Bal Kishan @ Bal Kishan Sewak vs The State of Delhi and Others

Shiv Narayan Dhingra, J.—By this writ petition, the petitioner has prayed for quashing of order of learned Metropolitan Magistrate passed

on 25th February, 2006 which reads as under:

NIRMALA DEVI V. BAL KISHAN SEWAK

CC No. 9571/1

25.02.2006

Pr : Complainant in person

Ld. APP for the State

Reply has filed by Ld. APP for the State along with certified copy of order dated 17.9.2005 of Hon''ble High Court of Delhi.

I have gone through the complaint and the reply the complainant has alleged the accused Bal Kishan Sewak had raped her on various occasions

and on various dates. In the complaint she has narrated all the circumstances. In the reply it is stated that on the complaint of complainant some

inquiries were made by DCP Public Grievances Cell and it was found that complainant herself was involved in a case. She has been defended by

accused Bal Kishan Sewak as her advocate. During the inquiry, it was revealed that allegations are false. In view of complaint filed, it discloses

commission of cognizable offences and requires through investigation. Therefore, SHO concerned is directed to register FIR and carry out the

investigation. Put up on 29.4.2006 for status report.

Sd/-

MM, New Delhi/25.2.2006

A little background would be necessary to consider the issue raised in this writ petition. Complainant Smt. Nirmala Devi/respondent No. 2 had

filed a writ petition before this Court seeking direction for registration of case on the basis of her complaint. During pendency of her Criminal Writ

Petition No. 264/05, this Court had called for Status Report from the police. SHO of the area sent a Status Report that the complaint of Nirmala

Devi was enquired into by ACP Public Grievances Cell and it was found that she was arrested in case FIR No. 277/1997. She engaged Mr. Bal

Kishan Sewak, the present petitioner, as her counsel to defend her and used to visit his chamber and house. Bal Kishan Sewak was also President

of a Political Party viz. United Citizen Party. Nirmala Devi lodged a complaint of her having been raped and sexually exploited by Bal Kishan

Sewak. The complaint was enquired into by ACP Public Grievances Cell. It was opined by ACP Public Grievances Cell that the complaint was

lodged by Mrs. Nirmala Devi at the behest of Madan Lal Azad, Joint Secretary of the party and it was a baseless complaint. In subsequent Status

Report SHO reported that Nirmala Devi had made complaints about her sexual exploitation and rape by Bal Kishan Sewak, Advocate to various

authorities and an enquiry into the complaint was conducted and was found that her allegations could not be substantiated.

After above report, the counsel for Nirmala Devi withdrew the writ petition No. 264/2005 on 19th September, 2005 with liberty to seek

appropriate remedy available to him under law. After withdrawing this writ petition Nirmala Devi filed the criminal complaint before the learned

Metropolitan Magistrate and aforesaid order was passed by learned Metropolitan Magistrate on the criminal complaint of Nirmala Devi.

The validity of order is challenged on the ground that no such order could have been passed for registration of FIR because the order resulted in

double jeopardy since the investigation has already been carried out into the allegations made by Nirmala Devi, once, on a complaint made to

CAW Cell and also during the pendency of the writ petition when Status Report was called. The other ground for challenge is that the learned

Metropolitan Magistrate was not competent to pass the impugned order since the offence complained of was triable exclusively by the Court of

Sessions. The trial court after receipt of Status Report should have followed the procedure as contained in Section 202 Cr.P.C. and could not

have passed the order of registration of FIR and investigation. It is also submitted that the respondent Nimala Devi had filed the complaint to

extort/blackmail the petitioner and his family and withheld the true facts. She was a habitual offender and had made false and defamatory statement

against the wife of the petitioner.

The counsel for the respondent/State took the objection that writ petition was not maintainable for challenging the order of learned Metropolitan

Magistrate. The petitioner should have availed the remedy available to him under Cr.P.C. The other objection raised is that this Court cannot take

cognizance of any pre-FIR investigation or enquiry done by the police on the complaint of the complainant. An enquiry done by the police on High

Court calling Status Report, cannot be considered as investigation. The investigation can take place only if, an FIR is registered.

Reliance is placed by the petitioner on 2001 AD (SC) 273 Rosy and Anr. v. State of Kerala and Ors. wherein Supreme Court observed as

under:

Hence what emerges from the above discussion is:

I.(a) u/s 200 Magistrate has jurisdiction to take cognizance of an offence on the complaint after examining upon oath the complainant and the

witnesses present:

(b) When the complaint is made in writing by a public servant acting or purporting to act in discharge of his official duties, the Magistrate need not

examine the complainant and the witnesses;

(c) In such case Court may issue process or dismiss the complaint.

II.(a) The Magistrate instead of following the procedure stated above may, if he thinks fit, postpone the issue of process and hold inquiry for the

purpose of deciding whether or not there is sufficient ground for proceeding against the person accused. Such inquiry can be held by him or by the

police officer or by other person authorized by him.

(b) However, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, the direction of

investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide to examine the

witnesses on oath. At that stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and

examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it

would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the

witnesses whose list is required to be filed by complainant u/s 204(2) before issuance of the process.

(c) The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should

raise objection at the earliest stage and he should not point out how prejudice is caused or is likely to be caused by not following the proviso. If he

fails to raise such objection at the earliest stage, he is precluded from raising such objection later.

It is argued by the counsel that in view of above decision of Supreme Court, since the offence complained of was triable exclusively by the

Court of Sessions, the learned Metropolitan Magistrate could not have given directions to police for investigation and he was supposed to hold

enquiry himself. It is submitted that order dated 25.2.2006 of the learned Metropolitan Magistrate was, Therefore, bad.

A perusal of the judgment relied upon by the petitioner would show that the Supreme Court was considering scope of Section 202 Cr.P.C. and

had not considered the comparative scope of Section 156(3) and Chapter 15 of Cr.P.C. The Court had only considered the procedure to be

adopted by a Metropolitan Magistrate where cognizance is taken by the Metropolitan Magistrate u/s 200 Cr.P.C. and Metropolitan Magistrate

conducts an enquiry. The question - whether a Magistrate can order investigation u/s 156(3) Cr.P.C. in respect of an offence triable exclusively by

the Court of Sessions - was specifically considered by Supreme Court in Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana

Reddy and Others, wherein the specific question raised by Supreme Court is as under:

Whether in view of Clause (a) of first proviso to Section 202(1) of Code of Cr.P.C. 1973, a magistrate, who receives a complaint disclosing

offence exclusively triable by the Court of Sessions, is debarred from sending the same to the police for investigation u/s 156(3) of the Code is the

short question that falls to be determined in this appeal by special leave.

The Supreme Court after framing above question in the very first paragraph of judgment dismissed the appeal answering the questions in negative

i.e. Magistrate was not debarred from sending the complaint to the police for investigation u/s 156(3) of the Code. In this case, the Supreme Court

had compared the provisions of Section 156, Section 200 and Section 202 of the Code and after comparing the provisions codes Supreme Court

observed as under:

This raises the incidental question: What is meant by ''taking cognizance of an offence'' by the Magistrate within the contemplation of Section

190 - 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. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of

Section 190(1). 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. Broadly

speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding u/s 200 and the succeeding sections in

Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of

proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant

for the purpose of investigation, or ordering investigation by the police u/s 156(3), he cannot be said to have taken cognizance of any offence.

This position of law has been explained in several cases by this Court, the latest being Nirmaljit Singh Hoon Vs. The State of West Bengal and

Another, .

The position under the Code of 1898 with regard to the powers of a Magistrate having jurisdiction to send a complaint disclosing a cognizable

offence ''whether or not triable exclusively by the Court of Sessions'' to the police for investigation u/s 153(3), remains unchanged under the Code

of 1973. The distinction between a police investigation ordered u/s 156(3) and the one directed u/s 202, has also been maintained under the new

Code: but a rider has been clamped by the 1st Proviso to Section 202(1) that if it appears to the Magistrate that an offence triable exclusively by

the Court of Session has been committed, he shall not make any direction for investigation.

Section 156(3) occurs in Chapter XII, under the caption: ''Information to the Police and their powers to investigate''; while Section 202 is in

Chapter XV which bears the heading ''Of complaints to Magistrate''. The power to order police 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 first is exercisable at the

pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a 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 be noted further 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 charge-sheet

u/s 173. On the other hand, Section 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 u/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 u/s 202 is not to initiate a fresh case on police report but to assist

the Magistrate in completing proceedings already instituted upon a complaint before him.

This being the position Section 202(1), 1st Proviso was not attracted. Indeed, it is not necessary for the decision of this case to express any

final opinion on the ambit and scope of the 1st Proviso to Section 202(1) of the Code of 1973. Suffice it to say, the stage at which Section 202

could become operative was never reached in this case. We have Therefore, in keeping with the well established practice of the Court, decided

only that much which was essential for the disposal of this appeal, and no more.

The above judgment of Supreme Court (delivered by Full Bench) was not overruled by the latter judgment of Division Bench of the Supreme

Court cited by the petitioner, neither the earlier judgment was distinguished. In 2000 (I) AD SC 273 Supreme Court only considered the scope of

Chapter 15 of Cr.P.C. and had not considered the scope of Section 156(3) of Cr.P.C. I, Therefore, consider that Magistrate has power to pass

an order u/s 156(3) even if, the complaint discloses offence triable exclusively by the Sessions Court. The order of the learned Metropolitan

Magistrate is, Therefore, not without jurisdiction.

The question of double jeopardy does not arise in this case. Provisions of double jeopardy are contained in Section 300 Cr.P.C. and it is

provided that a person once been tried by a competent Court for an offence and convicted or acquitted of such an offence shall not be liable to be

tried again for the same offence. It is not the case of the petitioner that he was tried by a Court of competent jurisdiction for the offence reported in

the complaint of the complainant and convicted or acquitted. Calling of Status Report does not amount to trial of the petitioner. Therefore, the plea

taken by the petitioner of double jeopardy also must fail.

While exercising powers u/s 482 Cr.P.C. the Court has not to consider the improbability of conviction at the end of trial neither the mala-fides

of the complainant are relevant. Supreme Court in 2002 (I) AD (SC) 217 State of Karnataka v. M. Devendrappa and Anr. observed as under: It

would not be proper for the High Court to analyze the case of the complainant in the light of all probabilities in order to determine whether a

conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to

assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the

inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or

oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open

to the High Court to quash the same in exercise of the inherent powers u/s 482 of the Code. It is not, however, necessary that there should be

meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a

whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the

offence or offences are disclosed and there is no material to show that the complaint if mala fide, frivolous or vexatious, in that event there would

be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala

fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which

decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis

for quashing the proceeding.

I consider that this writ petition is otherwise also not maintainable, it having been filed against order of Metropolitan Magistrate. Order of a

Metropolitan Magistrate passed in exercise of jurisdiction u/s 156(3) Cr.P.C. cannot be challenged by way of writ petition. Remedy of Article 226

of the Constitution of India is not meant for challenging juridical orders.

I find no force in the writ petition. The writ petition is hereby dismissed.