JIVRAJBHAI NARSINHBHAI VAGHELA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard, learned advocate Mr. Apurva Jani for the applicant in criminal revision application. Attention of the Court is drawn to a judicial order dtd. 3/4/2023 passed by the learned Additional Chief Judicial Magistrate, Talaja, District: Bhavnagar (the learned Additional Chief Judicial Magistrate) on a complaint, noted to be as 'unregistered Criminal Application No. 1 of 2023'. It is unheard of that a complaint which is filed and number is titled as 'unregistered'.

(2.) Learned advocate Mr. Apurva Jani for the applicant submitted that the learned Additional Chief Judicial Magistrate, instead of registering the complaint under inquiry register, without even observing the facts of the complaint, had straightaway returned back the complaint where, no such procedure is laid down in the Criminal Procedure Code, 1973 (for brevity, ' Cr.P.C '), except that under Sec. 201 of the Cr.P.C., when a complaint is made to a Magistrate not competent to take cognizance of the offence. Learned advocate Mr. Jani stated that, if the complaint made to the learned Additional Chief Judicial Magistrate was found to be not competent to take cognizance, then he ought to have returned it for presentation to the proper Court with an endorsement to that effect as provided under Sec. 201 .

(3.) The learned advocate for the applicant stated that the learned Additional Chief Judicial Magistrate has not even inquired by way of recording verification to the complaint as to whether the complainant had initiated the process of Sec. 154(3) of the Cr.P.C. It is stated that the only procedure which has been laid down in the Cr.P.C . is to follow Sec. 190 where, on receiving the complaint of facts, the empowered Magistrate to find out whether any cognizance is required to be taken for the offence alleged. The learned advocate for the applicant submitted that when the complainant has pleaded a case of non-registration of the FIR by the police and non-compliance of the directions issued by the Apex Court in the decision in Lalita Kumari v. Government of U.P. and Others, (2014) 2 SCC 1, the learned Additional Chief Judicial Magistrate was required to register the complaint in the inquiry register and should have recorded the verification or had made further inquiry, while had no authority to return back the complaint. It is stated that the learned Additional Chief Judicial Magistrate, either could have proceeded under Sec. 156(3) or under Sec. 202 of the Cr.P.C. or should have examined the complainant under Sec. 200 of the Cr.P.C. and after following the procedure, if had found that the complaint made to the learned Additional Chief Judicial Magistrate is not competent to take cognizance, then ought to have returned it for the presentation to the proper Court with an endorsement to that effect and if the complaint is not in writing then could have directed the complainant to the proper Court. The learned advocate for the applicant stated that Sec. 202 of the Cr.P.C. is for postponement of issuance of process and during that period, the learned Additional Chief Judicial Magistrate could have put the complainant under inquiry and have taken the evidence of the witnesses on oath by calling upon the complainant to produce all his witnesses and on examining the statements, if the learned Additional Chief Judicial Magistrate was of the opinion that there is no sufficient ground for proceeding then he could have dismissed the complaint. While, on contrary, if the learned Additional Chief Judicial Magistrate deems it fit to take cognizance, then, there could have been an order of issuance of process.