BHASKARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners in these miscellaneous cases seek for quashment of the First Information Reports registered respectively against them viz., in Crime Nos. 1098 of 2012, 1096 of 2012 and 1097 of 2012 of Wadakkanchery Police Station based on the complaint made by the common second respondent in these petitions and all further proceedings pursuant thereto. Taking note of the fact that the aforesaid crimes were registered respectively against the petitioners pursuant to the receipt of the complaints forwarded for investigation by the Court of the Judicial First Class Magistrate, Wadakkanchery under S.156(3) of the Code of Criminal Procedure filed by the common second respondent and also the fact that the nature of the allegations involved in these cases are of similar nature on consent, these petitions were jointly heard and are being disposed of by this common order. In the private complaints the second respondent herein contended that the petitioners herein created documents wherewithal claiming title to the properties involved in the investigation from one Mookami amma besides stating further previous derivation.

(2.) The second respondent alleged that the petitioner in Crl MC No. 510 of 2013 created document No. 3597 of 1992 dated 29/10/1992 for that purpose. In the private complaint that caused the registration of Crime No. 1096 of 2012 the allegation raised is that the accused therein / petitioner in the Crl MC No. 531 of 2013 had created document No. 3618 of 1992 dated 31/10/1992 for that purpose. Similarly, in the private complaint that lead to the registration of Crime No.1097 of 2012 it is alleged that the accused therein / the petitioner in Criminal MC No. 532 of 2013 had created document No. 3594 of 1992 dated 29/10/2012. The aforesaid private complaints also carried allegations to the effect that the properties involved therein were actually lands held in excess of the ceiling limit by one Madhavan Nair and the respective petitioners forged documents and produced such forged documents before the Land Tribunal and, thereafter, with a knowledge that what they have produced are forged documents that they caused issuance of Pattayam in respect of such properties. In all these petitions Annexure - I is produced as the complaint filed by the second respondent against the petitioners. Annexure - I carry such allegations. The learned Magistrate on receipt of Annexure - I complaint in exercise of the power under S.156(3) and forwarded the respective complaints for investigation. The above mentioned crimes were registered after the receipt of the complaints for investigation under S.156(3) of the Code of Criminal Procedure. The contention of the petitioner is that the complaints, Annexure - I in all these petitions, were not worthy for ordering an investigation in terms of the provisions under S.156(3) of Code of Criminal Procedure and even if the entire allegations in the respective private complaints are taken in its entirety they would not constitute any of the offences alleged against them and, therefore, investigation ought not to have been ordered based on Annexure - I. A scanning of the provisions under S.156 and S.190 of Code of Criminal Procedure would reveal that at the stage of ordering for an investigation under S.156(3), the Magistrate is not actually taking cognizance in terms of the provisions under S.190. In this case, Annexure - I complaint would reveal that the allegation thereunder is one of commission of offences punishable under S.420, S.465, S.466, S.468 and S.471, IPC and thus evidently, allegation of commission of cognizable and non - cognizable offences are alleged against the petitioners. In such circumstances, in the light of S.155(4) the case shall have to be deemed as a cognizable case. On receipt of a complaint of a cognizable case, a Magistrate has power to order under S.156(3) for investigation, but he can make such an order only when he does not take cognizance of the case under S.190, CrPC. There cannot be any doubt with respect to the position that a Magistrate empowered to take cognizance of an offence under S.190 cannot proceed under S.202 and at the same time, pass an order for investigation. In other words, he should either take cognizance under S.200 or send the case for investigation under S.156(3), CrPC. The said position of law is settled and is no more res integra in the light of the decisions of the Hon'ble Supreme Court in Gopal Das v. State of Assam, 1961 KHC 606 : AIR 1961 SC 986 : 1961 (2) CriLJ 39, State of Assam v. Abdul Noor, 1970 KHC 555 : AIR 1970 SC 1365 : 1970 (3) SCC 10 : 1970 SCC (Cri) 360 : 1970 CriLJ 1264 : 72 Punj LR 585 and A. C. Agarwal, S. D. M. v. Ram Kali, 1968 KHC 366 : AIR 1968 SC 1 : 1968 (1) SCR 205 : 70 Punj LR 261 : 1968 CriLJ 82 . At the same time, it is also to be borne in mind that when a Magistrate applies his mind not for the purpose of proceeding under the subsequent sections but solely for the purpose of ordering an investigation under S.156(3), CrPC he cannot be said to have taken cognizance of the offence. A Magistrate can be said to have taken cognizance if he applied his mind for the purpose of proceeding under S.200 and subsequent Sections of Chapter XV or under S.204 of Chapter XVI, CrPC. Evidently, in this case the learned Magistrate had only ordered for an investigation under S.156(3) CrPC and the application of mind was only for that purpose and not at all for the purpose of taking cognizance of the offence. In such circumstances being a Magistrate empowered under S.190 the learned Magistrate was well within the jurisdiction to order investigation under S.156(3) CrPC and to forward Annexure - I for investigation. The contention of the learned counsel appearing for the petitioners is that it is a case wherein the documents were produced before the Land Tribunal and the Land Tribunal taking note of the entire documents thought it fit to issue purchase certificate and the factum of issuance of purchase certificate is admitted by the second respondent himself. It is the contention of the petitioner that purchase certificate is a conclusive proof of title to the property and therefore, when once it is admitted that title stands completely vested with the petitioners even in the absence of title no criminal offence would be attracted. It is also contended that the second respondent / de facto complainant is no manner affected by the issuance of the purchase certificates in respect of the lands in question and needless to say that with the consequential vesting of the title with the petitioners. The contention of the petitioners is that private complaints filed by the 2nd respondent itself is an abuse of process of law and the grievances highlighted is in the nature of a dispute on title with which the second respondent is in no way connected or aggrieved. In essence, the contention is that a third party cannot contend that the documents which ultimately resulted in issuance of purchase certificates are falsely created. The petitioners, therefore, contend that investigation into the allegations touching the correctness or otherwise of the purchase certificates cannot be conducted rather, continued and permitted to be completed based on the complaints from the 2nd respondent. It cannot be considered that it is the correctness or otherwise of issuance of purchase certificates concerned that is being enquired or investigated, into. The allegation in essence is that for the purpose of obtaining patta the respective petitioners have forged certain documents and then produced before the Land Tribunal for obtaining the purchase certificates. As noticed earlier, admittedly, the complaints filed against the petitioners before the learned Magistrates carry allegation of commission of offences under S.420, S.465, S.466, S.468 and S.471, IPC and therefore, the view of S.155(4), CrPC the cases have to be deemed as cognizable cases. When a complaint carries such allegation of commission of cognizable offences, is received I do not think that the action on the part of learned Magistrate in ordering an investigation under S.156(3) can be said to be faulty. Certainly, after registering the crime on receipt of the complaint for investigation under S.156(3) of Code of Criminal Procedure the concerned Station House Officer is bound to register a crime in terms of the decision of the Apex Court reported in Ramesh Kumari v. State (NCT of Delhi), 2006 KHC 135 : 2006 (2) KLT 404 (SC) : 2006 (2) SCC 677 : AIR 2006 SC 1322 : 2006 (1) KLJ 922 : JT 2006 (2) SC 548 : 2006 (1) KLD 703 : 2006 CriLJ 1622 . In the said decision, the Hon'ble Apex Court held that the Police Officer is duty bound to register the crime when a petition is forwarded for investigation under S.156(3). There can be no doubt with respect to the position that the genuineness or otherwise of the information can only be considered after registration of such case and at any rate, genuineness or credibility of the information is not a condition precedent for registration of such a case in the light of the decision in Ramesh Kumar's case supra. In that view of the matter, it can be seen that the aforesaid crimes were registered and FIR were registered at Wadakkanchery Police Station on receipt of the respective private complaints filed by the common second respondent for investigation pursuant to the orders passed by the learned Magistrate by invoking power under S.156(3) of the Code of Criminal Procedure. When once a crime has been registered the concerned investigating officer has to conduct an investigation and to file final report in terms of the provisions under S.173(2), CrPC before the Court of competent jurisdiction. In view of the nature and seriousness of the allegations I am not inclined to invoke the inherent jurisdiction at this stage and the contentions now, raised by the petitioners could, very well, be advanced for taking up the plea of discharge in case on completion of investigation, a final report is laid charging them for commission of any offence, at the appropriate stage and in accordance with law. When a complaint carries allegation of commission of cognizable offence especially regarding the forgery of document for the purpose of obtaining land which would have vested with the Government certainly, it is a matter for investigation and such matters cannot be stalled or stultified at the incipient stage. In the said circumstances, I am of the view that, at this stage, this Court would not be justified in invoking the inherent jurisdiction to abruptly terminate the investigation itself by interfering with the taking of cognizance on such complaints and I am of the view that it would only be proper to reserve the right of the petitioner to take up all such contentions at the appropriate stage, before the appropriate forum after the completion of the investigation and laying of the final report. In the said circumstances, without going into the merits of the contentions raised by the petitioners and reserving the right of the petitioners, in case of necessity, to raise all available contentions at appropriate stage, after the investigation and filing of the final reports before the Court of competent jurisdiction, I am declining exercise of inherent jurisdiction.