JACOB Vs. STATE OF KERALA

JUDGEMENT

(1.) I see no ground for interference under Art. 226 or 227 of the Constitution, for, I do not think that there is any substance in the complaint that there has been a violation of Art. 14 and 21. Doubtless the procedure adopted by the State Government in ordering an investigation under the commission of Inquiry Act, 1952 into a case of suspected murder and then directing the Inquiry Commissioner himself to file a complaint of murder before the competent court (in place of the normal procedure of an investigation and a final report under Chapter XIV of the Criminal Procedure Code) strikes one as unusual even taking into account the fact that some of the accused persons are police officers and, if unexplained, might lead to the inference that, as alleged by the petitioner, extraneous considerations prevailed. It is also alleged that, in appointing the Commissioner and directing the inquiry, the government did not comply with certain provisions of the Act. But we are not now concerned with the inquiry held under the Commission of Inquiry Act, but with the proceedings pending before the criminal court, namely, before the sub-Magistrate of Mukundapuram. And the validity of the latter is in no way dependent on the validity or propriety of the former. The Inquiry Commissioner, shri T. R. Velunny, who happens to be a District Magistrate (Judicial) did file a complaint against the petitioner and others before the Sub-Magistrate, and that complaint satisfies in all particulars the requirements of a complaint as defined by S. 4 (1) (h) of the Criminal Procedure Code. It is not disputed that the offences mentioned in the complaint, and of which cognizance was taken by the magistrate, are all offences of which a Magistrate could take cognizance upon a complaint by any person whatsoever and that there was no bar or restriction to cognizance whether under S. 195 to 199 of the Code or under any other law. In fact it is not the petitioner's case that the Sub Magistrate erred in taking cognizance - it can scarcely be doubted that he was bound to do so, the power given by S. 190 (1) (a) of the Code being one coupled with a duty. (And if there were any error on the part of the Magistrate the remedy would be by way of revision under the provisions of the Code, not by way of petition under Art. 226 or 227 of the Constitution ). What is contended is that it is really the State and not Shri Velunny that is prosecuting the petitioner, and that in doing so by means of a "complaint" (to use the language of the Code - a "private complaint" in common parlance) instead of by a police report in respect of offences that are cognizable, the State has discriminated against the petitioner. Therefore the complaint and all proceedings pursuant thereto must be quashed.

(2.) I am afraid there is no basis whatsoever for this contention. In the first place, as it stands, the complaint is by Sri T. R. Velunny a person I take it who, notwithstanding the fact that he holds the office of District Magistrate and was the Inquiry Commissioner, is as competent as any other person to make a complaint. It is argued that he professes to have made the complaint in his official capacity, but, however that might be, what is commonly known as a private complaint can be made, and is every day being made, by officials in their official capacity. (See in this connection proviso (aa) to S. 200 of the Code ). There is no law requiring that a person making a complaint must act on his own initiative and should not be acting; under the direction of any other person, and the fact that in this particular case Sri t. R. Velunny made his complaint under the orders of the Government does not in any way affect the validity on propriety of the complaint.

(3.) I dismiss the petition, Dismissed.