REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    984         OF 2009 (Arising out of S.L.P. (Crl.) No. 5734 of 2008)

K.T. Joseph ….Appellant

Versus

State of Kerala and Anr. ….Respondents

J U D G M E N T DR. ARIJIT PASAYAT, J. 1. Leave granted.

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 of 2008 a learned Single Judge directed transfer  

of the case to the Chief Judicial Magistrate, Ernakulam.  

Certain  observations  were  made  against  the  Judicial  Officer  and  his  

conduct. Learned Single Judge 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  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  

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 23.6.2006.   

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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  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 observations and  

directions are also in order.  

5. The appeal is accordingly disposed of.  

…………………………………J. (Dr. ARIJIT PASAYAT)

…………………………..……..J. (ASOK KUMAR GANGULY)

New Delhi, May 08, 2009

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