CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 Crl.Rev.Pet.No. 1255 of 2008() ------------------------------ CRMP.588/2006 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... REVN. PETITIONER: ------------------ BIJU PURUSHOTHAMAN 'BINDU' POTHUJANAM ROAD, KUMARAPURAM, MEDICAL COLLEGE PO, THIRUVANANTHAPURAM BY ADV. SRI.M.AJAY RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MADATHIL MARAKKAR HAJI,S/O.KUNHI MOIDEEN MADATHIL HOUSE, POKKOTTOR VILLAGE, ERANAD TALUK MALAPPURAM DISTRICT 3. THE SUPERINTENDENT OF POLICE, VIGILANCE & ANTI CORRUPTION BUREAU, SPECIAL INVESTIGATION UNIT, THIRUVANANTHAPURAM 4. THE VIGILANCE & ANTI CORRUPTION BUREAU, REPRESENTED BY ITS DIRECTOR VIGILANCE HEADQUARTERS THIRUVANANTHAPURAM BY PUBLIC PROSECUTOR SRI. P.N.SUKUMARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON 20/06/2008 PASSED THE FOLLOWING: CR V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 1255 of 2008 * * * * * * * * * * * * * * * * * * Dated this the 20th day of June 2008 ORDER The Revision Petitioner who is the 2nd accused in a private complaint filed by the 2nd respondent herein as Crl.M.P. No. 588 of 2006 before the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, (hereinafter referred to as “the Special Judge”) alleging offences punishable under Sections 7 and 13 of the Prevention of Corruption Act, 1988 read with Sec. 120 B I.P.C. challenges Annexure XVII order dated 25-3-2008 passed by the Special Judge ordering investigation by the Superintendent of VACB, SIU, Thiruvananthapuram, under Sec. 202 (1) Cr.P.C. after concluding an enquiry by the Special Judge himself under Section 202 (1) Cr.P.C. 2. I heard Adv. Sri. M. Ajay, the learned counsel appearing for the revision petitioner and Adv. Sri. P. N. Sukumaran, the learned Public Prosecutor who represented the State. Eventhough the 2nd respondent/complainant (Madathil Marakkar Haji) was duly served, he has not chosen to enter appearance through counsel or oppose this Revision. Crl.R.P. No. 1255 of 2008 -:2:- 3. The allegations in the private complaint filed by the 2nd respondent herein are that in pursuance of the criminal conspiracy hatched by accused Nos. 1 to 4, accused Nos. 2, 3 and 4 who are respectively the two sons and son-in-law of the first accused Vakkom B. Purushothaman had during the period from 15-11-2004 to 28-7- 2005 acquired in their names immovable properties worth crores of rupees and thereby A2 to A4 are in possession of assets disproportionate to their known sources of income and that the funds for the acquisition of those assets were provided by the ill-gotten gains of the first accused Vakkom B. Purushothaman by corrupt and illegal means and by abusing his official position as the Finance Minister of the State of Kerala and the four accused persons have thereby committed offences punishable under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988 read with Sec . 120 B I.P.C. ARGUMENTS OF THE REVISION PETITIONER/ACCUSED 4. Adv. Sri. M. Ajay, the learned counsel appearing for the revision petitioner made the following submissions before me in support of the revision:- Annexure -I private complaint filed by the 2nd respondent herein was initially disposed of by the Special Judge as per Annexure III order dated 30-08-2006 directing the Director of Vigilance to conduct a preliminary enquiry into the allegations levelled against the four Crl.R.P. No. 1255 of 2008 -:3:- accused persons. It was further directed that if the materials collected during such enquiry warrant investigation then a case shall be registered and the F.I.R. be forwarded to the Special Court. Thereafter the Director of Vigilance caused a detailed enquiry to be conducted and finally submitted Annexure IV report dated 9-11-2006 as per which it was found that the allegations in the private complaint were not true. Accordingly, on 6-12-2006 the learned Special Judge dismissed the complaint. In Crl.R.P. 734 of 2007 filed by the complainant, this Court had set aside the order of dismissal and had remanded the matter for fresh consideration. After the remit by this Court , the learned Special Judge had heard both sides regarding the procedure to be followed by the Special Court and finally decided to himself conduct an enquiry under Section 202 Cr.P.C. The case was then posted for taking the sworn statement of the complainant. After recording the sworn statement of the complainant the Special Judge examined two other witnesses as C.Ws 1 and 2 after issuing summons to them. Subsequently, two more witnesses were examined by the Special Judge as CWs 5 and 6. Documents were also got summoned at the instance of the complainant. Finally, as per the impugned order dated 25-3-2008, the learned Special Judge after noting that the complainant does not propose to examine any more witnesses came to the strange conclusion that collection of materials other than Crl.R.P. No. 1255 of 2008 -:4:- those produced in this case is necessary to ascertain whether the Special Judge should proceed further or not and has accordingly ordered an investigation under Section 202 Cr.P.C. by the Superintendent of Vigilance and Anti Corruption Bureau (Special Investigation Unit), Thiruvananthapuram. Apart from the fact that in the preliminary enquiry initially conducted by the Vigilance Department it was revealed that A2 the eldest son of A1 is a businessman and A3 the 2nd son of A1 and who is an M.B.A. graduate is also a businessman and A4 who is the son-in-law of A1 is a postgraduate doctor and his wife who is the daughter of A1 is also a postgraduate doctor and that all of them were having independent sources of income and are income tax payers from 1994 onwards, there was absolutely no material to show that A1 while holding office as the Finance Minister had amassed wealth disproportionate to the known sources of his income or that the source of acquisitions by A2 to A4 was traceable to A1. This Court had not set aside Annexure III order passed by the Special Court directing preliminary enquiry. This Court also did not direct the Special Court to exclude Annexure IV report from consideration. When the complainant himself had failed to adduce evidence providing sufficient ground for proceeding further even after getting the assistance of the Special Court for producing documents and examining witnesses, the Special Court Crl.R.P. No. 1255 of 2008 -:5:- was committing a grave illegality in directing an investigation by the vigilance police. Where the Court after postponing the issue of process proceeds to itself conduct an inquiry under Sec. 202 Cr.P.C. the Court cannot thereafter direct any investigation by the police under Section 202 Cr.P.C. . The wording in Sub Section (1) of Section 202 Cr.P.C. is to the effect that the Court may either inquire into the case itself or direct an investigation. When the statute employs the words “either.................or” the court has only any one of the two alternatives to follow. In other words, if the Magistrate conducts an inquiry by himself, he cannot thereafter direct an investigation. Conversely, if the Magistrate directs an investigation, he cannot thereafter inquire into the matter himself. [Vide Sankar Chandra Ghose v. Roopraj S. Bhansally - 1981 Crl. L.J. 1002 (Calcutta)]. In Bhagat Ram v. Surinder Kumar and Others - (2004) 11 SCC 622 what has been held is only that after examination of the complainant and his witnesses under Sec. 200 Cr.P.C. it is open to the Magistrate to order an investigation under Sec. 202 Cr.P.C. This does not mean that after the Magistrate himself conducts an enquiry under Sec. 202 (1) Cr.P.C., it is open to him to order an investigation under the said provision. This decision, on the contrary, has held that after postponing the issue of process against the accused, the Magistrate can adopt only any one of the two Crl.R.P. No. 1255 of 2008 -:6:- courses mentioned in Sec. 202 (1) Cr.P.C. In Mohammed Kutty v. Mohammed - 2006 (3) KLT 447 a learned Single Judge of this Court has observed in paragraph 10 of the report that if the Magistrate is not satisfied after examination of the complainant and his witnesses under Sec. 200 Cr.P.C. he is obliged to proceed further and conduct an inquiry or investigation under Sec. 202 Cr.P.C. In Superintendent of Police, C.B.I. v. State of Kerala 2005 (3) KLT 823 a learned single judge of this Court set aside the order passed by the Magistrate forwarding the complaint under Sec. 156 (3) Cr.P.C. and directed an inquiry under Sec. 202 Cr.P.C. by the Magistrate. in Ravi v. Francis - 2005 (4) KLT 51 also a learned single Judge of this Court held that the option available to the Magistrate under Sec. 202 (1) Cr.P.C. is to either conduct an inquiry by himself or direct an investigation. The power to conduct an inquiry or to direct investigation under Sec. 202 Cr.P.C. can be exercised only in the alternative and once the Magistrate adopts one course he cannot thereafter proceed to follow the other course. THE STATE'S CONTENTION 5. Adv. Sri.P.N.Sukumaran, the learned Public Prosecutor made the following submissions opposing this Revision:- There is no illegality in the Special Judge ordering investigation by the police after conducting an inquiry under Sec. 202 Cr.P.C. It is Crl.R.P. No. 1255 of 2008 -:7:- true that this Court did not set aside Annexure IV report of inquiry and therefore, the said report cannot be said to be non est merely because this Court has observed that the Special Judge has no jurisdiction to order preliminary enquiry. But there is nothing wrong in the lower court ignoring Annexure IV report. Preliminary inquiry is a safety device which was proposed by the Apex court in Sirajudheen's case, - AIR 1971 SC 520 to protect public servants from ill-motivated and vexatious harassment by persons who might not have received favours from such public servants. There is nothing wrong in the Special Court ordering preliminary inquiry so that if after the conclusion of such inquiry no case is made out for the registration of a crime, the Government machinery need not be wasted and the precious time of the court also can be saved. The investigation ordered in this case by the Special Judge does not call for interference. JUDICIAL RESOLUTION Magistrate can conduct inquiry as well as direct investigation under Sec. 202 (1) 6. While I see considerable force in the submission made on behalf of the revision petitioner that the accused persons were being continuously harassed and persecuted by the 2nd Crl.R.P. No. 1255 of 2008 -:8:- respondent/complainant, I am, however, not inclined to accept the revision petitioner's contention that once the Magistrate himself conducts an inquiry under Sec. 202 (1) Cr.P.C., he cannot thereafter direct an investigation and vice versa, i.e. if he directs an investigation under Sec. 202 (1) Cr.P.C., he cannot thereafter enquire into the matter himself. Sec. 202 Cr.P.C. reads as follows:- “202. Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding; Provided that no such direction for investigation shall be made -- a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if Crl.R.P. No. 1255 of 2008 -:9:- any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath; Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. 3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant”. (emphasis supplied) The relevant words used in sub-section (1) of Sec. 202 Cr.P.C. are “either inquire into the case himself or direct an investigation”. The words “either.........or” do not necessarily mean that one alone of the two alternatives can be resorted to. Fifth edition of Black's Law Dictionary defines the expression “either” as follows:- “Either - Each of two; the one and the other; one or the other of two alternatives; one of two. Often used, however, with reference to more than two, in which case it may mean “each” or “any”. Thus, both the alternatives under Sec. 202 (1) Cr.P.C. are Crl.R.P. No. 1255 of 2008 -:10:- available to the Magistrate. It is true that in 1981 Crl.L.J. 1002 - Sankar Chandra v. Roopraj a Division Bench of the Calcutta High Court has taken the view that the usage of “either .. or” in Sec. 202 (1) Cr.P.C. indicates that the intention of the legislature was to empower the Magistrate to employ only one or the other of the two alternatives and the Magistrate cannot employ both the alternatives one after the other. But as mentioned above, the usage “either ..or” need not necessarily mean that one alone of the two alternatives can be resorted to by the Magistrate. The Madhya Pradesh High Court in Dr. Kanhaiyalal Modi v. Dwarka Prasad Modi - 1991 Crl.L.J. 3004 and the Allhabad High Court in Pulloo v. State - 1987 All. L.J. 1449 have taken a contrary view. I am inclined to accept the views taken by the Madhya Pradesh and Allahabad High Courts to hold that the language of Sec. 202 (1) Cr.P.C. is couched in such a form that there is nothing to indicate that once the Magistrate has conducted an enquiry into the case himself, he cannot thereafter follow the next alternative i.e. direct an investigation or vice versa. I therefore, with due respect disagree with the view taken by the Calcutta High Court in the above decision. In the decisions cited on behalf of the revision petitioner, this aspect of the matter has not been pointedly Crl.R.P. No. 1255 of 2008 -:11:- addressed. Those decisions only observe that the Magistrate can either conduct an enquiry by himself of direct an investigation. Those rulings do not go to the extent of saying that once the Magistrate resorts to one of the two alternatives, he cannot thereafter have recourse to the other alternative. WHETHER REJECTION OR DISMISSAL ? 7. There is yet another aspect on which there appears to be some grey area that may require a little bit of elucidation. The Special Judge had once dismissed the complaint as per Annexure VI order dated 6-12-2006 even before taking cognizance of the offences and even before recording the sworn statement of the complainant. The said dismissal at the pre- cognizance stage was presumably under the misconception that Sec. 203 Cr.P.C. clothes a Magistrate to do so. It is true that barring Sec. 204 (1) Cr.P.C., Sec. 203 Cr.P.C. appears to be the only enabling provision which empowers a Magistrate to dismiss a complaint. A dismissal of the complaint under Sec. 204 (4) Cr.P.C. for failure to pay process is not a dismissal on merits. But a closer reading of Sec. 203 Cr.P.C. will reveal that dismissal of a complaint can be done only at the post - cognizance stage. Crl.R.P. No. 1255 of 2008 -:12:- Section 203 Cr.P.C. reads as follows:- 203. Dismissal of complaint - If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing”. Thus, the power of dismissal of the complaint is not available to the Magistrate at the threshold. If after perusing the complaint, the Magistrate is of opinion that the averments therein do not at all spell out any offence, then he should definitely possess the power to throw away the complaint and terminate the matter then and there. This power is not dismissal but rejection. The Magistrate can, in such a case, reject the complaint. (See Raju Puzhankara v. State of Kerala - 2008 (2) KLT 462. See also CREF Finance Ltd. v. Sree Shanthi Homes (P) Ltd - 2005 (7) SCC 467, Govind Mehta v. State of Bihar - AIR 1971 SC 1708 and Nagaraj v. State of Mysore - AIR 1964 S.C. 269). 8. There is still another grey area over which pointed Crl.R.P. No. 1255 of 2008 -:13:- attention does not appear to have been made by Courts. Is it permissible for the Magistrate to dismiss the complaint under Sec. 203 Cr.P.C. if after recording the sworn statements of the complainant and the witnesses present, the Magistrate is of opinion that there is no sufficient ground for proceeding ?. Eventhough a careful reading of Section 203 Cr.P.C. extracted hereinabove will indicate that dismissal of a complaint can be done only after considering the result of enquiry or investigation under Sec. 202 Cr.P.C. as well, decisions are legion to suggest that a complaint can be dismissed if the Magistrate, after examination of the complainant and his witnesses under Sec. 200 Cr.P.C. comes to the conclusion that there is no sufficient ground for proceeding. The common yardstick for issuing process under Sec. 204 Cr.P.C. and for dismissing a complaint under Sec. 203 Cr.P.C. is the existence or otherwise of “sufficient ground for proceeding”. Therefore, when the Magistrate, after examining the complainant and his witnesses present,under Sec. 200 Cr.P.C. decides to postpone the issue of process under Sec. 204 Cr.P.C. and embarks upon an enquiry by himself or directs an Crl.R.P. No. 1255 of 2008 -:14:- investigation under Sec. 202 (1) Cr.P.C., he can then be presumed to have formed an opinion that there is no “sufficient ground for proceeding”. This is because, the only criterion for issuing process under Section 204 Cr.P.C. is also the existence of “sufficient ground for proceeding”. In other words, if after recording the sworn statements of the complainant and his witnesses under Section 200 Cr.P.C. the Magistrate is of opinion that there is no “sufficient ground for proceeding”, then he will have to postpone the issue of process and conduct an enquiry or direct an investigation under Section 202 (1) Cr.P.C. He cannot, at that stage, dismiss the complaint under Section 203 Cr.P.C. because dismissal of the complaint can be done only after the conclusion of enquiry or investigation under Sec. 202 Cr.P.C. It is pertinent to remember that the purpose of enquiry and/or investigation under Section 202 Cr.P.C. is also to help the Magistrate to decide whether there is sufficient ground for proceeding further. (See Mohd Yousuf v. Afaq Jahan and Another - AIR 2006 SC 705 = 2006 (1) KLT 939; Dilwar Singh v. State of Delhi - AIR 2007 SC 3234 and Rony v. State of Kerala - 2000 (1) KLT 494 (SC). After Crl.R.P. No. 1255 of 2008 -:15:- the stage of Sec. 200 Cr.P.C. and before deciding to postpone the issue of process, if, in a rare case the Magistrate is of opinion that no offence has been made out from the statements of the complainant and the witnesses recorded under Sec. 200 Cr.P.C., then probably, the Magistrate can reject the complaint. If the Magistrate wants to dismiss the complaint, then he may have to necessarily proceed to the stage of Sec. 202 Cr.P.C. before dismissing the complaint. To put it differently, if the averments in the complaint do not spell out any offence, then the Magistrate can only reject the complaint at the threshold. Likewise, if after examination under Sec. 200 Cr.P.C. the Magistrate is of opinion that no offence at all has been made out, then also the only course open to him to avoid proceeding under Sec. 202 Cr.P.C. is by rejecting the complaint. The following observations of the Apex Court in paragraph 10 of CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. - AIR 2005 SC 4284 seem to fortify the above conclusion:- “The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the Crl.R.P. No. 1255 of 2008 -:16:- commission of an offence and there is no reason to reject complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the Court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint.” (emphasis supplied) 9. The legal position can thus be summed up as hereinbelow:- On receipt of a written complaint, the 5 options available to a Judicial Magistrate who is competent to take cognizance of the case can be summarised as follows:- Crl.R.P. No. 1255 of 2008 -:17:- 1) Rejection of complaint If the complaint on the face of it does not at all make out any offence, then the Magistrate may reject the complaint. This power of rejection at the pre-cognizance stage is inherent in any Magistrate and the said power should not be mistaken for the power of dismissal available to the Magistrate under Sec. 203 Cr.P.C. since the latter power of dismissal is one which can be exercised only at the post-cognizance stage. (See Raju Puzhankara v. State of Kerala - 2008 (2) KLT 467 - Also see CREF Finance Ltd. v. Sree Shanthi Homes (P) Ltd. (2005) 7 SCC 467, Govind Mehta v State of Bihar - AIR 1971 SC 1708, Nagraj v. State of Mysore - AIR 1964 SC 269). 2) Where the Magistrate does not reject the complaint at the threshold, the Magistrate may, without taking cognizance of the offence, order an investigation by the police under Sec. 156 (3) Cr.P.C. and forward the complaint to the officer in- charge of the police station concerned provided that the complaint alleges the commission of a cognizable offence. Such a course can be adopted by the Magistrate only at the pre-cognizance stage. (See Dilawar Singh v. State of Delhi - AIR 2007 SC 3234 & Suresh Chand Jain v. State of M.P. - AIR 2001 SC 571) Even a complaint alleging the commission of offences exclusively triable by a Crl.R.P. No. 1255 of 2008 -:18:- Court of Session can also be so forwarded under Sec. 156 (3) Cr.P.C. (See Tula Ram v. Kishore Singh – 1977 (4) SCC 459 = AIR 1977 SC 2401). The Station