IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 Crl.Rev.Pet.No. 456 of 2008() ----------------------------- AGAINST THE ORDER DATED 6/8/2007 IN CMP.3459/2007 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVN. PETITIONER(S): COMPLAINANT ----------------------------------------- ALOSHIA JOSEPH W/O.JOSEPH VARGHESE MELETUU HOUSE, ERATTUPETTA VILLAGE ARUVITHURA KARA. BY ADV. SRI.C.V.MANUVILSAN SRI.K.S.ARUN KUMAR SRI.P.C.ANIL KUMAR SRI.DARSAN SOMANATH SMT.K.VIDYA SRI.SYAM J SAM RESPONDENT(S): --------------- 1. REV.DR.JOSEPH KOLLAMPARAMBIL PRINCIPAL, ST.GEORGE COLLEGE, ARUVITHURA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R2 SRI.O.V.RADHAKRISHNAN (SR.) FOR R1 SRI.SHAJI THOMAS PORKKATTIL FOR R1 SRI.T.V.VINU FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 5/11/2008, THE COURT ON 21/11/2008 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. CRL.R.P.NO.456 OF 2008 Dated, this the 21st day of November,2008 ORDER Whether a complainant has a right to demand that Magistrate shall forward the complaint for investigation under sub section (3) of Section 156 of the Code of Criminal Procedure? Is it for the Magistrate to decide whether a complaint is to be forwarded for investigation by the Police? Can the Magistrate to take cognizance and conduct an inquiry under section 202 of Code of Criminal Procedure even if complainant seeks only for forwarding the complaint under section 156(3) of Code of Criminal Procedure. If the allegations in the complaint with the sworn statement of the complainant makes out a prima facie case can the Magistrate dismiss the complaint under section 203 of Code of Criminal Procedure?. These are the relevant aspects to be decided in this revision CRRP 456/2008 2 petition. 2.Revision petitioner filed a complaint before Judicial First Class Magistrate, Irattupetta with a prayer to forward the complaint to Sub Inspector of Police, Irattupetta for investigation under section 156(3) of the Code of Criminal Procedure and to direct Sub Inspector of Police to register a case and submit a report after investigation. First respondent the accused in the complaint is the Principal of St.George College, Aruvithura where husband of the revision petitioner is working as Professor in Malayalam. Their daughter Indulekha was a student of that College and was also the Vice-Chairman of the College Union for the period 2006-2007. Due to publication of a book by the husband of the revision petitioner containing criticism against the religious leadership, relationship between the husband of the revision petitioner and the first respondent got strained. So also the relationship of the first respondent with the daughter of the revision petitioner. CRRP 456/2008 3 Alleging indiscipline Indulekha was dismissed from the College. Challenging the same Writ Petition was filed before this court. The allegation in the complaint was that on 29.3.2007 along with the order of the High Court permitting Indulekha to appear for the university examination revision petitioner along with Indulekha reached the college office. But hall ticket was not issued on that day. They were directed to come on the next day. The allegation is that on 29.3.2007 by about 9 a.m. revision petitioner and Indulekha came to the college office and when they asked for the hall ticket, first respondent asked revision petitioner whether her daughter has no father as he did not accompany them. It is alleged that accused also asked her whether her husband is not the father of her daughter and why he did not come along with them and is it because he is abusing the daughter, thereby implying that father is sexually illtreating the daughter. It is contended that the said words spoken by first CRRP 456/2008 4 respondent amount to an insult on the modesty of revision petitioner and he thereby committed the offence under section 509 of IPC. Eventhough revision petitioner preferred a complaint before the Sub Inspector of Police,no action was taken and it is alleged that it was due to the influence of the first respondent. On these allegations revision petitioner sought an order to forward the complaint for investigation. 3. The complaint was received by Judicial First Class Magistrate, Irattupetta on 28.6.2007. On that day the Magistrate passed an order that on going through the facts and in the circumstances of the case, it is not desirable to send the case to the police for investigation and hence sworn statement is to be recorded. It was adjourned to 3.7.2007. On that day the sworn statement of revision petitioner was recorded and the complaint was posted for hearing to 10.7.2007. After two further adjournments, arguments were heard on 1.8.2007 and on 6.8.2007 the complaint CRRP 456/2008 5 was dismissed under section 203 of Code of Criminal Procedure by a reasoned order to the effect that over all considerations and the materials available leads to a definite conclusion that case of the complainant, even if taken as proved, will go to show that words spoken by first respondent were against the husband of the revision petitioner and not against the modesty of the revision petitioner and therefore did not amount to an insult on her modesty and hence offence under section 509 IPC is not attracted and there is no ground to proceed against the accused. Complaint was dismissed under section 203 of Code of Criminal Procedure. The order is challenged in the revision petition. 4. The argument of the learned counsel appearing for the revision petitioner is that when the only prayer in the petition filed before the learned Magistrate was to forward the complaint under section 156(3), learned Magistrate has no power to conduct an inquiry under section 202 or to dismiss the complaint under section 203 and the CRRP 456/2008 6 Magistrate should have forwarded the complaint for investigation and based on the final report to be filed after investigation as provided under section 173 of the Code of Criminal Procedure, question whether cognizance is to be taken or not should have been decided. Relying on the decision of Apex Court in Sakiri Vasu v. State of U.P.(2008 (1) KLT 724) SC) it was argued that revision petitioner has a right to approach the Magistrate by filing a petition to forward the complaint to the Police for investigation under section 156(3) of Code of Criminal Procedure and the said power was not exercised by the Magistrate and when Apex Court declared the law, learned Magistrate was not justified in deviating from the procedure and the order is illegal. Learned counsel also relied on the decision of a single Judge of High Court of Allahabad in Phool Singh v. State of U.P.(II 2007 CCR 192) and argued that it is not for the court to decide whether the case is to be investigated by the Police as provided under section 156(3) or an CRRP 456/2008 7 inquiry is to be conducted under section 202 of Code of Criminal Procedure and when the only prayer before the Magistrate was to refer the complaint to the Sub Inspector of Police for investigation, order dismissing the complaint under section 203 of Code of Criminal Procedure is illegal and is to be set aside. Learned counsel also argued that even if the Magistrate was justified in conducting an inquiry under section 202, the order dismissing the complaint under section 203 is illegal. It was argued that on the averments in the complaint with the sworn statement the ingredients of an offence under section 509 IPC is definitely made out and the sworn statement of the revision petitioner should be read along with the complaint and they establish that first respondent uttered words with the intention to insult the modesty of the revision petitioner, mother of a college going girl and that too in the presence of the grown up daughter and in such circumstance dismissal of the complaint is illegal. Learned counsel vehemently CRRP 456/2008 8 argued that asking the wife of a respected colleague of the first respondent, who is none other than the Professor in the same College, whether the daughter has no father and whether the husband of the revision petitioner is not the father of the daughter would definitely amount to an insult to the modesty of revision petitioner as it is questioning her chastity. Relying on the definition of modesty in various dictionaries and the decisions of this court and the Apex Court learned counsel argued that the words uttered by the first respondent as stated in the complaint and in the sworn statement, if accepted would prove commission of the offence and therefore dismissal of the complaint is illegal. 5. Though an accused has no right to be heard by the Magistrate before issuing process under section 204 of Code of Criminal Procedure and he could only be a spectator in the enquiry under section 202 of the Code and first respondent did not participate in the inquiry before the learned CRRP 456/2008 9 Magistrate, when the revision was filed with an application to condone the delay, this court directed revision petitioner to take notice to first respondent who on receipt of notice appeared through a senior counsel. As the senior counsel appeared, he was also heard, though in strict sense, first respondent has no role except to be a silent spectator at this stage. Learned senior counsel relying on various decisions of this court and Apex Court argued that no complainant has a right to dictate to the Magistrate that a complaint is to be forwarded for investigation under section 156(3) of the Code of Criminal Procedure or that Magistrate cannot conduct an inquiry under section 202 of Code of Criminal Procedure and the procedure adopted by the learned Magistrate cannot be challenged. It was also argued that when the Magistrate found that complaint is not be forwarded for investigation and an inquiry is to be conducted by himself, petitioner did not challenge that order and instead CRRP 456/2008 10 participated in the inquiry and at a later stage he is not entitled to contend the procedure adopted is illegal or irregular. Senior counsel also argued that case of the revision petitioner in the sworn statement was different from the allegation raised in the complaint and when the Magistrate on the materials found that even if the statement of the complainant in the sworn statement is accepted,ingredients of an offence is not made out and it is not a case to be proceeded further, Magistrate was justified in dismissing the complaint and the order is perfectly legal. 6. Chapter XII of Code of Criminal Procedure (hereinafter referred to as the Code) relates to information to the Police and their powers to investigate. Chapter XV relates to complaints to Magistrate and Chapter XVI commencement of proceedings before Magistrate. Chapter XII provides the procedure for investigation by the Police. Under sub section (1) of Section 154 every information relating to the commission of a CRRP 456/2008 11 cognizable offence, if given orally to an Officer in charge of a Police Station shall be reduced in writing and be read over to the informant and every such information whether given in writing or reduced to writing, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as prescribed and a copy of the information so recorded shall be given to the informant as provided under sub section (2). Sub section (3) of Section 154 enables any aggrieved person by a refusal on the part of an Officer in charge of a Police Station to record the information as provided under sub section (1), to send the substance of such information in writing and by post to the Superintendent of Police concerned who in turn if satisfied that such information discloses commission of a cognizable offence, shall investigate the case himself or direct an investigation to be made by any Police Officer subordinate to him. Section 155 of the CRRP 456/2008 12 Code provides that when information is given to an Officer in charge of a Police Station of the commission within the limits of such Police Station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such Officer in such form as prescribed and refer the informant to the Magistrate. Sub section (2) prohibits investigation of a non-cognizable offence by a Police Officer without the order of a Magistrate. Sub section (1) of Section 156 empowers any Police Officer in charge of a Police Station to investigate any cognizable case without the order of a Magistrate within the limits of such Police Station. Sub section (2) of Section 156 provides that no proceeding of a police officer in any such case shall be called in question at any stage on the ground that the case was one which such officer was not empowered under the section to investigate. Sub section (3) of Section 156 the Magistrate empowered under section 190, to order an CRRP 456/2008 13 investigation. Sub section (3) of Section 156 reads:- “Any Magistrate empowered under section 190 may order such an investigation as above mentioned.” Section 190 of the Code which is included in Chapter XIV, which relates to conditions requisite for initiation of proceedings reads:- “190. Cognizance of offences by Magistrates:- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence— (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts. (c) Upon information received from any person other than a police officer, CRRP 456/2008 14 or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub section (1) of such offences as are within the competence to inquire into or try.” Under clause (a) of sub section (1) of Section 190 a Magistrate is empowered to take cognizance of any offence upon receiving a complaint of facts which constitute such offence. Chapter XV relates to complaints to Magistrates, Under section 200, a Magistrate taking cognizance of an offence on a complaint shall examine upon oath the complainant and the witnesses if any present and the substance of such examination shall be reduced to writing and it shall be signed by the complainant and the witnesses and also the Magistrate. The proviso provides that when the complaint is made in writing, the Magistrate need not examine the CRRP 456/2008 15 complainant and the witnesses if, a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint or the Magistrate makes over the case for inquiry or trial to another Magistrate as provided under section 192. If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, section 201 provides that such Magistrate shall return the complaint for presentation to the proper court if it is in writing with an endorsement to that effect and if the complaint is not in writing direct the complainant to the proper court. Section 202 of the Code relates to postponement of issue of process. Under sub section (1) of Section 202, any Magistrate if he thinks fit 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. But that investigation is for the purpose of deciding whether or not there is CRRP 456/2008 16 sufficient ground for proceeding. The proviso specifically provides that where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, no such direction for investigation shall be made. So also where the complaint has not been made by a Court, unless the complainant and the witnesses present if any have been examined on oath as provided under section 200, a direction to investigation shall not be made. Sub section (2) of Section 202 enables the Magistrate if he thinks fit in an inquiry as provided under sub section (1), to take evidence of witnesses on oath. Sub section (3) provides that 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 the Code on an Officer in charge of a police station except the power to arrest without warrant. If after considering the statements on oath of the complainant and of the witnesses and the result of CRRP 456/2008 17 the inquiry or investigation if any ordered under section 202, the Magistrate is opinion that there is no sufficient ground for proceeding, the Magistrate shall dismiss the complaint as provided under section 203. In such a case the Magistrate shall record his reasons briefly for dismissing the complaint. 7. Section 203 reads:- “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 CRRP 456/2008 18 record his reasons for so doing.” 8. If on the other hand, after considering the statements on oath of the complainant and the witnesses as well as the result of inquiry or investigation if any under section 202, Magistrate is of opinion that there is sufficient ground for proceeding, he shall issue summons as provided under section 204. 9. When a Police Officer refuses to receive the complaint or register the case and investigate, a complainant or informant has a right to approach the Magistrate by filing a complaint. When such a complaint is received, it is for the Magistrate to decide whether he shall take cognizance of the complaint or shall forward the complaint to the Station House Officer for investigation as provided under section 156(3) of the Code. If the Magistrate decides to forward the complaint under section 156(3), it is an order passed at the pre- cognizance stage, before taking cognizance of the CRRP 456/2008 19 complaint. In such a case sworn statement of the complainant and witnesses if any present as provided under section 200, is not to be taken. The investigation provided under sub section (3) of Section 156 is not an investigation as contemplated under sub section (3) of Section 202, which is part of an inquiry under sub section (2) of Section 202. The investigation provided under sub section (3) of Section 156 and the investigation provided under sub section (3) of Section 202 are different and distinct. The former is an investigation as directed by the Magistrate at the pre-cognizance stage. Latter is an investigation as directed by the Magistrate on the post cognizance stage which is part of the inquiry under section 202. After an investigation under sub section (3) of Section 156 the Station House Officer is bound to submit a final report as provided under section 173 of the Code of Criminal Procedure. Once the final report is received it is for the Magistrate to decide whether the final report is to be accepted as such CRRP 456/2008 20 or a further investigation is to be ordered or cognizance of the offence is to be taken. Even if after investigation a refer report is filed by the Police, Magistrate is not bound by the said final report. It is for the Magistrate to decide whether the final report is to be accepted or a further investigation is to be directed or on the materials cognizance of the offence is to be taken. Even when a final report is filed after investigation stating that no offence is made out, before accepting the final report Magistrate is bound to issue notice to the complainant or the first informant and has to consider the final report only thereafter. On receipt of a refer report, the complainant is entitled to appear before the Magistrate and submit that the final report may not be accepted and instead cognizance of the offence may be taken. Even if the final report is accepted by the learned Magistrate, the complainant or the first informant is entitled to file a protest complaint, which shall be enquired by the CRRP 456/2008 21 learned Magistrate as provided under section 202. In such a case, after an inquiry, it is for the Magistrate to consider whether on the materials including the final report cognizance is to be taken or not. These are the settled legal position. 10. The question is whether a complainant is entitled to insist before the Magistrate that his complaint shall not be inquired into as provided under section 200 and 202 or shall forward for investigation under section 156(3) of the Code. The argument of the learned counsel is that in view of the declaration of law by the Apex Court in Sakiri Vasu’s case(supra) the Magistrate has no option and the complaint shall be forwarded for investigation. The question is whether a law as canvassed by the learned counsel was laid down in Sakhir Vasu’s case. 11. Before considering the submission it is necessary to bear in mind that a decision of the court cannot be read as a statute. Court shall not CRRP 456/2008 22 place reliance on decisions without discussing as to how the factual situation fitted with the situation of the decision on which reliance is placed. Apex Court in CCE v. Alnoori Tobacco Products (2004) 6 SCC 186) settled the legal position as follows:- “Observations of courts are neither to be read as Euclid’s theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark on lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret CRRP 456/2008 23 words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co.Ltd v. Horton (AC at p.761). Lord Mac Dermott observed: (All ER p.14 C-D. “The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge….” 12. In Home Office v. Dorset Yacht Co. Lord Reid said (All ER p.297g-h), “Lord Atkin’s speech… is not to be treated as if it were a statutory definition. It will require qualification in new circumstance”. Megarry, J. in Shepherd CRRP 456/2008 24 Homes Ltd. V. Sandham (No.2) observed: “One must not, of course construe even a reserved judgment of Russell, L.J. as if it were an Act of Parliament.” And, in Herrington v. British Railways Board Lord Morris said:(All ER p.761c). “There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.” 12. The facts of Sakiri Vasu’s case is to be born in mind to appreciate the dictum laid therein. The body of a Major in the Indian Army was found at a Railway Station. After investigation a report was submitted that death was due to either accident or suicide. Army officials at Mathura held two Courts of Inquiry and