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2019 DIGILAW 391 (KER)

Asha v. P. K. Joseph

2019-05-29

R.NARAYANA PISHARADI

body2019
ORDER : When a petition/complaint in writing made before the Magistrate contains allegations as to commission of a cognizable offence by a person and the only relief sought or prayer made in it is for forwarding it to the police under Section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for investigation, can it not be treated as a complaint as defined under Section 2(d) of the Code? This question arises for consideration in this case. 2. The facts of the case are as follows: The husband of the petitioner died on 06.07.1990 in a motor vehicle accident. Thereafter, certain disputes arose with regard to her share in the property owned by her husband. The petitioner instituted the suits O.S.No.717/1995 and O.S.No.718/1995, through her power of attorney, in the Sub Court, Ernakulam for resolving the disputes. She filed O.P.(MV) No.2058/1990 and her mother-in-law filed O.P.(MV) No.2132/1990 before the Motor Accidents Claims Tribunal, Ernakulam claiming compensation for the death of her husband in the accident. Against the award passed by the Tribunal in these cases, the petitioner and her mother-in-law filed appeals as M.F.A.Nos.84 of 2001 and 136 of 2001 before this Court. The first respondent was the lawyer engaged by the petitioner. 3. On 04.10.2011, the petitioner filed a complaint as C.M.P.No.3148/2011 in the Magistrate's Court concerned against the first respondent, her lawyer, alleging commission of the offences under Sections 403, 406, 420, 463, 464, 465 and 468 of the Indian Penal Code. The petitioner alleged in the complaint that when she visited the office of the first respondent on 30.03.2011, she came to know that all the cases mentioned above were settled on the basis of a compromise petition dated 22.07.2002 filed before this Court. The power of attorney holder of the petitioner obtained a copy of the compromise petition from the first respondent on 28.09.2011. He was then shocked to find that the signature in the compromise petition was not that of the petitioner. The petitioner has alleged in the complaint that the first respondent colluded with her mother-in-law and forged the signature of the petitioner and cheated her. The petitioner has further alleged in the complaint that the first respondent misappropriated the amount received by way of demand draft pursuant to the compromise. 4. The complaint was filed by the petitioner through her power of attorney holder. The petitioner has further alleged in the complaint that the first respondent misappropriated the amount received by way of demand draft pursuant to the compromise. 4. The complaint was filed by the petitioner through her power of attorney holder. Learned Magistrate recorded the sworn statement of the power of attorney holder of the petitioner and posted the case for enquiry under Section 202 of the Code. But, the petitioner did not examine any other witness. 5. As per the order dated 24.09.2001 (Annexure A1), the learned Magistrate dismissed the complaint under Section 203 of the Code finding that the allegations in the complaint are baseless. Learned Magistrate found that it cannot be said that the allegations in the complaint and the documents filed along with the complaint would prima facie give indication of commission of the offences under Sections 403, 406, 420, 463, 464, 465 and 468 of the Indian Penal Code. 6. Aggrieved by the aforesaid order passed by the learned Magistrate, the petitioner filed revision petition as Crl.R.P.No.152/2012 before the Court of Session, Ernakulam. The petitioner contended before the revisional court that the learned Magistrate should have forwarded the complaint to the police under Section 156(3) of the Code for investigation instead of proceeding under Chapter XV of the Code. On the other hand, the first respondent contended before the revisional court that the only prayer made in the complaint was that it may be forwarded to the police for investigation under Section 156(3) of the Code and therefore, it cannot be treated as a complaint as defined under Section 2(d) of the Code. 7. As per the order dated 10.10.2014, the learned Sessions Judge dismissed the revision petition. The learned Sessions Judge found that the complaint filed by the petitioner as such is not maintainable since the only prayer made in it was to forward the same to the police under Section 156(3) of the Code for investigation. This petition is filed under Section 482 of the Code for setting aside the order of the learned Sessions Judge and to proceed with the complaint as prayed for by the petitioner. 8. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the first respondent. 9. Annexure A1 order passed by the learned Magistrate was challenged by the petitioner in revision before the Sessions Court. 8. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the first respondent. 9. Annexure A1 order passed by the learned Magistrate was challenged by the petitioner in revision before the Sessions Court. The revision petition was dismissed by the Sessions Court as per Annexure A2 order and it is challenged before this Court by filing this petition under Section 482 of the Code. The question therefore arises whether the bar under Sections 397(3) and 399(3) of the Code can be circumvented by a party by filing an application under Section 482 of the Code. 10. The power under Section 482 of the Code can be invoked to secure the ends of justice. Nothing in the Code limits or affects the exercise of such power by the High Court. The doors to the High Court are not completely closed to a litigant who has lost his case in revision before the Sessions Judge (See Shakuntala Devi v. Chamru Mahto : AIR 2009 SC 2075 and Krishnan v. Krishna Veni : AIR 1997 SC 987 ). The power under Section 482 of the Code stands intact and unaffected by Sections 397(3) and 399(3) of the Code (See Dharmarajan v. State of Kerala : 1995(1) KLT 732 ). Therefore, the petition filed under Section 482 of the Code is maintainable against Annexure A2 order passed by the learned Sessions Judge in revision. 11. The prayer in the complaint (Annexure A4) reads as follows: “Hence it is humbly prayed that this Hon'ble Court may forward the complaint under 156(3) of the Code of Criminal Procedure, 1973 to the North Police Station for investigation and further steps against the accused.” 12. The learned Sessions Judge has relied upon the decision of this Court in Shaji Thomas v. State of Kerala : 2014 KHC 2532 : 2014(1) KLT 697 to hold that a petition containing a mere prayer for forwarding it to the police under Section 156(3) of the Code for investigation cannot be treated as a complaint. 13. Section 2(d) of the Code defines 'complaint' as follows : ''Complaint'' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. 13. Section 2(d) of the Code defines 'complaint' as follows : ''Complaint'' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation--.A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such a report is made shall be deemed to be the complainant” 14. As per the definition given under Section 2(d) of the Code, the essential ingredients of a complaint are: (1) it must be made to a Magistrate (2) it may either be oral or in writing (3) it must be made with a view to take action under the Code (4) it must contain an allegation that some person has committed an offence and (5) it does not include the report of a police officer. 15. There is no specific nomenclature or form prescribed for a complaint. In Bhimappa v. Laxman: AIR 1970 SC 1153 , the Apex Court has held as follows: “The word 'complaint' has a wide meaning since it includes even an oral allegation. It may, therefore, be assumed that no form is prescribed which the complaint must take. It may only be said that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take action. Section 190(1)(a) makes it necessary that the alleged facts must disclose the commission of an offence”. 16. Section 156(3) of the Code empowers the Magistrate to order investigation of a cognizable offence by an officer-in-charge of a police station. However, in order to exercise this power, he shall be a Magistrate who is empowered under Section 190 of the Code to take cognizance of such offence. As per Section 190(1)(a) of the Code, any Magistrate of the first class, may take cognizance of any offence upon receiving a complaint of facts which constitute such offence. It follows that when a petition or complaint is filed, which only contains a prayer for sending it to the police under Section 156(3) of the Code for investigation, it shall necessarily contain facts which constitute a cognizable offence. 17. It follows that when a petition or complaint is filed, which only contains a prayer for sending it to the police under Section 156(3) of the Code for investigation, it shall necessarily contain facts which constitute a cognizable offence. 17. True, the expression ''with a view to his taking action under this Code” in Section 2(d) of the Code signifies that the complaint must be made with a view to an action being taken under the Code by the Magistrate. But, it is not necessary to indicate the mode or manner by which the Magistrate is required to take action. A close scrutiny of the definition of 'complaint', as given in Section 2(d) of the Code, discloses that a 'complaint' does not necessarily mean that the maker of the allegation must intend that the Magistrate shall proceed under Chapter XV of the Code. When a petition is filed, which contains allegation that some person, whether known or unknown, has committed an offence and such a petition is made with a prayer to forward the same to the police for investigation, then the petitioner intends that the Magistrate may take action under the Code. It cannot be found that giving direction under Section 156(3) of the Code to the police to conduct investigation in respect of a cognizable offence is not an action being taken by the Magistrate under the Code. 18. The aforesaid view is supported by the decisions of the Apex Court in Joseph Mathuri v. Swami Sachidanand Harisakshi: 2001 (3) Crimes 384 (SC) and Mohd.Yousuf v. Afaq Jahan : AIR 2006 SC 705 . 19. Joseph Mathuri (supra) is a case in which the Allahabad High Court had held that an application under Section 156(3) of the Code for giving direction to register case against the accused cannot be treated as a complaint. The Supreme Court allowed the appeal filed against the order of the High Court, holding as follows: “The High Court held that the application under Section 156(3) of the Criminal Procedure Code moved by respondent No.1 before the Judicial Magistrate, Dehradun for directing appellants to register case against the appellants cannot be treated as a complaint. The impugned order, on the face of it, is totally erroneous and cannot be sustained in law as the said order ignores Section 190 and Section 200 of the Criminal Procedure Code”. 20. Mohd. The impugned order, on the face of it, is totally erroneous and cannot be sustained in law as the said order ignores Section 190 and Section 200 of the Criminal Procedure Code”. 20. Mohd. Yousuf (supra) is a case in which an application was filed before the Magistrate alleging commission of certain offences by some persons. The prayer made in the application was that the culprits be suitably dealt with. A plea was raised before the Supreme Court that the petition filed by the appellant was not a complaint in the strict sense of the term. The Supreme Court rejected this plea and held as follows: “A faint plea was made by learned counsel for Respondent 1 that the petition filed by the appellant was not a complaint in the strict sense of the term. The plea is clearly untenable. The nomenclature of a petition is inconsequential. ........... There is no particular format of a complaint. A petition addressed to the Magistrate containing an allegation that an offence has been committed, and ending with a prayer that the culprits be suitably dealt with, as in the instant case, is a complaint”. 21. Arul V.Nair v. State of Kerala ( 2007 (4) KLT 921 ) is a case where an application was filed before the Magistrate alleging that the accused had committed an offence punishable under Section 420 read with Section 106 I.P.C. The prayer in the application was to forward the same to the police under Section 156(3) of the Code. After taking sworn statement of the complainant, the Magistrate posted the case for enquiry under Section 202 of the Code. Inspite of posting the case for enquiry no witness was examined and the Magistrate could not, therefore, conduct any enquiry. The only material before the Magistrate was the sworn statement of the complainant which did not reveal any offence. Under those circumstances, the Magistrate dismissed the complaint. The order of the learned Magistrate was assailed in revision before this Court. The contention of the revision petitioner before this Court was as follows: “Annexure I was not really a complaint but only a petition under Section 156(3) Cr.P.C requesting the Magistrate to forward the application to the police. Under those circumstances, the Magistrate dismissed the complaint. The order of the learned Magistrate was assailed in revision before this Court. The contention of the revision petitioner before this Court was as follows: “Annexure I was not really a complaint but only a petition under Section 156(3) Cr.P.C requesting the Magistrate to forward the application to the police. The Magistrate was virtually converting the same into a complaint falling under Section 2(d) Cr.P.C which he was forbidden from doing in the light of the decision reported in II (2007) CCR 192-Phool Singh v. State of U.P. and Others (Allahabad High Court). Annexure I is at best a petition falling under Section 190(1)(c) Cr.P.C”. The aforesaid contention was dealt with by a learned Single Judge of this Court holding as follows: “I am afraid that I cannot agree with the above submissions. It was for want of any material in support of the complaint that the Magistrate dismissed the complaint. That will not preclude the complainant from filing another complaint. The argument that Annexure A1 was really not a complaint filed with a view to request the Magistrate to take action under the Code and falling under Section 2(d) Cr.P.C but only a petition under Section 156(3) Cr.P.C requesting to forward the matter to the police for investigation, is misconceived. In the first place, Section 156(3) Cr.P.C does not contemplate any application. Secondly, what the Magistrate can forward to the police under sub-section (3) of Section 156 read with sub-section (1) thereof is only a matter on which he is competent to take cognizance under Section 190 Cr.P.C. Even if what is filed before the Magistrate is a petition falling under Section 190(1) (c) Cr.P.C that again is an information on the basis of which the Magistrate is competent to take cognizance. It is only if the matter before the Magistrate answers the description under clauses (a) to (c) of Section 190(1) Cr.P.C it can be forwarded to the police under Section 156(3) Cr.P.C. For that reason also it is doubtful whether a petition for merely forwarding the matter under Section 156(3) Cr.P.C is maintainable”. (emphasis supplied) 22. It is only if the matter before the Magistrate answers the description under clauses (a) to (c) of Section 190(1) Cr.P.C it can be forwarded to the police under Section 156(3) Cr.P.C. For that reason also it is doubtful whether a petition for merely forwarding the matter under Section 156(3) Cr.P.C is maintainable”. (emphasis supplied) 22. In Shaji Thomas v. State of Kerala : 2014(1) KLT 697 , another Single Bench of this Court has observed as follows: “Prayer made in the complaint is to forward the same to police under Section 156(3) Cr.P.C. This Court, at least in two decisions, has clearly held that a petition with a mere request that the same be forwarded for investigation to police is not maintainable”. 23. However, a different note was struck by another learned Single Judge of this Court in the two subsequent decisions in Stanly Varghese v. Mohammed Haneef : 2015 (5) KHC 916 and Maneesh v. State of Kerala : 2016 (1) KHC 96 : 2016 (1) KLT 323 . 24. In Stanly Varghese (supra), one of the questions raised was whether a private complaint, in which the only relief sought for is the one under Section 156(3) of the Code, is maintainable. This question was answered as follows: “It is true that the relief sought for in the complaint is for a direction to the police under Section 156(3) Cr.P.C for conducting investigation in the case. Simply from the fact that such a relief alone has been sought for in the complaint, it cannot be said that it does not constitute a complaint within the meaning of Section 2(d) Cr.P.C. ......... It does not matter as to what is the relief sought for in the complaint. What has to be looked into is whether the complaint is filed before a Magistrate with a view to his taking action under the Code, that the person against whom it is filed has committed an offence. If the complaint reveals an offence, then, it constitutes a complaint even if the relief sought for is simply a direction to the police to investigate the matter under Section 156(3) Cr.P.C.” (emphasis supplied). 25. If the complaint reveals an offence, then, it constitutes a complaint even if the relief sought for is simply a direction to the police to investigate the matter under Section 156(3) Cr.P.C.” (emphasis supplied). 25. In Maneesh (supra), it has been held as follows: “In cases wherein the contents of the private complaint reveal sufficient grounds to invite an offence, the mere fact that the complainant has sought for the relief of forwarding it to the police under Section 156(3) Cr.P.C, does not make the complaint not maintainable. When the contents reveal offences, courts are competent to take cognizance of the offences involved or to forward the matter under Section 156(3) Cr.P.C. When the contents do not reveal any offence, and the relief sought for is solely for getting it forwarded to the police under Section 156(3) Cr.P.C, it can be said that such a complaint is not maintainable”. 26. The view taken by this Court in Stanly Varghese (supra) and Maneesh (supra) is supported by the decisions of the Supreme Court mentioned earlier and I am bound to follow that view. 27. The discussion above leads to the conclusion that, when a petition/complaint in writing made before the Magistrate contains allegations which constitute commission of an offence by a person and the only relief sought or prayer made in it is for forwarding it to the police under Section 156(3) of the Code for investigation, it cannot be found that it is not a complaint as defined under Section 2(d) of the Code and that it is not maintainable. 28. The petitioner has raised a contention that the learned Magistrate should have forwarded the complaint to the police under Section 156(3) of the Code for investigation instead of proceeding under Chapter XV of the Code. According to the petitioner, without investigation by the police, it is not possible for her to prove the case. It is contended that the action of the Magistrate in proceeding under Chapter XV of the Code has caused prejudice to her. 29. When a complaint alleging commission of a cognizable offence is received by the Magistrate, he has two options. He may either apply his mind for the purpose of proceeding under Section 200 of the Code and the succeeding sections or he may pass an order under Section 156(3) of the Code for investigation by the police. 29. When a complaint alleging commission of a cognizable offence is received by the Magistrate, he has two options. He may either apply his mind for the purpose of proceeding under Section 200 of the Code and the succeeding sections or he may pass an order under Section 156(3) of the Code for investigation by the police. An order made under Section 156(3) of the Code is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). A complaint disclosing cognizable offence may well justify a Magistrate in sending it under Section 156(3) of the Code to the police for investigation. Normally, a Magistrate may not proceed to examine the complainant under Section 200 and proceed to conduct enquiry under Section 202 of the Code. It may consume valuable time of the court. There is no reason why the time of the Magistrate should be wasted when primarily the duty to conduct investigation in cases involving cognizable offences is with the police. When a Magistrate receives a complaint and if the facts alleged in the complaint disclose the commission of an offence, he is not bound to take cognizance. If on a reading of the complaint, he finds that the allegations therein disclose commission of any cognizable offence and that forwarding the complaint under Section 156(3) of the Code to the police for investigation will be conducive to justice, he may adopt that course. But, there is no provision of law which compels a Magistrate to refer the matter to the police. The Magistrate has discretion in the matter. There may be occasions when the Magistrate may exercise his discretion and take cognizance of the offence. The discretion is to be judicially exercised by the Magistrate. In all cases, the Magistrate shall not adopt the easy way of forwarding the complaint under Section 156(3) of the Code unmindful of the consequences of such action. The court has a duty to protect the interest of the respondent/accused also since at the time of conducting inquiry or forwarding of the complaint to the police for investigation, he has no right of hearing. The complainant has no legal right or privilege to insist that the Magistrate shall not take cognizance and without taking cognizance, refer the matter to the police. The complainant has no legal right or privilege to insist that the Magistrate shall not take cognizance and without taking cognizance, refer the matter to the police. (See Gopal Das Sindhi v. State : AIR 1961 SC 986 , Lakshminarayana Reddy v. Narayana Reddy : AIR 1976 SC 1672 , Madhao v. State of Maharashtra: (2013) 5 SCC 615 , Nirmala Devi v. State of Kerala : 2014 (2) KLT 254 and Muhammad Salim v. Sangeetha : 2014 (1) KHC 657 ). 30. A direction under Section 156(3) of the Code is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where the Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed". Exercise of discretion by the Magistrate in this regard is guided by the interest of justice from case to case (See Ramdev Food Products v. State of Gujarat : AIR 2015 SC 1742 ). 31. In the instant case, the transaction relating to the offences alleged by the petitioner had occurred in the year 2002. The complaint was filed in the year 2011. The allegation against the first respondent is that he had forged the signature of the petitioner in the compromise petition filed in the High Court and cheated her. In such a situation, I am of the view that the learned Magistrate has properly exercised his discretion in not passing an order under Section 156(3) of the Code for investigation of the case by the police. 32. The petitioner has contended that she is a physically disabled person and therefore, she is not in a position to collect and adduce evidence regarding the offences allegedly committed by the first respondent. Merely on the basis that the petitioner is a physically disabled person she cannot insist that the complaint made by her shall be forwarded to the police for investigation. Merely on the basis that the petitioner is a physically disabled person she cannot insist that the complaint made by her shall be forwarded to the police for investigation. It is to be noted that the complaint is filed by her through the power of attorney holder. 33. The petitioner has contended that she had made a request to the Magistrate to direct investigation by the police under Section 202(1) of the Code but her request was rejected by the learned Magistrate. There is no material before this Court to find that the petitioner had made any application before the learned Magistrate praying that investigation by the police may be directed under Section 202(1) of the Code and any order was passed by the learned Magistrate on such application. An investigation directed under Section 202 of the Code has limited purpose of deciding "whether or not there is sufficient ground for proceeding". It is entirely within the discretion of the Magistrate to direct an investigation under Section 202(1) of the Code. 34. The learned Sessions Judge has disposed of the revision petition mainly on the ground that the complaint filed by the petitioner is not maintainable and also on the basis of some improbabilities in the case set up by the petitioner. The learned Sessions Judge has not considered the legality and propriety of the order passed by the learned Magistrate on the basis of the allegations in the complaint and the statement of the power of attorney holder of the petitioner. Learned Sessions Judge should have considered, on the basis of such materials, whether a prima facie case was made out by the petitioner for issuing process to the accused and whether the learned Magistrate erred in dismissing the complaint and whether any direction for further enquiry into the complaint by the Magistrate was required to be issued. It would not be proper for this Court to undertake such an exercise in this petition filed under Section 482 of the Code. Therefore, it has become necessary to remand the revision petition to the Sessions Court for fresh consideration and disposal on merits. 35. Consequently, the petition is allowed and Annexure A2 order dated 10.10.2014 passed by the learned Sessions Judge in Crl.R.P.No.152/2012 is set aside. The aforesaid revision petition is remanded to the Court of Session, Ernakulam. Therefore, it has become necessary to remand the revision petition to the Sessions Court for fresh consideration and disposal on merits. 35. Consequently, the petition is allowed and Annexure A2 order dated 10.10.2014 passed by the learned Sessions Judge in Crl.R.P.No.152/2012 is set aside. The aforesaid revision petition is remanded to the Court of Session, Ernakulam. The learned Sessions Judge concerned shall dispose of the revision petition afresh on merits. The parties shall appear before the court concerned on 01.07.2019.