S.156(3) CrPC | Magistrate Not A Post Office To Forward All Complaints Without Application Of Mind: Kerala High Court

The Kerala High Court recently ruled that a Magistrate Court is bound to apply its mind while exercising the powers conferred to it under Section 156(3) of the Code of Criminal Procedure (CrPC).Justice Kauser Edappagath stated that while taking cognizance of offences or ordering an investigation into any cognizable case, courts should not merely forward all complaints they receive like a post office. As such, it was emphasised that the powers under Section 156(3) cannot be exercised casually or mechanically but are required to be exercised judiciously."True, at that stage, the Magistrate/Court is not required to embark upon an in-depth roving enquiry as to the reliability or genuineness of the allegations in the complaint. However, the Magistrate/Court should not adopt the easy way of forwarding the complaint unmindful of the consequences of forwarding such complaints. The Magistrate/Court is not merely functioning as a "post office" in forwarding anything and everything filed in the form of a complaint." The Court added that Magistrates also have a duty to protect the interest of the accused. "The Magistrate/Court has a duty to protect the interest of the accused also since, at the time of conducting inquiry or forwarding of the complaint to the police under S.156(3) Cr.P.C, the accused does not get any right of hearing." An Additional Public Prosecutor of a District and Sessions Court in Lakshadweep had approached the High Court seeking to quash a Sessions Court order directing a police investigation into a complaint registered against him under the POCSO Act and the Juvenile Justice Act.The 2nd respondent herein is a lawyer practising in Lakshadweep and was representing an accused in another POCSO case where a minor girl was kidnapped and sexually assaulted. Initially, the 2nd respondent put up a Facebook post alleging that the petitioner was constantly contacting the minor survivor and had a role in her missing. However, a case was registered against the 2nd respondent for revealing the identity of the survivor in the post.Following this, the 2nd respondent filed numerous complaints with the same allegation. However, the Station House Officer did not register a case. Soon the Sessions Court forwarded a private complaint it received from the 2nd respondent to the SHO for investigation under Section 156 (3). This order is challenged by the petitioner here. Advocate S. Rajeev appearing for the petitioner argued that the 2nd respondent's complaint was maliciously instituted with an ulterior motive to wreak personal vengeance on the petitioner and that the Sessions Court forwarded the complaint mechanically without application of mind.Standing Counsel V Sajith Kumar appearing for the Union Territory of Lakshadweep agreed with the petitioner and submitted that the court below ought to have rejected the complaint at the threshold rather than forwarding the same for investigation under Section 156(3).However, Advocate Vijin Karthik appearing for the 2nd respondent argued that the Magistrate was not required to conduct a roving enquiry as to the allegations in the complaint at the time of forwarding the same to the police for investigation u/s 156(3). The Court noted that to attract the offence u/s 75 of the JJ Act, the accused must have sexual intent and actual control or charge over the minor. "Without ascertaining whether there is an allegation anywhere in the complaint that the petitioner had any sexual intent to attract S.11(iv) of the POCSO Act or whether the petitioner had actual control or charge over the child, the court below simply forwarded the complaint to the police without a speaking order."The Judge also examined a report from the SHO which communicated that the allegations were found to be baseless as per the investigation. Therefore, going through some decisions, the Court held that even though a Magistrate/court is not required to conduct a roving enquiry, it has to apply its mind and issue a speaking order after ascertaining if the offences alleged would be prima facie attracted."The Magistrate/Judge should certainly scrutinize the allegations in the complaint to satisfy himself that it discloses the necessary ingredients of the offence for which investigation is intended to be ordered and to find out whether it is a matter to be forwarded to the police to collect materials for a successful prosecution against the accused. The Magistrate/Court should ensure that the complaint is supported by an affidavit duly sworn in by the complainant."Since this was not done by the Magistrate, the High Court quashed the case against the petitioner to prevent an abuse of process of law.Case Title: Jibin Joseph v. Union Territory of Lakshadweep & Anr.Citation: 2022 LiveLaw (Ker) 329Click Here To Read/Download The Order

S.156(3) CrPC | Magistrate Not A Post Office To Forward All Complaints Without Application Of Mind: Kerala High Court

Hannah M Varghese

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