Once Complainant's Statement Is Recorded U/S 200 CrPC, Magistrate Can't Pass Directions To Register FIR U/S 156(3): J&K High Court

Citing M/S Sas Infratech Pvt. Ltd. Appellant(s) vs. The State of Telangana and anr. Justice Rajnesh Oswal reiterated,

“… when the Magistrate in exercise of his judicial discretion directs investigation under Section 156(3) of Cr. P.C., he cannot be said to have taken cognizance of any offence. It is only when the Magistrate after applying his mind prefers to follow the procedure under Chapter XV of Cr.P.C. by resorting to Sections 200, he can be said to have taken cognizance of the offence.”

The case originated from a complaint filed by respondent Somi Devi against petitioner Vinod Kumar, accusing him of offenses under Sections 336 and 304-A IPC. The complaint, lodged with the Chief Judicial Magistrate (CJM) of Kishtwar, led to the registration of an FIR following an order from the CJM directing the SHO to register the FIR under Section 156(3) Cr.P.C.

Kumar, represented by Mr. Kousal Parihar, challenged the CJM's order and the subsequent FIR, arguing that once the Magistrate had recorded the complainant's statement under Section 200 Cr.P.C., issuing a direction under Section 156(3) Cr.P.C. was improper. He contended that the cognizance of the offense had already been taken, and hence, the procedure under Section 156(3) was inapplicable.

Respondent's counsel, Mr. Siddhant Gupta, conceded that the direction under Section 156(3) Cr.P.C. should not have been issued post the recording of the complainant's statement under Section 200 Cr.P.C.

Justice Oswal, upon hearing the counsels and examining the records, found merit in the petitioner's contentions. He noted that the Magistrate had indeed recorded the complainant's statement under Section 200 Cr.P.C and subsequently issued a direction under Section 156(3) Cr.P.C. to the SHO for registering the FIR.

Quoting Section 200 Cr.P.C., Justice Oswal emphasized that once a Magistrate takes cognizance of an offense and records the complainant's statement, further directions under Section 156(3) Cr.P.C. cannot be issued. This is because such directions are only permissible at a pre-cognizance stage, the bench reasoned.

Based on these observations, the High Court quashed the order of the CJM Kishtwar as well as the FIR. The Court directed the CJM to proceed with the complaint in accordance with the law, emphasizing that the accused has no right to a hearing before the issuance of process.

Case Title: Vinod Kumar Vs Somi Devi

Citation: 2024 LiveLaw (JKL) 170

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