K.T.Joseph vs State Of Kerala & Anr

K.T. Joseph ....Appellant

Versus

State of Kerala and Anr. ....Respondents

JUDGMENT

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. A small issue relating to the transfer of the proceedings in CC 1290 of

2008 on the file of learned Additional Chief Judicial Magistrate, Ernakulam

forms the foundation for these proceedings. By an order in Criminal

Revision Petition no.1858 of 2008 a learned Single Judge directed transfer

of the case to the Chief Judicial Magistrate, Ernakulam.

Certain observations were made against the Judicial Officer and his

conduct. Learned Single Judge has observed that after the amendment to

Section 202 of the Code of Criminal Procedure, 1973 (in short the

`Code') with effect from 23.6.2006 by Central Act 25/2005 it is

mandatory on the part of the learned Magistrate to conduct an enquiry

under Section 202 of Code. Learned Single Judge noted that the

Magistrate had emphasized that he was considering the complaint at the

pre cognizance stage which according to him was not correct. By

deciding to examine the complainant and the witnesses under Section 202

of Code, the Magistrate had already taken cognizance of the offence and

he was not considering the sworn statements of the witnesses at the pre

cognizance stage. Learned Single Judge felt that enquiry was mandatory

after 23.6.2006.

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3. The legal position is unexceptionable.

4. In the background facts we do not think that any exception can be

taken to the transfer as directed by learned Single Judge. The

observations regarding the conduct are unnecessary and stand deleted.

Learned Single Judge has directed that the Chief Judicial Magistrate shall

have discretion to record further sworn statements if necessary in case he

decides to take cognizance of the offence. The aforesaid observations and

directions are also in order.

5. The appeal is accordingly disposed of.

.......................................J. (Dr. ARIJIT PASAYAT)

........................................J. (ASOK KUMAR GANGULY)

New Delhi, May 08, 2009

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