The Kerala High Court has recently said that dismissal of a complaint at the pre-cognizance stage can only be treated as its “rejection”.
A single-judge bench of Justice Narayana Pisharadi passed this order while hearing a petition filed by Rajan.
The petitioner filed a complaint in the Court of the Enquiry Commissioner and Special Judge, Kottayam against respondents, alleging that they committed the offences punishable under Sections 7, 11, 12 and 13 of the Prevention of Corruption Act, 1988.
The allegations raised in complaint against the accused is that the property having an extent of 4.5 acres comprising Mannar Village in Chengannur Taluk is government land. The accused took possession of the aforesaid property and sold it to another through a false sale deed pursuant to a criminal conspiracy among all the parties involved.
The accused have shown a false survey pattayam number in the sale deed. It is stated in that document that the father and the mother of the sixth accused obtained title over the property by the pattayam mentioned in that document.
The Special Court dismissed the complaint on the finding that there were absolutely no materials to make out a case against the accused as alleged in the complaint.
The Court observed that the substratum of the case against the accused is that they created a false sale deed in respect of Government land. As rightly observed by the Special Court, the petitioner could and should have produced documents which show that the land covered by the sale deed executed by the accused was government land. In the absence of any such material produced before the Special Court, the case against the accused, as projected by the petitioner in the complaint, had no basis at all.
In the above circumstances, Justice Pisharadi found no sufficient ground to exercise jurisdiction of this Court under Article 227 of the Constitution of India to interfere with the impugned order passed by the Special Court.
The Court said that the complaint was dismissed by the Special Court without taking cognizance of the offences or without forwarding the complaint for investigation under Section 156(3) Cr.P.C. Dismissal of a complaint under Section 203 Cr.P.C can only be at the post cognizance stage. But there is a power in every Magistrate to reject the complaint even at the pre-cognizance stage if the complaint on the face of it does not make out the offence alleged in the complaint.
The Court held, “In such a case, the law does not oblige the Magistrate to proceed to Section 200 Cr.P.C or the subsequent sections. In such a case, the Magistrate undoubtedly has the power to reject the complaint at the threshold.
Although complaints are being dismissed by the Magistrates at the pre-cognizance stage, such dismissal is made without noticing the real distinction between a dismissal of the complaint under Section 203 Cr.P.C at the post cognizance stage and a rejection of the complaint under the pre-cognizance stage.
Hence, the impugned order shall be treated as an order rejecting the complaint filed by the petitioner.
However, it is made clear that the dismissal of this original petition shall not preclude the petitioner from preferring a complaint with adequate materials to substantiate his case and if any such complaint is filed, the Special Judge will do the needful in accordance with law, the Court said while dismissing the petition.”