Babychan @ P.J. Baby John vs State Of Kerala
2022 Latest Caselaw 2900 Ker

CRL.MC NO. 5699 OF 2021              1




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
                          CRL.MC NO. 5699 OF 2021
 AGAINST THE ORDER/JUDGMENT IN CMP 615/2021 IN CMP 67/2021
  OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM
PETITIONER/S:

     1      BABYCHAN @ P.J. BABY JOHN
            AGED 65 YEARS
            S/O. LATE JOHN, RESIDING AT PAINUTHARA HOUSE,
            NEAR ST. JOSEPH'S CHURCH, P.O. KADAVANTHRA,
            KOCHI, PIN-682020.
     2      RANI @ MRS. KOCHURANI JOHN,
            AGED 61 YEARS
            W/O. BABYCHAN @ P.J.BABY JOHN, RESIDING AT
            PAINUTHARA HOUSE, NEAR ST. JOSEPH'S CHURCH, P.O.
            KADAVANTHRA, KOCHI, PIN-682020.
            BY ADVS.
            E.G.GORDEN
            S.K.KRISHNAKUMAR
            V.M.MARY HARSHA


RESPONDENT/S:

     1      STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
            OF KERALA,ERNAKULAM, PIN-682031.
     2      M.J.JOSEPH,
            AGED 83 YEARS
            S/O. LATE JOSEPH, RESIDING AT MUKKUNGAL HOUSE,
            NEAR ST.JOSEPH'S CHURCH, P.O.KADAVANTHRA, KOCHI,
            PIN-682020.
     3      BAIJU JOSEPH,
            AGED 51 YEARS
            S/O.M.J. JOSEPH, RESIDING AT MUKKUNGAL HOUSE,
            NEAR ST.JOSEPH'S CHURCH, P.O.KADAVANTHRA, KOCHI,
            PIN-682020.
 CRL.MC NO. 5699 OF 2021             2




     4      JAIJU JOSEPH,
            AGED 48 YEARS
            S/O.M.J. JOSEPH, RESIDING AT MUKKUNGAL HOUSE,
            NEAR ST.JOSEPH'S CHURCH, P.O.KADAVANTHRA, KOCHI,
            PIN-682020.
            BY ADVS.
            JOSE ANTONY
            S.SHIV SHANKAR(K/912/2011)


OTHER PRESENT:

            SRI SANGEETHA RAJ-PP


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   16.03.2022,      THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
 CRL.MC NO. 5699 OF 2021           3




                               ORDER

The Crl.M.C has been filed to quash Annexure A3 order

passed by the Additional Chief Judicial Magistrate's Court

(Economic Offences), Ernakulam in C.M.P.No.615/2021 in C.M.P

No.67/2021. The petitioners have filed a private complaint as

C.M.P.No.67/2021 at the court below against the respondents 2

to 4 herein alleging offences punishable under Sections 354A(1)

(iv) and 509 r/w 34 of IPC and Section 67A r/w Section 84B of

the Information Technology Act.

2. The learned counsel for the petitioners made a request

to the learned Magistrate to forward the complaint to the police

under Section 156(3) of Cr.P.C for investigation. The learned

Magistrate turned down the said request and decided to proceed

in accordance with Chapter XV of Cr.P.C as per the impugned

order. The said order is under challenge in this Crl.M.C.

3. I have heard Sri.E.G.Gorden, the learned counsel for

the petitioners and Sri.Sangeetha Raj, the learned Public

Prosecutor.

4. The learned counsel for the petitioners submitted that

to prove the allegations in this complaint an electronic data from

the social media platform had to be retrieved and collected and

for the said purpose, investigation by the police agency is

necessary. When a private complaint is filed, it is upto the

Magistrate to decide whether the same has to be forwarded at

pre cognizance stage under Section 156(3) of Cr.P.C or whether

the Magistrate should proceed under Chapter XV of Cr.P.C. It is

purely within the discretion of the Magistrate. After perusing

the complaint and the copies of the documents filed in support

of the complaint, the learned Magistrate has decided to proceed

with Chapter XV of Cr.P.C. Under Section 202(i) of Cr.P.C, the

Magistrate has power, during the enquiry under Section 200 of

Cr.P.C, to conduct investigation for the limited purpose for

collection of materials by the police. Thus, if the Magistrate

feels that the digital evidence have to be obtained for the

purpose of enquiry under Section 202(i) of Cr.P.C, the Magistrate

is at liberty to exercise his power under Section 202(i) of Cr.P.C.

With these observations, the Crl.M.C stands dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE ab

APPENDIX OF CRL.MC 5699/2021

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE C.M.P.NO.67 OF 2021 DATED 11.1.2021 FILED BY THE PETITIONER BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT (ECONOMIC OFFENCES) AT ERNAKULAM.

Annexure A2 TRUE COPY OF THE AFFIDAVIT AND PETITION IN C.M.P.NO.615 OF 2021 DATED 11.1.2021 FILED BY THE PETITIONER BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT (ECONOMIC OFFENCES) AT ERNAKULAM. Annexure A3 CERTIFIED COPY OF THE ORDER DATED 4.3.2021 IN C.M.P.615 OF 2021 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT (ECONOMIC OFFENCES) AT ERNAKULAM.

RESPONDENTS ANNEXURES : NIL