S and N forged a partnership deed in league with the officials of the Income-tax Department. S filed a civil suit produced a copy of the said partnership deed and obtained an ex-parte interim injunction restraining R from interfering with the possession of the certain property. R filed a complaint against S, N and others before a Magistrate………. Decide

Question: S and N forged a partnership deed in league with the officials of the Income-tax Department. S filed a civil suit produced a copy of the said partnership deed and obtained an ex-parte interim injunction restraining R from interfering with the possession of the certain property.

R filed a complaint against S, N and others before a Magistrate for the offences under Sections 120-B, 465, 468, 471 and 474 I.P.C. The Magistrate refuses to take cognizance of the complaint without a complaint in writing by the Civil Court. Decide the validity of the order. (D.J.S. 1990)

Find the answer only on Legal Bites. [S and N forged a partnership deed in league with the officials of the Income-tax Department. S filed a civil suit produced a copy of the said partnership deed and obtained an ex-parte interim injunction restraining R from interfering with the possession of the certain property. R filed a complaint against S, N and others before a Magistrate………. Decide the validity.]

Answer

Section 195(1) of CrPC runs as under:

“No Court shall take cognizance-

a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;

b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate;or

c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.”

This sub-section thus bars any Court from taking cognizance of the offences mentioned in clauses (a), (b) and (c), except when the conditions laid down in those clauses are satisfied.”

A Magistrate acting under Section 190(1) (a) of the Code cannot refuse to take cognizance on the ground that the complaint does not disclose the facts with sufficient fullness. He can surely dismiss the complaint under Section 203 of the Code if the allegations do not disclose an offence. Cognizance can be declined only when the Magistrate is not competent to take it in which event he directs the complainant to the proper court. Similarly, a Special Court can decline cognizance only when the allegations do not disclose the commission of a scheduled offence. But where there is no want of competence, cognizance cannot be declined.

A magistrate shall not refuse illegally to take cognizance of an offence. The word ‘may’ in section 190(1) of the code will mean must in a situation where material placed before the magistrate perversely or on some extraneous considerations refuse cognizance. Such unanalysed discretion will be frowned upon by the constitution. It was held by Supreme Court in the case of Shri AC Agarwal v. Mst Ram Kali 1968 AIR, 1 1968 SCR (1) 205, that where the material is sufficient enough for any judicial authority to come to the conclusion of taking cognizance and if magistrate refuses to take cognizance, then the word ‘may’ in section 190(1) should be read as ‘must take cognizance’.

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Important Mains/Long Questions for Judiciary, APO & University Exams

1. CRPC Mains Questions Series Part I: Important Questions
2. CRPC Mains Questions Series Part II: Important Questions
3. CRPC Mains Questions Series Part III: Important Questions
4. CRPC Mains Questions Series Part IV: Important Questions
5. CRPC Mains Questions Series Part V: Important Questions
6. CRPC Mains Questions Series Part VI: Important Questions
7. CRPC Mains Questions Series Part VII: Important Questions
8. CRPC Mains Questions Series Part VIII: Important Questions
9. CRPC Mains Questions Series Part IX: Important Questions
10. CRPC Mains Questions Series Part X: Important Questions
11. CRPC Mains Questions Series Part XI: Important Questions