IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1634 of 2010()
1. BISHOP MAR THOMAS CHAKKIATH,AGED 72
... Petitioner
2. FR.ANTONY CHIRAPPANATH,AGED 66 YEARS,
Vs
1. STATE OF KEALA-REPRESENTED BY THE
... Respondent
2. SR.RAIASY ROSE,DAUGHTER OF VARKEY
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent :SRI.LIJI.J.VADAKEDOM
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/02/2011
O R D E R
THOMAS P JOSEPH, J.
----------------------------------------
Crl.M.C.Nos.1634 and 4885 of 2010
---------------------------------------
Dated this 03rd day of February, 2011
ORDER
Initially it started as a dispute regarding ownership and
administration of the St.Mary’s U.P School, Njarakkal (for short,
“the School”) with the Nuns of Little Flower C.M.C Convent on
the one side and some of the parishioners of St.Mary’s Catholic
Church,Njarakkal (for short, “the Church”) allegedly led or
guided by the parish priests and/or the Bishop as the nuns would
allege on the other side. Later, it snowballed into an incident on
25.01.2009. It is alleged that some of the parishioners either led
by the parish priests and/or instigated by the Bishop as the nuns
allege trespassed into the convent and poor home run by them
and assaulted some of the nuns and inmates of the poor home.
Information was given to the police regarding the alleged
incident based on which Njarakkal police registered Crime
No.139 of 2009 against 16 persons named in the first information
statement. Annexure-I (in Crl.M.C.No.1634 of 2010) is the FIR
registered for offences punishable under Secs.143, 147, 448, and
323 r/w Sec.149 of the Penal Code. It is not disputed before me,
the police after investigation submitted a final report against 18
Crl.M.C.Nos.1634 and 4885 of 2010
-: 2 :-
persons (including two more persons than mentioned in
Annexure-I, FIR) alleging offences punishable under Secs.143,
147, 148, 448 and 323 r/w Sec.149 of the Penal Code. While so,
one of the nuns who allegedly sustained injury (respondent No.2
herein) filed a private complaint in the court of learned Judicial
First Class Magistrate-I, Kochi on 01.01.2010 (Annexure-2 in
Crl.M.C.No.1634 of 2010) against 9 persons concerning the very
same incident and alleging that certain documents were forged
by some of the accused mentioned therein to make it appear that
ownership and management of the school was transferred by the
C.M.C Convent to the Church. Learned Magistrate conducted
inquiry under Sec.202 of the Code of Criminal Procedure (for
short, “the Code”), recorded the sworn statement of complainant
and two witnesses and marked certain documents. The affidavits
of three witnesses including CWs.1 and 2 whose sworn
statements were recorded, and another witness (who was not
examined) produced before the learned Magistrate in the course
of the inquiry were marked as Exts.C18, 19 and 24. Based on the
materials collected in the inquiry cognizance was taken against
16 persons for offences punishable under Secs.465, 452, 325,
354 and 120B r/w Sec.34 of the Penal Code. Accordingly,
Crl.M.C.Nos.1634 and 4885 of 2010
-: 3 :-
process was issued to the said 16 accused (who included 9
accused mentioned in the private complaint – Annexure-2).
Proceedings of the learned Magistrate pursuant to Annexure-2,
complaint is called in question by the accused in these
proceedings. Crl.M.C.No.1634 of 2010 is filed by accused Nos.8
and 9 while Crl.M.C.No.4885 of 2010 is filed by accused Nos.1 to
7 and 10 to 16. It is contended by learned Senior Advocate, Sri.
M.K.Damodaran appearing for petitioners/accused that the
procedure adopted by the learned Magistrate in taking
cognizance on the private complaint when a final report in
respect of the same incident was pending consideration is illegal.
Learned Magistrate could not have taken cognizance of the
offences against those accused referred to in final report in the
police case. It is also contended that issue of process to those
accused not mentioned in Annexure-2, complaint is without
jurisdiction. It is contended that cognizance was taken on
Annexure-2, private complaint without application of mind as is
revealed by the attending circumstances. Affidavits of witnesses
produced in the inquiry should not, and could not have been
treated as evidence. Though allegation of forgery is made with
respect to a document of the year 1971, that document or its
Crl.M.C.Nos.1634 and 4885 of 2010
-: 4 :-
admissible copy is not produced in the course of the inquiry. It
was illegal to admit for consideration photocopy of the
documents and even photocopy of the cover page of a magazine
and a judgment which appeared in a magazine. Reliance is
placed on the decision in Bhagwant Singh Vs. Commissioner
of Police and Ors. (1985 SCC 267) and Parameswaran Nair
Vs. Surendran (2009(1) KLT 794). In response, it is
contended by learned counsel, Dr.Koodallur M.J Cherian
appearing for complainant/respondent No.2 that learned
Magistrate has applied mind before taking cognizance and
issuing process to the accused whose involvement is revealed by
the materials collected in the inquiry under Sec.202 of the Code.
It is contended that affidavits produced in the inquiry are
admissible in evidence under Sec.296 of the said Code. Learned
counsel pointed out that what is produced is only the cover page
of a Magazine and a judgment of the Karnataka High Court
reported in the Magazine. According to the learned counsel there
is no reason why this court should interfere under Sec.482 of the
Code as if there is an abuse of the process of law or any injustice
is done in the matter. It is also contended by learned counsel that
speedy trial is a fundamental right guaranteed by the
Crl.M.C.Nos.1634 and 4885 of 2010
-: 5 :-
Constitution and that Sec.482 of the Code is subservient to
Articles 14, 19, 21 of the Constitution. Learned counsel has
placed reliance on the decisions in Gudalure M.J Cherian Vs.
Union of India (1995 Supplemental(3) SCC 387), Maneka
Gandhi Vs. Union of India (AIR 1978 SC 597), Hussainara
Khatoon Vs. Home Secretary, State of Kerala (AIR 1979 SC
1819).
2. I shall consider the question whether, when a final
report against 16 accused (who included persons against whom
process is issued based on the private complaint-Annexure-2) was
pending before the learned Magistrate, it was possible for the
learned Magistrate to take cognizance on the private complaint,
conduct inquiry under Sec. 202 of the Code and issue process to
the accused under Sec.204 of the said Code. Learned Magistrate
was asked to report whether cognizance was taken on the police
report. The successor-in-office of the learned Magistrate who
took cognizance on the private complaint has reported that on
perusal of records it is seen that no order has been passed in the
matter of taking cognizance on the final report in Crime No.139
of 2009 of Njarakkal Police Station (where final report is
submitted against 18 persons including the 16 persons referred
Crl.M.C.Nos.1634 and 4885 of 2010
-: 6 :-
in the FIR).
3. It is true that as reported by the learned Magistrate,
cognizance has not been taken or, no order has been passed in
that regard on the final report as above stated but, in the
meantime the second respondent preferred Annexure-2,
complaint, inquiry was conducted and process was issued to the
accused including those arrayed as accused in the final report in
Crime No.139 of 2009. The question is whether for the said
reason cognizance taken on Annexure-2, complaint, inquiry
conducted under Sec.202 of the Code and issue of process under
Sec.204 of the said Code could be said to be illegal. The decision
relied on by learned Senior Advocate Bhagwant Singh Vs.
Commissioner of Police and Ors. (supra) did not say that in
such situation cognizance taken on a private complaint is illegal.
That decision only said about options available to the Magistrate
on receipt of a final report under Sec.173(2) of the Code, such as
to take cognizance of the offences as per that report, refuse to do
so or order further investigation. The decision in Parameswaran
Nair Vs. Surendran (Supra) also cannot apply to the factual
situation in the present case. Learned Senior Advocate referred
to me clause 6 of paragraph 17 of that decision. That referred to
Crl.M.C.Nos.1634 and 4885 of 2010
-: 7 :-
a case where a complaint (which could only be treated as a
second complaint) is preferred in respect of the same incident
after a final report on the same incident is accepted and
proceedings are dropped with notice to the de facto complainant.
In such a situation cognizance on a second complaint in respect
of the same incident is possible only on fresh materials being
brought out as stated in the said decision. In the present case
final report filed by the police is not a refer report and is pending
consideration. There are sufficient indications in the Code that
even when a final report submitted by the police in respect of the
same incident is pending, it is possible to file a private complaint
in respect of the same incident. Sec.210 of the Code states that
when a case instituted otherwise than on a police report
(hereinafter referred as “complaint case”) is pending inquiry or
trial it is made to appear to the Magistrate that a police
investigation is in progress in respect of the same subject matter,
the Magistrate shall stay the proceedings (in the complaint case)
and call for a report on the matter from the police officer
investigating the case. Sub sec(2) states the procedure to be
followed when the police officer submits a final report under
Sec.173 of the Code. Thus, Sec.210 of the Code indicates that
Crl.M.C.Nos.1634 and 4885 of 2010
-: 8 :-
there could be a complaint case and a case instituted on a police
report in respect of the same subject matter. But what happens if
in such a situation the complaint case and police case are
materially different, contradictory and mutually exclusive and
hence a joint trial is not possible? This court had occasion to
consider that contingency in Mani Vs. Swaminathan (1986
KLT 170) and Peter Vs. Kurian (1994(1) KLT 17). The
Supreme Court considered that question in Pal Vs. State of
U.P. (2010(1) SCC 123). It is held that when the cases are
mutually exclusive or contradictory, and materially different, the
same are to be tried (by the same court) one after the other,
recording evidence in the cases separately and the same are to
be disposed of simultaneously ensuring that evidence recorded in
one case is not read in the other. Thus, reading the said decisions
and the implications under Sec.210 of the Code it leaves me in no
doubt that in respect of the same incident it is possible that there
could be a police case and a complaint case, either containing the
same allegations which permit a joint trial of the two cases or
which are mutually exclusive or contradictory and materially
different which require separate trial but simultaneous disposal.
Hence the contention that since the final report in Crime No.139
Crl.M.C.Nos.1634 and 4885 of 2010
-: 9 :-
of 2009 was pending and no order on cognizance is passed on it,
learned Magistrate could not have taken cognizance on the
private complaint, conduct inquiry under Sec.202 of the Code
and issue process to the accused cannot be accepted.
4. Then the next question is whether the learned
Magistrate could have issued process in the complaint case to
those accused not mentioned in Annexure-2, complaint but whose
involvement in the alleged incident is said to be revealed in the
evidence collected in the inquiry under Sec.202 of the Code.
Annexure-R2(a) in Crl.M.C.No.1634 of 2010 is the order of
learned Magistrate issuing process under Sec.204 of the Code to
16 accused including 9 accused mentioned in Annexure-2,
complaint. It is pointed out that names of the accused other than
mentioned in Annexure-2, complaint is referred to in the sworn
statement of respondent No.2, the de facto complainant as CW1.
It is submitted by learned Senior Advocate that no other witness
whose sworn statement was recorded by the learned Magistrate
has referred to the alleged involvement of the accused other than
mentioned in Annexure-2 complaint. Learned counsel for
respondent No.2 submits that there is reference to those accused
in the statement of CW3 as well.
Crl.M.C.Nos.1634 and 4885 of 2010
-: 10 :-
5. According to the learned Senior Advocate, process
could have been issued only to the accused mentioned in the
complaint but learned counsel for respondent No.2 maintained
that learned Magistrate is entitled to issue process to all persons
whose involvement in the offence is revealed by the materials
collected in the inquiry under Sec.202 of the Code. The
contentions require deeper consideration.
6. Sec.190 of the Code deals with the power of the
Magistrate to take cognizance of an offence (and not against the
offender) on receipt of a complaint, police report, upon other
information or upon his own knowledge which constitutes an
offence. When cognizance of the offence is taken on a private
complaint, the Magistrate proceeds to inquire into the matter
under Sec.200 or 202 of the Code if he finds that he has
jurisdiction to proceed in the matter (in the present case inquiry
under Sec.202 of the Code was conducted). In case the complaint
is not dismissed under Sec.203, and if in the opinion of the
Magistrate taking cognizance of the offence there is sufficient
ground to proceed, he has to issue process to the accused. It is
therefore clear that what the Magistrate does under Sec.190 of
the Code is taking cognizance of the offence and what he does
Crl.M.C.Nos.1634 and 4885 of 2010
-: 11 :-
under Sec.204 is issuing process to the offender based on the
materials collected in the inquiry. Learned Senior Advocate has
placed reliance on the decisions in Chandra Deo Vs. Prakash
Chandra (AIR 1963 SC 1430) and Nagawwa Vs. Veeranna
(AIR 1976 SC 1947) to support the view that process can be
issued only against the persons mentioned in the complaint. In
the latter decision it is observed in paragraph 4 that the scope of
inquiry is limited to ascertainment of the truth or falsehood of the
allegations made in the complaint and whether a prima facie case
is made out for the issue of process. In the former decision it is
held that the object behind inquiry under Sec.202 of the Code is
to enable the Magistrate to scrutinize carefully the allegations
made in the complaint with a view to prevent a person named
therein as accused from being called upon to face an obviously
frivolous complaint. But these decisions do not answer the
question involved in the present case.
7. It is held in Raghubans Dubey Vs. State of Bihar
(AIR 1967 SC 1107) thus:
“In our opinion, once cognizance has been
taken by the Magistrate, he takes cognizance of
an offence and not the offenders, once he takes
cognizance of an offence it is his duty to find out
Crl.M.C.Nos.1634 and 4885 of 2010
-: 12 :-who the offenders really are and onece he comes
to the conclusion that apart from the persons
sent up by the police some other persons are
involved, it is his duty to proceed against those
persons. The summoning of the additional
accused is part of the proceeding initiated by his
taking cognizance of an offence…”
The Supreme Court in the said decision not only enjoined upon
the Magistrates to find out, on taking cognizance who the
offenders really are, but also cast a duty upon them that once
they came to the conclusion that apart from the persons sent up
by the police some other persons are also involved, to proceed
against those persons also and that summoning such persons is
part of the proceeding initiated by their taking cognizance of the
offence. The said view was followed in Hareram Satpethy Vs.
Tikaram Aggrawala (AIR 1978 SC 1568) and Joginder
Singh Vs. State of Punjab (AIR 1979 SC 339) . A Division
Bench of the Delhi High Court in Jagadish Sahai Mathur Vs.
State (Delhi Admin) (1991 Crl.C.J.1069) has taken the view
that in the matter of power of the Magistrate to summon
additional accused, Sec.319 of the Code is not the only
repository. Summons to a co-accused can be issued under
Sec.190(1) of the Code as well. No doubt, those cases related to
Crl.M.C.Nos.1634 and 4885 of 2010
-: 13 :-
summoning of additional accused not sent up for trial by the
police in a report submitted under Sec.173(2) of the Code. But on
reading Secs.190, 200, 202 and 204 of the Code I do not find
reason to think that the power of the Magistrate to summon
additional accused whose involvement is revealed by the
materials on record is not available in a complaint case. There is
no reason why the said power shall not be exercised in relation to
an accused not mentioned in the complaint but whose
involvement is revealed in the evidence collected in the inquiry
under Secs.200 or 202 of the Code.
8. A situation can be illustrated as under:
`A’ who is not a witness to the incident files a complaint
before a Magistrate stating that `B’ assaulted `C’. In the inquiry
under Sec.202 of the Code, `C’ and a few other witnesses are
examined. They stated that ‘D’ also assaulted ‘C’ or materials
indicated that it was in furtherance of the common intention of
`B’ and `D’ that `B’ assaulted `C’. The Magistrate is satisfied from
the evidence that `D’ is also involved in the incident. Is the
Magistrate precluded from issuing process to `D’ for the reason
that his involvement is not mentioned in the complaint? I am not
inclined to think so. In Harihar Chakravarthy Vs. State of
Crl.M.C.Nos.1634 and 4885 of 2010
-: 14 :-
West Bengal (AIR 1954 SC 266) it is observed in paragraph 10
(though concerning framing of charge)
“We do not find even a word about this either in the
complaint or in the examination of the complainant…”
In Edward VS. Victor Samuel (2002(1) KLJ 101) this court
also made a similar observation (in the matter of framing charge)
that there should be material either in the complaint or in the
evidence.
9. In my view therefore, a Magistrate who takes
cognizance of an offence under Sec.190 of the Code is entitled to
find out in the inquiry under Sec.202 who the offenders really are
and to issue process to such offenders under Sec.204 of the
Code.
10. In my view Sec.319(1) of the Code could also be made
use of in such situation. Under the said provision if in the course
of `any inquiry into, or trial of an offence, it appears from the
evidence that any person, not being an accused has committed
any offence for which such person could be tried together with
the accused, the court may proceed against such persons for the
offence which he appears to have committed.’ Sec.319(1) of the
Code in my view does not give any indication that it does not
Crl.M.C.Nos.1634 and 4885 of 2010
-: 15 :-
apply to the pre-charge stage. It is now settled that collection of
materials under Secs.200 or 202 of the Code is “inquiry” . The
sworn statement recorded by the Magistrate under Secs.200 or
202 is “evidence” as understood in Sec.3 of the Indian Evidence
Act. (See Vasudevan Vs. State of Kerala (205(1) KLT 220).
In Narayanan Nambiar Vs. State of Kerala (1987 (1) KLT
871) it is held, referring to Sec.319 of the Code that `evidence’
takes in deposition of witness during inquiry or trial who was not
cross examined and re-examined and that, “so far as grounds to
proceed against him is concerned question was only between the
complainant and the Magistrate. The satisfaction required to
proceed against him is just like the one under Secs.204, 228 or
240. For the application of Secs.319, it is not necessary that the
`evidence’ must be one which is tested by cross examination (See
Rakesh Vs. State of Haryana (2001(3) KLT 70(SC) and
Saraba Reddy Vs. Puthur RamiReddy (2007(4) KLT 362
SC). The Supreme Court in Rakesh Vs. State of Haryana (AIR
2001 SC 2521) has also indicate the power of Magistrate to
implead additional accused on the strength of evidence collected
in the inquiry under Sec.200 of the Code. In paragraph 10, it is
stated that the evidence collected in the inquiry under Sec.200 of
Crl.M.C.Nos.1634 and 4885 of 2010
-: 16 :-
the Code cannot be tested by cross examination (and hence it
cannot be said that only evidence tested by cross examination
could be made use of for impleadment under Sec.319 of the
Code). Viewed in the above perspective, I am unable to accept
the contention of petitioners-accused that learned Magistrate
could not have issued process to those accused who are not
named in Annexure-2, complaint. But no doubt, in such situation
the Magistrate must be more cautious to ensure that there is no
false implication and somebody is not summoned under Sec.204
of the Code merely because a witness examined under Secs.200
of 202 of the Code mentioned his name also though the complaint
did not mention his involvement.
11. It is not disputed that CWs.1 to 3 whose sworn
statement learned Magistrate recorded, filed affidavits and the
affidavit of another witness (who was not examined in the
inquiry) was also received in evidence. Acceptance of the said
affidavits are sought to be supported by the learned counsel for
respondent No.2 relying on Sec.296 of the Code. That provision
says that evidence of ‘formal character’ can be let in by affidavit.
But, I am not persuaded to think that an `inquiry’ under Sec.202
of the Code is a matter of formal character as understood in
Crl.M.C.Nos.1634 and 4885 of 2010
-: 17 :-
Sec.296 of the Code. I must also bear in mind that reading Secs.1
and 3 of the Evidence Act, ‘affidavit’ is not evidence as
understood in Sec.3 of the said Act. Support for that view can be
had from Rupikabai Vs. Narayan Govinda Samarth & Ors.
(AIR 1953 Nagpur 135). I must bear in mind that a departure
is made in Sec.296 of the Code and in Sec.138 of the Negotiable
Instruments Act (for short, “the Act”) where there is a specific
provision (Sec.145) that evidence of the complainant can be
taken by affidavit and in that situation it is possible to say that
instead of recording sworn statement of the complainant it is
sufficient to produce his affidavit which could be used as
evidence. Even that provision only relates to the evidence of the
complainant and not the witness. Moreover, Sec.200 of the Code
also says that while conducting the inquiry substance of
examination of the complainant and witnesses on oath shall be
reduced in writing and be signed by the complainant/witnesses
and also by the Magistrate. If that be so, there is no scope for
inquiry under Secs.200 and 202 of the Code receiving affidavits
(except where it is specifically permitted). Learned Magistrate
therefore was wrong in accepting affidavits of CWs.1 to 3 (whose
statement I am told has already been recorded) and the affidavit
Crl.M.C.Nos.1634 and 4885 of 2010
-: 18 :-
of another witness (who was not examined). Such a procedure is
not contemplated under Secs.200 and 202 of the Code and hence
those materials cannot be looked into in the matter of issuing
process to the accused persons.
12. Yet another argument advanced is whether photocopy
of documents and photocopy of the photo from the magazine or
photocopy of judgment which appeared in a magazine could have
been admitted in evidence. Indisputably photocopy is secondary
evidence (See Sec.63 of the Evidence Act) and secondary
evidence could be admitted when primary evidence is not
available. A copy made from the original by mechanical process
can be treated as secondary evidence which in itself insure
accuracy of the copy. Without insuring such accuracy and without
complying with Sec.65 of the Evidence Act, such photocopies
could not have been received in evidence.
13. It is also argued that it is without the document
allegedly forged or its admissible copy on record that learned
Magistrate merely on the statement of witnesses issued process
to the accused for the offence under Sec.465 of the Penal Code.
In view of the order I propose to pass in these petitions. I leave
that matter to be decided by the learned magistrate.
Crl.M.C.Nos.1634 and 4885 of 2010
-: 19 :-
14. I found that materials which were not admissible have
been admitted in evidence by the learned Magistrate. I have gone
through Annexure-R2(a), order in Crl.M.C.No.1634 of 2010
whereby learned Magistrate has issued process to 16 persons
referred to therein. Learned Magistrate has only mentioned that
“on consideration of the materials on record I am of the view that
there are sufficient ground to proceed against the accused
persons in the complaint herein as well as the persons named by
the complainant in the statement” for offences mentioned
thereunder. Obviously, the materials which learned Magistrate
has taken into consideration include those materials which I
found, are not admissible in evidence and could not have been
looked into. But, I make it clear that so far as the affidavit given
by the witness whose statement was not recorded by the learned
Magistrate is concerned, it is open to the second
respondent/complainant to examine that witness before the
learned Magistrate under Sec.202 of the Code and record the
sworn statement of that witness as well. It is also open to the
second respondent to produce the relevant admissible documents
in the inquiry.
Crl.M.C.Nos.1634 and 4885 of 2010
-: 20 :-
15. In the light of what I have stated above, the
contention that since the final report regarding the same incident
was pending and no order in the matter of cognizance was
passed cognizance taken on the private complaint is illegal and
that learned Magistrate could not have issued process to those
accused not mentioned in the complaint, cannot be accepted.
But it is for the Magistrate to decide whether there are sufficient
materials to proceed against such accused also. But since
inadmissible materials have been admitted in evidence and
process is issued based on such materials also, I am inclined to
interfere with the order dated 06.03.2010 on C.M.P.No.22 of
2010 and remit the complaint to the learned Magistrate for
further inquiry if any and pass appropriate orders in the matter
afresh.
Resultantly these criminal miscellaneous cases are allowed in
part in the following lines:
Annexure-R2(a), order in Crl.M.C.No.1634 of 2010
(Annexure-3, order in Crl.M.C.No.4885 of 2010) dated
March 6, 2010 in C.M.P.No.22 of 2010 of the court of
learned Judicial First Class Magistrate-I, Kochi) and all
proceedings pursuant to the said order are set aside and
C.M.P.No.22 of 2010 is remitted to the court of learned
Judicial First Class Magistrate-I, Kochi for further inquiry
Crl.M.C.Nos.1634 and 4885 of 2010
-: 21 :-and decision in the light of the observations made above
after giving second respondent opportunity to adduce fresh
materials if any. I make it clear that I have not expressed
any opinion on the merit or otherwise of the case. I also
make it clear that if the second respondent/de facto
complainant wants to examine any other witness it is open
to the second respondent to do so as provided under law.
Learned Magistrate shall pass appropriate orders as
provided under law in the matter of issue of process.
Learned Magistrate is also directed to pass appropriate
orders in the matter of cognizance on the final report in
Crime No.139 of 2009. Second respondent shall appear
before the learned JFM-I, Kochi on February 26. 2011.
(THOMAS P JOSEPH, JUDGE)
Sbna/-