IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 Crl.MC.No. 4270 of 2010() -------------------- CRRP.135/2009 of SESSIONS COURT, PATHANAMTHITTA CRL.MP.4482/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ADOOR .................. PETITIONERS/ REVISION PETITIONER/COMPLAINANT : --------------------------------------------------------------------------------- ANIL KUMAR, S/O.ANBAIYAN, AGED 33 YEARS, CHARUVILA MELETHIL VEEDU, KURAMPAL THEKKE MURI, KURAMPALA VILLAGE, ADOOR TALUK. BY ADVS. SRI.ROSHEN.D.ALEXANDER RESPONDENTS / RESPONDENTS / ACCUSED : ----------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. Y.THOMAS, CHANGALIPILLIL, ENATHU VILLAGE, ADOOR TALUK, ENATHU PO - 691 526. 3. N.GOPINATHA PILLAI, PAIKKATTU VEEDU, NOW RESIDING AT SHAPPILLAYATHU VEEDU, EDAPPON WEST MURI, NOORANADU VILLAGE, MAVELIKKARA TALUK, IRANIKKUZHI PO - 690 558. R1 BY PUBLIC PROSECUTOR SMT. REKHA C. NAYAR R2 BY ADV. SRI. SAKIR.K.H. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 4270 of 2010() APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE A1 : COPY OF THE FIR DTD 08.11.2006 IN CRIME NO. 498/2006 OF PANDALAM POLICE STATION. ANNEXURE A1(a) : COPY OF THE FIS DTD 08.11.2006 IN CRIME NO. 498/2006 OF PANDALAM POLICE STATION. ANNEXURE A2 : COPY OF THE CHARGE SHEET DTD 11.11.2006 SUBMITTED BY THE 3RD ACCUSED. ANNEXURE A3 : COPY OF THE ADDITIONAL REPORT DTD 27.09.2007 FILED BY THE CIRCLE INSPECTOR AFTER FURTHER INVESTIGATION. ANNEXURE A4 : COPY OF THE COMPLAINT ALONG WITH THE SWORN STATEMENT IN CRL.M.P. NO. 4482/08. ANNEXURE A5 : COPY OF THE ORDER DTD. 18.02.2009 IN CRL.M.P. NO. 4482/08 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, ADOOR. ANNEXURE A6 : COPY OF THE ORDER DTD. 22.05.2010 IN CRL.R.P. NO. 135/2009 ON THE FILES OF THE SESSIONS COURT, PATHANAMTHITTA. ANNEXURE A7 : COPY OF THE ORDER NO. H1/4148/09N DTD. 28.11.2009 ISSUED BY THE DISTRICT POLICE SUPERINTENDENT, PATHANAMTHITTA. ANNEXURE A8 : COPY OF THE REPORT NO. HI-41481/09 N DTD. 28.11.2009 ISSUED BY THE DISTRICT POLICE SUPERINTENDENT, PATHANAMTHITTA TO THE DGP. RESPONDENT'S ANNEXURE'S - NIL ANNEXURE R2(a) : ORDER NO.H1-14/P.R/10 N DATED 22.12.2010 PASSED BY THE SUPERINTENDENT OF POLICE, PATHANAMTHITTA DISTRICT. //TRUE COPY// P.A. TO JUDGE Mn V.K.MOHANAN,J ----------------------------- Crl.M.C.No.4270 of 2010 ---------------------------------------- Dated this the 16th day of June, 2011 ORDER The complaint in a private complaint filed before the Judicial First Class Magistrate Court, Adoor is the revision petitioner as he is aggrieved by the order dated 18.2.2009 in Crl.M.P.No.4482/2008 by which the learned Magistrate dismissed his complaint under Section 203 of Cr.P.C. and also aggrieved by the order dated 22.5.2010 of the Court of Sessions, Pathanamthitta in Crl.R.P.No.135/2009 since his attempt to challenge the above order of learned Magistrate also failed. 2. The case of the complainant is that the accused in the complaint, who are the respondent herein, so as to help the real culprits in Crime No.498/2006 of Pathanamthitta Police Station, wherein the offence alleged are under section 324 r/w Section 34 of IPC, committed the offence of forgery based upon conspiracy and also conducted improper and illegal investigation and also forged certain documents. The trial court on receiving the complaint recorded sworn statement of the complainant. On the basis of the statement, the trial court came into the conclusion that the allegation put forwarded by the complainant in the complaint that the FI Statement given by the complainant in Crl.M.C.No.4270 of 2010 2 C.C.No.1042/2006 was not produced instead of that another statement was filed etc. were not substantiated by adducing any independent evidence. It is also the observation of the learned Magistrate that the complainant failed to produce any witness in order to substantiate the case. Thus, the learned Magistrate concluded that on consideration of available materials, no prima facie case is made out to proceed against the accused and hence the complaint is not maintainable and accordingly dismissed the same under Section 203 of Cr.P.C. 3. The challenge against the above order of the learned Magistrate, in the revision petition before the Sessions Court at the instance of the petitioner has also failed, since the Sessions Court, Pathanamthitta by order dated 22.5.2010 in Crl.R.P.135/2009 dismissed the revision petition holding that in the order of the learned Magistrate under Section 203 of Cr.P.C, dismissal of the complaint just and proper and there is no illegality or impropriety committed by the trial court. The learned Judge has also the opinion that no protest complaint is filed by the complainant against the improper investigation alleged to have done by the accused in the crime and also alleging the illegal manner in which the investigation was conducted. In paragraph 10 of the impugned order the learned Crl.M.C.No.4270 of 2010 3 Sessions Judge he has held that there is no case of any criminal overt act against the Circle Inspector of Police, Panthalam, alleged by the complainant, who had also found the involvement of only two accused. It is the above two orders of the trial court as well as the revisional court challenged in this proceedings under Section 482 of Cr.P.C. 4. I have heard Sri. Roshen D.Alexander, the learned counsel appearing for the petitioner and also Sri. K.H.Sakir counsel appearing for respondents 2 and 3 and perused the order impugned and other materials made available to me. 5. The learned counsel for the petitioner vehemently submitted that along with Annexure-4 complaint the petitioner has produced all the relevant documents including attested copy of the FI Statement dated 8.11.2006 in C.C.No.1442/2006, attested copy of FIR dated 8.11.2006 in C.C.No.1042/06, copy of the report dated 9.11.06 filed under Section 173(2) of Cr.P.C in C.C.No.1042/06 and the further report dated 6.7.2007 in C.C.No.1042/06. According to the learned counsel, on a comparison of the signature that contained in FI Statement dated 8.11.06 and the signature of the complainant in the complaint, would show that the complainant's signature in FI Statement i.e., Annexure-A1(a), is a forged and false one. But Crl.M.C.No.4270 of 2010 4 the learned Magistrate as well as the learned Sessions Judge failed to appreciate the above crucial aspect of the allegation and the complaint. It is also the submission of the learned counsel for the petitioner that in the impugned order of the learned Magistrate, the learned Magistrate without application of his mind has held in the first paragraph of the impugned order that the private complaint filed by the complainant under Section 190 (3)(a) of Cr.P.C. alleging the offence punishable under Sections 326, 324 r/w Section 34 of IPC. The learned counsel submitted that there is no proper discussion in the order so as to dismiss the complaint under Section 203 of Cr.P.C. The learned counsel assailing the order of the Sessions court, submitted that the learned Sessions Judge also without proper application of mind went to the extent to say that the learned Magistrate had conducted enquiry Section 202 of Cr.P.C. The learned counsel further submitted that the learned Sessions Judge also failed to understand the actual grievance and complaint of the revision petitioner. Thus, according to the learned counsel as per the averments contained in the complaint and as per the documents furnished along with the complaint and on reading of the sworn statement of the complainant, the complainant has made out the grounds to proceed further with the complaint. In support of the Crl.M.C.No.4270 of 2010 5 above contention, learned counsel place reliance upon the decision of this court in Vijayamma v. State of Kerala (2002 (1) KLT short Note 85) (Case No.109), and Vijayakumaran Nair v. Kesavankutty (2005 (1) KLT Short Note 113) (Case No.144). 6. On the other hand, the counsel appearing for the respondents submitted that the revision petitioner/complainant has no grievance against the investigation conducted either at the initial stage or during the time of further investigation and there is no allegation against the Circle Inspector of Police who conducted the further investigation. It is also the submission of the learned counsel that even though the petitioner has got a case that his FI Statement was forged by putting his signature, besides the interested statement of the complainant, no independent witnesses are cited or examined. So according to the learned counsel the materials or the averments contained in the complaint and the sworn statement are not sufficient to proceed with the complaint and therefore, the learned Magistrate as well as the Sessions Judge are perfectly justified in dismissing the complaint as well as the revision petition. 7. I have carefully considered the arguments advanced by the learned counsel for the petitioners and as well as Crl.M.C.No.4270 of 2010 6 respondents and also perused the order of the court below and the materials made available to me. I have gone through the authorities cited by both the counsels for the petitioner as well as the respondents. 8. It is also the submission of the learned counsel for the respondents that the petitioner has already involved the revisional jurisdiction of the Sessions court and therefore he cannot file petition by invoking Section 482 of Cr.P.C., especially in the light of the decision of the apex court reported in Rajathi v.Ganesan in (1999(6) SCC 326). 9. In the light of the contentions advanced by the counsel for the contesting parties and also in the light of the materials made available, it can be seen that the case of the complainant is that on 7.11.06 at about 8.00 a.m he was attacked by one Rajan and his son Kuttan @ Rathishraj and one Saji and caused hurt on him and consequent to that incident, he was hospitalized from where his FI Statement was recorded by the first accused in the complaint who is the second respondent in this revision petition, based upon which crime No.498/2006 was registered in the Panthalam Police Station for the offences punishable under Sections 326, 324 r/w Section 34 of IPC against two persons. According to the petitioner really three persons were involved in Crl.M.C.No.4270 of 2010 7 the attack and as a result of the attack he had lost three teeth and therefore, Section 326 of IPC was also attracted. After the registration of the crime, the investigation was undertaken by the Police and the second accused who is the third respondent conducted the investigation and filed a report under Section 173 (2) of Cr.P.C before the trial court, based upon which cognizance was taken and C.C.No.1042/2006 was instituted. During the course of trial, in pursuance to the summons issued by the trial court, the petitioner who being the defacto complainant appeared before the trial court and according to him only at that stage he came to know that Section 326 was omitted and instead of that Section 325 along with Sections 324, 323 and 334, were incorporated in the said offence only two accused persons were arrayed though 3 persons were involved in the crime. Aggrieved by the same, he had filed a petition before the Supdt. of Police concerned and accordingly the Police approached the court for an order of further investigation which was allowed and thus, further investigation was taken place which was conducted by the Circle Inspector of Police, Panthalam and thereafter, he preferred Annexure-A3 the additional report under Section 173 (8). In Annexure-A3 report also there were two accused, but Section 326 of IPC has incorporated. Crl.M.C.No.4270 of 2010 8 10. It is thereafter the petitioner preferred the present complaint, alleging offences under Section 120(b), 193, 196, 201 r/w Section 34 of IPC where in it is alleged that the original FIS in crime No.498/2006 of Panthalam Police Station produced as Annexure-A1(a), is suppressed and instead of another FI Statement allegedly given by the petitioner was produced wherein his signature is forged. Thus when the report in the crime as well as the further report in the above case were filed the FI Statement, produced before the court is not the original one but a forged one. It is also the case of the complainant that the non-inclusion of the real culprits and the appropriate Section of offence, in the report filed under Section 173(2), was made with a view to help the real accused in crime No.498/2006. Thus, according the complainant all these malpractices were done in pursuance to a conspiracy thatched between the accused in the complaint as well as the accused in the original crime. Thus, according to the complainant the respondents who are accused Nos. 1 and 2 in the complaint committed the offences punishable under Section 120(b), 193, 196, 201 r/w Section 34 of IPC. 11. As I indicated earlier, along with Annexure-4 complaint the petitioner had produced all the documents which I referred Crl.M.C.No.4270 of 2010 9 above and the contents of the documents form part of the complaint. Prima facie, it appears that the reasons given by the learned Magistrate to dismiss the complaint and the learned Sessions Judge to dismiss the revision petition are appears to be perverse and not correct. The non-application of mind by the learned Magistrate as well as learned Sessions Judge is evidently manifest from the orders impugned. At this stage, I am not proposed to enter into any findings regarding the merit or demerits of the case put forwarded either by the petitioner as the same is likely to affect either of the parties or the respondents, especially, the manner in which I proposed to dispose of this revision petition. But I have no hesitation to hold that on further consideration if it is found that in the allegation there are sufficient ground to proceed further, as the accused are belong to Police Department, it is for the Magistrate to consider to take proper steps, after having regard to the facts and circumstances involved in this case. In the light of the above facts and circumstances and the discussions, I am of the view that the orders impugned are liable to be set aside and the matter requires re-consideration by the learned Magistrate. Accordingly, the order dated 18.2.2009 in Crl.M.P.No.4482/08 of the Judicial First Class Magistrate Court, Adoor and the order Crl.M.C.No.4270 of 2010 10 dated 22.05.2010 in Crl.R.P.No.135/2009 of the Sessions Court, Pathanamthitta are set aside and the matter is remitted back to the trial court for fresh consideration and for appropriate orders and steps. V.K.MOHANAN, JUDGE pm/