Bal Dev Thakural vs State of Uttaranchal

Hon''ble J.C. S. Rawat, J.—This petition u/s 482 Code of Criminal Procedure. has been filed for quashing the orders dated 16.7.2002 passed by Addl, C.J.M., Haldwani (Nainital) in complaint case No..../2002 and judgment dated 2.5.2005 passed by the Learned District Judge, Nainital, in criminal revision No. 40/2003.

It is alleged in the present petition that an application u/s 156(3) Code of Criminal Procedure. was filed by the Respondent No. 2 Mohammad Israil on 31.5.2002 against the present applicants with the allegations that the applicants and another person forcibly entered in the P.C.O. of Respondent No. 2 and make quarrel and hurl abuses badly with the Respondent No. 2 and threatened him. The learned Magistrate registered the same as complaint case vide order dated 31.5.2002. After recording the statements u/s 200 and 202 Code of Criminal Procedure. the learned Magistrate took cognizance against, the present applicants vide its order dated 16.7.2002. Feeling aggrieved to this, the applicants preferred a revision before the learned District Judge.. Vide order dated 2.5.2005 the learned District Judge had dismissed the revision and the case was remitted back to the Magistrate for further proceedings against the accused-applicants.

Feeling aggrieved to the orders of the Magistrate and the District Judge, the applicants have come up before this Court.

Heard Sri Sarvesh Agarwal Learned Counsel for the applicants and Sri Nandan Arya learned A.G.A.

The Learned Counsel for the applicants has referred the various decisions of the single Judge of Allahabad High Court namely, Sumit Kumar Agarwal v. State of U.P 2004 (1) J. Cr.C. 603, Surya Nath Yadav v. State of U.P. and Ors. 2004 (1) J. Cr.C. 214 and Shayam Lal Jaishwal v. State of U.P. 2003 (2) J. Cr.C. 1010, wherein it has been held that the Magistrate is not required to assess the evidence at the time of disposal of application u/s 156(3) Code of Criminal Procedure., if a prima facie case is made out to show that some offence has been committed by the accused, the learned Magistrate should have passed the order directing the police to investigate the matter. The power of the Magistrate u/s 156(3) Code of Criminal Procedure. are quite different to the powers u/s 200 Code of Criminal Procedure. In these matters a prayer was made that the police may be directed to register and investigate the matter u/s 156(3) Code of Criminal Procedure., but the Magistrate instead of sending the application for investigation registered the complaint u/s 200 Code of Criminal Procedure. and proceeded u/s 200 and 202 Code of Criminal Procedure. as if it was a complaint case. the Allahabad High, Court quashed the order of the Magistrate.

The Learned Counsel for the applicants vehemently argued that the Magistrate has no power to treat the application as a complaint case when it has been filed u/s 156(3) Code of Criminal Procedure. The Magistrate should have forwarded it to the police for investigation or he should have dismissed the same. The Learned Counsel for the applicants further contended that the Magistrate has no jurisdiction to entertain such application as a complaint and to proceed under Chapter XV of Code of Criminal Procedure. The learned A.G.A. refuted the contentions and contended that Section 156 Code of Criminal Procedure. provides as under:

Police officer''s power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the order of a 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.

Section 190 Code of Criminal Procedure. provides as under:

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 make 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.

The combined reading of Section 156(3) and 190 Code of Criminal Procedure. reveals that in the case of complaint regarding the commission of a cognizable offence, the power u/s 156(3) can be invoked by the Magistrate before he takes cognizance of the offence u/s 190(1)(a). 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 Section 156(3). It may further be noted that an order made under Sub-section (3) of Section 156 is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation u/s 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence u/s 156 and ends with a report or chargesheet u/s 173.

It is a well settled position of law 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. It is clear from the phrase used u/s 156(3) Code of Criminal Procedure. "may order" cannot be equated with "must order". It simply gives a discretion to the Magistrate either to proceed u/s 156(3) Code of Criminal Procedure. or to proceed u/s 200 Code of Criminal Procedure. by registering a complaint case before the court. This is clear from the use of the phrase u/s 190 Code of Criminal Procedure. "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. Now, the question arises that what is meant by "taking cognizance of an offence" by a magistrate u/s 190 Code of Criminal Procedure. This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. Whether the magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the magistrate. When on receiving a complaint, the magistrate applies his mind for the purposes of proceeding u/s 200 and 200 under Chapter XIV can be inferred that the magistrate has taken the cognizance of the office not of the accused. If, instead of proceeding under Chapter XV, he opts for investigation by the police u/s 156(3), the action of the magistrate cannot be said to have taken the cognizance of any offence. In view of the above provisions clearly empowers the magistrate either to send the complaint u/s 156(3) to the police for investigation or if the magistrate feels that the matter should not be sent to the police for investigation, he can direct to register the case in his court and can take the evidence under Sections 200 and 202 Code of Criminal Procedure as provided under the Code.

The full bench of the Allahabad High Court in Ram Babu Gupta and Anr. v. State of U.P. and Anr. 2002 (1) C.R.J. 619 has held that two courses are open to the Magistrate. He may either take cognizance u/s 190 or may forward the complaint to the police u/s 156(3) Code of Criminal Procedure. for investigation. Once he takes cognizance he is required to embark upon the procedure embodied in Chapter XV. On the other hand, if on a reading of complaint he finds that the allegations therein clearly disclose commission of a cognizable offence and forwarding of complaint u/s 156(3) Code of Criminal Procedure. to the police for investigation will be conductive to justice and valuable time of Magistrate will be saved in inquiring into the matter which was primary duty of police to investigate, he will be justified in adopting that course as an alternative to take cognizance of the offence himself. An order u/s 156(3) Code of Criminal Procedure. is in the nature of a reminder or intimation to the police to exercise their full powers of investigation u/s 156(1) Code of Criminal Procedure. such an investigation begins with the collection of evidence and ends with a report or charge-sheet u/s 173. It is obvious that power to order investigation u/s 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The power u/s 156(3) is exercisable at a pre-cognizance stage while the other at post-cognizance stage. Once the Magistrate has taken cognizance of the offence, it is not within his competence to revert back to pre-cognizance stage and invoke Section 156(3) Code of Criminal Procedure. A great care is, therefore, to be taken by the Magistrate while deciding the course to be adopted. That discretion has to be exercised cautiously with application of judicial mind and not in a routine and mechanical manner. The full bench of the Allahabad High Court has followed the decision passed in Suresh Chand Jain Vs. State of Madhya Pradesh and Another, .

The Hon''ble Supreme Court has held in Madhu Bala Vs. Suresh Kumar and others, :

From a combined reading of the above provisions it is abundantly clear that when a written complaint disclosing a cognizance offence is made before a Magistrate, he may take cognizance upon the same u/s 190(1)(a) of the Code and proceed with the same in accordance with provisions of Chapter XV. The other option available to the magistrate in such a case is to send the complaint to the appropriate police station u/s 156(3) for investigation. Once such a direction is given under Sub-Section 3 of Section 156 the police is required to investigate into that complaint under Sub-section (1) thereof and on completion of investigation to submit a ''police report'' in accordance with Section 173(2) on which a magistrate may take cognizance u/s 190(1)(b) but not u/s 190(1)(a). Since a complaint filed before the magistrate cannot be a police report in view of the definition of complaint referred to earlier and since the investigation of a ''cognizable case'' by the police u/s 156(1) has to culminate in a police report the complaint as soon as an order u/s 156(3) is passed thereon- transforms itself to a report given in writing within the meaning of Section 154 of the Code, which is known as the F.I.R. As u/s 156(1), the police can only investigate a cognizable case, it has to formally register a case on that report.

In view of the foregoing discussions, I am of the view that if an application is filed before the Magistrate, there are two courses upon the Magistrate; either he may take cognizance u/s 190 Code of Criminal Procedure. or he may forward the application to the police u/s 156(3) Code of Criminal Procedure. for investigation. It is well within the jurisdiction of the Magistrate either to order the police u/s 156(3) Code of Criminal Procedure. to register and investigate the case or to treat the application as complaint case u/s 190 Code of Criminal Procedure. and proceed u/s 200 and 202 Code of Criminal Procedure.

Perusal of the complaint as well as the statements reveals that there was sufficient ground to proceed against the applicants.

Therefore, I am in agreement with the view of the learned Magistrate. I do not find any good ground to in-(sic) with the impugned order.

(sic) he petition devoids of merit and is dismissed accordingly.