K.T.Joseph Vs. State of
Kerala & ANR. [2009] INSC 997 (8 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 984 OF 2009
(Arising out of S.L.P. (Crl.) No. 5734 of 2008) K.T. Joseph ....Appellant
Versus State of Kerala and Anr. ....Respondents
DR. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
A
small issue relating to the transfer of the proceedings in CC 1290 of 2008 on
the file of learned Additional Chief Judicial Magistrate, Ernakulam forms the
foundation for these proceedings. By an order in Criminal Revision Petition
no.1858 of 2008 a learned Single Judge directed transfer of the case to the
Chief Judicial Magistrate, Ernakulam.
Certain observations
were made against the Judicial Officer and his conduct. Learned Single Judge
has observed that after the amendment to Section 202 of the Code of Criminal
Procedure, 1973 (in short the `Code') with effect from 23.6.2006 by Central Act
25/2005 it is mandatory on the part of the learned Magistrate to conduct an
enquiry under Section 202 of Code. Learned Single Judge noted that the Magistrate
had emphasized that he was considering the complaint at the pre cognizance
stage which according to him was not correct. By deciding to examine the
complainant and the witnesses under Section 202 of Code, the Magistrate had
already taken cognizance of the offence and he was not considering the sworn
statements of the witnesses at the pre cognizance stage. Learned Single Judge
felt that enquiry was mandatory after 23.6.2006.
3.
The
legal position is unexceptionable.
4.
In
the background facts we do not think that any exception can be taken to the
transfer as directed by learned Single Judge. The observations regarding the
conduct are unnecessary and stand deleted.
Learned Single Judge
has directed that the Chief Judicial Magistrate shall have discretion to record
further sworn statements if necessary in case he decides to take cognizance of
the offence. The aforesaid observations and directions are also in order.
5.
The
appeal is accordingly disposed of.
.......................................J.
(Dr. ARIJIT PASAYAT)
........................................J.
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