2. The above crime was registered in the Sulthan Bathery Police Station, on receipt of a complaint i.e., CMP No.4641 of 2014 which was sent from the Judicial First Class Magistrate Court-I, Sulthan Bathery under 

Section 156(3) of the Code of Criminal Procedure 

(for short 'the Cr.P.C.') for investigation, which was filed by the second respondent herein. Accordingly, the said crime was registered for the offences punishable under 

Sections 341,376,506 and 34 of the Indian Penal Code and Section 66E of the Information Technology Act.

3. The crux of the allegation is that on 9.12.2012, the de facto complainant, who was working as an agent of Life India Children's Birthday Fund was made believe by the accused two in numbers that they are ready to spend ₹50,000/- for taking policy of Life India Children's Birthday Fund and thus, while they were coming together to Bathery, after about 15.00 hrs., at Bathery Beenachi, the accused Nos.1 and 2 committed rape on the de facto complainant and they took obscene pictures of the de facto complainant in their mobile phone and threatened her that if the incident was disclosed to anybody, she would be finished off. Thus, according to the de facto compliant, the accused two in numbers of which the petitioner is the first accused, have committed the aforesaid offences. On registering the above crime, the Police machinery set in motion. It is at this stage, the petitioner has preferred the above Crl.M.C. with the above referred prayers.

4. Heard Sri.Sudhish.R., the learned counsel appearing for the petitioner and Smt. Bindu Gopinath, the learned Public Prosecutor for the State. 

5. Learned counsel for the petitioner vehemently submitted that the learned Magistrate committed a procedural illegality in sending Annexure A complaint to the Police Station under Section 156(3) of the Cr.P.C. without conducting an inquiry under Section 202 of the Cr.P.C. Thus, it is the contention of the learned counsel for the petitioner that when the learned Magistrate received Annexure A complaint, it was incumbent upon him, by virtue of Section 202(1), to direct an investigation to be made by a Police Officer or by such other person as he thinks fit, considering the fact that the accused in the present case are residing beyond the territorial jurisdiction of the Judicial First Class Magistrate Court, Sulthan Bathery, particularly in view of the amendment brought to 

Sub-section(1) of Section 202 of the Cr.P.C. as per the Code of Criminal Procedure(Amendment) Act,2005. 

In support of the above contention, the learned counsel heavily relies upon the decision of the Honourable Apex Court in National Bank of Oman v. Barakara Abdul Aziz and another [(2013)2 SCC 488]. According to the learned counsel, the above referred provision of the Cr.P.C. is mandatory in nature and non- compliance of the same caused serious prejudice to the petitioner and adversely affected his fundamental right guaranteed under Article 21 of the Constitution of India, especially when the petitioner, who is a Higher Secondary School Teacher and native of Tamil Nadu, has been implicated in the above crime only to wreak vengeance against him as part of several other criminal cases foisted against him.

6. The learned Public Prosecutor submitted that the petitioner is involved in several criminal cases and the present attempt of the petitioner is to stall the proceedings, which are legally initiated against him and he has presented the present petition under Section 482 of the Cr.P.C. , on experimental basis.

7. I have carefully considered the rival contentions advanced by the learned counsel for the petitioner as well as the learned Public Prosecutor and the materials produced along with the above petition have been subjected to close scrutiny and I have carefully perused the decision cited supra.

8. In view of the rival contentions and in view of the particular facts and circumstances involved in the case, the question to be considered is, whether a Magistrate, on receiving a private complaint, in which the accused are residing beyond his territorial jurisdiction, is bound to conduct an inquiry in terms of Section 202(1) of the Cr.P.C. in case he is opting to send the complaint under Section 156(3) of the Cr.P.C. to the concerned Police Station for investigation.

9. Though I have indicated the crux of the allegation against the petitioner and other accused, some more facts are necessary, to properly address the above question, which I shall state now.

10. As per the cause title of Annexure A complaint, the petitioner is the first accused and his residential address is shown as No.397, Sai Bava Colony, Teachers Colony, Payichal, Mathura, Thiruppathur Taluk, Thiruppathur Post, Tamil Nadu (Thiruppathur Police Station Limit), whereas the residential address of the second accused is Jyotheeswaran, aged 45 years, S/o.J.P.Kannan, NO.4, M.M.Reddy Street, Jolar Pet, Velloore District, Tamil Nadu (Jolarpet Police Station Limit). The second respondent in the above Crl.M.C., who is the complainant in Annexure A complaint is residing at Chembath Veed, Abhilash Quarters, Old Market Road, Kalpetta, Kalpetta Village, Vythiri Taluk, Wayanad District in the State of Kerala. As per the averments in the complaint, the complainant was working as an Agent in the Wayanad District for Life India Children's Birthday Fund, which is a charitable institution and according to her, as part of her job, she used to travel through out Wayanad District. According to her, on 8.12.2012, as part of her job, she had gone to Arappatta near Meppadi and at that time, she got acquainted with the above named accused and thus, they have got details about the scheme/project - the Life India Children's Birthday Fund and they assured that they are prepared to invest Rupees Fifty Thousand in the above scheme and they directed the complainant to come to the new bus stand at Kalpetta on the next day and accordingly, the complainant by noon on 9.12.2012 reached near the New Bus Stand at Kalpetta. While awaiting them, the accused approached the complainant and told that the cash and identity cards are kept in their residence at Bathery and in case she goes with them, the same can be collected and they can put the signature in the form. According to the complainant, she had gone with the accused in an 'Innova car' having silver colour, in which the accused came and by 3 o' clock in the evening, the car reached at Meenangadi and by that time, the accused started to speak to the complainant in obscene language with sexual intention and when the de facto complainant resisted the same, the vehicle in which herself and the accused were travelling was stopped before reaching Batheri at Beenachi in the road in front of the board of Sanjeevani resort and when she attempted to get out of the vehicle, she was forcefully restrained and the petitioner herein threatened her that if she is not obeying him, she will be finished off by injecting snake venum and thus, showing the syringe, she was threatened and committed rape on her. The second accused has also committed rape on her for which the first accused/the petitioner herein rendered assistance. According to the complainant, both the accused took her obscene photos in their mobile phone and she was further warned that if the above incident is revealed to anybody, the obscene photos will be published in the internet and thus, she was threatened. So, according to the complainant, the above incident had occurred at Beenachi in Bathery Panchayath on 9.12.2012 at about 3 p.m. within the territorial jurisdiction of the Judicial First Class Magistrate Court-I, Sulthan Bathery and thus, the accused has committed the offences punishable under Sections 341,376,506 read with Section 34 of I.P.C. and Section 66E of the Information Technology Act. When the above complaint was received, the learned Magistrate forwarded the same to the Sulthan Bathery Police Station for investigation under Section 156(3) of the Cr.P.C.

11. As I indicated earlier, the contention advanced by the learned counsel for the petitioner is that in view of the amendment to Section 202 of the Cr.P.C., the learned Magistrate ought not have sent the same to the Police for investigation under Section 156(3) of the Cr.P.C. but the learned Magistrate ought to have conducted an inquiry under Section 202(1) of the Cr.P.C. since the accused are residing beyond the territorial jurisdiction of the learned Magistrate. Old Section 202(1) of the Cr.P.C. reads as follows:- 

Recently as per the Criminal Procedure Code (Amendment) Act,2005 (25 of 2005), Section 202(1) of the Cr.P.C. was amended with effect from 23.6.2006, and the following amendments viz., [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] are brought. It is on the basis of the above amendment, the learned counsel for the petitioner contended that in the present case, the learned Magistrate ought to have conducted an inquiry under Section 202(1) of the Cr.P.C. and through the Police, an investigation had to be conducted for the purpose of deciding whether or not there is sufficient ground for proceeding against the petitioner and the other accused.

12. According to me, the above contention is totally untenable and against the mandatory and procedural provisions contemplated in the Cr.P.C.

13. Chapter XIV deals with conditions requisite for initiation of proceedings. So, as per Section 190 of the Cr.P.C., three conditions are prescribed, any of such conditions is a pre-requisite for taking cognizance of the alleged offence by a Magistrate. As per Section 190 (1)(a), the Magistrate can take cognizance upon receiving a complaint of facts which constitute such offence. Thus clause (a) of Section 190 (1) of Cr.P.C. refers to a complaint filed before the court. The court can also take cognizance upon a police report as contemplated under Section 190(1)(b) of the Cr.P.C. The third condition is that if the Magistrate is receiving information from any person other than a Police Officer or upon his own knowledge, he can take cognizance. In the present case, the second respondent herein, though filed Annexure A complaint before the Judicial First Class Magistrate Court-I, S.Bathery, the learned Magistrate has not taken cognizance for the offences alleged in the complaint, based upon the averments in the said complaint, but he had sent Annexure A complaint under Section 156(3) of the Cr.P.C. to the Sulthan Bathery Police for investigation. The inquiry contemplated under Section 202 warrants, when the learned Magistrate opts to take cognizance as contemplated under Section 190(1)(a) of Cr.P.C. But, in the present case, the learned Magistrate has not opted to follow the procedure contemplated under Chapter XV of the Cr.P.C. which deals with "Complaints to Magistrates". As indicated by the caption to Chapter XV, all procedures coming under the above chapter deal with the procedure in case of taking cognizance upon private complaint received in the said court. Section 202 of the Cr.P.C. comes under Chapter XV and in the present case, as the learned Magistrate has not adopted the procedure contemplated therein, according to me, the contention on the basis of Section 202(1) of Cr.P.C. is untenable as the same is against the statute.

14. In this juncture, it is relevant to note that on a close reading of all the sections contained in Chapter XV of the Cr.P.C. including Section 202, it can be seen that such procedures are prescribed for setting the procedure in the court, proper, correct and legal, connected with a private complaint, when the learned Magistrate is inclined to take cognizance upon such complaint. After conducting examination of complainant and his witnesses in terms of Section 200 or after the procedure prescribed under Section 202, if the Magistrate is of the opinion that no sufficient ground is made out for proceeding with the matter, he can straight away dismiss the complaint. So, the intention behind the above provisions can be gathered as not to entertain every frivolous or vexatious complaint, even if the accused in the above complaint are residing within the territorial jurisdiction of such a Magistrate. By bringing the aforesaid amendment to Section 202(1) of the Cr.P.C., as per the Criminal Procedure Code (Amendment) Act,2005 (25 of 2005), the legislature made it mandatory for the Magistrate, who is taking cognizance upon a private complaint that in case the accused in such a complaint, is residing beyond his territorial jurisdiction, postpone the issue of process to the accused and inquire into the case himself or direct an investigation to be made by a Police Officer, for the purpose of deciding whether or not there is sufficient ground for proceeding. Thus, the legislative intention in bringing the aforesaid amendment clearly is to ensure that before issuing process to the accused in such complaints, the Magistrate himself gets satisfied that there are sufficient grounds to proceed with the complaint against the accused. Otherwise, the accused persons, who are residing beyond his territorial jurisdiction, will be dragged into his court, without sufficient ground to proceed against them. On the other hand, on receiving the complaint, if the Magistrate transmits the same under Section 156(3) of the Cr.P.C. to the concerned Police Station, he is not taking cognizance at that time and the question of taking cognizance depends upon the report, which would be filed by the Police under Section 173(2), on completing the investigation and if such report discloses any offence against the accused, the same would fall under Section 190(1)(b) of the Cr.P.C. Upon such investigation, if the investigating officer forms an opinion that no offence is disclosed or that the allegations are false or are on mistaken facts, a report can be filed to that effect. In case the allegation is that more than one accused is involved and the result of the investigation reveals non- involvement of a particular accused, after dropping his name from the array of accused, a report can be filed against the other accused. So the checks and measures contemplated by Section 202(1) of Cr.P.C. before issuing process against the accused in a private complaint, are equally applicable and expected to be scrupulously followed by the investigating agency, when they undertake an investigation as contemplated by Chapter XII of the Cr.P.C., which deals with "INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE" which includes the investigation on receiving a complaint under Section 156(3) of the Cr.P.C. from the jurisdictional Magistrate. Thus, the investigations contemplated under Section 156 (3) and Section 202(1) of the Cr.P.C. are in entirely different contexts and meant for different purposes. 

The above position is further clear in view of sub-section (3) of Section 202 of the Cr.P.C. Section 202 (3) reads as follows:- 

From a reading of sub-section (3) of Section 202, it can be seen that the Police Officer or such person authorised by the Magistrate under Section 202(1) cannot arrest the accused without getting a warrant from the court, even if a cognizable offence is revealed, though such an officer or person has all the powers of an officer in charge of the Police Station. Of course, the report filed in pursuance of such direction can be looked into by the learned Magistrate to form an opinion as to whether there is ground to proceed with the complaint against the accused. Thus, the only conclusion that can be drawn is, when a Magistrate received a complaint and sent the same for investigation under Section 156(3) of the Cr.P.C., the learned Magistrate is not bound to undertake an inquiry as contemplated under Section 202(1) of the Cr.P.C, which proceedings is exclusively designed for a situation in which case, the Magistrate is taking cognizance upon such a private complaint.

15. In support of the contention raised by the learned counsel for the petitioner, the learned counsel heavily relied upon the decision in National Bank of Oman's case(supra). The procedural scenario in the above case is entirely different from the case at hand. As I indicated earlier in the present case, when the Magistrate received Annexure A private complaint, he simply sent the same under Section 156(3) of the Cr.P.C. to the concerned Police Station for investigation whereas in the decision cited supra, the learned Chief Judicial Magistrate of Ahmednagar on receiving private complaint i.e., RTC 260 of 2007 took cognizance for the offences punishable under Sections 418 and 420 of I.P.C. as per the following order:- 

So, in the above referred case, the learned Magistrate, instead of sending the complaint for investigation under Section 156(3) of the Cr.P.C., had adopted the procedure contemplated in Chapter XV of the Cr.P.C. In such a case, the learned Magistrate of the court of Chief Judicial Magistrate of Ahmednagar ought to have conducted an inquiry under Section 202(1) of the Cr.P.C. since the accused therein was a resident of Dakshin Kannada in the State of Karnataka. When the accused therein challenged the above order of the learned Magistrate, by filing Criminal Application No.3146 of 2012 before the High Court of Judicature of Bombay, Bench at Aurangabad, the High Court has found that the CJM, Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 of Cr.P.C., before issuing the process, considering the fact that the respondent is a resident of District Dakshin Kannada, Karnataka which does not fall within the jurisdiction of the CJM, Ahmednagar. Therefore, the High Court, holding that it was incumbent upon the Magistrate to carry out an enquiry or order investigation as contemplated under Section 202 Cr.P.C. before issuing the process, sent the matter to the Magistrate to pass fresh orders following the provisions of Section 202 of the Cr.P.C. In the present case, the above decision would have been relevant, if the Magistrate in the present case, instead of sending the complaint under Section 156(3) of the Cr.P.C. for investigation, had taken cognizance of the alleged offences and issued process to the petitioner/accused, without conducting an enquiry as contemplated by Section 202(1) of the Cr.P.C. In the present case, as the learned Magistrate has not taken cognizance upon receiving Annexure A complaint and none of the procedure contemplated in Chapter XV of the Cr.P.C. was resorted to by the learned Magistrate, according to me, the learned Magistrate is not bound to order an investigation as envisaged by Section 202(1) of the Cr.P.C. and as such, the above mandatory provision is not applicable in the present case. It is pertinent to note, as I have already found, in the above decision, the Honourable Apex Court has held in paragraph 9 as follows:- 

Thus, it can be safely concluded that the inquiry contemplated both under the amended or the unamended provision of Section 202(1) of the Cr.P.C. is not attracted and inapplicable in the present case, since the learned Magistrate has not taken cognizance upon such complaint, whereas the same was simply sent to the Police under Section 156(3) of the Cr.P.C. for investigation.

16. In the present case, though the accused are residing beyond the territorial jurisdiction of the learned Magistrate, the learned Magistrate has not adopted any such proceedings as contemplated in Chapter XV of the Cr.P.C., but he had simply sent the said complaint for investigation under Section 156(3) of the Cr.P.C. and the Police has got ample powers and authority to undertake a thorough investigation irrespective of the fact whether the accused are residing within or outside their territorial jurisdiction or within or outside the territorial jurisdiction of the court, which sent the complaint under Section 156(3) of the Cr.P.C. to such Police Station. Of course, after undertaking the investigation by the Police pursuant to the receipt of the complaint under Section 156(3) of the Cr.P.C., if the Police is of the opinion that the allegations are false or incorrect, they can file a refer report and whereas the outcome of such investigation is against any of the accused, a report as contemplated under Section 173(2) of the Cr.P.C. against such accused can be filed.

17. In the light of the above referred facts and circumstances and the foregone discussion, particularly in the light of the various provisions of the Cr.P.C. referred to above, the resultant conclusion is that the Magistrate on receiving a private complaint in which the accused are residing beyond the territorial jurisdiction is not bound to conduct an inquiry in terms of Section 202 of the Cr.P.C. in case he is opting to send the complaint for investigation under Section 156(3) of the Cr.P.C. to the concerned Police Station. 

In the light of the above conclusion and for the aforesaid reasons, the contention of the petitioner is unsustainable and there is no merit in this petition and accordingly, the same is dismissed. 

Sd/- V.K.MOHANAN, Judge MBS/