Kerala High Court
P.J. Kurien vs Renjitha And Ors. on 3 November, 1999
Equivalent citations: 2000CRILJ1731
ORDER K.A. Mohamed Shafi, J.
1. The respondent accused in C.M.P. No. 1436/99 before the Judical First Class Magistrate' Court, Peermade now pending in C.P. 21/99 has filed this M.C. to quash the entire proceedings under Section 482 of the Cr.P.C.
2. The 1st respondent herein filed a complaint before the Magistrate's Court in C.M.P. 1436/99 alleging offences punishable under Sections 363, 365, 366, 368, 372, 376 and 392 read with Sections 109 and 34, I.P.C. against the petitioner herein. The learned Magistrate after recording the sworn statements of the complainant and seven witnesses and finding sufficient ground for proceeding against the petitioner for the offence punishable under Section 376, I.P.C. took the complaint into file, numbered as C.P. 21/99 and issued summons to the petitioner by the impugned order dated 7-5-1999. Hence the petitioner has preferred this M.C. before this Court to quash the entire proceedings on various grounds.
3. The 1st respondent has allowed in the complaint that one Raju with whom she was in love has lured her away from her residence on 16-1-1996 on the promise to marry her and thereafter she was wrongfully confined and taken to various places in Kerala by threat and coercion and subjected to rape by various persons against her will till 26-2-1996. She has also alleged that while she was in wrongful confinement at the Rest House, Kumily from 15-2-1996 onwards, on 19-2-1996 at about 7 pm. a person aged about 50 years called Banji entered the room and forcibly raped her twice successively ignoring her plea to rescue her and her protest and left the room at about 7.30 p.m. It is further alleged that when she found the photograph in Mathrubhoomi dated 26-3-1996 she identified that the person called Banji who raped her on 19-2-1996 is the petitioner herein, who was a Central Minister at that time. She informed this fact to her father and he informed the matter to the concerned authorities. But since the petitioner's name was not included in the charge sheet laid by the police, which is pending as S.C. 35/98 before the Sessions Court, Thodupuzha, as the accused for the offences committed against her, the complaint is filed before the Magistrate's Court.
4. On the basis of the F.I. Statement given by the 2nd respondent herein, the father of the 1st respondent on 17-1-1996, the Munnar Police had registered an FIR in Crime No. 6/96 and after investigation the Crime Branch Police had filed charge sheet against 42 accused persons and the same was pending in S.C. 35/98 before the Sessions Court, Thodupuzha and the same is now pending before the Special Court established for the trial of the case. The charge sheet was filed before the Court by the investigation officer on 17-8-1997. The above complaint is filed by the 1st respondent on 15-3-1999 before the learned Magistrate.
5. In this M.C. the petitioner seeks to quash the entire proceedings against him on the following grounds. If all the allegations made by the 1st respondent-complainant are taken at their face value and accepted in its entirety, it will not make out a prima facie case against the petitioner. The allegations made in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there is sufficient ground for proceeding against the petitioner. The procedings are instituted maliciously with ulterior motive for wrecking vengeance against the petitioner and with a view to spite him due to private and personal grudge on account of political enmity. The allegations made against the petitioner are totally baseless and absolutely false. The present complaint filed by the 1st respondent is not legally sustainable in view of O.P. 6945/96 filed by the 2nd respondent before this Court on the principles of estoppel by election. The impugned order passed by the learned Magistrate is illegal since the learned Magistrate has not complied with the proviso to Sub-section (2) of Section 202 of the Cr.P.C.
6. The 2nd respondent had filed the F.I. Statement before the Munnar Police on 17-1-1996 for registering Crime No. 6/96 on the ground that the 1st respondent was aged about 16 years at that time. Since the respondents were not satisfied that the investigation conducted in this case was fair and proper, O.P. 6945/96 is filed by the 2nd respondent before this Court seeking a direction from this Court for investigation in the case by the C.B.I. and for examination of the 1st respondent by a Medical Board. A copy of that O.P. is annexed to this M.C. a Annexure IX. Though this Court passed an order in C.M.P. 11845/96 in that O.P. on 12-4-1996 directing the D.I.G. C.B.C.I.D. to file a comprehensive report regarding the various steps taken for investigation in that crime and to post the O.P. after two weeks and subsequently directed to post the case immediately after vacation, it is submitted that the O.P. is still pending before this Court. The counsel for the petitioner submitted that the reliefs claimed in the O.P. and in the above complaint are mutually exclusive and therefore the complaint is barred by the principles of estoppel by election.
7. Section 115 of the Evidence Act deals with estoppel. When a person having two alternative courses of action mutually exclusive chooses to adopt one of them and rejects the other expressly or impliedly, he is said to have elected to choose one of them and he is subsequently precluded from adopting the other course which he chose or intended to reject. In the book 'Estoppel by Representation' by Spencer Bower and Turner, 3rd Edition at page 333 in para 322 the learned author has observed as follows :
Whether this occurs, the general rule of estoppel by election comes into play; that is to say, if by words, or (as is almost invariably by the case) by conduct or inaction, he represents to the other party litigant his intention to adopt one of the two alternative and inconsisent proceedings or positions, with the result that the latter is thereby encouraged to adopted or persevere in a line of conduct whch he otherwise would have abandone or modified, or as the case may be to change tactics from which he otherwise would never have deviated, the first party is estopped, as against his antagonist, from resorting afterwards to the course or attitude which, of his free choice, he has waived or discarded. Thus, where either of two alternative tribunals are open to a litigant, each having jurisdiction over the matters in dispute, and he resorts for his remedy to one of such tribunals in preference to the other, he is precluded, as against his opponent, from any subsequent recourse to the latter, at least at the point at which he has taken judgment in the first, and, so also, in the case of two alterantive modes of trial, if a litigant, by conduct or inaction, acquiesces in the adoption of one of these modes, by taking part in the proceedings down to their conclusion without objection or protest, he is estopped from afterwards complaining that the mode of trial with which he was content at the time was irregular or without jurisdiction.
8. Though the above principle regarding estoppel by election by a litigant cannot be disputed, the principle has no application to the facts of this case. As already noted the C.P. is filed by the 2nd respondent only seeking to change the investigating agency in the case and to examine the 1st respondent by a Medical Board. That O.P. was not filed seeking to prosecute or to convict the petitioner for any of the offences alleged against him by the 1st respondent in the complaint. The contention of respondent Nos. 1 and 2 that the principle of estoppel covers only the realm of civil rights and not the criminal rights of the litigants, is not sustainable. The plain dictionary meaning of litigation is 'judicaial controversy or a contest in a Court of law'. Therefore, litigation takes in civil as well as criminal litigation. Hence the principle of estoppel by election applies to both civil and criminal proceedings. In view of the fact that it is clear that the contentions raised and the reliefs claimed in the O.P. filed by the 2nd respondent before this Court, and the allegations made in the complaint and the reliefs sought in the complaint are entirely different and distinct and there is absolutely no election in between the two alternative and mutually exclusively remedies or two alternative courses of action, the principle of estoppel by election has no application to the facts of this case.
9. The petitioner has vehemently contended that Annexure I order passed by the learned Magistrate in this case, taking the complaint to file as C.P. 21/99 and directing issue of summons to the petitioner, is illegal for non-compliance of the mandatory provisions of the proviso to Sub-section (2) of Section 202 of the Cr.P.C. Section 202 of the Cr.P.C. reads as follows :
202. Postponement of issue of process- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he tinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :
Provided that no such direction for investigation shall be made,-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath;
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
The proviso to Sub-section (2) of Section 202 lays down that if it appears to the Magistrate that the offence complained of is triable exclusively by a Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
10. In this case the complainant and out of the five witnesses cited in the complaint, witness Nos. 1 to 3 were examined and the four witnesses cited in the list of witnesses produced by the complainant were examined by the learned Magistrate and their sworn statements were recorded as CWs 1 to 8. Two witnesses cited in the complaint were given up. In the complaint the 1st respondent has also stated that over and above the witnesses cited by her, the witnesses cited in the charge sheet filed by the police in the case also should be examined. The 1st respondent has stated before the learned Magistrate that only the witnesses examined by her before the Magistrate's Court will be examined in the Sessions Court and the learned Magistrate has mentioned in the impugned order that the counsel for the complainant filed an application stating that no other witnesses need be examined before that Court. The counsel for the 1st respondent on instruction also stated before this Court that the 1st respondent will be examining only the witnesses CWs. 1 to 8 examined before the Magistrate's Court as well as the witnesses cited in the charge sheet in Crime No. 6/96 of Munnar Police Station filed before the Magistrate's Court. While the counsel for the petitioner submitted that under the proviso to Section 202(2) of the Cr.P.C. it is mandatory for the Magistrate to examine all the witnesses of the complainant and as admittedly the learned Magistrate has examined only some of the witnesses cited by the complainant, the order passed by the learned Magistrate is in violation of the mandatory provisions of the proviso to Section 202(2) of the Cr.P.C,. the counsel for the respondents vehemently argued that since the learned Magistrate has examined all the witnesses produced and intended to be examined by the complainant and the statements of all the other witnesses cited in the charge sheet filed by the police whom the complainant intends to examine in this case, were recorded by the investigating officer under Section 161 of the Cr.P.C. and the copies of the statements are served upon the petitioner, there is proper and substantial compliance of the proviso to Section 202(2) of the Cr.P.C. and therefore, the impugned order passed by the learned Magistrate is perfectly legal and valid.
11. It is clear from the provisions of Section 202 of the Cr.P.C. that the scope of enquiry contemplated under that provision is very limited to decide whether or not there is sufficient ground for proceeding in the case and not to consider whether there is sufficient ground for conviction. In the decision in Imbicha Bava Haji v. Imbichi Bava 1965 Ker LT 771 this Court has observed as follows :
5. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is 'sufficient ground for process' and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. Decisions have laid down that the object of the provisions of Section 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath.
12. As per the provisions of Section 202(2) of Cr.P.C. the Magistrate has got discretion to take the evidence of witnesses on oath. But in case of offence complained of is triable exclusively by the Court of Session, the discretion of the Magistrate is taken away by the proviso and it is incumbent upon him to call upon the complainant to produce all his witnesses and examine them on oath. In support of the contention that under the proviso to Section 202(2) of the Cr.P.C. the Magistrate has to call upon the complainant to produce all his witnesses and examine them on oath, the counsel for the petitioner heavily relied upon the decision of the Full Bench of this Court in Moideenkutty Haji v. Kunhikoya (1987) 1 Ker LT 635 : 1987 Cri LJ 1106. In that judgment the Full Bench has observed as follows :
26. As result of the foregoing discussion we are forced to conclude that the legislature contemplated two types of enquiries under Section 202 and in the mandatory enquiry under Section 202 in a complaint case the Magistrate himself will have to conduct the enquiry and he will have to call upon the complainant to produce all his witnesses and examine them on oath.
In that case the question that arose for consideration before the Full Bench was whether the enquiry contemplated under Section 202 of the Cr.P.C. was mandatory or discretionary when a complaint is filed before the Magistrate in order to take cognizance of the offence. In para 13 of the judgment the Full Bench has observed as follows :
The real question to be decided is whether in 'complaint cases' the enquiry under Section 202 is mandatory or only discretionary.
The scope and ambit of the mandatory enquiry contemplated under Section 202(2) of Cr.P.C. is elaborately considered by the Full Bench in various paragraphs of the judgment and it is observed as follows :
25. In a complaint case the enquiry under Section 202 by the Magistrate into the truth of the complaint is made mandatory and in a way it is intended to take the place of investigation by the police. This safeguard must be to take the place of the preliminary enquiry proceedings provided in the old Code.
The entire observations made in that judgment rendered by the Full Bench of this Court make it clear that the Full Bench only considered whether in complaint cases the enquiry under Section 202 is mandatory or discretionary and the scope and ambit of the clause in the proviso that the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath, is not specifically considered by the Full Bench.
13. Section 207 of the Cr.P.C. stipulates that the cases instituted on police report the Magistrate should furnish the police report, the first information report, the statements recorded under Section 161(3) of all the persons whom the prosecution proposes to examine as its witnesses, the confession statements, it any, recorded under Section 164 and any other document or relevant extract thereof forwarded to the Magistrate with the police report, to the accused. Section 208 lays down that in cases instituted otherwise than on a police report, if the offence is triable exclusively by the Court of Session, the Magistrate should furnish the statements recorded under Section 200 or 202 of all persons examined by the Magistrate, the statements and confessions, if any, recorded under Section 161 or Section 164 and any other documents produced before the Magistrate on which the prosecution proposes to rely upon, to the accused.
14. From the provisions of Section 208, Cr.P.C. it is clear that the provision is applicable to ordinary complaint cases as well as protest complaints. It is well settled that with respect to offences triable exclusively by Court of Session the Magistrate has to bear in mind that the enquiry under Section 202 of Cr.P.C. is not only for formation of his opinion that there is or is not sufficient ground to proceed in the case, but also the case has to go out of his Court to be tried by a superior Court which has to enter independent findings and is not bound by any of the findings arrived at by the Magistrate. There must be sufficient materials for the Public Prosecutor to open the case and to state before the Sessions Court of the evidence he proposes to adduce to prove the guilt of the accused. Though in police charge cases the investigating agency should filter the evidence materials and the various records mentioned in Section 207 of Cr.P.C. should be furnished by the Magistrate to the accused before the committal of the case, in complaint cases the accused will be in a disadvantageous position, since in the absence of investigati6n no document will be available to be furnished to the accused as provided in Section 207 of Cr.P.C. Therefore, Section 208 has made incumbent upon the Magistrate to furnish all the statements of the witnesses recorded under Sections 200 or 202 of Cr.P.C. to the accused.
15. In the decision in Leela Dhar v. State of U.P. 1991 Cri LJ 2857 a single Judge of the Allahabad High Court has held that the complainant will be entitled to examine in the Sessions Court only the witnesses whose statements are recorded before the Magistrate and the complainant cannot be permitted to examine any witness in the Sessions Court after committal of the case to the Court of Session who are not examined before the Magistrate. I am in respectful agreement with the above view expressed by the Allahabad High Court since it is in consonance with the observations made by me above.
16. The cardinal question to be considered in this case is whether the Magistrate should examine all the witnesses cited by the complainant or will it be sufficient to examine all the witnesses produced by the complainant. In the decision in Jumman v. State of U.P. 1988 Cri LJ 199 a single Judge of the Allahabad High Court has held that the proviso to Section 202(2) of Cr.P.C. does not require all the prosecution witnesses to be examined and it requires only to examine those witnesses who are of the choice of the complainant or in whom the complainant has reposed confidence. In that judgment the learned Judge has observed as follows at p. 203 of Cri LJ :-
10A. As regards the second point about the proviso to Section 202(2) to the effect that in a case triable exclusively by Sessions Court, Magistrate shall call upon the complainant to produce all his witnesses. It is important to mention that the intention of the Legislature is not such as the learned counsel for the applicant suggested inasmuch as the words used by the Legislature are certainly not that the complainant shall examine' all the prosecution witnesses' nor the words are that the Magistrate shall call upon the complainant to examine 'all witnesses' rather the words are that the Magistrate shall call upon the complainant to examine 'all his witnesses'. It cannot therefore be said that the Magistrate shall call upon the complainant to examine all witnesses rather only those witnesses are required to be examined which can be said to be 'his' witnesses or in other words of the choice of the complainant or on whom the complainant places reliance. There may be a number of witnesses in a case but there is category of the witnesses keeping in view the credibility of the witnesses and the confidence of the complainant on them. Under Section 200(2) the word 'witnesses' is qualified by the word 'his'. The word 'his' according to grammar is adjective and pronoun. The word 'his' obviously connotes pertaining to him interested in him or being of his choice or in other words in whom the complanant reposes his confidence. It is, therefore, obvious that if a number of witnesses have been given in the list, all of them need not be examined. In such matters intention of the Legislature has to be ascertained.
17. In the decision in Gopal Singh v. Dhanraji Devi 1994 Cri LJ 1652 a single Judge of the Allahabad High Court has observed as follows at p. 1658 of Cri LJ :
It is thus quite evident that 8 witnesses which have been examined by the Magistrate were the only witnesses which the complainant desired to be produced and intended to rely upon and thus there was compliance of provisions of Section 202(2), Cr.P.C.
18. In the decision in S.K. Siraj v. State of Orissa 1994 Cri LJ 2410 a single Judge of the Orissa High Court has observed as follows at p. 2413 of Cri LJ :
If the complainant gives up some witnesses, then the witnesses left are not 'his witnesses'. Only those on whom the complainant relies need be examined. The complainant is free to examine witnesses who are of his choice. He cannot be compelled to examine a person, whom he knows is going to depose against him, or is going to suppress the truth. However, he has to make it clear to the Court that he does not want to examine some particular persons, though named as witnesses in the complaint petition.
19. In the decision in Charan Rout v. Prafulla Kumar Mangaraj, 1997 Cri LJ 1010 a Division Bench of the Orissa High Court has observed as follows :
The expression 'all his witnesses' has been construed to mean "all the witnesses whom the complainant chooses to examine'. The complainant is given opportunity to produce witnesses ana it is open to him to produce all or some of the witnesses in the inquiry. While he adopts the latter course, he has to intimate the Court that no other witness is proposed to be examined by him. Only those witnesses who in the opinion of the complainant are necessary to be examined can be tendered by him for examination. If the complainant makes it clear as to which of the witnesses he proposes to examine, the Magistrate need not examine other witnesses.
But there is no statutory mandate for the Magistrate to direct the complainant to examine himself. Mis duty ends by calling upon the complainant to produce all his witnesses. The question whom the complainant would choose to examine and effect of non-exainination of any particular witness are not dealt with in the proviso to Sub-section (2) of Section 202.
20. On a careful and anxious consideration of Sub-section (2) of Section 202 of Cr.P.C. and the proviso thereto, and the above judgments of the Allahabad end Orissa High Courts, I find that they laid down the correct law with regard to the expression 'all his witnesses' occurring in the proviso to Sub-section (2) of Section 202 of the Cr.P.C. and I am in respectful agreement with the view expressed in those judgments. Hence the decision in A.P. Fernandes v. Rabindra 1996 Cri LJ 622 rendered by a single Judge of the Bombay High Court following the Full Bench decision of this Court in Moideenkutty Haji v. Kunhikoya (1987) 1 Ker LT 635 : 1987 Cri LJ 1106 referred to above holding that due to the non examination of all witnesses listed in the complaint, the accused is liable to be discharged, on which much reliance is placed by the petitioner herein, cannot be followed by this Court, since that judgment does not lay down the correct law on the point. Therefore, the contention of the petitioner that the impugned order passed by the Magistrate in. this case is vitiated for non-examination of all the witnesses on oath cited by the 1st respondent, is not sustainable since the 1st respondent-complainant has stated before the Magistrate's Court as will as this Court that out of the witnesses cited in the complaint and the witness listed filed by her, only the witnesses whose sworn statements are recorded before the Magistrate will be examined by her before the Sessions Court at the time of trial.
21. The next question to be considered is whether the learned Magistrate would have examined on oath all the 208 witnesses cited by the investigating officer in the charge-sheet laid before the Magistrate's Court in Crime No. 6/96 of Munnar Police Station. The 1st rapondent has contended that she is not obliged to examine all those witnesses before the Magistrate for the enquiry under Section 202 of the Cr.P.C. since the investigating officer has recorded the statements of all those witnesses during the course of investigation under Section 161 of the Cr.P.C. and copies of those statements are furnished to the. petitioner. The petitioner has produced copy of the charge-sheet laid by the investigating officer in Crime No. 6/96 with all accompaniments including the statements of the witnesses recorded by the investigating officer under Section 161 of the Cr.P.C, before this Court. Therefore, it is clear that the statements recorded by the investigating officer in Crime No. 6/96 of Munnar Police Station of all the witnesses cited in that case by the investigating officer are furnished to the petitioner.
22. The petitioner has contended that under the proviso to Section 162(1) of Cr.P.C. the statements of witnesses recorded by the investigating officer under Section 161 can be used only for the enquiry or trial in respect of any offence regarding which the investigation was conducted. The counsel for the petitioner submitted that the petitioner was not made an accused in the FIR in Crime No. 6/96 nor any charge is laid by the investigating officer against him with regard to the several offences alleged in that case. Therefore, according to him, the proviso to Section 162(1) is a clear bar against the petitioner from using any portion of the statements of witnesses recorded by the investigating officer in Crime No. 6/96 in the above case instituted by the 1st respondent by filing the complaint against him before the Court. Therefore, according to him, it is mandatory for the Magistrate to record the sworn statements of all the witnesses cited in the charge-sheet in Crime No. 6/96 since the 1st respondent has stated that she proposes to examine all those witnesses before the Sessions Court at the time of trial and therefore, the order passed by the Magistrate taking cognizance of the offence against the petitioner and directing issue of summons is vitiated.
23. The counsel for the respondents submitted that though sufficient materials were available during the investigation in Crime No. 6/96 to implicate the petitioner in the case, the investigating officer did not array him as an accused when final report was filed after investigation and therefore the 1st respondent was constrained to file the above complaint before the Magistrate alleging the very same offences against the petitioner. Therefore, according to him, the investigation in Crime No. 6/96 which led to the filing of charge-sheet by the investigating officer citing the witnesses and the above complaint filed by the 1st respondent against the petitioner are part of the same transaction. I find this controversy as to whether the 1st respondent is entitled to examine all the witnesses cited in the charge-sheet laid by the investigating officer in Crime No. 6/96, before the Sessions Court in the above complaint case filed by the 1st respondent against the petitioner, without recording their sworn statements before the Magistrate, since their statements are already recorded by the investigating officer under Section 161 of the Cr.P.C. and whether the statements of the witnesses recorded by the investigating officer during the course of investigation in Crime No. 6/96 can be used by the petitioner against those witnesses in this case, need not detain us any more in this proceeding under Section 482 of the Cr.P.C. If the statements of the witnesses cited in the charge-sheet in Crime No. 6/96 cannot be used by the petitioner against those witnesses to be examined in this case, the 1st respondent will be precluded from examining those witnesses in the Sessions Court, since their statements are not recorded by the Magistrate and the copies of their statements are not provided to the petitioner in this case. In that view, the failure to examine the witnesses cited in Crime No. 6/96 and to record their statements before the Magistrate will be more fatal to the 1st respondent-complainant than the petitioner-accused in this case. I am not expressing any opinion in that regard in these proceedings under Section 482 of the Cr.P.C. and that matter will be decided by the appropriate Court at the appropriate stage.
24. In view of the fact that the examination of the writnesses by the Magistrate is intended to safeguard the interest of the accused and the statements of the witnesses cited in the charge-sheet laid in Crime No. 6/96 are already recorded by the investigating officer and their copies are made available to the petitioner, the contention of the petitioner that non-examination of all those witnesses by the 1st respondent before the Magistrate in this case is fatal cannot be accepted. Therefore, the contention raised by the petitioner that the impugned order passed by the learned Magistrate is vitiated for non-compliance of the proviso to Section 202(2) of the Cr.P.C., is not sustainable.
25. The counsel for the petitioner submitted that the impugned order passed by the lower Court is illegal and unsustainable since the learned Magistrate did not consider the charge-sheet laid by the investigating officer in Crime No. 6/96 referring the case against the petitioner. He argued that the failure of the learned Magistrate to consider the final report filed by the investigating officer which constituted material under Section 202 of Cr.P.C. amounts to abuse of process of the Court and therefore the impugned order passed by the learned Magistrate taking cognizance of the offence is absolutely unsustainable. In support of the contention that the learned Magistrate should have considered the final report filed by the investigating officer in Crime No. 6/96 before the Court, before-passing the impuned order taking cognizance of the offence and his failure to consider the same vitiates the order, the counsel for the petitioner relied upon the decisions in Daleep Singh v. Smt. Magan 1996 Cri LJ 190 (Raj) and Kader v. State of Kerala, (1999) 3 Ker LT 55 : 1999 Cri LJ 4151.
26. In the decision reported in 1996 Cri LJ 190, a single Judge of the Rajasthan High Court has observed as follows at p. 194 of Cri LJ :
13. In the case on hand, the learned Magistrate has not at all considered the report of the S.H.O., P.S. Sardar Shahar dated 24-10-87, which was accompanied with the statements of the complainant and her witnesses. As mentioned earlier, the report was sent for by the Magistrate by sending a copy of the criminal complaint. Thus, the said report constituted material under Section 202, Cr.P.C. Consideration of the material under Section 202, Cr.P.C. is not an empty formality. Such consideration cannot be done in a perfunctory or mechanical manner or by adopting a superficial approach. Therefore, non-consideration of the aforementioned material under Section 202, Cr.P.C., ignoring the same and taking cognizance is tantamount to abuse of the process of the Court and on this ground, the impugned order cannot be sustained.
27. In the decision reported in (1999) 3 Ker LT 55 : 1999 Cri LJ 4151 a learned single Judge of this Court has referred to the above decision of the Rajasthan High Court and held that the Magistrate while conducting enquiry under Sections 200 or 202 of the Cr.P.C. has to consider the allegation made in the complaint and the statement of the complainant and also the result of the enquiry or investigation, if any, held by the police in the matter and the consideration of the materials under Section 202 of the Cr.P.C. is not an empty formality and cannot be done in a perfunctory or mechanical manner or by adopting a superficial approach.
28. In this case the very contention of the 1st respondent is that even though there were sufficient materials to array the petitioner as accused in Crime No. 6/96 and to conduct investigation against him, the investigating agency did not make the petitioner an accused in that crime and no investigation is conducted against him. It is clear from the charge-sheet laid in Crime No. 6/96 that there was absolutely no investigation against the petitioner and no final report as far as the allegations made against the petitioner by the 1st respondent in this complaint is filed therein. Therefore, it cannot be said that the final report filed by the investigating officer in Crime No. 6/96 is a material to be considered by the learned Magistrate while conducting enquiry under Section 202 of the Cr.P.C. to arrive at a finding as to whether cognizance of the offence should be taken or not. Therefore, this contention of the petitioner is also not sustainable.
29. Counsel for petitioner submitted relying upon various decisions of the Supreme Court which lay down the circumstances under which this Court can quash the criminal proceedings by invoking the inherent jurisdiction under Section 482 of the Cr.P.C. that this is an appropriate case wherein this Court should exercise its inherent jurisdiction under Section 482 of the Cr.P.C. to quash the entire proceedings against the petitioner. In the decision reported in Nagawwa v. Veeranna Shivalingappa Konjalgi, 1976 SCC (Cr) 507 : 1976 Cri LJ 1533 the Supreme Court has held that in the following cases an order passed by Magistrate issuing process against the accused can be quashed or set aside (1) Where the allegations made in the complaint or the statements of the wit nesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible.
(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of complaint by legally competent authority and the like.
The Supreme Court has also observed that the cases mentioned above are purely illustrative and provides sufficient guidelines to indicate contingencies wherein the High Court can quash the proceedings.
30. In the decision reported in State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604 : 1992 Cri LJ 527 the Supreme Court has observed as follows :- (Para 62) Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons suite human dignity is a dear value of Constitution. It needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will be tantamount to recognition of Divine Power which no authority on earth can enjoy.
In that judgment the Supreme Court has laid down the guidelines for the exercise of the power under Section 482 of the Cr.P.C. They are the following (Para 108) :-
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
31. In that judgment the Supreme Court has also observed that the categories of cases mentioned above are only by way of illustration wherein the power under Section 482 of the Cr.P.C. can be exercised either to prevent the abuse of process of Court or otherwise to secure the ends of justice and those guidelines are not exhaustive. In that judgment the Supreme Court has also observed as follows 1992 Cri LJ 527, Para 109 :-
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.
32. In the decision reported in Rupan Deol Bajaj v. K.P.S. Gill, (1995) 2 Ker LT 830 : 1996 Cri LJ 381 the Supreme Court has quoted with approval the above guidelines and observations made by the Supreme Court in AIR 1992 SC 604 : 1992 Cri LJ 527.
33. In the decision reported in Pepsi Food Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 Cri LJ 1 the Supreme Court has observed as follows at pp. 9 and 10 of Cri LJ :-
No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.
x x x x x x
x x x x x x
It is certainly one of those cases where there is an abuse of the process of the law and the Courts and the High Court should not have shied away in exercising their jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view the High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it.
34. In the decision reported in Ashok Chaturvedi v. Shitul H. Chanchani, (1998) 7 SCC 698 : 1998 Cri LJ 4091 the Supreme Court has observed as follows at p. 4093 of Cri LJ :-
It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of Court, and therefore, there cannot be any dispute that in such case power under Section 482 of the Code, can be exercised.
35. In the decision reported in Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR 1983 SC 67 : 1983 Cri LJ 159 the Supreme Court has observed as follows (Para 10) :-
It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or substracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code.
36. In the decision reported in J.P. Sharma v. Vinod Kumar Jain, AIR 1986 SC 833 : 1986 Cri LJ 917 the Supreme Court has observed as follows (Para 51) :-
The grounds upon which the learned Judge seems to have quashed the complaint in the instant case was the subsequent report by the CBI which had not yet been proved and considered in the background of the allegations made and secondly that some of the parties alleged to be in the conspiracy were not made parties. These, in our opinion, are no grounds for quashing the criminal proceedings where on prima facie being satisfied the learned Metropolitan Magistrate had taken cognizance. Taking all the allegations in the complaint to be true, without adding or substracting anything, at this stage it cannot be said that no prima facie case for trial had been made out. That is the limit of the power to be exercised by the High Court under Section 482 of the Code of Criminal Procedure. The High Court in the instant case has exceeded that jurisdiction.
37. In the decision reported in State of Bihar v. Ramesh Singh, 1977 SCC (Cri) 533 : 1977 Cri LJ 1606 the Supreme Court has observed as follows (Para 5) :-
In Nirmaljit Singh Hoon v. State of West Bengal, AIR 1972 SC 2639, Shelat, J. delivering the judgment on behalf of the majority of the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prakash Chandra Bose, 1963 (2) Cri LJ 397 : AIR 1963 SC 1430. Where this Court was held to have laid down with reference to the similar provisions contained in Sections 202 and 203 of the Code of Criminal Procedure, 1898 that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused.
38. In the decision reported in State of Maharashtra v. Ishwar Piraji Kalpatri, 1996 SCC (Cri) 150 : 1996 Cri LJ 1127 the Supreme Court has observed as follows at p. 1133 of Cri LJ :-
In fact, the question of mala fides in a case like the present is not at all relevant. If the complaint which is made is correct and an offence had been committed which will have to be established in a Court of law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala fides. If the ingredients which establish the commission of the offence or misconduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides, would be no ground for quashing the prosecution.
39. In the decision reported in State of Orissa v. Bansidhar Singh, 1996 SCC (Crl) 259 : AIR 1996 SC 938 the Supreme Court has observed as follows at p. 940 of Cri LJ :-
Apart from the above facts, the High Court also took into consideration the state ments of certain persons for purposes of testing the reliability of the alleged dying declaration. Such evidence could be adduced in defence during the trial but surprisingly enough the High Court took into account the statement of certain persons to the effect that the deceased was a person of unsound mind at the investigation stage itself whose evidence is yet to be recorded at the trial and made observations that the deceased was a person of unsound mind and, therefore, the dying declaration could not be relied on. Such an approach to the case cannot be appreciated. However, after taking into consideration all the facts and circumstances of the case and on perusal of the alleged dying declaration as well as the statement of Badal Mukhi as pointed out earlier, we are satisfied that it was not a case where the taking of cognizance of the offence against the respondent deserved quashing by the High Court. On the contrary it is a fit case where the cognizance should be taken against the respondent for the alleged offence and the learned Magistrate was justified in doing so.
40. In the decision reported in Mushtaq Ahmad v. Mohammed Habibur Rehman Faizi, 1996 SCC (Crl) 443 : 1996 Cri LJ 1877 the Supreme Court has observed as follows at p. 1878 of Cri LJ :-
According to the complaint, the respondents had thereby committed breach of trust of government money. In support of the above allegations made in the complaint copies of the salary statements of the relevant periods were produced. In spite of the fact that the complaint and the documents annexed thereto clearly made out a prima facie case for cheating, breach of trust and forgery, the High Court proceeded to consider the version of the respondents given out in their petition filed under Section 482, Cr.P.C. vis-a-vis that of the appellant and entered into the debatable area of deciding which of the versions was true a course wholly impermissible in view of the above quoted observations in the case of Bhajan Lal, 1992 Cri LJ 527 (SC).
41. In the decision reported in State of U.P. v. O.P. Sharma, 1996 SCC (Crl) 487 : 1996 Cri LJ 1878 the Supreme Court has observed as follows at p. 1881 of Cri LJ :-
When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the Court. When investigating officer spends considerable time to collect the evidence and places the charge sheet before the Court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole.
42. In the decision reported in State of Bihar v. Rajendra Agrawalla, 1996 SCC (Crl) 628 the Supreme Court has observed as follows :-
It has been held by this Court in several cases that the inherent power of the Court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the Court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out.
43. In the decision reported in State of M.P. v. Harsh Gupta, 1998 SCC (Crl) 1723 : 1999 Cri LJ 5011 the Supreme Court has observed as follows at p. 5012 of Cri LJ :-
It is rather surprising that at a stage when the only question to be considered was whether the complaint and its accompaniments disclosed any or all of the offences alleged against the respondent, the learned Judge not only went into a detailed discussion about his defence but recorded a conclusive finding that he was not guilty of the offence alleged against him.
44. In the decision reported in State of Kerala v. O.C. Kuttan, AIR 1999 SC 1044 : 1999 Cri LJ 1623 the Supreme Court has observed as follows (Para 6) :-
Bearing in mind the parameters laid down in the aforesaid judgments and on a thorough scrutiny of the statement of Seena dt. 23-7-1986, which was treated as an FIR and on the basis of which criminal case was registered and her subsequent statements dt. 24-8-96 and 25-8-96, we have no hesitation to come to the conclusion that the High Court committed gross error in embarking upon an enquiry by shifting of evidence and coming to a conclusion with regard to the age of the lady on the date of alleged sexual intercourse, she had with the accused persons and also in recording a finding that no offence of rape can be said to have been committed on the allegations made as she was never forced to have sex but on the other hand she willingly had sex with those who paid money.
45. Bearing in mind the above principles laid down by the Supreme Court in the various rulings noted above, we have to consider the various contentions raised by the petitioner to quash Annexure-II complaint filed by the 1st respondent and Annexure-I order passed by the learned Magistrate in this case.
46. The petitioner has contended that if the entire allegations made in the complaint are accepted on their face value, it will not make out a prima facie case against the petitioner and the allegations made in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there is sufficient ground for proceeding against the petitioner. The allegation made in the complaint is that on 19-2-96 at about 7 p.m. while the 1st respondent was wrongfully confined in the Kumily Rest House, the petitioner and another person entered into the room and the door was closed from outside leaving the petitioner alone in the room with her, that though the 1st respondent complained him about her horrible plight and requested the petitioner to save her, ignoring the same he committed rape on her twice against her will and left the place at about 7.30 p.m. According to her, the person committed rape on her at that time on that day from Kumily Rest House was called as Banji and subsequently on 26-3-96 when she saw the photo of the petitioner in the Mathrubhoomi daily, she identified that the person who committed rape on her from Kumily Rest House was the petitioner. The counsel for the petitioner submitted that the original allegation made by the 1st respondent was that in between 16-2-96 and 21-2-96 one Baji had committed rape on her from Kumily Rest House and that Baji was arrested by the police long back and identified by the 1st respondent. He also argued that the alleged rapist originally named as Baji in the complaint filed by the 2nd respondent as well as in the three statements of the 1st respondent recorded by the police, has been changed as Banji in the complaint and subsequently pinned upon the petitioner who is a man aged 50 years, a Professor in the College and a leading politician in Kerala and a member in the Central Council of Ministers during the relevant time. He submitted that it is not only highly improbable but does not comprehend human conscience that while he was a Union Minister, he travelled such long distance from Thiruvalla to Kumily for this purpose and committed rape on the 1st respondent twice within a short time of half-an hour as narrated in detail in the complaint filed by the 1st respondent.
47. It has to be noted that sexual lust vary from person to person and it does not have any barrier of age or social or political status of the person. The media is galore with sex scandals and the advantures and activities of various persons, young and old and very highly placed in social and political life to satiate their lust throughout the world. Therefore, the allegations made against the petitioner cannot be simply thrown overboard due to the fact that the petitioner aged more than 50 years, was a Professor and leading politician holding the office of a Minister in the Central Cabinet. The question whether the evidence available is sufficient to convict the petitioner is no consideration at all at this juncture. Therefore, this contention of the petitioner cannot be countenanced in this M.C. to quash the criminal proceedings initiated against him, at the threshold.
48. The petitioner has contended that this absolutely false complaint is foisted against him due to political enmity and personal vendetta. According to him, as the Desabhimani daily continuously carried several publications highly derogatory and defamatory against him in the eve of the general election to the Parliament in the year 1996, the petitioner being a candidate in the election, was forced to file a civil suit claiming damages for defamation against Desabhimani daily and Sri E.K. Nayanar, the Chief Minister of Kerala, being its Chief Editor and the respondents 1 and 2 and it is long after the summons were served upon the Chief Minister and respondents 1 and 2 in the suit and written statements filed by them before the Sub-Court, Thiruvalla, the above absolutely false complaint is filed by the 1st respondent against the petitioner on 15-3-1999.
49. Annexures-VII and VIII to this M.C. establish that the above complaint is filed after the suit was filed by the petitioner and written statements were filed by respondents 1 and 2 before the Sub-Court, Thiruvalla. The statements made by the 1st respondent and her parents before the learned Magistrate in this case also go to show that prior to the filing of the above complaint, they were served with summons in the suit and written statements were filed by them before the Sub-Court, Thiruvalla. But there is nothing on record to show that the above complaint is filed due to political enmity or personal vendetta due to the filing of the suit for damages for defamation by the petitioner against the Desabhimani daily and its Chief Editor Sri E.K. Nayanar, respondents 1 and 2 and others. Absolutely no explanation is offered by the petitioner, out of the ever so many leaders and politicians belonging to Congress I, why the petitioner was singled out to be implicated in such a very grave offence. Except the publication of the alleged false and defamatory statements against the petitioner continuously in Desabhimani daily and filing of the suit claiming damages for defamation, no other political or personal enmity is alleged against the respondents. Apart from the allegation that the 2nd respondent being an employee in the Postal Department and a member of the Union N.F.P.T.E., owing allegiance to Marxist Communist Party, no other personal enmity or political vendetta is alleged against respondents 1 and 2. The allegation of political animosity or personal vendetta may be true or may not be true, and the same has to be established at the time of trial. But that allegation not supported by any materials on record in this case is abolutely insufficient to quash the criminal proceedings launched against the petitioner, at the threshold.
50. The petitioner has contended that neither the allegations made by the 1st respondent in the complaint nor the sworn statements of C.Ws. 1 to 8 make out a case against the petitioner sufficient to be proceeded against him in this case. According to him, the allegations made by the 1st respondent in the complaint and in the sworn statements are contradictory, apart from the fact that the original case against the petitioner was entirely different. CW 2 has only stated that he has seen the petitioner going to the room in which the 1st respondent was confined in Kumily Rest House on that day. C.Ws. 3 and 4 have stated that they saw the petitioner leaving the Rest House at about 7 or 7.30 p.m. when they went to the Rest House to play rummy. C.Ws. 5 and 6 have only stated about the original incident on 16-1-1996 and they have not stated anything against the petitioner. C.Ws. 7 and 8 are the mother and father of the 1st respondent who do not have any direct knowledge about the alleged incident. Therefore, according to the petitioner, there is absolutely no sufficient material or evidence for proceeding against the petitioner in this case.
51. Though no ground is raised in the M.C. regarding the delay in filing Annexure-II complaint by the 1st respondent before the Magistrate, the counsel for the petitioner vehemently submitted that on the ground of inordinate delay itself the complaint filed by the 1st respondent and the impugned order passed by the learned Magistrate are liable to be quashed. As already noted the incident alleged is on 19-2-1996. The 2nd respondent, father of the 1st respondent filed the F.I. Statement on 17-1-1996 and Crime No. 6/96 of Munnar Police Station was registered and after completing investigation the Investigating Officer filed final report before the Court on 17-8-1997. The above complaint is filed by the 1st respondent before the Magistrate on 16-3-1999. Therefore, the petitioner has contended that the long and inordinate delay in preferring the complaint before the Magistrate even after the final report was filed by the Investigating Agency exonerating the petitioner, itself establishes that the complaint is mala fide and filed with oblique motive and on that ground of delay alone, the complaint should be quashed.
52. Respondents 1 and 2 have contended that after the wrongful confinement of the 1st respondent from 16-1-1996 to 26-2-1996, respondents 1 and 2 had been knocking at all the doors to bring the culprits to books. It is also contended by the respondents 1 and 2 that they were not aware of the progress of the investigation or the final report filed by the Investigating Officer. They have also contended that the 1st respondent could recognise the person who committed rape on her from the Kumily Rest House on 19-2-1996, only on 26-3-1996 when she saw the photo of the petitioner in the Mathrubhoomi daily and immediately thereafter she made representations before the concerned competent authorities and subsequently filed the above complaint to vindicate her grievances when she realised that the petitioner was not made accused in the case. Therefore, according to them, there is absolutely no delay in filing the complaint against the petitioner.
53. But the counsel for the petitioner argued that the respondents were aware of every step in the investigation and also the final report filed by the Investigating Officer at the appropriate time and the delay of three years in filing the complaint after the alleged incident itself vitiates the complaint and the prosecution. He also submitted that the above complaint is filed as an after-thought and a counter-blast to the suit filed by him before the Sub-Court claiming damages against the Desabhimani daily, its Chief Editor Sri E.K. Nayanar and respondents 1 and 2, long after the respondents received the summons in the suit and filed their written statements.
54. The 1st respondent as C.W. 1 stated before the Magistrate that she knew that the petitioner was not made an accused in the case when she received summons in the suit filed by him and it was early in 1997. The mother of the 1st respondent as C.W. 7 has stated before the Magistrate that she received summons in the suit filed by the petitioner in the middle of the year 1997. The 2nd respondent, father of the 1st respondent as C.W. 8 stated before the Magistrate that he made enquiries regarding the matter and about four or five months ago he was informed that the petitioner was in the Rest House at Kumily on 19-2-1996. Therefore, the petitioner has contended that the reason for the delay in filing the complaint given in the complaint and stated by C.Ws. 1, 7 and 8 before the Magistrate are entirely different and the explanations offered for the delay are absolutely untenable.
55. In the complaint the 1st respondent has stated that she knew about the fact that the petitioner was implicated as accused in the case only recently and after collecting the necessary particulars the above complaint is filed. Relying upon the decision in Kader v. State of Kerala (1999) 3 Ker LT 55 : 1999 Cri LJ 4151 the counsel for the petitioner argued that the learned Magistrate is in absolute error in taking cognizance of the offence as per the above complaint filed more than three years after the alleged occurrence and that too without referring to the final report filed by the Investigating Officer. In this case, it has to be noted that the petitioner was not made an accused in the F.I.R. and no investigation is conducted by the Investigating Officer with regard to his commission of the offence alleged by the 1st respondent in the complaint. Therefore, the final report filed by the police in this case cannot be construed as final report filed by the Investigating Officer exonerating him from the offence alleged against him by the 1st respondent.
56. As already noted, there is delay of about three years in filing the above complaint on 15-3-1999 after the alleged incident (took place) on 19-2-1996, and a delay of about 1 year and 7 months after the final report was filed by the Investigating Officer in Crime No. 6/96. Whether the explanation offered by the 1st respondent for the delay in preferring the complaint before the Magistrate is acceptable or whether there is inordinate and inexcusable delay vitiating the criminal complaint in this case, as contended by the petitioner, are matters to be decided by the Court after adducing evidence. This Court in the above M.C. proceedings under Section 482 of the Cr.P.C. cannot embark upon an enquiry regarding that aspect, especially when the complaint preferred by the 1st respondent before the Magistrate is not barred under law. The decision of a single Judge of this Court referred to above relied upon by the petitioner, is of no avail to him in this case. Therefore, the contention of the petitioner that on the ground of inordinate delay the complaint preferred by the 1st respondent is vitiated and, therefore, the entire proceedings in this case should be quashed, is also not sustainable.
57. The petitioner has produced various documents before this Court in the above M.C. to prove his contention that the allegations made against him are false, actuated by malice due to personal and political vendetta and it is not only highly improbable but shocking to human conscience that the petitioner should have committed the heinous offence against the 1st respondent in the manner narrated in the complaint and spoken to by her as CW 1 before the learned Magistrate.
58. Counsel for respondents vehemently argued that those documents are manipulated and cooked up by the petitioner for the purpose of this case so as to create evidence in support of his plea of alibi. He also argued that certain documents produced before this Court themselves will reveal that they are fraudulent concoction in the proceedings. I am not called upon in this proceedings to adjudicate the reliability and evidentiary value of those documents or their genuineness or otherwise. Those documents if true and genuine may afford good defence to the petitioner in the case at the time of trial.
59. It has to be noted that in an enquiry under Section 202 of the Cr.P.C. the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. It is also pertinent to note that neither the Magistrate conducting the enquiry under Section 202 of the Cr.P.C. nor this Court exercising its jurisdiction under Section 482 of the Cr.P.C. is entitled to consider the documents, produced by the accused in support of his contentions.
60. In the decision reported in Nagawwa v. Veeranna Shivalingappa Konjalgi, 1976 SCC (Cri) 507 : 1976 Cri LJ 1533 referred to above the Supreme Court has observed as follows at p. 1536 of Cri LJ :-
It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.
In the same judgment the Supreme Court has further observed as follows 1976 Cri LJ 1533 at p. 1538 :-
At any rate, at the stage of Section 202 or Section 204 of the Code of Criminal Procedure as the accused had no locus standi the Magistrate had absolutely no jurisdiction to go into any material or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in them. Indeed if the documents or the evidence produced by the accused is allowed to be taken by the Magistrate then an inquiry under Section 202 would have to be converted into a full-dress trial defeating the very object for which this section has been engrafted. The High Court in quashing the order of the Magistrate completely failed to consider the limited scope of an inquiry under Section 202. Having gone through the order of the Magistrate we do not find any error of law committed by him. The Magistrate has exercised his discretion and has given cogent reasons for his conclusion. Whether the reasons were good or bad, sufficient or insufficient, is not a matter which could have been examined by the High Court in revision. We are constrained to observe that the High Court went out of its way to write a laboured judgment highlighting certain aspects of the case of the accused as appearing from the documents filed by them which they were not entitled to file and which were not entitled in law to be considered.
The Apex Court has also observed as follows 1976 Cri LJ 1533 at p. 1537 :-
The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even this Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an order under Section 204 of the Code.
61. In the decision in Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628 : 1985 Cri LJ 817 the Supreme Court has reiterated the very position of law by observing as follows :
It is well settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482, Cr.P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the allegation and the ingredients of Sections 405 and 406, I.P.C. are not made out, the High Court would be justified in quashing the proceedings. In the present case, we shall show that the allegations are both clear, specific and unambiguous and, therefore, the complainant should have been given a chance to prove her case. It is, of course, open to the accused at the trial to take whatever defences that were open to him but that stage had not yet come and, therefore, the High Court was totally ill-advised to speculate on the merits of the case at that stage and quash the proceedings.
62. In the decision in State of M.P. v. Harsh Gupta, 1998 SCC (Cri) 1723 : 1999 Cri LJ 5011 already referred to above, the Supreme Court has reiterated the very same principles by observing as follows at p. 5012 of Cri LJ :
It is rather surprising that at a stage when the only question to be considered was whether the complaint and its accompaniments disclosed any or all of the offences alleged against the respondent, the learned Judge not only went into a detailed discussion about his defence but recorded a conclusive finding that he was not guilty of the offences alleged against him.
63. Therefore, it is clear that this Court is not entitled to go into the various documents produced by the petitioner in support of the various contentions raised by him which are available as his defence in the case, in the above proceedings under Section 482 of the Cr.P.C. The only matter to be considered is whether the complaint and its accompaniments including the statements of the witnesses recorded by the learned Magistrate disclosed a prima facie case to be proceeded against the petitioner. Therefore, the contention of the petitioner that the various documents produced by him in this case and also the comprehensive report filed by the investigating agency in Crime No. 6/96 of Munnar Police Station relating to various steps taken for investigation as directed by this Court as per orders in C.M.P. 11845/96 in O.P. 6945/96 sought to be called for to this case in Cri. M.P. No. 2238/99 filed by the petitioner will establish the petitioner's case and entirely disprove the case of the 1st respondent in the above complaint, cannot be accepted at this stage. The petitioner is entitled to produce the records before the Court and rely upon all those documents and other documents, if any, at the appropriate stage.
64. The counsel for the 1st respondent submitted that the above case instituted as per the complaint filed by the 1st respondent and S.C. 35/98 on the file of the Sessions Court, Thodupuzha now pending trial, can be tried separately by examining the common witnesses to be examined in both the cases, in one of the cases and the evidence of the common witnesses recorded in one case can be treated as evidence in the other case. In support of this contention the counsel for the 1st respondent relies upon the decision in Harjinder Singh v. State of Punjab, AIR 1985 SC 404. In that case the Supreme Court has held that by invoking the provisions of Section 223, Cr.P.C. a case instituted on a police report cannot be clubbed with a case instituted on a complaint when prosecution versions in the two cases are materially different. The Supreme Court has further observed as follows :
8. In the facts and circumstances of this particular case we feel that the proper course to adopt is to direct that the two cases should be tried together by the learned Additional Sessions Judge but not consolidated i.e. the evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. The learned Additional Sessions Judge should after recording the evidence of the prosecution witness in one case, withhold his judgment and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other case.
65. The counsel for respondents 1 and 2 submitted that S.C. No. 35/98 registered on the basis of the police report and the above case can be tried by the same Court one after the other by examining the witnesses common in both the cases, in one case alone and reading their evidence in the other case, as laid down by the Supreme Court in the above decision.
66. The petitioner vehemently contended that both the cases are not arising out of the same transaction. He also contended that even though the several offences alleged in the police report in SC 35/98 are also alleged in the complaint filed by the 1st respondent in this case, the learned Magistrate has taken cognizance of only the offence punishable under Section 376 of I.P.C. against the petitioner finding that there is no material on record to proceed against the petitioner in respect of the other offences alleged except the offence punishable under Section 376, I.P.C. Therefore, according to him, the above complaint case has absolutely no connection with S.C. 35/98 and if at all, both of them should be tried and disposed of separately.
67. The question whether the above complaint case and S.C. 35/98 arise out of the very same transaction and both the cases should be tried by the same Judge one after the other as laid down in the above decision of the Supreme Court, is not a matter for consideration in the above M.C. filed by the petitioner to quash the entire proceedings initiated against him. The question whether both the cases should be tried as directed in the above decision of the Supreme Court, has to be considered by the appropriate Court at the time of trial of the cases.
68. The counsel for the petitioner submitted that Annexure-I order passed by the learned Magistrate taking cognizance of the offence against the petitioner does not contain any discussion with regard to the materials he found sufficient to proceed against the petitioner. It is true that the learned Magistrate has considered the case in the last two short paragraphs in the order and stated that sufficient grounds for proceeding against the petitioner are made out by the 1st respondent. It is true that a detailed discussion with regard to the materials which he found sufficient to proceed against the petitioner in the order would have been appropriate and profitable since such detailed discussion will help the appellate or revisional forum to evaluate the facts and circumstances and the materials in the case which weighed with the Magistrate to find that there are sufficient materials to proceed against the accused in the case. But merely because of the fact that the learned Magistrate has not mentioned in detail the facts and circumstances and the materials weighed with him in the order, it cannot be contended that the order passed by the learned Magistrate is illegal or unsustainable, since the entire materials are before this Court for scrutiny. Therefore, contention of the petitioner is also not sustainable.
69. By applying the principles laid down by the Apex Court with regard to the power and limitation of this Court in exercising its jurisdiction under Section 482 of the Cr.P.C. to quash the criminal prosecution at the threshold and also considering the materials available before the Court with regard to the allegation of the offence made against the petitioner, I find this is not at all an appropriate case which warrants interference of this Court to quash the proceedings against the petitioner at the threshold by invoking the inherent powers of this Court under Section 482 of the Cr.P.C.
70. The materials produced before this Court establish that the learned Magistrate after recording sworn statements of the complainant and the witnesses produced under Section 200 of the Cr.P.C, being not satisfied that sufficient grounds are made out to proceed against the petitioner, postponed the issue of process to the petitioner and proceeded with the enquiry as provided under Section 202 of the Cr.P.C. After conducting the mandatory enquiry as provided under the proviso to Section 202(2) of the Cr.P.C. since the offence complained of was triable exclusively by a Court of Session, passed the impugned order taking cognizance of the offence and issuing process to the petitioner. My discussions in the foregoing paragraphs clearly establish that the learned Magistrate was perfectly justified in holding that there are sufficient grounds made out by the 1st respondent-complainant to proceed against the petitioner. From the materials available on record it cannot be said that the discretion exercised by the learned Magistrate finding that there are sufficient grounds for proceeding against the petitioner, is perverse, illegal or improper. This Court cannot consider whether the allegations made by the 1st respondent in the complaint and the materials placed by her before the learned Magistrate are sufficient to convict the petitioner after trial in this case. The learned Magistrate and this Court can only consider whether the complaint together with the other materials placed before the Court taken on their face value constitute or not the offence alleged and cannot sift the evidence or appreciate the evidence and come to a conclusion that no prima facie case is made out. Neither the Magistrate nor this Court is entitled to consider the documents or the evidence adduced by the accused-petitioner at the stage of enquiry under Section 202 of the Cr.P.C. or in a proceedings under Section 482 of the Cr.P.C. to quash the order passed by the Magistrate directing issuance of summons.
Under the circumstances it is patent that absolutely no ground is made out by the petitioner to quash Annexure-II complaint and Annexure-I order passed by the learned Magistrate in this case. The various contentions regarding the merits of the case raised by the petitioner before this Court, are matters to be urged before the appropriate Court at appropriate stage., Therefore, this Crl.M.C. being devoid of any merits, is dismissed.