High Court Kerala High Court

Hamza.C vs Home Secretary Govt. Of Kerala on 5 November, 2008

Kerala High Court
Hamza.C vs Home Secretary Govt. Of Kerala on 5 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 32507 of 2008(T)



1. HAMZA.C.
                      ...  Petitioner

                        Vs

1. HOME SECRETARY GOVT. OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.S.MURALI

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :05/11/2008

 O R D E R
                            R. BASANT, J.
                  - - - - - - - - - - - - - - - - - - - - - -
                  W.P.C.No. 32507 of 2008 T
                  - - - - - - - - - - - - - - - - - - - - - -
           Dated this the 5th day of November, 2008

                             JUDGMENT

The petitioner faces allegations in a crime registered

alleging offences punishable, inter alia, under Section 67 of the

Information Technology Act. The petitioner claims that he was

only an employee in a mobile phone shop. According to him, he

had only joined recently in that shop and he had no responsibility

for any culpable activity that is going on there. Though a crime

was registered, no proper investigation is conducted. The

counsel prays that a proper investigation may be directed to be

conducted. If such an investigation were conducted, the

complicity of the owner of the shop, if any, and the innocence of

the petitioner will be revealed and the petitioner will be saved of

the unnecessary trauma of such criminal prosecution. It is prayed

that invoking Article 226 of the Constitution or Section 482

Cr.P.C. appropriate directions may be issued to the Investigators.

W.P.C.No. 32507 of 2008
2

2. I am afraid the prayer cannot be accepted in the light of the

decision in Sakiri Vasu v. State of U.P. (2008 (1) KLT 724)(SC),

which has been followed by this Court in Vasanthi Devi v. S.I. of

Police (2008 (1) KLT 945). The grievance of a person about

inadequate, insufficient or inefficient investigation cannot for the first

time be raised before this Court in proceedings under Article 226 of the

Constitution or Section 482 Cr.P.C. ordinarily. I find no exceptional

reasons in this case.

3. The counsel submits that the fact that the petitioner is poor

and he is a young boy may be reckoned as sufficient reason to justify

deviation from the rule in Sakiri Vasu (supra). I am unable to agree.

Sakiri Vasu, which has been followed by this Court in Vasanthi Devi

is authority for the proposition that powers under Article 226 or

Section 482 Cr.P.C. cannot ordinarily be invoked to redress a

grievance like the instant one at the instance of a person, who could

have moved the learned Magistrate under Section 156(3) Cr.P.C. I

am satisfied that the extra ordinary inherent jurisdiction does not

deserve to be invoked.

W.P.C.No. 32507 of 2008
3

4. This Writ Petition is accordingly dismissed. I may however

hasten to observe that the dismissal of this petition will not in any way

fetter the rights of the petitioner to approach the learned Magistrate

under Section 156(3) Cr.P.C. and if any such application is filed before

the learned Magistrate, the learned Magistrate must consider the

grievance of the petitioner in the light of the decisions referred above

and take appropriate decision and if necessary issue appropriate

directions. If the petitioner is dissatisfied with such directions, of

course, the right of the petitioner to approach this Court shall remain

unfettered.

(R. BASANT)
Judge

tm