AJITHAKUMARI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner filed a criminal complaint (Criminal MP 1563 of 1985) before the Judicial 1st Class Magistrate, Kodungallur against the respondent for an offence punishable under S.494 of the Indian Penal Code. The Magistrate took cognizance of the offence. The petitioner thereafter moved the Magistrate to direct police investigation as part of the enquiry under S.202 of the Code of Criminal Procedure. That prayer was rejected on the ground that such a course is prohibited by S.198 of the Code of Criminal Procedure. That order is under challenge in this petition filed under S.482 of the Criminal Procedure Code.

(2.) S.198 of the Criminal Procedure Code reads as follows:

(3.) Evidently the view expressed by the Magistrate is erroneous. S.198 only prohibits taking cognizance except upon a complaint made by some person aggrieved by the offence. It does not fetter the discretion of the Magistrate in ordering investigation in an inquiry under S.202 after taking cognizance. In ordering investigation by the police the Magistrate can act both under S.156(3) and under S.202. Ordering investigation under S.156(3) is only before taking cognizance under S.200. In such a case when the report of investigation is received the Magistrate can act on the report and discharge the accused or straightaway issue process or even apply his mind to the complaint filed before him and take action under S.190 ignoring the report of the police. In this case we are not concerned with an investigation under S.156(3) because S.198 is a bar to such an investigation. Since the magistrate has to take cognizance on the complaint of an aggrieved person there is no question of resorting to the recognizance stage procedure of ordering investigation under S.156(3). After taking cognizance under S.200 and before issuing process under S.204, the magistrate may, if he thinks fit either enquire into the case himself or direct an investigation to be made by a police officer or by such other officer as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. This is provided under S.202. Such an enquiry need be conducted only if the magistrate considers necessary. Otherwise he can straightaway issue process after 'complying with the provisions of S.200. This discretion of conducting an enquiry under S.202 before issuing process under S.204 is to satisfy whether there are sufficient grounds for proceeding with the complaint. This is a post cognizance stage enquiry which need be conducted only if the magistrate thinks fit to do. So also in such an enquiry whether an investigation by a police officer or such other officer has to be directed or not is a matter solely within the discretion of the magistrate to decide eventhough the discretion has to be exercised judicially. The purpose of the investigation which is part of the enquiry under S.202 is only to decide whether or not there is sufficient ground for proceeding