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