ANNIE JYOTHIS v. NONE

CRMC 4300/05-2-R1 BY PUBLIC PROSECUTOR SRI C.M. NAZAR BY ADV. SRI.P.B.ASOKAN FOR R2 TO R5 SMT.P.LATHA FOR R2 TO R5 SMT.A.C.ANITHA FOR R2 TO R5 SRI.SANU MATHEW FOR R2 TO R5 SRI.E.A.THANKAPPAN FOR R2 TO R5 SRI.R.VINU RAJ FOR R2 TO R5 SRI.P.J.UNNIKRISHNAN FOR R2 TO R5 PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A NO.15483/05 IN CRL.M.C.NO.4300/2005DISMISSED.23-5-2008.SD/- V.K.MOHANAN, JUDGE.//TRUE COPY// V.K.MOHANAN, J.----------------------------------------------CRL.M.C.N0.4300 OF 2005----------------------------------------------Dated, 23rd May , 2008.ORDER This Crl.M.C. is preferred by the widow, the complainant inAnnexure A1 complaint, aggrieved by Annexure A3 order of thecourt below by which the court declined the request of thepetitioner to send the complaint for investigation under section156(3) of Cr.P.C.2. The petitioner herein preferred a private complaint,C.M.P.No.2782/2005, a copy of which is produced along withthis Crl.M.C as Annexure A1 before the Judicial Magistrate of theFirst Class-II, Aluva under sections 190 and 200 of the Cr.P.C. forthe offences punishable under sections 302 read with Section201 and 34 of the Indian Penal Code. Annexure A1 is thecomplaint dated 26-9-2005. A perusal of Annexure A1complaint would show that the complainant got married toone Mr.Bigil Paul Kaliparambil Veedu. South Kalamassery,Development Plot P.O., on 20.6.2004 in accordance with theChristian religious rites and customs at St.Michel's Church, CRMC 4300/05:-2-:Kakkanadu. Accused Nos. 1 and 2 in the complaint are theparents of her husband. 3rd accused is the sister in law of thecomplainant and the 4th accused is her husband. Theallegation in brief as disclosed from Annexure A1 complaintis that, after the marriage the accused were harassing thecomplainant and they were demanding more wealth from thecomplainant's house towards dowry. It is also the case of thecomplainant that the accused always found sadistic pleasurein nagging the complainant's husband saying that he isimpotent and is incapable of consummating the marriage.According to the complainant, the harassment continued andthe same was reached in an unbearable and intolerable stageby December, 2004. On giving information about thesituation to her parents, she was taken back to her parentalhome. Subsequently, all of the accused assured thecomplainant that there will not be any problem in future andthat the complainant's husband will arrange a rented houseand that they will start separate residence. According to thecomplainant, on the basis of the said assurance, the CRMC 4300/05:-3-:complainant was brought back to the matrimonial home by herfather by the second week of December. According to thecomplainant, even thereafter, the harassment continueddemanding more money and according to the complainant, shewas threatened on several occasions. It is specifically statedin the complaint that her father, taking into account herwellbeing, purchased a property in the joint names of thecomplainant and her husband. The said incident made theaccused accelerating the harassment and the situation becamemore aggravated. It is also stated that the complainant washaving fond regards for the institution of marriage andtherefore she convinced her father that she would somehowmanage the situation at the matrimonial home. After muchpersuasion, the father of the complainant had taken back thecomplainant to her matrimonial home on 22-7-2005 andentrusted her to her husband. It is also stated in thecomplaint that she was assaulted in front of her father andthereafter also the complainant was continued to harass by theaccused. It is specifically stated that the complainant's CRMC 4300/05:-4-:husband had taken her back to her parental home and hadgone to his work. He had returned to the complainant'shouse after the work on the next day, i.e on 23-7-2005 andhad returned to his residence after some time. It is alsospecifically averred in the complaint that on 23-7-2005 at9.p.m., the husband of the complainant informed her overtelephone that accused Nos.3 and 4 were also in his houseand all the accused were compelling him to go out of hishouse. It is also stated that the complainant was later told byher husband that the harassment towards him continued thewhole night. It is also stated that on 24-7-2005 at about 9a.m., the husband of the complainant informed her that hewill soon be reached her parental house. In paragraph 12 ofthe complaint it is stated that on 24-7-2005 at 11.30. a.m aneighbour by name Antony told the complainant's father thata neighbour of the complainant's husband's residenceinformed him over telephone that the husband of thecomplainant is admitted in the hospital in a very seriouscondition. On getting such information, the complainant CRMC 4300/05:-5-:along with her relatives rushed to Ernakulam Medical CentreHospital, Palarivattom wherein he was admitted in theintensive care unit in a critical condition. According to thecomplainant, none of the relatives of the husband was in thehospital and no money was spent by any of the accused forthe treatment of her husband. In paragraph 13 of thecomplaint, it is specifically averred that the 4th accused whois a Sub Inspector in Kerala Police had influenced thehospital authorities and thereby restrained them from givingintimation regarding the incident and the factum of admissionof the husband of the complainant in hospital to the localpolice in time and thereby prevented them from collecting theevidence from the place of occurrence and circumstances ofthe incident. In the same paragraph it is averred thatcomplainant's husband became conscious on 1-8-2005 andthe complainant was allowed to talk to him on 2-8-2008. Atthat time the husband of the complainant told her that he hadnot consumed poison by himself and that a complaint has tobe preferred to the police. It is further stated in the CRMC 4300/05:-6-:complaint that the complainant or her father was not in acondition to prefer a complaint on 2-8-2005 as suggested byher husband. It is further stated in the complaint that thehusband of the complainant became unconscious again on 3-8-2005 and he continued in the unconscious condition thereafter and died on 7-8-2005 at about 8.30 p.m. It is furtherstated that the accused have removed the articles and allthe things and belongings of the husband of the complainantfrom his residence and the accused have changed the entirescene of the place of occurrence and tampered the evidence.The accused have not cared even to receive the dead body ofthe complainant's husband after postmortem in the Medicalcollege Hospital, Alappuzha. In paragraph 15 of the complaintit is stated that the entire subsequent acts of the accusedwere very suspicious and pointing towards their guiltyconsciousness. Accordingly, the Ist accused was admitted bythe other accused in the Sacred Heart Hospital, atPainkulam, Thodupuzha after the incident while the husbandof the complainant was in hospital. It is also stated that the CRMC 4300/05:-7-:accused who are claiming that the husband of the complainantconsumed poison is not disclosing the incident or its detailsto the complainant or to her relatives. The accused aregiving different explanations to others regarding the incident.According to the complainant, accused Nos. 2 to 4 havepurposefully admitted the Ist accused in mental hospital tocreate an impression that he is a mental patient with acalculated view to prevent disclosure of the real facts by him.In paragraph 17 it is further stated that the above said acts ofthe accused up to 24-7-2005 are offences punishable undersections 498A and 306 of IPC. It is further submitted thatthere are valid and strong circumstantial evidence to holdthat Bigil Paul had not consumed poison by himself and thatthe accused have forcibly administered poison to him andmurdered him. The accused had tampered some of thestrong material evidence and thereby to vanish evidence insupport of the adverse circumstances of the incident.Therefore according to the complainant, the act of the accusedamounts to offences punishable under sections 302 read with CRMC 4300/05:-8-:section 201 and 34 of the IPC. In paragraph 18 of thecomplaint, it has been stated that the incident took placewithin the limits of Kalamassery Police Station and the fatherof the complainant had preferred petitions on 8-8-2005 andalso on 28-8-2005. But the police had not taken any effectivemeasures due to the undue influence and pressure ofaccused persons. In paragraph 19, the relief is moulded inthe following words: “In the interest of justice it is just andnecessary to take this complaint into the file of thisHonourable Court and proceed against the accused or toforward the same to Kalamassery Police Station forinvestigation under section 156 of the Code of CriminalProcedure and prayed accordingly”. In the complaint itself, alist of certain witnesses and documents are shown. (emphasissupplied).3. Counsel for the petitioner submitted that AnnexureA1 complaint dated 26-9-2005 was filed on the same datewhich was numbered as CMP 2782/2005 and the same wasadjourned to 15-10-2005 on which date the sworn statement CRMC 4300/05:-9-:of the complainant was taken and it was again adjourned.According to the counsel for the petitioner, since the complaintwas not sent for investigation under section 156 (3), thecomplainant had preferred Annexure II petition on19/10/2005 which was adjourned to 4-11-2005 for hearing.Petitioner was heard on 4-11-2005 and the same wasadjourned for orders to 8-11-2005. Since the order was notready on 8-11-2005, the petition was again adjourned to 11-11-2005 and again adjourned to 14-11-2005 on which datethe order was passed in Annexure A2 petition. Annexure A3is the order dated 14-11-2005 in CMP 2999/2005. Accordingto the Magistrate, the request for entrusting investigationunder section 156(3) with the police cannot be entertainedsince the sworn statement of the complainant is alreadyrecorded and the complaint stands posted for further enquiryas the offence alleged is exclusively triable by court ofSession and therefore according to the Magistrate, statementsof the entire witnesses have to be recorded and the court hasto consider whether offences as alleged in the complaint are CRMC 4300/05:-10-:made out. It is also stated by the Magistrate that the courthad already decided to proceed under section 202(2) Cr.P.C.and the statement of the complainant is also recorded andnow the court cannot revert back and forward the complaintto police for investigation and call for report as specifiedunder section 202 (1) Cr.P.C. Another reason given by thecourt is that since the court had started the mandatoryeuquiry on the complaint as specified by proviso (a) toSection 202(1) Cr.P.C., by recording the statement of the defacto complainant, the court cannot give a go bye to theenquiry initiated or conducted under proviso (a) to Sec.202(1) Cr.P.C and forward the complaint to police forinvestigation. It is the above order challenged in this petitionand prays that Annexure II petition may be allowed.4. I have heard the counsel for the petitioner as well asthe respondent and also the learned public Prosecutor. 5. Counsel for the petitioner submits that going by thecomplaint, it can be seen that very serious offences which areexclusively triable by the Sessions court are alleged against CRMC 4300/05:-11-:the accused and the complainant will not be in a position toadduce evidence to substantiate the allegation especially theallegation under section 302 of IPC is involved. The counselsubmitted that considering the nature of the allegations andthe sad death of the husband of the complainant, aneffective police investigation is absolutely necessary,otherwise the allegation against the accused cannot beproved. It is pointed out by the counsel for the petitioner thatnormally, when a private complaint is filed before a court of law, thesame has to be referred for investigation under section 156(3) ofCr.P.C. No reason is inferable from the impugned order for notinvoking Section 156(3) Cr.P.C. It is also pointed out that thecomplainant was constrained to file Annexure II petition when theMagistrate has chosen to take the sworn statement of the complainantinstead of invoking Section 156(3) of Cr.P.C. Thus, according to thecounsel, the course adopted by the Magistrate in not referring thecomplaint for police investigation as envisaged under section 156(3) ofCr.P.C., is absolutely incorrect , illegal and irregular. CRMC 4300/05:-12-:6. Per contra, the learned counsel appearing for the respondents 2to 5 submitted that Annexure III order is perfectly legal and valid andAnnexure AII petition was filed only after recording the swornstatement of the complainant and therefore, the Magistrate cannotabandon the proceedings initiated under Chapter XV of the Cr.P.C. andto go into a stage under section 156(3) of Cr.P.C. Opposing the prayerof the petitioner, the learned counsel for the respondents submitted thatin every case of private complaint, Magistrate need not send the matterfor investigation under Section 156(3) Cr.P.C.. On the other hand,Magistrate can invoke Section 202 and if it is satisfied, cognizance canbe taken and can take further steps in the matter. In support of the abovecontention, the learned counsel placed reliance in the decision of theApex Court in Tula Ram and Others v. Kishore Singh {(1977) 4SCC459) and also the decision of this Court in Superintendent ofPolice, C.B.I. v. State of Kerala (2005(3) KLT 823). Therefore,according to the learned counsel for the respondents, the order of theMagistrate which challenged in this Crl.M.C. is absolutely correct andnot warranted the interference of this Court under section 482 of Cr.P.C. CRMC 4300/05:-13-:7. The learned Public Prosecutor submitted that AnnexureA2 petition was filed after recording of the sworn statement of thecomplainant and the prayer in the Crl.M.C. is to allow Annexure A2petition. Since the Magistrate has already adopted proceedings undersection 202, the same has to be completed in accordance with law and atthis stage, the Magistrate is not empowered to invoke Section 156(3) ofCr.P.C. and hence the prayer cannot be allowed. 8. Chapter XIV of Cr.P.C. which deals with conditions requisitefor initiation of proceedings. Section 190 of the Cr.P.C. is with respectto the cognizance of offences by a Magistrate. As per Sec.190, theMagistrate can take cognizance of any offence under three situations,namely:a) upon receiving a complaint of facts which constitute such offence;b) upon a police report of such facts;c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.9. The Apex Court in the decision reported in Tula Ram andOthers v. Kishore Singh {(1977) 4 SCC 459) has held as follows: CRMC 4300/05:-14-: “Sections 190 and 156(3) are mutually exclusiveand work in totally different spheres. A Magistratecan order investigation under Section 156(3) only atthe pre-cognizance stage, that is to say before takingcognizance under Sections 190, 200 and 204 andwhere a Magistrate decides to take cognizanceunder the provisions of Chapter 14 he is not entitledin law to order any investigation under Section 156(3) though in cases not falling within the proviso toSection 202 he can order an investigation by thepolice which would be in the nature of an enquiry ascontemplated by section 207 of the Code”. In the same decision, it is also held as follows: “Where a Magistrate orders investigation bythe police under Section 156(3) before takingcognizance and receives the report thereupon he canact on the report and discharge the accused orstraightaway issue process against the accused orapply his mind to the complaint filed before himand take action under Section 190”.10. This Court in the decision reported in Superintendent ofPolice, C.B.I. v. State of Kerala (2005(3) KLT 823) is of the opinionthat the fact that the Magistrate has got a discretion to forward acomplaint under section 156(3) does not mean that the complainant has aright or privilege to make a demand to refer the case to the police. Theoption to refer the complaint to the police for investigation under section156(3) before cognizance or under section 202(1) after cognizance, is to CRMC 4300/05:-15-:be exercised by the Magistrate. But that discretion has to exercised in ajudicious manner and not mechanically. It is also held that the prayerin the complaint must be to try the accused and to punish him in casehe is found guilty of any offence. So when the sole prayer in thecomplaint is to refer the same to police, the Magistrate shall approachthe matter with care and caution and insist for materials to show a primafacie case. In this case it is pertinent to note that both the prayers, asmentioned in the above decision have been incorporated in thecomplaint. On the other hand, the learned counsel for the petitionerinvited my attention to the decision of the Apex Court in DevarapalliLakshminarayana Reddy and Others v. V.Narayana Reddy andOthers (1976 SCC (Cri.) 380) . In paragraph 13 of the above decision,the Apex Court has held:“It is well settled that when a magistratereceives a complaint, he is not bound to takecognizance if the facts alleged in the complaint,disclose the commission of an offence. This isclear from the use of the words “may takecognizance” which in the context in which theyoccur cannot be equated with “must takecognizance”. The word “may” gives a discretion tothe magistrate in the matter. If on a reading of thecomplaint he finds that the allegations thereindisclose a cognizable offence and the forwarding CRMC 4300/05:-16-:of the complaint to the police for investigationunder Section 156(3) will be conducive to justiceand save the valuable time of the magistrate frombeing wasted in enquiring into a matter which wasprimarily the duty of the police to investigate, hewill be justified in adopting that course as analternative to taking cognizance of the offence,himself”.On the strength of the above principle laid down by the Apex Court, thecounsel submitted that in the present case also what expected from themagistrate is to refer the complaint for investigation under section 156(3) Cr.P.C. But instead of the above general course, the magistrate hadadopted Sec.202 enquiry for which no reason is assigned by theMagistrate. 11. I have gone through Annexure III order of the learnedMagistrate. Nothing stated so as to conclude that there is some reasonfor not resorting to the usual course of sending the complaint forinvestigation under section 156(3) of Cr.P.C. The learned counsel forthe respondent submitted that based upon the averments and allegationscontained in the complaint, the learned Magistrate has decided to resortto section 202 enquiry for taking cognizance and therefore Annexure A2petition filed by the complainant is not maintainable and the Magistrate CRMC 4300/05:-17-:has no jurisdiction to go back from S.202 enquiry and to invoke S.156(3)of Cr.P.C.12. Going by Annexure A3 order it can be seen that theMagistrate is of the opinion that he has no jurisdiction or authority togo back from the enquiry or the proceedings prescribed vide ChapterXV of the Code since the Magistrate had opted not to invoke S.156 (3)but to proceed under the provisions of Chapter XV of the Code. Theabove approach of the learned Magistrate seems to be incorrect,irregular and illegal. The discretion, as pointed out by this Court in thedecision cited supra and also the Supreme Court, has to be exercisedwhen the Magistrate receives a complaint under Sec.190 of Cr.P.C. ThisCourt in the above decision has held that that discretion must beexercised in a judicious manner. Considering the facts andcircumstances involved in the case which was borne out on a perusal ofAnnexure A1 complaint, it can be seen that the allegation against theaccused is that they have committed murder of the husband of thecomplainant by administering poison and according to the complainantthere is no direct evidence to substantiate the allegations if theallegations are true. The learned Magistrate failed to take note of the CRMC 4300/05:-18-:above aspect. At the time of exercising the discretion, the Magistrateought to have borne in mind that the proviso to subsection(1) of Section202 of Cr.P.C. which says that no such direction for investigationshall be made where it appears to the Magistrate that the offencecomplained of is triable exclusively by the Court of Session. In thelight of the facts and circumstances and the allegations contained inAnnexure A1 complaint, it can be seen that the offences are exclusivelytriable by Court of Session. So unless there is an effective investigationat the instance of the police, if it is true, the allegation cannot besubstantiated in the absence of police report. Therefore, considering theentire facts and circumstances involved in the case, I am of the viewthat the Magistrate ought to have referred the complaint forinvestigation under section 156 (3) of Cr.P.C.13. The reason given by the learned Magistrate to reject AnnexureA2 application, is that he had already resorted to the proceedings undersection 202 in Chapter XV of the Code and he cannot go back andinvoke S.156(3), appears to be incorrect. When the Magistrate failed toexercise his judicial discretion and to invoke 156(3) of the Code andadopted the procedure under section 202 of Chapter XV, he cannot be CRMC 4300/05:-19-:heard to say that he cannot go back from the proceedings alreadyinitiated under the provisions of Chapter XV. As I have already foundthat the learned Magistrate failed in exercising his discretion andsending the complaint for investigation under section 156(3), it followsthat the consequent proceedings adopted by the court below is to be setaside and I do so.14. The learned counsel for respondents submitted that in casethe matter is being sent for investigation to the police, then a directionmay be issued to the police not to harass the respondents. I find noreason to presume that the police will be prejudicial to theaccused/respondents or they will harass them. Considering the factregarding the sad death of the husband of the petitioner/complainant, itis the duty of the police to find out the truth connected with theallegation and to book the culprits if any for the cause of the death ofthe complainant’s husband. I am of the firm belief that the police willconduct an impartial investigation and to bring out the truth and to bookthe culprit, if any, and place them before the court of law.15. In the result, all proceedings under Section 202 of Cr.P.C.upon Annexure-I complaint and A3 order are set aside and the Judicial CRMC 4300/05:-20-:First Class Magistrate is directed to forward Annexure A1 complaint forinvestigation under section 156(3) Cr.P.C through the concerned policestation. Accordingly, the Crl.M.C. is allowed. No order as to costs.V.K.MOHANAN, JUDGE.kvm/- CRMC 4300/05:-21-:V.K.MOHANAN, J. No.... Judgment/OrderDated: