M.B. Moideen Kunju vs State Of Kerala
2022 Latest Caselaw 1824 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
                       CRL.MC NO. 1459 OF 2017
   [CRIME NO.337/2014 OF Binanipuram Police Station, Ernakulam]
[AGAINST CC NO.574/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-
                               II, ALUVA]
PETITIONER/ACCUSED:

            M.B. MOIDEEN KUNJU
            S/O.M.K.BEERAN, MEZHUKKATTIL HOUSE,EDATHALA P.O.,
            ALUVA.

            BY ADVS.
            SRI.ROSHEN.D.ALEXANDER
            SMT.TINA ALEX THOMAS



RESPONDENTS/STATE & DEFACTO COMPLAINANT:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            ERNAKULAM.

    2       MUSTHAFA
            S/O. MUHAMMED, PALLIMUTTATHIL VEETTIL,PANAYIKKULAM,
            ALANGADU VILLAGE,PARAVUR TALUK.

            FOR R1 SMT.MAYA M.N. PP

            FOR R2 SHRI.SHAIJAN C. GEORGE




     THIS   CRIMINAL   MISC.   CASE   HAVING   BEEN   FINALLY   HEARD   ON
4.2.2022, THE COURT ON 18.2.2022 PASSED THE FOLLOWING:
 CRL.MC No.1459 of 2017                    2


                                  O R D E R

The petitioner is the accused in C.C.No.574 of 2016 on

the file of the Judicial First Class Magistrate Court-II,

Aluva. The cognizance was taken by the learned Magistrate

for the offence punishable under Section 452 of the Indian

Penal Code (IPC,) even though the complaint submitted by

the 2nd respondent herein contained the offences punishable

under Sections 406,420,294B, 307 and 506(2) of IPC besides

the offence under Section 452 IPC.

2. The case of the petitioner is as follows:

The petitioner is stated to be a business man and is

a relative of the 2nd respondent. Earlier, the petitioner

submitted a complaint before Benanipuram Police

Station against the 2nd respondent and certain other

persons, alleging offences punishable under sections

406,420,465,468,471,120B r/w Section 34 of the IPC. The

allegations raised by the petitioner against the 2nd

respondent and other accused in the aforesaid complaint was

that, while the petitioner was holding the position of the

Managing Director of a Company namely M/s Alwaye Techno

Engineering Pvt. Ltd., the accused therein conspired

together and created false documents for the purpose of

cheating and by using such forged documents as genuine

documents, submitted the same before the Registrar of

Companies and removed the petitioner from the directorship

of the company. It was also stated that, later, the accused

therein sold the Company to the strangers and thereby

committed the offences mentioned above. After completing

the investigation, the police submitted Annexure-A2 final

report against the accused persons therein for the offences

punishable under Sections 406,420,465,468,471 r/w. Section

34 of the IPC. The Judicial First Class Magistrate Court-

II, Aluva had taken cognizance on the said complaint and

now it is pending as C.C.No.459/2015. It is the case of the

petitioner that as a retaliation and counterblast

to the aforesaid complaint, the 2nd respondent later filed

Crl.M.P.No.931/2014 initially before the Judicial

First Class Magistrate Court, Paravur which was

later transferred to the Judicial First Class Magistrate

Court-II, Aluva alleging offences under Sections

406,420,452,294B,307,506(2) of the IPC. Annexure A3 is the

said complaint. The aforesaid complaint contains two

allegations. It is alleged that, the 2nd respondent had

lent a total amount of Rs.26 lakhs to the petitioner at

different points of time and when the 2 nd respondent

demanded the money back, the petitioner herein on 23.1.1998

at about 6 p.m. trespassed into the residence of the 2 nd

respondent and threatened him with a knife pointing at his

chest. However, no complaint was submitted in respect of

the same. But later, on 15.4.2014, the very same incident

was allegedly repeated and the complaint was submitted. The

learned Magistrate referred the complaint to the police for

investigation under section 156(3) of the Code of Criminal

Procedure (Cr.PC) and accordingly Crime No.422/2014 was

registered by Benanipurm Police Station which is Annexure-

A4 produced in the Crl.MC. After completing the

investigation, the police submitted Annexure-A5 final

report referring Annexure-A3 complaint as false. Upon

submission of Annexure A5 refer report, the learned

Magistrate issued a notice to the 2nd respondent and upon

receipt of which, he submitted a protest complaint as

Crl.M.P.No.2203/2015 before the learned Magistrate which is

Annexure-A6. An inquiry under Section 202 was conducted

thereon by the learned Magistrate and thereafter summons

was issued to the petitioner herein after taking cognizance

for the offences punishable under Section 452 of the IPC

and the case is numbered as C.C.No.574/2016.

3. This Crl.M.C. is filed by the petitioner seeking

to quash all further proceedings in C.C.No.574/2016.

4. Heard Sri.Roshen D. Alexander, the learned counsel

for the petitioner, Smt.Maya M.N., the learned Public

Prosecutor for the State and Sri. Shaijan C. George, the

learned counsel for the 2nd respondent.

5. The learned counsel for the petitioner contends

that, the act of taking cognizance by the learned

Magistrate on the protest complaint submitted by the 2 nd

respondent is bad in law, particularly because of the

reason that, while taking cognizance, the materials

produced by the police through Annexure A5 final report was

not taken into consideration. It is contended that, a

detailed investigation has been conducted by the police

pursuant to the allegations contained in Annexure-3

complaint submitted by the 2nd respondent and after

examining the relevant witnesses as well as materials, the

police came to the conclusion that the allegations are

false. It is also contended by the learned counsel that,

the submission of Annexure-A3 complaint itself is as a

counterblast to the case registered against the 2nd

respondent and other accused persons which is now pending

as C.C.No.495/2015 before the very same court. The learned

counsel also places reliance upon the judgment rendered by

this Court in Parameswaran Nair v. Surendran [2009 (1) KLT

794] to canvass the proposition that the protest complaint

can be entertained by the court only if it is shown that

there is manifest error in the earlier order or manifest

miscarriage of justice therein or the complainant was able

to bring any new facts which he had no knowledge or could

not be produced earlier despite due diligence.

6. On the other hand, the learned counsel appearing

for the 2nd respondent contends that, the protest complaint

submitted by the 2nd respondent is in fact an objection to

the opinion expressed by the police through the refer

report and the same cannot be treated as a second

complaint. The learned Magistrate has applied his mind

properly as is evident from the order passed by the learned

Magistrate on 29.6.2016 in Crl.M.P.No.2203/2015, which is

produced as Annexure A9 along with Crl.M.A.No.2/2022 by the

petitioner. By specifically referring to the order

mentioned above, it is contended by the learned counsel for

the 2nd respondent that, the learned Magistrate found that,

there are materials to proceed with the case for the

offence punishable under section 452 of the IPC and while

passing the said order, the learned Magistrate has taken

into consideration the contents of the refer report as

well. He places reliance upon Chinnaswamy and Others v. N.

Purushothaman and Another [2018(1) KLT 943], Nupur Talwar

v. Central Bureau of Investigation, Delhi and Another

[(2012)2 SCC 188] and B.Chandrika v. Santhosh and Another

[(2014) 13 SCC 699] to canvass the proposition that the

right to file a private complaint/protest complaint is a

legal remedy available to the petitioner, which cannot be

curtailed under any circumstances. It is contended that, if

the learned Magistrate was satisfied upon perusal of the

materials produced along with the said complaint as to a

prima facie case, there is no legal impediment in taking

cognizance of the offence and proceed with the same. In

such circumstances, the learned counsel for the 2nd

respondent seeks for dismissal of the Crl.M.C.

7. The specific case put forward by the learned

counsel for the petitioner is that, an exhaustive

investigation has been conducted by the police and all the

witnesses cited by the 2nd respondent herein were examined.

The opinion that the complaint of the 2nd respondent was

false, was expressed by the police after investigating all

the relevant materials. Since the aforesaid investigation

was conducted on the basis of a private complaint submitted

by the 2nd respondent, which was referred for investigation

under section 156(3) of Cr.P.C, the conclusions arrived at

by the police after conducting investigation thereon could

not have been discarded by the learned Magistrate while

taking cognizance on the second complaint submitted by the

2nd respondent. As mentioned above, he places reliance upon

the judgment in Parameswaran Nair's case (supra) and

contends that in Annexure A6 private complaint, he could

not point out specifically, any manifest error or manifest

miscarriage of justice in the previous order nor he could

produce any new materials which were not available with the

police.

8. This Court in Parameswaran Nair's case (supra)

considered the manner in which the final report submitted

by the police under Section 173(2) of Cr.PC referring the

complaint as false, is to be treated and framed guidelines

for further proceedings to be taken thereon. After

elaborately discussing the various precedents on the point,

the legal proposition in that regard were summed up in

paragraph 17 of the said judgment as follows:

"17. The well settled legal propositions can be summed up as follows:

(1) When a final report is made by an officer of the Police Station under sub- section 2 of S.173 of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process.

(2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report.

(3) Magistrate can direct further investigation under sub-section 3 of S.156.

(4) Magistrate can take cognizance on the final report itself under S.190(1)(b) disregarding the opinion of the Police and issue summons.

(5) Magistrate can take cognizance on the original complaint, where investigation under sub-section 3 of S.156 was earlier

ordered and record the statement of the complainant and the witnesses as provided under S.200 and can conduct an inquiry, In that inquiry Magistrate can direct investigation by a Police officer or such other officer as provided under S.202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued.

(6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second complaint it will lie only if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with due diligence could not have brought forward in the previous proceedings."

Going by the legal propositions laid down by this Court in

the said judgment it can be seen that the learned

Magistrate is not bound by the opinion of the investigating

officer and he can discard the report, if he is satisfied

that there are sufficient materials to proceed further. In

such circumstances, the learned Magistrate can take

cognizance of the offence and issue process. However, on

the other hand, if the learned Magistrate decides to accept

the report, he can drop the proceedings after granting

opportunity to the complainant. When notice is received,

the complainant can raise his contentions before the

learned Magistrate as to why the police report shall not be

accepted. Upon considering those objections, the learned

Magistrate can either accept the said objections and take

cognizance of the same on the basis of the materials

produced through the final report of the police or conduct

an inquiry under Section 202 of the Cr.PC and it is also

competent for the Magistrate to direct further

investigation in the matter by invoking power under Section

156(3) of Cr.PC. It is also stated that, if the learned

Magistrate accepts the final report and drops the

proceedings, after considering the objections raised by the

de facto complainant, still the de facto complainant can

submit a second complaint and the said complaint can be

entertained by the Magistrate, if it is shown that there

was a manifest error or manifest miscarriage of justice in

the previous order or there is any exceptional

circumstances like new facts which the complainant had no

knowledge of or with the due diligence would not have

brought forward in the previous proceedings. A specific

guideline has been stipulated by this Court in Parameswaran

Nair's case (supra) as to the manner in which a final

report submitted by the police under Section 173(2) of the

Cr.PC referring the complaint as false to be dealt with.

9. The question that arises here is as to whether the

procedure adopted by the learned Magistrate in this case is

in tune with the legal proposition as laid down by this

Court as above. When we examine the aforesaid aspects, it

can be seen that the learned Magistrate, after receipt of

final report, issued notice to the 2nd respondent and

thereupon the 2nd respondent appeared and submitted

Annexure-A6 complaint before the learned Magistrate.

Considering the facts and circumstances, the aforesaid

complaint can be treated as an objection submitted by the

2nd respondent as to the opinion expressed by the police

after conducting the investigation. Annexure A9 is the

order passed by the learned Magistrate in the aforesaid

complaint. It is discernible that, even though summons was

ordered, the same was issued in Crl.M.P.No.220/2015 which

is Annexure A6 complaint submitted by the petitioner and it

is the subsequent complaint. The learned counsel for the

petitioner submitted that as the summons was issued on

Annexure A6 which is the subsequent complaint, it has to be

treated that the learned Magistrate has already accepted

the final report submitted by the police and hence in the

absence of any manifest error or manifest miscarriage of

justice, the same cannot be entertained. However, while

considering the aforesaid contention, the observations made

by this Court in Parameswaran Nair's case (supra) at

paragraph 18 become relevant which is as follows:

"18. When the Magistrate issue notice to the complainant on receipt of the final report and grants opportunity to the complainant to show why cognizance of the offence is to be taken and the complainant files a protest complaint, it is to be treated only as his objections to the final report, stating his reasons why the report cannot be accepted. If the Magistrate records his statement and that of the

witnesses and decides to take cognizance of the offence, after considering all the materials including the final report made by the Police under sub-section 2 of S.173, it is advisable for the Magistrate to record that the final report is not accepted and on the entire materials he is of the opinion that there is ground to proceed and issue summons under S.204 of Code of Criminal Procedure. But the fact that no specific order was recorded that final report is not accepted or fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by themselves are not fatal, if the records show that Magistrate has considered all the relevant materials and applied his mind. If after complying these procedures, an order not to take cognizance is passed by the Magistrate, then a second complaint will lie, only if there was any manifest error or manifest miscarriage of justice in the previous order or the complainant relies on new facts or materials which was not to his knowledge or with reasonable diligence could not have brought forward in the previous proceedings."

It is categorically observed by this Court that, merely

because of the reason that no specific order was recorded

to the effect that the final report is not accepted or that

the decision to take cognizance of the offence was recorded

in the protest complaint, it cannot be concluded that, the

final report was accepted by the learned Magistrate,

provided the order passed by the learned Magistrate

indicates that he has considered all the relevant materials

while passing the said order. Thus, the crucial question to

be considered is whether while passing the order taking

cognizance, the learned Magistrate has taken into

consideration the contents of the final report also. When

we consider Annexure A9 order passed in this case, it can

be seen that, even though it is stated that, the records

were perused, it is not clear as to whether an exercise of

consideration of the materials brought out in the final

report submitted by the police, was made or not. In such

circumstances, a specific conclusion as to whether the

learned Magistrate had accepted the final report and the

cognizance was taken on Annexure A6 complaint alone is not

very clear. Therefore, it cannot be concluded that the

procedure as contemplated under Parameswaran Nair's case

(supra) was followed by the learned Magistrate.

10. In such circumstances, I am of the view that

Annexure A9 order is to be set aside and the matter has to

be remanded back for fresh consideration by following the

procedure contemplated in Parameswaran Nair's case (supra).

11. In the result, by invoking the powers of this

Court under Section 482 Cr.PC I hereby set aside Annexure

A9 order passed by the Judicial First Class Magistrate

Court-II, Aluva in Crl.M.P.No.2203/2015 and the matter is

remanded back to the learned Magistrate for fresh

consideration of the issue in the light of the principles

laid down in Parameswaran Nair's case (supra). It is made

clear that, the learned Magistrate upon hearing the Public

Prosecutor and the 2nd respondent has to consider the

question as to whether Annexure A5 final report is to be

accepted or not. For the aforesaid purposes, Annexure-A6

complaint is treated as an objection to Annexure A5 final

report. If the learned Magistrate is satisfied that, the

final report is not acceptable and an inquiry is to be

conducted by himself, he is entitled to conduct such

inquiry in the original complaint under sections 202 Cr.PC

and he is also competent to order a further investigation

in the matter. If the learned Magistrate finds that there

are materials to proceed further, the summons can be

issued. If there are no grounds to proceed, he can dismiss

the complaint as well. It is made clear that, for

considering the question as to issuance of process, the

learned Magistrate has to consider the materials brought

out in the investigation and the averments in Annexure A6

complaint as well. Thereafter, a decision has to be taken

as to taking cognizance on original complaint or protest

complaint. It is made clear that, at the time of

consideration of the issue of taking cognizance, the

learned Magistrate need to hear the complainant as well as

the learned Public Prosecutor alone.

      With     the        above     observations,           this     Crl.MC        is

disposed of.                                                 Sd/-

                                              ZIYAD RAHMAN A.A.,JUDGE
pkk


                         APPENDIX OF CRL.MC 1459/2017

 PETITIONER'S EXHIBITS:

 ANNEXURE-A1               TRUE COPY OF THE FIR IN CRIME NO. 337/2014
                           OF BINANIPURAM POLICE STATION.

 ANNEXURE-A2               TRUE COPY OF THE CHARGE SHEET IN CC NO.

459/2015 OF THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - II, ALUVA.

ANNEXURE-A3 TRUE OF THE COMPLAINT IN CRL.M.P NO.

931/2014.

ANNEXURE-A4 TRUE COPY OF THE FIR LODGED IN CRIME NO.

422/2014 OF BINANIPURAM POLICE STATION.

ANNEXURE-A5 TRUE COPY OF THE FINAL REPORT IN CRIME 422/2014 OF BINANIPURAM POLICE STATION FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - II, ALUVA.

ANNEXURE-A6 TRUE COPY OF THE PROTEST COMPLAINT IN CRL.MP NO. 2203/2015 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, ALUVA.

ANNEXURE-A7 TRUE COPY OF THE STATEMENT DATED 08.2.2016.

ANNEXURE-A8 TRUE COPY OF THE ORDER ISSUING SUMMONS IN CC NO. 574/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II, ALUVA.