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Madras High Court · body

1997 DIGILAW 1375 (MAD)

Ramakrishnan v. State of Kerala

1997-11-26

B.N.PATNAIK

body1997
Judgment : The petitioner challenges the order, dated 20.6.1995 passed by the Judicial Magistrate of the First Class, Chavakkad on a petition filed by him under Sec.451 of the Code of Criminal Procedure. 2. The petitioner is engaged in the jewellery business at Kodungallur in Thrissur District. There was an allegation of theft of some gold ornaments weighing about 17 sovereigns. A case was registered as Crime No.l41/CR/94 of the CB, CID, Ernakulam. In course of investigation, it is alleged that the investigating team of Crime Branch seized some old gold ornaments from his shop at about 7 p.m. on 4.4.1995 on threat of arrest. The Divisional Inspector of Police, Crime Branch, CB, CID, Thrissur told him that the petitioner has received stolen gold ornaments and as such he would seize the same. Out of fear, the petitioner produced some gold ornaments which were seized by the police. Thereafter, he filed a petition under Sec.451 of the Crl.P.C, before the court below for return of the gold ornaments to him on proper security on the ground that the allegation of his having received the same as stolen property is false. On the contrary, he contended that he had purchased it from one Dhinakaran, who is another jeweller, for the purpose of business. But while rejecting the petition, the learned Magistrate made an observation that the circumstances in this case give room for an investigation into the matter so as to find out whether the petitioner had committed offences punishable under Secs.465 and 411 of I.P.C. The 1st respondenttherein, who is the Divisional Inspector of Police, Crime Branch, CB, CID Thrissur, was directed to investigate and report regarding the possible commission of offence under Secs.465 and 411 of I.P.C. by the petitioner under Sec.156 (3) of Cr.P.C. He suspected that an offence under Sec.465 has been committed on the ground that the petitioner was found to have produced some forged documents in this criminal proceeding to be used as evidence. 3. Learned counsel for the petitioner has contended that the learned Magistrate has no jurisdiction to give such a direction to the 1st respondent, who is not an officer in charge of a police station under Secs. 156 of the Criminal Procedure Code. 3. Learned counsel for the petitioner has contended that the learned Magistrate has no jurisdiction to give such a direction to the 1st respondent, who is not an officer in charge of a police station under Secs. 156 of the Criminal Procedure Code. Moreover, since the offence under Sec.465 as defined in Sec.463, I.P.C. is said to have been committed in the course of a judicial enquiry in the court, a direction of this nature is incompetent under Sec.195 of the Crl.P.C. 4. The learned Public Prosecutor has contended that the Magistrate having got this information in course of an enquiry, he has got the jurisdiction to direct for an investigation in exercise of his powers under Sec.190(1)(c) of the Crl.P.C. 5. The only point for consideration in this case is whether the impugned order of the learned Magistrate can be sustained in law. 6. There is no dispute that the Divisional Inspector of Police, Crime Branch, CB, CID, Thrissur is not an officer in charge of any police station. No notification has been issued making him the officer in charge of the concerned police station in respect of the said crime case. Similar such question came up for consideration before this court in State of Kerala v. Mossa Haji State of Kerala v. Mossa Haji , (1993)2 K.L. T. 609. In that case, this Court laid down as follows: “A place or post declared by Government as Police Station must have a Police Officer in charge of it and if he, for any reason, is absent in the station house, the officer who is next junior in rank present in the police station shall perform the functions as officer in charge of the police station. The primary responsibility for investigation of a cognizable case reported in that station vests with such police officer. Sec.156 (3) of the Code empowers a Magistrate to direct such officer in charge of the police station to investigate any cogniable case over which such Magistrate has jurisdiction. On the face of the above Principle, as Magistrate cannot order any Police Officer, other than one who is in charge of the police station, to conduct the investigation. But the difficulty does not end with that. On the face of the above Principle, as Magistrate cannot order any Police Officer, other than one who is in charge of the police station, to conduct the investigation. But the difficulty does not end with that. Under Sec.36 of the Code “Police Officers Superior in rank to an officer in charge of a police station may exercise the same powers as may be exercised by such officer within the limits of his station.” Government in exercise of their executive powers can authorise any superior police officer to investigate a case, and such directions can be issued by the higher officer to his subordinate officer in the police department. When any police officer referred to in Sec.36 of the Code conducts the investigation, that cannot be called in question as without authority. In appropriate cases the High Court can issue directions under Art.226 of the Constitution for causing investigation to be made by such officers because such officers have the power to investigate. But such power of the Government or the higher officer in the department is quite different from the scope contained in Sec.156(3) of the Code. There is no provision in the Code or in any other statute which confers power on a Magistrate to direct any officer other than an officer in charge of a police station to conduct investigation.” In this view of the matter, direction under Sec.156(3) of the Code of Criminal Procedure to the Divisional Inspector of Police, who is not an officer in charge of any Police Station, is illegal. 7. It is no doubt true that the Magistrate has got powers under Sec.190(1)(c) to take cognizance of the offence which comes to his knowledge in the course of an enquiry. In this case, the offences alleged are under Secs.465 and 411, I.P.C. If it is a case under Sec.465 he himself becomes the complainant. If he takes cognizance of the offence under Sec.411, I.P.C. he may try it himself for have the case tried by some other Magistrate under Sec.191, Cr.P.C. There can be no further investigation by any Police Officer, after the Magistrate takes cognizance of the offence for trial. 8. If he takes cognizance of the offence under Sec.411, I.P.C. he may try it himself for have the case tried by some other Magistrate under Sec.191, Cr.P.C. There can be no further investigation by any Police Officer, after the Magistrate takes cognizance of the offence for trial. 8. On a perusal of the order, it appears that the Magistrate was convinced that the petitioner produced same forged documents in the enquiry conducted by him in connection with the petition under Sec.451, Crl.P.C. It is, no doubt, a judicial enquiry, Sec.465, I.P.C. is the charging section regarding the commission of forgery. Forgery is defined in Sec.463, I.P.C. Thus, an offence under Sec.465, I.P.C. can be charged in terms of Sec.463, I.P.C. 9. Sec.195(1)(b)(ii) of the Criminal Procedure Code contemplates that no court shall take cognizance ofany offence described in Secs. 463 or punishable under Sec.471 or 476 of the Indian Penal Code when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court except on the complaint in writing of that court or of some other court to which that court is subordinate. Sec.340 of the Crl.P.C. Inter alia says that when on an application made to it in this behalf or otherwise, any court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-Sec.(1) of Sec.195 which appears to have been committed in relation to a proceeding in that court, or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary enquiry, if any, as it thinks necessary, record a finding to that effect, make a complaint thereof in writing, send it to a Magistrate of the First Class having jurisdiction, take sufficient security for appearance of the accused before such Magistrate or send the accused in custody to such Magistrate if the alleged offence is non-bailable and bind over any person to appear and give evidence before such Magistrate. Thus, if an offence in terms of Sec.463 is alleged to have been committed in course of a proceeding in Court, the proper procedure is to make a preliminary enquiry as contemplated in Sec.340, Cr.P.C. instead of directing a Police Officer to investigate into it. In this case, the direction of the Magistrate to investigate an offence under Sec.465, I.P.C, therefore, is contrary to law. 10. For the reasons stated above, I find that the impugned order of the Magistrate cannot be sustained in law. However, it is made clear the that the police officer who is in charge of the investigation is not precluded from making further investigation in the case according to law untrammelled by the observations made by the learned Magistrate. 11. The Crl.M.C. is allowed. There shall be no order as to costs.