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IN THE HIGH COURT OF KERALA AT ERNAKULAM
T.V.ANILKUMAR, J.
T.P.Nandakumar – Appellant
Versus
Nandakumar Nair – Respondent
Crl.MC.No.4115 of 2017
Decided on : 14-07-2020
Indian penal code, 1860 - Sections 116, 109 of 182 and 195A;; The Code of Criminal Procedure, 1973 - Section 482, Section 200, Section 202(1), Section 202(2)--The learned Magistrate failed to conduct enquiry under Section 202 of the CrPC, despite the fact that the petitioner was residing or rather carrying on his career or profession outside the territorial jurisdiction of the Magistrate. After the amendment to Section 202(1) of the CrPC came into effect from 23.06.2006, Magistrates entertaining complaints against the accused residing at places beyond the area in which they exercise jurisdiction, are bound to conduct an enquiry under Section 202. This is imperative, the object behind the amendment being to ensure that persons outside the territorial jurisdiction of the court are not unnecessarily harassed and drawn to courts on flimsy, frivolous, false and untenable charges.
Statement of facts:
The petitioner, who is the sole accused - He is the chief editor of the crime Magazine published from Kozhikode District. Annexure-A complaint, on the basis of which the impugned order was issued, was instituted against him by the Additional Superintendent of Police, Central Bureau of Investigation, Special Crime Branch, Thiruvananthapuram, who is the first respondent herein. The learned Magistrate, after making it clear in the impugned order that it was a complaint filed by a public servant acting in discharge of his official duties, dispensed with his examination under Section 200 of the CrPC- Challenges the order of the court issuing process to him for commission of offences punishable under Sections 116, 109 of 182 and 195A of the Indian penal code, 1860.
Finding of the court:
The learned Magistrate has failed to observe the mandatory requirement of conducting enquiry under Section 202 of CrPC and for this reason itself, the impugned order has necessarily to fall to ground-The matter is remitted back to the learned Magistrate to conduct enquiry under Section 202(1) of the CrPC and decide whether any sufficient ground to proceed against the petitioner exists in the case. It is also made clear that the learned Magistrate will, in exercise of his discretion, also decide whether examination of the complainant under Section 200 is necessary in the facts and circumstances of the case.
Result: Crl.M.C. is allowed
ORDER :
The petitioner, who is the sole accused in C.C.No.1980/2013 before the Judicial First Class Magistrate-II, Thiruvananthapuram challenges the order of the court issuing process to him for commission of offences punishable under Sections 116, 109 of 182 and 195A of the Indian penal code, 1860 (for short, 'the IPC), invoking Section 482 of the Code of Criminal Procedure, 1973 (for short, 'the CrPC').
2. He is the chief editor of the crime Magazine published from Kozhikode District. Annexure-A complaint, on the basis of which the impugned order was issued, was instituted against him by the Additional Superintendent of Police, Central Bureau of Investigation, Special Crime Branch, Thiruvananthapuram, who is the first respondent herein. The learned Magistrate, after making it clear in the impugned order that it was a complaint filed by a public servant acting in discharge of his official duties, dispensed with his examination under Section 200 of the CrPC.
3. The challenge in this proceeding is that the order dispensing with the examination of the first respondent invoking proviso(a) to Section 200 of the CrPC, is illegal and has been passed without application of mind. It is contended that the first respondent was not acting in discharge of his official duties while filing Annexure-A complaint and since there was no tangible reason for the learned Magistrate to exempt the first respondent from examination, he acted in violation of mandatory requirement of law. It is also contended that the complaint filed ought to be reckoned as having been filed in his private and personal capacity, especially when he has not pleaded in the complaint that institution of the proceeding was in discharge of his official duties. It is alternatively contended that in any view of the matter, issue of process without the learned Magistrate conducting an enquiry under Section 202 of the CrPC was quite illegal inasmuch as the petitioner was residing outside the jurisdictional limit of the court.
4. I heard the learned counsel for the petitioner and the learned standing counsel for the CBI.
5. The primary question that needs to be addressed is whether the first respondent, who is
admittedly a public servant, acted in discharge of his official duties while filing Annexure-A complaint. In order to address this question, narration of minimum facts on which the complaint was laid is necessary.
6. The first respondent took over investigation of subject matter of crime in S.C. No.989/2011 on the file of Special Judge CBI, upon the court ordering further investigation of the case on the motion of the petitioner herein under Section 173(8) of the CrPC. The accusation against the sole accused, Smt.Latha Nair in S.C.No.989/2011 is that she committed offence punishable under Section 306 IPC and was responsible for Sri.Narayanan Namboothiri and members of his family committing suicide. The petitioner contended before the Sessions Court that investigation was faulty and improper, as a few known political leaders involved in the crime were not brought to book and he had evidence with him to show that one of the deceased daughters of Sri.Narayanan Namboothiri was sexually abused by the politicians.
7. The first respondent, who undertook further investigation, is said to have recorded the statements of the petitioner twice and also questioned the persons in the exhaustive lists of witnesses furnished by him. According to the first respondent, there is no legal and cogent evidence to connect any of the politicians, whose names were mentioned to him, with the alleged sexual abuse of the deceased girl. It is stated in Annexure-A complaint that when this position was apprised to the sessions court, the learned Judge ordered a pointed investigation as to the complicity of certain political leaders in the alleged incident.
The first respondent, after getting permission from the court is stated to have visited the accused, Latha Nair in the Women's jail and recorded her statement
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