The Kerala HIgh Court recently held that a Magistrate cannot return a complaint merely because it was filed by the aggrieved person’s wife [Smitha v State of Kerala & Ors]
Justice K Haripal declared that the same would be illegal as the principle of locus standi (the right or capacity to bring an action or to appear in a court) has no applicability in criminal law.
“I have no doubt that the order passed by the Magistrate is illegal and unsustainable. It is the settled proposition of law that criminal law can be set in motion by any person. Here, on the ground that after sustaining grievous hurt, her husband is unable to move out and hence, she has taken initiative to prefer the complaint. The principle of locus standi is alien to criminal jurisprudence” the single-Judge observed.
The Court took strong exception to the fact that the Magistrate seemed to be acting upon office notes put up by staff.
“This Court takes strong exception to such a conduct. In judicial matters, the staff members cannot make any note or suggestion. The learned Magistrate has not applied his mind before returning the complaint. The reason stated is illegal,” the judgment said.
It quashed the order returning the complaint and directed the Magistrate to entertain the complaint, and pass orders in accordance with the law.
The Court issued the directions on a petition moved by the wife of a complainant against the decision of the Judicial Magistrate of First Class-II, Aluva, to return the complaint instituted under Section 190 of the Criminal Procedeure Code with a mere note that the complaint may be returned as it was filed by her and not her husband.
The petitioner’s husband, a carpenter, was injured on his way to work while he was riding pillion on a motorcycle driven by the accused.
It was alleged that the accused was driving in a rash and negligent manner but the petitioner noted that despite due intimation being given by the hospital authorities to the Sub Inspector at the Elamakkara Police Station, a crime was not registered.
Thereafter, she approached the Judicial First Class Magistrate with a complaint alleging offences under Sections 279 (rash driving/riding on a public way, 337 (causing hurt by act endangering life or personal safety of others) and 338 (causing grievous hurt by act endangering life or personal safety of others) of the Indian Penal Code.
However, the complaint was returned, she claimed, for the specific reason that it was her and not her husband who filed it. Therefore, she approached the High Court.
The Court examined the note that was appended by the Magistrate to the complaint when it was returned.
” … astonishingly enough, the complaint was returned stating that ‘the petition was filed by the wife of the complainant’,” the Court noted.
The Court declared that such an act was unsustainable and illegal and directed the Magistrate pass orders on the complaint within seven days.
Advocates VN Sankarjee, VN Madhusudanan, R Udaya Jyothi, MM Vinod, M Suseela, Keerthi B Chandran, PK Vijayan Pillai and C Purushothaman Nair appeared for the petitioner.
Senior Public Prosecutor Hrithwik CS appeared for the State.
Read Judgment here
Source Link
