KRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Can a Magistrate who forwards a complaint filed by a person containing allegations of commission of an offence exclusively traible by the court of Sessions under Section 156 (3) of the Code of Criminal Procedure to the police for investigation and report take cognizance on the very same complaint and conduct an enquiry under Section 200 of the Criminal Procedure Code based on a submission made by the Investigating Officer in the court that he had stopped investigation before actual filing of the report under section 173 (2) of the Code of Criminal Procedure is the question to be decided in the proceedings. Can a Magistrate who forwards a complaint filed by a person containing allegations of commission of an offence exclusively traible by the court of Sessions under Section 156 (3) of the Code of Criminal Procedure to the police for investigation and report take cognizance on the very same complaint and conduct an enquiry under Section 200 of the Criminal Procedure Code based on a submission made by the Investigating Officer in the court that he had stopped investigation before actual filing of the report under section 173 (2) of the Code of Criminal Procedure is the question to be decided in the proceedings.

(2.) Chandran, the son of the additional 2nd respondent died during the night of 17.3.1992 and the police had registered a crime No.137 of 1992 under the caption 'unnatural death' regarding the death of Chandran. Thereafter the additional second respondent filed Crl.M.P. 4890 of 1992 on 24.8. 1992 before the Judicial First Class Magistrate Court, Mavelikkara alleging that the petitioners and 4 others committed the murder of Chandran and caused disappearanace of the evidence of the commission of the offence and thereby committed the offence punishable under Sections 302 and 201 readwith Section 34 of the Indian Penal Code. On 24.8.1992 itself the learned Magistrate instead of taking cognizance on the complaint forwarded the same to the Circle Inspector of Police for Investigation and report under Section 156 (3)of the Criminal Procedure Code. On receipt of the complaint the Mavelikkara police registered crime No. 368 of 1992 against the petitioners and the 4 others and the first information report was forwarded to the learned magistrate. On 21.10.1992 the second respondent filed a petition before the learned Magistrate praying that a direction may be issued to the investigating officer to complete the investigation and file report as expeditiously as possible. On 19.6.1993 the Circle Inspector of Police appeared before the Magistrate and reported that the case was referred but the report under Section 173 (2) of Criminal Procedure Code was not filed in court. On that day the complainant and two witnesses were present. The learned Magistrate took cognizance and recorded their statements and the case was posted to further evidence. Subsequently the records such as First Information Report, inquest report, and postmortem certificate etc. were called for from the office of Sub Divisional Magistrate, Chegannur and the statement of the doctor who conducted autopsy was also recorded. Even though the Circle Inspector of Police had stated before the Magistrate that he had referred the matter, the report under section 173(2) was actually signed on 22.9.1993 and filed before the magistrate only on 3.2.1994. The copy of the proceedings paper of the court below shows that the learned magistrate after recording the statements of Cws1 to 4 heard the matter in part on 27.7.1996 and thereafter on 25.9.1996and by order dt.3.10.1996 the learned magistrate found that no prima facie case was disclosed against A3 to A5 but a prima facie case was brought out against A1, A2 and A6 and the complaint was registered as C.P.13 of 1996 and summons were issued to the petitioners and A6 calling upon them to appear before the Magistrate on 2.11.1996. The petitioners who are A1 and A2 never appeared before the Magistrate and so the learned Magistrate had ordered non-bailable warrant against them and at that stage the petitioners approached this court by filing this petition.

(3.) The main ground of attack against the proceedings is that even though the learned Magistrate forwarded the complaint to the Circle Inspector of Police Mavelikkara for investigation and report under Section 156(3), without waiting for the actual filing of the final report he examined the complainant and witnesses present in the court under Section 200 of Criminal Procedure Code and took cognizance on the complaint without persuing the final report and connected documents. According to counsel for the petitioner on the date on which the learned Magistrate recorded the evidence of CWs 1 to 3 there was no materials available before him as the matter was under investigation by the police. According to the petitioners since the magistrate had forwarded the complaint to the police under Section 156(3) he gets jurisdiction to proceed under Section 156 (3) he gets jurisdiction to proceed under Section 200 of the Criminal Procedure Code only after the receipt of the report under Section 173 (2) and hence he ought to have waited for the filing of the final report. In D.Lakshminarayana v. V.Naryana (A.I.R.1976 SC 1672) the Supreme Court has held that the Magistrate has power to forward the complaint to police for investigation under section 156 (3) even if the same discloses an offence exclusively triable by the Sessions Court. In H.S. Bains V. State (U.T.Chandigarh) (A.I.R. 1980 SC 1883) the Supreme Court has held as follows:- A Magistrate who on receipt of a complaint, orders an investigation under Section 156 (3) and receives a police report under Section 173 (1), may, thereafter, do one of three things:(1)he may decide that there is no sufficient ground for proceeding further and drop action: (2) he may take cognizance of the offence under Section 190 (1) (b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Sec.190 (1) (a) on the basis of the original compliant and his witnesses under oath the complainant and his witnesses under section 200. If he adopts the third alternative , he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be". Relying on the principle laid down in H.S. Bains case (Supra) learned counsel appearing for the petitioners vehemently argued that once the Magistrate orders an investigation under Section 156(3) he can proceed to conduct an enquiry under Section 200 only after receipt of the final report under Section 173 (2).