BINU MUHAMMED S/O LATE B. MUHAMMED KHAN v. STATE OF KERALA
2025-01-21
V.G.ARUN
body2025
DigiLaw.ai
ORDER : 1. Petitioner is the complainant in C.M.P. No. 367 of 2024 pending on the files of the Additional Chief Judicial Magistrate Court, Ernakulam. The complaint is filed alleging commission of offences punishable under Sections 120B, 381, 408, 419, 420, 465, 468 and 471 read with 34 of IPC by respondents 2 and 3. The averments in the complaint are to the following effect. 2. The complainant's father late B. Muhammed Khan is the founder of M/s. Palmshore Hotels Pvt. Ltd. (hereinafter described as ‘the company’). After the death of complainant's mother, the 1st accused/2nd respondent, who was working in the company, developed a relationship with the complainant's father, which ultimately led to their marriage. Although complainant's father later dissolved his marital relationship with the 1st accused by pronouncing talak, she forged documents and made it appear that the complainant’s father had re-married her on 12.10.2020. The 1st accused, by conspiring with the 2nd accused, created a false document showing the complainant's father to have transferred 1000 shares of M/s. Palmshore Hotels Pvt. Ltd to the 1st accused. While so, the complainant’s father expired on 14.12.2020. Thereafter, on the strength of the forged documents, 1st accused attempted to induct her daughter and son-in-law as Directors of the company. 3. The grievance of the petitioner is that, instead of referring the complaint for investigation by the police under Section 156(3) of Cr.P.C. the court below, by Annexure B proceedings dated 15.02.2024, posted it for recording sworn statement of the complainant. Aggrieved, this Crl. M.C. is filed. 4. Learned counsel for the petitioner contended that the court below committed gross illegality by deciding to proceed under Section 200 of Cr.P.C. It is submitted that the prayer in Annexure A complaint filed under Section 156(3) read with 190 of the Code is to direct the Station House Officer concerned to register a crime and conduct investigation into the allegations. Relying on the decisions in XYZ v. State of Madhya Pradesh and Others, (2023) 9 SCC 705 and Femeena E. v. State of Kerala, 2023 SCC Online Ker 836, it is contended that the discretion vested with the Magistrate cannot be exercised arbitrarily and without assigning any reason for proceeding under Section 200 of Cr.P.C. instead of ordering investigation under Section 156(3).
It is the submission of the learned counsel that insofar as recovery of documents is essential for deciding the complaint, investigation by the Police is highly essential. 5. I heard the learned Public Prosecutor also. 6. Counsel for the petitioner is right in his submission that the proceedings dated 15.02.2024 does not reflect the reason for the court deciding to proceed under Section 200 of the Code. Of course, discretion is vested with the Magistrate to decide upon which course of action is to be taken on a complaint filed under Section 156(3) Cr.P.C. Even then, such discretion cannot be exercised arbitrarily, but must be guided by judicial reasoning. In cases like the present, wherein forgery of documents is alleged, the Magistrate ought to consider whether the police would be better equipped to investigate and recover those documents. As has often been held, while dealing with private complaints, courts are not expected to act like a post office by mechanically forwarding the complaint for investigation under Section 156(3). Likewise, the decision to proceed under Section 200, should also be supported by reasons. To put it pithily whether the decision be to refer the complaint for investigation by the police under Section 156(3) or proceed under Section 200, the reasons that had prompted the Magistrate to opt for such course of action should be discernible from the order/ proceedings. The impugned proceedings being bad for want of such reasoning, is liable to be interfered with. 7. For the aforementioned reasons, the Crl. M.C. is allowed in part. Annexure A proceedings dated 15.02.2024 in CMP No. 367 of 2024 of the Additional Chief Judicial Magistrate, Ernakulam is quashed. The learned Magistrate shall take a fresh decision as to the proper course of action to be adopted on Annexure B complaint.