The legal position can thus be summed up as hereinbelow:-
On receipt of a written complaint, the 5 options available to a Judicial Magistrate who is competent to take cognizance of the case can be summarised as follows:-
1) Rejection of complaint If the complaint on the face of it does not at all make out any offence, then the Magistrate may reject the complaint. This power of rejection at the pre-cognizance stage is inherent in any Magistrate and the said power should not be mistaken for the power of dismissal available to the Magistrate under Sec. 203 Cr.P.C. since the latter power of dismissal is one which can be exercised only at the post-cognizance stage. (See Raju Puzhankara v. State of Kerala - 2008 (2) KLT 467 - Also see CREF Finance Ltd. v. Sree Shanthi Homes (P) Ltd. (2005) 7 SCC 467, Govind Mehta v State of Bihar - AIR 1971 SC 1708, Nagraj v. State of Mysore - AIR 1964 SC 269). 2) Where the Magistrate does not reject the complaint at the threshold, the Magistrate may, without taking cognizance of the offence, order an investigation by the police under Sec. 156 (3) Cr.P.C. and forward the complaint to the officer in- charge of the police station concerned provided that the complaint alleges the commission of a cognizable offence. Such a course can be adopted by the Magistrate only at the pre-cognizance stage. (See Dilawar Singh v. State of Delhi - AIR 2007 SC 3234 & Suresh Chand Jain v. State of M.P. - AIR 2001 SC 571) Even a complaint alleging the commission of offences exclusively triable by a
Court of Session can also be so forwarded under Sec. 156 (3) Cr.P.C. (See Tula Ram v. Kishore Singh - 1977 (4) SCC 459 = AIR 1977 SC 2401). The Station House Officer ("S.H.O." for short) who receives such a complaint forwarded under Sec. 156 (3) Cr.P.C. will have to treat the complaint as a First Information Report within the meaning of Sec. 154 Cr.P.C. and is bound to register a crime and proceed to conduct an investigation as provided under Sec. 157 Cr.P.C. (See Mohammed Yousuff v. Smt. Afaq Jahan - AIR 2006 SC 705 = 2006 (1) KLT 939 (SC). The S.H.O. is obliged to register a crime whether or not such S.H.O. has the territorial jurisdiction to investigate the offence within the meaning of Sec. 156 (1) Cr.P.C. In a case where the S.H.O. has no territorial jurisdiction, the S.H.O. will have to register the crime and then transfer the same to the Police Station having jurisdiction. (See Madhubala v. Suresh Kumar - 1997 (8) SCC 476). This power of the Magistrate under Sec. 156 (3) Cr.P.C. cannot be exercised by him after taking cognizance. (See Tula Ram v. Kishore Singh - AIR 1977 SC 2401 - Also see George v. Jacob Mathews - 1996 (1) KLT 73).
3) Taking cognizance of the offence Where the Magistrate does not order investigation by the police under Sec. 156 (3) Cr.P.C. at the pre-cognizance stage and does not reject the complaint at the threshold,
then the magistrate may decide to proceed under Chapter XV Cr.P.C. and thereby take cognizance of the offence provided the allegations in the complaint prima facie make out an offence.
Kerala High Court
Biju Purushothaman vs The State Of Kerala, Represented ... on 20 June, 2008
Coram: The Hon'ble MR. Justice V.RAMKUMAR
