IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 Crl.Rev.Pet.No. 1990 of 2011() ------------------------------ CMP.7533/2011 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVN. PETITIONER(S)/COMPLAINANTS: --------------------------------- 1. VARKEY, S/O.VARKEY, AGED 80 YEARS, NELLIYANIKUNNEL HOUSE, EDAMARUKU P.O. AND KARA MELUKAVUMATTOM VIA, KOTTAYAM DISTRICT-686652. 2. BIJU VARGHESE, S/O.VARKEY -DO-. BY ADV. SRI.BENHUR JOSEPH MANAYANI SRI.JEEVAN MATHEW MANAYANI SRI.JOSEPH SEBASTIAN (KOLLAM) RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. JOSEPH JOSEPH, PANDIYAMAKKAL VEEDU, EDAMARUKU, OTTAKATTIL, MAMS PROPERTIES, MELUKAVU KARA AND VILLAGE, MELUKAVU, KOTTAYAM. 686 652 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. 3. SUB INSPECTOR OF POLICE, MELUKAVU POLICE STATION, MELUKAVUMATTOM P.O., KOTTAYAM DISTRICT 686 652. PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.1990 OF 2011 ----------------------------------- Dated this the 17th day of August, 2011 O R D E R Revision petitioners are the complainants, who had moved a complaint numbered as C.M.P.No.7533 of 2011 before the Judicial First Class Magistrate Court, Erattupetta. The complaint was against the 1st respondent herein. That complaint was styled as one filed under Section 200 of the Code of Criminal Procedure with a prayer requesting for reinvestigation alleging that a proper investigation over their previous complaint moved before the Sub inspector of police was not carried out despite directions given by this Court in the judgment rendered earlier in a writ petition filed by them. In the complaint, the petitioners have also adverted to the failure of the police officer concerned, to register a case on the complaint raised by them and the action taken by him inspite of the directions given in the writ petition to that police officer to enquire their complaint, take a decision Crl.R.P.NO.1990/2011 2 thereof and to inform the petitioners the result of such enquiry. A copy of the judgment rendered in the aforesaid writ petition is also produced along with the revision. Even after issue of such directions, in the above writ petition, their petition was not properly enquired into by the police officer was the grievance of the petitioners to file a complaint as aforesaid before the court. 2. The learned counsel for the petitioners submitted that without affording an opportunity to the petitioners to substantiate their allegations raised in the complaint, the learned Magistrate dismissed the complaint holding that the complaint has not been moved in tune with the directions issued by this Court in the judgment in the writ petition, which enabled them to seek for a reference if a report is filed adverse to them after enquiry on their petition by the police, under Section 156 (3) of the Cr.P.C. The observations made by the court that the allegations set out in their complaint do not disclose any offence is also taken exception to by the counsel. The learned Public prosecutor would submit that the accused now stand indicted of various offences on the basis of a report filed by the police Crl.R.P.NO.1990/2011 3 wherein the 1st respondent is the de facto complainant. Proceedings in the aforesaid case is pending as C.C.No.172 of 2009 on the file of the very same court is also canvassed by the public prosecutor to contend that the complaint has been filed without any basis and it had been rightly rejected by the learned Magistrate. 4. Going through the order passed by the learned Magistrate, it appears, the dismissal of the complaint was for the reason that it was not in tune with the directions given by this Court in Anexure A1 judgment rendered in the writ petition filed by the petitioners. While disposing that writ petition, this Court has held that if the petitioners are dissatisfied with the report filed, after enquiry, over their complaint, which was exhibited as P4 in the writ petition, they are at liberty to approach the concerned Magistrate under Section 156 (3) of the Cr.P.C. No such request has been made in the present complaint, was one among the pleas, which prompted the learned Magistrate to dismiss the complaint. Whether the Section quoted in the complaint is correct or not is not at all decisive where the Crl.R.P.NO.1990/2011 4 intervention of the court is called for by a person moving a complaint under the Code. Section 156 (3) of the Cr.P.C. would emerge for consideration if the learned Magistrate is of the prima facie view that cognizance need not be taken and the matter has to be referred to the police for investigation and report. The fact that a direction has been given that the petitioners could move a complaint and seek a reference under Section 156 (3) of the Cr.P.C., if the report after enquiry on their previous petition was found unsatisfactory, would not foreclose their right to file a complaint, and if any offence is disclosed on the allegations raised in the complaint, ends of justice require the Magistrate to examine such complaint, and dispose it in accordance with law. What is seen from the impugned order is that the complaint has been dismissed for the reason that it was not in tune with the directions given in the writ petition in asmuch as there is no prayer for reference under Section 156 (3) of the Cr.P.C. It is for the learned Magistrate to decide whether the complaint has to be taken cognizance or to be referred to the police for investigation and report under Section 156 (3) of the Cr.P.C. and that course has to be decided examining the Crl.R.P.NO.1990/2011 5 complaint filed before him. A prayer was made for reinvestigation, is not at all decisive to hold that the complaint has to be thrown out. Whether cognizance has to be taken of the case has to be decided by the learned Magistrate with reference to the complaint and applying his mind over the allegations raised therein. If the complaint does not disclose any offence without taking cognizance it could be rejected straight away. However, that is not the ground on which the complaint has been turned down passing an order of dismissal. 5. I make it clear that the observations made as above in disposing of this revision should not be construed as in any way interdicting the learned Magistrate from rejecting the complaint without taking cognizance if he finds that it does not disclose of any offence, or to dismiss the complaint under Section 203 of the Code, once after cognizance taken, the materials placed are found not sufficient to issue process against the person named as the accused, to face trial. Cognizance to be taken or not, and also, if at all cognizance is taken after enquiry, whether further proceedings are warranted with regard to the complaint, are all Crl.R.P.NO.1990/2011 6 matters which solely rests with the learned Magistrate, and such questions have to be decided on the facts and circumstances and materials presented in accordance with law. 6. Setting aside the impugned order, the learned Magistrate is directed to take back the complaint, examine the same and pass appropriate orders in accordance with law. With the above direction, the revision is disposed of. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.NO.1990/2011 7