IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 Crl.Rev.Pet.No. 3083 of 2007() ------------------------------ (CRRP.13/2007 of SESSIONS COURT, KALPETTA) C.M.P.NO.2484 OF 2007 OF CHIEF JUDICIAL MAGISTRATE COURT, KALPETTA .................... REVN. PETITIONER(S): --------------------- THOTTITHARA SEBASTIAN, S/O. POULOSE, PURAKKADI, MUTTIL, WAYNAD. BY ADV. SRI.RANJITH(PARTY) RESPONDENT(S): --------------- 1. P. RANJITH, AGED 54, S/O. LATE PRABHAKARAN NAIR, GREEN FORT, P.O. MADAKKIMALA. 2. P. ANUPAMAN, S/O. LATE PRABHAKARAN NAIR, ANUGRAHA, KALPETTA NORTH. 3. U. CHANDRAN NAIR, AGED 63, S/O. GOVINDAN NAIR, KOMALA BHAVAN, KAKKAVAYAL, WAYNAD. ADV. SRI.CHNDRASEKHARAN SRI.P.CHATHUKUTTY SRI.M.ASOKAN THIS CRIMINAL REVISION PETITION HAVING HEARD ON 11/08/2009, ALONG WITH CRMC NO. 2118 OF 2007 AND WPC NO. 23081 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W -------------------------------------- Dated this the 11th day of August, 2009. COMMON ORDER All these proceedings arise or are in relation to an order passed by the learned Munsiff, Kalpetta while holding charge of learned Chief Judicial Magistrate, Kalpetta on the relevant day directing investigation by local police under Section 156(3) of the Code of Criminal Procedure (for short, “the Code”) on a private complaint filed by the petitioner in W.P(C) No.23081 of 2007 and numbered as C.M.P.No.2484 of 2007 for offences punishable under Sections 419, 465, 467, 468 and 471 read with Section 34 of the Indian Penal Code. For the sake of convenience parties are referred as complainant and accused. 2. Complainant and accused No.1 are brothers of Mohanan who died on 05.01.2006 (hereinafter referred as 'the deceased'). The private complaint (C.M.P.No.2484 of 2007) was filed on 25.6.2007. Allegations in the complaint in short are thus: The deceased, a bachelor died after prolonged treatment on 05.01.2006 and immediately before death he was undergoing treatment in the hospital. About two weeks before death, he became too weak, was bed ridden and unable to move about. On 15.12.2005 deceased executed and registered a Will as document No.126 of 2005 bequeathing his share in the joint family property to his brothers and sister, equally. That Will was executed and Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W 2 registered at Leo Hospital where the deceased was then undergoing treatment. Accused Nos.2 and 3 are attestors in that Will. After the execution of that Will deceased went into a comatose state. On 24.12.2005, accused Nos.1 to 3 managed to fabricate another Will purporting to be one executed by the deceased and got it registered as document No.129 of 2005. Accused No.1 impersonated himself as the deceased and forged the signature of the latter to which accused Nos.2 and 3 were also parties. Deceased was incapable of executing any such Will on 24.12.2005. Complainant has filed as O.S.No.192 of 2006 for a declaration that Will dated 24.12.2005 and registered as document No.129 of 2005 is null and void. On the above allegations complainant wanted to prosecute accused Nos.1 to 3 for offences first above stated. When the complaint was brought before learned Munsiff-Magistrate who was holding charge of learned Chief Judicial Magistrate on 25.06.2007, learned Munsiff-Magistrate passed order directing investigation by the local police under Section 156(3) of the Code. It is the further case of the complainant that on the next day at the instance of accused No.1 (who is an advocate), hearing of the complaint was advanced. In the meantime accused No.3 filed Crl.R.P.No.13 of 2007 in the Sessions Court, Kalpetta and obtained stay of the order directing investigation on the complaint. Complainant filed W.P.(C) No.23081 of 2007 in this Court to quash the stay order in Crl.R.P.No.13 of 2007 pending in the Sessions Court, Kalpetta. Accused No.1 filed Crl.M.C.No.2118 of Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W 3 2007 in this Court requesting to quash the complaint invoking its power under Section 482 of the Code. In view of the pendency of W.P.(C) No.23081 of 2007 and Crl.M.C.No.2118 of 2007in this Court, Crl.R.P.No.13 of 2007 pending in the Sessions Court, Kalpetta was withdrawn to this Court and re-numbered as Crl.R.P.No.3083 of 2007. 3. It is contended by learned counsel for complainant that the Sessions Court could not have exercised revisional power against the order under Section 156(3) of the Code in view of the bar under Section 397(2) of the Code since according to the learned counsel that order is purely interlocutory in character. It is further contended that on merit also there was no reason for the learned Sessions Judge to entertain a revision against the order under Section 156(3) of the Code. Learned counsel has placed reliance on the decision in Sakati Narayan v. Bhasani Lachu [1975 Cri.L.J. 994]. According to the learned counsel, Crl.M.C.No.2118 of 2007 also cannot stand since this Court cannot at this stage go into the truth of the allegations in the complaint. Learned counsel has placed reliance on the decisions in M.Narayandas v. State of Karnataka [(2003) 11 SCC 251], Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC 627] and Dr.Monica Kumar & Another v. State of U.P. & others [JT 2008 (7) SC 194]. Per contra it is contended by learned counsel for accused No.1 that the order under Section 156 Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W 4 (3) of the Code is not purely interlocutory and is revisable under Section 397 of the Code. Reliance is placed on the Division Bench decision of the Allahabad High Court in Ajay Malviya v. State of U.P. [2001 (1) KLJ NOC 28]. According to the learned counsel this Court could invoke its power under Section 482 of the Code when it is found necessary in the ends of justice to prevent abuse of process of court even beyond the provisions of law. Learned counsel has placed reliance on the decision in Moosa v. Sub Inspector of Police [2006 (1) KLT 552(FB)]. 4. So far as revisability of the order under Section 156(3) of the Code is concerned it is now only a matter of academic interest since accused No.1 has come to this Court requesting to exercise power under Section 482 of the Code in Crl.M.C.No.2118 of 2007. Even otherwise, going by the provisions of Section 156(3) of the Code and the authoritative pronouncements on the point it is not as if the magistrate should and could straight away pass an order under Section 156(3) of the Code once a complaint is preferred before him. Learned magistrate has to go through the averments in the complaint and be prima facie satisfied that it required investigation by the police. Learned magistrate has to exercise the discretion whether on the allegations in the complaint, an investigation by the police under Section 156(3) of the Code or an enquiry under Section 202 of that Code is required. In either case application of mind is Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W 5 required. In fact whether consideration of that question is judicial or merely administrative was considered by the Supreme Court in Suresh Chand Jain v. State of M.P. [(2001) 2 SCC 628] and the issue was left open. Any way, question whether order under Section 156(3) of the Code is revisable or not need not be looked into by me in so far as accused No.1 has sought for quashing the order as per Section 482 of the Code and since Crl.R.P.No.13 of 2007 though originally filed in the Sessions Court is withdrawn to this Court and re-numbered as Crl.R.P.No.3083 of 2007, hence it should be treated as a revision petition of this Court and assuming that the bar under Section 397(2) of the Code applied, even in that revision petition this Court can exercise the power under Section 482 of the Code notwithstanding the label or section of law under which it is filed. 5. The allegation made in the complaint in short is that on 15.12.2005 at a time when the deceased was undergoing treatment in the hospital he executed a Will and got it registered as document No.126 of of 2005 summoning the Sub Registrar to the hospital. Later the deceased was discharged from the hospital. On 15.1.2006 he died. On 24.12.2005, it is alleged, the disputed Will bearing document No.129 of 2005 was created by accused Nos.1 to 3, accused No.1 personating himself as the deceased and forging his signature. According to accused No.1 the deceased was discharged from the hospital on 23.12.2005 and on 24.12.2005, he went to the office of the Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W 6 Sub Registrar and executed the Will. It is also the contention of accused No.1 that the disputed Will was accepted and acknowledged by the complainant as true and genuine as seen from the partition deed dated 12.12.2006. It is the further contention of accused No.1 that notwithstanding that complainant was a party and signatory to the partition deed dated 12.12.2006, complaint alleging offences as above stated was preferred against him and accused Nos.2 and 3 only on 25.06.2007 and that too, without making any reference in the complaint about partition deed dated 12.12.2006. Learned counsel points out from the documents produced along with Crl.M.C.No.2118 of 2007 that on 06.12.2006 complainant had filed O.S.No.192 of 2006 in the Sub Court, Sulthanbathery seeking cancellation of the disputed Will dated 24.12.2005 raising the very same allegations of impersonation and forgery. But the very same complainant joined the partition deed dated 12.12.2006 acknowledging and accepting the disputed Will. According to learned counsel, accused No.1 who is a practising lawyer was appointed as Government Pleader and Public Prosecutor during that time the complaint was preferred and the animosity the complainant had towards accused No.1 led to the filing of the complaint on 25.06.2007. 6. I shall refer to the scope of the inherent power under Section 482 of the Code. In Moosa v. Sub Inspector of Police [2006 (1) KLT 552] a Full Bench of this Court considered that question and the conclusions are summarised in paragraph 53 of that judgment. It is held that the inherent power Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W 7 of the High Court reserved and recognised under Section 482 of the Code of Criminal Procedure are sweeping and awesome; but such powers can be invoked only to give effect to any order passed under the Code of Criminal Procedure, to prevent abuse of process of any court or otherwise to secure the ends of justice and that such power may have to be exercised in an appropriate case to render justice even beyond the law. Therefore, if it is found necessary in the ends of justice to prevent the abuse of process of law court this Court can step in invoking power under Section 482 of the Code. Then the question will arise how far that power can be used against an investigation conducted by the police or, in the matter of quashing a complaint. In M.Narayandas v. State of Karnataka and others [(2003) 11 SCC 251] it has been held in paragraph six (6) that the High Court cannot go into the merits of the allegations in the complaint and find whether the allegations are true or not, that being a matter to be investigated by the police. The Apex Court has held in Som Mittal v. Government of Karnataka [(2008) 3 SCC 574] that the power under Section 482 of the Code has to be used sparingly and with circumspection. Reading these decisions, it is clear that the power under Section 482 of the Code has to be used separately and with utmost circumspection and whenever to prevent the abuse of process of law and to render justice it is necessary to do so, that power can be invoked. The Apex Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W 8 Court has also held in Mahesh Choudhary v. Rajasthan [(2009) 4 SCC 439] that in exceptional circumstances, even the document produced by the accused can be looked into under Section 482 of the Code. Now what remains for consideration is whether this is an exceptional case where interference under Section 482 of the Code is required. 7. It is not in dispute that a Will was executed on 24.12.2005 and registered as document No.129 of 2005 which according to the complainant is the result of forgery and impersonation. But it is to be borne in mind that the complaint regarding that was filed only on 25.06.2007. It is not as if complainant was unaware of execution of that deed at any time before 25.06.2007 for, it is seen from the copy of the plaint in O.S.No.192 of 2006 of the Sub Court, Sulthanbathery filed by the complainant on 06.12.2006 that the very same allegations of forgery and impersonation are made there also. More interesting is that inspite of the complainant making such an allegation in the plaint dated 06.12.2006 he joined the execution and registration of partition deed dated 12.12.2006. It is true that complainant has an explanation it was under the pressure from his sister that he joined execution of the partition deed dated 12.12.2006. Then also the question arises why inspite of being aware of the forgery and impersonation at least before 06.12.2006, complainant waited for another six months, till 25.06.2007 to set the law in motion. Accused No.1 has a case that complainant came out with a complaint at a time he was appointed as Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W 9 a Government Pleader and Public Prosecutor (on 15.12.2006). At the same time, complainant has no satisfactory explanation for the delay. In this situation it is necessary to refer to the recitals in the partition deed dated 12.12.2006. Execution of partition deed is not disputed by either side. In that partition deed the properties except those dealt with in the disputed Will dated 12.12.2006 are partitioned between complainant, accused No.1, another brother and sister. In that partition deed there is reference to three registered Wills, one executed by their father, another one by C.P.Nair regarding his nominal interest in the property and the third one is the Will dated 24.12.2005 which is impugned in the present complaint. It is stated in the partition deed that except the properties bequeathed in favour of complainant, accused No.1 and other legal heirs of the deceased (as per the impugned Will dated 24.12.2005) which is in their separate possession and enjoyment, the rest of the properties which belonged jointly to the complainant and accused No.1 and others is being partitioned. The recitals in the partition deed would show that the properties bequeathed as per the impugned Will dated 24.12.2005 is in the separate possession and enjoyment of the legatees under the Will dated 24.12.2005 including complainant and accused No.1. It is also stated in unmistakable terms in that partition deed that the parties thereto (including complainant and accused No.1) have accepted and acknowledged all the Wills referred in the partition deed (including Will dated 24.12.2005 called in question in the complaint). It is the Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W 10 very same complainant who complained before the criminal court on 25.06.2007 that the Will dated 24.12.2005 is the result of forgery and impersonation. Remember, the fruit of that Will dated 24.12.2005 is still being enjoyed by the complainant in that he is in exclusive possession and enjoyment of the property bequeathed to him as per that Will. It is also interesting to note that complainant who says, he joined the partition deed dated 12.12.2006 under compulsion of his sister does not seek to set aside that partition deed which benefited him. But he says that the recital in the partition deed that he also accepted and acknowledged the genuineness and validity of the Will dated 24.12.2005 is not binding on him. There is no mention in the complaint about partition deed dated 12.12.2006 or, that on account of any reason whatsoever complainant was under pressure to join that partition deed. As rightly pointed out by learned counsel for accused No.1, if there was mention in the complaint about the partition deed dated 12.12.2006 and a copy of that was produced along with the complaint, learned magistrate may have exercised his discretion not to send the complaint for investigation and instead, go for an enquiry under Section 202 of the Code to find out whether there is a ground to proceed against the accused . 8. I am aware that while exercising jurisdiction under Section 482 of the Code this Court is not expected to go into the merits of the allegations in the complaint. I am also aware that it is only under exceptional circumstances that the documents produced by the accused can be looked into under Section 482 Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W 11 of the Code. As held in Moosa v. Sub Inspector of Police referred supra this Court has necessarily to interfere when there is an abuse of process of law. On hearing counsel on both sides and going through the relevant documents I am satisfied that the complaint is an abuse of process of law which cannot be permitted to remain. In view of that finding W.P.(C) No.23081 of 2007 and Crl.R.P.No.3083 of 2007 need only be closed. Resultantly, Crl.M.C.No.2118 of 2007 is allowed. The complaint (C.M.P.No.2484 of 2007 of the court of learned Chief Judicial Magistrate, Kalpetta) and the consequent order passed thereon will stand quashed. W.P.(C) No.23081 and Crl.R.P.No.3083 of 2007 are consequently closed. THOMAS P.JOSEPH, Judge. cks Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W 12 Thomas P.Joseph, J. Crl.R.P.No.3083 of 2007, Crl.M.C.No.2118 of 2007 & W.P.(C) No.23081 of 2007 W ORDER 11th August, 2009.