IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 WP(C).No. 27929 of 2008(Y) -------------------------- CRMP.3927/2007 of C.J.M.PALAKKAD .................... PETITIONER: --------------- C.VISHNURAJAN, SON OF CHENTHUNNI, PORUVAYIL VEEDU, AYAKKAD P.O., VADAKKANCHERRY, PALAKKAD. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- RAJENDRAN, SON OF KRISHNAMOORTHY, HARIKKARA STREET, PALAKKAD TOWN, PALAKKAD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - W.P.C.No. 27929 of 2008 Y - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of October, 2008 JUDGMENT The petitioner is the complainant in a complaint filed alleging commission of offences punishable, inter alia, under Sections 120B, 467 and 419 I.P.C. The respondent herein is the sole accused shown in that complaint, which was filed before the learned C.J.M., Palakkad. The learned C.J.M. decided to take cognizance of the matter and examined the complainant under Section 200 Cr.P.C. 2. The petitioner has come to this court allegedly aggrieved by the decision taken by the learned Magistrate to take cognizance of his complaint and not referring it to the police under Section 156(3) Cr.P.C. The learned counsel for the petitioner submits that in the nature of the allegations raised, a proper relief could not have been achieved by the petitioner without a competent investigation conducted by the police. In having chosen not to send the complaint to the police under W.P.C.No. 27929 of 200 2 Section 156(3) Cr.P.C. and having chosen to proceed to take cognizance himself, the court has committed serious impropriety. That decision may be set aside. The matter may be referred to the police under Section 156(3) Cr.P.C. This in short is the prayer. 3. The crux of the allegations raised by the petitioner on facts is this. The petitioner/complainant and the respondent/accused are co- owners in respect of an item of property. One-fourth of the rights belongs to the complainant, whereas the remaining three-fourth belongs to the respondent/accused. The complainant had allegedly demanded partition and separate possession of his one-fourth right. But that request was not accepted and in turn a reply was received, in which it was contended that his right has been transferred in favour of a company on the basis of a Power of Attorney executed by the petitioner in favour of the accused. According to the petitioner, he has not executed any such Power of Attorney. According to him, it is a forged Power of Attorney. It is with these allegations that the complaint was filed. W.P.C.No. 27929 of 200 3 4. The learned counsel for the petitioner submits that an investigation deserves to be conducted. Only then the truth can be brought out. The petitioner will not be able to substantiate all the allegations if he were called upon to adduce evidence in support of the allegations. A proper, exhaustive and efficient investigation deserves to be conducted. 5. I have considered the submissions of the counsel. The respondent has also entered appearance. The counsel for the respondent takes the stand that the discretion exercised by the learned Magistrate does not, at any rate, warrant interference by invocation of the extra ordinary constitutional jurisdiction under Article 226. The petitioner's interest is not likely to suffer at all. He petitioner can choose to adduce evidence at the stage of the enquiry under Section 200/202 Cr.P.C. If the petitioner is unable to place satisfactory materials and feels that an investigation must be conducted into the matter, he can file an application to the Magistrate under Section 202 Cr.P.C. to direct an investigation to be conducted by a police officer or W.P.C.No. 27929 of 200 4 any other. The learned Magistrate will have to consider such request and pass appropriate orders. 6. I find merit in that contention. The mere fact that the learned Magistrate has chosen to embark on an enquiry under Section 200/202 Cr.P.C. does not at all take away the jurisdiction of the learned Magistrate to direct an investigation to be conducted by a police officer or any other at later stages. The position has been made crystal clear in the decision in Biju Purushothaman v. State of Kerala (2008 (3) KLT 85). 7. In these circumstances I am satisfied that the challenge raised is without any merit. The petitioner can choose to adduce all evidence which he can before the learned Magistrate. Thereafter if it is felt that an investigation deserves to be conducted under Section 202 Cr.P.C., certainly the petitioner can request the learned Magistrate to direct an investigation by a police officer or any other as enabled by Section 202 Cr.P.C. Appropriate decision shall be taken in the matter by the learned Magistrate in the light of the decision referred above. W.P.C.No. 27929 of 200 5 8. This Writ Petition is accordingly dismissed, but with the above specific observations. (R. BASANT) Judge tm