A Magistrate cannot revert to the pre-cognizance stage after taking cognizance of a complaint, making the order to register an FIR legally untenable.

JUDGMENT :

Neela Gokhale, J.

1. Petitioner seeks quashing of FIR dated 2nd January 2023 bearing No. 1 of 2023 registered with the CBD Belapur Police Station, Navi Mumbai for offences punishable under Sections 379, 406, 409, 420, 465, 467, 497, 500 and 504 of the Indian Penal Code, 1860 (‘IPC’).

2. The Petition was admitted by Order dated 6th September 2023 and the Police were restrained from filing charge sheet in the matter during the pendency of the present petition.

Respondent No.1 is duly served. Despite service, none appeared for Respondent No.1 when taken up for hearing.

3. Brief facts of the case are as follows :

3.1. The Petitioner is wife of the Respondent No.1. Respondent No.1 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 the offences punishable under Sections 379, 406, 420, 465, 497, 500 and 504 read with Section 34 of the IPC. Alternatively, the Respondent No.1 sought issuance of process under Section 204 of the Cr. P. C against the Petitioner and secure her presence to face charges under the aforesaid offence.

3.2. The learned Magistrate vide its Order dated 22nd November 2021 directed the police to conduct a preliminary inquiry to ascertain commission of a cognizable offence and submit its report within 30 days.

3.3. The Police submitted its Report dated 18th June 2022 to the trial Court. It was stated therein that the complaint to be an afterthought, filed only to counter the complaint lodged by the Petitioner against Respondent No.1 under Section 498-A of the IPC.

3.4. Subsequently, the Magistrate directed registration of FIR under Section 156(3) of the Cr. P.C by its Order dated 19th December 2022 and directed the Police to investigate the allegations made by the Respondent No.1. Pursuant to this Order, the subject FIR was registered for the offences as alleged.

3.5. The Petitioner filed a Revision Application assailing Order dated 19th December 2022 before the Sessions Court, Thane. The Sessions Court, by its Order dated 4th May 2023 observed that, while the Order passed by the Magistrate was erroneous, since the FIR was already registered, it was not jurisdictionally competent to quash the same. The Petitioner has thus assailed the FIR No. 1/2023 dated 2nd January 2023 registered with the CBD Belapur Police Station, Navi Mumbai by way of the present petition.

4. Mr. Advait Tamhankar learned counsel appears for the Petitioner and Mr. Ajay Patil, learned APP represents the State.

5. Although Mr. Tamhankar attacked the registration of the impugned FIR on various grounds on the facts of the case, the thrust of his argument was that since the Magistrate took cognizance of the complaint and directed an inquiry under Section 202 of the Cr.P.C, it was not open to the Magistrate to revert back to the pre-cognizance stage as the same being impermissible under the scheme of the Cr.P.C. He further submits that Order directing registration of FIR not only fails to consider the report of the Police but does not even mention the same which clearly indicates a total non-application of mind. He thus challenged the Order before the Sessions Court, Thane, which agreed with his submissions however, was rendered powerless to set it aside considering that in the interregnum, the FIR was registered and the jurisdiction to quash the same was a prerogative of the High Court. Mr. Tamhankar also relied on various decisions of the Supreme Court and of this Court in support of his contentions, as under:

(1) Lalita Kumari v. Government of Uttar Pradesh & Ors. (2014) 2 SCC

(2) Ramdev Food Products Private Limited v. State of Gujarat (2015) 6 Supreme Court Cases 439

(3) Manharibhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors. (2012) 10 Supreme Court Cases 517

(4) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri & Ors. 2023 SCC OnLine SC 569; AIR 2023 SC (Cri) 905

(5) Madhao and Another v. State of Maharashtra & Anr. (2013) 5 Supreme Cour