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Magistrate may face action for not registering application: HC
5/11/2019 11:21:44 PM

Early Times Report

Jammu, May 11: The J&K High Court on Saturday ordered that any application, whether on civil side or criminal side, which is received by a court, shall be necessarily diarized and registered, and any Magistrate/court found violating the order shall be liable for action.
While passing the order, Justice Sanjeev Kumar also discussed the role of Magistrate on receiving a complaint of facts constituting the cognizable offence in the light of the provisions of Section 156(3), 190, 200, 202 and 204 Cr.PC
This significant direction was passed in a petition challenging the order of CJM Jammu, dated March 6, 2019 whereby in an application the CJM after recording the statement of the petitioner in compliance to the directions passed by the Supreme Court in SLP (Crl.) No.(S) 864/2019 has taken the cognizance of the complaint and directed the Inspector General of Police, Jammu to conduct the inquiry himself or by any other police officer not below the rank of Senior Superintendent. The petitioner also seeks a direction for registration of FIR against the private respondents for commission of the offence punishable under Sections 376 and 376-C read with Section 34 of the Ranbir Penal Code. Justice Kumar, after hearing senior advocate KS Johal for the petitioner and Deputy AG Raman Sharma for the State, observed that following questions of seminal importance arise for consideration in this case:
What is the meaning of the expression 'taking cognizance' as contained in Section 190 of the Cr.PC?; what are the broader parameters which govern exercise of discretion by the Magistrate to proceed under Section 156(3) or under Section 202 of the Code of Criminal Procedure when a complaint of facts disclosing commission of cognizable offence is received by it?
Justice Kumar observed that the position of law on the issues can, therefore, be summed up in the following manner the term 'taking cognizance' though not capable of being given straitjacket definition and is of indefinite import. It merely means 'become aware of' and when used with reference to the court or judge, it connotes 'to take notice of judicially'.
Taking cognizance which merely means judicial application of mind of the Magistrate to the facts mentioned in the complaint with a view to proceed under Section 200 Cr.PC and succeeding Sections in Chapter XVI of Code of Criminal Procedure, but if the Magistrate applies his mind not for the purposes of proceeding under Chapter XVI but for taking action of other kind, e.g., directing investigation by the police under Section 156(3) Cr.PC, it cannot be said to have taken cognizance of the offence. That Section 156(3) Cr.PC operates and can be invoked by the Magistrate before taking cognizance and is in the nature of the pre-emptory reminder or intimation to the police to exercise its preliminary power of investigation beginning with section 156(3) Cr.PC and ending with report or charge sheet under Section 173Cr.PC.
Justice Kumar found no reason to interfere with the order impugned except providing that the inquiry directed by the CJM Jammu in the matter shall be restricted to ascertainment of the truth or falsehood of the complaint and the same shall be conducted by an officer of the Crime Branch not below the rank of Senior Superintendent of Police as may be appointed by the IGP Crime, Jammu and shall be completed and submitted to the CJM Jammu on or before 29.06.2019. The CJM shall take up the case for further proceeding on 29.06.2019.
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