Varuvel Yesuvadian vs State

Janarthanan, J.—One Varuvel Yesuvadian, the petitioner herein accused 1 in C.C.No.5 of 1991 on the file of the Judicial Magistrate No. II

Tirunelveli.

One B.J. Philip Jayasingh is the Secretary of the Nazareth Urban Co-operative Bank Ltd. Nazareth. He preferred a complaint before the

Judicial Magistrate, Srivaikuntam against the petitioner herein (accused 1) and two others viz. Thiru V. Anthoney Sekar (Accused 2) and Thiru

E.Malanke(Accused 3) for alleged offences under Sections 467, 471, 195 and 196 read with Section 120B I.P.C.

Learned Magistrate forwarded the complaint u/s 156(3) Crl.P.C. for investigation and filing of a final report u/s 173(2) Cr.P.C. to the Inspector

of Police, Crime Branch, Tuticorin the respondent herein, who, in turn, registered the case in crime No. 4/90 for the aforesaid offences and after

completing the formalities of the investigation, Laid a final report against all accused 1 to 3 for the aforesaid offences before the Judicial Magistrate

No.II, Tirunelveli, who had been empowered to try all cases of Co-operative Cases Investigation Wing(CCIW). It is to quash the said

proceedings, the petitioner herein has come forward with the present action invoking the inherent jurisdiction of this court immediately on receipt of

process.

Learned counsel for the petitioner would seek to assail the prosecution by pressing the following points.

The Judicial Magistrate, Srivaikuntam before whom, the complaint had been filed and which had subsequently been forwarded for further

investigation u/s 156(3) Crl.P.C. is not empowered to take such complaint on file a factor vitiating the entirety of proceedings; and

The power inhering in a Magistrate to forward a complaint for investigation u/s 156(3) Crl.P.C. is a discretionary power to be exercised on

application of mind to the facts of a given case if he feels satisfied that such a course is warranted and no one can interfere in the exercise of such a

discretionary power and in the case on hand, captioning or styling of the complaint u/s 256(3) Crl.P.C. is proof-positive of indicating the

interference of exercise of such discretion.

No doubt true it is, the Judicial Magistrate No.II, Tirunelveli had been constituted as a Special Magistrate u/s 13 of the Crl.P.C. for the trial of

CCIW cases. As already referred to in the summation of facts, the Judicial Magistrate, Srivaikuntam, before whom the complaint had been filed

was admittedly not empowered to try CCIW cases. Once a complaint is preferred before a Magistrate empowered to take cognizance u/s 190 of

the Crl.P.C., he can take the complaint on file, after recording the sworn statement of witnesses u/s 200 Crl.P.C. and issue process therefor, if he

is satisfied that the averments in the complaint and the sworn statement prima facie reveal the commission of offences in respect of which he can

take cognizance of.

If a Magistrate, before whom the complaint is filed is not competent to take cognizance of the case, he cannot u/s 201 Crl.P.C. for presentation

of the complaint before proper Court. Even in case in which he can take cognizance, it is open to him to postpone issue of process u/s 202

Crl.P.C. by either enquiring into the case by himself or directing the investigation of the case to be made by a police officer or such other person as

he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding further. After such enquiry or investigation, he can

act either u/s 202 or 204 Crl.P.C., in the sense of either dismissing the complaint or directing issuance of process to accused persons, depending

upon the needs of the situation warranting such further action. It is equally open to him to straight away forward the complaint u/s 156(3) Cr.P.C.

for purpose of investigation and filing of final report.

Section 156 of the Crl.P.C. deals with police Officer''s power to investigate cognizable case. Sub-section (3) of that section prescribes that any

Magistrate empowered u/s 190 may order such an investigation as above mentioned. Admittedly, the Magistrate, before whom the complaint in

the instant case had been preferred and who forwarded the same for investigation u/s 156(3) Cr.P.C. is not empowered to take such a complaint

on file u/s 190 of the Crl.P.C. Can it be said, on the face of such an express and explicit provision, the criminal proceedings initiated against a

person is not sustainable in law ? The answer for such a question cannot be anything but an emphatic ''no''. Such an answer can emerge to the

surface by making a reference to certain salient provisions governing or regulating the proceedings under the Code of Criminal Procedure(''Code''

in short)

Chapter 35 of the Code deals with the effect of irregularities in the procedure and the validity of the proceedings in which they occurred. The

Code recognises the principle that it is not every deviation from or neglect of procedural formalities and technicalities that would vitiate the

proceedings of court. Broadly speaking, only irregularities that had caused substantial prejudice to an accused will render the proceedings invalid

while minor or inconsequential errors or omissions are considered curable. The Chapter contains specified provisions saving irregularities of such

matters as also a residuary provisions saving irregularities in general. At the same time, there are certain provisions of the Code, which are

considered so vital that their disregard must vitiate fair and proper trial and, therefore, destroy the validity of the proceedings. Section 460

enumerates the irregularities committed by a Magistrate, which do not vitiate the proceedings where a Magistrate erroneously did in good faith

takes a proceeding though not empowered to do so.

Section 460(e) of the Code, which is relevant for our purpose is couched in the following terms:

460 Irregularities which do not vitiate proceedings

If any Magistrate not empowered by law to do any of the following things, namely:

(e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of section.

erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.

The incorporation of the word ''merely'' at the concluding part of the section makes it quite clear that the proceedings mentioned therein shall

not be set aside ""merely on the ground of the Magistrate not being empowered by law"". The word ''empowered'' figuring in the opening part of the

section refers to the ordinary or additional powers conferred upon a Magistrate. The resultant position that would be reacted by canon of

construction as above is that where a Magistrate not be empowered does any of the acts specified in the section erroneously and in good faith, his

proceeding will not be set aside merely on the ground of his not being so empowered.

In the instant case, the offences said to have been committed by persons accused of offences are admittedly cognizable offences. As adverted

to earlier, the Judicial Magistrate, Srivaikuntam, before whom the complaint had been preferred was admittedly not empowered to take

cognizance of the case. The fact that he was not competent to take cognizance of the case can by no Wretch of imagination be stated to nullify the

action of the Magistrate in forwarding the complaint u/s 156(3) of the Code, which is curable on the face of the express and explicit provisions

contained u/s 460(e) of the Code. In this view of the matter, there is no force in the first submission.

I may now proceed to consider the second submission, which looms much on the question of captioning or styling of the complaint u/s 156(3)

Crl.P.C. praying for a direction to forward the complaint to the police for investigation and filing of a final report and such procedure, learned

counsel would say, is nothing but interference of exclusive judicial discretion of the Magistrate, which is not legally permissible. This submission, of

course, wears a credible look of tenability at first sight. But the utter untenability taking shelter under such submission would get exposed by

cursory perusal of the definition of the word ''complaint'' as adumbrated u/s 2(d) of the Code, which runs as under:

Definitions: In this Code, unless the context otherwise requires.

d) ""complaint"" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person,

whether known or unknown, has committed an offence, but does not include a police report.

Explanation : A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be

deemed to be a complaint, and the police officer by whom such report is made shall be deemed to be the complainant.

In the definition as extracted above, the phraseology ''with a view to his taking action under this Code'' is of signal importance. The said

phraseology signifies that the complaint must be made with a view to an action being taken under the Code, still it is not necessary to indicate the

mode by which the Magistrate is required to take action. If there be an indication on that aspect of the matter in the complaint, it cannot be stated

that it tantamounts to interfering with the judicial discretion of the Magistrate in the exercise of his power to take action in any of the permissible

modes as available under the Code in the light of the circumstances of the case. As such, this submission also bristles next to nothing.

In view of what has been stated above, it goes without saying that the petition deserves to be dismissed even at the admission stages itself and

it is accordingly dismissed.