A Magistrate's decision must incorporate necessary inquiries before proceeding with a complaint for investigation, especially when the complainant requires such due to incapacity to gather evidence.

JUDGMENT

The above original petition is filed with following prayers :

(i) “Set aside Exhibit P2 the proceedings dtd.28.11.2024 in CMP No.8164 of 2024 of the Judicial First Class Magistrate III, Thrissur;

(ii) Direct the Judicial First Class Magistrate III, Thrissur to order investigation under 175(3) of the Bharatiya Nagarik Suraksha Sanhita , 2023 in CMP No.8164 of 2024.

(iii) Dispense with filing of the translation of vernacular documents (iv) Issue such other orders as this Hon’ble Court may deem fit and proper.” [sic]

2. The petitioner is aggrieved by the proceedings dated 28.11.2024 in CMP No. 8164/2024 on the file of the Judicial First Class Magistrate Court-III, Thrissur. The petitioner is the complainant in CMP No. 8164/2024. According to the petitioner, he is a 69 year old illiterate person. He was defrauded and misrepresented by the accused in making him believe that he was affixing his signature on loan papers required for availing loan for the 2^nd and 3^rd accused to purchase the complainant's property. According to the petitioner, he was made to sign papers pledging his property at KSFE Angamaly branch with the help of the 4^th accused, who was the then Manager of the KSFE, Angamaly II branch for an amount of Rs.60,00,000/- for the unlawful benefit of the accused persons. The petitioner preferred a complaint before the City Police Commissioner. The complaint was forwarded to the Ollur Police Station. But, no action was taken. Hence, the petitioner filed the present complaint.

3. When the complaint came up for consideration, the learned Magistrate passed an order issuing notice to the respondents to proceed with the case under Sec.223(1) BNSS . According to the petitioner, the prayer in the complaint was to send it for investigation and the petitioner will not be able to collect evidence and it is a case to be investigated by the police.

Hence, this original petition is filed.

4. Heard the learned counsel for the petitioner and the Public Prosecutor. The way in which this original petition is going to be disposed of, I think notice to respondent Nos. 2 to 4 is not necessary. Moreover, the impugned order is passed without hearing those persons. Therefore, the notice to respondent Nos. 2 to 4 are expunged.

5. This Court perused the order dated 28.11.2024 in CMP No.8164/2024. It will be better to extract the above order.

“Petitioner present. Heard, counsel for the petitioner, the petitioner sought for forwarding the petition to SHO. Ollur, for investigation u/s. 175(3) BNSS , but after perusing the petition, documents and hearing counsel for petitioner, this court is of the view that CMP is to be proceeded u/s. 223 , as the case of the petitioner is that the accused persons had cheated him and had made him believe that a purchase loan is to be availed in the name of accused persons for giving the sale consideration but instead of purchase loan had made him sign in a kuri Agreement as guaranteer for accused persons and hence made a wrongful gain of Rs.60,00,000 lakhs to them and a wrongful lose of Rs.60,00,000 lakhs to the petitioner. Issue notice to respondent as per 223(1) provision (1) of . For return notice to respondents 1 to 3. To 09-12-2024.”

6. This Court also perused Ext.P1 complaint. The petitioner has got a case that he is an aged person and he is illiterate. He also submit that he is not in a position to collect the evidence to prove the case before the court. The investigation by the police is necessary. But, the learned Magistrate without a speaking order, decided to proceed with the complaint and issued notice to the respondent in the complaint under Sec. 223 BNSS . Sec.175(3) says that any Magistrate empowered under Sec.