IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 Crl.MC.No. 2975 of 2007() ------------------------- CC.2067/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... PETITIONER: APPELLANTS ------------ V.K.SREEKUMAR, S/O.NARAYANA MENON, AGED 55 YEARS, 49/222 NARAYANEEYAM, SWAMIPPADI ROAD, ELAMAKKARA P.O., ERNAKULAM. BY ADV. SRI.SHAJI P.CHALY RESPONDENTS: ------------- 1. RAMAKRISHNAN, S/O.KUTTAPPAN, AGED 64 YEARS, KATHANAPARAMBIL HOUSE, PARAVOOR TALUK, PUTHENVELIKKARA VILLAGE, NORTH PARAVOOR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI ADV. SRI.K.S.MADHUSOODANAN FOR R1 SRI.K.B.SUJAI KUMAR FOR R1 SRI.T.V.JAYAKUMAR NAMBOODIRI FOR R1 SRI.THUSHAR NIRMAL SARATHY FOR R1 SRI.M.M.VINOD KUMAR FOR R1 SMT.K.M.RAMYA FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.2975 of 2007 ------------------------------------- Dated this the 18th day of August, 2008 O R D E R Petitioner is the 2nd accused in C.C.No.2067 of 2007 pending before the learned Judicial Magistrate of the First Class-I, Aluva. The 1st respondent herein is the complainant. In the complaint, the complainant had raised allegations, inter alia, under Sections 120 B, 420, 468 and 471 I.P.C. The learned Magistrate, after recording the sworn statement of the complainant, had taken cognizance of the offences alleged and had issued processes to the petitioner/accused. 2. Earlier, a private complaint was filed by the 1st respondent and the learned Magistrate had referred the complaint to the police under Section 156(3) Cr.P.C. Accordingly Crime No.639 of 2005 of Chengamanad Police Station was registered and investigation was conducted. In the course of investigation, the police came to the conclusion that a negative final report deserves to be filed and accordingly a refer report was filed under Section 173 Cr.P.C. It was thereafter that the present private complaint was filed and cognizance was taken by the learned Magistrate. Crl.M.C. No.2975 of 2007 2 3. The crux of the allegations raised by the defacto complainant/1st respondent is that he had entered into an agreement with the 1st accused on 30.08.03 regarding sale of immovable property. The 1st accused did not abide by the obligation in that agreement. Accused 1 and 2 allegedly conspired together to bring into existence a prior agreement dt.11.06.03 regarding the sale of the very same property which was the subject matter of the agreement dt.30.08.03 between the defacto complainant and the 1st accused. The 2nd accused, it is alleged, initiated a collusive and fraudulent suit for specific performance and an exparte decree was secured by the petitioner/2nd accused. Delivery of the property was effected in pursuance of such exparte decree. The petitioner/2nd accused is thus in possession of the property in question. It is the case of the defacto complainant that accused 1 and 2 had conspired together to bring into existence fraudulent and forged documents and using the same the offences have been committed to the detriment of the defacto complainant. 4. The learned counsel for the petitioner contends that the allegations raised are all false and are raised with vexatious intent. The petitioner, it is submitted, had entered into a bona Crl.M.C. No.2975 of 2007 3 fide agreement dt.11.06.03 with the 1st accused for sale of property. He did not comply with the terms of the agreement and this obliged the petitioner to go to court with a suit for specific performance. It was ultimately decreed and delivery was taken. There was no contumacious or culpable intent whatsoever and there was no conspiracy between the 1st and the 2nd accused. The defacto complainant has filed a suit now to set aside the exparte decree and also for specific performance of the agreement dt.30.08.03 between the 1st accused and himself. In that suit - O.S.470 of 2005, the petitioner herein (2nd accused) has also been made a party. What is purely a civil suit has been exaggerated and it has been alleged that crime has been committed by the petitioner in collusion with the 2nd accused. It is contended that there is transparent abuse of the criminal adjudicatory process. In these circumstances it is prayed that powers under Section 482 Cr.P.C may be invoked to quash the proceedings against the petitioner. 5. Be that as it may, another contention is raised on the validity of the procedure followed by the learned Magistrate. The learned counsel for the petitioner submits that cognizance has been taken by the learned Judicial Magistrate of the First Class -I, Crl.M.C. No.2975 of 2007 4 Aluva. That court does not have territorial jurisdiction over the place of residence of the petitioner, ie. the 2nd accused. Without and before conducting an enquiry under Section 202 Cr.P.C, cognizance has been taken of the offences allegedly committed by the petitioner. This is in gross disregard of the mandate of Section 202 Cr.P.C, which, after the amendment by Act 25 of 2005 which came into force on 23.06.06, mandates that a Magistrate, taking cognizance of an alleged offence committed by a person resident beyond the jurisdiction of such Magistrate, is obliged to conduct an enquiry under Section 202 Cr.P.C. The learned counsel for the petitioner submits that there is a gross lapse on procedure committed by the learned Magistrate. Because of such lapse, mind has not been applied to all the relevant facts. The learned Magistrate has not applied his mind properly to the negative refer report submitted by the police after due investigation. Except to record the sworn statement of the complainant, no other steps have been taken also. In these circumstances the counsel contends that, at any rate, the cognizance taken and the issue of processes under Section 204 Cr.P.C deserves to be quashed. The learned Magistrate may be directed to follow the procedure prescribed under the amended Crl.M.C. No.2975 of 2007 5 Section 202 Cr.P.C and conduct a proper enquiry under Section 202 Cr.P.C taking note of all the relevant circumstances including the refer report submitted by the police after due investigation before proceeding to consider whether process deserves to be issued or not under Section 203/204 Cr.P.C. In a case like the instant one, the learned Magistrate should not have taken upon himself the responsibility of deciding whether or not there is sufficient ground to proceed against the petitioner without and before conducting an enquiry under Section 202 Cr.P.C. In having not done the same, the learned Magistrate has squandered an opportunity to ascertain the real facts and decide whether the petitioner deserves to be proceeded against or not. 6. I find merit in the objections raised by the learned counsel for the petitioner. I have already taken the view that the amendment brought about in Section 202 Cr.P.C w.e.f 23.06.06 is not mandatory in nature in the sense that mere non compliance with the direction to conduct an enquiry under Section 202 Cr.P.C will not ip so facto vitiate the cognizance taken and the process issued consequently under Section 204 Cr.P.C. But in the peculiar facts and circumstances of the case, I am in ready agreement with the learned counsel for the petitioner that the Crl.M.C. No.2975 of 2007 6 omission/failure to conduct an enquiry under Section 202 Cr.P.C has caused serious prejudice to the petitioner. It cannot be lost sight of that the Investigating Officer has already conducted a detailed investigation and had submitted the negative final report before the learned Magistrate. In the light of that circumstance, mind must have been applied carefully by the learned Magistrate before deciding to issue processes to the petitioner under Section 204 Cr.P.C. 7. I am, in these circumstances, satisfied that the cognizance taken against the petitioner deserves to be quashed. In as much as I am choosing to invoke the powers under Section 482 Cr.P.C to quash the proceedings against the petitioner herein, I am satisfied that in the interests of justice cognizance taken can, as a whole, be set aside and the learned Magistrate can be directed to consider the complaint afresh after holding the requisite further enquiry under Section 202 Cr.P.C. After so conducting the enquiry under Section 202 Cr.P.C, the learned Magistrate shall consider afresh whether there is or there is no sufficient ground to proceed against the accused persons and take a decision under Section 203/204 Cr.P.C accordingly. Crl.M.C. No.2975 of 2007 7 8. In the result: i) This Crl.M.C is allowed; ii) The cognizance taken in C.C.No.2067 of 2007 and the issue of process under Section 204 Cr.P.C against the petitioner herein as well as the co-accused, ie. the 1st accused are set aside and the learned Magistrate is directed to proceed to conduct the enquiry under Section 202 Cr.P.C and take appropriate decision afresh under Section 203/204 Cr.P.C. iii) The process issued against the petitioner and the co- accused under Section 204 Cr.P.C is set aside. iv) The petitioner and the co-accused need participate in the proceedings only if, after considering the matter afresh, fresh process is issued against them. (R.BASANT, JUDGE) rtr/-