N. RAVEENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) BOTH the above petitions arise from a pending case emanating from a complaint, on the file of the Judicial First Class Magistrate Court -II, Kollam. Crl. M. C No. 965 of 2012 is filed by the complainant for issuing direction for expeditious trial of the case. The other petition, Crl. M. C No. 1109 of 2012, has been filed by the accused for quashing the criminal proceedings against him exercising the inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, for short, 'the Code'. Perusing the allegations imputed in the complaint, copy of which is produced as Annexure A5 in Crl. M. C No. 1109 of 2012, the crux of the complainant's case can be stated thus: Complainant was the principal of an educational institution - S.N College, Chengannur, managed by a trust, of which the accused is the Manager. Disciplinary proceedings were initiated against the complainant and he was placed under suspension from service. Suspension was challenged by the complainant before the University Tribunal, which passed orders to reinstate him in service, subject to the disciplinary proceedings initiated. Complaining noncompliance of that order he filed a contempt petition. When that petition came up for consideration, this court directed for reinstating him and adjourned the case to a date fixed for report. On the adjourned date, it was reported by the management that orders have been issued to appoint him as principal. However, the postal article sent to him later was only an envelope in blank, which did not contain any order of appointment, is the case of the complainant for filing the complaint to prosecute the manager. He opened the postal article sent by the management at the post office in the presence of the post man and it was found with no enclosure, is his case. Previously, complaint filed by him before the Magistrate raising allegations as above was referred to police for investigation and report under Section 156(3) of the Code. Police, after investigation, filed a refer report. Taking objection to such report, complainant preferred a protest complaint on which after taking the sworn statement of the complainant and examining the witnesses produced by him, the Magistrate took cognizance of the offence under Section 468 of the Indian Penal Code against the accused and ordered process to him. That order is challenged by the accused in Crl. M. C No. 1109 of 2012 as an abuse of process of the court.

(2.) I heard the counsel on both sides. On the complaint filed by the petitioner an offence under Section 468 of Indian Penal Code, which has been taken cognizance by the magistrate, apparently, does not lie. Penal offence covered by Section 468 contemplates of making a forged document for the purpose of cheating. What has been sent is only a postal article which does not contain any enclosure, is the crux of the allegation raised by the complainant to proceed against the manager, the accused. Realising the difficulty to sustain the cognizance of the offence taken on the complaint by the Magistrate, the learned counsel appearing for the complainant made a valiant effort to show that the allegations raised in the complaint would constitute an offence under Section 192 of the Indian Penal Code punishable under Section 193 of that Code. It is submitted by the learned counsel that the very purpose of sending the postal article without any enclosure was a fraudulent act disclosing a circumstance that it was intended to be used in the judicial proceeding to show that an appointment order had been issued. But, in fact, that was not done even when the contempt proceedings were pending before this court. When that be the case, according to the counsel, proceedings taken by the Magistrate though for a different offence could be sustained directing the Magistrate to proceed with the complaint for the offence under Section 192 of Indian Penal Code. Irrespective of the fact that such a procedure cannot be followed where the magistrate has taken cognizance of the offence under Section 468 of Indian Penal Code, which on the facts presented and allegations made in the complaint would not lie, I find that the offence under Section 192 of Indian Penal Code also will not arise on the facts and circumstances presented in the case. To constitute an offence under Section 192 Indian Penal Code, it must be shown that there was an endeavour to impose another by supplying false data, to form an opinion upon the evidence, to entertain an erroneous opinion. After termination of the contempt proceedings, petitioner received a postal article from the Manager, which contained no enclosure, that alone, by itself, cannot constitute any erroneous opinion, leave alone fabrication of false evidence. Learned counsel for the complainant relying on "Rajendra Kumar Sitaram Pande and Others v Uttam and another" ( : (1999) 3 SCC 134) contended that against the order passed by the Magistrate taking cognizance of an offence on the complaint, the petitioner has an alternate efficacious remedy to challenge it in revision, and, therefore, the petition filed to quash the criminal proceedings invoking the inherent jurisdiction of this court is not entertainable. Availability of an alternate remedy is no bar for the exercise of inherent powers of the court under Section 482 of the Code. That Section would come into operation to prevent any abuse of process of the court or to give effect to the orders of the Code or to secure the ends of justice. Further more, the reported decision referred to by the counsel dealt with the question whether the bar under Section 397(2) of the Code over the orders passed on interlocutory application would arise as an interdiction in entertaining an order challenging the cognizance of an offence taken on a complaint. In that context, it was held that orders passed taking cognizance of offence and issue of process to accused, where it can be shown to be unsustianable on the materials and circumstances presented, can be challenged even in exercise of revisional jurisdiction observing that a revision will lie against intermediate or quasi final order. That decision has no application to the facts and circumstances presented in the case. As already indicated, the exercise of inherent jurisdiction of this court is not interdicted by any provision covered by the Code, leave alone the availability of an alternate remedy by revision.