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2018 DIGILAW 177 (KER)

Joshy Varghese v. Mar George Alancherry

2018-02-22

B.KEMAL PASHA

body2018
JUDGMENT : 1. Alleging offences punishable under sections 406, 420 and 120B IPC, the petitioner herein filed Ext.P1 complaint before the Judicial First Class Magistrate's Court-VIII, Ernakulam (Maradu). Inter alia, the petitioner had sought for in the complaint, a relief by way of forwarding the matter for investigation to the police under Section 156(3) Cr.P.C. At the same time, the learned Magistrate has proceeded with under Section 200 Cr.P.C. instead of invoking the provisions under Section 156(3) Cr.P.C. It seems that the sworn statement of the complainant has been recorded, and the complainant was directed to produce his witnesses. 2. Presently, the complainant seeks for a direction to the learned Magistrate to stop the inquiry in CMP.2/2018 and to forward the complaint to the police in exercise of the powers under Section 156(3) Cr.P.C. 3. Heard learned counsel for the petitioner Sri.V.Rajendran Perumbavoor and learned Senior Counsel Sri.S.Sreekumar for the 1st respondent. 4. Learned Senior Counsel Sri.S.Sreekumar for the 1st respondent has pointed out that this OP(Crl.) is not maintainable and no order passed by the court below has been, in fact, challenged. Apart from that, it has been contended that the learned Magistrate, having chosen to proceed with under Section 200 Cr.P.C., cannot go back to the stage of Section 156(3) Cr.P.C., when the Magistrate has taken a decision to have recourse to the procedure for taking cognizance of an offence/offences on the complaint. It is for the purpose of satisfying himself whether cognizance can be taken on any offence on the complaint that the learned Magistrate has recorded the sworn statement of the complainant and further directed the complainant to produce his witnesses for recording their statements. 5. Evidently, it is true that the learned Magistrate has not so far taken cognizance of the offence on the complaint. At the same time, it is a fact that the learned Magistrate has decided to have recourse to the procedure for taking cognizance of the offence/offences on the complaint and that is the reason why the learned Magistrate has recorded the sworn statement of the complainant. The Magistrate was not satisfied with the sworn statement of the complainant alone for taking cognizance of any of the offences on the complaint, and that is the reason why the learned Magistrate has evidently directed the complainant to produce his witnesses for recording their statements. 6. The Magistrate was not satisfied with the sworn statement of the complainant alone for taking cognizance of any of the offences on the complaint, and that is the reason why the learned Magistrate has evidently directed the complainant to produce his witnesses for recording their statements. 6. The short question to be decided by this Court is whether the learned Magistrate can now be directed to go back to the stage of Section 156(3) Cr.P.C.? This is a case wherein the complainant was not left without any remedy when the learned Magistrate had expressed his desire to record the sworn statement of the complainant. At that stage, it was evident that the learned Magistrate was about to proceed to the stage of Section 200 Cr.P.C., and he was not prepared to invoke the power under Section 156(3) Cr.P.C. 7. At that particular stage, if as a matter of fact, the complainant wanted to have the matter referred to the police under Section 156(3) Cr.P.C., he ought to have abstained from furnishing his sworn statement under Section 200 Cr.P.C. If the learned Magistrate in such case had proceeded to the stage of Section 203 Cr.P.C., the complainant could have very well challenged the said order through a criminal revision. 8. On going through the matter, it is evident that the petitioner had also willingly participated in the proceedings before the learned Magistrate under Section 200 Cr.P.C. Having chosen to furnish the statement under Section 200 Cr.P.C. and to succumb to the decision taken by the learned Magistrate to proceed under Section 200 Cr.P.C., now the petitioner cannot be heard to say that the learned Magistrate ought to have invoked the power under Section 156(3) Cr.P.C. Of course, it is not the end of the road. 9. If the complainant wants to have the interference of the police in the matter, the learned Magistrate is not powerless to have an investigation within the meaning of Section 202(1) Cr.P.C. in the matter through police. At the same time, even though the word used there is 'investigation', it will only be as good as an inquiry being conducted by the Magistrate through a separate machinery. If required, the petitioner can seek the exercise of the power under Section 202(1) Cr.P.C. before the learned Magistrate. At the same time, even though the word used there is 'investigation', it will only be as good as an inquiry being conducted by the Magistrate through a separate machinery. If required, the petitioner can seek the exercise of the power under Section 202(1) Cr.P.C. before the learned Magistrate. Of course, even without that, if the Magistrate has to satisfy himself though the procedure under Section 202(1) Cr.P.C., the Magistrate can do it. 10. The power under Section 156(3) Cr.P.C. can be invoked by a Magistrate, who is empowered to take cognizance under Section 190 Cr.P.C. Therefore, the provision under Section 156(3) Cr.P.C. is also coupled with the provisions under Section 190 Cr.P.C. At the same time, the Code is silent with regard to the power under Section 200 Cr.P.C. to have any connection with the power under Section 156(3) Cr.P.C. Once a Magistrate has decided to take cognizance of an offence on a complaint and has proceeded with accordingly, the Magistrate cannot go back to the stage of Section 156(3) Cr.P.C. Matters being so, there is no merit in this O.P(Crl.), and it fails. In the result, this O.P.(Crl.) is dismissed.