ORDER
B.L. Bhat, J.
1. This reference made by the learned Addl. Sessions Judge Ramban is directed against the orders passed by Judicial Magistrates (Sub-Judge and Munsiff) Batote, whereby they have refused to take cognizance of the offence and returned the complaint to the petitioner.
2. Perused the reference order and the record of the case. Perusal of the record reveals that on 7-3-2002 one Dr. Mashqoor Ahmed Mir, Physician Specialist posted in S.K.M. Hospital Batote came to present a complaint for offences under Sections 500 and 501, R.P.C.; firstly before learned sub-Judge, Judicial Magistrate Batote, who on the same day came to return it to the complainant for presenting it before some other Court on the ground that the complainant-doctor is personally known to her. The complainant feeling desperate approached Munsiff, Judicial Magistrate, Batote who also in the like manner came to return it to the learned counsel for the complainant Mr. P.B. Katoch for presenting it before some other forum on the ground that she is unable to try it because of his personal reasons, to the effect that he has decided a case against the said doctor for an offence under Section 279 of the Motors Vehicles Act on his confession.
3. This is a case of extreme escapism on the part of both the learned Judicial Magistrate Batote, especially the Sub-Judge, who is a senior Judicial Officer.
4. Under Section 190 of the Code of Criminal Procedure (hereinafter called the Code), any Chief Judicial Magistrate or any other Judicial Magistrate, especially empowered in this behalf, may, notwithstanding the bar under Sections 195 to 199 of the Code, take cognisance of any offence, inter alia upon receiving a complaint of facts which constitutes an offence. Taking of cognisance means application of mind for the purpose of initiating judicial proceedings against the offender or taking steps to see whether there are bases for initiation of such proceedings. Section 200 of the Code provides that a Magistrate taking cognisance of an offence on the complaint presented to him shall examine the complainant and the witness present, if any, on oath, shall reduce their deposition into writing in order to ensure as to whether or not the accusations contained therein are true. The section is mandatory in character. After having recorded such statement of the complainant and the witness, present, the Magistrate must either issue the process against the accused under Section 204 of the Code, after recording his satisfaction that there are sufficient grounds for proceeding against him or may order an inquiry under Section 202 for ascertaining the truth or falsehood of the complaint or may dismiss the complaint under Section 203 after recording his satisfaction that there are no sufficient grounds for proceeding ahead. No other course than afore-mentioned is available to a Judicial Magistrate, competent to try the case, but to take cognizance of the offence on a complaint presented before him of which he is competent to take cognizance. True it is that if a Magistrate is not competent to take cognizance of a case, in that eventuality under Section 201 of the Code he can return the complaint presented before him for presenting it before the proper Court. This want of competence of a Judicial Magistrate not being empowered under Section 190 of the Code or for want of previous sanction under Sections 132, 196 to 199 of the Code or he being not qualified to try the case under Schedule II appended to the Code.
5. Having regard to this law, there is nothing to show that the learned Sub-Judge, Judicial Magistrate, Miss Bala Jyoti, was in any way not competent to take cognizance of the complaint. She is a person invested with the powers of a Judicial Magistrate of 1st class, the complaint is one for defamation which appears to have been made by a person, who is an aggrieved person in terms of Section 198 of the Code and there is no legal bar in taking its cognizance. If the ground stated in the impugned order recorded by the said Magistrate, by virtue of which she came to return the complaint for presenting it before some other Court is accepted, in that case the only course available under law for her was to take cognizance of the offence and then submit the file to the learned Chief Judicial Magistrate Doda for its transfer to some other Court in District Doda, competent to try it. She has not done so. It speaks itself that she has not yet attained the judicial maturity and the same is the position of Munsiff, Judicial Magistrate Batote, who has also tossed the complaint like a shuttle cock, from one Court to another Court, necessitating the complainant to approach the Revisional Court. This attitude of both the Judicial Magistrate, and in particular that of the learned Sub-Judge, Judicial Magistrate, Miss Bala Jyoti, is strongly depricated.
6. The orders impugned recorded by the Sub-Judge, JMFC, Batote on 7-3-2002 and the one recorded by the Munsiff, JMFC, Batote on the same day, do not demonstrate application of judicial mind. The orders impugned suffer with illegality and impropriety.
7. Therefore, this reference is accepted and both the afore-mentioned orders are hereby set aside. Let the record of the case, together with copy of this order be sent to learned Sub-Judge, JMFC, Batote for proceeding with the complaint in accordance with law, as dismissed above, after issuing notice to the complainant. A copy of this order be also sent to the learned Addl. Sessions Judge Ramban for information and another copy be forwarded to the learned Munsiff, JMFC, Batote for her information.