IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 Crl.Rev.Pet.No. 1445 of 2011() ------------------------------ CMP.1121/2010 of JUDICIAL FIRST CLASS MAGISTRATE'S COURT II, HARIPAD .................... PETITIONER/DEFACTO COMPLAINANT: ----------------------------------------------------------- SYAM, AGED 42 YEARS, AMPEETHARAYIL HOUSE, THAMALLACKAL THEKKU, THAMALLACKAL P.O., ALAPPUZHA. BY ADV. SRI.M.R.JAYAPRASAD RESPONDENT(S): COMPLAINANT AND 2ND ACCUSED: --------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2. THE SUB INSPECTOR OF POLICE, HARIPAD POLICE STATION, ALAPPUZHA-688 001. 3. SARANGADHARAN, CHEMPODI KIZHAKKATHIL, KANNAMANGALAM NORTH, CHETTIKULANGARA-690 106. 4. THREE POLICE CONSTABLES OF HARIPAD POLICE STATION AND TWO OTHER HENCHMEN OF THE 2ND COUNTER PETITIONER IN THE COMPLAINT 3RD RESPONDENT HEREIN, PIN-690 514. R1 & R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND R3 BY ADVS. SRI. K.SHAJ, SRI.SAJJU.S. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN ---------------------- Crl.R.P. No.1445 OF 2011 --------------------------------- Dated this the 9th day of June, 2011 O R D E R Aggrieved by the order of dismissal of a complaint preferred by the revision petitioner in the court of Judicial First Class Magistrate Court-II, Haripad, this revision petition is filed. 2. Heard the counsel for the petitioner and I have also perused the order impugned. 3. The learned counsel for the revision petitioner vehemently submitted that the learned Magistrate committed wrong in dismissing the complaint for want of sanction under Section 197(2) of Cr.P.C and also for the reason mentioned in the order impugned. 4. The case of the revision petitioner is that the accused persons have committed the offences punished under Section 379, 506(ii), 509 r/w Section 34 of IPC. The specific allegation is that the complainant is residing in his residence with his family and recently, the second accused have made several complaints before the police against the complainant and thus the Haripad police is regularly harassing him. Crl.R.P. No.1445 OF 2011 2 According to the complainant, against such police atrocities the complainant has sent petitions to the Human Right Commission, Director General of Police etc. According to the complainant, at about 7.15 P.M. on 12.5.2010, when the complainant was not in his house, the accused persons entered into the house of the complainant and threaten the wife and child of the complainant enquiring about the complaint. It is also stated that the accused threatened them of manhandling the complainant, if he is taken into custody. It is the specific case of the complainant that while searching the house of the complainant, the Sub Inspector and police personal have illegally taken the hand bag of the complainant which contains SSLC Book, Pre- Degree Certificate and Degree Certificate etc. and currency notes of Rs.450/- and thereafter, the police has taken the Enfield motor cycle of the complainant which was kept in front of his residence. According to the complainant, the police meted out the above atrocities in the presence of the second accused and as directed by him. According to the complainant, no petition or compliant is pending against the complainant and the police had committed the atrocities at the Crl.R.P. No.1445 OF 2011 3 instigation of the second accused and thus the accused have committed the above offences. 5. On receiving the complaint, an enquiry was undertaken by the learned Magistrate and accordingly the sworn statement of the complainant was recorded who examined as CW1 under Section 200 of the Cr.P.C. The statement of CW2, the wife of the complainant was also recorded under Section 202 of Cr.P.C. According to the learned Magistrate, statements of CW1 and 2 reveals that there exists some disputes between the complainant and the second accused. The learned Magistrate has specifically observed in paragraph 5 of his order that “ it is pertinent to note that in the complainant, the complainant alleged that second accused is claiming himself to be the father of the complainant. The complainant is not admitting the second accused as his father. The statements of CW2 reveals that she does not no the second accused as the father of the complainant”. On the basis of the above conflicting and contradictory versions, the learned Magistrate is of the opinion that the compliant is filed only to harass the accused persons without any sufficient ground and the materials further reveals Crl.R.P. No.1445 OF 2011 4 that the complaint is the outcome of the hatred of the complainant towards the second accused who is the alleged father of the complainant. I find no reason to interfere with the above findings of the learned Magistrate and to take a different view. 6. The learned counsel for the petitioner submitted that the search of the house of the complainant was taken place at about 7.15 P.M. on 12.5.2010 and on that day itself a fax massage was send to the Director General of Police at 9.30 PM by the wife of the complainant, CW2. Thus according to the learned counsel, the above facts itself would sufficient to show the bnonafidenes and correctness of the contention and allegations of the complainant. It is also the submission of the learned counsel that along with the complaint the complainant had preferred an application under Section 93(1)(c) of Cr.P.C, appointment of commission to ascertain and find out the vehicle bearing registration No.KL- 4/E 9851 which was kept in the premises of the Haripad police station. But according to the learned counsel, the learned Magistrate obtained the report from the very same Police Officer against whom the complaint is preferred. Crl.R.P. No.1445 OF 2011 5 7. According to the learned counsel, in view of Section 91 and 93, the Magistrate should have issued search warrant or commission authorizing the Advocates present the court for the same. Thus according to the learned counsel, the procedure adopted by the learned Magistrate is irregular and improper and illegal. Therefore, the learned counsel submitted that the order impugned is liable to be set aside. 8. I am unable to sustain the above contention. On a reading of Section 93, it is crystal clear that the court can issue search warrant, only when the court is of the opinion that, a person to whom a summons or order under Section 91 or a requisition under Section 92 (1) has been issued and they have failed to produce the document or thing as required by such summons or requisition. In the sub-sections and clauses the further procedures are clearly enumerated. In view of Section 93(1) clause (c) the person to whom the warrant is directed may search or inspect in accordance with and the provisions contained thereafter. On a combined reading, it can be seen that except on exempted case only the police can conduct search and execute search warrant. Therefore, the contention of the learned counsel fails. Crl.R.P. No.1445 OF 2011 6 9. In the present case, it is pertinent to note that on getting the application, the learned magistrate had obtained report from the police and in such report the police had already informed the Magistrate that the vehicle in question was seized when it was found in an abandoned condition near the Danapadi, Bridge Haripad while they were on petrol duty. According to the report, there was no document to show the certificate of registration and accordingly the vehicle was taken into custody under Section 11 of the Kerala Motor Vehicle Taxation Act, 1976. It was under the above factual circumstances, the learned Magistrate repelled the contention of the complainant with respect to the vehicle in question. In the light of the facts and circumstances mentioned above and the discussion, I find no reason to interfere with the order impugned and as such there is no merit in the revision petition. The same is dismissed accordingly. V.K.MOHANAN, JUDGE mns