{"id":77649,"date":"2011-02-03T00:00:00","date_gmt":"2011-02-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bishop-mar-thomas-chakkiath-vs-state-of-keala-represented-by-the-on-3-february-2011"},"modified":"2015-04-25T12:56:08","modified_gmt":"2015-04-25T07:26:08","slug":"bishop-mar-thomas-chakkiath-vs-state-of-keala-represented-by-the-on-3-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bishop-mar-thomas-chakkiath-vs-state-of-keala-represented-by-the-on-3-february-2011","title":{"rendered":"Bishop Mar Thomas Chakkiath vs State Of Keala-Represented By The on 3 February, 2011"},"content":{"rendered":"
Kerala High Court<\/div>\n
Bishop Mar Thomas Chakkiath vs State Of Keala-Represented By The on 3 February, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.MC.No. 1634 of 2010()\n\n\n1. BISHOP MAR THOMAS CHAKKIATH,AGED 72\n                      ...  Petitioner\n2. FR.ANTONY CHIRAPPANATH,AGED 66 YEARS,\n\n                        Vs\n\n\n\n1. STATE OF KEALA-REPRESENTED BY THE\n                       ...       Respondent\n\n2. SR.RAIASY ROSE,DAUGHTER OF VARKEY\n\n                For Petitioner  :SRI.M.K.DAMODARAN (SR.)\n\n                For Respondent  :SRI.LIJI.J.VADAKEDOM\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :03\/02\/2011\n\n O R D E R\n                  THOMAS P JOSEPH, J.\n\n                 ----------------------------------------\n\n             Crl.M.C.Nos.1634 and 4885 of 2010\n\n                  ---------------------------------------\n\n             Dated this 03rd day of February, 2011\n\n                               ORDER\n<\/pre>\n
     Initially it started as a dispute regarding ownership and<\/p>\n
administration of the St.Mary’s U.P School, Njarakkal (for short,<\/p>\n
“the School”) with the Nuns of Little Flower C.M.C Convent on<\/p>\n
the one side and some of the parishioners of St.Mary’s Catholic<\/p>\n
Church,Njarakkal (for short, “the Church”) allegedly led or<\/p>\n
guided by the parish priests and\/or the Bishop as the nuns would<\/p>\n
allege on the other side. Later, it snowballed into an incident on<\/p>\n
25.01.2009. It is alleged that some of the parishioners either led<\/p>\n
by the parish priests and\/or instigated by the Bishop as the nuns<\/p>\n
allege trespassed into the convent and poor home run by them<\/p>\n
and assaulted some of the nuns and inmates of the poor home.<\/p>\n
Information was given to the police regarding the alleged<\/p>\n
incident based on which Njarakkal police registered Crime<\/p>\n
No.139 of 2009 against 16 persons named in the first information<\/p>\n
statement. Annexure-I (in Crl.M.C.No.1634 of 2010) is the FIR<\/p>\n
registered for offences punishable under Secs.143, 147, 448, and<\/p>\n
323 r\/w Sec.149 of the Penal Code. It is not disputed before me,<\/p>\n
the police after investigation submitted a final report against 18<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 2 :-<\/span><\/p>\n
persons (including two more persons than mentioned in<\/p>\n
Annexure-I, FIR) alleging offences punishable under Secs.143,<\/p>\n
147, 148, 448 and 323 r\/w Sec.149 of the Penal Code. While so,<\/p>\n
one of the nuns who allegedly sustained injury (respondent No.2<\/p>\n
herein) filed a private complaint in the court of learned Judicial<\/p>\n
First Class Magistrate-I, Kochi on 01.01.2010 (Annexure-2 in<\/p>\n
Crl.M.C.No.1634 of 2010) against 9 persons concerning the very<\/p>\n
same incident and alleging that certain documents were forged<\/p>\n
by some of the accused mentioned therein to make it appear that<\/p>\n
ownership and management of the school was transferred by the<\/p>\n
C.M.C Convent to the Church. Learned Magistrate conducted<\/p>\n
inquiry under Sec.202 of the Code of Criminal Procedure (for<\/p>\n
short, “the Code”), recorded the sworn statement of complainant<\/p>\n
and two witnesses and marked certain documents. The affidavits<\/p>\n
of three witnesses including CWs.1 and 2 whose sworn<\/p>\n
statements were recorded, and another witness (who was not<\/p>\n
examined) produced before the learned Magistrate in the course<\/p>\n
of the inquiry were marked as Exts.C18, 19 and 24. Based on the<\/p>\n
materials collected in the inquiry cognizance was taken against<\/p>\n
16 persons for offences punishable under Secs.465, 452, 325,<\/p>\n
354 and 120B r\/w Sec.34 of the Penal Code.           Accordingly,<\/p>\n
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\n                                  -: 3 :-<\/span><\/p>\n
process was issued to the said 16 accused (who included 9<\/p>\n
accused mentioned in the private complaint – Annexure-2).<\/p>\n
Proceedings of the learned Magistrate pursuant to Annexure-2,<\/p>\n
complaint is called in question by the accused in these<\/p>\n
proceedings. Crl.M.C.No.1634 of 2010 is filed by accused Nos.8<\/p>\n
and 9 while Crl.M.C.No.4885 of 2010 is filed by accused Nos.1 to<\/p>\n
7 and 10 to 16. It is contended by learned Senior Advocate, Sri.<\/p>\n
M.K.Damodaran appearing for petitioners\/accused that the<\/p>\n
procedure adopted by the learned Magistrate in taking<\/p>\n
cognizance on the private complaint when a final report in<\/p>\n
respect of the same incident was pending consideration is illegal.<\/p>\n
Learned Magistrate could not have taken cognizance of the<\/p>\n
offences against those accused referred to in final report in the<\/p>\n
police case. It is also contended that issue of process to those<\/p>\n
accused not mentioned in Annexure-2, complaint is without<\/p>\n
jurisdiction.    It is contended that cognizance was taken on<\/p>\n
Annexure-2, private complaint without application of mind as is<\/p>\n
revealed by the attending circumstances. Affidavits of witnesses<\/p>\n
produced in the inquiry should not, and could not have been<\/p>\n
treated as evidence. Though allegation of forgery is made with<\/p>\n
respect to a document of the year 1971, that document or its<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 4 :-<\/span><\/p>\n
admissible copy is not produced in the course of the inquiry. It<\/p>\n
was illegal to admit for consideration photocopy of the<\/p>\n
documents and even photocopy of the cover page of a magazine<\/p>\n
and a judgment which appeared in a magazine.        Reliance     is<\/p>\n
placed on the decision in Bhagwant Singh Vs. Commissioner<\/p>\n
of Police and Ors. (1985 SCC 267) and Parameswaran Nair<\/p>\n
Vs. Surendran (2009(1) KLT 794).               In response, it is<\/p>\n
contended by learned counsel, Dr.Koodallur M.J Cherian<\/p>\n
appearing     for    complainant\/respondent  No.2    that  learned<\/p>\n
Magistrate has applied mind before taking cognizance and<\/p>\n
issuing process to the accused whose involvement is revealed by<\/p>\n
the materials collected in the inquiry under Sec.202 of the Code.<\/p>\n
It is contended that affidavits produced in the inquiry are<\/p>\n
admissible in evidence under Sec.296 of the said Code. Learned<\/p>\n
counsel pointed out that what is produced is only the cover page<\/p>\n
of a Magazine and a judgment of the Karnataka High Court<\/p>\n
reported in the Magazine. According to the learned counsel there<\/p>\n
is no reason why this court should interfere under Sec.482 of the<\/p>\n
Code as if there is an abuse of the process of law or any injustice<\/p>\n
is done in the matter. It is also contended by learned counsel that<\/p>\n
speedy trial is a fundamental right guaranteed by the<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 5 :-<\/span><\/p>\n
Constitution and that Sec.482 of the Code is subservient to<\/p>\n
Articles 14, 19, 21 of the Constitution. Learned counsel has<\/p>\n
placed reliance on the decisions in Gudalure M.J Cherian Vs.<\/p>\n
Union of India (1995 Supplemental(3) SCC 387), Maneka<\/p>\n
Gandhi Vs. Union of India (AIR 1978 SC 597), Hussainara<\/p>\n
Khatoon Vs. Home Secretary, State of Kerala (AIR 1979 SC<\/p>\n
1819).\n<\/p>\n
      2.    I shall consider the question whether, when a final<\/p>\n
report against 16 accused (who included persons against whom<\/p>\n
process is issued based on the private complaint-Annexure-2) was<\/p>\n
pending before the learned Magistrate, it was possible for the<\/p>\n
learned Magistrate to take cognizance on the private complaint,<\/p>\n
conduct inquiry under Sec. 202 of the Code and issue process to<\/p>\n
the accused under Sec.204 of the said Code. Learned Magistrate<\/p>\n
was asked to report whether cognizance was taken on the police<\/p>\n
report. The successor-in-office of the learned Magistrate who<\/p>\n
took cognizance on the private complaint has reported that on<\/p>\n
perusal of records it is seen that no order has been passed in the<\/p>\n
matter of taking cognizance on the final report in Crime No.139<\/p>\n
of 2009 of Njarakkal Police Station (where final report is<\/p>\n
submitted against 18 persons including the 16 persons referred<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 6 :-<\/span><\/p>\n
in the FIR).\n<\/p>\n
      3.    It is true that as reported by the learned Magistrate,<\/p>\n
cognizance has not been taken or, no order has been passed in<\/p>\n
that regard on the final report as above stated but, in the<\/p>\n
meantime      the    second     respondent preferred  Annexure-2,<\/p>\n
complaint, inquiry was conducted and process was issued to the<\/p>\n
accused including those arrayed as accused in the final report in<\/p>\n
Crime No.139 of 2009. The question is whether for the said<\/p>\n
reason cognizance taken on Annexure-2, complaint, inquiry<\/p>\n
conducted under Sec.202 of the Code and issue of process under<\/p>\n
Sec.204 of the said Code could be said to be illegal. The decision<\/p>\n
relied on by learned Senior Advocate Bhagwant Singh Vs.<\/p>\n
Commissioner of Police and Ors. (supra) did not say that in<\/p>\n
such situation cognizance taken on a private complaint is illegal.<\/p>\n
That decision only said about options available to the Magistrate<\/p>\n
on receipt of a final report under Sec.173(2) of the Code, such as<\/p>\n
to take cognizance of the offences as per that report, refuse to do<\/p>\n
so or order further investigation. The decision in Parameswaran<\/p>\n
Nair Vs. Surendran (Supra) also cannot apply to the factual<\/p>\n
situation in the present case. Learned Senior Advocate referred<\/p>\n
to me clause 6 of paragraph 17 of that decision. That referred to<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 7 :-<\/span><\/p>\n
a case where a complaint (which could only be treated as a<\/p>\n
second complaint) is preferred in respect of the same incident<\/p>\n
after a final report on the same incident is accepted and<\/p>\n
proceedings are dropped with notice to the de facto complainant.<\/p>\n
In such a situation cognizance on a second complaint in respect<\/p>\n
of the same incident is possible only on fresh materials being<\/p>\n
brought out as stated in the said decision. In the present case<\/p>\n
final report filed by the police is not a refer report and is pending<\/p>\n
consideration. There are sufficient indications in the Code that<\/p>\n
even when a final report submitted by the police in respect of the<\/p>\n
same incident is pending, it is possible to file a private complaint<\/p>\n
in respect of the same incident. Sec.210 of the Code states that<\/p>\n
when a case instituted otherwise than on a police report<\/p>\n
(hereinafter referred as “complaint case”) is pending inquiry or<\/p>\n
trial it is made to appear to the Magistrate that a police<\/p>\n
investigation is in progress in respect of the same subject matter,<\/p>\n
the Magistrate shall stay the proceedings (in the complaint case)<\/p>\n
and call for a report on the matter from the police officer<\/p>\n
investigating the case. Sub sec(2) states the procedure to be<\/p>\n
followed when the police officer submits a final report under<\/p>\n
Sec.173 of the Code. Thus, Sec.210 of the Code indicates that<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 8 :-<\/span><\/p>\n
there could be a complaint case and a case instituted on a police<\/p>\n
report in respect of the same subject matter. But what happens if<\/p>\n
in such a situation the complaint case and police case are<\/p>\n
materially different, contradictory and mutually exclusive and<\/p>\n
hence a joint trial is not possible? This court had occasion to<\/p>\n
consider that contingency in Mani Vs. Swaminathan (1986<\/p>\n
KLT 170) and Peter Vs. Kurian (1994(1) KLT 17). The<\/p>\n
Supreme Court considered that question in Pal Vs. State of<\/p>\n
U.P. (2010(1) SCC 123). It is held that when the cases are<\/p>\n
mutually exclusive or contradictory, and materially different, the<\/p>\n
same are to be tried (by the same court) one after the other,<\/p>\n
recording evidence in the cases separately and the same are to<\/p>\n
be disposed of simultaneously ensuring that evidence recorded in<\/p>\n
one case is not read in the other. Thus, reading the said decisions<\/p>\n
and the implications under Sec.210 of the Code it leaves me in no<\/p>\n
doubt that in respect of the same incident it is possible that there<\/p>\n
could be a police case and a complaint case, either containing the<\/p>\n
same allegations which permit a joint trial of the two cases or<\/p>\n
which are mutually exclusive or contradictory and materially<\/p>\n
different which require separate trial but simultaneous disposal.<\/p>\n
Hence the contention that since the final report in Crime No.139<\/p>\n
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\n                                  -: 9 :-<\/span><\/p>\n
of 2009 was pending and no order on cognizance is passed on it,<\/p>\n
learned Magistrate could not have taken cognizance on the<\/p>\n
private complaint, conduct inquiry under Sec.202 of the Code<\/p>\n
and issue process to the accused cannot be accepted.<\/p>\n
      4.    Then the next question is whether the learned<\/p>\n
Magistrate could have issued process in the complaint case to<\/p>\n
those accused not mentioned in Annexure-2, complaint but whose<\/p>\n
involvement in the alleged incident is said to be revealed in the<\/p>\n
evidence collected in the inquiry under Sec.202 of the Code.<\/p>\n
Annexure-R2(a) in Crl.M.C.No.1634 of 2010 is the order of<\/p>\n
learned Magistrate issuing process under Sec.204 of the Code to<\/p>\n
16 accused including 9 accused mentioned in Annexure-2,<\/p>\n
complaint. It is pointed out that names of the accused other than<\/p>\n
mentioned in Annexure-2, complaint is referred to in the sworn<\/p>\n
statement of respondent No.2, the de facto complainant as CW1.<\/p>\n
It is submitted by learned Senior Advocate that no other witness<\/p>\n
whose sworn statement was recorded by the learned Magistrate<\/p>\n
has referred to the alleged involvement of the accused other than<\/p>\n
mentioned in Annexure-2 complaint. Learned counsel for<\/p>\n
respondent No.2 submits that there is reference to those accused<\/p>\n
in the statement of CW3 as well.\n<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 10 :-<\/span><\/p>\n
      5.    According to the learned Senior Advocate, process<\/p>\n
could have been issued only to the accused mentioned in the<\/p>\n
complaint but learned counsel for respondent No.2 maintained<\/p>\n
that learned Magistrate is entitled to issue process to all persons<\/p>\n
whose involvement in the offence is revealed by the materials<\/p>\n
collected in the inquiry under Sec.202 of the Code. The<\/p>\n
contentions require deeper consideration.\n<\/p>\n
      6.    Sec.190 of the Code deals with the power of the<\/p>\n
Magistrate to take cognizance of an offence (and not against the<\/p>\n
offender) on receipt of a complaint, police report, upon other<\/p>\n
information or upon his own knowledge which constitutes an<\/p>\n
offence. When cognizance of the offence is taken on a private<\/p>\n
complaint, the Magistrate proceeds to inquire into the matter<\/p>\n
under Sec.200 or 202 of the Code if he finds that he has<\/p>\n
jurisdiction to proceed in the matter (in the present case inquiry<\/p>\n
under Sec.202 of the Code was conducted). In case the complaint<\/p>\n
is not dismissed under Sec.203, and if in the opinion of the<\/p>\n
Magistrate taking cognizance of the offence there is sufficient<\/p>\n
ground to proceed, he has to issue process to the accused. It is<\/p>\n
therefore clear that what the Magistrate does under Sec.190 of<\/p>\n
the Code is taking cognizance of the offence and what he does<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 11 :-<\/span><\/p>\n
under Sec.204 is issuing process to the offender based on the<\/p>\n
materials collected in the inquiry. Learned Senior Advocate has<\/p>\n
placed reliance on the decisions in Chandra Deo Vs. Prakash<\/p>\n
Chandra (AIR 1963 SC 1430) and Nagawwa Vs. Veeranna<\/p>\n
(AIR 1976 SC 1947) to support the view that process can be<\/p>\n
issued only against the persons mentioned in the complaint. In<\/p>\n
the latter decision it is observed in paragraph 4 that the scope of<\/p>\n
inquiry is limited to ascertainment of the truth or falsehood of the<\/p>\n
allegations made in the complaint and whether a prima facie case<\/p>\n
is made out for the issue of process. In the former decision it is<\/p>\n
held that the object behind inquiry under Sec.202 of the Code is<\/p>\n
to enable the Magistrate to scrutinize carefully the allegations<\/p>\n
made in the complaint with a view to prevent a person named<\/p>\n
therein as accused from being called upon to face an obviously<\/p>\n
frivolous complaint. But these decisions do not answer the<\/p>\n
question involved in the present case.\n<\/p>\n
      7.     It is held in Raghubans Dubey Vs. State of Bihar<\/p>\n
(AIR 1967 SC 1107) thus:\n<\/p>\n
                  “In our opinion, once cognizance has been<\/p>\n
          taken by the Magistrate, he takes cognizance of<\/p>\n
          an offence and not the offenders, once he takes<\/p>\n
          cognizance of an offence it is his duty to find out<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 12 :-<\/span><\/p>\n
          who the offenders really are and onece he comes<\/p>\n
          to the conclusion that apart from the persons<\/p>\n
          sent up by the police some other persons are<\/p>\n
          involved, it is his duty to proceed against those<\/p>\n
          persons. The summoning of the additional<\/p>\n
          accused is part of the proceeding initiated by his<\/p>\n
          taking cognizance of an offence…”\n<\/p><\/blockquote>\n
The Supreme Court in the said decision not only enjoined upon<\/p>\n
the Magistrates to find out, on taking cognizance who the<\/p>\n
offenders really are, but also cast a duty upon them that once<\/p>\n
they came to the conclusion that apart from the persons sent up<\/p>\n
by the police some other persons are also involved, to proceed<\/p>\n
against those persons also and that summoning such persons is<\/p>\n
part of the proceeding initiated by their taking cognizance of the<\/p>\n
offence. The said view was followed in Hareram Satpethy Vs.<\/p>\n
Tikaram Aggrawala (AIR 1978 SC 1568) and Joginder<\/p>\n
Singh Vs. State of Punjab (AIR 1979 SC 339) . A Division<\/p>\n
Bench of the Delhi High Court in Jagadish Sahai Mathur Vs.<\/p>\n
State (Delhi Admin) (1991 Crl.C.J.1069) has taken the view<\/p>\n
that in the matter of power of the Magistrate to summon<\/p>\n
additional accused, Sec.319 of the Code is not the only<\/p>\n
repository. Summons to a co-accused can be issued under<\/p>\n
Sec.190(1) of the Code as well. No doubt, those cases related to<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 13 :-<\/span><\/p>\n
summoning of additional accused not sent up for trial by the<\/p>\n
police in a report submitted under Sec.173(2) of the Code. But on<\/p>\n
reading Secs.190, 200, 202 and 204 of the Code I do not find<\/p>\n
reason to think that the power of the Magistrate to summon<\/p>\n
additional accused whose involvement is revealed by the<\/p>\n
materials on record is not available in a complaint case. There is<\/p>\n
no reason why the said power shall not be exercised in relation to<\/p>\n
an accused not mentioned in the complaint but whose<\/p>\n
involvement is revealed in the evidence collected in the inquiry<\/p>\n
under Secs.200 or 202 of the Code.\n<\/p>\n
      8.    A situation can be illustrated as under:\n<\/p>\n
      `A’ who is not a witness to the incident files a complaint<\/p>\n
before a Magistrate stating that `B’ assaulted `C’. In the inquiry<\/p>\n
under Sec.202 of the Code, `C’ and a few other witnesses are<\/p>\n
examined. They stated that ‘D’ also assaulted ‘C’ or materials<\/p>\n
indicated that it was in furtherance of the common intention of<\/p>\n
`B’ and `D’ that `B’ assaulted `C’. The Magistrate is satisfied from<\/p>\n
the evidence that `D’ is also involved in the incident. Is the<\/p>\n
Magistrate precluded from issuing process to `D’ for the reason<\/p>\n
that his involvement is not mentioned in the complaint? I am not<\/p>\n
inclined to think so. In Harihar Chakravarthy Vs. State of<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 14 :-<\/span><\/p>\n
West Bengal (AIR 1954 SC 266) it is observed in paragraph 10<\/p>\n
(though concerning framing of charge)<\/p>\n
      “We do not find even a word about this either in the<\/p>\n
complaint or in the examination of the complainant…”<\/p>\n
In Edward VS. Victor Samuel (2002(1) KLJ 101) this court<\/p>\n
also made a similar observation (in the matter of framing charge)<\/p>\n
that there should be material either in the complaint or in the<\/p>\n
evidence.\n<\/p>\n
      9.    In my view therefore, a Magistrate who takes<\/p>\n
cognizance of an offence under Sec.190 of the Code is entitled to<\/p>\n
find out in the inquiry under Sec.202 who the offenders really are<\/p>\n
and to issue process to such offenders under Sec.204 of the<\/p>\n
Code.\n<\/p>\n
      10.   In my view Sec.319(1) of the Code could also be made<\/p>\n
use of in such situation. Under the said provision if in the course<\/p>\n
of `any inquiry into, or trial of an offence, it appears from the<\/p>\n
evidence that any person, not being an accused has committed<\/p>\n
any offence for which such person could be tried together with<\/p>\n
the accused, the court may proceed against such persons for the<\/p>\n
offence which he appears to have committed.’ Sec.319(1) of the<\/p>\n
Code in my view does not give any indication that it does not<\/p>\n
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\n                                  -: 15 :-<\/span><\/p>\n
apply to the pre-charge stage. It is now settled that collection of<\/p>\n
materials under Secs.200 or 202 of the Code is “inquiry” . The<\/p>\n
sworn statement recorded by the Magistrate under Secs.200 or<\/p>\n
202 is “evidence” as understood in Sec.3 of the Indian Evidence<\/p>\n
Act. (See Vasudevan Vs. State of Kerala (205(1) KLT 220).<\/p>\n
In Narayanan Nambiar Vs. State of Kerala (1987 (1) KLT<\/p>\n
871) it is held, referring to Sec.319 of the Code that `evidence’<\/p>\n
takes in deposition of witness during inquiry or trial who was not<\/p>\n
cross examined and re-examined and that, “so far as grounds to<\/p>\n
proceed against him is concerned question was only between the<\/p>\n
complainant and the Magistrate. The satisfaction required to<\/p>\n
proceed against him is just like the one under Secs.204, 228 or<\/p>\n
240. For the application of Secs.319, it is not necessary that the<\/p>\n
`evidence’ must be one which is tested by cross examination (See<\/p>\n
Rakesh Vs. State of Haryana (2001(3) KLT 70(SC) and<\/p>\n
Saraba Reddy Vs. Puthur RamiReddy (2007(4) KLT 362<\/p>\n
SC). The Supreme Court in Rakesh Vs. State of Haryana (AIR<\/p>\n
2001 SC 2521) has also indicate the power of Magistrate to<\/p>\n
implead additional accused on the strength of evidence collected<\/p>\n
in the inquiry under Sec.200 of the Code. In paragraph 10, it is<\/p>\n
stated that the evidence collected in the inquiry under Sec.200 of<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 16 :-<\/span><\/p>\n
the Code cannot be tested by cross examination (and hence it<\/p>\n
cannot be said that only evidence tested by cross examination<\/p>\n
could be made use of for impleadment under Sec.319 of the<\/p>\n
Code). Viewed in the above perspective, I am unable to accept<\/p>\n
the contention of petitioners-accused that learned Magistrate<\/p>\n
could not have issued process to those accused who are not<\/p>\n
named in Annexure-2, complaint. But no doubt, in such situation<\/p>\n
the Magistrate must be more cautious to ensure that there is no<\/p>\n
false implication and somebody is not summoned under Sec.204<\/p>\n
of the Code merely because a witness examined under Secs.200<\/p>\n
of 202 of the Code mentioned his name also though the complaint<\/p>\n
did not mention his involvement.\n<\/p>\n
      11.   It is not disputed that CWs.1 to 3 whose sworn<\/p>\n
statement learned Magistrate recorded, filed affidavits and the<\/p>\n
affidavit of another witness (who was not examined in the<\/p>\n
inquiry) was also received in evidence. Acceptance of the said<\/p>\n
affidavits are sought to be supported by the learned counsel for<\/p>\n
respondent No.2 relying on Sec.296 of the Code. That provision<\/p>\n
says that evidence of ‘formal character’ can be let in by affidavit.<\/p>\n
But, I am not persuaded to think that an `inquiry’ under Sec.202<\/p>\n
of the Code is a matter of formal character as understood in<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 17 :-<\/span><\/p>\n
Sec.296 of the Code. I must also bear in mind that reading Secs.1<\/p>\n
and 3 of the Evidence Act, ‘affidavit’ is not evidence as<\/p>\n
understood in Sec.3 of the said Act. Support for that view can be<\/p>\n
had from Rupikabai Vs. Narayan Govinda Samarth & Ors.<\/p>\n
(AIR 1953 Nagpur 135). I must bear in mind that a departure<\/p>\n
is made in Sec.296 of the Code and in Sec.138 of the Negotiable<\/p>\n
Instruments Act (for short, “the Act”) where there is a specific<\/p>\n
provision (Sec.145) that evidence of the complainant can be<\/p>\n
taken by affidavit and in that situation it is possible to say that<\/p>\n
instead of recording sworn statement of the complainant it is<\/p>\n
sufficient to produce his affidavit which could be used as<\/p>\n
evidence. Even that provision only relates to the evidence of the<\/p>\n
complainant and not the witness. Moreover, Sec.200 of the Code<\/p>\n
also says that while conducting the inquiry substance of<\/p>\n
examination of the complainant and witnesses on oath shall be<\/p>\n
reduced in writing and be signed by the complainant\/witnesses<\/p>\n
and also by the Magistrate. If that be so, there is no scope for<\/p>\n
inquiry under Secs.200 and 202 of the Code receiving affidavits<\/p>\n
(except where it is specifically permitted). Learned Magistrate<\/p>\n
therefore was wrong in accepting affidavits of CWs.1 to 3 (whose<\/p>\n
statement I am told has already been recorded) and the affidavit<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 18 :-<\/span><\/p>\n
of another witness (who was not examined). Such a procedure is<\/p>\n
not contemplated under Secs.200 and 202 of the Code and hence<\/p>\n
those materials cannot be looked into in the matter of issuing<\/p>\n
process to the accused persons.\n<\/p>\n
      12.   Yet another argument advanced is whether photocopy<\/p>\n
of documents and photocopy of the photo from the magazine or<\/p>\n
photocopy of judgment which appeared in a magazine could have<\/p>\n
been admitted in evidence. Indisputably photocopy is secondary<\/p>\n
evidence (See Sec.63 of the Evidence Act) and secondary<\/p>\n
evidence could be admitted when primary evidence is not<\/p>\n
available. A copy made from the original by mechanical process<\/p>\n
can be treated as secondary evidence which in itself insure<\/p>\n
accuracy of the copy. Without insuring such accuracy and without<\/p>\n
complying with Sec.65 of the Evidence Act, such photocopies<\/p>\n
could not have been received in evidence.\n<\/p>\n
      13.   It is also argued that it is without the document<\/p>\n
allegedly forged or its admissible copy on record that learned<\/p>\n
Magistrate merely on the statement of witnesses issued process<\/p>\n
to the accused for the offence under Sec.465 of the Penal Code.<\/p>\n
In view of the order I propose to pass in these petitions. I leave<\/p>\n
that matter to be decided by the learned magistrate.<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 19 :-<\/span><\/p>\n
      14.   I found that materials which were not admissible have<\/p>\n
been admitted in evidence by the learned Magistrate. I have gone<\/p>\n
through Annexure-R2(a), order in Crl.M.C.No.1634 of 2010<\/p>\n
whereby learned Magistrate has issued process to 16 persons<\/p>\n
referred to therein. Learned Magistrate has only mentioned that<\/p>\n
“on consideration of the materials on record I am of the view that<\/p>\n
there are sufficient ground to proceed against the accused<\/p>\n
persons in the complaint herein as well as the persons named by<\/p>\n
the complainant in the statement” for offences mentioned<\/p>\n
thereunder. Obviously, the materials which learned Magistrate<\/p>\n
has taken into consideration include those materials which I<\/p>\n
found, are not admissible in evidence and could not have been<\/p>\n
looked into. But, I make it clear that so far as the affidavit given<\/p>\n
by the witness whose statement was not recorded by the learned<\/p>\n
Magistrate     is    concerned,     it    is open to  the    second<\/p>\n
respondent\/complainant to examine that witness before the<\/p>\n
learned Magistrate under Sec.202 of the Code and record the<\/p>\n
sworn statement of that witness as well. It is also open to the<\/p>\n
second respondent to produce the relevant admissible documents<\/p>\n
in the inquiry.\n<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 20 :-<\/span><\/p>\n
      15.   In the light of what I have stated above, the<\/p>\n
contention that since the final report regarding the same incident<\/p>\n
was pending and no order in the matter of cognizance was<\/p>\n
passed cognizance taken on the private complaint is illegal and<\/p>\n
that learned Magistrate could not have issued process to those<\/p>\n
accused not mentioned in the complaint, cannot be accepted.<\/p>\n
But it is for the Magistrate to decide whether there are sufficient<\/p>\n
materials to proceed against such accused also.            But since<\/p>\n
inadmissible materials have been admitted in evidence and<\/p>\n
process is issued based on such materials also, I am inclined to<\/p>\n
interfere with the order dated 06.03.2010 on C.M.P.No.22 of<\/p>\n
2010 and remit the complaint to the learned Magistrate for<\/p>\n
further inquiry if any and pass appropriate orders in the matter<\/p>\n
afresh.\n<\/p>\n
      Resultantly these criminal miscellaneous cases are allowed in<\/p>\n
part in the following lines:\n<\/p>\n
     Annexure-R2(a),      order   in    Crl.M.C.No.1634 of  2010<\/p>\n
     (Annexure-3, order in Crl.M.C.No.4885 of 2010) dated<\/p>\n
     March 6, 2010 in C.M.P.No.22 of 2010 of the court of<\/p>\n
     learned Judicial First Class Magistrate-I, Kochi) and all<\/p>\n
     proceedings pursuant to the said order are set aside and<\/p>\n
     C.M.P.No.22 of 2010 is remitted to the court of learned<\/p>\n
     Judicial First Class Magistrate-I, Kochi for further inquiry<\/p>\n
Crl.M.C.Nos.1634 and 4885 of 2010
\n                                  -: 21 :-<\/span><\/p>\n
     and decision in the light of the observations made above<\/p>\n
     after giving second respondent opportunity to adduce fresh<\/p>\n
     materials if any. I make it clear that I have not expressed<\/p>\n
     any opinion on the merit or otherwise of the case. I also<\/p>\n
     make it clear that if the second respondent\/de facto<\/p>\n
     complainant wants to examine any other witness it is open<\/p>\n
     to the second respondent to do so as provided under law.<\/p>\n
     Learned Magistrate shall pass appropriate orders as<\/p>\n
     provided under law in the matter of issue of process.<\/p>\n
     Learned Magistrate is also directed to pass appropriate<\/p>\n
     orders in the matter of cognizance on the final report in<\/p>\n
     Crime No.139 of 2009. Second respondent shall appear<\/p>\n
     before the learned JFM-I, Kochi on February 26. 2011.<\/p><\/blockquote>\n
                                 (THOMAS P JOSEPH, JUDGE)<\/p>\n
Sbna\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Bishop Mar Thomas Chakkiath vs State Of Keala-Represented By The on 3 February, 2011 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-77649","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nBishop Mar Thomas Chakkiath vs State Of Keala-Represented By The on 3 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bishop-mar-thomas-chakkiath-vs-state-of-keala-represented-by-the-on-3-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bishop Mar Thomas Chakkiath vs State Of Keala-Represented By The on 3 February, 2011 - 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