Gopinathakurup, Aged 56, Arun ... vs State Of Kerala, Represented By ...

on 17 February, 2011

Kerala High Court Kerala High Court Gopinathakurup, Aged 56, Arun ... vs State Of Kerala, Represented By ... on 17 February, 2011 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 502 of 2011() 1. GOPINATHAKURUP, AGED 56, ARUN VIHAR, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY ITS ... Respondent 2. SAHAJAN, AGED 53 YEARS, MANAGER S.B.T., 3. SATHYAN, FIELD OFFICER, (2007-2008) For Petitioner :SRI.D.KISHORE For Respondent : No Appearance The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :17/02/2011 ORDER THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.502 of 2011 ==================================== Dated this the 17th day of February, 2011 O R D E R Notice to respondent Nos.2 and 3 is dispensed with since the matter is under inquiry under Section 200 of the Code of Criminal Procedure (for short, "the Code"). 2. Petitioner is the complainant in Crl. M.P. No.1386 of 2010 of the court of learned Judicial First Class Magistrate, Adoor which is a complaint preferred under Section 190 of the Code for offences punishable under Sections 418, 420, 465, 467 and 120B read with Section 34 of the Indian Penal Code. It would appear from the petition that without directing investigation under Sec.156(3) of the Code learned Magistrate has taken cognizance of the offence and recorded sworn statement of petitioner. At that stage petitioner wanted the investigation to be conducted by the police as provided under Sec.202(1) of the Code. That request has been turned down by the learned Magistrate as per the impugned order 12.11.2010. That order is under challenge. Learned counsel contends that the learned Magistrate was under the impression that once cognizance is taken under Sec.200 of the CRL.M.C. No.502 of 2011
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Gopinathakurup, Aged 56, Arun ... vs State Of Kerala, Represented By ... on 17 February, 2011

-: 2 :Code no investigation could be conducted through the police under Sec.202(1) of the Code which according to the learned counsel is patently erroneous. Reliance is placed on the decision in Biju Purushothaman v. State of Kerala (2008 [3] KLT 85) and Rameshbhai Pandurao Hedau v. State of Gujrat ([2010] 4 SCC 185). I have heard the learned Public Prosecutor also. 3. It is seen from the impugned order that the learned Magistrate has observed that his predecessor in office has taken the case for inquiry under Sec.203 of the Code (which obviously is a mistake) and the learned Magistrate though was of opinion that allegations regarding cheating, forgery, etc., could be revealed only by an investigation by the police, since an inquiry under Sec.202 of the Code has started, investigation under Sec.156(3) of the Act is not permissible. Observing so the request was disallowed. 4. Under Sec.202 of the Code any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance may if he thinks fit postpone the issue of process against the accused and "either inquire into the case by himself or direct an investigation to be made by a police officer or by CRL.M.C. No.502 of 2011 -: 3 :such other person as he thinks fit" for the purpose of deciding whether or not there is sufficient ground for proceeding. Dealing with the question whether the said alternatives are disjunctive of conjunctive this Court in Biju Purushothaman's case (supra) stated that the usage "either... or" need not necessarily mean that one alone of the two alternatives can be resorted to by the Magistrate and that there is nothing to indicate that once the learned Magistrate has conducted an inquiry into the case by himself he cannot thereafter follow the next alternative, i.e., to direct investigation and vice-versa under Sec.202 of the Code. In Rameshhai Pandurao Hedau's case (supra) the power of the Magistrate to direct investigation under Sec.202 of the Code is highlighted. In that view of the matter learned Magistrate was not correct in holding that since an inquiry under Sec.200 or 202 of the Code has already been ordered investigation through police in the manner stated above is not contemplated. 5. On the question whether such investigation is required learned Magistrate himself has opined that the offences relating to cheating, forgery etc., could be revealed only through investigation by the police. Hence there is no reason why request of petitioner should be disallowed. CRL.M.C. No.502 of 2011 -: 4 :Resultantly, this Criminal Miscellaneous Case is allowed. Order passed by the learned Magistrate on Crl. M.P. No.1386 of 2010 on 12.11.2010 is set aside. Learned Magistrate is directed to order an investigation to be made by a police officer or by such other person as the learned Magistrate thinks fit and as provided under Sec.202(1) of the Code. THOMAS P. JOSEPH, JUDGE. vsv

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