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Report by Monishka Allahbadi

The Kerala High Court recently ruled that a Magistrate/Court must use its discretion when exercising the powers granted to it by Section 156(3) of the Code of Criminal Procedure (Cr.PC). According to Justice Kauser Edappagath, courts should not simply forward all complaints they receive like a post office when taking cognizance of offenses or ordering an investigation into any cognizable case. As a result, it was emphasized that the powers granted under Section 156(3) must be exercised with caution and discretion. “The Magistrate/Court also has a duty to protect the accused’s interests because, under S.156(3) Cr.Pc., the accused has no right of hearing during the investigation or forwarding of the complaint to the police.”

In JIBIN JOSEPH VS. UNION TERRITORY OF LAKSHADWEEP & ANR., an Additional Public Prosecutor of a District and Sessions Court in Lakshadweep had petitioned the High Court to quash a Sessions Court order which directed the police investigation into a complaint filed against him under the POCSO Act and the Juvenile Justice Act. The 2nd respondent, in this case, is a lawyer who practices in Lakshadweep and was representing an accused in another POCSO case in which a minor girl was kidnapped and sexually assaulted.

Initially, the 2nd respondent posted on Facebook that the petitioner was constantly contacting the minor survivor and was involved in her disappearance. A case, however, was filed against the second respondent for revealing the survivor’s identity in the post.

Following that, the second respondent filed a slew of complaints alleging the same thing. The Station House Officer, however, did not file a report. Soon after, a private complaint was filed before the Sessions Court which was forwarded to the SHO for Section 156 inquiry (3). The petitioner in this case is contesting this order. The petitioner’s attorney, S. Rajeev, stated that the Sessions Court merely submitted the complaint automatically without giving it any thought. He claimed that the 2nd respondent’s complaint was intentionally filed with the intent to “wreak personal vengeance” on the petitioner.

However, Attorney Vijin Karthik for the 2nd respondent contended that the Magistrate was not compelled to undertake a roving inquiry regarding all of the claims in the complaint at the time of transferring the same to the police for investigation in accordance with Section 156 (3).

The Court emphasized that the accused must have sexual intent and actual control or charge over the minor in order to commit the offence specified in Section 75 of the JJ Act. The SHO’s report, which said that the inquiry had determined the charges to be without merit, was also looked at by the Judge. It was observed:

“It is settled that the powers under S.156(3) of the Cr.PC cannot be exercised casually or mechanically but are required to be exercised judiciously…….The Magistrate/Court is not merely functioning as a “post office” in forwarding anything and everything filed in the form of a complaint. The Magistrate/Judge should certainly scrutinize the allegations in the complaint to satisfy himself that it discloses the necessary ingredients of the offence for which investigation is intended to be ordered and to find out whether it is a matter to be forwarded to the police to collect materials for a successful prosecution against the accused.”

The High Court quashed the order of the sessions court to prevent sheer abuse of the process of law.

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