IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 Crl.MC.No. 1634 of 2010() ------------------------- CC.236/2010 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... PETITIONER(S): ACCUSED NOS. 8 & 9: ---------------------------------------------------------- 1. BISHOP MAR THOMAS CHAKKIATH,AGED 72 YEARS, RESIDING AT MAJOR ARCH BISHOP'S HOUSE, POST BOX NO.2580,KOCHI-682 031, ERNAKULAM DISTRICT. 2. FR.ANTONY CHIRAPPANATH,AGED 66 YEARS, RESIDING AT SOCIAL INSTITUTE,NORTH KALAMASSERY- 683 104, ERNAKULAM DISTRICT. BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE, BY ADVS.SRI.GILBERT GEORGE CORREYA, SRI.SOJAN MICHEAL. RESPONDENT(S): STATE & COMPLAINANT: ---------------------------------------------------------------- 1. STATE OF KEALA-REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. SR.RAIASY ROSE,DAUGHTER OF VARKEY ETTIKKATTIL,RESIDING AT CMC CONVENT NARAKKAL, ERNAKULAM DISTRICT,KERALA STATE. R1 BY PUBLIC PROSECUTOR SRI. K.J. MOHAMMED ANZAR R2 BY ADVS. SRI.LIJI.J.VADAKEDOM, SRI.KENNEDY M.GEORGE, SRI.M.J.CHERIYAN. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/02/2011 ALONG WITH CRMC NO. 4885 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.Nos.1634 and 4885 of 2010 --------------------------------------- Dated this 03rd day of February, 2011 ORDER Initially it started as a dispute regarding ownership and administration of the St.Mary's U.P School, Njarakkal (for short, “the School”) with the Nuns of Little Flower C.M.C Convent on the one side and some of the parishioners of St.Mary’s Catholic Church,Njarakkal (for short, “the Church”) allegedly led or guided by the parish priests and/or the Bishop as the nuns would allege on the other side. Later, it snowballed into an incident on 25.01.2009. It is alleged that some of the parishioners either led by the parish priests and/or instigated by the Bishop as the nuns allege trespassed into the convent and poor home run by them and assaulted some of the nuns and inmates of the poor home. Information was given to the police regarding the alleged incident based on which Njarakkal police registered Crime No.139 of 2009 against 16 persons named in the first information statement. Annexure-I (in Crl.M.C.No.1634 of 2010) is the FIR registered for offences punishable under Secs.143, 147, 448, and 323 r/w Sec.149 of the Penal Code. It is not disputed before me, the police after investigation submitted a final report against 18 Crl.M.C.Nos.1634 and 4885 of 2010 -: 2 :- persons (including two more persons than mentioned in Annexure-I, FIR) alleging offences punishable under Secs.143, 147, 148, 448 and 323 r/w Sec.149 of the Penal Code. While so, one of the nuns who allegedly sustained injury (respondent No.2 herein) filed a private complaint in the court of learned Judicial First Class Magistrate-I, Kochi on 01.01.2010 (Annexure-2 in Crl.M.C.No.1634 of 2010) against 9 persons concerning the very same incident and alleging that certain documents were forged by some of the accused mentioned therein to make it appear that ownership and management of the school was transferred by the C.M.C Convent to the Church. Learned Magistrate conducted inquiry under Sec.202 of the Code of Criminal Procedure (for short, "the Code”), recorded the sworn statement of complainant and two witnesses and marked certain documents. The affidavits of three witnesses including CWs.1 and 2 whose sworn statements were recorded, and another witness (who was not examined) produced before the learned Magistrate in the course of the inquiry were marked as Exts.C18, 19 and 24. Based on the materials collected in the inquiry cognizance was taken against 16 persons for offences punishable under Secs.465, 452, 325, 354 and 120B r/w Sec.34 of the Penal Code. Accordingly, Crl.M.C.Nos.1634 and 4885 of 2010 -: 3 :- process was issued to the said 16 accused (who included 9 accused mentioned in the private complaint - Annexure-2). Proceedings of the learned Magistrate pursuant to Annexure-2, complaint is called in question by the accused in these proceedings. Crl.M.C.No.1634 of 2010 is filed by accused Nos.8 and 9 while Crl.M.C.No.4885 of 2010 is filed by accused Nos.1 to 7 and 10 to 16. It is contended by learned Senior Advocate, Sri. M.K.Damodaran appearing for petitioners/accused that the procedure adopted by the learned Magistrate in taking cognizance on the private complaint when a final report in respect of the same incident was pending consideration is illegal. Learned Magistrate could not have taken cognizance of the offences against those accused referred to in final report in the police case. It is also contended that issue of process to those accused not mentioned in Annexure-2, complaint is without jurisdiction. It is contended that cognizance was taken on Annexure-2, private complaint without application of mind as is revealed by the attending circumstances. Affidavits of witnesses produced in the inquiry should not, and could not have been treated as evidence. Though allegation of forgery is made with respect to a document of the year 1971, that document or its Crl.M.C.Nos.1634 and 4885 of 2010 -: 4 :- admissible copy is not produced in the course of the inquiry. It was illegal to admit for consideration photocopy of the documents and even photocopy of the cover page of a magazine and a judgment which appeared in a magazine. Reliance is placed on the decision in Bhagwant Singh Vs. Commissioner of Police and Ors. (1985 SCC 267) and Parameswaran Nair Vs. Surendran (2009(1) KLT 794). In response, it is contended by learned counsel, Dr.Koodallur M.J Cherian appearing for complainant/respondent No.2 that learned Magistrate has applied mind before taking cognizance and issuing process to the accused whose involvement is revealed by the materials collected in the inquiry under Sec.202 of the Code. It is contended that affidavits produced in the inquiry are admissible in evidence under Sec.296 of the said Code. Learned counsel pointed out that what is produced is only the cover page of a Magazine and a judgment of the Karnataka High Court reported in the Magazine. According to the learned counsel there is no reason why this court should interfere under Sec.482 of the Code as if there is an abuse of the process of law or any injustice is done in the matter. It is also contended by learned counsel that speedy trial is a fundamental right guaranteed by the Crl.M.C.Nos.1634 and 4885 of 2010 -: 5 :- Constitution and that Sec.482 of the Code is subservient to Articles 14, 19, 21 of the Constitution. Learned counsel has placed reliance on the decisions in Gudalure M.J Cherian Vs. Union of India (1995 Supplemental(3) SCC 387), Maneka Gandhi Vs. Union of India (AIR 1978 SC 597), Hussainara Khatoon Vs. Home Secretary, State of Kerala (AIR 1979 SC 1819). 2. I shall consider the question whether, when a final report against 16 accused (who included persons against whom process is issued based on the private complaint-Annexure-2) was pending before the learned Magistrate, it was possible for the learned Magistrate to take cognizance on the private complaint, conduct inquiry under Sec. 202 of the Code and issue process to the accused under Sec.204 of the said Code. Learned Magistrate was asked to report whether cognizance was taken on the police report. The successor-in-office of the learned Magistrate who took cognizance on the private complaint has reported that on perusal of records it is seen that no order has been passed in the matter of taking cognizance on the final report in Crime No.139 of 2009 of Njarakkal Police Station (where final report is submitted against 18 persons including the 16 persons referred Crl.M.C.Nos.1634 and 4885 of 2010 -: 6 :- in the FIR). 3. It is true that as reported by the learned Magistrate, cognizance has not been taken or, no order has been passed in that regard on the final report as above stated but, in the meantime the second respondent preferred Annexure-2, complaint, inquiry was conducted and process was issued to the accused including those arrayed as accused in the final report in Crime No.139 of 2009. The question is whether for the said reason cognizance taken on Annexure-2, complaint, inquiry conducted under Sec.202 of the Code and issue of process under Sec.204 of the said Code could be said to be illegal. The decision relied on by learned Senior Advocate Bhagwant Singh Vs. Commissioner of Police and Ors. (supra) did not say that in such situation cognizance taken on a private complaint is illegal. That decision only said about options available to the Magistrate on receipt of a final report under Sec.173(2) of the Code, such as to take cognizance of the offences as per that report, refuse to do so or order further investigation. The decision in Parameswaran Nair Vs. Surendran (Supra) also cannot apply to the factual situation in the present case. Learned Senior Advocate referred to me clause 6 of paragraph 17 of that decision. That referred to Crl.M.C.Nos.1634 and 4885 of 2010 -: 7 :- a case where a complaint (which could only be treated as a second complaint) is preferred in respect of the same incident after a final report on the same incident is accepted and proceedings are dropped with notice to the de facto complainant. In such a situation cognizance on a second complaint in respect of the same incident is possible only on fresh materials being brought out as stated in the said decision. In the present case final report filed by the police is not a refer report and is pending consideration. There are sufficient indications in the Code that even when a final report submitted by the police in respect of the same incident is pending, it is possible to file a private complaint in respect of the same incident. Sec.210 of the Code states that when a case instituted otherwise than on a police report (hereinafter referred as “complaint case”) is pending inquiry or trial it is made to appear to the Magistrate that a police investigation is in progress in respect of the same subject matter, the Magistrate shall stay the proceedings (in the complaint case) and call for a report on the matter from the police officer investigating the case. Sub sec(2) states the procedure to be followed when the police officer submits a final report under Sec.173 of the Code. Thus, Sec.210 of the Code indicates that Crl.M.C.Nos.1634 and 4885 of 2010 -: 8 :- there could be a complaint case and a case instituted on a police report in respect of the same subject matter. But what happens if in such a situation the complaint case and police case are materially different, contradictory and mutually exclusive and hence a joint trial is not possible? This court had occasion to consider that contingency in Mani Vs. Swaminathan (1986 KLT 170) and Peter Vs. Kurian (1994(1) KLT 17). The Supreme Court considered that question in Pal Vs. State of U.P. (2010(1) SCC 123). It is held that when the cases are mutually exclusive or contradictory, and materially different, the same are to be tried (by the same court) one after the other, recording evidence in the cases separately and the same are to be disposed of simultaneously ensuring that evidence recorded in one case is not read in the other. Thus, reading the said decisions and the implications under Sec.210 of the Code it leaves me in no doubt that in respect of the same incident it is possible that there could be a police case and a complaint case, either containing the same allegations which permit a joint trial of the two cases or which are mutually exclusive or contradictory and materially different which require separate trial but simultaneous disposal. Hence the contention that since the final report in Crime No.139 Crl.M.C.Nos.1634 and 4885 of 2010 -: 9 :- of 2009 was pending and no order on cognizance is passed on it, learned Magistrate could not have taken cognizance on the private complaint, conduct inquiry under Sec.202 of the Code and issue process to the accused cannot be accepted. 4. Then the next question is whether the learned Magistrate could have issued process in the complaint case to those accused not mentioned in Annexure-2, complaint but whose involvement in the alleged incident is said to be revealed in the evidence collected in the inquiry under Sec.202 of the Code. Annexure-R2(a) in Crl.M.C.No.1634 of 2010 is the order of learned Magistrate issuing process under Sec.204 of the Code to 16 accused including 9 accused mentioned in Annexure-2, complaint. It is pointed out that names of the accused other than mentioned in Annexure-2, complaint is referred to in the sworn statement of respondent No.2, the de facto complainant as CW1. It is submitted by learned Senior Advocate that no other witness whose sworn statement was recorded by the learned Magistrate has referred to the alleged involvement of the accused other than mentioned in Annexure-2 complaint. Learned counsel for respondent No.2 submits that there is reference to those accused in the statement of CW3 as well. Crl.M.C.Nos.1634 and 4885 of 2010 -: 10 :- 5. According to the learned Senior Advocate, process could have been issued only to the accused mentioned in the complaint but learned counsel for respondent No.2 maintained that learned Magistrate is entitled to issue process to all persons whose involvement in the offence is revealed by the materials collected in the inquiry under Sec.202 of the Code. The contentions require deeper consideration. 6. Sec.190 of the Code deals with the power of the Magistrate to take cognizance of an offence (and not against the offender) on receipt of a complaint, police report, upon other information or upon his own knowledge which constitutes an offence. When cognizance of the offence is taken on a private complaint, the Magistrate proceeds to inquire into the matter under Sec.200 or 202 of the Code if he finds that he has jurisdiction to proceed in the matter (in the present case inquiry under Sec.202 of the Code was conducted). In case the complaint is not dismissed under Sec.203, and if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground to proceed, he has to issue process to the accused. It is therefore clear that what the Magistrate does under Sec.190 of the Code is taking cognizance of the offence and what he does Crl.M.C.Nos.1634 and 4885 of 2010 -: 11 :- under Sec.204 is issuing process to the offender based on the materials collected in the inquiry. Learned Senior Advocate has placed reliance on the decisions in Chandra Deo Vs. Prakash Chandra (AIR 1963 SC 1430) and Nagawwa Vs. Veeranna (AIR 1976 SC 1947) to support the view that process can be issued only against the persons mentioned in the complaint. In the latter decision it is observed in paragraph 4 that the scope of inquiry is limited to ascertainment of the truth or falsehood of the allegations made in the complaint and whether a prima facie case is made out for the issue of process. In the former decision it is held that the object behind inquiry under Sec.202 of the Code is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But these decisions do not answer the question involved in the present case. 7. It is held in Raghubans Dubey Vs. State of Bihar (AIR 1967 SC 1107) thus: “In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders, once he takes cognizance of an offence it is his duty to find out Crl.M.C.Nos.1634 and 4885 of 2010 -: 12 :- who the offenders really are and onece he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence...” The Supreme Court in the said decision not only enjoined upon the Magistrates to find out, on taking cognizance who the offenders really are, but also cast a duty upon them that once they came to the conclusion that apart from the persons sent up by the police some other persons are also involved, to proceed against those persons also and that summoning such persons is part of the proceeding initiated by their taking cognizance of the offence. The said view was followed in Hareram Satpethy Vs. Tikaram Aggrawala (AIR 1978 SC 1568) and Joginder Singh Vs. State of Punjab (AIR 1979 SC 339) . A Division Bench of the Delhi High Court in Jagadish Sahai Mathur Vs. State (Delhi Admin) (1991 Crl.C.J.1069) has taken the view that in the matter of power of the Magistrate to summon additional accused, Sec.319 of the Code is not the only repository. Summons to a co-accused can be issued under Sec.190(1) of the Code as well. No doubt, those cases related to Crl.M.C.Nos.1634 and 4885 of 2010 -: 13 :- summoning of additional accused not sent up for trial by the police in a report submitted under Sec.173(2) of the Code. But on reading Secs.190, 200, 202 and 204 of the Code I do not find reason to think that the power of the Magistrate to summon additional accused whose involvement is revealed by the materials on record is not available in a complaint case. There is no reason why the said power shall not be exercised in relation to an accused not mentioned in the complaint but whose involvement is revealed in the evidence collected in the inquiry under Secs.200 or 202 of the Code. 8. A situation can be illustrated as under: ‘A’ who is not a witness to the incident files a complaint before a Magistrate stating that ‘B’ assaulted ‘C’. In the inquiry under Sec.202 of the Code, ‘C’ and a few other witnesses are examined. They stated that 'D' also assaulted 'C' or materials indicated that it was in furtherance of the common intention of ‘B’ and ‘D’ that ‘B’ assaulted ‘C’. The Magistrate is satisfied from the evidence that ‘D’ is also involved in the incident. Is the Magistrate precluded from issuing process to ‘D’ for the reason that his involvement is not mentioned in the complaint? I am not inclined to think so. In Harihar Chakravarthy Vs. State of Crl.M.C.Nos.1634 and 4885 of 2010 -: 14 :- West Bengal (AIR 1954 SC 266) it is observed in paragraph 10 (though concerning framing of charge) “We do not find even a word about this either in the complaint or in the examination of the complainant...” In Edward VS. Victor Samuel (2002(1) KLJ 101) this court also made a similar observation (in the matter of framing charge) that there should be material either in the complaint or in the evidence. 9. In my view therefore, a Magistrate who takes cognizance of an offence under Sec.190 of the Code is entitled to find out in the inquiry under Sec.202 who the offenders really are and to issue process to such offenders under Sec.204 of the Code. 10. In my view Sec.319(1) of the Code could also be made use of in such situation. Under the said provision if in the course of ‘any inquiry into, or trial of an offence, it appears from the evidence that any person, not being an accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such persons for the offence which he appears to have committed.’ Sec.319(1) of the Code in my view does not give any indication that it does not Crl.M.C.Nos.1634 and 4885 of 2010 -: 15 :- apply to the pre-charge stage. It is now settled that collection of materials under Secs.200 or 202 of the Code is “inquiry” . The sworn statement recorded by the Magistrate under Secs.200 or 202 is “evidence” as understood in Sec.3 of the Indian Evidence Act. (See Vasudevan Vs. State of Kerala (205(1) KLT 220). In Narayanan Nambiar Vs. State of Kerala (1987 (1) KLT 871) it is held, referring to Sec.319 of the Code that ‘evidence’ takes in deposition of witness during inquiry or trial who was not cross examined and re-examined and that, “so far as grounds to proceed against him is concerned question was only between the complainant and the Magistrate. The satisfaction required to proceed against him is just like the one under Secs.204, 228 or 240. For the application of Secs.319, it is not necessary that the ‘evidence’ must be one which is tested by cross examination (See Rakesh Vs. State of Haryana (2001(3) KLT 70(SC) and Saraba Reddy Vs. Puthur RamiReddy (2007(4) KLT 362 SC). The Supreme Court in Rakesh Vs. State of Haryana (AIR 2001 SC 2521) has also indicate the power of Magistrate to implead additional accused on the strength of evidence collected in the inquiry under Sec.200 of the Code. In paragraph 10, it is stated that the evidence collected in the inquiry under Sec.200 of Crl.M.C.Nos.1634 and 4885 of 2010 -: 16 :- the Code cannot be tested by cross examination (and hence it cannot be said that only evidence tested by cross examination could be made use of for impleadment under Sec.319 of the Code). Viewed in the above perspective, I am unable to accept the contention of petitioners-accused that learned Magistrate could not have issued process to those accused who are not named in Annexure-2, complaint. But no doubt, in such situation the Magistrate must be more cautious to ensure that there is no false implication and somebody is not summoned under Sec.204 of the Code merely because a witness examined under Secs.200 of 202 of the Code mentioned his name also though the complaint did not mention his involvement. 11. It is not disputed that CWs.1 to 3 whose sworn statement learned Magistrate recorded, filed affidavits and the affidavit of another witness (who was not examined in the inquiry) was also received in evidence. Acceptance of the said affidavits are sought to be supported by the learned counsel for respondent No.2 relying on Sec.296 of the Code. That provision says that evidence of 'formal character' can be let in by affidavit. But, I am not persuaded to think that an ‘inquiry’ under Sec.202 of the Code is a matter of formal character as understood in Crl.M.C.Nos.1634 and 4885 of 2010 -: 17 :- Sec.296 of the Code. I must also bear in mind that reading Secs.1 and 3 of the Evidence Act, 'affidavit' is not evidence as understood in Sec.3 of the said Act. Support for that view can be had from Rupikabai Vs. Narayan Govinda Samarth & Ors. (AIR 1953 Nagpur 135). I must bear in mind that a departure is made in Sec.296 of the Code and in Sec.138 of the Negotiable Instruments Act (for short, “the Act”) where there is a specific provision (Sec.145) that evidence of the complainant can be taken by affidavit and in that situation it is possible to say that instead of recording sworn statement of the complainant it is sufficient to produce his affidavit which could be used as evidence. Even that provision only relates to the evidence of the complainant and not the witness. Moreover, Sec.200 of the Code also says that while conducting the inquiry substance of examination of the complainant and witnesses on oath shall be reduced in writing and be signed by the complainant/witnesses and also by the Magistrate. If that be so, there is no scope for inquiry under Secs.200 and 202 of the Code receiving affidavits (except where it is specifically permitted). Learned Magistrate therefore was wrong in accepting affidavits of CWs.1 to 3 (whose statement I am told has already been recorded) and the affidavit Crl.M.C.Nos.1634 and 4885 of 2010 -: 18 :- of another witness (who was not examined). Such a procedure is not contemplated under Secs.200 and 202 of the Code and hence those materials cannot be looked into in the matter of issuing process to the accused persons. 12. Yet another argument