Cognizance of offence--Magistrate taking cognizance of an offence on receipt of complaint under Section 202--Cannot direct registration of FIR under Section 156(3) of Cr.P.C.

1. This petition under Section 482 of the Code of Criminal Procedure has been filed by the petitioners for quashing of the order dated 31-1-2006 and order dated 29-4-2006 passed by the Sub-Divisional Judicial Magistrate, Safidon and for quashing of FIR No. 203 dated 4-5-2006 registered under Sections 306, 34, I. P. C. at Police Station Safidon, District Jind, in compliance with order dated 29-4-2006 passed by the Sub-Divisional Judicial Magistrate, Safidon.

2. It has been stated by the petitioners that petitioner No. 1 was married with one Sunil Kumar s/o. Kitab Singh on 10-11- 2002. Two children out of their wedlock were born. Petitioner No. 1 left the matrimonial house of her husband, Sunil Kumar on 26- 11-2005 along with her children with the consent of her husband. On the night of 29- 11-2005, petitioner No. 1 was informed by her-in-laws that her husband is no more. On reaching Safidon, Kitab Singh-respondent No. 2, who is father of her husband, informed the petitioner No. 1 that Sunil Kumar, husband of petitioner No. 1 had committed suicide. But later on she came to know that her husband was killed by Kitab Singh and other family members. She filed a complaint dated 14-12-2005 to S. P. Jind but before that she was thrown out of her matrimonial house on 11-12-2005. The application of petitioner No. 1 was marked to the S. H. O., Police Station, Safidon for inquiry. On 8-1-2006, Sh. Manbir Singh, S. H. O., Police Station Safidon called both the parties and recorded statement of Kitab Singh-respondent No. 2. After recording of the statement, no further action has been taken thereon.

3. In the meantime, in order to save his skin, Kitab Singh-respondent No. 2 filed a complaint against the petitioners by fabricating a false suicide note in the Court of Sub-Divisional Judicial Magistrate, Safidon dated 30-1-2006. The Court took cognizance of this complaint and after recording the statement of Kitab Singh-complainant sent the complaint under Section 202 of the Code of Criminal Procedure for enquiry to the D. S. P., Safidon vide order dated 31-1-2006. On receipt of enquiry report of the D. S. P., Safidon, the Court sent the complaint to the S. H. O., Police Station Safidon under Section 156(3) of the Code of Criminal Procedure for registration of the case vide order dated 29-4-2006, in compliance whereof FIR No. 203 dated 4-5-2006, under Sections 306, 34, I. P. C. was registered at Police Station Safidon.

4. It is these two orders passed by the Sub-Divisional Judicial Magistrate, Safidon i.e. 31-1-2006 and 29-4-2006 along with the FIR, which have been challenged.

5. The contention of the petitioners is that once the Sub-Divisional Judicial Magistrate, Safidon, has taken cognizance of the alleged offences in the complaint and ordered for investigating the matter under Section 202 of the Code of Criminal Procedure, the Magistrate is not competent to send the complaint for registration of the FIR under Section 156(3) of the Code of Criminal Procedure to the police. The powers under Section 156(3) can only be exercised by the Judicial Magistrate at the precognizance stage. Once cognizance has been taken, the Magistrate does not have the authority to send the complaint for registration of the case under Section 156(3) of the Code of Criminal Procedure. It has further been stated that the Magistrate is not competent to send a complaint for enquiry under Section 202 of the Code of Criminal Procedure, if the offence complained of is exclusively triable by the Sessions Court. The offence in the present complaint being under Section 306/34, I. P. C, which is exclusively triable by the Sessions Court, the Magistrate could not have proceeded to order the investigation in the case and in no condition could he order the registration of an FIR under Section 156(3) of the Code of Criminal Procedure.

6. On notice having been issued, reply on behalf of State as well as Kitab Singh- respondent No. 2 (complainant) has been filed. The reply of