STATE TIMES NEWS JAMMU: In a landmark judgment, Justice Sanjeev Kumar ordered that any application whether on civil side or criminal side is received by a Court, should be necessarily diarised and registered, and any Magistrate/Court found violating the same shall be liable to action on the administrative side and may also be charged for destroying the record of the Court. The court also discussed the role of Magistrate on receiving a complaint of facts constituting the cognisable offence in the light of the provisions of Sections 156(3), 190, 200, 202 and 204 Cr.PC. These significant directions have been passed in a petition challenging the order of Chief Judicial Magistrate (CJM) Jammu dated March 6, 2019 whereby in an application CJM, Jammu after recording the statement of the petitioner in compliance to the directions passed by the Supreme Court of India in SLP (Crl.) No.(S) 864/2019 has taken the cognisance of the complaint and has 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 of Police. The petitioner also sought 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. After hearing Senior Advocate K.S Johal with Advocate Kamran Singh Johal for the petitioner whereas Deputy AG Raman Sharma for the State, the court observed that questions of seminal importance arise for consideration in this case that what is the meaning of the expression ‘taking cognisance’ as contained in Section 190 of the Cr.PC and what are the broader parameters which governs 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 Sanjeev Kumar after hearing both the sides in length 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 cognisance 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 cognisance of the offence. Section 156(3) Cr.PC operates and can be invoked by the Magistrate before taking cognisance 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 173 Cr.PC. Whereas, Section 202 Cr.PC operates at post cognisance stage where the Magistrate after recording the statement of the complainant under Section 200 Cr.PC directs investigation/inquiry in the case for ascertaining the truth or falsehood of the complaint for making a decision whether there was a ground to proceed. The inquiry or investigation can be made by the Magistrate himself or by any Magistrate subordinate to him or by a Police Officer or by such other person as the Magistrate thinks fit. The Magistrate, if after considering the statement of the complainant on oath of the complaint or witnesses, if any, recorded under Section 200Cr.PC and the result of investigation or inquiry conducted under Section 202Cr.PC, finds that there is in his judgment, no sufficient ground for proceeding may dismiss the complaint and shall briefly record his reason for so doing. This is so provided under Section 204 of Cr.PC but if the Magistrate finds sufficient ground for proceeding shall issue process for compelling the attendance of the person/persons complained against and proceed with the trial accordingly”, the court observed. With these observations, Justice Sanjeev Kumar found no reason or justification 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 Chief Judicial Magistrate, Jammu on or before June 29, 2019. The Chief Judicial Magistrate, Jammu shall take up the case for further proceeding on aforesaid date. Justice Sanjeev Kumar further observed that it would be in the fitness of things to circulate copy of this judgment to all the judicial Magistrates working in the State and directed Registrar General to circulate the copy of this judgment to all the judicial Magistrates of the State for their guidance on the issue of law discussed in the judgment. Justice Sanjeev Kumar further observed, “I also take this opportunity to place on record my concern regarding the manner in which our Magistracy acts when it receives an application for bail, release of vehicle or other seized property and even a complaint under Section 156(3) Cr.PC. Invariably, it is seen that the applications in original are forwarded to the police as if the Police Station is an extension of their Court. It needs to be appreciated that any application filed before the Magistrate is record of the Court, needs to be properly diarized and not sent in original to the Police Station. Such act may even amount to destroying the record of the Court. It is, thus, emphasized that henceforth, whenever any application whether on civil side or criminal side is received by a Court, the same shall be necessarily diarized and registered. Any Magistrate/Court found violating; shall be liable to action on the administrative side and may also be charged for destroying the record of the Court. Let all Magistrates (Judicial) note that whenever they receive such applications, they will diarize/register the same in the concerned Register. It is only the copy of the order along with copy of such application, which shall be sent to the Police or other authority for report or action, as the case may be”.
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