IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 WP(C).No. 1651 of 2010(O) ------------------------- OS.599/2007 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): --------------- 1. DR.S.RAJAN BABU, RESIDING AT NARAYANAM, IMA HALL ROAD, PADA NORTH, KARUNAGAPALLY. 2. B.K.JANCY, W/O.DR.S.RAJAN BABU, RESIDING AT NARAYANAM, IMA HALL ROAD, PADA NORTH, KARUNAGAPALLY. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN RESPONDENT(S): --------------- C.S.SATHEENATHAN, S/O.SANKU ANEPPIL, CHERUSSERIBHAGOM, SANKARAMANGALAM, CHAVARA P.O., KOLLAM DISTRICT 691583. ADV. SRI.M.T.SURESHKUMAR 1 SRI.R.RANJITH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.1651/2010 APPENDIX PETITIONER'S EXHIBTIS: EXT.P1 TRUE COPY OF THE PLAINT IN OS 599/2007 EXT.P2 TRUE COPY OF WRITTEN STATEMENT EXT.P3 TRUE COPY OF COMPLAINT IN CC NO.224/2006 EXT.P4 TRUE COPY OF COMMISSION APPLICATION EXT.P5 TRUE COPY OF THE OBJECTION EXT.P6 TRUE COPY OF ADVANCE PETTION VIDE IA NO.4434/2009 EXT.P7 TRUE COPY OF THE REVIEW PETITION VIDE IA 4435/2009 EXT.P8 TRUE COPY OF PETITION TO KEEP IN ABEYANCE VIDE IA NO.4436/2009 EXT.P9 TRUE COPY OF TYPE WRITTEN EXTRACT OF THE ORDER DATED 22.12.2009 OF SUB COURT, KOLLAM IN OS NO.599/2007 //TRUE COPYY THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.1651 of 2010 -------------------------------------- Dated this the 23rd day of June, 2010. JUDGMENT Petitioners are defendant Nos.1 and 2 in O.S.No.599 of 2007 of the court of learned Principal Sub Judge, Kollam. They are aggrieved by Ext.P9, order dated 22.12.2009 as per which learned Sub Judge, basing on an interim report filed by the Advocate Commissioner that petitioner No.2/defendant No.2 obstructed him from executing the commission warrant forwarded a copy of the report of Advocate Commissioner to the Sub Inspector of Police concerned with a direction to register a case against petitioner No.2 and report the matter to the learned Sub Judge. Advocate Commissioner was directed to give statement to the police in the crime case to be registered. There was also a direction to the Advocate Commissioner to execute the commission warrant with the assistance of police. Petitioners are aggrieved by the order to the extent of direction for registration of the case. It is contended by the learned counsel for petitioners that the order is exfacie illegal in that the learned Sub Judge has not followed the mandatory requirements of Section 340 of the Code of Criminal Procedure (for short, “the Code”) and further that even the report of Advocate Commissioner did not reveal that it was expedient in the interest of justice that an enquiry in the matter has to be conducted. The order of learned Sub Judge also suffered from an illegality in that it does not reveal that learned Sub Judge was subjectively satisfied about the alleged commission of the offence. Learned WP(C) No.1651/2010 2 counsel for respondent/plaintiff however supported the order and stated that there was willful obstruction caused to the Advocate Commissioner in carrying out his work. 2. Short facts necessary for consideration of the Writ Petition are: Respondent sued petitioners for recovery of money based on an oral agreement for construction of a building by the respondent. According to the respondent/plaintiff, he constructed the building at a cost of Rs.26 lakhs and odd but he was paid only Rs.24,21,000/- and thus a sum of Rs.2,43,681/- is due to him. He sued petitioners for recovery of that amount. Petitioners contended that there was a proceeding before the Consumer Disputes Redressal Forum, Kollam where an expert appointed to assess the cost of construction fixed it at Rs.18,50,000/-, they have paid in excess of what is actually due to the respondent and thus more than Rupees five lakhs was due to them from the respondent. On 29.10.2009 respondent filed an application for the appointment of an Advocate Commissioner to inspect the building where petitioners are residing and which was constructed by the respondent, obviously to assess cost of construction. That application was opposed by petitioners but learned Sub Judge allowed it. On 04.12.2009 respondent deposited batta for the Advocate Commissioner and the case was posted on 22.12.2009 for report. In the meantime on 19.12.2009 the Advocate Commissioner went to the house of petitioners for executing the warrant. It is then that petitioner No.2 is said to have obstructed the Commissioner from performing his duty. That fact was reported by the Advocate Commissioner in his interim report based on which WP(C) No.1651/2010 3 learned Sub Judge has passed Ext.P9, order. 3. I have gone through a copy of the interim report filed by Advocate Commissioner in the court below on 19.12.2009. There, it is stated that after giving notice to the counsel for respondent and issuing notice to the petitioners under certificate of posting about his inspecting the building on 19.12.2009 at 11 a.m. he went to the said building where his entry into the building was obstructed by petitioner No.2. According to the petitioners no such obstruction was caused. Petitioner No.2 only requested the Commissioner to conduct the inspection on another day as her husband (petitioner No.1) was not in the house then. Question is whether based on the said report learned Sub Judge was legally correct in issuing Ext.P9, order directing the Sub Inspector of Police to register a case against petitioners. Learned counsel for petitioners stated that police has registered a case against the petitioners for offences punishable under Sections 340 and 186 read with Section 34 of the Indian Penal Code (for short, “the IPC”). 4. According to the learned counsel for petitioners the court below has overlooked the requirements of Section 340 of the Code in that no enquiry as contemplated therein was conducted. But enquiry under Section 340 of the Code is required only when any offence referred to in Section 195(1) (b) of the Code is alleged to be committed. The offence under Section 186 of the IPC alleged in this case does not come under Section 195(1)(b) of the Code. The offence under Section 186 of the IPC comes under Section 195(1)(a) of the Code. Hence enquiry provided under Section 340 of the Code is not required. 5. But Section 195(1) of the Code states that in respect of WP(C) No.1651/2010 4 offences coming under (a) of that Sub-section (which includes the offence under Section 186 of the IPC) no (criminal) court shall take cognizance except on a complaint in writing of the public servant concerned or of some public servant to whom he is administratively subordinate. Hence in respect of an offence falling under Section 195(1)(a) of the Code, the criminal court could not take cognizance on a police report. Learned Sub Judge while passing Ext.P9 order has not considered the said provisions. As such Ext.P9, order is bad in law and cannot be sustained. 6. In the light of what I have stated above Ext.P9, order cannot be sustained and, is liable to be set aside. It follows that in view of setting aside of Ext.P9, order and on the face of the statutory provision contained in Section 195 (1)(a) of the Code police could not have registered a case or submitted a final report. The case if any registered by police therefore does not have the sanction of law. Resultantly this Writ Petition is allowed and Ext.P9, order is set aside. The matter is remitted to the court of learned Principal Sub Judge, Kollam to consider the matter afresh in the light of the provisions contained in Section 195 (1) of the Code and to pass appropriate orders as provided under law and as circumstances warranted. THOMAS P.JOSEPH, Judge. WP(C) No.1651/2010 5 cks