Saudath C.H vs State Of Kerala

Kerala High Court

Saudath C.H vs State Of Kerala on 21 May, 2024

Author: Bechu Kurian Thomas

Bench: Bechu Kurian Thomas

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
        TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                       CRL.MC NO. 2089 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 22.02.2024 IN CMP NO.339 OF 2024
OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,MANJERI
PETITIONER:

            SAUDATH C.H.
            AGED 50 YEARS
            W/O. HAMEED, PANIKKARKUNNAN HOUSE, THRIKALANGOD P.O.,
            PALLIPADI, MALAPPURAM DISTRICT, PIN - 676123
            BY ADV K.RAKESH


RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            ERNAKULAM, KOCHI, PIN - 682031
    2       THE STATION HOUSE OFFICER
            EDAVANNA POLICE STATION, MALAPPURAM DISTRICT, PIN -
            676541
OTHER PRESENT:

            SREEJA V. (PP)


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 2089 OF 2024
                                   2

                BECHU KURIAN THOMAS, J.
                -----------------------------------------
                  Crl.M.C. No. 2089 of 2024
                 ----------------------------------------
             Dated this the 21st day of May, 2024


                               ORDER

Petitioner challenges the order dated 22-02-2024 of the Judicial First Class Magistrate's Court-I, Manjery in C.M.P.No. 339/2024 deciding to proceed with enquiry under Section 202 instead of referring the case for investigation under Section 156(3) of Cr.P.C.

2. Petitioner is the headmistress of Pazhedam ALP School, Edavanna, Manjeri. She alleges that, as the custodian of school register's, and laptops distributed by the Government under a scheme, she had lodged complaint regarding the theft of a laptop by the Manger. Though the complaint was filed before the learned Magistrate on 22-02-2024, the learned Magistrate decided to proceed with the enquiry under Section 202 without referring it to the police for investigation.

3. Sri.K.Rakesh, the learned counsel for the petitioner, vehemently contended that the if enquiry proceeding is conducted by the Magistrate it would not serve any substantial purpose as search and recovery of the laptop allegedly stolen by the accused are essential for a proper enquiry, which can be CRL.MC NO. 2089 OF 2024 3 done only by the Police. It was also pointed out that any delay would cause substantial prejudice to the petitioner, as the accused is capable of removing the laptop permanently.

4. Smt.Sreeja V., the learned Public Prosecutor, submitted that there are disputes between the petitioner and the accused, who is the Manager of the school, and both have raised the same allegations against each other. It was also pointed out that the petitioner was suspended by the Manager for allegedly removing the laptop and taking into consideration the facts involved, the learned Magistrate cannot be faulted for holding the enquiry under Section 202 of Cr.P.C.

5. The prerogative of the learned Magistrate to refer a compliant for investigation to the police under Section 156(3) of Cr.P.C, or to proceed with the enquiry under Section 202 Cr.P.C is discretionary. Though generally in matters, where recovery is essential, it is ideal to refer it to the police for investigation, in certain cases, the Magistrate can enquire into the truth or falsehood of the allegations made in the complaint. The discretion vests with the Magistrate which will have to be exercised based on the circumstances in each case (See the decisions in National Bank of Oman v. Barakara Abdul Aziz 2013(2)SCC (cri.) 731 and XYZ v. State of Madhya Pradesh 2023 (9) SCC 705).

CRL.MC NO. 2089 OF 2024 4

6. Considering the nature of disputes that were pending between the petitioner and the accused in-relation to the management/conduct of the Pazhedam ALP Scool, I am of the view that the discretion exercised by the Magistrate to proceed with the enquiry under Section 202 cannot be said to be without any merit. Thus there are no reasons to interfere with the decision of the Magistrate to proceed with the enquiry under Section 202 of Cr.P.C.

7. Though the learned counsel for the petitioner submitted that the Magistrate ought to be directed to initiate proceedings to recover the laptop, I am of the view that those are all matters within the discretion of the Magistrate, and no directions of any nature ought to be issued by this Court.

Accordingly, I find no merit, and the Crl.M.C is dismissed.

Sd/-

BECHU KURIAN THOMAS JUDGE AJM CRL.MC NO. 2089 OF 2024 5 APPENDIX OF CRL.MC 2089/2024 PETITIONER ANNEXURES Annexure A A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED, 25-1-2023 Annexure B A TRUE COPY OF THE RECEIPT EVIDENCING THE SUBMISSION OF ANNEXURE A COMPLAINT ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT DATED 25-01-2023 Annexure C A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT POLICE CHIEF DATED 17-

                 02-2023
Annexure D       A TRUE COPY OF THE COMPLAINT FILED
                 AS C.M.P.NO.339/2024 FILED BY THE
                 PETITIONER     BEFORE      J.F.C.M-I,
                 MANJERI DATED 12-2-2024
Annexure E       A TRUE COPY OF THE DIARY EXTRACT IN
                 C.M.P.NO.339/2024    OF    J.F.C.M-I,
                 MANJERI