Bar to taking cognizance
Querist :
Anonymous
(Querist) 09 October 2011
This query is : Resolved
Learned Counsels,
A criminal complant was filed in Mar 2010 and polcie did not register a case. Complainant preferred a application u/s 156(3) before the magistrate in Mar 2011. For 7 months there is no order from magistrate, If a case is registered on orders of magistrate will there be any bar to taking cognizance due to delay caused by police and the magistrate court in getting a criminal case registered.
Please clarify.
ajay sethi
(Expert) 09 October 2011
why did you not file complaint with supdt of police? before moving magistrate
if complaint is filed in March 2011 before magistarte for investigation under 156 (3)merely becuase no orders are passed by magistarte till now on your application does not lead to any bar to take cognizance .
In Sakiri Vasu vs State Of U.P. And Others, it was further held that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
ajay sethi
(Expert) 09 October 2011
The Hon'ble Supreme Court held in D. Lakshaminarayana v. V. Narayana7, after comparing the relevant provisions of the 1898 Code and the 1973 Code, it was held as follows (at page 1365; of Cri LJ) :-
"It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words 'may take cognizance' which in the context in which they occur cannot be equated with 'must take cognizance'. The word 'may' gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under S. 156(3) will be conclusive to justice and save the valuable time to the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.
Arun Kumar Bhagat
(Expert) 09 October 2011
There shall be no bar to taking cognizance due to delay caused by police and the magistrate court in getting a criminal case registered.
Sailesh Kumar Shah
(Expert) 09 October 2011
No, there is no bar to taking cognizance due to delay caused by police and the magistrate court in getting a criminal case registered.
Ravikant Soni
(Expert) 09 October 2011
Complainant preferred a application u/s 156(3) before the magistrate in Mar 2011. For 7 months there is no order from magistrate...
There is no reason to hangup a complaint for a long time as u mention.. I think there is a misconception of fact, go thru the whole ordersheets of the court. I think there should be no such delay to be sent complaint to police by MM.
perhaps the court has sent the complaint to police but it may be happened that police did not registered the case yet.
For this you may pray again to the competent court or file contempt proceeding against SHO.
Now your Question
"If a case is registered on orders of magistrate will there be any bar to taking cognizance due to delay caused by police and the magistrate court in getting a criminal case registered."
the limitation is calculated considering the date of institution of case if you properly istituted the case to then no how delayed court orders to register the case.
Shonee Kapoor
(Expert) 09 October 2011
As the case was instituted in time, the bar of S 468, won't be applicable.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
