IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 28TH DAY OF AUGUST 2009/6TH BHADRA 1931 Crl.Rev.Pet.No. 29 of 2000 (C) ---------------------------------- CRMP.1650/1998 OF JFCM-I, MUVATTUPUZHA .......... REVISION PETITIONER/PETITIONER: N.C.KUNJAPPAN, S/O CHACKO NADUKKUDIYIL VEEDU, KUROOR KARA, KOTHAMANGALAM VILLAGE. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT/COUNTER PETITIONER & STATE: 1. NOUSHAD, S/O HYDROSE, VAZHACHALIL VEEDU, ADIMALIKARA, MANNAMKANDAM VILLAGE. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL. R3. HASARATH, VATTAKKATTUKUDIYIL HOUSE, VELLATHOOVAL KARA, KONNATHADY, IDUKKI. Impleaded as per order dt. 24.7.2000 in Crl.M.P. 1576/2000 R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR ADDL.R3 BY ADV. SRI.JOHN JOSEPH(ROY) THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-08-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.R.P.No.29 of 2000 ----------------------------------------- Dated this the 28th August, 2009 O R D E R Petitioner herein filed a complaint against first respondent before Magistrate Court on 8.7.1997, alleging offence under Section 406 of the Indian Penal Code ('IPC', for short). The said complaint was sent to the police for investigation under Section 156(3) of the Code of Criminal Procedure ('the Code', for short). A crime was registered against first respondent, as Crime no. 260/97 and after investigation, police filed report, referring the case as false, under Section 173(2) of the Code. 2. The petitioner filed a protest complaint by raising objection to the final report and it is treated as protest complaint and it was taken on file as Crl.M.P.1655/98. Statements on oath of the complainant and three witnesses were recorded as CW1 to CW4. On consideration of the entire records, Magistrate Court dismissed the complaint and the said order is under challenge. The court held thus: “it is a settled legal position that while holding enquiry under Section 202 Cr.P.C, the Court CRRP 29/2000 2 can also refer to the final report of the police to arrive at a conclusion in order to find out whether there is a prima face case made out to proceed further ......on going through the statement of Cws1 to 4, I am not convinced to hold the police investigation incorrect”. 3. For disposal of this petition, some other facts also will have to be mentioned. During pendency of the above proceedings, interim custody of the vehicle involved in the case was given to complainant on certain conditions stated in the order dated 4.5.1999. But, the vehicle remained in the custody of police since, complainant did not make any move for obtaining the vehicle in custody, in accordance with the order passed. 4. Therefore, trial court ordered that the vehicle has to be disposed of, under Section 452 of the Code, which shall be subject to any order passed by the High Court in the matter. In the mean time, a stranger had applied under Section 451 of the Code for interim custody of the vehicle, as per C.M.P.9048/97. The order by which interim custody was granted to complainant was also challenged in Crl.R.P.No.633/1999 before this Court. The said revision was finally disposed of, observing that the vehicle need not be released to complainant, if not already released to him. In such circumstances, the third party, who is petitioner in CRRP 29/2000 3 C.M.P.9047/97 was also made a party, as respondent no.3 in this revision. 5. According to learned counsel for revision petitioner, Magistrate Court committed a serious error in dismissing the complaint under Section 203 of the Code by relying upon the report submitted by the police, even though in the complaint itself, allegations were made that the final report filed by police under influence and it is false. It is also contended in the light of the decision reported in Fr. Abraham v. Thomas (1989(1) KLT 85 (SC)) that the court need only look into whether there is existence of prima facie case on the basis of what is stated in the complaint etc. 6. It is also the argument that in an enquiry under Section 202 of the Code, it is the bounden duty of the Magistrate Court to elicit facts, with a view to book a person or persons against whom grave allegations are made, as held in Hameed v. Sugathan (1981 KLT 235). For all these reasons, it is argued that the order under challenge is bad in law and on facts and hence, it is liable to be set aside. 7. Learned counsel appearing for second respondent submitted that the case put forward by complainant is absolutely CRRP 29/2000 4 false, as rightly found in the final report by police and hence, there is nothing wrong in relying upon the contents of the final report, while conducting an enquiry under Section 202 of the Code. It is clear from the impugned order that the statements of CW1 to CW4 were also looked into by lower Court, and in such circumstances, there is absolutely no ground to interfere with the order of dismissal passed under Section 203 of the Code, it is further argued. 8. Learned counsel for third respondent who supported the above contention and argued that the order passed under Section 203 is only legal. By acceptance of a refer report filed under Section 173(2) of the Code, the original complaint stands dismissed and the protest complaint can be treated only as a second complaint, it is submitted. But a second complaint can be entertained only if there is manifest error or manifest miscarriage of justice in the order dismissing the first complaint by the acceptance of the refer report or new facts which the complainant had no knowledge of or with reasonable pleadings could not have brought forward in the previous proceedings is adduced is brought in the second complaint. There is nothing illegal in relying upon the report filed under Section 173(2) of the Code and in CRRP 29/2000 5 dismissing the protest complaint, which is only a second complaint on the facts of this case, it is submitted. 9. On hearing both sides and on going through the records and the order under challenge, it can be seen that what is challenged in this case is an order passed under Section 203 of the Code. Before considering the scope of Section 203, it is necessary to refer to certain other aspects. It is revealed from records that the following materials were available before the Court, while passing an order of dismissal: i) complaint filed under Section 190(1)(a); ii) police (refer) report filed under Section 173 (2) falling under Section 190(1)(b), which is filed pursuant to the order under Section 156(3). 10. As per Section 190 of the Code, the court may take cognizance of offence either on the complaint or on police report, under Section 190(1)(a) or 190(1)(b). Therefore, the court ought to have considered whether cognizance can be taken, either on the basis of the complaint or the police report under Section 190 (1)(a) or 190(1)(b). Learned Magistrate did not take cognizance on the complaint at the first instance on receipt of complain but, sent the case for investigation under Section 156(3) of the Code. Pursuant to an investigation ordered under Section 156(3), an CRRP 29/2000 6 investigation was conducted and a police report was also filed under Section 173(2), referring the case as false. 11. Even if, on investigation, the case was referred as false, it is well settled that the court may take cognizance of offence, bases on refer report also, if the materials collected and produced along with the police report disclose any offence. But, no cognizance was taken on any offence, on the basis of the police report filed under Section 173(2) also. At this stage, it is still open to the Magistrate to consider whether he can take cognizance of offence on the original complaint. This position is settled now. The order passed under Section 156(3) will not be a bar to do this. 12. Therefore, if the Magistrate finds that the facts stated in the original complaint constitute offence, it may take cognizance of such offence, not withstanding that a police reoprt is filed referring the case. Thus, in this case, there is a situation wherein the court may take cognizance either on the complaint or the police report, as per Section 190(1)(a) or 190(1)(b) of the Code. But, this was not done. Instead, learned Magistrate followed a procedure which is not in accordance with the provision contained in the Code or the precedents and dismissed the protest complaint, under Section 203 of the Code. CRRP 29/2000 7 13. Learned Magistrate, without applying his mind to the facts stated in complaint to decide whether cognizance can be taken or not on the original complaint or the police report (refer report) under Section 190(1)(a) or 190(1)(b) of the Code, proceeded to examine the complainant and three witnesses as CW1 to CW3, on the protest complaint. It is needless to say that as per the settled legal position, protest complaint can be taken only as an objection to the refer report, while considering whether cognizance of offence can be taken under Section 190(1)(b). 14. Apart from this, learned Magistrate recorded the sworn statement on protest complaint. As per Section 200 of the Code, sworn statement can be recorded only after taking cognizance. It is only in cases in which cognizance is taken, the court can proceed under Section 200 and record sworn statement. In other words, if the court has proceeded under Section 200, it can be concluded that the court has taken cognizance of the offence. But, in this case, it was prior to taking cognizance that the court proceeded under Section 200 of the Code. This is illegal. To understand this position clearer, a reading of the decision in Bhagat Ram v. Surinder Kumar, (2004) 11 SCC 622 is CRRP 29/2000 8 necessary. An extract from the decision is this: “As to when cognizance of an offence is taken will depend upon the facts and circumstances of each case and it is not possible to state the same with precision. Obviously, it is only when the Magistrate applies his mind for the purpose of proceeding under Section 200 CrPC and subsequent sections that it can positively be stated that he has taken cognizance. To derive this inference we rely upon the decision in Narayandas Bhagwandas Madhavdas v. State of W.B.2 and Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy3.” 15. It is also pertinent to note that taking of cognizance and recording of sworn statement falls under different provisions falling under different chapters of the Code. While cognizance is taken under Section 190 of the Code which falls in Chapter IV which relates to “conditions requisite for initiation of the proceedings”, Section 200 lies in the next Chapter V titles, “complaints to Magistrates”. Chapter IV deals with initiation of proceedings but, Chapter V deals with the procedure to be followed, after taking cognizance. Any way, the procedure adopted in recording sworn statement in the protest complaint, under Section 200 of the Code is not legal and not consistent with the provisions in the Code. CRRP 29/2000 9 16. Another fact is also to be mentioned here. A perusal of the records and the impugned order will show that Magistrate proceeded as though recording of sworn statement constitute an enquiry under Section 202 of the Code. A close reading of Section 202 of the Code shows that an enquiry under the said provision can be conducted only in cases where cognizance is taken. But, in this case, trial court examined the witnesses on oath, without taking cognizance, either under Section 190(1)(a) or 190(1)(b). So, recording of sworn statement cannot be said to be an enquiry under Section 202 of the Code and the findings entered into by the Magistrate on the assumption that there was an enquiry under Section 202 cannot be sustained. 17. Learned Magistrate also proceeded on the assumption that police report filed under Section 173(2) can be taken into consideration, for dismissing the complaint, as though such report is one falling under Section 202. it is well settled that a report by police under Section 202 and the report on investigation under Section 156(3) of the Code are different and it was done at different stages. One of the distinctions is that the investigation under Section 156(3) is ordered prior to taking cognizance whereas, the investigation referred to under Section 202 is CRRP 29/2000 10 ordered after taking cognizance of offence. 18. But, in this case, the lower court proceeded as though the report filed under Section 173(2) is the result of investigation referred to in Section 202 of the Code. This is yet another mistake. The court proceeded to consider the report filed under Section 173(2), as though it is a report received under Section 202 after the investigation was ordered under Section 202. It is clear from the records that at that time cognizance was not even taken. Therefore, proceedings are illegal on this count also. 19. The Magistrate Court ought to have considered whether cognizance can be taken on the basis of police report or on the basis of the complaint under Section 190(1)(a) or 190(1)(b) which are available in court. If the court finds that cognizance cannot be taken on the basis of Section 173(2) report, the Magistrate ought to have considered whether allegations made in the original complaint constitute any offence. If those constitute offence, he may take cognizance of such offence under Section 190(1)(a) and proceed under the provisions contained in Chapter V. 20. So also, even if the case is referred as false, there is no bar in considering whether the police report (refer report) discloses any offence. If any offence is disclosed, cognizance can CRRP 29/2000 11 be taken under Section 190(1)(b). But, this shall be done only after issuing notice to the complainant and affording him an opportunity of hearing. In this context, it is open to the complainant to file objection to the refer report and it may be by a protest complaint. But, such complaint has to be treated only as an objection or as a second complaint. But, if it is treated as second complaint, cognizance can be taken on such complaint under exceptional circumstances, as per the settled position of law. 21. Any way, if the Magistrate considers the police report and the protest complaint and the court finds that the police report discloses any offence, cognizance can be taken under Section 190(1)(b). But, learned Magistrate dismissed the complaint under Section 203 of the code, after following a procedure which is contrary to the relevant provisions. The court also proceeded on a wrong assumption that he was holding an enquiry under Section 202 of the Code, even though cognizance had not been taken at that time. 22. Court also looked into the refer report filed under Section 173(2) as though it is a report of investigation under Section 202 for deciding whether the complaint can be dismissed under CRRP 29/2000 12 Section 203 of the Code. There can be no doubt that the procedure adopted is not in accordance with law and the order under challenge, which is liable to be set aside and the matter requires a fresh consideration, especially since the wrong procedure has vitiated even the order passed under Section 203 of the Code. Hence, the following order is passed: i) The order under challenge is set aside. ii) The case is remanded to the trial court for fresh consideration, in accordance with law, in the light of the observations made in this judgment. The Criminal Revision Petition is allowed. K.HEMA, JUDGE vgs. CRRP 29/2000 13 K.HEMA, J. ------------------------------ Crl.R.P.NO.29 of 2000 ------------------------------ O R D E R 28.8.2009