Case Note & Summary
The petitioner, Vinisha Sawant, filed a criminal writ petition seeking quashing of FIR No. 1 of 2023 registered with CBD Belapur Police Station, Navi Mumbai, for offences under Sections 379, 406, 409, 420, 465, 467, 497, 500, and 504 of the Indian Penal Code, 1860. The petitioner is the wife of respondent No. 1, Mahendra Sawant. The respondent had filed a complaint before the Judicial Magistrate First Class, Vashi, bearing M.A. No. 469/2021, praying for registration of FIR against the petitioner for various IPC offences. The Magistrate, by order dated 22nd November 2021, directed the police to conduct a preliminary inquiry to ascertain commission of a cognizable offence and submit a report within 30 days. The police submitted a report dated 18th June 2022 stating that the complaint was an afterthought, filed only to counter the complaint lodged by the petitioner against respondent No. 1 under Section 498-A IPC. Subsequently, the Magistrate, by order dated 19th December 2022, directed registration of FIR under Section 156(3) Cr.P.C. and directed the police to investigate. Pursuant to this order, the subject FIR was registered. The petitioner filed a revision application before the Sessions Court, Thane, which observed that while the Magistrate's order was erroneous, it was not jurisdictionally competent to quash the FIR since it was already registered. The petitioner then approached the High Court. The main legal issue was whether the Magistrate could revert to the pre-cognizance stage after taking cognizance of the complaint and directing inquiry under Section 202 Cr.P.C. The petitioner argued that once cognizance was taken, it was impermissible for the Magistrate to revert to the pre-cognizance stage and invoke Section 156(3) Cr.P.C. The respondent State justified the order. The High Court held that the power under Section 156(3) is exercisable at the pre-cognizance stage, while Section 202 operates at the post-cognizance stage. Once the Magistrate takes cognizance and embarks upon the procedure under Chapter XV, he cannot switch back to the pre-cognizance stage. The Court also noted that the order directing preliminary inquiry was untenable as there is no provision for such inquiry under the Cr.P.C. The order directing registration of FIR failed to consider the police report, indicating non-application of mind. The Court quashed the FIR and all proceedings arising therefrom.
Headnote
A) Criminal Procedure Code - Cognizance - Pre-cognizance vs Post-cognizance stage - Sections 156(3), 202, 190(1)(a) Cr.P.C. - The Magistrate cannot revert to the pre-cognizance stage after taking cognizance of the complaint and embarking upon the procedure under Chapter XV of the Cr.P.C. - Held that once cognizance is taken, the Magistrate is not competent to invoke Section 156(3) Cr.P.C. (Paras 8-9). B) Criminal Procedure Code - Preliminary Inquiry - Section 2(g) Cr.P.C. - There is no provision in the Cr.P.C. vesting jurisdiction in the Magistrate to direct a 'preliminary inquiry' - The term 'inquiry' under Section 2(g) relates to a judicial act by a Magistrate or Court, not to steps taken by the police prior to registration of FIR - Held that the order directing preliminary inquiry was untenable in law (Para 10). C) Criminal Procedure Code - Non-application of mind - Section 156(3) Cr.P.C. - The order directing registration of FIR failed to consider the police report which stated the complaint was an afterthought - Held that such order indicates total non-application of mind (Para 3.3, 5).
Issue of Consideration
Whether the order passed by the Magistrate directing registration of FIR is legally tenable once having taken cognizance of the complaint and directing inquiry under Section 202 of the Cr.P.C.
Final Decision
The petition is allowed. FIR No. 1 of 2023 dated 2nd January 2023 registered with CBD Belapur Police Station, Navi Mumbai, and all proceedings arising therefrom, are quashed and set aside.
Law Points
- Magistrate cannot revert to pre-cognizance stage after taking cognizance
- Section 156(3) Cr.P.C. cannot be invoked post-cognizance
- Preliminary inquiry not permissible under Cr.P.C.
- Order directing registration of FIR without considering police report indicates non-application of mind
