IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 Crl.Rev.Pet.No. 3266 of 2009 -------------------------------- (CRMP.6467/2009 of CHIEF JUDL.MAGISTRATE, ERNAKULAM) .................... REVN. PETITIONER(S): ACCUED 2 TO 4 -------------------------------------------- 1. K.V.BENNY, SUB INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM, RESIDING AT KIZHAKKE PUTHENVETTIL HOUSE, PALLIPPURAM VILLAGE, P.O.PALLIPPURAM, CHERTHALA TALUK, ALLEPPEY. 2. LALJI, CIRCLE INSPECTOR OF POLICE, MATTANCHERRY, RESIDING AT VADAKKEPARAMBIL VEEDU, THRIKKUNNAPUZHA, PATHIAKKAL MURI, ALAPPUZHA. 3. SUNIL JACOB, ASSISTANT COMMISSIONER OF POLICE, CENTRAL POLICE STATION, ERNAKULAM, RESIDING AT ELANJIKKAL HOUSE, KATTOOR, POLLATHAI, MARARIKKULAM, ALAPPUZHA. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S)/COMPLAINANT: ------------------------------------ 1. STATE OF KERALA, REPRESNTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.T.JOSEPH, S/O.K.V.THOMAS, AGED ABOUT 53 YEARS, KUZHIKKAT HOUSE, 50/1772, YUVAJANA SAMAJAM ROAD, KADAVANTHRA, KOCHI-20. BY ADV. SRI.M.AJAY FOR R2 BY PUBLIC PROSECUTOR SRI.KAMMAPPU FOR R1. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/03/2010, ALONG WITH CRL.RP NO. 3282 OF 2009 AND CRL.MC NO. 134 OF 2010, THE COURT ON 17/05/2010 PASSED THE FOLLOWING: 'C.R.' V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.Nos. 3266 & 3282 of 2009 & Crl.M.C.No.134 of 2010 --------------------------------------------- Dated this the 17th day of May, 2010 O R D E R Is there any legal impediment in taking cognizance by a Magistrate upon a private complaint preferred by a person, who is an accused in a crime case pending before another Magistrate Court wherein the Police after investigation filed a report referring the case as 'false' under Section 173(2)(i) and (ii) of the Criminal Procedure Code, 1973 (for short 'the Cr.P.C.'), especially when the factual allegation and the materials relied on by the complainant are intrinsically interconnected with that of the referred case which is still pending consideration before that court? This is the vital legal question that arose for consideration in the above three cases. 2. In the above two Criminal Revision Petitions, Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-2-: the challenge is against the order dated 9.10.2009 of the Chief Judicial Magistrate Court, Ernakulam in Cr.M.P.No.6467 of 2009 by which the learned Chief Judicial Magistrate Court took cognizance of the offences against the accused therein. Crl.R.P.No.3266 of 2009 is preferred by accused Nos.2 to 4 in the above Crl.M.P. who are Police Officers holding various posts in the Police Department and Crl.R.P.No.3282 of 2009 is preferred at the instance of the first accused therein who is a private party. In both the above Crl.Revision Petitions, the second respondent is the complainant in Crl.M.P.No.6467 of 2009. 3. Crl.M.C.No.134 of 2010 is a petition filed under Section 482 of the Cr.P.C. by the de facto complainant in Crime No.306 of 2007 of the Thoppumpady Police Station against the order dated 18.12.2009 in Crl.M.P.No.6468 of 2009 of the Court of Chief Judicial Magistrate, Ernakulam by which the learned Chief Judicial Magistrate had withdrawn Crime No.306 of 2007 of the Thoppumpady Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-3-: Police Station from the Judicial First Class Magistrate Court-I, Kochi to that court. In the above Crl.M.C., the first respondent is the accused in the above crime, who is also the complainant in Crl.M.P.No.6467 of 2009 pending before the Chief Judicial Magistrate Court, Ernakulam and also the second respondent in the above two Crl.R.Ps. As the parties are same, the question of law involved is also same and the facts and circumstances involved in the three cases are interconnected, these cases are heard together and being disposed of by this common judgment. 4. To answer the question involved in these cases, reference to the factual inputs in these cases are absolutely inevitable which I shall state briefly. The second respondent in the above two Crl.R.Ps. and the first respondent in the Crl.M.C. is one and the same person, who is the complainant in Crl.M.P.No.6467 of 2009 pending before the Chief Judicial Magistrate Court, Ernakulam and as the above two revision petitions are filed challenging the order Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-4-: under which cognizance was taken upon the above complaint and therefore, the first respondent in Crl.M.C. and second respondent in the two Crl.R.Ps. shall hereinafter be referred as 'complainant' only. Though the above Crl.M.C. is filed by the de facto complainant in Crime No.306 of 2007 of the Thoppumpady Police Station, he is the first accused in the complaint pending before the Chief Judicial Magistrate Court, Ernakulam along with other accused who are petitioners in Crl.R.P.No.3266 of 2009 and hence, hereinafter, the petitioner in Crl.R.P.No.3282 of 2009 and Crl.M.C.No.134 of 2010 shall be referred as 'the first accused' and the petitioners in Crl.R.P.No.3266 of 2009 shall be referred as 'the other accused' generally and specially, showing the rank number, wherever necessary. 5. The litigation in these cases originated when a complaint, as Crl.M.P.No.4079 of 2007 alleging offences punishable under Sections 465,466,467,468,471 and 420 Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-5-: I.P.C. filed by the first accused against the complainant before the Judicial First Class Magistrate Court-II, Kochi. The allegation in the said complaint is that the complainant herein had forged and fabricated documents to transfer 2500 equity shares of distillery company by name Indo- Scotish Brand Private Ltd., Karuvelippady, Kochi into the name of the complainant. It is also alleged that he forged two more documents by forging the signature of one Pandan Krishnan and thereby created forged documents to the effect that the said Pandan Krishnan executed documents in favour of the complainant by appointing the complainant as the Managing Director of the company. The learned Magistrate of the Judicial First Class Magistrate Court-II, Kochi transmitted the above complaint under Section 156(3) of the Cr.P.C. and in turn, Crime No.306 of 2007 was registered in the Thoppumpady Police Station against the complainant. At that point of time, the other accused were the Police Officers having jurisdiction over the Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-6-: Thoppumpady Police Station. Accordingly, the then Sub Inspector of Police, Thoppumpady Police Station- the second accused registered Crime No.306/2007 for the offences punishable under Sections 465,466,467,468,471 and 420 I.P.C. against the complainant. The other accused were working as Circle Inspector of Police, Palluruthi Police Station and the Assistant Commissioner of Police, Mattanchery. 6. According to the complainant, under the guise of the investigation in the above crime, he was illegally detained after clandestinely obtaining search warrant and he was intimidated and threatened and an amount of Rs.75 lakhs was demanded to be given to the first accused for settling the issue and all this was done in pursuance of a conspiracy hatched by all the accused. According to the complainant, subsequently, he was released on bail and then, he approached the Director General of Police and the Minister for Home affairs to have a fair and impartial investigation into the complaint preferred by the first accused and the crime registered thereon, by constituting a special team of Police Officers holding high Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-7-: rank. Thus, a Special Team was constituted and they undertook the investigation in Crime No.306 of 2007 and on completing the investigation, they have filed a report dated 16.4.2008 under Section 173(2)(i) and (ii) of Cr.P.C. referring the case as false in the Court of Judicial First Class Magistrate-II, Kochi. 7. In the mean while, the complainant approached the Additional Chief Judicial Magistrate Court, Ernakulam by filing a complaint after obtaining sanction from the State Government against all the accused as Crl.M.P.No.247 of 2008 alleging the offences punishable under Sections 109,120B,191,192,193,195,199,200,201,342,347,465,466,46 8,469,471,473,474 read with Section 34 I.P.C. The Additional Chief Judicial Magistrate, Ernakulam, after examining the witnesses of the complainant and perusing the documents produced by the complainant, took Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-8-: cognizance of the offences and instituted C.C.No.1288 of 2008 and issued summons to all the accused under Sections 120B,342,347,465,466,468,469,471,473,474 read with Section 34 I.P.C. 8. Against the said proceedings, the fourth accused- the Assistant Commissioner of Police approached this Court by filing Crl.R.P.No.1858 of 2008, which was disposed of by this Court as per order dated 31.7.2008 setting aside the impugned order without going into the merits of the case and transferring the above complaint to the Court of the Chief Judicial Magistrate, Ernakulam with liberty to refer the statement of witnesses recorded by the Additional Chief Judicial magistrate in case he decides to take cognizance of the offences. 9. Against the above order of this Court, the complainant preferred Special Leave Petition (S.L.P.(Crl) No.5734 of 2008) and the Hon'ble Apex Court granted special leave and the appeal was numbered as Crl.A.No.984 Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-9-: of 2009 which was subsequently disposed of with certain observations by judgment dated 8.5.2009. 10. Thus, on the basis of the order passed by this Court in Crl.R.P.No.1858 of 2008, the case was transferred to the court of Chief Judicial Magistrate where the complaint was re-numbered as Crl.M.P.No.6467 of 2009 and by order dated 27.7.2009, cognizance was taken upon the said Crl.M.P. and C.C.No.146 of 2009 was instituted for the offences punishable under Sections 120B,342,347,455,466, 468, 469,471, 473,474 read with Section 34 I.P.C. 11. Again challenging the above order of the Chief Judicial Magistrate Court dated 27.7.2009, accused 2 to 4 preferred Crl.M.C.No.2541 of 2009 and the same was disposed of by order dated 13.8.2009 by this Court quashing the proceedings of taking cognizance, as there was no enquiry under Section 202 Cr.P.C. and with a further direction to the Chief Judicial Magistrate to proceed with the complaint as directed by this Court in the order in Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-10-: Crl.R.P.No.1858 of 2009, as observed by the Hon'ble Apex Court. 12. Subsequent to the above order of this Court in Crl.M.C.No.2541 of 2009, in terms of the directions contained in the above three orders, the learned Chief Judicial Magistrate, after examining the complainant and his witnesses, vide order dated 9.10.2009 in Crl.M.P.No.6467 of 2009 took cognizance and instituted C.C.No.211 of 2009 for the offences punishable under Sections 120B,342,465,466,468, 471,473,474 read with Section 34 of I.P.C and issued summons to the accused, which is impugned in the above Crl.R.Ps. 13. It is also relevant to note that the first accused approached this Court by filing Crl.M.C.No.2901 of 2009 under Section 482 of the Cr.P.C. with a prayer for a direction to dispose of Crl.M.P.No.6468 of 2009 preferred by the complainant for the transfer of Crime No.306/2007 from the court of the J.F.C.M-I, Kochi to the Chief Judicial Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-11-: Magistrate Court, Ernakulam. The above Crl.M.C. was disposed of by this Court on 6.10.2009 with a direction to the C.J.M. Court, Ernakulam to pass appropriate orders in Crl.M.P.No.6468 of 2009 expeditiously. 14. In the mean while, the first accused preferred a private complaint as C.M.P.No.3280 of 2009 in the Judicial First Class Magistrate Court-II, Kochi against the complainant and the officers who filed refer report in Crime No.306 of 2007 of the Thoppumpady Police Station, alleging conspiracy. 15. Thus, while the refer report and CMP No.3280 of 2009 were pending in the J.F.C.M.Court-II, Kochi, the complainant approached this Court by filing W.P(C) No.16202 of 2008 for the transfer of the above crime case and while the above writ petition was pending consideration, as per the order of the Chief Judicial Magistrate Court, Ernakulam, the said crime and all other petitions were transferred from the Judicial First Class Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-12-: Magistrate Court-II to Judicial First Class Magistrate Court- I, Kochi and the said proceedings of transfer of cases have been recorded while disposing of W.P(C) No.16202 of 2008. 16. It is also pertinent to note that aggrieved by the refer report filed in Crime No.306/2007 of the Thoppumpady Police Station, the first accused herein, who is the de facto complainant, has filed a protest complaint as Crl.M.P.No.739 of 2008. The first accused has also preferred another complaint i.e., Crl.M.P.No.482 of 2008 in the Judicial First Class Magistrate Court-II, Kochi. While those matters are pending, the first accused approached this Court by filing Crl.M.C.No.3651 of 2008 with a request to issue an order directing the Additional Chief Judicial Magistrate, Ernakulam to send the Case Diary in Crime No.306 of 2007 to the Court of Judicial First Class Magistrate-I at the time of considering the refer report, for a proper and expeditious consideration and disposal of the report in the above crime case. This Court by order dated Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-13-: 24.10.2008 dismissed the said Crl.M.C. with the observation that “If the learned Judicial Magistrate of the First Class-I, Kochi, before whom the matter is pending already has a carbon copy, he need call for the records only if he feels the need to peruse the original.” 17. It is also pertinent to note that in the mean while, at the instance of the complainant, the learned Chief Judicial Magistrate has issued an order dated 18.12.2009 in Crl.M.P.No.6468 of 2009 withdrawing the case in Crime No.306 of 2007 of the Thoppumpadi Police Station from the J.F.C.M.Court-I, Kochi to the Court of the C.J.M., Ernakulam. In the said order, it is also observed that the long delay in making the decision upon the refer report will adversely affect the progress of the complaint pending before it. 18. It is the above order now challenged before this Court in the above Crl.M.C. 19. I am aware of the fact that the details stated above Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-14-: are only with respect to the proceedings that started from the filing of the complaint by the first accused against the complainant and the resultant orders which are under challenge in the above three cases. That means the factual matrix, which is the subject matter of the disputes and the allegations in the above two complaints mainly preferred by the first accused and the complainant, is yet to be referred , which I shall explain now. 20. The first accused- Mr.K.P.Jyothish is the complainant in Crl.M.P.No.4079 of 2007 on the basis of which Crime No.306 of 2007 was registered in the Thoppumpady Police Station on receipt of the said complaint under Section 156(3) of the Cr.P.C. According to him, he is the son of one Mrs.Malini, who is the sister of one Pandan Krishnan who is no more and the said Pandan Krishnan was the holder of 2500 equity shares and the Managing Director of a firm by name Indo Scottish Brand Private Limited (ISBPL), Karuvelippady, Kochi. The said Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-15-: Pandan Krishnan died on 5.11.2000 after executing a will. Thus, according to the first accused, the said Pandan Krishnan bequeathed all his properties including the shares in the company in favour of the sons of his sister Malini, by name Ajith Kumar, Sreejesh and the first accused, Jyothish. The complainant, against whom the said complaint was filed, is the Finance Director of the said company and though he was approached with a request to hold the meeting of the Board of Directors and to settle the profit and loss account of the company, the same was not considered and nothing was done. Thus, according to the first accused, on his enquiry, he realised that the complainant had fabricated an agreement dated 14.2.2000 by forging the signature of said Pandan Krishnan and thus, fraudulently transferred 2500 equity shares of the company into his name and he had also created forged documents to the effect that Mr.Pandan Krishnan executed documents in favour of the complainant by appointing him as Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-16-: the Managing Director of the said company. It is the specific case of the first accused that the said Pandan Krishnan was admitted in Srirama Chandra Hospital, Ramachandra Nagar, Porur connected with serious illness and transplanted his kidney and he was treated there as an inpatient from 5.7.1999 to 25.2.2000. It is the further case of the first accused that when the said Pandan Krishnan was admitted in the hospital, he was in a coma stage and nobody was allowed to visit him except the hospital authorities. It is also his case that after the discharge of the said person from the hospital, he continued in the coma stage. According to him, during this period, the said Pandan Krishnan was in an abnormal stage both physically and mentally and was not able to do anything unless helped by others. Therefore, the first accused is more particular in his allegation that on the date shown, in the forged agreement allegedly executed by the said Pandan Krishnan as 14.2.2000, from which date onwards the said Pandan Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-17-: Krishnan was hospitalised and he was in a critical stage, and it was mentally and physically impossible to execute a document by the said Krishnan. Thus, according to the first accused, the complainant with an intention for illegal gain to him, fabricated the said agreement and other documents, by forging the signature of said Pandan Krishnan, for transferring the shares fraudulently into his account approached the Registrar of companies and thereby, he fraudulently transferred all the said 2500 equity shares in his name and expelled the said Pandan Krishnan from the Board of Directors of the company and thereby, the complainant has committed the offences punishable under Sections 465,466,467,468,471 and 420 I.P.C. In the complaint, the first accused claimed that after the death of the said Pandan Krishnan, the first accused is being his legal heir, became the share holders of the company as per will dated 18.1.1995 executed by the said Pandan Krishnan and thus, he has the legal right to file the complaint. Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-18-: 21. It is the above complaint transmitted to the Thoppumpady Police Station wherein Crime No.306 of 2007 was registered for the said offences based upon which the complainant was arrested and subsequently, released on bail. At the instance of the complainant, a Special Team was constituted as per the order of the D.G.P. and after investigation by the said Team, a refer report was filed in the Judicial First Class Magistrate Court-II, Kochi. While the investigation in the above crime case was pending and before filing the refer report, the accused in the above referred crime, the complainant herein approached the Additional Chief Judicial Magistrate, Ernakulam by filing another complaint i.e., C.M.P.No.247 of 2008. The main allegation of the complainant in that complaint is that he had previously made certain complaints against one Jacob Thomas I.P.S., who was the Chairman and the Managing Director of Kerala Civil Supplies Corporation, which infuriated the said person, Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-19-: especially, since the same resulted in the C.B.I.investigation against him, and resultantly, a conspiracy was hatched against the complainant between the accused and some other persons and to accomplish such conspiracy, the first accused preferred the said complaint as CMP No.4079 of 2007, on the basis of which the above mentioned crime was registered. Thus, according to the complainant, he preferred the complaint to get redressal of his grievance against the accused persons including the Police Officers, who under the pretence of exercising their authority illegally acted as stooges at the hands of the first accused, for illegal gains to all of them and to wreak private vengeance against the complainant. It is the further case of the complainant that on 16.8.2007, during the early hours of the day, a police party headed by the 2nd accused--Sub Inspector of Police, Thoppumpady surrounded the complainant's residential house with a battalion of Police and forcibly entered into his residence where he is living Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-20-: with his ailing wife and illegally took him into custody from his bed even without permitting him to perform his primary needs. According to him, he was not even informed of the reason for the ransacking and was taken to Thoppumpady Police Station. It is further stated in the complaint that on asking, the second accused told him that he will be made aware of the reason for arrest at the appropriate time. According to the complainant, at about 12 noon, the third accused Sri.Lalji came to the Police Station in civil dress with a copy of 'Kerala Sabdam', a news magazine wherein an interview with the complainant was published with his photograph on the cover page and told the complainant that a crime has been registered against him on the basis of a complaint received in the Police Station from the Judicial First Class Magistrate Court-II, Kochi, in which the allegation is that the complainant has fabricated some documents to the effect of transfer of some shares of one Pandan Krishnan, the uncle of the first accused. Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-21-: 22. In the complaint, the complainant is specific that he was taken to a room in the Police Station and was made to sign on a number of blank papers and printed forms under the threat of producing him before the court for remand in Sub Jail. It is specifically stated in the complaint that the third accused Lalji demanded Rs.75 lakhs to be handed over to the first accused or to execute documents assuring the payment of the said amount to the first accused. It is also stated in the complaint that if he can arrange the money as aforesaid, he would be sent out of Police Station for procuring the cash, in the company of a Policeman. According to the complainant, he repeatedly attempted to convince the said Lalji about his innocence and he had undertaken and requested time to produce all the authentic documents regarding the valid transfer of shares within a few hours, which were available in his residential house, from where he was taken into illegal custody and the said request was rejected by accused Nos.2 Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-22-: and 3. It is the further case of the complainant that the second accused insisted him to produce the original of the photocopy of a document shown to the complainant, which is allegedly forwarded to the Police by the Magistrate, along with the complaint against the complainant, filed by the first accused, knowing fully well that the original of the fabricated document is with the first accused himself, as it is a document created by the accused persons as a result of their criminal conspiracy. According to the complainant, he was deliberately trapped and implicated in the above crime case using the false and fabricated documents with ulterior motives of extorting money from him by wrongfully confining him. 23. The allegation continued in the complaint that the complainant was taken to the court after recording untimely arrest and manipulated the search records in the crime case registered against the complainant as a result of the conspiracy hatched by the accused persons. It is the Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-23-: specific case of the complainant that it was seen from the photocopy of the document shown to the complainant by the second accused that the signatures of the complainant and the late Pandan Krishnan have been forged and fabricated. It is also stated that he understood that in order to make it appear that the said document was forged and fabricated by the complainant, the accused have put the name of one P.N.Murugesan, a fictitious person as a Notary who authenticated the said document and fabricated a false office seal of the said fictitious Notary Public of Tamil Nadu. According to the complainant, the said document was not produced when the first accused filed the complaint on 12.6.2007. It is further alleged that as a result of the conspiracy, the second accused had preferred a report before the learned Magistrate on 3.8.2007 with utmost mala fide intention and without any materials gathered during his investigation till then, against the complainant fixing him as the accused in the crime and seeking warrant Crl.R.PNos.3266 & 3282/2009 & Crl.M.C.No.134/2010 :-24-: for his arrest and also for the search of his house by mentioning a wrong house number. According to the complainant, he was produced before the Magistrate with a remand report