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Judgment
This is an application filed u/s 482, Cr.P.C. (hereinafter referred as Code) praying to quash the order, dated : 4-7-1997 passed by the XXII Metropolitan Magistrate (Mahila Court), Hyderabad in C.C.SR. No. 2859/97 forwarding the same to the police u/s 155(2) of the Code for investigation and report and pass consequential order directing the said Magistrate to take cognizance of the offence u/s 6 of Dowry Prohibition Act, 1961 (hereinafter called as Act).
The facts, in brief, resulting in filing of this petition are as under :
On 4-7-1997, the petitioner herein presented a private complaint, through her Advocate, in the Court of XXII Metropolitan Magistrate (Mahila Court), Hyderabad against her father-in-law for the offence punishable u/s 6 of the Act. The learned Magistrate without examining the petitioner-complainant and her witnesses, who were present in Court at that time, simply forwarded that complaint to the Station House Officer, Karkhana, P.S. for investigation u/s 155(2) of the Code and report. Challenging that order of the Magistrate, this petition has been filed u/s 482 of the Code.
Sri G. S. Rao, the learned counsel for the petitioner raised the contentions stating that u/s 7 of the Act, the learned Magistrate has no discretion to forward the complaint to the police, but she had to take cognizance of the offence when the complainant is preferred by the person aggrieved by the offence under the Act which is a Special Act, and in forwarding the same, the learned Magistrate failed to exercise jurisdiction vested in her. The learned counsel elaborates by stating that the non obstante clause in Section 7 of the Act makes it obligatory on the part of the Magistrate to take cognizance of the offence as soon as it is presented before her.
The learned Addl. Public Prosecutor, on the other hand, refutes the contentions of the learned counsel for the petitioner and submits that the private complaint filed for the offence punishable u/s 6 of Dowry Prohibition Act can also be forwarded to the police for investigation and report and it is not necessary for the Magistrate to take cognizance of the case as soon as a private complaint is filed by the affected party.
Sri K. Soma Konda Reddy, the learned counsel for respondent No. 2 submitted his argument on line with the arguments of the learned Addl. Public Prosecutor.
In the light of the submissions made by the learned counsel on either side the point that arises for consideration is whether the impugned order of the XXII Metropolitan Magistrate, dated : 4-7-1997 forwarding the complaint filed by the petitioner u/s 200 of the Code, u/s 155(2), Cr.P.C. to police for investigation and report is sustainable ?
For deciding this question, it is necessary to refer to certain provisions in the Code. Chapter XV of the Code deals with "Complaints to Magistrate". It contains 4 Section (Sections 200 - 203). Here we are concerned with Section 200, Cr.P.C. and it reads as under :-
"200. Examination of complainant :- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant ant and the witnesses, and also by the Magistrate :
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses -
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate u/s 192 :
Provided further that if the Magistrate makes over the case to another Magistrate u/s 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them."
A perusal of this Section extracted above, makes it clear that the Magistrate taking cognizance of an offence on complaint has to examine upon oath the complainant and his witnesses present, if any. It further provides that the substances of such examination should be reduced to writing and be signed by the complainant, the witnesses and the Magistrate. The first proviso says that the complainant and the witnesses need not be examined when the complaint is made by writing, if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint and if the Magistrate is making over another Magistrate u/s 192. The second proviso dispenses with the examining of the complainant and the witnesses by the latter Magistrate if the Magistrate making over the case already examined them.
Section 156 of the Code, deals with the power of Police Officers to investigate cognizable cases and it reads as under :
"156. Police Officer''s power to investigate cognizable cases :-
(1) Any officer-in-charge of a police station may, without the order of Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate.
(3) Any Magistrate empowered u/s 190 may order such an investigation as above-mentioned."
From a perusal of sub-section (3) of Section 156, it is clear that a Magistrate empowered u/s 190 has a discretion to order investigation also into cognizable case to the police. Section 190 which falls under Chapter XIV of the Code which deals with cognizance of offences by the Magistrate. It reads as under :
"190. Cognizance of offences by Magistrate :-
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -
(a) Upon receiving a complaint of facts which constitute such offence;
(b) Upon a police report of such facts;
(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower a Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."
The petitioner in the case on hand, filed the complaint for the offence punishable u/s 6 of the Dowry Prohibition Act, 1961. Under sub-section (2) of Section 6 of the Act, when the offence is proved against a person, he shall be imprisoned with a term which shall not be less than six months, but which may extend to two years, or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both. Section 7 of the Act relates to cognizance of offences under the Act and it reads as under :
"7. Cognizance of offence - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -
(a) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act;
(b) no Court shall take cognizance of an offence under this Act except upon -
(i) its own knowledge or a police report of the facts which constitute such offence, or
(ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation;
(c) it shall be lawful for a Metropolitan Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of any offence under this Act.
(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act.
(3) Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act."
The provisions of Section 7 of the Act basically are procedural specifying the Court which will take cognizance on information or complaint from a specified person. This section opens with a non obstante clause. It says whatever provisions may be there in the Code of Criminal Procedure qua the forum for trial of offence the offences under the Dowry Prohibition Act will not be tried by a Magistrate inferior to a Metropolitan Magistrate or a Judicial Magistrate of the First Class. Section 7 does not specifically say that the Magistrate has no option but to take cognizance of the offence as soon as the complaint has been preferred by a person specified in Section 7(1)(b)(ii) of the At. It also does not prohibit the Magistrate who is competent to take cognizance of the offences under this act to refer it to the police for investigation and report before taking cognizance of the offence u/s 156, Cr.P.C.
In the instant case, as seen from the impugned order, the learned Magistrate referred the complaint to the police for investigation and report u/s 155(2), Cr.P.C. probably under the impression that the offence u/s 6 of the Act is non-congnizable. The Code has divided the offences into cognizable and non-congnizable offences. Section 2(c) defines cognizable offence thus :
"(c) Cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the first Schedule or under any other law for the time being in force, arrest without warrant."
The essential difference between a cognizable and non-congnizable offence is that in the former class of offences : the police officer of a special rank shall have the power to arrest the alleged offender without a warrant, and in non-congnizable offences with the authority of warrant issued by a Magistrate. Schedule II of the Code relates to classification of offence against other laws. Under this, if the offence is punishable with improsonment for less than three years or with fine only, it is a non-congnizable offence and bailable one and triable by any Magistrate. In the instant case, the offence u/s 6 of the Act is punishable with imprisonment which shall not be less than six months and which may extend to two years or with fine which shall not be less than rupees five thousand, but which may extend to rupees ten thousand or with both. Therefore, considering the quantum of punishment, it is a non-congnizable offence and bailable and triable by any Magistrate. As earlier stated, u/s 7 which introduced a non obstante clause, offence under this Act will be tried by a Magistrate inferior to Metropolitan Magistrate or Judicial First Class Magistrate. In this context, Section 8 of the Act is also relevant and it reads as under :-
"8. Offences to be cognizable for certain purpose and to be (non-bailable) and non-compoundable. - (1) The Code of Criminal Procedure, 1973 (2 of 1974) shall apply to offences under this Act as if they were cognizable offences -
(a) for the purposes of investigation of such offences; and
(b) for the purposes of matters other than -
(i) matters referred to in Section 42 of that Code; and
(ii) the arrest of a person without a warrant or without an order of a Magistrate.
(2) Every offence under this Act shall be non-bailable and non-compoundable."
Section 8 has been substituted by the Amending Act 63 of 1984 which came into force on 2-10-1985 and this Section makes the offence under the Act cognizable for investigation purposes but excluded the provisions of Section 42 of the Code of Criminal Procedure and the powers to arrest without a warrant or without an order of a Magistrate. In other words, the offences under under the Dowry Prohibition Act shall be treated as cognizable for all purposes of investigation and the entire scheme of investigation as laid down in Sections 154 - 176 of the Code will be followed for the purpose of investigation excepting maters referred to in Section 42 of the Code and arrest of a person without warrant or without the order of the Magistrate. The essential feature of a cognizable offence as defined in Section 2(c) of the Code is taken out of the offences under the Dowry Prohibition Act. Therefore, when the offence u/s 6 of the Act is being treated as cognizable offence for the purpose of investigation, the Magistrate, who is competent to take cognizance of an offence is also empowered before taking cognizance of the offence to forward the complaint for investigation and report, to the police u/s 156, Cr.P.C. In the instant case, referring the complainant to the police u/s 155(2) of the Code is an irregularity for the reason that the Magistrate might have been under the impression that it is a non-cognizable offence. As the offence under the Dowry Prohibition Act ought to be treated as cognizable offence for the purpose of investigation as laid down u/s 8 of the Act. Therefore, the reference to the police for investigation will be only u/s 156, Cr.P.C.
There is no substance in the contention of the learned counsel for the petitioner that when the complainant is preferred by any person referred to in Section 7 of the Act, the learned Magistrate has no option but to take cognizance of the same and examine the complaint and other witnesses present, and that the Magistrate has no discretion to forward the complaint to the police for investigation. As earlier stated, the provisions u/s 7 of the Act are basically procedural specifying the Court which will take cognizance. Under this provision no Court inferior to that of a Metropolitan Magistrate or Judicial First Class Magistrate shall try an offence under the Act and under sub-clausse (b), such Court will take cognizance of the offence on its own knowledge or a police report of the facts which constitute such an offence or on the complaint by a person aggrieved or parent or other relative of a person or by a welfare institution or organisation. Further, before referring the complaint for investigation and report, the Magistrate need not examine either the complainant or his witnesses present. Further, the Magistrate can order investigation u/s 156 of the Code at the pre-cognizance stage that is to say before taking cognizance u/s 190 of the Code of the offence.
In Tula Ram and Others Vs. Kishore Singh, , their Lordships of the Apex Court after discussing the scope of Section 156, 190, 200, 202 and 204 have laid down the following proposition :
"(1) A Magistrate can order investigation under S. 156, only at the pre-cognizance stage, that is to say, before taking cognizance under Ss. 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is entitled in law to order any investigation under S. 156 though in cases not falling within the proviso to S. 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by S. 202 of the Code.
(2) Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives :
(a) He can peruse the complainant and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused but before he does so he must comply with the requirement of S. 200 and record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by another person or an investigation by the Police.
(3) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complainant.
(4) Where a Magistrate orders investigation by the police before taking cognizance under S. 156 of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under S. 190 of the Code."
In Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, , the Supreme Court held thus (para 17) :
"Section 156 occurs in Chapter XII, under the caption : "In formation to the police and their powers to investigate", while S. 202 is in Chapter XV which bears the heading "of complaints to Magistrate". The power to order police investigation under S. 156 is different from the power to direct investigation conferred by S. 202. The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seising of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under S. 156 can be invoked by the Magistrate before he takes cognizance of the offence under S. 190. But, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of S. 156. It may be noted further that an order made under sub-section (3) of S. 156 is in that nature of a per-emptory reminder or intimation to the police to exercise their plenary powers of investigation under S. 156. Such an investigation embraces the entire continuous process which begins with the collection of evidence under S. 156 and ends with a report or charge-sheet under S. 173. On the other hand, S. 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under S. 202 to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding. Thus, the object of an investigation under S. 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted before him".
It is clear from the above discussion, that in a private complaint, the Magistrate may either take cognizance of the alleged offence u/s 190, in which case, he has to follow the procedure under Chapter XV and examine the complainant and his witnesses if any u/s 200, Cr.P.C. or order investigation and report by police into the alleged offence u/s 156 of the Code in which case, he need not examine the complainant or his witnesses u/s 200, Cr.P.C. before passing an order. This power u/s 156, Cr.P.C. can be exercised by a Magistrate only at pre-cognizance stage, but if he takes cognizance of the alleged offence as postulated under Chapter XV, he cannot refer it u/S. 156, Cr.P.C. He has to take recourse to Section 202, Cr.P.C. for post-cognizance investigation.
In the instant case, admittedly, the Magistrate has not taken cognizance of the offence and at the pre-cognizance stage itself, he had ordered for investigation into the case. Therefore, the impugned order of the learned Magistrate dated 4-7-1997 cannot be said to be illegal so as to quash the same under the inherent power u/s 482, Cr.P.C.
In the result, I do not find any merits in the petition. Petition is dismissed.
Petition dismissed.