B. CHANDRIKAversusSANTHOSH & ANR

                       (2013] 12 S.C.R. 588


A                         B. CHANDRIKA
                                  v.
                        SANTHOSH & ANR
                (Criminal Appeal No.1969 of 2013)
                       NOVEMBER 21, 2013
B
         [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

       Penal Code, 1860 - s.420 r/w s.34 - Case initiated by
  Magistrate on a protest complaint filed by first respondent -
C Two accused; A-1 and A-2 - A-2 is divorced wife of A-1 -
  Summons issued against A-2 - Challenge to - Held: The
  statement of the complainant clearly indicates that money was
  entrusted to A-1 and not to A-2-Police investigation revealed
  that during the period when money was entrusted to A-1, he
D was separated from A-2 - No reason to prosecute A-2
  considering the fact that she had no role, even according to
  the complainant - Magistrate did not consider this Vital aspect
  when the protest petition was considered by him - The refer
  report as well as the statement of the complainant indicate that
E no offence was made out so far as A-2 is concerned since,
  admittedly, no money was entrusted to her and A-2 is the
  divorced wife of A-1 - Summons issued against A-2
  accordingly quashed - However, Magistrate may proceed
  against A-1.
F     The appellant is the second accused (the divorced
  wife of the first accused) in a criminal case initiated by
  the Magistrate on a protest complaint filed by the first
  respondent for the offences punishable under Section
  420 read with Section 34 IPC. Summons were issued to
G accused persons by the Magistrate. That order was
  challenged in Revision before the High Court on the
  ground that the Magistrate was not justified in initiating
  proceedings after a refer report was submitted by the

H                               588
       B. CHANDRIKA v. SANTHOSH & ANR                 589


Police, after due enquiry. The High Court, however,          A
dismissed the Revision Petition, and therefore the instant
appeal.

    Allowing the appeal, the Court

      HELD: 1. The power of the Magistrate to take B
cognizance of an offence on a complaint or a protest
petition on the same or 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 C
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 D
cognizance under Section 190(1 )(a) Cr.P.C. 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. In the
 instant case, the High Court rightly applied the legal E
 principle, but omitted to consider the crucial question as
 to the involvement of the second accused, the wife of the
 first accused. [Paras 6, 7, 8] [593-D-H; 594-A]

    Gopal Vijay Verma v. Bhuneshwar Prasad Sinha & Ors.
(1982) 3 SCC 510; Kishore Kumar Gyanchandani v. G.D.         F
Mehrotra (2001) 10 SCC 59 - relied on.
     2. The 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 G
~tated that at the time of paying the amount, the wife was
not seen. Police on investigalion, 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 H
    590       SUPREME COURT REPORTS                  (2013] 12 S.C.R.

A separated and second accused started living at
  Thiruvananthapuram. The appellant has also produced
  a copy of decree of divorce before the Court, which will
  indicate that the second accused had obtained a decree
  of divorce against the first accused on the ground of
B 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. The Magistrate
  has not considered this vital aspect when the protest
c petition was considered by him. [Paras 9, 10) [594-D-G]
       3. The 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
D 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, the summons issued against the
  second accused would stand quashed. However, it is
E open to the Magistrate to proceed against the first
  accused. [Para 11) [594-H; 595-A-B]

                           Case Law Reference:
          (1982) 3 sec 510          relied on              Para 7
F
          c2001) 1o sec 59          relied on              Para 7

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1969 of 2013.

G       From the Judgment and Order dated 23.11.2012 of the
    High Court of Kerala at Ernakulam in Criminal Misc. Case No.
    1767 of 2012.

          K. Vijayan, K. Rajeev for the Appellant.
H
        B. CHANDRIKA v. SANTHOSH & ANR                      591

    A. Raghunath, for the Respondents.                              A
    The Judgment of the Court was delivered by

    K.S. RADHAKRISHNAN, J. 1. Leave granted.

     2. The appellant herein is the second accused in CC 1548/      B
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 Section 34 IPC.
Summons were issued to accused persons by the learned               c
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           o
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            E
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      F
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 to the complainant,     G
     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               H
    592       SUPREME COURT REPORTS               [2013] 12 S.C.R.


A         lllathukalathil 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, Rio Tikarthil,
B         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
C 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
D       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
E      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
F      was given as stated by the complainant, the second
       accused was not in the residential house at Muhamma with
       the first accused because they were separated to each
       other and started Jiving in the house at
       Thiruvananthapuram. It is also proved that the first accused
       had not received any amount from the complainant or any
G
       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."
H
        B. CHANDRIKA v. SANTHOSH & ANR                          593
             [K.S. RADHAKRISHNAN, J.]
     5. On the basis of the above-mentioned report, the police          A
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          B
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                   C
     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             D
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              E
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.
                                                                        F
    7. This Court in Gopa/ Vijay Verma v. Bhuneshwar
Prasad Sinha & Ors. [(1982) 3 SCC 51 OJ 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             G
by a Three-Judge Bench judgment of this Court in Kishore
Kumar Gyanchandani v. G.D. Mehrotra [AIR 2002 SC 483               =
(2001) 10   sec 59].

     8. The High Court, in our view, rightly applied the legal
                                                                        H
    594      SUPREME COURT REPORTS                 (2013] 12 S.C.R.

A principle, but omitted to consider the crucial question as to 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 :-
B
        "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
c       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
D 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
E was not in the residential house of first respondent. Investigation
  revealed that they were separated and second accused started
  living at Thiruvananthapuram.

        10. The appellant has also produced a copy of decree of
F 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
G 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
H
         B. CHANDRIKA v. SANTHOSH & ANR                  595
              [K.S. RADHAKRISHNAN, J.]
as the statement of the complainant would indicate that no      A
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      B
and the summons issued against the second accused would
stand quashed. However, it is open to the Magistrate to
proceed against the first accused.

    12. The appeal is allowed as above.
                                                                c
B.B.B.                                      Appeal Allowed.