IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 Crl.MC.No. 2655 of 2010() ------------------------- CC.428/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ALUVA .................... PETITIONER/ACCUSED --------------------------------- M. SEDHURAMA PANDIAN, S/O.MADASAMY THEVAR, AGED 78, 44A, WEST CAR STREET, THIRUNELVELI-627 001. BY ADV. SRI.S.SREEKUMAR, SRI.P.MARTIN JOSE, SRI.P.PRIJITH, SRI.S.VAIDYANATHAN. RESPONDENTS/COMPLAINANT/STATE --------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.K. PARAMESWARAN, S/O.KESAVAN, AGED 65, RESIDING AT ARUN VIHAR, KALLERITHARA B.T.S.ROAD, EDAPPALLY, ERNAKULAM DISTRICT, PIN-682 025. R1 BY PUBLIC PROSECUTOR MR.P.A. SALIM. R2 BY ADV. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR, SRI.M.R.JAYAPRASAD, SRI.P.MOHANDAS (ERNAKULAM), SRI.MATHEW SUNNY, SRI.ANOOP.V.NAIR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2655 of 2010 -------------------------- ORDER Petitioner is the accused in C.C.No.428/2009 on the file of Judicial First Class Magistrate's Court-II, Aluva, taken cognizance for the offences under Sections 405, 406, 415, 417, 419 and 420 of Indian Penal Code on Annexure-II private complaint filed by the second respondent. This petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken contending that learned Magistrate did not comply with the mandatory provisions of Section 202 of Code of Criminal Procedure, as petitioner is not a resident, within the jurisdiction of the learned Magistrate. 2. A report was called for from Judicial First Class Magistrate-II, Aluva. The report shows that petition was posted for inquiry under Section 200/202 of Code of Criminal Procedure as directed CRMC 2655/10 2 by this Court in Annexure-VI order and on 6.11.2009, statement of the complainant was recorded and though one witness was also shown, his statement was not recorded. On getting satisfied that no further inquiry is required, cognizance was taken. 3. Grievance of the petitioner is that learned Magistrate could proceed under Section 202 of Code of Criminal Procedure only after complying with the provisions of Section 200 of Code of Criminal Procedure and if statement of the complainant was recorded under Section 200 and learned Magistrate posted the case under Section 202, he is bound to examine the witnesses, as petitioner is not a resident within the jurisdiction of the learned Magistrate. 4. Learned counsel appearing for the second respondent fairly submitted that in view of the report submitted by the learned Magistrate and as there was no compliance with the mandatory provisions of Section 202 of Code of Criminal CRMC 2655/10 3 Procedure, necessary orders be passed. 5. By Annexure-VI order, this Court had earlier considered the order passed by the learned Magistrate and remanded the complaint for conducting fresh inquiry under Section 200/202 of Code of Criminal Procedure. If the Magistrate has recorded the sworn statement of the complainant and the witnesses and issued the summons, it could have been justified. What the learned Magistrate has done is posting the complaint for recording the sworn statement under Section 202 of Code of Criminal Procedure and then recorded the statement of the complainant alone without recording the statement of the witness shown. 6. Sub-section (1) of Section 202 of Code of Criminal Procedure provides that any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused and either inquire into the case CRMC 2655/10 4 himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. 7. But, in a case where the accused is residing at a place beyond the area in which he has jurisdiction, Magistrate is bound to record the statement of the witnesses as provided under sub- section (1) of Section 202 of Code of Criminal Procedure. As it has not been done, the order taking cognizance can only be quashed. Petition is disposed. The order taking cognizance is quashed. Crl.M.P.No.3283/3008 is remitted to the learned Magistrate. Magistrate is directed to comply with the provisions of Section 202 (1) of Code of Criminal Procedure and decide whether cognizance is to be taken or not expeditiously, at any rate, within three months from the date of receipt of a copy of this order. 2nd September, 2010 (M.Sasidharan Nambiar, Judge) tkv