Kerala High Court
V.V. Ramakrishnan vs State Of Kerala on 26 November, 1997
Equivalent citations: 1998CRILJ874
Author: B.N. Patnaik
Bench: B.N. Patnaik
ORDER B.N. Patnaik, J.
1. The petitioner challenges the order dated 20-6-1995 passed by the Judicial Magistrate of the First Class, Chavakkad on a petition filed by him under Section 451 of the Code of Criminal Procedure.
2. The petitioner is engaged in the jewellery business at Kodungallur in Thrissur District. There was an allegation of theft of some gold ornaments weighing about 17 sovereigns. A case was registered an Crime No. 141/CR/94 of the CB CID, Ernakulam. In course of investigation, it is alleged that the investigating team of Crime Branch seized some old gold ornaments from his shop at about 7 p.m. on 4 4-1995 on threat of arrest. The Divisional Inspector of Police, Crime Branch, CB CID, Thrissur told him that the petitioner has received stolen gold ornaments and as such he would seize the same out of fear, the petitioner produced some gold ornaments which were seized by the police. Thereafter, he filed a petition under Section 451 of the Cr.P.C. before the Court below for return of the gold ornaments to him on proper security on the ground that the allegation of his having received the same as stolen property is false. On the contrary he contended that he had purchased it from one Dhinakaran, who is another jeweller, for the purpose of business. But, while rejecting the petition, the learned Magistrate made an observation that the circumstances in this case give room for an investigation into the matter so as to find out whether the petitioner had committed offences punishable under Sections 465 and 411 of IPC. The 1st respondent therein, who is the Divisional Inspector of Police, Crime Branch, CB CID, Thrissur, was directed to investigate and report regarding the possible commission of offence under Sections 465 and 411 of IPC by the petitioner under Section 156(3) of Cr. P.C. He suspected that an offence under Section 465 has been committed on the ground that the petitioner was found to have produced some forged documents in this criminal proceeding to be used as evidence.
3. Learned counsel for the petitioner has contended that the learned Magistrate has no jurisdiction to give such a direction to the 1st respondent, who is not an officer in charge of a police station under Section 156 of the Criminal Procedure Code. Moreover, since the offence under Section 465 as defined in Section 463, IPC is said to have been committed in the course of a judicial enquiry in the Court, a direction of this nature is incompetent under Section 195 of the Cr.P.C.
4. The learned Public Prosecutor has contended that the Magistrate having got this information in course of an enquiry, he has got the jurisdiction to direct for an investigation in exercise of his powers under Section 190(1)(c) of the Cr. P.C.
5. The only point for consideration in this case is whether the impugned order of the learned Magistrate can be sustained in law.
6. There is no dispute that the Divisional Inspector of Police, Crime Branch, CB CID, Thrissur is not an officer in charge of any police station. No notification has been issued making him the officer in charge of the concerned police station in respect of the said crime case. Similar such question came up for consideration before this Court in State of Kerala v. Moosa Haji (1993) 2 Ker LT 609. In that case, this Court laid down as follows :
A place or post declared by Government as police station must have a police officer in charge of it and if he, for any reason, is absent in the station house, the officer who is next junior in rank present in the police station shall perform the function as officer in charge of that police station. The primary responsibility for investigation of a cognizable case reported in that station vests with such police officer. Section 156(3) of the Code empowers a Magistrate to direct such officer in charge of the police station to investigate any cognizable case over which such Magistrate has jurisdiction. On the face of the above principle, a Magistrate cannot order any police officer, other than one who is in charge of the police station, to conduct the investigation. But the difficulty does not end with that. Under Section 36 of the Code "police officers superior in rank to an officer in charge of a police station may exercise the same powers as may be exercised by such officer within the limits of his station." Government: in exercise of their executive powers can authorise any superior police officer to investigate a case, and such directions can be issued by the higher officer to his subordinate officer in the police department. When any police officer referred to in Section 36 of the" Code conducts the investigation, that cannot be called in question as without authority. In appropriate cases the High Court can issue directions under Article 226 of the Constitution for causing investigation to be made by such officers because such officers have the power to investigate. But such power of the Government or the higher officer in the department is quite different from the scope contained in Section 156(3) of the Code. There is no provision in the Code or in any other statute which confers power on a Magistrate to direct any officer other than an officer in charge of a police station to conduct investigation.
In this view of the matter, direction under Section 156 (3) of the Code of Criminal Procedure to the Divisional Inspector of Police, who is not an officer in charge of any police station, is illegal.
7. It is no doubt true that the Magistrate has got powers under Section 190 (1) (c) to take cognizance of the offence which comes to his knowledge in the course of an enquiry. In this case, the offences alleged are under Sections 465 and 411, IPC. If it is a case under Section 465 he himself becomes the complainant. If he takes cognizance of the offence under Section 411, IPC, he may try it himself or have the case tried by, some other Magistrate under Section 191, Cr.P.C. There can be no further investigation by any police officer, after the Magistrate takes cognizance of the offence for trial.
8. On a perusal of the order, it appears that the Magistrate was convinced that the petitioner produced some forged documents in the enquiry conducted by him in connection with the petition under Section 451, Cr.P.C. It is, no doubt, a judicial enquiry. Section 465, IPC is the charging section regarding the commission of forgery. Forgery is defined in Section 463, IPC. Thus, an offence under Section 465, IPC can be charged in terms of Section 463, IPC.
9. Section 195(1) (b) (ii) of the Cr. P.C. contemplates that no Court shall take cognizance of any offence described in Section 463 or punishable under Section 471, or Section 476 of the said Code when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. Section 340 of the Cr. P.C. inter alia lays down that when an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court, or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary enquiry, if any, as it thinks necessary record a finding to that effect; make a complaint thereof in writing send it to a Magistrate of the First Class having jurisdiction, take sufficient security for appearance of the accused before such Magistrate or send the accused in custody to such Magistrate if the alleged offence is non -bailable and bind over any person to appear and give evidence before such Magistrate. Thus, if an offence in terms of Section 463 is alleged to have been committed in course of a proceeding in Court, the proper procedure is to make a preliminary enquiry: as contemplated in Section 340, Cr. P.C, instead of directing a police officer to investigate into it In this case, the direction of the Magistrate to investigate an offence under Section 465, therefore, is contrary to law.
10. For the reasons stated above, I find that the impugned order of the Magistrate cannot be sustained in law. However, it is made clear that the police officer who is in charge of the investigation is not precluded from making further investigation in the case according to law untrammelled by the observations made by the learned Magistrate.
11. The Crl. M.C. is allowed. There shall be no order as to costs.