LOID JUDE MANAKKAT v. THE STATE OF KERALA

“C.R” C.T.RAVIKUMAR, J.----------------------------Crl.R.P.No.1112 of 2012----------------------------Dated 14th September, 2012ORDERThe revision petitioner was the petitioner in Crl.M.P.No.602of 2012 on the file of the Court of the Judicial First Class Magistrate-II,Cherthala. Whether culpability could be attributed on the InvestigatingOfficer and the officer who laid the final report, in a petition forwardedfor investigation under section 156(3) of the Code of CriminalProcedure, on the ground of non-filing of a complaint against thedefacto complainant for giving false evidence and also for misusing theirofficiality as public servants, in case, the report under section173(2) Cr.P.C. on such complaint is a closure report dubbing the caseas a mistake of fact? This question arises in the following factualmatrix:-The petitioner was arraigned as the first accused in Crime No.595 of 2010 of Aroor Police Station under sections 447, 506(1), 294(b)and 427 read with section 34 of the Indian Penal Code, virtuallyregistered at the instance of the second respondent herein. As a matterof fact, Annexure-V complaint filed by the second respondent hereinbefore the Court of the Judicial First Class Magistrate-II, Cherthala wasforwarded for investigation under section 156(3) Cr.P.C. and the Crl.R.P.No.1112/20122aforesaid crime was registered pursuant thereto. After completing theinvestigation Annexure-VII report viz., a closure report, was filed beforethe learned Magistrate stating that it is a false case. On obtaining thecopy of the said closure report Crl.M.P.No.602 of 2012 was filed by therevision petitioner herein mainly with the prayer to call the InvestigatingOfficer and the officer who submitted the final report in Crime No.595 of2010 of Aroor Police Station to report before the court as to the reasonswhy a complaint was not registered against the defacto complainant forgiving false evidence and misusing their official power conferred on themas public servants, before any order is passed on the final report. Afterconsidering the said application the learned Magistrate dismissed thatapplication as per the order dated 30.3.2012. This revision petition hasbeen filed in the said circumstances with the prayer to set aside theorder dated 30.3.2012 passed by the learned Magistrate inCrl.M.P.No.602 of 2012 in Crime No.595 of 2010 of Aroor Police Stationand further, to direct Aroor Police to proceed against the secondrespondent under sections 182 and 193 of the Indian Penal Code. 2. Admittedly, the second respondent herein was not made aparty, in Crl.M.P.No.602 of 2012 before the learned Magistrate. Thatapart, the prayer for direction to Aroor Police to proceed against thesecond respondent under sections 182 and 193 IPC was also not made Crl.R.P.No.1112/20123therein. That petition was seriously opposed by the State by filing adetailed counter affidavit. After hearing both sides the learnedMagistrate framed the point whether the prayer in the petition isallowable, for consideration.3. Admittedly, Crime No.595 of 2010 of Aroor Police Stationwas registered on receipt of the complaint filed by the second respondentbefore the Court of the Judicial First Class Magistrate-II, Cherthalaforwarded for investigation, under section 156(3) Cr.P.C. Aftercompleting the investigation in the above crime Annexure VII closurereport was filed under section 173 Cr.P.C. The learned Magistrate alsotook note of the fact that the second respondent, the defactocomplainant, was not made a party in Crl.M.P.No.602 of 2012 andobserved that the attempt on the part of the revision petitioner hereinwas to get some orders behind the back of the defacto complainant. Ifthe petition was bonafidely and genuinely made, he would have definitelyimpleaded the defacto complainant as a party to that application, it wasobserved. Such an observation was made, essentially, taking intoaccount the fact that the allegation in the complaint is to the effect thatthe police officers had failed to register crime against the defactocomplainant under sections 182 and 193 IPC. It was found by thelearned Magistrate that in order to attract section 182 IPC it is incumbent Crl.R.P.No.1112/20124on the complainant to specifically plead and prove the injury orannoyance caused to him. On perusing the averments in the petition thelearned Magistrate also found that a civil dispute was, then pendingbetween the revision petitioner herein and the second respondent herein.In this case, the respondents have registered the aforesaid crime againstthe revision petitioner herein and other co-accused, admittedly, pursuantto the receipt of the complaint forwarded for investigation under section156(3) Cr.P.C. by the learned Magistrate. The prayer of the revisionpetitioner in Crl.M.P.No.602 of 2012 moved before the learnedMagistrate, itself would reveal that the final report was not then,accepted by the learned Magistrate and the proceedings were also notthen dropped. There can be little doubt that, in terms of the position oflaw, the learned Magistrate was to issue notice to the informant/defactocomplainant and to afford him an opportunity of being heard at the timeof consideration of the refer report for the purpose of deciding whetherto accept the same. At any rate, no culpability can be attributed on theInvestigating Officer or the superior officer who filed the final report oncompletion of such investigation for the reason that after finding theallegations in the private complaint as false they had not registered acrime against the defacto complainant. No specific provision has beenbrought to my notice making it mandatory for such officers to register acrime against the informant in such circumstances and making them Crl.R.P.No.1112/20125liable for prosecution for such inaction. It is to be noted that the veryprayer of the revision petitioner is to call respondents 1 and 2 therein toreport the reasons as to why a complaint was not made against thedefacto complainant for giving false evidence and misusing the officialpower conferred on them as public servants, before any order is passedon the final report. There is no rationale behind the prayer thus made.There can be no doubt with respect to the position of law that a finalreport is not binding on the court and the court has to make a judicialdecision as to whether it should be accepted or not. That apart, I do notfind any reason to interfere with the finding of the learned Magistratethat the action on the part of respondents 1 and 2 therein in registeringa crime pursuant to an order passed by that court under section156(3) Cr.P.C. and commencing, continuing and completing theinvestigation thereon and then submitting a final report could not formthe basis for a complaint against them solely for the reason of not filing acomplaint against the defacto complainant, on referring the case as false.As rightly, held by the learned Magistrate, revision petitioner has nolocus standi to dictate the police to register a crime or to file a complaintagainst the defacto complainant. No provision of law has been broughtto my notice mandating that in such circumstances it is incumbent on theInvestigating Officer or the officer laying the final report (closure report)to file a complaint against the defacto complainant for giving false Crl.R.P.No.1112/20126evidence and misusing their official position as public servants. 4. The very prayer of the revision petitioner to call for suchreasons, before any order is passed on the final report cannot said to bemade without any purpose. In view of the decision of the Hon'ble ApexCourt in Bhagawant Singh v. Commissioner of Police (AIR 1985 SC1285) when a Magistrate gets a negative report he has to choosebetween one of the following four courses:-1. To accept the report and drop the proceedings.2. To direct further investigation to be made by the police.3. To investigate himself or refer for the investigation to bemade by another Magistrate under section 159 Cr.P.C.4. To take cognizance of the offence under section 200 as aprivate complaint which the materials are sufficient in hisopinion and if the complainant is prepared for thatcourse.The procedures to be adopted by a Magistrate when a final report whichhappens to be a refer report is made by an officer of a Police Stationunder Section 173(2) Cr.P.C. have been dealt with in detail by this Courtin the decision in Parameswaran Nair v. Surendran (2009 Crl.L.J.2762 (Ker.). No doubt, it is realising that such courses are open to thelearned Magistrate on receipt of a negative report that the revisionpetitioner sought for the specific prayer to call for such report carryingreasons for non-filing of a complaint or non-registration of a crime, Crl.R.P.No.1112/20127before any order is passed on the final report. In the circumstances, I donot find any impropriety in the observation made by the learnedMagistrate that the attempt on the part of the revision petitioner was toget some orders behind the back of the defacto complainant. In thiscontext, it is also to be noted that the revision petitioner who filedCrl.M.P.No.602 of 2012 without making the defacto complainant a partyto it filed this revision petition making the defacto complainant a party.While challenging the legality and sustainability of the order passed bythe learned Magistrate in Crl.M.P.No.602 of 2012 the revision petitionermade the defacto complainant a party viz., as the second respondent tothis revision petition but, sought for a prayer which is distinct and totallydifferent from the prayer that was made in Crl.M.P.No.602 of 2012 inCrime No.595 of 2010 of Aroor Police Station before the learnedMagistrate and upon which the impugned order dated 30.3.2012 waspassed. In this revision petition, the prayer made is for setting aside theimpugned order passed by the learned Magistrate in Crl.M.P.No.602 of2012 and for a further direction to the Aroor police to proceed againstthe second respondent under sections 182 and 193 IPC. The secondlimb of the prayer was conspicuously absent in Crl.M.P.No.602 of 2012.It is also pertinent to note that while challenging the order inCrl.M.P.No.602 of 2012 the revision petitioner has not made respondents1 and 2 in that Crl.M.P. as parties to this revision petition. At any rate, Crl.R.P.No.1112/20128the revision petitioner is not justified in making the prayer in this revisionpetition to direct the police to register a crime against the secondrespondent for offences under sections 182 and 193 IPC, especially whenthe learned Magistrate is to consider the refer report and to decide whichcourse that is open to choose/has to be chosen in the light of thedecision in Bhagawant Singh's case (supra). While considering thetenability of the said prayer made in this revision petition it is apposite torefer to Sections 182 and 193 of the Indian Penal Code and also Section195 Cr.P.C. Section 182 I.P.C. deals with the punishment for giving toany public servant any false information, with intent to cause publicservant to use his lawful power to the injury of another person andSection 193 I.P.C. deals with the punishment for giving false evidence inany stage of a judicial proceeding or for fabricating false evidence for thepurpose of being used in any stage of a judicial proceeding. True that aninvestigation directed by law preliminary to a proceeding before a Courtof Justice, is a stage of a judicial proceeding, though that investigationmay not take place before a Court of Justice under Explanation 2 toSection 193 I.P.C. The section makes only a positive act of giving falseinformation punishable and at any rate, the section does not require thataction must always be taken. An investigation directed by a Court ofJustice according to law, and conducted under the authority of a Court ofJustice, is a stage of a judicial proceeding, though that investigation may Crl.R.P.No.1112/20129not take place before a Court of Justice under Explanation 3 to Section193 I.P.C. Now, let us see Section 195 Cr.P.C. Section 195(1)(a)(i)reads thus:-“195. Prosecution for contempt of lawfulauthority of public servants, for offences againstpublic justice and for offences relating to documentsgiven in evidence.- (1) No Court shall take cognizance-(a)(i) of any offence punishable under sections 172 to 188(both inclusive) of the Indian Penal Code (45 of1860), or..............................except on the complaint in writing of the publicservant concerned or of some other public servant towhom he is administratively subordinate;”Section 195(1)(b)(i) reads thus:-“(b)(i) of any offence punishable under any of the followingsections of the Indian Penal Code (45 of 1860),namely, sections 193 to 196 (both inclusive), 199,200, 205 to 211 (both inclusive) and 228, when suchoffence is alleged to have been committed in, or inrelation to, any proceeding in any Court, or........................except on the complaint in writing of that Court or bysuch officer of the Court as that Court may authorisein writing in this behalf, or of some other Court towhich that Court is subordinate.” Crl.R.P.No.1112/201210The object of the specific provisions under Section 195 Cr.P.C. is toprotect persons from being unnecessarily harassed by vexatiousprosecution in retaliation. A perusal of the section would make itabundantly clear that the right to prosecute in cases falling under Section182 I.P.C. which covered by Section 195 Cr.P.C. is vested only in publicservant concerned or of some other public servant to whom he isadministratively subordinate. Cognizance could be taken by theMagistrate in such case/cases covered by Section 195(1)(a)(i) only on aformal complaint in writing duly presented by a public servant or hissuperior and not in otherwise. So also a perusal of Section 195(1)(b)(i)would reveal that it limits the power of taking cognizance under Section190 Cr.P.C., only on a complaint in writing by the court mentionedtherein or by such officer of the court as that court may authorise inwriting in that behalf or some other court to which that court issubordinate. In short, it is to be safely concluded that it is for the publicservant concerned or for the public servant to which he is subordinatewho is authorised to make a complaint if he is of the opinion that acomplaint is to be filed. So also, the right to prosecute for offencesfalling under Section 193 I.P.C. covered by Section 195(1)(b)(i) Cr.P.C.is with the concerned court or under its authorisation in writing in thatbehalf by such officer of that court or with some other court to whichthat court is subordinate. In short, I have no hesitation to hold that in Crl.R.P.No.1112/201211such cases covered by the bar of Section 195 Cr.P.C. there is absolutelyno scope for filing a private complaint. The embargo in Section195 Cr.P.C. takes away the right to prosecute in respect of the aforesaidoffences by way of filing a private complaint. That be so, what cannot bedone directly cannot be done or permitted to be done indirectly. Goingby Section 195 Cr.P.C. no court shall take cognizance except in themanner contemplated by Section 195 Cr.P.C. and consequently, nojurisdiction to refer the case under Section 156(3) Cr.P.C. to the policefor investigation or to issue a direction to proceed under the aforesaidsections to the police on a private person's complaint. In view of theforgoing reasons I do not find any error, illegality or improprietywarranting interference in exercise of the revisional jurisdiction. Thepetitioner is not entitled to the reliefs sought for. This revision petition is liable to fail and accordingly, it isdismissed. Sd/- C.T.RAVIKUMAR JudgeTKS