Allowed

Ismayil.v v. State of Kerala

Kerala HC5 Aug 2010Crl.MC/935/2010

Case brief

AI extract

What is this about?

The Kerala High Court Division Bench held that a police report under Section 173(2) Cr.P.C. cannot be treated as a 'complaint' under Section 2(d) Cr.P.C. for taking cognizance under Section 25 of the Protection of River Bank and Regulation of Removal of Sand Act, 2001, which strictly requires a written complaint by authorized officers.

What did the court decide?

The Criminal Miscellaneous Cases and the respective Calendar Cases challenged therein were allowed; the cognizance taken by the Courts on police reports under Section 173(2) Cr.P.C. was quashed.

Ismayil.v Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932

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Crl.MC.No. 935 of 2010()

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-------------------------------CC.185/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI ....................

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PETITIONER(S): ACCUSED

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-------------------------------------ISMAYIL.V, S/O.MUHAMMED HAJI VALAPRA, KUDIKKALAPARAMBIL HOUSE, THRIPANACHI, PALAKKAD.

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BY ADV. SRI.SUNNY MATHEW

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RESPONDENT(S): COMPLAINANT -----------------------------------------------STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, AREACODE POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.S.U.NAZAR.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/08/2010, ALONG WITH CRMC NO. 2006 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.

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Crl.M.C.Nos.935 of 2010,2006 of 2010, 1574 of 2010, 2011 of 2010, 1541 of 2010, 1084 of 2010, 1514 of 2010, 1548 of 2010, 1947 of 2010, 1470 of 2010, 2542 of 2010, 2545 of 2010, 2548 of 2010, 2537 of 2010, 2536 of 2010, 2483 of 2010, 2481 of 2010, 2480 of 2010, 1385 of 2010,2622 of 2010 1948 of 2010

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Dated, this the 5^th day of August, 2010

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O R D E R

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K.M.Joseph, J.

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The common question which arises in all these cases on a reference made by a learned Single Judge of this Court is 'whether a police report submitted under Section 173 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) can be treated as a complaint for the purpose of taking cognizance under Section 25 of the Protection of River Bank and Regulation of Removal of Sand Act, 2001 (hereinafter referred to as the 'Act') ?

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The learned Single Judge of this Court (incidentally the very same Judge who passed the order of reference has in Mohanan v. S.I. of Police (2008 (1) KLT 560) which was decided on 22.1.2008 proceeded to take the view that the word 'complaint' has not been defined under the Act and the police report satisfies the essential requisites of a

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complaint and since an officer in charge of a police station is one of the authorised officers under the Act even if the report is submitted under Section 173 (2) of the Code it can be treated as a complaint. Learned Single Judge took the view in the said decision that there is no illegality in the Court taking cognizance on the basis of the said report. A Division Bench of this Court in Moosakoya v. State of Kerala (2008 (1) KLT 538) had proceeded to consider among various issues the question as to whether the Court can under the Act take cognizance of any offence on the basis of a police report filed under Section 173 (2) of the Code. The said decision was rendered on 5.12.2007. Therein the Court inter alia held as follows:

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“3. A plain reading of the above provision will show that even though by S.24 all offences under the Act are made cognizable, no court can take cognizance of the offence except upon a written complaint made by a person authorised in this behalf by the Government or the District Collector or a Geologist of the Department of Mining and Geology. A 'complaint in writing' by the authorised officer etc is the only condition for taking cognizance as provided in S.25. If a police officer is authorised by the Government, he may also file a complaint on the basis of which the court may take cognizance. But, the court cannot take cognizance of any offence punishable under the Sand Act on a police report filed under S.173 (2) of the Cr.P.C after investigation by police..............”

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Still later, the Apex Court had occasion to consider the correctness of the decision of the Division Bench

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which we have just referred in Jeewan Kumar Raut vs. Central Bureau of Investigation (AIR 2009 SC 2763 ). The said decision was rendered on 7.7.2009. Therein the Court was considering the question under the Transplantation of Human Organs Act 1994. In the course of the discussion the Apex Court had occasion to refer to the judgment of the Division Bench of this Court and we notice that the Court held as follows.

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“23. We may notice that a Division Bench of the High Court of Kerala in Moosakoya v. State of Kerala (2008 Crl LJ 2388 ) held as under:

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“3. A plain reading of the above provision will show that even though by Section 24 all offences under the Act are made cognizable, no Court can take cognizance of the offence except upon a written complaint made by a person authorised in this behalf by the Government of the District Collector or a Geologist of the Department of Mining and Geology. A 'complaint in writing' by the authorised officer etc. is the only condition for taking cognizance as provided in Section 25. If a police officer is authorised by the Government, he may also file a complaint on the basis of which the Court may take cognizance. But, the Court cannot take cognizance of any offence punishable under the said Act on a police report filed under Section 173 (2) of the Cr.P.C. after investigation by police...........

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We, with respect, agree with the said observations.”

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The very same question, namely as to whether a police report under Section 173 (2) could be treated as a complaint, came up before another learned Single Judge of this Court in Abdul Azeez v. State of Kerala (2010 (1) KLT 394) and the learned Single Judge proceeded to hold as

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follows:

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“9. In the light of the declaration of law by the Apex Court in Jeewan Kumar's case (supra) approving the Division Bench decision of this court in Moosakoya's case and in view of mandatory provisions of S.25 of the Act, it can only be held that Judicial First Class Magistrate is not empowered to take cognizance of the offence on a final report filed under S.173(2) of the Code of Criminal Procedure and Magistrate can take cognizance only on a complaint in writing made by the officer authorised as provided under S.25. Even if the Sub Inspector who filed the final report is an authorised officer under the Act, only if he files a complaint, the Magistrate can take cognizance and not on a final report submitted under S.173 (2) of Code of Criminal Procedure. As the learned Magistrate has taken cognizance in both cases on a final report submitted under S.173 (2) of Code of Criminal Procedure, the cognizance taken can only be quashed.”

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The matter comes before us on the basis of an

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order of reference and we will refer to the reference order in

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its entirety. It reads as under:

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“Petitioner who is the accused in Crime No.687 of 2009 of Anthikkad Police Station for an offence punishable under Sec.20 of the Protection of River Bank and Regulation of Removal of Sand Act, 2001 (“the Sand Act” for short) and now pending before the J.F.C.M.-II, Thrissur as C.C.No.2698 of 2009, seeks to quash Annexure B final report on the ground that cognizance taken by the Magistrate on a police report is bad in law. The petitioner relies on the following decisions:i). Paramasivam v. Union of India-2007 (2) KLT 733 (DB). ii. Moosa Koya v. State of Kerala -2008 (1) KLT 538. iii) Jeevan Kumar v. Central Bureau of Investigation- AIR 2009 SC 2763 iv) Abdul Azeez v. State of Kerala- ILR 2010 (1) Kerala 2009.

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It is true that in all the decisions cited by the learned counsel for the petitioner it has been held that since under the Sand Act or the Electricity Act, 2003

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cognizance can be taken only on a complaint, the cognizance taken by the court on a final report under Sec.173 (2) Cr.P.C. is bad in law. But in none of those decisions the question as to whether the final report filed under Sec.173 (2) Cr.P.C. would answer the definition of a “complaint” under Sec.2 (d) Cr.P.C and whether the final report so understood could be treated as “complaint” did not come up for consideration. There is no dispute that under the Sand Act, the Police have been empowered to file a complaint. Instead of filing a complaint the Police have filed a charge sheet. If the police report purportedly filed under Sec.173 (2) Cr.P.C. and labelled as a final report answers the definition of a “complaint” under Sec.2 (d) Cr.P.C. then the nomenclature of the report need not deter the Magistrate from taking cognizance of the offence. This question had been pointedly answered in Mohanan v. S.I. of Police-2008 (1) KLT 56. But the learned Judge who decided Abdul Azeez has refused to follow Mohanan's case (supra) on the ground that the matter is covered by the decision of the Division Bench and of the Supreme Court adverted to therein. With due respect, the question as to whether in cases where the Police have been empowered to file a complaint, if the Police instead of filing a complaint file a police report under Sec.173 (2) Cr.P.C. whether such report could be treated as a complaint, if such report answers the definition of a complaint, did not arise for consideration in any of the aforesaid decisions. This aspect of the matter requires an authoritative pronouncement by a Division Bench.

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The Registry shall place the file before the Hon'ble the Chief Justice for orders.”

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We proceeded to hear the learned counsel

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appearing for the petitioners and also learned Public

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Prosecutor Sri.S.V.Nazar.

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The question which falls for our consideration as already noted is whether the word 'complaint' which is contemplated in S.25 of the Act is capable of embracing within

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its scope a police report under S.173(2) of the Code. It is necessary for us to refer to certain provisions. The word 'complaint' is defined in Section 2 (d) of the Code. It reads as under.

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“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.

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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;”

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Section 2 (r ) of the Code defines police report as

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hereunder:

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“police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173.”

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Under the Act, Sec.24 declares that

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notwithstanding anything contained in the Code all offences under the Act are cognizable. Thereafter Sec.25 which deals with taking cognizance of offences reads as under.

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“25. Cognizance offences: No court shall take cognizance of any offence punishable under this Act, except upon a complaint in writing made by a person authorised int his behalf by the Government or the District Collector or a Geologist of the Department of Mining and Geology”.

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There is no dispute that in all these cases what

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are filed are police reports under Sec.173 (2) of the Code.

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Learned Public Prosecutor does not dispute that it is filed as

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police reports under Sec.173 (2) of the Code and that there is nothing to indicate in the reports that they are filed as complaints under Sec.25 of the Act. It is in the conspectus of this undisputed facts presented we have to consider the issue which is referred. There is no dispute that in terms of Sec.25 of the Act Government of Kerala has issued a notification in the gazette dated 18.1.2007 authorising certain officials under

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Sec.25 of the Act. The notification reads as under:

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GOVERNMENT OF KERALA REVENUE (P) DEPARTMENT NOTIFICATION

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G.O.(Ms.) No.11/2007/RD. Dated Thiruvananthapuam, 10^th January, 2007.

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S.R.O.No.64/2007- In exercise of the powers conferred by S.25 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (18 of 2001), the Government of Kerala hereby authorise the Revenue Divisional Officers, Tahsildars, Deputy Tahsildars, Superintendents of Police, the Deputy Superintendents of police and Station House Officers to exercise the power to make a complaint in writing in respect of any offence punishable under the said Act.

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By order of the Governor, Dr.Nivedita P.Haran Principal Secretary to Government.

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Learned counsel for the petitioners Sri. Sunny

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Mathew and Sri. Sethu Nath led the arguments on behalf of the petitioners. They would submit that the decision rendered by the learned Single Judge in Abdul Azeez v. State of Kerala (2010 (1) KLT 394) lays down the correct law. They would further submit that the principle laid down by the learned Single Judge is in consonance with the law declared by the

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Apex Court in Jeewan Kumar Raut vs. Central Bureau of Investigation (AIR 2009 SC 2763 ) and there is no basis at all to take a different view in the matter. There is also a contention raised by one of the petitioners represented by Sri.M.R.Rajesh that in fact there was no basis for the learned Single Judge for referring the matter to the Division Bench. This contention he would urge by placing reliance on the decision of the Apex Court in Suganthi Suresh Kumar vs. Jagdeeshan (2002 (2) SCC 420). According to him, once the law is laid down by the Apex Court it becomes binding on the Courts subordinate to it. It matters little that a particular point was not urged before the Court or considered by the Court before it proceeded to lay down the law. In other words, the efficacy of the declaration of law will not in any manner be diluted or whittled down on the basis of a contention that a decision was rendered without considering a particular aspect which could have been urged. In the said decision the Apex Court held as follows:

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“9. It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India

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that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court.”

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In Anil Kumar Neotia v. Union of India (AIR

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1988 SC 1353) the Apex Court has held as follows:

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“.................It was, therefore, open to those affected by the provisions of Chapter IV-A to have agitated before this Court the question which is being raised now based on the guarantee embodied in Art.19 (i) (f) which was never done. It is apparently too late in the day now to pursue this line of argument, in this connection we may refer to the observations of this Court in Mohd. Ayub Khan v. Commr. of Police Madras, (1965) 2 SCR 884: (AIR 1965 SC 1623) according to which even if certain aspects of a question were not brought to the notice of the court it would decline to enter upon re-examination of the question since the decision had been followed in other cases. In Smt.Somawanti v. State of Pujnab, (1963) 2 SCR 774: (AIR 1963 SC151) a contention was raised that in none of the decisions the argument advanced in that case that a law may be protected from an attack under Art.31(2) but it would be still open to challenge under Art.19 (1) (f) had been examined or considered. Therefore, the decision of the Court was invited in the light of that argument. This contention, however, was repelled by the following observations at page 794:-

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“The binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided.”

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The learned Single Judge in Mohanan's case (supra) proceeded to hold inter alia as follows:

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Here, the Sub Inspector of Police, Koyippuram, who filed the final report on 16.9.2007, ie. after the notification was published on 18.1.2007, was doing so not in his capacity as

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the police officer but in his capacity as the authorised officer under S.25 of the Act. Hence, it is not a police report under S.173 (2) Cr.P.C. forwarded by a police officer. If so, it cannot be treated as a “police report” as contemplated under S2 (r ) Cr.P.C. It is not the label or nomenclature of the report which matters. What is to be examined is as to whether the said report satisfies the definition of a complaint falling under S.2 (d) Cr.P.C. Thereafter the learned Single Judge proceeded to refer to the following decisions Surajmani Srimali vs. State of Orissa (1980 CRL LJ 363), Bholanath v. State of Gujarat (AIR 1971 SC 194), State of Bihar v. Chandra Bhushan Singh (AIR 2001 SC 429), K. Rama Krishnan v. Station House Officer, Hosdurg (1986 CRL. LJ 392) besides State of Kerala v. Sreedharan (1964 KLT 309) and Bhimappa Bassappa Bhu Sannavar v. Laxman Shivarayappa Samagouda & Ors. (AIR 1970 SC 1153). Of course, the learned Single Judge had no occasion to consider the decision of the Division Bench in Mossakoya's case (supra).

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In Bholanath v. State of Gujarat (AIR 1971 SC 194) the Apex Court was considering a case under the Indian Post Office Act 1898. The question for consideration in that case arose under the provisions of Sec.72 of the Indian

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Post Office Act. Sec.72 of the Post Office Act reads as under: “No court shall take cognizance of an offence punishable under any of the provisions of Sections 51, 53, 54, Clauses (a) and (b), 55, 56, 68, 69, 61, 64, 65, 66 and 67 of this Act, unless upon complaint made by order of, or under authority from, the Director General or a Post Master General.”

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The case against the appellant therein was taken cognizance of on the basis of a report filed by the police under Sec.173 of the Code after making enquiry under Chapter XIV of that Code. The investigation of the case was launched on the basis of the information given by postal authorities. The court proceeded to state that it will even assume investigation in question was made after obtaining the sanction of the concerned Post Master General, thereafter the court referred to the definition of the word “complaint” in Sec. 4 (1) (h) and proceeded to hold as follows:

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“.................The context in which that expression is used in Section 72 indicates that it is a formal document indicting an officer of the postal department for a criminal offence. The purpose behind Section 72 is that officials of the postal department should not be harassed with frivolous prosecutions and that before any of the prosecutions contemplated by Section 72 is launched, the authorities mentioned in that Section should have examined the appropriateness of launching a prosecution and either file a complaint themselves or authorize the filing of such a complaint. Such a requirement will not be satisfied if the concerned authorities merely ask the police to investigate into the case and take appropriate action. An information laid before the police or even a sanction granted for a prosecution by the police would not meet the requirements of Sec.72. If the legislature contemplated that a mere information to the police by the appropriate authority is sufficient then there was no need to enact Section

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72..................................”

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The learned Single Judge proceeded to take the view with reference to the said decision that there was no complaint before the Magistrate by order of or under authority from any of the officials enumerated under S.72 of the Indian Post Office Act, 1898 and what was before the Magistrate was only a final report by the police who were not one of the enumerated authorities under S.72 of the Post Office Act and hence distinguished that case.

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A learned Single Judge of the Orissa High Court in Surajmani v. State of Orissa (1980 CRL L.J. 363) has proceeded to consider a case under the Orissa (Scheduled Area) Money Lenders' Regulation 1967 and held as follows:

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“Charge-sheet submitted by the police in respect of a cognizable offence cannot be held to be a complaint as defined in the Code. A complaint in writing is a sine qua non under the mandatory provisions of Section 23 of the Regulation. The purpose behind Section 23 is that the persons carrying on business of money-lending should not be harassed with frivolous prosecutions. The mandate of this section is that the Magistrate should not take cognizance of an offence unless there is a formal complaint as contemplated under the Code of Criminal Procedure. If the provision of any law gives jurisdiction only on the compliance of a certain condition precedent, then non-compliance of such a provision goes to cut at the root of the jurisdiction f the Court. Threfore cognizance taken by a Magistrate under Section 23 of Regulation on the basis of charge-sheet submitted by the police would be without jurisdiction.”

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In Bhimappa Bassappa Bhu Sannavar v.

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Laxman Shivarayappa Samagouda & Ors. (AIR 1970 SC

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1153) the Apex Court had occasion to deal with the concept of complaint as defined in Sec.4 (1) (h) of the Cr.P.C. 1898 and the Apex Court proceeded to hold as follows:

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“The word 'complaint' has a wide meaning since it includes even an oral allegation. It may, therefore, be assumed that no form is prescribed which the complaint must take. It may only be said that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take action.”

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In State of Kerala v. Sreedharan (1964 KLT 309) for the non-appearance of the complainant on the date of hearing the Magistrate acquitted the accused. The contention was that it would not come within the operation of Sec.247 as it was not started on a complaint but on the report of the prohibition officer. The Court proceeded to hold as follows:

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“..................The expression 'complaint' is comprehensive enough to include reports of public officers except those specifically excluded from its operation. The report of the prohibition officer, therefore, falls within the definition of S.4 (h) of the Criminal Procedure Code and consequently S.247 Cr.P.C. would apply. This view of mine is reinforced by a judgment of a Bench of the Calcutta High Court in Radhik Mohan Das v. Hamid Ali (ILR 54 Cal 371) and the case of the Andhra High Court in Public Prosecutor v. Shaik Dawood (1956-2A. W.R.642).”

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In K. Rama Krishnan v. Station House Officer, Hosdurg (1986 CRL. LJ 392) a learned Single Judge was dealing with the case launched under Section 482 of the Code

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seeking to quash the proceedings on the basis of a chargesheet which was launched against the petitioner for the alleged commission of offence under Sec.211 of the IPC. Petitioner contended that the Magistrate went wrong in taking cognizance of offence under Sec.211 as under Sec.195 (1) (b) (i) of the Code no Court can take cognizance except on a complaint in writing of the concerned Court or some other Court to which that Court is subordinate. The Court proceeded to refer to the definition of the word 'complaint' in the Code and proceeded to hold that the offence under Sec.211 IPC is non-cognizable offence and after stating that it could be argued that for the purpose of Sec.195 (1) (b) (i) the report could be treated as a complaint, but, further proceeded to hold that it could not be treated as a complaint in writing filed by the concerned court. The learned Single Judge also referred to the bar under Sec.155 of the Code against investigation of non-cognizable offence without an order from the Magistrate.

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In State of Bihar v. Chandra Bhushan Singh (AIR 2001 SC 429) , the Court was dealing with the case under Railways Property (Unlawful Possession ) Act (29 of 1966). Therein in paragraph 6 it was held as follows:

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“................As per the statement of accused Baleshwar

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Singh further recovery of 136 bags of cement in addition to the cement already seized was effected. Shri M.I.Khan, IPF/SPJ inquired the case and submitted the complaint before the Magistrate. Copy of the complaint has been annexed with this appeal as Annexure P-3. A perusal of Annexure P-3 unambiguously indicates that it was not a report within the meaning of Section 173 of the Code but a complaint filed before the Magistrate, obviously under Section 200 of the Code. The process against the accused appears to have been issued under Section 204 of the Code. By no stretch of imagination, Exhibit P-3 can be termed to be a report within the meaning of Section 173 of the Code.”

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Thereafter, the Court also referred to Sec.2 (d) of

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the Code defining the word 'complaint' and proceeded to hold as follows:

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“Section 2 (d) of the Code encompasses a police report also as a deemed complaint if the matter is investigated by a police officer regarding the case involving commission of a non-cognizable offence. In such a case, the report submitted by a police officer cannot be held to be without jurisdiction merely because proceedings were instituted by the police officer after investigation when he had no power to investigate.”

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We may notice two aspects of the case. A perusal of paragraph 6 would show that what was filed by the complainant was actually a complaint and that it was not a report within the meaning of Sec.173 of the Code. It is also further noticed that the offence is a non-cognizable offence. There can be no doubt that in respect of non-cognizable offence a police report also can be treated as a complaint. Finally, we must refer to the decision of the Apex Court reported in Jeewan Kumar Raut vs. Central Bureau of

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Investigation (AIR 2009 SC 2763 ) in some greater deal. Therein, the question actually arose in the context of Transplantation of Human Organs Act 42 of 1994). (TOHO Act for short). The appellants were medical practitioners. The FIR was launched under Sec.420 of IPC and Sec.18 and 19 of the TOHO Act. Thereafter, investigation was entrusted to the CBI. The appellants 1 and 2 surrendered and was arrested respectively. A complaint was lodged under Sec.22 of the TOHO Act by the CBI. The appellant sought shelter under Sec.167 (2) of the Code and contended that he was entitled to bail. The Magistrate took the view that a written complaint is required under the TOHO Act, and, therefore qua the offences under TOHO Act it seems to be a complaint. But, in respect of various offences under the IPC allegedly committed it is a police report and therefore it is found that the report was filed within a period of 90 days. The High Court confirmed the finding. In the course of the judgment the Apex Court proceeded to hold as follows:

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“19. Section 22 of TOHO prohibits taking of cognizance except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down therein. Respondent, although, has all the powers of an investigating agency, it expressly has been statutorily prohibited from filing a police report. It could file a complaint petition only as an appropriate authority so as to comply with the requirements contained in Section 22 of TOHO. If by reason of the provisions of

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TOHO, filing of police report by necessary implication is necessarily forbidden, the question of its submitting a report in terms of sub-section (2) of Section 173 of the Code did not and could not arise. In other words, if no police report could be filed, sub-section (2) of Section 167 of the Code was not attracted.

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It is a well-settled principle of law that if a special statute lays down procedures, the ones laid down under the general statutes shall not be followed. In a situation of this nature, the respondent could carry out investigations in exercise of its authorisation under Section 13 (3) (iv) of TOHO. While doing so, it could exercise such powers which are otherwise vested in it. But, as it could not file a police report but a complaint petition only; sub section (2) of Section 167 of the Code may not be applicable. The provisions of the Code, thus, for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches. TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO.

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To put it differently, upon completion of the investigation, an authorised officer could only file a complaint and not a police report, as a specific bar has been created by the Parliament. In that view of the matter, the police report being not a complaint and viceversa, it was obligatory on the part of the respondent to choose the said method invoking the jurisdiction of the Magistrate concerned for taking cognizance of the offence only in the manner laid down therein and not by any other mode. The procedure laid down in TOHO, thus, would permit the respondent to file a complaint and not a report which course of action could have been taken recourse to but for the special provisions contained in Section 22 of TOHO.”

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The Apex Court also proceeded to refer to

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Mossakoya's case (supra) and we have already extracted the

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said paragraph. No doubt, it has also proceeded to hold in

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paragraphs 24 and 29 as follows:

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“24. For the views we have taken, we are of the opinion that stricto sensu sub-section (2) of Section 167 of the Code would not apply in a case of this nature.

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Even assuming for the sake of argument that subsection (2) of Section 167 of the Code requires filing of a report within 90 days and the complaint petition having filed within the said period, the requirements thereof stand satisfied.

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In this case, however, the respondent having specially been empowered both under the 1946 Act as also under the Code to carry out investigation and file a charge-sheet is precluded from doing so only by reason of Section 22 of TOHO. It is doubtful as to whether in the event of authorisation of an officer of the department to carry out investigation on a complaint made by a third party, he would be entitled to arrest the accused and carry on investigation as if he is police officer. We hope that the Parliament would take appropriate measures to suitably amend the law in the near future.”

¶121

After survey of the relevant provisions and the

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case law on the point we are of the view that in respect of taking cognizance under the Act it may not be legal for a Magistrate to take cognizance on the strength of a police report under Sec.173 (2) of the Code. We have already extracted the definition of the word 'complaint' and 'police report' respectively in the Code. A complaint has been defined as a request made orally or in writing to the Magistrate to take action on the basis that an offence has been committed by a person known or unknown. But, the Legislature has specifically excluded police report. A police report, in turn,

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has been specifically defined as a report forwarded by a police officer under Sec. 173 (2) of the Code. No doubt, the explanation to Sec.2 (d) of the Code treats a police report forwarded in respect of a non-cognizable offence also as a complaint. As far as the offence under the Act is concerned it is not in dispute that it has been declared to be cognizable by Sec.24 of the Act. Sec.25 of the Act contemplates cognizance being taken only on the basis of complaint given by the authorised officers. Undoubtedly police officers as notified are also comprehended within the notification as authorised officers.

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The statute in question commands that a thing must be done in a particular manner. In this case, it dictates that the Court can take cognizance only on the basis of complaint being given by certain named authorities. As already held by the Apex Court in Jeewan Kumar Raut vs. Central Bureau of Investigation (AIR 2009 SC 2763 ) a complaint will not take within its scope a police report and police report will not take within its scope a complaint. No doubt, we must hasten to add that in the case of noncognizable offence a police report also tantamounts to a complaint having regard to the terms of explanation to Sec. 2

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(d) of the Code. We must notice that the learned Single Judge in the decision reported in Mohanan v. S.I. of Police (2008 (1) KLT 560) has proceeded to refer State of Bihar v. Chandra Bhushan Sing & Ors. (AIR 2001 SC 429) in paragraph 8 and taken the view that therein the offence was non-cognizable offence and the court took the view that filing final report instead of a complaint is bad. We must hold that the said finding is contrary to the actual facts as are reported in State of Bihar v. Chandra Bhushan Sing & Ors. (AIR 2001 SC 429) . In fact, as already noticed therein the Apex Court found that what was filed was a complaint and the court also took the view that it cannot be termed as a report under Sec.173 of the Code.

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It is true that under Sec.2 (d) of the Code there is no particular form prescribed. A complaint can be even oral. No doubt, it must satisfy the essential ingredients in Sec.2 (d) of the Code, namely, it must relate to commission of an offence by known or unknown person and there must be request to take action. It may be true that in substance the ingredients of a complaint could be culled out from the report under Sec.173 (2). In fact, at this juncture we must notice the submission of Sri.K.K.Dheerendra Krishnan, the learned

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counsel appearing on behalf of the petitioner in CRL.MC 2622/2010 that the Code contemplates different procedures in respect of cases taken cognizance of on the basis of complaint and police report. He would point out that Sec.202 of the Code is not applicable to cognizance based on police report. Of course, the question which we have to consider is whether a police report can be interpreted and understood as a complaint.

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In all these cases we cannot overlook the fact that a Division Bench of this Court in Moosakoya's case (supra) has considered the question whether cognizance could be taken on the basis of a report filed by a police officer under the Code. As already noticed the Division Bench has expounded its view as we have referred to and held that cognizance cannot be taken on the basis of a police report. The matter came to be considered by the Apex Court though in the context of another enactment. The Court, on the basis of its reasoning which it had already adopted proceeded to approve the judgment of this Court. Thus, it could be said that the Apex Court approved the principle which was laid down. We cannot overlook the contention of Sri.M.R. Rajesh that when the Apex Court pronounced the law on a point it

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may not be open to this Court to overlook its command under Article 141 of the Constitution on the footing that if another point had been urged before it, it would have come to a different conclusion. It is no doubt true that the specific question as such as to whether a police report under Sec.173 (2) could be interpreted to be a complaint for the reason that the contents of the report would suffice to answer the description of complaint under Sec. 2 (d) of the Code was not raised before the Division Bench in Mossakoya's case (supra) or in the decision of the Apex Court. But, this does not mean that when the Apex Court proceeded to hold that a complaint cannot be treated as a police report and police report cannot be treated as a complaint and also proceeded to approve the judgment of the Division Bench of this Court, that we will be free to hold that when the statute provides for taking cognizance only on the basis of a complaint by authorised officers complaint can be interpreted as meaning to take within its meaning also a police report. The statute unambiguously postulates a specific method for taking cognizance. Generally, any person can set the criminal law into motion. But, there are exceptions which are provided to the said principle in the Code and also in various special

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statutes. Instances of the exceptions are Sec.198, 199 of Code of Criminal Procedure. Sec.25 of the Act is another instance of a statutory prohibition against cognizance of the offence being taken in any manner other than what is provided therein. Therefore, the Legislature intended that cognizance can be taken only in the manner which is contemplated under Sec.25 of the Act. This means that Legislature intended the provisions to be mandatory and it intended further that what is provided therein is to be followed without any deviation. We cannot assume that the Legislature is unaware of the provisions of Sec.2 (d) or Sec. 2(r) of the Code. That is to say, the Legislature was very much aware that the word 'complaint' as defined in Sec.2 (d) does not include a police report. The Courts would ascribe knowledge of the existing law to the legislature when a law arises for interpretation. This being the position though it may be possible for the prosecution to point to the contents of the police report and canvass that it may also answer the description of a complaint, we are of the view that in the nature of the statute and the decision of the Apex Court approving the decision of the Division Bench in Moosakoya's case and also the fact that the police reports in all these cases

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do not give any indication whatsoever that is intended to be filed as a complaint or even that it is filed by the police officer as authorised officer under the Act cognizance taken in all these cases would be hit by the prohibition contained in Sec.25 of the Act namely that cognizance can be taken only on the strength of a complaint. In all these cases, except one ie. CRL.M.C.1948 of 2010, the only question which has been raised and which is referred was the legality of the Court taking cognizance on the strength of a police report under Sec.173 (2). It is the common case of both the learned counsel for the petitioners and also the learned Public Prosecutor that no further question would arise after the matter is answered by holding that a complaint would not take in a police report under Sec.173 (2) of the Code and the matter can be finally decided under Sec.7 of the Kerala High Court Act. In the light of our decision we must proceed to hold that the decision in Mohanan v. S.I. of Police (2008 (1) KLT 560) cannot be treated as good law and we approve the decision of the learned Single Judge in Abdul Azeez v. State of Kerala (2010 (1) KLT 394.

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Accordingly, we allow the Criminal Miscellaneous Cases and quash the respective Calender Cases challenged in

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these cases. It is made clear, however, that the quashing of the cognizance taken will not be a bar for the authorised officer to file complaints in accordance with law.

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CRL.M.C.No.1948 of 2010:

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Learned counsel for the petitioner has raised another issue in this case. He would submit that the Magistrate acted illegally in taking cognizance in view of the fact that the police report is filed by the Assistant Sub Inspector of Police who is not an authorised officer under the Notification. When a matter comes on a reference before a Division Bench or a Larger Bench it cannot decide matters which are not referred to it. In such circumstances, besides answering the issue referred, we send the matter back to the learned Single Judge for passing appropriate orders, leaving it open to the petitioner to urge the contention which he urged before us.

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(K.M.JOSEPH) JUDGE.

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(M.L.JOSEPH FRANCIS) JUDGE.

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Ismayil.v v. State of Kerala

Case brief

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Ismayil.v v. State of Kerala

Case brief

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