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Gopala Panikkar Thankappan and ors. Vs. the State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 459 of 1967
Judge
Reported inAIR1969Ker29; 1969CriLJ116
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 190(1); Indian Penal Code (IPC), 1860 - Sections 34, 379 and 395
AppellantGopala Panikkar Thankappan and ors.
RespondentThe State of Kerala
Appellant Advocate V. Nagappan Nair, Adv.
Respondent AdvocateState Prosecutor
DispositionPetition dismissed
Cases ReferredAbhinandan Jha v. Dinesh Mishra
Excerpt:
- - the police made investigation and submitted what was called a 'final report' under section 173(1) of the code to the effect that the offence complained of was false. therefore, there is no doubt regarding the jurisdiction of the magistrate to take cognizance in a case like this. it may also be interesting to note that the number of the accused persons was brought down by the police to less than five and the offence also reduced to one under section 379 of the penal code......were mentioned as witnesses 5, 6 and 7. when the trial commenced, the counsel of the four accused persons who were accused persons 1. 5. 0 and 7 in the complaint, contended that the dropping of the petitioners from the array of accused persons was mala fide and illegal. the counsel also contended that the real culprits were the petitioners. alter hearing arguments of the counsel including the public prosecutor, the sub-divisional magistrate directed that the petitioners be also arrayed as accused persons 5 to 7 and summonses issued to them. the revision petition is against that order of the sub-divisional magistrate.2. i may at the very outset state that the public prosecutor has also agreed with the contention of the counsel of the petitioners, so that i have had no help from.....
Judgment:
ORDER

T.C. Raghavan, J.

1. On 22nd July 1967 a person by name Damodara Pillai lodged a first information statement (a complaint) against the three petitioners, four others whose names were also mentioned in the complaint and 12 more who could be identified but whose names were not known under Section 395 of the Penal Code. The police registered a ease and started investigation. Ultimately, on 9th October 1967 the police filed a charge-sheet against the four other persons mentioned by name in the complaint, dropping the petitioner, under Section 379 of the Penal Code road with Section 31 thereof. The petitioners were mentioned as witnesses 5, 6 and 7. When the trial commenced, the counsel of the four accused persons who were accused persons 1. 5. 0 and 7 in the complaint, contended that the dropping of the petitioners from the array of accused persons was mala fide and illegal. The counsel also contended that the real culprits were the petitioners. Alter hearing arguments of the counsel including the Public Prosecutor, the Sub-Divisional Magistrate directed that the petitioners be also arrayed as accused persons 5 to 7 and summonses issued to them. The revision petition is against that order of the Sub-Divisional Magistrate.

2. I may at the very outset state that the Public Prosecutor has also agreed with the contention of the counsel of the petitioners, so that I have had no help from him. The Public Prosecutor has stated that since the informant (the complainant) did not have any objection to the course adopted by the police the Sub-Divisional Magistrate should not have directed that the petitioners be arrayed as accused persons; that the charge-sheet or the records in the case did not disclose any case against the petitioners; and that by the course adopted by the Sub-Divisional Magistrate, the prosecution is deprived of three of its witnesses. I may straightway dispose of these objections pointed out by the Public Prosecutor. The complainant having given a first information statement to the police, and the police having investigated the case and filed a charge-sheet, the fact that the complainant thereafter did not protest against the course adopted by the police is not relevant in considering the question whether the action taken by the Sub-Divisional Magistrate is legal. The third ground pointed out by the Public Prosecutor has also no force because this is not the method of securing witnesses to speak in support of the case of the prosecution. If the police felt that without getting some of the accused persons as witnesses the prosecution case could not be proved, there are legal methods of achieving the purpose; and this is not a method contemplated by law. The second objection, whether the records in the case disclosed offences against the petitioners, is a matter which will be considered by me in the course of the judgment hereinafter.

3. The counsel of the petitioners urges that the court has no power to interfere With the investigation by the police or direct them to file a charge-sheet. He has drawn my attention to the recent decision of the Supreme Court in Abhinandan Jha v. Dinesh Mishra AIR 1963 SC 117, wherein Vaidialingam J., speaking for the Court, has stated:

'There is no power expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code that there is no case made out for sending up an accused for trial.'

Vaidialingam J. has also stated:

'The functions of the Magistracy and the police are entirely different, and though the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.'

In that case, what happened was that the respondent before the Supreme Court lodged a first information statement before the police that he saw a thatched house situated on the northern side of his house burning and the petitioners before the Supreme Court running away from the scene. The police made investigation and submitted what was called a 'final report' under Section 173(1) of the Code to the effect that the offence complained of was false. The Sub-Divisional Magistrate received this report, but in the meanwhile, the respondent had filed what was termed 'a protest petition', challenging the correctness of the report of the police. The magistrate then perused the police diary, heard the counsel of the respondent and the Public Prosecutor and passed an order directing the police to submit a charge-sheet. These were the facts of one of the cases before Supreme Court; and in the other two cases the facts were similar.

4. It is clear that the magistrate had no authority to interfere with the investigation of the police under Chapter XIV of the Code of Criminal Procedure; and what happened in the cases before the Supreme Court was such interference with the investigation. In the case before me, no question of interference with the investigation of the police under Chapter XIV arises. Here the question is whether under Section 190 of the Code of Criminal Procedure the Sub-Divisional Magistrate had power or jurisdiction to pass an order as he has done in this case.

5. Section 190 of the Code appearing in Chapter XV dealing with the jurisdiction of criminal courts in inquiries and trials lays down, inter alia, that any Sub-Divisional Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence upon a report in writing of such facts made by any police officer, and upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. It is clear that under one or other of the clauses of this sub-section the magistrate can take cognizance of any offence, even upon his own knowledge or suspicion. Therefore, there is no doubt regarding the jurisdiction of the magistrate to take cognizance in a case like this. What he has done in this case is not to direct investigation by the police and file a charge-sheet. The magistrate has only taken cognizance of an offence against the petitioners after perusing the report in writing submitted by the police and the connected records including the first information statement (complaint) filed by Damodaran Pillai. Therefore, the action of the magistrate cannot be impugned on the ground of absence of jurisdiction.

6. Then it is urged that the action of the magistrate was under Clause (c), of Section 190(1) in which case he should have directed the trial of the case by another magistrate. I do not think the counsel is right in this contention either. What the magistrate had done in this case was to peruse the report in writing submitted by the police and the records in the case and then direct the array of the petitioners as accused persons. This action falls squarely within Clause (b) of the sub-section.

7. Lastly, I come to the objection whether the facts and circumstances of the case disclosed by the records in the case justify the course adopted by the Sub-Divisional Magistrate. The complaint, as already stated, mentioned the names of seven persons including the names of the petitioners who were arrayed as accused persons 2, 3 and 4 therein. The first information report sent to the magistrate by the police also contained these names. The complaint also disclosed that these seven accused persons and twelve others stopped Damodaran Pillai when he was going on a bicyle with some rice in two bags. They shouted threatening words at him, surrounded him and accused persons 1 to 3 pushed him off the bicycle, when the bicycle and the rice bags fell on the road. Damodaran Pillai got up and picked up the bicycle; and when he was afraid to leave the place because of the attitude of the crowd, the first accused person showed an open knife and threatened him. The second accused person also shouted at him demanding him to release his hold on the bicycle. Ultimately, the first accused person took away the bicycle and rice.

8. According to the statements taken under Section 162 of the Code of Criminal Procedure from the petitioners by the police, what appears is that the three petitioners and about 20 others stopped Damodaran Pillai and asked him to self the rice there at the control rate, when accused persons 1, 5, 6 and 7 mentioned in the complaint came suddenly on the scene and took away the bicycle with the rice. The bicycle was kept leaning against a lamp post. Even if this version given by the petitioners is the true version, still as rightly pointed out by the Sub-Divisional Magistrate, in a case where a group of persons detain a person carrying some Articles and engage themselves in some negotiation with him and another group suddenly appears at the scene and remove the Articles while the first group remain silent spectators, the natural inference is that the group which detained the person and the group which removed the Articles are members of a gang acting in furtherance of a common intention. Therefore, the facts revealed by the records in the case justify the course adopted by the Sub-Divisional Magistrate. It may also be interesting to note that the number of the accused persons was brought down by the police to less than five and the offence also reduced to one under Section 379 of the Penal Code.

9. The order of the Sub-DivisionalMagistrate is confirmed; the revision petitionis dismissed.


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