IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 OP(Crl.).No. 2069 of 2011(Q) ------------------------ CMP.2288/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ADOOR .............. PETITIONER : -------------------- SURESH KUMAR B. NAIR, S/O.BHASKARAN NAIR, AGED 46, ARUVIKKARA VEEDU, MANNAM NAGAR P.O., PANDALAM VILLAGE, ADOOR TALUK. BY ADVS. SRI.K.SASIKUMAR SRI.S.KANNAN NAIR RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. SALIM SUKUMARAN, RESIDING AT SREEVILASAM PERINGANADU VILLAGE, ADOOR TALUK - 691 523. 3. SHEEJA SALIM, W/O.SALIM SUKUMARAN, RESIDING AT SREEVILASAM, PERINGANADU VILLAGE, ADOOR TALUK - 691 523. R1 BY GOVT. PLEADER SRI. V. MANU THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 01/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(Crl.).No. 2069 of 2011(Q) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE CMP NO. 2288/2011 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ADOOR. EXT.P2 : COPY OF THE POSTING DAIRY IN EXT. P1 CASE. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P. JOSEPH, J. ---------------------------------------------- O.P. (Crl.) No. 2069 OF 2011 ----------------------------------------------- DATED THIS THE 1st DAY OF JULY, 2011 J U D G M E N T Notice to respondents 2 and 3 is dispensed since learned Magistrate has not taken cognizance in the matter. 2. Petitioner filed a private complaint (Ext.P1) before learned Judicial First Class Magistrate, Adoor alleging commission of offence punishable under Section 420 read with section 34 of IPC. Grievance of petitioner is that though the complaint was filed on April 2, 2011, it is being adjourned for one reason or the other. The last posting was on June 25, 2011. In this proceedings petitioner/ complainant prays for a direction to the learned Magistrate to consider the complaint and having regard to the nature of allegation made therein pass orders under Section 156 (3) of the Criminal Procedure Code (for short “the Code”) directing the Station House officer, Adoor police station to investigate the matter. It is contended that the police can investigate and the learned Magistrate has jurisdiction to try the case in view of Section 188 of the Code. 3. I have heard learned counsel for petitioner and O.P (Crl.) No.2069/2011 -2- learned Public prosecutor. I am afraid, question whether the procedure provided under Section 156 (3) of the Code or Section 200 of the Code is to be followed being a matter within the discretionary jurisdiction of the learned Magistrate, no direction could be issued to follow either of the two procedures (See Sreenivasan V. Nair (2005 (2) KLT 396) and Superintendent of Police, CBI V. State of Kerala (2005 (3) KLT 823)). Having regard to the nature of allegation made and materials required to be collected by way of evidence, it is for the learned Magistrate to decide which procedure has to be followed. 4. However, the matter is required to be disposed of one way or the other. It is seen that the complaint was filed as early as in April 2011, but it remain so even as on June 25, 2011. In the result the OP (Crl) is disposed of directing learned Judicial First Class Magistrate, Adoor to pass appropriate orders on CMP No.2288 of 2011 as circumstances warranted and as provided under law as early as possible. Sd/- THOMAS P. JOSEPH JUDGE AMG True copy P.A to Judge