Rajesh Anil and Others vs State of Kerala and Another

V.K. Mohanan, J.—The petitioners, who are accused Nos. 1 to 3 in C.C. No. 56 of 2004 on the file of the Chief Judicial Magistrate''s Court, Kozhikode, approach this Court u/s 482 of the Code of Criminal Procedure (for short ''the Cr.P.C.'') seeking an order of quashing Annexure A and all the proceedings thereon including Annexure-F. The above case was instituted on taking cognizance by the court below upon a complaint dated 17.4.2004 filed by the second respondent for the offence punishable u/s 143(1)(a) of the Railways Act, 1989.

The facts which led to the above case are as follows-

According to the prosecution, on 24.4.2003, at about 19.30 hours while Sri. P.P. Joy, Inspector, R.P.F., Kozhikode and party were on confidential watch at the premises of Railway Reservation Office, Kozhikode in connection with illegally procuring and selling of Railway Reservation tickets, they had found that Rajesh Anil (first accused) was moving in a suspicious manner near the reservation counter carrying some railway tickets and railway reservation forms in his hands. On suspicion, he was intercepted at the entry gate of Reservation Office, Kozhikode and questioned about the reservation forms and tickets. In the meantime, he put the railway reservation tickets and forms into his shirt pocket. Then, he had been asked to take out the reservation tickets and forms from his shirt pocket and when the documents from his shirt pocket were examined in the presence of independent witnesses, they found four numbers of Railway reservation/cancellation tickets, etc. and he did not have any lawful authority for the possession of the above said Railway Reservation/cancellation tickets etc. Sri. P.P. Joy, Inspector, R.P.F., Kozhikode seized the above Railway Reservation/cancellation tickets etc. under the cover of a spot mahazar attested by witnesses and brought him to R.P.F. Post, Kozhikode. It is the further case of the prosecution that when the said accused had been questioned, in his voluntary statement, which was recorded in the presence of witnesses, he had stated that he along with his brother by name Roopesh Anil and his father Anil Kumar. G. Sundrani were procuring and selling of Railway Reservation tickets at Shop No. 7/1030/A-9 located at Shermina Complex, 1st Floor, Court Road, Kozhikode under the name of "Sree Ganesh Travels". It is also disclosed that his brother Roopesh used to run the shop, to take bookings, orders and he and his father Anil Kumar G.Sundrani used to go various Railway Stations like Kozhikode, Feroke. Parappanangadi etc. and book reservation tickets for their customers for which service charges/delivery charges were collected from the passengers. It is also the case of the prosecution that he had also admitted in his statement that for the last seven years, they were running this kind of business at Kozhikode and for this business, they did not have any licence from the Railway Administration. According to the complainant, a personal search was conducted in the presence of witnesses and Rs. 16,710/- and other articles were found with him. In this connection, a case Crime No. 1031/03 u/s 143(1) (a) and (b) of the Railways Act, 1989 was registered in Kozhikode R.P.F. Post Railway, against the said Rajesh Anil and he was arrested by duly complying with all procedural formalities. The accused was subsequently produced before the Chief Judicial Magistrate Court, Kozhikode and on the basis of the petition filed before the court below, permission was granted u/s 202(1) of the Cr.P.C. to conduct the investigation and the same was entrusted with the Inspector, R.P.F., Kozhikode. Thus, according to the complainant, the investigation was undertaken and after adopting all procedural formalities, the same was completed. Thereafter, a complaint was filed in which two more accused were arrayed as accused Nos. 2 and 3.

Thus, according to the complainant, the investigation revealed that all the three accused carried on the illegal business of procuring and supplying of tickets for travel on Railway Reserved accommodation for journey in trains without any authority or licence and thereby committed the offence punishable u/s 143(1)(a) of the Railways Act, 1989. Accordingly, the second respondent requested before the Magistrate to take the complaint on file and to proceed against the accused in accordance with law. Thereupon, the learned Magistrate had examined the complainant and his sworn statement was recorded and cognizance was taken which is manifestly visible by the issuance of processes to the accused/petitioners.

According to the petitioners herein, when they received summons from the court, they appeared before the court below and filed Annexure D petition u/s 461 of the Cr.P.C. in which the prayer is to hear the question whether the trial is vitiated as a preliminary issue, before further proceeding with the case, and to hold that the trial against the petitioners is without legal sanction and jurisdiction and to close the proceedings against the petitioners. Actually, Annexure-D petition is filed only by the second accused and signed by him alone. The petitioners 1 and 3 who are accused Nos. 1 and 3 respectively have not signed Annexure-D petition. To Annexure-D petition, the second respondent filed Annexure-E objection.

The main contention raised by the second petitioner is that the procedure adopted by the trial court and the complainant is illegal and the trial court has no jurisdiction to try the case based upon the complaint which itself is unsustainable. It is also stated that from the final complaint, which was filed on 17.4.2004, it is clear that permission was granted by the trial court to the Inspector, Railway Protection Force to conduct the investigation u/s 202(1) of the Cr.P.C. on a prayer for the same made by them. According to the second petitioner, if such permission is granted, it is illegal and against the provisions of Sections 200 and 202 of the Cr.P.C., especially in the light of the fact that the complainant was not examined before ordering investigation u/s 202(1) of Cr.P.C. and therefore, conferring power and authorising the second respondent to conduct investigation u/s 202(1) Cr.P.C. is illegal, and consequential proceedings are also illegal and without jurisdiction. So, according to the petitioners, the entrustment of investigation with the complainant u/s 202(1) of Cr.P.C. has resulted in serious prejudice to the interests of the petitioners and therefore, the trial against the petitioners is vitiated by the above illegalities. So it was prayed that the preliminary point as to whether the trial is vitiated be taken up and decided before proceeding any further with the trial of the case.

In Annexure E objection filed by the prosecution agency, it is stated that the court below is competent to take cognizance u/s 190(1)(a) of the Cr.P.C. upon receiving a complaint of facts which constitute such offence. It is also stated that Clause (a) of proviso to Section 200 of the Cr.P.C. stipulates that when the complaint is made in writing by a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint, the Magistrate need not examine the complainant and the witnesses. Here, according to the Railways, the complaint is a written one and the complainant, the Inspector, R.P.F. is a public servant and hence the above mentioned Clause is applicable here and in the light of the above legal position, Section 461 of Cr.P.C. does not attract. It is also stated in Annexure E that if any irregularity is done by the court, it shall not vitiate the proceedings because if anything is done erroneously and if it is not a wilful act and is done by the court in good faith, that proceedings would not be set aside merely on the ground that the Magistrate is not being so empowered as contemplated in Section 460 of the Cr.P.C. It is the specific stand of the respondents that since the trial court has taken cognisance u/s 190(1)(a) of the Cr.P.C., the proceedings have a special protection u/s 460(e) of Cr.P.C. In tire aforesaid legal background, the second respondent sought dismissal of the petition filed by the second petitioner.

After hearing both sides, the court below passed Annexure F order which is in challenge in these proceedings. I have heard Mr. V.V. Surendran, counsel appearing for the petitioners and also Mr. Alexander Thomas, Standing Counsel for the Railways and also the Public Prosecutor appearing for the State.

It is an undisputed fact that the first accused on his arrest on the allegation of the commission of offence u/s 143(1)(a) of the Railways Act, 1989, was produced before the Chief Judicial Magistrate Court, Kozhikode with certain documents namely, the occurrence report dated 25.4.2003 and the remand report dated 25.4.2003 and also an application u/s 202(1) of Cr.P.C. seeking permission to conduct investigation in the case registered under Railways Act as Crime No. 1031 of 2003 for the offence punishable u/s 143(1) (a) and (b) of the Railways Act, 1989.

It is upon the above factual situation and especially relying on certain averments contained in Annexure-E objection, Mr. V.V. Surendran, the learned Counsel for the petitioner submits that the learned Magistrate had already taken cognizance and therefore, the subsequent investigation conducted by the complainant u/s 202(1) of the Cr.P.C. is illegal and the said illegality and irregularity will come u/s 461 of Cr.P.C. as a result of which the entire court proceedings are vitiated and therefore, the petitioners are entitled to get discharge. It is also the case of the learned Counsel for the petitioners that if once the accused are produced before the trial court or committal court as the case may be, there is no question of postponement of process as envisaged by Section 202 of Cr.P.C. In that count also, the order by which the investigation is entrusted with the complainant u/s 202(1) of Cr.P.C. is also illegal and hence the proceedings of the court below attracted Section 461 of Cr.P.C. on the basis of which the petitioners are entitled to get discharge. It is also the case of counsel for the petitioners that since the entrustment of investigation u/s 202(1) is illegal, the consequential investigation and all materials alleged to be collected under the so called investigation are liable to be discarded and no proceedings can be continued based upon such materials which are consequent to an illegal order u/s 202(1) of Cr.P.C. It is pointed out by learned Counsel for the petitioners that since the complainant is not a Police Officer, before taking cognizance, the complainant as well as the witnesses ought to have been examined by the court below either u/s 200 of Cr.P.C. or u/s 202 of Cr.P.C. According to the learned counsel, in the present case, no such course is adopted by the court below and therefore, the petitioners/accused are highly prejudiced and hence, they are entitled to get discharge.

Per contra, Sri. Alexander Thomas, the learned Standing Counsel appearing for the Railways submits that the complainant or witnesses need not be examined for taking cognizance since the proviso to Section 200 says that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses if a public servant acting or purporting to act in the discharge of his official duties or the court has made a complaint or if the Magistrate makes over the case for inquiry or trial to another Magistrate u/s 192. The learned Counsel submits that in the present case, the complaint is in writing and the complainant is a public servant, an authorised officer. As per Section 2(34) of the Railways Act, 1989, the complainant is also a railway servant. It is also pointed out that on the date of producing the accused before the court below, the prosecution has filed a petition u/s 202(1) with a prayer for entrusting the investigation with them and the same was allowed. It Is particularly pointed out that such a petition was filed with notice to the first petitioner/first accused and he was aware of the entire proceedings of the court below. No objection was taken at that time. In this connection, the learned Counsel for the complainant invited my attention to the objection filed by the prosecution in the trial court against the ball application (No. 985 of 2003) which was dismissed on 25.8.2003. According to the Standing Counsel, in the above objection, the prosecution has already pointed out the order passed by the court below u/s 202(1) of Cr.P.C. moved by the prosecution for entrustment of the investigation and also regarding the investigation which was undertaken on the strength of that order. Therefore, according to the Standing Counsel, the present objection Is highly belated. It is also pointed out that the petitioners have miserably failed to point out any prejudice, if any, resulted due to the proceedings followed by the court below for entrusting the investigation with the prosecution agency u/s 202(1) of Cr.P.C. or not conducting enquiry as contemplated either u/s 200 or Section 202.

I have considered the rival submissions made by both the counsel for the petitioner as well as the complainant and also carefully perused the documents available on records including the lower court records.

The present Crl. M.C. is directed mainly against the order passed by the learned Chief Judicial Magistrate, Kozhikode in C.M.P. No. 2632 of 2005 in C.C. No. 56 of 2004 and to quash the same. As stated earlier, C.M.P. No. 2632 of 2005 is a petition purportedly filed u/s 461 of Cr.P.C. for closing the proceedings against the petitioners who are the accused in the above case. The learned Chief Judicial Magistrate, after considering the materials available on record and the rival contentions advanced on behalf of the parties, came to a conclusion that the complainant was examined and a general investigation was ordered which falls squarely within the scope of permissible investigation u/s 202(1)(b) of the Cr.P.C. Therefore, according to the court below, there is no irregularity at all. It is also pointed out by the learned Magistrate in the impugned order that in the petition filed u/s 461 of Cr.P.C., either the petitioners or their counsel were unable to assert as to which of the Clauses out of Clauses (a) to (q) u/s 461 of Cr.P.C., is attracted. In the impugned order, the learned Magistrate stated that the prosecution maintained a stand that the court has taken cognizance under Clause (a) to Section 190(1) of the Cr.P.C. and hence, the proceedings are protected u/s 460(e) of the Cr.P.C. The arguments of counsel for the accused are also reproduced in the impugned order which says that the counsel for the petitioners assails the investigation ordered u/s 202 of Cr.P.C. and the same does not fall under Clause (e) to Section 460 of Cr.P.C. and therefore, the claim for protection u/s 460(e) of Cr.P.C. is not sustainable. Finally, according to the court below, the only conclusion possible is that the procedure whereby the investigation was ordered is not at all irregular and hence the question whether the same is an irregularity which vitiates the complaint, u/s 461 of Cr.P.C. as pointed out by the learned Counsel for the petitioners or whether the same is an irregularity which is protected u/s 460 of Cr.P.C. as maintained by the prosecution, does not arise for consideration.

Going by the impugned order, it appears to me that the court below has failed to apply its mind properly upon the entire facts and circumstances involved in the case as disclosed by the records. On a perusal of the interim order, one can also understand that there are some glaring differences regarding the approach of the court below. It also appears to me that the stand of the prosecution is also contradictory on certain aspects. In the above circumstances, I am forced to scrutinise the records of the trial court in the light of the rival submissions and the resultant output of such scrutiny are the following facts which are beyond dispute.

(i) The first petitioner who is the first accused was arrested at about 20.05 hrs. on 24.4.2003 and Crime No. 1031/03 for the offence u/s 143(i) (a) and (b) of the Railways Act was registered and he was produced before the Chief Judicial Magistrate Court, Kozhikode on 25th April, 2003 with a remand report and also an occurrence report dated 25.4.2003.

(ii) As per the order dated 25.4.2003 of the learned Magistrate, the first accused was remanded to the District Jail, Kozhikode till 9.5.2003. As per the memo dated 24.4.2003 of the Inspector, Railway Protection Force, the arrest of the first accused was informed to his father Sri. Anilkumar. G. Sundrani and that memo is produced before the court on 25.4.2003 which contained the endorsement of the court.

(iii) Mr. P.P. Joy, the Inspector, Railway Protection Force, Kozhikode by filing a report dated 25.4.2003, intimated the court regarding the arrest of the first accused and the allegation against him and the seizure etc. and specifically prayed that an order be given u/s 202 of the Cr.P.C. to conduct further investigation in that case and to file a charge-sheet as per law.

(iv) In the above petition, the learned Magistrate issued an order by making an endorsement on the petition itself which is signed dated 25.4.2003 and the same runs as "Permitted to conduct F.I." Order No. A2-2613/2003 dated 25.4.2003 is the detailed order passed by the court below upon the above petition moved by the prosecution which runs as follows:

The Inspector, R.P.F., Calicut, the investigating officer in Railway Act Crime No. 1031/03, filed a petition requesting to accord permission to him to conduct investigation in the case.

On perusal of the petition and the case records, the Inspector, R.P.F, Calicut is permitted to conduct further investigation in this case.

Sd/- Chief Judicial Magistrate.

(v) It appears that the first petitioner moved an application for bail before the court below to which the prosecution agency had filed an objection and paragraphs 5 to 7 of the same is reproduced as follows for convenience:

5) The Inspector/RPF/Calicut has submitted a prayer before the Hon''ble Court on 25.04.03 seeking a direction u/s 202 Cr.P.C. to conduct further investigation in this case, on which orders are awaited.

(6) The investigation into this case is in its primitive stage and other evidences to establish the offences are to be collected urgently.

(7) At this stage, if the accused is granted bail, there is very possibility for his interference in the further investigations of the case, by way of influencing witnesses, tampering/destruction of evidences which will adversely affect the prosecution case.

(vi) The records further reveal that subsequently, the investigating agency has approached the court below for issuing search warrant and arrest warrant against the other accused etc. The above objection statement is dated 26.4.2003 and the bail application was also stood for consideration on the same date i.e., 26.4.2003. One who perused the court records can realise the fact that the prosecution has approached the court on 25.4.2003 with a prayer for a direction u/s 202 of Cr.P.C. to conduct the investigation in the above crime and the same was allowed by the court as per its endorsement dated 25.4.2003 upon the said petition and the same is more clear from the detailed order dated 25.4.2003 quoted supra. Therefore, the first accused was aware of the fact that the court below has already ordered for investigation u/s 202(1) of the Cr.P.C.

It is pertinent to note that the above order u/s 202(1) of Cr.P.C. was issued by a Presiding Officer of the court below, who is the predecessor of the present Presiding Officer who passed Annexure F order. Since the order u/s 202(1) of the Cr.P.C. was based upon a petition filed for a direction for further investigation u/s 202(1) of Cr.P.C., I am unable to appreciate the stand taken by the court below in the impugned order that the order of his predecessor does not specify the provision of law under which the investigation was permitted. Though I have tried to find out the sworn statement of the complainant recorded on his examination before passing the order on 25.4.2003 upon the petitioners u/s 202(1) of the Cr.P.C., I could not find out such sworn statement. The only sworn statement available on record is dated 1.3.2005, i.e., after filing the complaint on completion of investigation u/s 202(1) of Cr.P.C. It is also not clear as to whether the learned Magistrate in the impugned order refers to the sworn statement dated 1.3.2005. As correctly pointed out by the learned Magistrate, the complaint was filed on 17.4.2004 and the investigation stated to be u/s 202(1) Cr.P.C. was allowed by the court on 25.4.2003 when the accused was produced immediately after his arrest. The court has also correctly held that no complaint u/s 190(1)(a) of Cr.P.C. was laid before the court at the time when the investigation wad allowed. The learned Magistrate has further held that the examination of the Inspector was for the purpose of ordinary investigation for the collection of evidence and the same can never be characterised as investigation u/s 202 Cr.P.C. after taking cognizance of offence u/s 190(1)(a) of Cr.P.C. From this passage, as there is no other material, it cannot be held that the Magistrate was of the opinion that the complainant was examined u/s 202 and cognizance was taken u/s 190(1)(a) of the Code of Criminal Procedure at that time.

In this context, it is to be noted that the stand of the prosecution agency is that even if the court has already taken cognizance u/s 190(1)(a) of the Cr.P.C and still then there is no bar for the investigation u/s 202(1) of the Cr.P.C. The learned Standing Counsel for the Railways, relying on the decision of the Apex Court in Rosy and Another Vs. State of Kerala and Others, submitted that the enquiry u/s 202 is a limited, one and the standard of Magistrate''s scrutiny of the evidence is not the same as that applied while framing charges. Inviting my attention to the decision of a Full Bench of this Court in Moideenkutty Haji and Ors. v. Kunhikoya and Ors. 1987(1) KLT 635 : 1987 Cri LJ 1106 (F.B.), the Standing Counsel further submitted that the legislature intended two different types of enquiries u/s 202 of Cr.P.C., a discretionary enquiry in ordinary complaint cases and a mandatory enquiry in complaint cases disclosing the offences which are triable exclusively by the Court of Session. In the above decision, this Court had held as follows:

...In the discretionary enquiry, the Magistrate can either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit. But in a mandatory enquiry in a complaint case that discretion is taken away by proviso (a) to Section 202(1). The Magistrate will have to conduct the enquiry himself and he cannot order investigation.... In a discretionary enquiry in ordinary complaint cases, Section 202(2) gives the option to the Magistrate to take evidence of witnesses on oath or not as he thinks fit. That means he can even record a summary of the statements of witnesses.... The scope of the discretionary enquiry u/s 202(1) is left undefined. That means even if the Magistrate decides to have an enquiry he is the master to decide what all materials are to be collected and at what point the enquiry has to be stopped subject to his satisfaction whether or not there is sufficient ground for proceeding. But in the mandatory enquiry in a complaint case he has no such discretion. The proviso to Section 202(2) makes it compulsory for him to call upon the complainant to produce all his witnesses and examine them on oath.

Referring to the above passages of the Full Bench decision of this court, the learned Standing Counsel for the Railways submitted that herein the offence alleged against the petitioners is under the provisions of Section 143(1)(a) of the Railways Act, 1989 and not any offence exclusively triable by a Sessions Court. So, according to the Standing Counsel, especially when the complainant is a public officer and the occurrence report disclosed the offence u/s 143(1)(a) of the Railways Act, there was no need of examining the complainant either for taking cognizance or for ordering an investigation u/s 202(1) as rightly done by the court below in this case. Based upon the decision of the Apex Court reported in Rosy and Another Vs. State of Kerala and Others, , the learned Standing Counsel for the Railways submitted that the present objection raised by the petitioners is highly belated. The prayer of the petitioners cannot be allowed.

As disclosed by the records, it can be seen that on the date of production of the first accused before the court below itself, the prosecution agency has filed a petition u/s 202(1) of Cr.P.C. and the learned Magistrate had already ordered an investigation u/s 202(1) of the Cr.P.C. In view of Section 179 of the Railways Act, 1989, any railway servant or the Police Officer not below the rank of a Head Constable can arrest any person without warrant or other written authority if such a person commits any offence mentioned in Sections 137, 141 to 147, 150 to 157, 160 to 162, 164, 166, 168 and 172 to 175 of the Railways Act, 1989. In the present case, the complainant had, as he had no other option after the arrest of the first accused, produced him before the Court below and filed the occurrence report and remand report. In view of the decision of the Apex Court in Directorate of Enforcement Vs. Deepak Mahajan and another, , the complainant has all powers of police and on production of accused after arrest, the Magistrate can invoke Section 167(1) of the Cr.P.C. But, further, he had also preferred a petition u/s 202(1) of the Cr.P.C. for investigation. As in the case of forest offence and abkari offence, if an accused is arrested he should have been produced along with the occurrence report and remand report, if any, and finally a complaint will be laid after completing the investigation. In the present case also, as discussed in the foregone paragraph, the court below had allowed the petition u/s 202(1) of Cr.P.C. for further investigation and the accused were remanded. In fact for conducting investigation, no such petition u/s 202(1) was necessary as the complainant is a public Officer and no such permission was also not contemplated. Admittedly, in the present case, the date of occurrence was on 24-4-2003 on which date, as per the relevant statute and its provision as amended especially in view of Section 180-D, 180-E and 180-F of the Railways Act, 1989, the Railway Officer can conduct investigation like police investigation or the investigation as in the case of forest offences or abkari offences without sanction from the Court. In the light of the above provision, since second respondent/complainant has got ample power to conduct investigation, merely because a petition is filed u/s 202(1) of Cr.P.C. and the Court has issued an order therein the investigation undertaken by the complainant will not be rendered as illegal or irregular. Therefore, no prejudice is worked out against the petitioner/accused because of the order passed by the Court below upon Annexure B petition.

During the above mentioned stage, it cannot be said that the court has taken cognizance of the offence alleged against the petitioners. In view of Section 200 and Clause (a) to proviso to Section 200, the complainant was not required to examine. In the present case, as correctly pointed out by the learned Magistrate in the impugned order, the court below had not taken cognizance u/s 190(1)(a) of Cr.P.C. and therefore, there was no irregularity in conducting investigation by the complainant. Therefore, Section 461 of the Cr.P.C. is not at all attracted. It is also pertinent to note that though Annexure D petition was filed u/s 461 of the Cr.P.C. which contained Clauses (a) to (q), neither the petitioners nor their counsel pinpointed as to under what sub-clause the proceedings is vitiated. Therefore, finding arrived on by the court below is absolutely correct and warrants no interference.

As pointed out earlier, Annexure-D petition was filed during the year 2005 that too after filing the complaint. The date of occurrence of the case was on 24.4.2003 and the learned Magistrate allowed the petition for investigation u/s 202(1) Cr.P.C. on 25.4.2003 and the first accused was aware of the above proceedings as evidenced by the records which mentioned earlier. But, none of the petitioners approached the court below with their objection at an earlier stage. The Apex Court in the decision reported in Rosy and Another Vs. State of Kerala and Others, had held that the objection, if any, with respect to the enquiry u/s 202 of Cr.P.C. should be taken at the earliest. The facts and circumstances involved in the case would show that there were serious laches on the part of the petitioners in raising such objection. In view of Section 465 of Cr.P.C., especially in the light of the facts and circumstances involved in the case, I find no reason to interfere with Annexure F order passed by the court below and nothing is discernible from such order, to hold that there is failure of justice especially, when the petitioners failed to raise the objection at an early stage of the proceedings.

It is pertinent to note that the petitioners have miserably failed to point out any prejudice caused to them due to the proceedings adopted by the court below. Chapter XIV declares the conditions requisite for initiation of proceedings. Section 190 deals with the cognizance of offences by Magistrates, Under Clause (a) to Sub-section (1) of Section 190, the Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence, under Clause (b), upon a police report of such facts and under Clause (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. Counsel for the petitioner vehemently argued that as the accused was produced before the court below and the presence of the accused was secured by his arrest and production, there is no question of postponement of process to the accused as envisaged by Section 202(1) of the Cr.P.C. and by the very production or the appearance of the accused, it can be said that the court had taken cognizance and therefore, there is no question of investigation u/s 202(1) of Cr.P.C. The above submission is not acceptable as the same is against the procedure prescribed and contemplated by the Code of Criminal Procedure. In this juncture, it is relevant to note that at the time of filing the F.I.R. and producing the accused by the Police or at the time of filing the occurrence report and producing the accused by any other agency, though the accused is remanded to custody or released on bail, it cannot be said that the court was taking cognizance at that stage. At that stage, what the Magistrate expected to examine is whether the materials produced prima facie justifies allegation so as to proceed against the accused and remand him to custody or to release him on bail. Such mechanism cannot be equated to taking of cognizance. Chapter XII of the Cr.P.C. deals with information to the Police and their powers for investigation. Section 167 coming under the above chapter which prescribes the procedure when investigation cannot be completed in twenty four hours. Therefore, in a case where the proceedings are initiated by an agency other than the Police and when the accused was produced on his arrest in accordance with law and if he is remanded or released on bail, it cannot be said that the court has taken cognizance of the offence alleged against him. In this connection, it is pertinent to note that a learned Judge of this Court had held in a judgment dated 25.8.2003 in B.A. No. 985 of 2003 that since the allegations in an occurrence report are sufficient to constitute offences, such occurrence report will come within the purview of complaint as defined in Section 2(d) of Cr.P.C. If that be so, there is no legal impediment in the Magistrate in taking cognizance even based upon occurrence report and for which the officer need not be examined in the light of Clause (a) of the proviso to Section 200 of Cr.P.C. Normally, as per the practice and procedure, the court will take cognizance only on the basis of full and perfect complaint filed after investigation by a Public Officer. Thus it is crystal clear that on production of the accused or his appearance, the concerned court has to remand him by invoking Section 167 of the Code of Criminal Procedure or to release him on bail as contemplated by Chapter XXXIII of the Code of Criminal Procedure or to discharge him and there is no question of taking cognizance and at that junction, the only task before the court is to see whether there are sufficient reasons or materials to proceed against the accused or not. Therefore, the contention raised by counsel for the petitioners fail.

In view of Section 465 of the Code of Criminal Procedure, in the absence of any finding regarding the failure of justice because of the reasons mentioned therein, there is no scope for interference by this Court u/s 482 of the Code of Criminal Procedure. Even if there is some irregularity or illegality with respect to the proceedings or trial or any enquiry under this Court, in the light of Sub-section (2) of Section 465, the objection now raised by the accused is highly belated and for that reason alone no interference is warranted, even if there is some substance in the objections.

In the light of the above discussion and in view of the above mentioned settled legal position, I am of the view that there is no merit in the Crl.M.C. which deserves to be dismissed.

Accordingly, the Crl.M.C. is dismissed.