IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 2161 of 2007(G)
1. RAVI, S/O. DASAPUSHPAN,
... Petitioner
Vs
1. VIJAYA KUMAR, S/O. BHARGAVAN,
... Respondent
2. BHARGAVAN, S/O. MADHAVAN,
3. PANKAJAKSHAN, S/O. VASU,
4. GOPI, S/O. VASU,
5. PEETHAMBARAN,
For Petitioner :SRI.C.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :30/01/2007
O R D E R
R. BASANT, J.
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W.P.(C) NO.2161 OF 2007-G
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Dated this the 30th day of January, 2007
JUDGMENT
The petitioner is the complainant in a private complaint
filed before the learned Magistrate. He has raised the
allegations that accused 1 to 5 have committed the offences
punishable, inter alia, under Secs.420 and 468 read with
Sec.34 of the IPC.
2. The crux of the allegations is that all the five accused,
in furtherance of their common intention, have cheated the
petitioner and have created false documents. The factual
allegation is that the 3rd accused is the owner of an item of
property. He had pledged it with the bank of which the 5th
accused is a Director. The 3rd accused had executed a Power-
of-Attorney in favour of the 4th accused and the 4th accused, on
the strength of that Power-of-Attorney, had executed a sale
deed in favour of the 1st accused. Accused 3 and 4 are
brothers. The 1st accused, who thus claims title, had executed
a Power-of-Attorney in favour of the 2nd accused – his son and
the 2nd accused, in turn, had executed the sale deed in favour
W.P.(C) NO.2161 OF 2007-G -: 2 :-
of the complainant on behalf of his father. The short contention
is that all the five accused together acting in furtherance of their
common intention did not reveal to the petitioner that there was
an encumbrance on the property in favour of the bank. This, in
short, is the grievance raised.
3. The learned Magistrate received the complaint. The
learned Magistrate did not choose to refer the complaint to the
police under Sec.156(3) of the Cr.P.C. Evidently, the learned
Magistrate, conscious of the principle enumerated in
Superintendent of Police, C.B.I. v. State of Kerala (2005 (3)
KLT 823), did not choose to refer the matter to the police under
Sec.156(3) of the Cr.P.C. and chose to conduct an enquiry
himself under Sec.202 of the Cr.P.C. The petitioner, who filed
the complaint on 9/1/07, had rushed to this Court and filed this
petition on 17/1/07 alleging that the learned Magistrate did not
take any action on his complaint.
4. A report from the learned Magistrate was called for.
The learned Magistrate has made the position very clear. The
complaint was received on 9/1/07. The complainant was not
W.P.(C) NO.2161 OF 2007-G -: 3 :-
ready for recording his sworn statement. The learned
Magistrate has decided to conduct an enquiry under Sec.202 of
the Cr.P.C. The case now stands posted to 17/2/07 for
conducting an enquiry under Sec.202 of the Cr.P.C.
5. The facts have been referred above. I am not at all
persuaded to agree that the learned Magistrate has committed
any error/irregularity which would justify the invocation of the
constitutional powers under Art.226/227 of the Constitution. It
is not obligatory that the Magistrate must refer a complaint to
the police under Sec.156(3) of the Cr.P.C. Nay, it has been held
in Superintendent of Police, C.B.I. v. State of Kerala (2005
(3) KLT 823) that the decision to refer the complaint to the police
under Sec.156(3) of the Cr.P.C. should not be taken mechanically
and a court must be conscious of the repercussions of such
decision on the interests of the accused. I shall carefully avoid
any detailed discussions or expression of opinion on the nature
of the allegations made in the complaint. Suffice it to say that I
am not at all persuaded to agree that the powers under Art.226
of the Constitution deserve to be invoked in the facts and
W.P.(C) NO.2161 OF 2007-G -: 4 :-
circumstances of this case against the course decided by the
learned Magistrate that Sec.202 enquiry must be conducted.
Needless to say that the dismissal of this writ petition will not
fetter the powers of the learned Magistrate to conduct an
appropriate enquiry under Sec.202 of the Cr.P.C.
6. This writ petition is, in these circumstances, dismissed.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge