IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1969 OF 2013
(@ Special Leave Petition (Crl) No.1515 of 2013)
B. Chandrika … Appellant
Santhosh & Anr. … Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. Leave granted.
2. The appellant herein is the second accused in CC 1548/2011 pending on
file of the Judicial Magistrate, First Class, Cherthalay, which was
initiated by the Magistrate on a protest complaint filed by the first
respondent herein for the offences punishable under Section 420 read with
Section 34 IPC. Summons were issued to accused persons by the learned
Magistrate vide order dated 22.11.2011. That order was challenged in
Revision before the High Court of Kerala on the ground that the Magistrate
was not justified in initiating proceedings after a refer report was
submitted by the Police, after due enquiry. The High Court, however,
dismissed the Revision Petition vide order dated 23rd November, 2012
stating that even if a refer report is filed by the police after conducting
investigation, the Magistrate has the power to entertain a protest
complaint and to issue summons to the accused and proceed in accordance
with law. Aggrieved by the same, this appeal has been preferred.
3. This appeal has been preferred by the second accused, a divorced wife
of the first accused. The first respondent herein initially filed a
complaint against accused nos.1 and 2 before the Police Station Mohamma
which was registered as Crime No.302/2010. The operative portion of the
complaint is as follows :-
“The accused 1 and 2 with the ambition for immediate profits and the
intention to make loss to the complainant, had given the commitment to
the complainant in his rental residence house, owned by Kamal Travels,
at Aryakara, Tannermukkam on 13.10.2006 to provide job to his uncle’s
son Sajimon, in Aushathi Govt. Department and taken 1 lac rupee from
complainant, from Raveendran, R/o Illathukalathil House, Kumarakam
taken 1 lac rupees in the commitment to give job to his son Rathish
from Prabhakaran, Puthanparambil House, Kumarakam, and from Arumukam,
R/o Kalathil House, Udayaperoor taken 50,000/- rupees each, and from
K.P. Prasad, R/o Tikarthil, Kothuruthi, taken 25,000/- rupees,
thereafter the accused persons committed cheating without providing job
to these persons.”
4. An FIR was registered and the investigation ordered. Police conducted
detailed investigation, relevant portion of the investigation report is as
“After completing the investigation and recording the statement of
witnesses stated above, I came to the conclusion that the fact stated
above was not occurred. The complainant through Adv. Rajan had made
contact with the first accused Ramchandran Unni and given Rs.12000/-
for the purpose of taking certified copy of the order passed in Water
Authority case, which was decided by the Kerala High Court, wherein he
relatives of the complainant were parties in the case for the purpose
of being permanency in service. After two weeks, Ramchandran Unni had
got the certified copies from High Court and given it to the
complainant. Except this, the accused had not collected money from
any person. During the period when money was given as stated by the
complainant, the second accused was not in the residential house at
Muhamma with the first accused because they were separated to each
other and started living in the house at Thiruvananthapuram. It is
also proved that the first accused had not received any amount from the
complainant or any other persons for providing job to the relative of
the complainant or any other person. The amount paid, as stated in
the complaint, has not been proved by the complainant and others by
submitting any reliable documents.”
5. On the basis of the above-mentioned report, the police referred the
case as not proved. Reference report was submitted to the Judicial
Magistrate, First Class, Cherthalay for appropriate action. Later, the
respondent/claimant filed a protest complaint before the above-mentioned
Court for cancellation of the reference report and for taking cognizance of
the case, on which, as already stated, the Magistrate passed an order dated
22.11.2011, which reads as follows :-
“Heard the counsel for the petitioner. Perused the evidence adduced
and other case records, prima facie case alleged is made out. Hence,
case is taken on file as CC No.154810 for offence u/S 420 and 34 IPC.
Issue summons to both accused. Take steps 28.1.12.”
6. The power of the Magistrate to take cognizance of an offence on a
complaint or a protest petition on the same or similar allegations even
after accepting the final report cannot be disputed. It is settled law
that when a complaint is filed and sent to police under Section 156(3) for
investigation and then a protest petition is filed, the Magistrate after
accepting the final report of the police under Section 173 and discharging
the accused persons has the power to deal with the protest petition.
However, the protest petition has to satisfy the ingredients of complaint
before Magistrate takes cognizance under Section 190(1)(a) Cr.P.C.
7. This Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha & Ors.
[(1982) 3 SCC 510] held that the Magistrate is not debarred from taking
cognizance of a complaint merely on the ground that earlier he had declined
to take cognizance of police report. The judgment was followed by a Three-
Judge Bench judgment of this Court in Kishore Kumar Gyanchandani v. G.D.
Mehrotra [AIR 2002 SC 483 = (2001) 10 SCC 59].
8. The High Court, in our view, rightly applied the legal principle, but
omitted to consider the crucial question as to the involvement of the
second accused, the wife of the first accused. In this connection, it is
pertinent to refer to the statement of the complainant having been made
during the investigation, which reads as follows :-
“Thereafter I, Kunjumon and Rajan were gone to Thiruvanthapuram and met
his wife then she told that they were separated to each other and she
don’t know nothing about him. I have given payment ot Ramchandran Unni
on the words of Rajan and Kunjumon. I don’t know where he is now. At
the time of paying the amount I have not seen his wife or not talked to
her. I don’t know anything about him so I have given this complaint.”
9. The above statement of the complainant clearly indicates that money
was entrusted to the first accused (the husband of A-2) and not to A-2.
Complainant has also stated that at the time of paying the amount, the wife
was not seen. Police on investigation, noticed that during the period when
money was entrusted to the first accused, the second accused was not in the
residential house of first respondent. Investigation revealed that they
were separated and second accused started living at Thiruvananthapuram.
10. The appellant has also produced a copy of decree of divorce dated
25.1.2010 before the Court, which will indicate that the second accused had
obtained a decree of divorce against the first accused on the ground of
cruelty under Section 13(1)(a) of the Hindu Marriage Act, 1955.
Considering the fact that the second accused had no role, even according to
the complainant, there is no reason to prosecute the second accused. In
our view, the Magistrate has not considered this vital aspect when the
protest petition was considered by him.
11. Magistrate has to exercise judicial discretion and apply his mind to
the contents of the petition. The refer report as well as the statement
of the complainant would indicate that no offence has been made out so far
as the second accused is concerned since, admittedly, no money was
entrusted to her and that second accused is the divorced wife of the first
accused. That being the factual situation, we are inclined to allow the
appeal so far as the second accused is concerned and the summons issued
against the second accused would stand quashed. However, it is open to the
Magistrate to proceed against the first accused.
12. The appeal is allowed, as above.
November 21, 2013.