accused and the complainant will not be in a position to adduce evidence to substantiate the allegation especially the allegation under section 302 of IPC is involved. The counsel submitted that considering the nature of the allegations and the sad death of the husband of the complainant, an effective police investigation is absolutely necessary, otherwise the allegation against the accused cannot be proved. It is pointed out by the counsel for the petitioner that normally, when a private complaint is filed before a court of law, the same has to be referred for investigation under section 156(3) of Cr.P.C. No reason is inferable from the impugned order for not invoking Section 156(3) Cr.P.C. It is also pointed out that the complainant was constrained to file Annexure II petition when the Magistrate has chosen to take the sworn statement of the complainant instead of invoking Section 156(3) of Cr.P.C. Thus, according to the counsel, the course adopted by the Magistrate in not referring the complaint for police investigation as envisaged under section 156(3) of Cr.P.C., is absolutely incorrect , illegal and irregular. CRMC 4300/05 :-12-: 6. Per contra, the learned counsel appearing for the respondents 2 to 5 submitted that Annexure III order is perfectly legal and valid and Annexure AII petition was filed only after recording the sworn statement of the complainant and therefore, the Magistrate cannot abandon the proceedings initiated under Chapter XV of the Cr.P.C. and to go into a stage under section 156(3) of Cr.P.C. Opposing the prayer of the petitioner, the learned counsel for the respondents submitted that in every case of private complaint, Magistrate need not send the matter for investigation under Section 156(3) Cr.P.C.. On the other hand, Magistrate can invoke Section 202 and if it is satisfied, cognizance can be taken and can take further steps in the matter. In support of the above contention, the learned counsel placed reliance in the decision of the Apex Court in Tula Ram and Others v. Kishore Singh {(1977) 4 SCC459) and also the decision of this Court in Superintendent of Police, C.B.I. v. State of Kerala (2005(3) KLT 823). Therefore, according to the learned counsel for the respondents, the order of the Magistrate which challenged in this Crl.M.C. is absolutely correct and not warranted the interference of this Court under section 482 of Cr.P.C. CRMC 4300/05 :-13-: 7. The learned Public Prosecutor submitted that Annexure A2 petition was filed after recording of the sworn statement of the complainant and the prayer in the Crl.M.C. is to allow Annexure A2 petition. Since the Magistrate has already adopted proceedings under section 202, the same has to be completed in accordance with law and at this stage, the Magistrate is not empowered to invoke Section 156(3) of Cr.P.C. and hence the prayer cannot be allowed. 8. Chapter XIV of Cr.P.C. which deals with conditions requisite for initiation of proceedings. Section 190 of the Cr.P.C. is with respect to the cognizance of offences by a Magistrate. As per Sec.190, the Magistrate can take cognizance of any offence under three situations, namely: a) upon receiving a complaint of facts which constitute such offence; b) upon a police report of such facts; c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 9. The Apex Court in the decision reported in Tula Ram and Others v. Kishore Singh {(1977) 4 SCC 459) has held as follows: CRMC 4300/05 :-14-: “Sections 190 and 156(3) are mutually exclusive and work in totally different spheres. A Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156 (3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by section 207 of the Code”. In the same decision, it is also held as follows: “Where a Magistrate orders investigation by the police under Section 156(3) before taking cognizance and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190”. 10. This Court in the decision reported in Superintendent of Police, C.B.I. v. State of Kerala (2005(3) KLT 823) is of the opinion that the fact that the Magistrate has got a discretion to forward a complaint under section 156(3) does not mean that the complainant has a right or privilege to make a demand to refer the case to the police. The option to refer the complaint to the police for investigation under section 156(3) before cognizance or under section 202(1) after cognizance, is to CRMC 4300/05 :-15-: be exercised by the Magistrate. But that discretion has to exercised in a judicious manner and not mechanically. It is also held that the prayer in the complaint must be to try the accused and to punish him in case he is found guilty of any offence. So when the sole prayer in the complaint is to refer the same to police, the Magistrate shall approach the matter with care and caution and insist for materials to show a prima facie case. In this case it is pertinent to note that both the prayers, as mentioned in the above decision have been incorporated in the complaint. On the other hand, the learned counsel for the petitioner invited my attention to the decision of the Apex Court in Devarapalli Lakshminarayana Reddy and Others v. V.Narayana Reddy and Others (1976 SCC (Cri.) 380) . In paragraph 13 of the above decision, the Apex Court has held: “It is well settled that 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. This is clear from the use of the words “may take cognizance” which in the context in which they occur cannot be equated with “must take cognizance”. The word “may” gives a discretion to the magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding CRMC 4300/05 :-16-: of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a 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, himself”. On the strength of the above principle laid down by the Apex Court, the counsel submitted that in the present case also what expected from the magistrate is to refer the complaint for investigation under section 156 (3) Cr.P.C. But instead of the above general course, the magistrate had adopted Sec.202 enquiry for which no reason is assigned by the Magistrate. 11. I have gone through Annexure III order of the learned Magistrate. Nothing stated so as to conclude that there is some reason for not resorting to the usual course of sending the complaint for investigation under section 156(3) of Cr.P.C. The learned counsel for the respondent submitted that based upon the averments and allegations contained in the complaint, the learned Magistrate has decided to resort to section 202 enquiry for taking cognizance and therefore Annexure A2 petition filed by the complainant is not maintainable and the Magistrate CRMC 4300/05 :-17-: has no jurisdiction to go back from S.202 enquiry and to invoke S.156(3) of Cr.P.C. 12. Going by Annexure A3 order it can be seen that the Magistrate is of the opinion that he has no jurisdiction or authority to go back from the enquiry or the proceedings prescribed vide Chapter XV of the Code since the Magistrate had opted not to invoke S.156 (3) but to proceed under the provisions of Chapter XV of the Code. The above approach of the learned Magistrate seems to be incorrect, irregular and illegal. The discretion, as pointed out by this Court in the decision cited supra and also the Supreme Court, has to be exercised when the Magistrate receives a complaint under Sec.190 of Cr.P.C. This Court in the above decision has held that that discretion must be exercised in a judicious manner. Considering the facts and circumstances involved in the case which was borne out on a perusal of Annexure A1 complaint, it can be seen that the allegation against the accused is that they have committed murder of the husband of the complainant by administering poison and according to the complainant there is no direct evidence to substantiate the allegations if the allegations are true. The learned Magistrate failed to take note of the CRMC 4300/05 :-18-: above aspect. At the time of exercising the discretion, the Magistrate ought to have borne in mind that the proviso to subsection(1) of Section 202 of Cr.P.C. which says that no such direction for investigation shall be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session. In the light of the facts and circumstances and the allegations contained in Annexure A1 complaint, it can be seen that the offences are exclusively triable by Court of Session. So unless there is an effective investigation at the instance of the police, if it is true, the allegation cannot be substantiated in the absence of police report. Therefore, considering the entire facts and circumstances involved in the case, I am of the view that the Magistrate ought to have referred the complaint for investigation under section 156 (3) of Cr.P.C. 13. The reason given by the learned Magistrate to reject Annexure A2 application, is that he had already resorted to the proceedings under section 202 in Chapter XV of the Code and he cannot go back and invoke S.156(3), appears to be incorrect. When the Magistrate failed to exercise his judicial discretion and to invoke 156(3) of the Code and adopted the procedure under section 202 of Chapter XV, he cannot be CRMC 4300/05 :-19-: heard to say that he cannot go back from the proceedings already initiated under the provisions of Chapter XV. As I have already found that the learned Magistrate failed in exercising his discretion and sending the complaint for investigation under section 156(3), it follows that the consequent proceedings adopted by the court below is to be set aside and I do so. 14. The learned counsel for respondents submitted that in case the matter is being sent for investigation to the police, then a direction may be issued to the police not to harass the respondents. I find no reason to presume that the police will be prejudicial to the accused/respondents or they will harass them. Considering the fact regarding the sad death of the husband of the petitioner/complainant, it is the duty of the police to find out the truth connected with the allegation and to book the culprits if any for the cause of the death of the complainant’s husband. I am of the firm belief that the police will conduct an impartial investigation and to bring out the truth and to book the culprit, if any, and place them before the court of law. 15. In the result, all proceedings under Section 202 of Cr.P.C. upon Annexure-I complaint and