Research › Browse › Judgment

Kerala High Court · body

1969 DIGILAW 250 (KER)

Pappu Bhaskaran v. State of Kerala

1969-11-04

K.SADASIVAN

body1969
ORDER K. Sadasivan, J. 1. The injured Pappu Bhaskaran witness No. 1 in the charge, has come up in revision against the order of the learned Sub Magistrate, Chengannur disallowing his prayer for including two more persons in the charge. The charge was filed by the police on 1.3.69 under S.324 read with S.34 I.P.C. against two persons, Yohannan Mathai and Kocheera Ramankutty. On the police report the offence was taken cognisance of by the Magistrate and summons was also ordered on 1.3.69 itself. On 25.3.69 the learned Magistrate framed charges against the accused and the case was then posted to 1.4.69 for prosecution evidence. On 1.4.69 no witnesses were present and so the case was adjourned to 8.4.69. On that day also no witnesses were present and the case was therefore adjourned to 17-4-69. From that date it was adjourned to 28.4.69. On that day also no witnesses were present. The case was then adjourned to 6.5.69. On that day charge witnesses 1 to 3 were present. The injured Pappu Bhaskaran, charge witness No. 1, filed an application to include two more persons in the array of the accused stating that they were purposely omitted from the charge by the police. That application was dismissed by the learned Magistrate and it is from that order that this revision is preferred. 2. The question is whether the Magistrate has jurisdiction to include in the charge, persons not sent up by the police and if so whether the Magistrate has exercised his discretion properly in the present case. It has to be remembered at the outset that the persons sought to be included are not persons mentioned in the F.I. statement. The statement in the petition that two of the accused have purposely been excluded is not correct. In the F. I. statement, only one of the assailants viz., Mathai was mentioned by name. The injured had also stated that he was beaten by Mathai's brother inlaw (no name was given) and also by two other persons who could be identified by sight only. On this statement the police investigated and found that Mathai and one Kocheera Ramankutty were the assailants and the charge was accordingly laid against them. The injured had also stated that he was beaten by Mathai's brother inlaw (no name was given) and also by two other persons who could be identified by sight only. On this statement the police investigated and found that Mathai and one Kocheera Ramankutty were the assailants and the charge was accordingly laid against them. Now the complainant wants to include in the array of the accused two more persons, viz., one Kunjumon and Abraham saying that these two persons have been dropped from the charge by the police with malicious motive. I have already stated that these two persons were not implicated in the F. I. statement. Could the Magistrate in the circumstances direct the police to file a supplementary charge implicating those two persons? Or is it possible for the Magistrate to include them in the array of the accused on the application of the complainant? I do not think the Magistrate is competent to do either. The Supreme Court has held in Roopachand Lal v. State of Bihar AIR 1968 SC 117 that: "the manner and method of conducting the investigation are left entirely to the police, and the Magistrate, so far as we can see, has no power under any of these provisions, to interfere with the same. If on investigation, it appears to the officer, in charge of a police station, or to the officer making an investigation, that there is no sufficient evidence or reasonable ground of suspicion justifying the forwarding of an accused to a Magistrate, S.169 says that the officer shall release the accused, if in custody, on his executing a bond to appear before the Magistrate. Similarly, if on the other hand, it appears to the officer in charge of a police station, or to the officer making the investigation under Chap.14, that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officers required under S.170. .............. Similarly, if on the other hand, it appears to the officer in charge of a police station, or to the officer making the investigation under Chap.14, that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officers required under S.170. .............. The entire scheme of Chap.14 clearly indicates that the formation of the opinion, as to whether or not there is a case to place the accused for trial is that of the officer in charge of the police station and that opinion determines whether the report is to be under S.170, being a 'charge sheet' or under S.169, 'a final report." The learned Judges referring to the conflict of judicial opinion on this point would further observe: "The High Courts which have held that the Magistrate has no jurisdiction to call upon the police to file a charge sheet, under such circumstances, have tested their decision on two principles, viz., (a) that there is no express provision in the code empowering a Magistrate to (pass such an order; and (b) such a power in view of the scheme of Chap.14, cannot be inferred, Vide Venkata Subba v. Anjanayulu, AIR 1932 Mad. 673; Abdul Rahim v. Abdul Muktadin, AIR 1953 Assam 112; Amar Premanand v. State AIR 1960 MP 12 ; the majority view in AIR 1962 Cal. 135 and ILR 1966 Guj 285 AIR 1966 Guj 283 . On the other hand, the High Courts which have recognised such a power, rest their decision again on two grounds viz., (a) when a report is submitted by the police, after investigation, the Magistrate has to deal with it judicially, which will mean that when the report is not accepted, J the Magistrate can give suitable directions to the police; and (b) the Magistrate is given supervision over the conduct of investigation by the police, and therefore, such a power can be recognised in the Magistrate, vide AIR 1960 Bom. 240 and AIR 1966 Pat. 438 ............ 240 and AIR 1966 Pat. 438 ............ Though it may be that a report submitted by the police may have to be dealt with judicially by a Magistrate, and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the further view that from those considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a Charge sheet." 3. It is thus clear that the Magistrate is incompetent to direct the police to submit a charge sheet in respect of certain persons not sent up by the police. But from this it is not to be inferred that the Magistrate is absolutely powerless; it is open to him to take cognisance of an offence and proceed according to law. He will have to consider the report of the police and take a decision judicially as to whether or not he should take cognisance of the offence. He is not expected to accept the opinion of the police at its face value. From the facts revealed in the report if the Magistrate thinks that no offence is disclosed to put the accused on trial, he can decline to take cognisance of the offence. In the present case the offence was taken cognisance of against Yohannan Mathai and Kucheera Ramankutty; but the injured intervened in the mean while and filed an application for including in the array of the accused two more person which the Magistrate has declined. We have already seen from the authority of AIR 1968 SC 117 (cited supra) that the Magistrate has no power to direct the police to submit a charge in respect of those two persons also; nor is it open to the Magistrate to take cognisance of the offence with respect to the other two persons on the strength of the complaint, or application filed by the injured. "Criminal prosecution can be initiated (i) by a police officer by a report in writing, (ii) upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion, and (iii) upon receiving a complaint of facts. "Criminal prosecution can be initiated (i) by a police officer by a report in writing, (ii) upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion, and (iii) upon receiving a complaint of facts. If the report in this case falls within (i) above, then the procedure under S.251A, Criminal Procedure Code must be followed. If it falls within (ii) or (iii) then the procedure under S.252, Cr.P.C, must be followed" (Vide Raghubans Dubey v. State of Bihar AIR 1967 SC 1167 ). 4. It would confuse matters and it would be difficult for the Magistrate to follow two different procedures in one and the same case. Before amendment of the Code of Criminal Procedure (Act 26/55) the procedure laid down in S.252 applied to the trial of all warrant cases" by Magistrates irrespective of the fact whether they were instituted on a police report or not. Now S.251 lays down the procedure to be followed in the trial of warrant cases instituted on a police report and the procedure laid down in S.252 to 259 to be followed in warrant cases instituted otherwise than on a police report. There are material differences in the two forms of procedure. In cases instituted on police report, no evidence need be recorded before the framing of the charge. Under S.251A(3) the charge may be framed upon a consideration of the document referred to in S.173 and after giving the prosecution and the accused opportunity of being heard. On the other hand, in cases instituted otherwise than on police report, the charge can be framed only after recording atleast some evidence for the prosecution. In warrant cases instituted otherwise than on a police report, the accused has three opportunities of cross examining the prosecution witness and they are (i) before the charge is framed; (ii) after the charge is framed and before the accused is asked to enter upon his defence and (iii) after the accused has entered, upon his defence; subject of course to certain restrictions contained in the relevant sections. Again, the right of the accused under S.256 to recall and cross examine prosecution witnesses who have already been examined before the framing of the charge is an absolute one, while under S.257 it is subject to the discretion of the Magistrate. Again, the right of the accused under S.256 to recall and cross examine prosecution witnesses who have already been examined before the framing of the charge is an absolute one, while under S.257 it is subject to the discretion of the Magistrate. These are material points on which the two form of procedure differ. It is, therefore, impracticable to have the two modes of procedure side by side in the same case. In this view also, the request of the injured cannot be acceded to. In the circumstances, the learned Magistrate is justified in dismissing the application. The order is confirmed and the revision petition is dismissed.