In the fitness of things and taking the right stand, the Kerala High Court in a most laudable, learned, landmark and latest judgment titled Mohandas v. State of Kerala in CRL MC No. 8096/2017 and cited in 2023 Live Law (Ker) 365 that was pronounced as recently as on July 26, 2023 has unequivocally held that approaching a criminal court and filing a criminal complaint subsequent to filing of a civil suit, suppressing the pendency of the civil suit is a form of harassment. It must be mentioned here that the Single Judge Bench comprising of Hon’ble Mrs Justice Sophy Thomas while most commendably quashing the criminal proceedings that was pending before a Magistrate Court in Thiruvananthapuram minced just no words to hold that, “As he had already approached the civil court resorting to the civil remedy, the subsequent criminal complaint filed by him, suppressing pendency of the civil suit can be viewed only as a weapon of harassment.” We must note that the Court took consideration of the irrefutable fact that the respondent-son had suppressed the pendency of the civil suit while lodging the criminal complaint. Thus as an inevitable fallout we see that the Court quashed the criminal proceedings. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mrs Justice Sophy Thomas of the Kerala High Court sets the ball in motion by first and foremost putting forth in para 1 that, “Every soul departs this world for their heavenly abode with a fervent hope to rest in peace. Here is a case, where the departed soul of a 95 year old mother is prevented from embracing eternal bliss, due to the legal battle fought by her greedy children over a piece of land owned by her, for which she had allegedly executed a Will Deed.”
For sake of clarity, the Bench clarifies in para 2 that, “Petitioners 1, 4, 5 and the 2nd respondent are the children of deceased Kamalamma. The 2nd petitioner is the wife of her deceased elder son Somasekharan Nair. The 3rd petitioner is the husband of her deceased daughter Radhamma.”
To put things in perspective, the Bench envisages in para 3 that, “The mother, Kamalamma, had 27 cents of land in Re-Survey No.366/8. The dispute is centered around a Will Deed alleged to have been executed by the mother with respect to that property, on 31.05.2011. Her sons including the 2nd respondent and her daughters are the legatees under that Will. The grievance of the 2nd respondent seems to be that, he was given only two cents of land as per the Will Deed, and the other children were given joint right over the remaining 25 cents of land. Provision for sharing the sale proceeds of the said 25 cents, with the children of two deceased daughters was also stipulated in the Will Deed.”
As it turned out, the Bench enunciates in para 4 that, “The 2nd respondent, alleging forgery and cheating from the part of the petitioners, filed a complaint as CMP No.2001 of 2013 under Sections 420, 464, 120B r/w Section 34 of IPC before the Judicial First Class Magistrate Court-I, Thiruvananthapuram. The petitioners, the scribe, the Sub Registrar and also the witnesses in the Will Deed, were all made accused in that complaint. His allegation was that, accused Nos.1 to 9 committed criminal conspiracy and forged documents including the ID card of deceased Kamalamma, and even impersonated her to make a false document styled as a Will Deed. According to him, mother Kamalamma never had an identity card, and moreover, she was seriously ill, and was just discharged from hospital, when the so-called Will Deed was executed. She was not fit physically or mentally, to execute such a document on 31.05.2011.”
Do note, the Bench notes in para 9 that, “It is trite law that while taking cognizance of an offence and issuing process to the accused, the Magistrates are not acting as Post Office, and they are not expected to issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he was satisfied with the allegations in the complaint, so as to constitute an offence when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 of Cr.P.C.”
As we see, the Bench then specifies in para 10 stating that, “The order of the learned Magistrate taking cognizance of the offence was produced as Annexure-XII, and it reads as follows:
“Heard. Analysed the statement given by the complainant and the witnesses. On hearing and perusal of documents, I am of the opinion that a prima facie case has been made out against the accused persons. Hence cognizance has been taken under section 420, 464, 120B read with Section 34 of the IPC. There are sufficient grounds to proceed against the accused persons and hence the case is taken on file as CC 1259/15.””
It cannot be glossed over that the Bench then points out in para 11 that, “Though the above order says that, learned Magistrate analysed the statement of the complainant and witnesses, heard and perused documents, there is no indication that the report of the Police after investigation was perused. Except a general statement that, ‘perused the statements and records’, no specific finding is there, as to how, or on what ground she arrived at the conclusion that a prima facie case was made out. There is no indication that the learned Magistrate applied her mind before she took cognizance of the offences under Sections 420, 464 and 120B r/w Section 34 of IPC. The difference seen in the number of the Identity Certificate mentioned in the Will Deed, was explained by Police in the refer report. That was not seen verified by the learned Magistrate. The questioned identity certificate was not even verified by the learned Magistrate to satisfy prima facie, that it was a forged document.”
Be it noted, the Bench notes in para 12 that, “Summoning an accused in a criminal case is a serious matter, affecting his status and dignity. So, the process of criminal law has to be resorted, with due care and caution. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law governing the issue. Before issuing process to the accused, the learned Magistrate has to form an opinion regarding the prima facie case, and he has to consider whether there are any inherent improbabilities appearing on the face of the complaint. It is true that the learned Magistrate need not write detailed orders at the stage of issuing process. But, there must be sufficient indication regarding the satisfaction of the learned Magistrate as to the allegations in the complaint, so as to constitute the offences alleged therein.”
It is worth noting that the Bench notes in para 17 that, “In the case on hand, though the learned Magistrate simply stated that prima facie case has been made out to take cognizance of the offences alleged, there is no indication that the learned Magistrate perused the final report or the statement of witnesses recorded by Police. So, obviously, the learned Magistrate did not analyse the factual situations in its correct perspective before taking cognizance and issuing summons to the accused.”
While citing a most recent, remarkable and relevant case law, the Bench hastens to add in para 21 stating that, “In Usha Chakraborty vs. State of West Bengal [2023 KHC 6085], the Apex Court held that, in a criminal complaint concealment of existence of pending civil suit between respondent and accused before a competent civil court, is obviously to give the cloak of criminal offence, for a dispute which is essentially civil in nature. When the respondent had already resorted to the civil remedy and that is pending, the High Court should have quashed the criminal proceedings to prevent abuse of process of court. That case is squarely applicable here. The mother allegedly executed the Will Deed and she died after one year of execution of that document. On the very next month, of her death, the 2nd respondent filed the civil suit. After six months of filing the civil suit, he filed the criminal complaint, suppressing the pendency of the civil suit. He is challenging the Will Deed executed by the mother on the ground of forgery, impersonation, etc. As he had already approached the civil court resorting to the civil remedy, the subsequent criminal complaint filed by him, suppressing pendency of the civil suit, can be viewed only as a weapon of harassment.”
Finally, the Bench concludes by holding in para 22 that, “From the foregoing discussion, we could conclude that the order of the learned Magistrate, taking cognizance and issuing summons to the accused in pursuance to the protest complaint filed by the 2nd respondent, is liable to be quashed. So, the order of the learned Magistrate dated 06.10.2015 taking cognizance of the offences, and issuing summons to the petitioners, and the consequent proceedings in CC No.1259 of 2015 on the file of Judicial First Class Magistrate Court-I, Thiruvananthapuram are hereby quashed. It is clarified that this order will have no effect on the pending civil suit between the parties, which will have to be decided by the Munsiff Court, Thiruvananthapuram, on the basis of its own facts and evidence, untrammelled by any of the observations in this order. Learned Munsiff, Thiruvananthparuam, shall decide the case independently and in accordance with law, as early as possible, at any rate, within a period of six months from today. Accordingly, the Crl.M.C stands allowed.”
In sum, we thus see that the Kerala High Court has made it indubitably clear that summons by the criminal court affects the image in society. It is also made clear by the Court that suppressing civil proceedings to pursue criminal complaint is harassment. No denying it.
