1. This is an application filed by the petitioner, who is the complainant in Crl. M.P. No. 12088/2013, for a direction to the Judicial First Class Magistrate Court, Krunagappally, to forward the complaint to the second respondent, for investigation under Section 156(3) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) under Section 482 of the Code.

2. It is alleged in the petition that the petitioner filed Crl. M.P. No.12088/13 on the files of the Judicial First Class Magistrate Court, Krunagappally with an allegation that the first respondent herein agreed to sell 7 acres of property to the petitioner for a consideration of Rs. 39,000/- per cent and received Rs. 2,40,000/- as advance. In the agreement for sale, it has been specifically averred by the first respondent that a pathway having a width of 2 meters leading to the said property also belongs to her and the same also will be assigned to the petitioner. But, on enquiry, it was revealed that the first respondent has no right, interest or ownership over the said pathway and it belongs to a total stranger to the transaction by name one Mohanan. It is a clear case of cheating punishable under Section 420 of the Indian Penal Code. So, the petitioner filed the above complaint before the Magistrate court for sending it to investigation under Section 156(3) of the Code of Criminal Procedure. But the learned Magistrate decided to conduct an enquiry into the matter by himself and directed the complainant to produce his witnesses after recording his sworn statement. The action of the Magistrate decided to conduct enquiry by himself is being challenged by the petitioner by filing this application seeking the following reliefs:

1. To pass an order directing the Judicial Magistrate of First Class, Karunagappally to forward Crl. M.P. No. 12088/2013 to the 2nd respondent for investigation u/s 156(3) of the Cr.P.C.

2. Any other reliefs which may be prayed for from time to time.

3. Since this Court felt that this petition can be disposed of at the admission stage itself, I have heard the Public Prosecutor as well and dispensed with notice to first respondent as he has no say at this stage.

4. According to the counsel for the petitioner, without investigation by the police, it is not possible for him to prove the case and conducting enquiry by the Magistrate will cause prejudice to him. The learned Public Prosecutor submitted that there is no illegality committed by the Magistrate warranting interference of this Court.

5. The case of the complainant in the complaint was that he entered into a sale agreement with the first respondent in respect of 7 acres of property and the first respondent has agreed to assign the right of way also as per the said agreement. Later, he came to understand that the first respondent has no right over that pathway. Not knowing that the first respondent has no such right, the petitioner has entered into an agreement with the first respondent. But the case of the petitioner was that the first respondent was aware of the same even at the time of executing the sale agreement. I am not at this stage going into the merits of the case for the purpose of disposal of this application.

6. A complaint has been filed under Section 190(1)(a) read with Section 200 of the Code of Criminal Procedure. The prayer in the complaint was to refer the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure. Before going into the facts of the case, the relevant sections will have to be considered.

“156. Police Officer’s power to investigate cognizable case:-

(1) Any officer in charge of a police station may, without the order of a Magistratew, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be calle