K.T. JOSEPHversusSTATE OF KERALA & ANR.

                         [2009] 9 S.C.R. 20

                                                                      ~·         -
A                           K.T. JOSEPH
                                  v.
                   STATE OF KERALA & ANR.
                 (Criminal Appeal No.984 of 2009)

B
                            MAY 8, 2009                                              >--
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                                                                       )<...
                        GANGULY, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973:
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      Section 202 - Amending Act, 2512005 - After the
  amendment, it is mandatory to conduct an enquiry - By
  deciding to examine the complainant and the witnesses, the
  Magistrate had already taken cognizance - Transfer of the
  case ordered by Single Judge of High Court - Held: The
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  observations. and directions are in order.                          '
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 984 of 2009.

E       From the Judgment & Order dated 31.07.2008 of the High                       •;
    Court of Kerala at Ernakulam in Criminal Revision Petition No.
    1858 of 2008.
                                                                      .\,

          U.U. Lalit, T. Ajay, P. Harish, Pyoli and Sumita Hazarika
    for the Appellants.
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        R. Sathish and E.M.S. Anam for the Respondents.

        The Judgment of the Court was delivered by

        DR. ARIJIT PASAYAT, J. 1. Leave granted.
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      2. A small issue relating to the transfer of the proceedings         \..
  in CC 1290 of 2008 on the file of learned Additional Chief
  Judicial Magistrate, Ernakulam forms the foundation for these
  proceedings. By an order in Criminal Revision Petition no.1858
                                 20                                                  t.;·
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             K.T. JOSEPH v. STATE OF KERALA & ANR.                  21
                        [DR. ARIJIT PASAYAT, J.]
      of 2008 a learned Single Judge directed transfer of the case        A
      to the Chief Judicial Magistrate, Ernakulam. Certain
      observations were made against the Judicial Officer and his
      conduct. Learned Single Jud~e has observed that after the
      amendment to Section 202 of the Code of Criminal Procedure,
      1973 (in short the 'Code') with effect from 23.6.2006 by Central    B
::;   Act 25/2005 it is mandatory on the part of the learned
      Magistrate to conduct an enquiry under Section 202 of Code.
      Learned Single Judge noted that the Magistrate had
      emphasized that he was considering the complaint at the pre
      cognizance stage which according to him was not correct. By         C
      deciding to examine the complainant and the witnesses under
      Section 202 of Code, the Magistrate had already taken
      cognizance of the offence and he was not considering the
      sworn statements of the witnesses at the pre cognizance stage.
      Learned Single Judge felt that enquiry was'mandatory after
                                                                          0
      23.6.2006.

             3. The legal position is unexceptionable.

           4. In the background facts we do not think that any
      exception can be taken to the transfer as directed by learned       i;::
      Single Judge. The observations regarding the conduct are
      unnecessary and stand deleted~ Learned Single Judge has
      directed that the Chief Judicial Magistrate shall have discretion
      to record further sworn statements if necessary in case he
      decides to take cognizance of the offence. The aforesaid
                                                                          F
      observations and directions are also in order.

             5. The appeal is accordingly disposed of.

      G.N.                                       Appeal disposed of.