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Judgment
In the instant petition filed under Section 561-A Cr. P.C, the petitioners seek quashment of the order dated 30th March, 2017, passed by the Chief Judicial Magistrate, Poonch, by virtue of which he has directed the Station House Officer, Police Station, Poonch to investigate the matter under Section 156(3) Cr. P.C. The aforesaid impugned order reads as follows:-
"Applicant is present in person. The enquiry report sought from police u/s 202 Cr. P.C is on the file record, I have perused the report same as per the police report, which is available on the file record, prima facie offence U/Ss 420 & 109 RPC are made out against the accused persons. Therefore, the instant application along with allied documents including the report of the police in original is referred to the SHO Police Station, Poonch u/s 156(3) Cr. P.C for investigation and compliance under law. The compliance report be submitted to this Court at an earliest. Office is directed to send the copy of this order along with the application and other documents in original to the SHO, Police Station, Poonch for compliance. The office shall also prepare the index and the same be consigned to records, after its due completion.
Announced: 30.03.2017."
From the bare perusal of the aforesaid impugned order, it is evident that the Court below sent a criminal complaint to police for enquiry under Section 202 Cr. P.C The police, accordingly, conducted an enquiry and concluded that the complainant was examined and it was found that she has been given Talaknama by exercising fraud. On 30th December, 2016, a panchayat was held in which scanned Photostat copy of the talaqnama was shown to the public, but it was not proved as to whether the original talaqnama was given to the lady or not. On the basis of that enquiry, police concluded that (1) Khalid Mahmood S/o Mohd. Sadiq (2) Mohd. Sadiq S/o Abdul (3) Mst. Bashira Bi W/o Mohd. Sadiq (4) Sajid Mahmood S/o Mohd. Sadiq (5) Nahida Koussar D/o Mohd. Sadiq, Caste Gujjar R/o Narhard Chandak in conspiracy with Mohd. Rashid S/o Attar Din, Caste Gujjar R/o Kalani got written a false talaqnama. Therefore, these accused have deceived the lady and spoiled her life. The police has also stated in the enquiry report that the occurrence has been found to take place at Narhard Chandak, which falls in the territorial jurisdiction of District Poonch. After receipt of the said enquiry report, the Court below passed the aforesaid impugned order.
Chapter XVI of Cr. P.C deals with the Complaint to Magistrates. As per this Chapter, once a Magistrate takes cognizance, he has to proceed under Section 200 Cr. P.C. In terms of Section 200 Cr.P.C, a Magistrate is required to record the statement of the complainant and the witnesses, if any upon oath and the substance of the examination shall be reduced to writing. In terms of Section 202 Cr. PC, if a Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance, or which has been transferred to him under Section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and either enquire into the case himself, or, direct an inquiry or investigation to be made by any Magistrate subordinate to him or by an police officer, or by such other person as he thinks fit for the purpose of ascertaining the truthfulness of allegations leveled in the case. In terms of Section 203 Cr. P.C, the Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or inquiry (if any) under Section 202 Cr. P.C. Once a cognizance has been taken by the Magistrate, the Magistrate has no power to send the complaint to Police Station for investigation under Section 156 (3) Cr. P.C because this power has to be exercised at pre-cognizance stage and not at post-cognizance stage. Therefore, the order of the Trial Court is not according to law. It is, accordingly, set aside. However, Magistrate is directed to pass an appropriate order on the complaint on the basis of enquiry report as per the provisions of Sections 203 and 204 Cr. P.C.
In view of the above, the instant petition is disposed of along with connected IA.
Copy of this order be sent to the concerned Magistrate.