THOUFEEQ Vs. STATE OF KERALA

JUDGEMENT

(1.) The question that arises in this case is whether a Magistrate is precluded from directing registration of an FIR, despite the commencement of proceedings under Sec. 202 of the Code of Criminal Procedure, 1973.

(2.) Petitioner challenges an order of discharge of the accused in C.C. No.473/2018 on the files of the Judicial First Class Magistrate's Court, Pattambi. Petitioner was the defacto complainant in Crime No.661/2017 of the Pattambi Police Station. The crime was registered alleging that the accused and the defacto complainant along with CWs 2 and 3 had started a partnership business by the name 'M/s.Shalimar Granite'. During the period between 2010- 2016, the accused allegedly forged the partnership deed and other documents for cheating the defacto complainant and others and fraudulently obtained property and subsequently submitted those documents to the authorities knowing that those are forged and thereby committed the offences under Sec. 406, 417, 465, 468 and 475 of the Indian Penal Code, 1860 (for short 'IPC'). In a nutshell, the complainant alleged that the partnership deed contained a forged schedule, which was not part of the original deed and listed the private properties of the petitioner and that of his brother, who was not even a partner of the firm.

(3.) After the complaint was filed before the Judicial First Class Magistrate's Court, Pattambi, the learned Magistrate proceeded to conduct an enquiry under Sec. 202 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C') and called for a report from the Station House Officer. By communication dtd. 9/10/2017, the SHO stated that since the accused was not cooperating with the enquiry and as documents are required to be recovered, without the registration of a crime, the actual facts cannot be brought to light. On the basis of the aforesaid report, the learned Magistrate had initiated an enquiry under Sec. 202 Cr.P.C, and issued an order under Sec. 156(3) Cr.P.C on 2/1/2017 directing registration of a crime by forwarding the complaint to the SHO. Pursuant thereto, the police registered an F.I.R as Crime No.661/2017 of Pattambi Police Station and after completing the investigation, a final report was filed on 16/4/2018 alleging offences punishable under the Sec. mentioned earlier. After receipt of the final report, the learned Magistrate took cognizance of the offence as C.C. No.473/2018. After the accused entered appearance, he filed an application as CMP No.709/2020 for a discharge.