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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1969  OF 2013 (@ Special Leave Petition (Crl) No.1515 of 2013)

B. Chandrika  … Appellant  

Versus

Santhosh & Anr. … Respondents

J U D G M E N T

K.S. Radhakrishnan, J.

1. Leave granted.  

2. The  appellant  herein  is  the  second  accused  in  CC  

1548/2011 pending on file of the Judicial Magistrate, First  

Class,  Cherthalay, which was initiated by the Magistrate  

on a protest complaint filed by the first respondent herein  

for the offences punishable under Section 420 read with

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Section 34 IPC.  Summons were issued to accused persons  

by the learned Magistrate vide order  dated 22.11.2011.  

That  order  was  challenged  in  Revision  before  the  High  

Court of Kerala on the ground that the Magistrate was not  

justified in initiating proceedings after a refer report was  

submitted  by  the  Police,  after  due  enquiry.  The  High  

Court, however, dismissed the Revision Petition vide order  

dated 23rd November,  2012 stating that  even if  a  refer  

report is filed by the police after conducting investigation,  

the  Magistrate  has  the  power  to  entertain  a  protest  

complaint  and  to  issue  summons  to  the  accused  and  

proceed in accordance with law.  Aggrieved by the same,  

this appeal has been preferred.

3. This  appeal  has  been  preferred  by  the  second  

accused, a divorced wife of the first accused.   The first  

respondent  herein  initially  filed  a  complaint  against  

accused nos.1 and 2 before the Police Station Mohamma  

which  was  registered  as  Crime  No.302/2010.  The  

operative portion of the complaint is as follows :-

“The  accused  1  and  2  with  the  ambition  for  immediate profits and the intention to make loss

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to the complainant, had given the commitment to  the  complainant  in  his  rental  residence  house,  owned  by  Kamal  Travels,  at  Aryakara,  Tannermukkam on 13.10.2006 to provide job to  his  uncle’s  son  Sajimon,  in  Aushathi  Govt.  Department  and  taken  1  lac  rupee  from  complainant, from Raveendran, R/o Illathukalathil  House,  Kumarakam  taken  1  lac  rupees  in  the  commitment to give job to his son Rathish from  Prabhakaran,  Puthanparambil  House,  Kumarakam,  and  from  Arumukam,  R/o  Kalathil  House, Udayaperoor taken 50,000/- rupees each,  and  from  K.P.  Prasad,  R/o  Tikarthil,  Kothuruthi,  taken  25,000/-  rupees,  thereafter  the  accused  persons  committed  cheating  without  providing  job to these persons.”

4. An FIR was registered and the investigation ordered.  

Police conducted detailed investigation, relevant portion of  

the investigation report is as follows :-

“After completing the investigation and recording  the statement of witnesses stated above, I came  to the conclusion that the fact stated above was  not  occurred.  The  complainant  through  Adv.  Rajan  had  made contact  with  the  first  accused  Ramchandran Unni and given Rs.12000/- for the  purpose  of  taking  certified  copy  of  the  order  passed  in  Water  Authority  case,  which  was  decided  by  the  Kerala  High  Court,  wherein  he  relatives of the complainant were parties in the  case  for  the  purpose  of  being  permanency  in  service.    After  two  weeks,  Ramchandran  Unni  had got the certified copies from High Court and  given  it  to  the  complainant.    Except  this,  the  accused  had  not  collected  money  from  any  person.   During  the  period  when  money  was  given as stated by the complainant, the second

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accused  was  not  in  the  residential  house  at  Muhamma with  the  first  accused  because  they  were separated to each other and started living in  the  house  at  Thiruvananthapuram.   It  is  also  proved  that  the  first  accused  had  not  received  any amount from the complainant or  any other  persons for  providing  job to  the  relative  of  the  complainant or any other person.   The amount  paid,  as  stated  in  the  complaint,  has  not  been  proved  by  the  complainant  and  others  by  submitting any reliable documents.”

5. On  the  basis  of  the  above-mentioned  report,  the  

police referred the case as not proved.  Reference report  

was  submitted  to  the  Judicial  Magistrate,  First  Class,  

Cherthalay  for  appropriate  action.   Later,  the  

respondent/claimant filed a protest complaint before the  

above-mentioned Court  for  cancellation of  the reference  

report and for taking cognizance of the case, on which, as  

already  stated,  the  Magistrate  passed  an  order  dated  

22.11.2011, which reads as follows :-

“Heard the counsel  for  the petitioner.   Perused  the  evidence  adduced  and  other  case  records,  prima  facie  case  alleged  is  made  out.   Hence,  case is taken on file as CC No.154810 for offence  u/S  420  and  34 IPC.    Issue summons  to  both  accused.  Take steps 28.1.12.”

6. The power of the Magistrate to take cognizance of an  

offence on a complaint or a protest petition on the same or

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similar  allegations  even  after  accepting  the  final  report  

cannot be disputed.  It is settled law that when a complaint  

is  filed  and  sent  to  police  under  Section  156(3)  for  

investigation  and  then  a  protest  petition  is  filed,  the  

Magistrate  after  accepting  the  final  report  of  the  police  

under Section 173 and discharging the accused persons  

has the power to deal with the protest petition.  However,  

the  protest  petition  has  to  satisfy  the  ingredients  of  

complaint  before  Magistrate  takes  cognizance  under  

Section 190(1)(a) Cr.P.C.

7. This Court in  Gopal Vijay Verma v. Bhuneshwar  

Prasad Sinha & Ors.  [(1982) 3 SCC 510] held that the  

Magistrate  is  not  debarred  from taking  cognizance  of  a  

complaint  merely  on  the  ground  that  earlier  he  had  

declined  to  take  cognizance  of  police  report.    The  

judgment was followed by a Three-Judge Bench judgment  

of this Court in  Kishore Kumar Gyanchandani v. G.D.  

Mehrotra [AIR 2002 SC 483 = (2001) 10 SCC 59].   

8. The High Court, in our view, rightly applied the legal  

principle, but omitted to consider the crucial question as to

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the involvement of  the second accused,  the wife of  the  

first accused.  In this connection, it is pertinent to refer to  

the  statement  of  the  complainant  having  been  made  

during the investigation, which reads as follows :-

“Thereafter I, Kunjumon and Rajan were gone to  Thiruvanthapuram and met his wife then she told  that they were separated to each other and she  don’t  know  nothing  about  him.   I  have  given  payment ot Ramchandran Unni on the words of  Rajan and Kunjumon.  I don’t know where he is  now.  At the time of paying the amount I have not  seen his wife or not talked to her.  I don’t know  anything  about  him  so  I  have  given  this  complaint.”

9. The  above  statement  of  the  complainant  clearly  

indicates that money was entrusted to the first accused  

(the husband of A-2) and not to A-2.  Complainant has also  

stated that at the time of paying the amount, the wife was  

not seen.  Police on investigation, noticed that during the  

period when money was entrusted to the first accused, the  

second accused was not in the residential house of first  

respondent.   Investigation  revealed  that  they  were  

separated  and  second  accused  started  living  at  

Thiruvananthapuram.  

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10. The appellant has also produced a copy of decree of  

divorce  dated  25.1.2010  before  the  Court,  which  will  

indicate that the second accused had obtained a decree of  

divorce against the first accused on the ground of cruelty  

under Section 13(1)(a) of the Hindu Marriage Act, 1955.  

Considering the fact that the second accused had no role,  

even according to the complainant, there is no reason to  

prosecute  the  second  accused.    In  our  view,  the  

Magistrate has not considered this vital aspect when the  

protest petition was considered by him.    

11. Magistrate  has  to  exercise  judicial  discretion  and  

apply his mind to the contents of the petition.   The refer  

report as well as the statement of the complainant would  

indicate that no offence has been made out so far as the  

second accused is concerned since, admittedly, no money  

was  entrusted  to  her  and  that  second  accused  is  the  

divorced wife of the first accused.  That being the factual  

situation, we are inclined to allow the appeal so far as the  

second  accused  is  concerned  and  the  summons  issued  

against  the  second  accused  would  stand  quashed.

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However, it is open to the Magistrate to proceed against  

the first accused.

12. The appeal is allowed, as above.

…..………………………J. (K.S. Radhakrishnan)

………………………….J. (A.K. Sikri)

New Delhi, November 21, 2013.