0

Complaint not disclosing commission of any offence alleged, shall be rejected: Kerala High Court

If the complaint on the face of it does not make out any offence, then the Magistrate may reject the complaint. This power of rejection at the precognizance stage is inherent in any Magistrate and the said power should not be mistaken for the power of dismissal available to the Magistrate under Section 203 Cr.P.C. this principle was upheld by the Kerala High Court presided by J. R.NARAYANA PISHARADI in the case of SHAILAJA P vs. THE VIGILANCE AND ANTI CORRUPTION BUREAU & othrs. [Crl.Rev.Pet.No.1547 OF 2016].

In the instant case, the revision petitioner is a human rights activist who was the complainant before the Court of the Enquiry Commissioner and Special Judge, Thalassery. The petitioner filed complaint before the Director of Vigilance and Anti-Corruption Bureau. The complaint was with regard to the corrupt practices conducted by the officers of the Malanadu Rubber and Other Agricultural and Processing Co-operative Society in relation to the procurement of copra/coconut which was forwarded to the Inspector of Police. After conducting a surprise check and verification of records, the Inspector of Police submitted report to the Director of VACB which contained the details of the irregularities noticed during the surprise check and also some recommendations. A vigilance enquiry was conducted by the Dy.S.P who submitted enquiry report stating that the enquiry did not yield any direct evidence to prove the allegations. The petitioner then filed a writ petition before this Court for quashing vigilance enquiry report and for issuing a direction to the VACB to conduct a fresh enquiry in the matter which was closed by the court granting liberty to invoke appropriate remedies in accordance with law. Thereafter, the petitioner filed complaint in the Court of the Enquiry Commissioner and Special Judge, Thalassery against the Secretary, President and the Directors of the Society, the Office Manager of KERAFED, the Joint Registrar of the Co-operative Societies and a private person. Learned Special Judge considered the allegations in complaint and also the findings in the vigilance enquiry report and found that the allegations made in the complaint are proved to be not tenable by the vigilance enquiry conducted and apart from the allegations made in the complaint, there are no materials before the court to hold that misappropriation of funds was committed by the accused persons and dismissed the complaint.

The honorable court observed, “In the instant case, the learned Special Judge did not take cognizance of the offences alleged in the complaint. The complainant was not examined on oath and no further steps were taken. Learned Special Judge only considered the allegations in the complaint and the findings made in the vigilance enquiry report and found that the allegations in the complaint were proved to be not tenable. In other words, the learned Special Judge was of the view that the complaint did not disclose commission of any offence alleged in the complaint. In such a situation, the learned Special Judge should not have dismissed the complaint but he should have rejected it. Dismissal of the complaint at that stage is not contemplated by law.” The court further held, “However, the error committed by the learned Special Judge in passing an order dismissing the complaint instead of rejecting it is not sufficient to set aside order. The revision petition is liable to be dismissed. Consequently, the dismissal of the complaint by the learned Special Judge as per order shall be treated as rejection of the complaint. With the above observation, the revision petition is dismissed.”

The court referred to the case of Biju Purushothaman v. State of Kerala [2008(3)KHC24:2008(3)KLT85], in which it was observed, “If the complaint on the face of it does not at all make out any offence, then the Magistrate may reject the complaint. This power of rejection at the precognizance stage is inherent in any Magistrate and the said power should not be mistaken for the power of dismissal available to the Magistrate under Section 203 Cr.P.C since the latter power of dismissal is one which can be exercised only at the post cognizance stage”.

Click here to read judgment

Leave a Reply

Your email address will not be published. Required fields are marked *

Open chat