The Kerala High Court recently held that Magistrate courts are required to apply its mind while taking cognizance of offences or ordering investigation into any cognizable case [Jibin Joseph v Union territory of Lakshadweeo & Anr.]
Justice Kauser Edappagath stated that while exercising the power conferred under Section 156(3) of the Code of Criminal Procedure (CrPC), Magistrates and courts should not function as mere “post offices” and forward any and all complaints that come its way.
“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 said.
The Court, while quashing a case against a Public Prosecutor, held 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,” the judgment said.
The Magistrate/Court is not merely functioning as a “post office” in forwarding anything and everything filed in the form of a complaint.
Kerala High Court
The Court passed the order on a petition moved by an individual working as Additional Public Prosecutor and Additional Government Pleader at the District and Sessions Court, Kavaratti, Lakshadweep.
The plea sought quashing of an order of a Sessions Court directing the police to investigate a complaint registered against the petitioner under the provisions of the Protection of Children from Sexual Offences (POCSO) Act and the Juvenile Justice (Care and Protection of Children) Act (JJ Act).
The 2nd respondent in the instant case was representing an accused person in a POCSO case for kidnapping and sexually assaulting a minor girl.
First, he put up a Facebook post alleging that the petitioner was contacting the minor survivor but this backfired as a case was registered against the second respondent itself for revealing the identity of the survivor.
The 2nd respodent then filed multiple police complaints and later a private complaint before the Sessions Court with the same allegation resulting in offences punishable under Section 11(iv) of the POCSO Act and Section 75 of the JJ Act. The Station House Officer (SHO) did not register a case.
The Sessions Court forwarded the complaint to the SHO for investigation under Section 156 (3) of CrPC which was challenged by the petitioner in the instant petition.
Advocate S Rajeev, appearing for the petitioner alleged that the 2nd respondent’s complaint was maliciously instituted with an ulterior motive to wreak personal vengeance on the petitioner but that the Sessions Court forwarded the complaint without application of mind.
Advocate V Sajith Kumar, Standing Counsel for the Union Territory of Lakshadweep supported these arguments 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) CrPC.
Advocate Vijin Karthik, appearing for the 2nd respondent disputed the contentions and argued that the Magistrate/Court was not required to conduct a roving enquiry.
The Court noted that to attract the offences alleged, the accused must have sexual intent and actual control or charge over the minor.
It went through a report from the SHO which stated that the allegations were found to be baseless as per the investigation.
Going through several precedents, 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.
Since the same was not done in this case, the High Court deemed it fit to quash the case against the petitioner to prevent an abuse of process of law.
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