TMI Blog2022 (7) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... not issue process quoting section 323/498A/500/34 I.P.C. by dint of section 204 under aforesaid chapter XVI of the code, because it can be highly prejudicial for the accused, who has right to know the cause of summoning. It is well-settled that when a Magistrate receives a complaint, he is not bound to take cognizance unless the fact alleged in the complaint discloses the commission of offence. This is clear from the use of the words 'may take cognizance' in section 190 of the code. The word 'may' gives a discretion to the Magistrate in the matter - when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code, he said to have taken cognizance of the offence within the meaning of Section 190(1) (a) of Code of Criminal Procedure. In the present case, Magistrate received a complaint which discloses an allegation that the petitioner herein has defamed her inter alia by describing her as ex-wife in open place and also by threatening her and if the Magistrate on receiving such complaint would have spent few seconds in order to go through the same and further had h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e observed that a petition of complaint under Section 138 of the Negotiable Instruments Act, 1881 is filed and on perusal of the complaint, the learned Magistrate took cognizance of the same and the case was transferred to the court of learned Judicial Magistrate, 3rd Court, Alipore, South 24-Parganas for disposal in accordance with law. Thereafter, on transfer, the court of learned Judicial Magistrate, 3rd Court, Alipore, South 24-Parganas after taking initial deposition came to a conclusion that there are sufficient materials to proceed against the accused person under Section 498A/323/500/34 of the Indian Penal Code and issued process against the petitioner under section 204 of the Cr.P.C. 3. Mr. Ahmed further submits that from the first recording of the order indicates that the complaint was filed under Section 138 of the Negotiable Instruments Act, 1881 and when it was transferred to the court of learned Chief Judicial Magistrate, 3rd Court, Alipore, South 24-Parganas, the process was issued against the accused going beyond the allegations of sections which comprised of Section 500/504 of the Indian Penal Code. Surprisingly, the order indicates that in a proceedings under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite party No. 1 is a divorcee and again abused the opposite party no. 1/complainant and for which complainant lost her prestige, goodwill in the locality and became seriously ill and has been suffering from mental agony and she was treated by a local doctor and for which the petitioner committed an offence under Sections 500/504 of the Indian Penal Code. 6. On the basis of said written complaint where in prayer was made by complainant to issue process against the accused person under section 500/504 IPC, order no. 1 dated 19.09.2011 by which cognizance was taken by Magistrate and subsequent orders were passed, in aforesaid C. Case No. 9760 of 2011. Let me reproduce the relevant orders passed by Magistrate. Order No. 1 Date 19/9/11 A petition of Complaint filed u/s. 138 N.I. Act. Heard ld. Advocate for the Complainant. Perused the petition of complaint. Considered. Cognizance is taken. Let the case be transferred to the file of ld. 3rd JM, Alipore for disposal in accordance with law. Complainant is directed to appear before the transferee court on...... Before the Ld. JM 3rd Court Alipore 19-9-11 Received the record today by transfer from ld. CJM file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34 I.P.C. by dint of section 204 under aforesaid chapter XVI of the code, because it can be highly prejudicial for the accused, who has right to know the cause of summoning. 10. It is well-settled that when a Magistrate receives a complaint, he is not bound to take cognizance unless the fact alleged in the complaint discloses the commission of offence. This is clear from the use of the words 'may take cognizance' in section 190 of the code. The word 'may' gives a discretion to the Magistrate in the matter. The expression 'taking cognizance of an offence' by a Magistrate within the contemplation of Section 190 has not been defined in the Code. But from the marginal heading of the Section 190 and from the caption of Chapter XIV under which Section 190-199 occurred, it is clear that case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. In short, when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code, he said to have taken cognizance of the offence within the meaning of Section 190(1) (a) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Criminal Procedure. 13. Furthermore, Rule 183 of the Calcutta High Court Criminal Rules and Order specifically provides that the orders requiring the exercise of judicial discretion and the final order shall be recorded by the Magistrate in his own hand or typed by him, others may be recorded under his direction by the Bench Clerk. Here copy of the impugned order no. 1 clearly reflects that the concerned Magistrate only filled up vacant space of a printed order. Magistrate only filled up order number, date of order and the name of the court and then transferred the case for disposal. This is clear violation of the aforesaid Rule 183 of the Calcutta High Court Criminal Rules and Order and glaring example of initiation of a criminal proceeding by a Magistrate against a person without applying his judicial mind. 14. Having considered the aforesaid facts and circumstances of the case and also considering the fact that this Court under section 482 Cr.P.C. not competent to pass a direction upon the Magistrate to take cognizance upon a complaint on a particular section from a particular statute, the remedy of the opposite party no. 1, who failed to question the order No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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