Summons By Criminal Court Affects Image In Society, Suppressing Civil Proceedings To Pursue Criminal Complaint Is Harassment: Kerala High Court

Justice Sophy Thomas, while quashing criminal proceedings pending before a Magistrate Court in Thiruvananthapuram observed thus:

“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. “

The dispute was between legal heirs of one Kamalamma who had executed a Will in respect of her property. The respondent-son alleged that the petitioners forged the identity card of their mother and created a false Will deed by impersonation. Under the alleged Will Deed, the respondent-son was only given 2 cents of land and the joint rights over the rest of the land were given to her other children.

The respondent-son had already filed a suit as early as on 29.02.2012 before Munsiff Court, Thiruvananthapuram for partition and separate possession of the property under the Will Deed. It is for the very same property under the very same Will Deed that he filed a criminal complaint under Sections 420, 464, 120B r/w Section 34 of IPC, alleging forgery and cheating against the petitioners, scribe of the will, sub-registrar and witnesses to the Will deed.

The petitioners contend that there is no forgery or manipulation in the execution of the Will Deed and getting lesser share in Will Deed is not a ground to challenge the genuineness of the document. They also submitted that the final report was filed by the police stating that the Will Deed is genuine and even after that criminal proceedings were continuing against them. It was contended that taking cognizance of the offence and issuing summons without considering the final police report is an abuse of the process of the law. Further, it was also alleged that filing of criminal compliant during pendency of civil suit is only done to harass and embarrass them.

The respondent-son contended that the mother did not possess an identity card and that she was seriously ill when the Will Deed was getting executed. Based on the complaint, police conducted investigation and final report was submitted finding that the Will was executed by the mother herself. He preferred a protest petition on the final report.

The Magistrate took cognizance of the offences and issued summons to the petitioners herein. It is challenging this order that the petitioners approached the High Court.

The High Court, after considering the facts of the matter and hearing both sides held that Magistrate has to take cognizance and issue summons only when it is satisfied with the allegations in the protest complaint. It held thus:

“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.”

The court noted that when the police has conducted an inquiry and submitted final report, the Magistrate has to look into the final report and the statement of the witnesses. It is only when there is a clear indication that a prima facie case is made out based on the inquiry and report, summons can be issued, Court said. It held:

“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.”

The court noted that respondent-son had filed the criminal complaint when he had already filed a civil suit in the same subject matter. It referred to the decisions of the Apex Court in Paramjeet Batra vs. State of Uttarakhand and others (2013) and Usha Chakraborty vs. State of West Bengal (2023) to hold that when a civil suit is filed and a civil remedy is pending, the court can quash the criminal complaint on the same subject matter to prevent the abuse of process of the Court.

The Court remarked that the Apex Court decision in Usha Chakraborty (Supra) is squarely applicable in the present case. The court noted that in civil matters pending before competent civil courts, parties tend to file criminal complaint only to give the offence which is essentially of a civil nature, a cloak of criminal nature.

The Court took consideration of the fact that the respondent-son had suppressed the pendency of the civil suit while lodging the criminal complaint. Thus, the Court quashed the criminal proceedings.

Case Title: Mohandas v. State of Kerala

Citation: 2023 LiveLaw (Ker) 365

Case Number: CRL MC No. 8096/2017

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