Difference is the stage at which the said powers may be invoked.?

Criminal Law

The petition raises a question of law that once having taken cognizance in a private complaint, can the Court of learned Magistrate travel to the pre-cognizance stage and pass on order of registration of F.I.R.

Learned Advocate Mr. Bhadresh S. Raju appearing for the petitioners submits that the impugned F.I.R. is an outcome of the order dated 21.10.2013 passed by the learned Judicial Magistrate, First Class, Court No. 2, Surat below application-Exhibit 1 in Criminal Misc. Application No.880 of 2013. The learned advocate submits that on 27.08.2013, respondent no.2 has filed a private complaint in the Court of the learned Judicial Magistrate, First Class, Surat. On 02.092013 the learned JMFC, Surat fixed the complaint about verification on 12.09.2013. On 12.09.2013, the learned Judicial Magistrate, First Class, Court No. 2, Surat carried out verification and passed an order calling for a report from the concerned Police Station. The learned advocate submits that after the report was received, the learned Judicial Magistrate, First Class has proceeded to pass an order, the operative portion of which contains a direction to the Police Inspector, Athwa Lines Police Station, Surat to register F.I.R. within three days for the offenses punishable under sections 406, 420, 465, 467, 468, 470, 471, 120B, 34 and 114 of the Indian Penal Code.

Having heard the learned advocates for the respective parties and having persued the documents on record the following sequence of events comes on record. The private complaint is filed on 27.03.2013. In the private complaint, the case is fixed for verification by order dated 02.09.2013. Verification was to be carried by 12.09.2013. Verification is carried out by the learned JMFC on 12.09.2013. On the same day, an order is passed calling upon the concerned Police Station to submit a report in connection with the written complaint made for the same offense, prior to the point of time, to the Police Station. Therefore, by order dated 21.10.2013. direction is issued to the Police Inspector, Athwa Lines Police Station to register F.I.R. within the period of three days of the order and pursuant to the order, F.I.R. is registered on 28.10.2013.

Law on this point is now well settled. Upon receipt of a written complaint, when the learned Magistrate proceeds to record verification, which is acting as contemplated under section 200 of the Code of Criminal Procedure, cognizance is already taken, and therefore, after taking cognizance, the option is available to the learned Magistrate to proceed ahead from that stage as contemplated under sections 202, 203 and 204, etc but in the instant case, the Magistrate’s Court has reverted to section 156(3) of the Code of Criminal Procedure, which is the stage of pre-cognizance as is held by this Court in the case of Parshottambhai karshanbhai Surani and others.

Hence, the F.I.R. C.R.No.I-221 of 2013 registered with Athwa Lines Police Station, Surat, is an outcome of the exercise of jurisdiction, which is erroneous in nature, deserves to be quashed and is hereby quashed.

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