Magistrate Using Expression "To Ascertain Truth Or Falsehood Of Complaint" Indicates Intent To Proceed Under Chapter XVI Of CrPC: J&K High Court

Justice Sanjay Dhar further elaborated that the expression “to ascertain the truth or falsehood” is not used while issuing directions under Section 156(3) of the Code.

Background:

The case involved a complaint filed by a woman alleging that a man had obtained a fake state subject certificate. The Magistrate, upon receiving the complaint, directed the Crime Branch to investigate the matter under Section 202 of the CrPC. However, without recording the complainant's statement, the Magistrate later treated the Crime Branch report as one submitted under Section 156(3) of the CrPC and ordered the registration of an FIR.

The man challenged both the order directing the investigation and the one ordering the FIR registration in separate petitions

The petitioner argued that the Magistrate could not have treated the Crime Branch report as one under Section 156(3) after initially directing an investigation under Section 202. He further contended that the Magistrate lacked the jurisdiction to review his own order directing the investigation under Section 202.

The respondents, including the investigating agency, argued that the initial irregularity in not recording the complainant's statement did not negate the Magistrate's intention to proceed under Chapter XVI. They also emphasized that the investigation revealed offenses against the petitioner and that technicalities should not hinder a genuine prosecution.

At the heart of the matter was the interpretation of the Magistrate's initial order, dated 21.09.2013, directing an inquiry into the allegations under Section 202 of the Code of Criminal Procedure (Cr.P.C.).

Observations Of The Court:

Justice Dhar delving into the meaning of "taking cognizance" of an offense, referred to judgments like R. R. Chari v State of U.P. and Darshan Singh Ram Krishan v State of Maharashtra to establish that it involves applying judicial mind to the facts presented.

Emphasising the significance of the Magistrate's language in the order he noted that the phrase "to ascertain the truth or falsehood of the complaint in terms of Section 202 of the Code" indicated the Magistrate's intention to proceed under Chapter XVI of the Code, rather than Section 156(3).

Deliberating on the contention of not having recorded the preliminary evidence of the complainant and its implication on the proceedings Justice Dhar observed,

“It is true that the learned Magistrate before passing an order under Section 202 of the Code, should have recorded the preliminary evidence of the complainant in terms of 200 of the Code which he omitted to do, but the said omission on the part of the learned Magistrate is an irregularity committed by him, which does not in any manner indicate that the learned Magistrate did not intend to proceed under Chapter XVI of the Code”.

Expounding further on the issue the court concluded that the initial order directing investigation under Section 202 amounted to taking cognizance of the offences. Since cognizance was taken, the Magistrate could not review the order directing the investigation under Section 202, the bench underscored.

“..if a Magistrate has issued process against an accused in contravention of the provisions contained in Section 200 or Section 202 of the Code, the order of the Magistrate may be vitiated but the only option available to the aggrieved accused is to invoke the jurisdiction of the High Court under Section 482 of the Code and not by applying for review of the said order”, the bench explained.

The court further held that after taking cognizance, a Magistrate cannot revert to Section 156(3) to order FIR registration and cited judgments like Samiullah Naqshbandi v Sadaq Niyaz Shah 2020 to support this view.

While acknowledging the possibility of offenses committed by the petitioner, the court, due to the procedural irregularities, directed the Crime Branch to submit its report as if under Section 202. The Magistrate was then instructed to record the complainant's statement and proceed in accordance with Chapter XVI of the CrPC.

The court also highlighted that the final report of the State Subject Commission, which deemed the petitioner's certificate genuine and asked the respondent-Crime Branch to consider the said report before submitting its report to the Magistrate.

Case Title: Kamal Nain Singh Vs State Of J&K

Citation: 2024 LiveLaw (JKL) 87

Mr. Rahul Pant, Sr. Adv. with Mr. Dhruv Pant, Adv appeared for the petitioners, Ms. Monika Kohli, Sr. AAG represented the State

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