SANTHOSH KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) Dated this the 12th day of March 2020 The petitioner is the 9th witness in CC No.1/2014 before the court of the Special Judge (SPE/CBI), Thiruvananthapuram. He is the Inspector of Police, CBI/SCB, and was issued Annexure A a summons to appear as a witness through his superior officer at Guwahati, where the petitioner was at that time employed. The summons was received at the head office on 10.01.2020, and the petitioner was personally served on 13.01.2020. He requested to his Superior Officer for an adjournment on the ground that it was difficult for him to appear before the court on 21.01.2020, on such short notice, and accordingly, Annexure B request was made to the CBI at Thiruvananthapuram by the Head of Branch CBI, Guwahati seeking adjournment of the matter since he was unable to attend on 21.01.2020.

(2.) Even though, that was submitted to the prosecutor, the learned Special Judge vide order at Annexure D, stated that, no application has been made for on behalf of the petitioner to condone his absence, and therefore, taking note of the circumstances, he found that proceedings under Section 174 of IPC is to be initiated against the petitioner and accordingly, MC. No.1/2020 was registered on the same day as evidenced by Annexure D, and a show cause notice was issued to the petitioner. The petitioner gave a reply at Annexure E, wherein he had stated the reasons in detail for not being able to appear on the date. However, Annexure J order was made issuing NBW against him, because he was subsequently absent for the hearing in the MC.

(3.) The learned counsel appearing for the petitioner points out that, for an offence under Section 174 of IPC it is incumbent under Section 195 Cr.P.C to file a formal complaint, and the Section specifically states that no court shall take cognizance of any offence punishable under Section 172 to 188 except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. No such complaint has admittedly been filed by the Judge of the Special Court. Secondly, Section 352 creates an embargo on a Judge of the criminal court or a Magistrate except a Judge of the High Court from trying any person for offences referred to in Section 195 Cr.P.C, and therefore, it was not proper for the Special Judge to have taken cognizance of the offence under Section 174 IPC against the petitioner by registering the MC suo motu.