IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 Crl.MC.No. 4464 of 2010() ------------------------- CRIME NO. 704/2010 OF MUVATTUPUZHA POLICE STATION, ERANKUALM ........................................ PETITIONER / ACCUSED NO.51: --------------------------------------------- PAREETH K.A, S/O.ALIYAR, KAIPPILLIL HOUSE, SOUTH VAZHAKKULAM, ALUVA. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT / COUNTER PETITIONER / STATE: ---------------------------------------------------------------------- 1. UNNIRAJA, SUPERINTENDENT OF POLICE, VIGILANCE, TRICHUR P.O., PIN-680 001, (SPECIAL INVESTIGATING OFFICER, IN CR.NO.704/2010 OF MOOVATTUPUZHA POLICE STATION). 2. STATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY SRI. P.N. SUKUMARAN, ADDL. D.G.P THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 4464 OF 2010 =========================== Dated this the 7th day of December,2010 ORDER Petitioner filed Annexure I complaint before Judicial First Class Magistrate, Muvattupuzha alleging torture while in police custody. Learned Magistrate by Annexure II order dismissed the petition holding that as no sanction under section 197 of Code of Criminal Procedure is produced, he is not inclined to proceed with the complaint. Petition is filed under section 482 of Code of Criminal Procedure to quash Annexure II order. 2. Deputy Superintendent of Police, Muvattupuzha who is investigating the crime 704/2010 of Muvattupuzha police station in which petitioner was arrested filed a statement showing the basis of his arrest and denying the allegations. Crl.M.C.4464/2010 2 3. Learned counsel appearing for the petitioner and Additional Director General of Prosecution were heard. 4. When a complaint is filed as provided under Chapter XV of Code of Criminal Procedure , Section 200 of Code of Criminal Procedure mandates that Magistrate shall examine the complainant upon oath and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. Section 201 provides the procedure to be followed if Magistrate is not competent to take cognizance of the offence. Section 202 provides for postponement of issue of process and conducting an inquiry by the Magistrate. Section 203 provides dismissal of complaint and Section 204 issue of process. Annexure II order could only be an order of dismissal as provided under section 203 of Code of Criminal Procedure. A Crl.M.C.4464/2010 3 dismissal of the complaint under section 203 of Code of Criminal Procedure could only be “after considering the statements on oath of the complainant and of the witnesses and the result of the inquiry or investigation under section 202 of Code of Criminal Procedure”. When the learned Magistrate has not recorded the sworn statement of the complainant and the witness, if any, he could not have dismissed the complaint under section 203. Sub section (1) of Section 197 only provides that Magistrate shall not take cognizance of an offence where sanction is necessary, without sanction. It does not prevent the Magistrate from conducting an inquiry. True, if on conducting an inquiry the Magistrate finds that for taking cognizance sanction under section 197 is necessary, Magistrate cannot take cognizance of the offence as order of sanction is a condition precedent for taking cognizance. But Crl.M.C.4464/2010 4 Magistrate cannot refuse to entertain a complaint filed under section 200 on the ground that no order of sanction is produced. He is also not competent to dismiss a complaint without following the procedure provided under section 200/202 of Code of Criminal Procedure. As Annexure II order was passed even before recording the sworn statement of the complainant and witness if any present Annexure II order can only be quashed. Petition is allowed. Annexure II order is quashed. CMP 1216/2010 is restored to the file and remitted to Judicial First Class Magistrate, Muvattupuzha to dispose it in accordance with law. Learned Magistrate shall record the sworn statement of the complainant and witnesses if any, and thereafter proceed as provided under the Code. M.SASIDHARAN NAMBIAR JUDGE tpl/- Crl.M.C.4464/2010 5 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006