K.M. Abdullakunhi vs Rajesh
2021 Latest Caselaw 1793 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.SOMARAJAN

     MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                       Crl.MC.No.1481 OF 2015 (B)

     CRIME NO.1068/2014 OF KASARGOD POLICE STATION, KASARGOD

PETITIONERS/ACCUSED:

      1      K.M. ABDULLAKUNHI, AGED 55 YEARS,
             S/o AHAMMED CHERIYAJI, CHERIYAJI' S HOUSE,
             INDIRA NAGAR, CHENGALA VILLAGE,
             PO. CHENGALA, KASARAGOD

      2      K.M.MOHAMMADKUNHI, AGED 59 YEARS,
             S/o AHAMED CHERIYAJI, CHERIYAJI'S MAHAL,
             CHOWKI, NEERACHAL, KUDULU VILLAGE, PO.,
             CHOWKI, KASARAGOD

      3      ABDULKHADER MUNDOL, AGED 55 YEARS,
             S/o ABDULLA MUNDO, ENGINEER, THEKKIL,
             THEKKIL VILLAGE PO, THEKKIL, KASARAGOD

      4      C.M.MAHIN, AGED 55 YEARS,
             S/o LATE MOIDEENKUNHI, 'ALFAS', INDIRA NAGAR,
             CHENGALA VILLA, KASARAGOD

             BY ADV. SRI.P.V.ANOOP

RESPONDENTS/COMPLAINANT & STATE:

      1      RAJESH, AGED 40 YEARS,
             S/O.LATE P.K.KUNHIRAMAN, RAMA NIKETHA NIVAS,
             NEAR KAILAS THEATER, HOSDURG VILLAGE,
             PO. KANHANGAD, KASARAGOD, PIN 671315

      2      S.I. OF POLICE, KASARAGOD POLICE STATION,
             KASARAGOD, PIN - 671001

      3      STATE OF KERALA,
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682031

             R1 BY ADV. SRI.JAWAHAR JOSE
             BY PUBLIC PROSECUTOR SRI. M.R.DHANIL


     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD         ON
18.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.1481/2015                        2




                                   ORDER

The Magistrate, who referred a complaint under

Section 156(3) Cr.P.C. and the Station House Officer,

who registered a crime and submitted a final report,

based on the said reference, have become mere tools in

the hands of an unscrupulous litigant in the instant

case. The offence alleged are under Sections 420, 465,

468 and 471 r/w 34 IPC. The complaint submitted before

the Magistrate was referred under Section 156(3)

Cr.P.C. without satisfying the commission of an

offence. The duty vested with the Magistrate under

Section 156(3) Cr.P.C. is not to do the job of a

postman or a post office by simply forwarding the

complaint for investigation, but he has to satisfy on

the allegation made in the complaint that an offence

has been committed. The words used in Section 156(3)

Cr.P.C. must be read along with Section 190 Cr.P.C. A

complaint in which the Magistrate is empowered to take

cognizance alone can be referred under Section 156(3)

Cr.P.C. for investigation by the Police. The

jurisdiction vested under Section 156(3) Cr.P.C. is

discretionary and hence has to be exercised judicially,

for which, the Magistrate should apply his mind to the

facts alleged so as to satisfy whether it would

disclose a cognizable offence. It cannot be exercised

mechanically, though a roving enquiry as to the

reliability or genuineness of the allegation is not

contemplated.

2. It is based on the allegation of non-compliance

of requirement under Section 32 of the Registration Act

at the time of registration of sale deed based on a

power of attorney, the allegation of cheating, forgery

etc. were raised against the accused/petitioner, that

too, by a person who is not a party to the sale deed or

power of attorney. The allegation of non-compliance of

Section 32 of the Registration Act would not stand even

going by the allegation and the same was raised without

knowing the requirement under Section 32 of the Act.

Strange enough, a final report was submitted by the

investigation for the abovesaid offences and the same

amounts to abuse of process of the court and hence the

complaint and the final report are hereby quashed. The

Crl.M.C. is allowed.

The Registry shall forward a copy of this order to

the Directorate of Training for future guidance while

imparting training to the officers.

Sd/-

                                      P.SOMARAJAN

DMR/-                                    JUDGE




                           APPENDIX
PETITIONERS' ANNEXURES

ANNEXURE A             TRUE COPY OF THE FIR ALONG WITH THE

COMPLAINT IN CRIME NO.1068/2014 OF KASARAGOD POLICE STATION

ANNEXURE B TRUE COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED BY MR. SOOPY IBRAHIM IN FAVOUR OF THE 4TH PETITIONER DATED 24.12.2003

ANNEXURE C TRUE COPY OF THE REGISTERED ASSIGNMENT DEED NO.981/61-63 DATED 07.01.2004 EXECUTED BY THE 4TH PETITIONER IN FAVOUR OF PETITIONERS 1 TO 3

ANNEXURE D A COPY OF THE ORDER DATED 19.10.2004 IN IA.NO.1793/2004 IN OS.NO.330/1998 ON THE FILE OF MUNSIFF COURT KASARAGOD

ANNEXURE E TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO PETITIONERS 1 TO 3 BY THE VILLAGE OFFICER, KASARGODE DATED 15.01.2015

ANNEXURE F TRUE COPY OF THE ENCUMBRANCE CERTIFICATE OF THE PROPERTY OF PETITIONERS 1 TO 3 ISSUED BY TEH COMPETENT AUTHORITY DATED 21.01.2015

ANNEXURE G TRUE COPY OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT DATED 20.07.2004 IN CIVIL APPEAL NOS.4605 AND 4606/1999

ANNEXURE H TRUE COPY OF THE FINAL REPORT IN CRIME No.1068/2014 OF KASARAGOD POLICE STATION WHICH IS NOW PENDING AS C.C.No.342/2015 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD.

ANNEXURE I TRUE COPY OF THE STATEMENT OF THE WITNESSES RECORDED UNDER SECTION 161 Cr.P.C.

RESPONDENTS' ANNEXURE: NIL


                                             // TRUE COPY    //


                                              P.A. TO JUDGE