ISAAC Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a petition under S.561A of the Criminal Procedure Code for directing

(2.) On 7 1/2 cents of land belonging to and in the possession of the petitioner six persons are alleged to have trespassed on 6-1-1960 and committed mischief. The same day the petitioner filed a complaint before the 2nd respondent. As he did not take any action on it a separate complaint was filed by the petitioner on 19-1-1970 before the Sub divisional Magistrate, Kunnamkulam. The Magistrate sent it to the 2nd respondent for investigation and report. The latter has not so far filed a report. That is why the petitioner seeks to invoke the provisions in S.561A.

(3.) According to the petitioner when the complaint was filed before the Magistrate he should immediately have examined the petitioner and the omission to do it was failure to comply with the mandatory provision regarding it in S.200 occurring in Chap.16 of the Criminal Procedure Code. It is true that on receipt of the complaint S.200 makes the examination of the complainant peremptory but that is only on the Magistrate taking cognizance of an offence on the complaint. The question is whether the Magistrate in the instant case can be said to have taken cognizance of any offence when he directed investigation by the second respondent of the truth or falsehood of the complaint. Although directing a police officer to investigate about the truth or falsehood of a complaint is an authorised step in procedure the Magistrate who resorts to it cannot by that mere act be said to have applied his mind and decided to take further proceedings under the subsequent sections in Chap.16 of the Crl. PC , when alone he can be said to have taken cognizance of the offence mentioned in the complaint. Das Gupta, J. said in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee AIR 1950 Cal. 437 :