It was held by this Court in Sreenivasan v. Nair
- 2005 (2) KLT 396 para 5:-
"There is no provision of law which compels a
Magistrate to refer the matter to the police. When
a person files a complaint, the discretion is that
of the magistrate. He may either take cognizance
or refer the matter to the police. The
complainant has no legal right or privilege to
insist that the Magistrate shall not take
cognizance and without taking cognizance , refer
the matter to the police. In Morarji Jivraj v.
Emperor (AIR 1935 Bom. 76), it was held as
follows:-
"Secondly, the complainant has certainly no
'rights and privileges' under this section to
require the Court to refer the case to the
police ........"
The option whether to refer the complaint to the
police for investigation under S. 156 (3) before
cognizance or under S. 202 (1) after cognizance
is to be exercised by the Magistrate)".
The learned Magistrate has two options: He may either
apply his mind for the purpose of proceeding under Sec.
200 and the succeeding Sections in Chapter XV of Cr.P.C.
or may instead of proceeding under Chapter XV, order
investigation under Sec. 156 (3) Cr.P.C. Same is the view
taken by this Court in Aloshia Joseph v. Dr. Joseph
Kollamparambil - 2009 (1) KLT 740.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE N.K.BALAKRISHNAN
7TH DAY OF MARCH 2014
Crl.MC.No. 1123 of 2014 ()
NIRMALA DEVI
Vs
STATE OF KERALA
N.K.BALAKRISHNAN, J.
Decided On: 07.03.2014
| MANU/KE/0294/2014 |
| ILR2014(2)Kerala252 |
This petition is filed by the complainant in a private
complaint filed against the respondent/accused alleging
offences punishable under Secs. 376 and 406 I.P.C. The
complainant was married by one Bhaskaran Nair in the
year 1980. In that relationship a son was born to them.
Bhaskaran Nair died in 1984. The complainant was
working in a foreign country (Oman). While she was
working there the accused approached her and expressed
his willingness to marry her. Both of them decided to marry
after they reached their native place. It is stated that on
22-08-2005 while the complainant was staying at the
residence of her elder sister the accused reached there
and discussed about the marriage and they agreed to
have the marriage solemnized as per the Hindu religious
rites at Guruvayoor Temple on the next day itself. On the
day of discussion, the accused stayed in the house of the
complainant's sister. The complainant was also staying in
that house on that day. It is alleged that on that night
the accused had sexual intercourse with her repeating his
promise of marriage. On the next day their marriage was
conducted at Guruvayoor Temple.
2. It is also her case that thereafter both of them
left for Oman and lived there as husband and wife for about
8 years. Her further allegation is that during that period
the accused had misappropriated 15 sovereigns of gold
ornaments and also committed criminal breach of trust in
respect of about 10 lakhs of rupees. According to her,
thereafter he came back to her native place in July 2013.
Though she tried to contact the accused she could not
contact him. Later, she could realise that the accused was
a married man having wife and two grown up children.
Thus, the complainant contends that the accused has
committed the offence punishable under Sec. 376 and 406
IPC stating that her consent was obtained by misconception
or by false promise. This in short is the gist of the
complainant's case.
3. This complaint, C.M.P. 9000/2013, was filed on
22-11-2013, admittedly after about 8 years of the alleged
incident. It is true, usually in such cases the complaint is
forwarded to the police for investigation under Sec.156 (3)
Cr.P.C so as to avoid the time of the court being wasted for
conducting enquiry. But in the instant case the learned
Magistrate has chosen not to forward the complaint to the
police under Sec. 156 (3) Cr.P.C. but proceeded to conduct
enquiry in the matter as provided under Sec. 200 and 202
Cr.P.C. That order is challenged in this petition.
4. It is submitted by Sri.Ravikirishnan, the learned
counsel for the petitioner that in view of the proviso to Sec.
202 of Cr.P.C. the complainant is bound to produce all
witnesses whom she intends to examine before the
Sessions Court. It is further stated that medical
examination of the complainant and the accused is
necessary to prove the allegation made by the
complainant and also to prove that the accused is not
impotent.
5. According to the complainant it may not be
possible for her to produce such medical evidence by
herself. It is further contended that since there is a specific
allegation that 15 sovereigns of gold ornaments and an
amount of Rs. 10 lakhs were misappropriated by the
accused unless it is investigated by a competent police
officer, the required material for a successful prosecution
cannot be collected. Therefore, the learned counsel for
the petitioner submits that the procedure adopted by the
learned Magistrate in a case of this nature is not
justifiable and so the order passed by the learned
Magistrate is to be quashed and a proper direction is to be
issued to the learned Magistrate directing the Magistrate
to forward the complaint for investigation under Sec. 156
(3) Cr.P.C. or at any rate, to re-consider the request made
by the petitioner.
6. It is important to note that the incident even
according to the complainant took place about 8 years back.
It is also the admitted fact that the accused had married
earlier and two children were born to him. Therefore, the
question of getting a potency certificate may not be of that
much relevancy. Similarly, medical examination report of
the complainant also is not of much relevance since the
alleged incident took place 8 years back. She was
admittedly a married woman having a son born in the
earlier wedlock. Then what remains is only the evidence
she may have to adduce with regard to the alleged
promise made by the accused or the misconception of facts
which the complainant had and so there is no necessity of
conducting investigation by the police, it may be argued. As
to whether any gold ornament or amount was taken away
by the accused and whether he misappropriated the same
are also matters in respect of which the complainant can
adduce evidence, if the allegations are true.
7. When a complaint is filed, the learned Magistrate
can either forward the same for investigation under sec.
156 (3) Cr.P.C. or follow the procedure prescribed under
Chapter XV of Cr.P.C. As could be seen from the
complaint, the accused stayed in the house of the
complainant on the previous day of the marriage and on
that day the accused had sexual intercourse with her. It is
also the admitted fact on the next day their marriage had
taken place in front of Guruvayoor temple. Though the
marriage was not registered, even according to the
complainant, there was a marriage and they lived together
as husband and wife for about eight years while they were
working in the foreign country (Oman.) If the complaint is
simply forwarded for investigation under Sec. 156 (3)
Cr.P.C. the police would be bound to register the FIR
incorporating an offence under Sec. 376 IPC in which case
the right and liberty of the accused would be in peril. In
the normal course, the accused may not be in a position
even to get bail unless all these factors are brought before
Court. The prejudice and the grievance that may be
caused to the accused cannot be lost sight of. The learned
Magistrate has applied his mind and decided to find out
the truth by examining the complainant and by resorting to
the procedure prescribed under Sec. 202 Cr.P.C.
8. An efficient, alert and vigilant Magistrate will
certainly go through the complaint to find out whether it is
a matter to be forwarded to the police so as to collect
materials for a successful prosecution against the accused
or whether it is a matter which should in inquired into by
the Magistrate himself. When a complaint is filed, usually it
may be forwarded to the police under Sec. 156 (3) Cr.P.C.,
sometimes casually or mechanically, without adverting to
the facts stated in the complaint and without application of
mind. Here the learned Magistrate has applied his mind to
find whether it is a matter to be enquired into by himself.
The Magistrate should not adopt the easy way of
forwarding the complaint under Sec. 156 (3) of Cr.P.C. in
such cases, unmindful of the consequences of forwarding
such complaints and irrespective of the fact whether on the
face of it, it requires an enquiry by the Magistrate himself.
There lies the solemn duty of the Magistrate. The court has
a duty to protect the interest of the respondent/accused
also since at the time of conducting inquiry or forwarding
of the complaint to the police under Sec. 156 (3) Cr.P.C.
the accused does not get any right of hearing. Therefore,
the Magistrate should certainly scrutinize the allegations in
the complaint and the evidence that may be adduced under
Sec. 200 or 202 of Cr.P.C. to prevent a person being
unnecessarily summoned to the Court to face such a
serious allegation of rape.
9. The learned Magistrate has forwarded a report
as to why he has chosen to conduct enquiry under Section
202 Cr.P.C. It seems the learned Magistrate has drawn
inspiration from the decisions of the Supreme Court in
Superintendent of Police, CBI v State of Kerala -
2005 (3) KLT 823, Arul V.Nair v. State of Kerala -
2007 (4) KLT 921 and Mona Panwar v. High Court of
Judicature of Allahabad - (2011) 3 SCC 496.
10. It is vehemently argued by the learned counsel for
the petitioner that in order to have a successful
prosecution the potency certificate of the accused and the
medical examination report of the complainant has to be
obtained. It has already been said that the accused, even
according to the complainant, is a married man, having two
grown up children. The incident in this case took place
about 8 years ago. If for any reason the complainant wants
herself to be examined by a lady doctor then the learned
Magistrate can order her examination to be done by the
doctor and a report can be obtained. For that purpose the
complaint need not be forwarded to the police under Sec.
156 (3) Cr.P.C. Similarly, the question of getting a
potency certificate would arise only if the accused raises
any plea to the contrary. Not only that if the complainant
requires or if the court finds the requirement of such a
certificate that also can be obtained at the relevant time, if
necessary, by invoking the power under Section 311 of
Cr.P.C. For that purpose also, the investigation under Sec.
156 (3) of Cr.P.C. is not required.
11. It was held by this Court in Sreenivasan v. Nair
- 2005 (2) KLT 396 para 5:-
"There is no provision of law which compels a
Magistrate to refer the matter to the police. When
a person files a complaint, the discretion is that
of the magistrate. He may either take cognizance
or refer the matter to the police. The
complainant has no legal right or privilege to
insist that the Magistrate shall not take
cognizance and without taking cognizance , refer
the matter to the police. In Morarji Jivraj v.
Emperor (AIR 1935 Bom. 76), it was held as
follows:-
"Secondly, the complainant has certainly no
'rights and privileges' under this section to
require the Court to refer the case to the
police ........"
The option whether to refer the complaint to the
police for investigation under S. 156 (3) before
cognizance or under S. 202 (1) after cognizance
is to be exercised by the Magistrate)".
The learned Magistrate has two options: He may either
apply his mind for the purpose of proceeding under Sec.
200 and the succeeding Sections in Chapter XV of Cr.P.C.
or may instead of proceeding under Chapter XV, order
investigation under Sec. 156 (3) Cr.P.C. Same is the view
taken by this Court in Aloshia Joseph v. Dr. Joseph
Kollamparambil - 2009 (1) KLT 740.
12. It was also held by the Hon'ble Supreme Court in
Mona Panwar v. High Court of Judicature of Allahabad
- (2011) 3 SCC 496.
"Taking cognizance is a different thing from
initiation of the proceedings. One of the objects
of examination of the complainant and his
witnesses as mentioned in Section 200 of the
Code is to ascertain whether there is prima facie
case against the person accused of the offence in
the complaint and to prevent the issue of process
on a complaint which is either false or vexatious
or intended only to harass such person. Such
examination is provided, therefore, to find out
whether there is or not sufficient ground for
proceeding further".
Normally, a Magistrate may not proceed to examine the
complainant under Secs. 200 and 202 of Cr.P.C. since it
would consume valuable time and so lest such valuable
time should be wasted in enquiring into the matter it would
be forwarded to the police for investigation. If on a
reading of a complaint, the Magistrate finds that the
allegations therein disclose cognizable offence and
forwarding of the complaint to the police for investigation
under Sec. 156 (3) Cr.P.C. will not be conducive to justice,
he will be justified in adopting the course prescribed
under Sec. 200 and the succeeding provisions of Cr.P.C.
That is a discretion to be judicially exercised by the
Magistrate in consonance with the scheme of the Code. If
the Magistrate has exercised that discretion judicially and
judiciously it cannot be simply interfered by this Court.
13. Enquiry under Sec. 202 of Cr.P.C. is not an
empty formality. The duty of the Magistrate is to scrutinize
the materials made available by the complainant during the
enquiry under Sec. 202 Cr.P.C. to find whether it is a matter
where process is to be issued under Sec. 204 Cr.P.C.
There is no illegality, irregularity or incorrectness in the
procedure followed by the learned Magistrate in ordering
inquiry under Sec. 202 of Cr.P.C. It is actually a case
where the learned Magistrate was cautious and zealous of
the consequence of forwarding the complaint under Sec.
156 (3) Cr.P.C. The learned Magistrate has exercised his
judicial discretion judiciously. It warrants no interference.
Hence, this Crl.M.C. is dismissed.
Dated this the 7th day of March, 2014.
Sd/-N.K. Balakrishnan
Judge.
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