IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.MC.No. 3283 of 2008() ------------------------- CC.499/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... PETITIONER: 1ST ACCUSED ------------ M.SEDHURAMAN PANDIAN,S/O.MADASAMY THEVAR, AGED 75, 44A, WEST CAR STREET, THIRUNELVELI 627 001. BY ADV. SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.B.H.MANZOOR 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 62, RESIDING AT ARUN VIHAR, KALLERITHARA, B.T.S ROAD, EDAPPALLY, ERNAKULAM DISTRICT. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR ADV. DR.K.P.SATHEESAN FOR R2 SRI.K.K.GOPINATHAN NAIR FOR R2 SRI.P.MOHANDAS (ERNAKULAM) FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.3283 of 2008 ------------------------------------- Dated this the 17th day of September, 2008 ORDER Petitioner, who figures as the 1st accused in a complaint filed by the 2nd respondent alleging offences punishable, inter alia, under Section 420 I.P.C, has come to this Court with this petition under Section 482 Cr.P.C complaining about the grossly erroneous procedure adopted by the learned Magistrate while taking cognizance and issuing process to him to face allegations under Section 420 I.P.C. 2. The learned counsel for the petitioner submits that the complaint was filed, cognizance was taken and the process was issued after the amendment to Section 202 Cr.P.C, which obliges the learned Magistrate to conduct an enquiry under Section 202 Cr.P.C before issuing process against a person who resides outside the jurisdiction of the learned Magistrate. No enquiry under Section 202 Cr.P.C whatsoever was conducted by the learned Magistrate. Crl.M.C. No.3283 of 2008 2 Report of the learned Magistrate was called for and the present incumbent reports that her predecessor had not conducted any enquiry under Section 202 Cr.P.C. 3. There is one more grievance raised by the learned counsel for the petitioner. The learned counsel for the petitioner points out that the learned Magistrate had not even examined the complainant on oath. Instead, proof affidavit filed by the complainant was accepted. This is grossly erroneous. Except in a prosecution under Section 138 of the Negotiable Instruments Act, as permitted under Section 145 of that Act, a criminal court is not competent to receive the sworn statement on affidavit. Examination of a complainant under Section 200 Cr.P.C cannot hence be on the basis of any proof affidavit, points out the counsel. I find this objection to be absolutely tenable. I am satisfied, in these circumstances, that the cognizance taken against the petitioner and his co-accused in C.C.No.499 of 2006 before the Judicial Magistrate of the First Class-II, Aluva can be set aside and the learned Magistrate can be directed Crl.M.C. No.3283 of 2008 3 to deal with the complaint afresh in accordance with law - as per the amended Section 202 Cr.P.C. 4. In the result: i) This Crl.M.C is allowed; ii) The order taking cognizance against the petitioner and the co-accused is set aside; iii) The learned Magistrate shall consider the complaint afresh in accordance with law and take an appropriate decision under Section 202/203/204 Cr.P.C; iv) The complainant shall appear before the learned Magistrate on 17.10.08 to continue the proceedings; v) The petitioner and the co-accused need appear only if and when they receive summons from the learned Magistrate. (R.BASANT, JUDGE) rtr/-