AI Structured Summary
Not yet generated for this judgment
Judgment
R.P. Gupta, J.—An interesting legal question mooted in this petition u/s 482 Criminal Procedure Code is whether there are any limitations on power of a Magistrate to send a complaint to police for investigation u/s 156(3) Criminal Procedure Cod when commission of a cognizable oftence is complainea or, Of course offence complained of should be cognizable. The question is whether the Magistrate is required to make some pre-inquiry from complainant or other sources or call for any documents before directing the police to investigate u/s 156(3) Criminal Procedure Code. The petitioners seek quashing of an investigation by police and the proceeding bending before the learned Sub-Divisional Judicial Magistrate, Howrah, in connection with Sankrail P. S. Case No. 231094 dated 4.12.1994 u/s 192/ 379/384/403/506/1208/468/471 of the Indian Penal Code. At the outset it may be stated that a complaint was filed before the S.D.J.M. Howrah. On that complaint the Magistrate passed an order, acting u/s 156(3) Criminal Procedure Code, dated 4.12.94. directing the Area Police Officer to make an investigation into the complaint On that basis an F.I.R was recorded. The contents of the complaint were converted into contents of the F.I.R No, 331/94.
The contention of Mr. Dilip Kumar Dutta the Learned Counsel for the petitioner, is that the police is making investigation against the petitioners under order of the Magistrate based on the aforesaid complaint and in fact the allegations were such which did not disclose offences alleged if the agreement of lease of the vehicle in question between the complainant and the petitioners had been looked into by the Magistrate. The Complainant claimed to be the owner of truck No. WB-23/1616 along with another person named, Rathin Roy. This truck was purchased by the complainant from the accused company M/s. Jayabharat Credit Ltd. under a hire purchase scheme. The accused Nos. 1 and 2 are allegedly responsible for the day to day business of the respondent company M/s. Jayabharat Credit Co. Ltd. The complainant paid Rs. 1,30,000/-to the accused company in various instalments. However, the accused persons, with the help of associates, acting under a criminal conspiracy, came to this truck on 12.8.94. The truck was going from Calcutta with the goods (Bar soap) of Ms Hindusthan Lever Ltd. being transported under the consignment note of M/s. India Transport Organisation. The truck was being drived by Shri Ranjit Jha. The accused persons took forcible possession of the truck and the goods near Alampur. Howrah by pointing of revolver and knives at the Driver. The driver was forced to drive the truck for some distance and then one driver of the accused themselves drove the truck and they fled away with the truck and the goods. The driver and the cleaner were dropped somewhere near by on Highway. The driver then informed the complainant about the effect. It transpires that the accused company had obtained certain documents and papers signed blank from the complainant. The accused persons threatened the complainant not to make any complaint. The complainant approached the accused persons for settlement and to return the good but they did not agree. However, the goods were sent by the accused persons to the Transporter M/s. India Transport Organisation. They kept the truck with them illegally. Hence, the complainant alleged that all the offences were committed by the accused persons.
A grievance was made that the police was not recording their complaint as FIR and not taking any steps although they had approached the police of the area concerned.
On that complaint the S.D.J.M directed the police to investigate u/s 156(3), the complaint was sent to the police and on that basis F.I.R. was recorded.
The petitioners have filed, on record, a copy of the alleged agreement of lease in respect of the truck. It is a Photo-stat copy. Some other documents in the form of letters or notices have also been placed on record of the present petition.
The contention of the Learned Counsel of the petitioners is that there is an Arbitration Agreement about this trunk in case of dispute and that the agreement of lease did not suggest that the complainant had acquired any rights in the truck. It was alleged that in a hire purchase agreement ownership vested in the original seller till the payment of last instalment and then the ownership is transferred. So there could be no transfer of title to purchaser if substantial instalments have not been paid and the complainant was avoiding the payment and the seller in such circumstances had right to seize the truck, as it continued to be the owner. The assertion of the leaned Counsel of the petitioners is baaed on use of words "Hire Purchase" in the complaint. The Learned Counsel brings to my notice a pronouncement of Supreme Court of India cited at AIR 1965 SC 1052 M/s K.I. Johar &.v. Dy. Commercial Tax Officer. It was a case under sales Tax Act wherein it was held that a hire-purchase agreement has two elements : (1) element of bailment and (2) element of sare, in the sense it contemplates an eventual sale.
The arguments of the Learned Counsel for the petitioners are based on many assumptions, one is that before giving direction u/s 156(3) Criminal Procedure Code., the Magistrate is bound to enquire into certain facts alleged in the complaint In fact. the arguments of the teamed Counsel for the petitioners runs even to the extent that the relevant documents which may be in possession of the accused, should be attempted to be obtained and looked into.
It may be proper to look into the provisions of Section 156(3). 200 and 202 Criminal Procedure Code which reads as follows :
Section 156. Police Officer''s power to investigate cognizable case (1) Any officer in change 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 200. Examination of complaint - A Magistrate taking cognizence 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 and the witnesses, and also by the Magistrate.
Provided that, when the complaint is made in writing, the Magistrate need not examine the complaint 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 is the Magistrate makes over the case to another Magistrate u/s 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them.
Postponement of issue of process : (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance of which has been made over to him u/s 192 may. if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :
Provided that no such direction for investigation shall be made -
(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Courts of Session of
(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath u/s 200.
(2) In an enquiry under Sub-Section (1) the Magistrate may. if he thinks fit, take evidence of witnesses on oath :
Provided that if it adequate to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under Sub-Section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this code on an officer to charge of a police station except the power to arrest without warrant.
These provisions reveal that when the complaint suggesting commission of cognizable offence is presented before a Magistrate, who has Jurisdiction to take cognizance, he has two options before him, one is to give direction to the police u/s 156(3) for taking action u/s 156(1) etc. to make investigation. To effect this the police registers a case, investigates and reaches a conclusion and files a report u/s 173 Criminal Procedure Code, whether it be a final report showing that no offence is disclosed or it may be a report for taking cognizance of offences disclosed against the accused and for trial of the accused. Investigation by police is a process of collecting evidences by examining witnesses and scrutinising documents and collecting material articles which may have evidentiary value, and reach conclusions prima facie.
The second source which is open to the Magistrate, to be adopted after the complaint is filed, is to record statement of the complainant u/s 200 Criminal Procedure Code and thereafter, he will have a choice with regard to summoning the accused on to make further inquiry u/s 202 Criminal Procedure Code or to make over the case to some authority or some other Magistrate to inquire u/s 202 Criminal Procedure Code and to report, or he may, if he finds sufficient material, proceed on the basis of statement of the complainant proceed to take actual cognizance of offence disclosed, i.e. direct the summoning of the accused for trial for certain offences. If he sends the case for inquiry to police or any other Magistrate u/s 202 Criminal Procedure Code, he has to consider the report which he receives. He may straight away accept that report and take action accordingly or he may give further opportunity to the complainant to produce further evidence before him and then he may take action.
In this case, the Magistrate has adopted first choice, namely, directing the police to make investigation u/s 156(3) Criminal Procedure Code. The contention of the teamed Counsel for the petitioners that this order was improper without verifying the facts, has not been substantiated by any "precedents". This argument is unsustainable. As soon as the Magistrate starts inquiry. be will start enquiry from the complainant i.e. record his statement. It will amount to proceeding u/s 200 Criminal Procedure Code and if he makes further inquiry it with amount to proceeding u/s 202 Criminal Procedure Code If the contentions of the Learned Counsel for the petitioners were correct, then the Magistrate cannot act u/s 156(3) Criminal Procedure Code without acting under Sections 200 and 202 Criminal Procedure Code This is contrary to these provisions. As soon as the Magistrate chooses to record statement of complainant u/s 200 Criminal Procedure Code he cannot, thereafter, act u/s 156(3) Criminal Procedure Code. He has to proceed with either taking cognizance of actual offence disclosed or make further inquiry u/s 202 Criminal Procedure Code and then to find out whether any offence is disclosed.
The reading of Section 186(3) Criminal Procedure Code does not suggest that the Magistrate, u/s 156(3). can act only in particular circumstances, if certain preconditions exist except that alleged offence should be cognizance. These provisions of Section 156(3) Criminal Procedure Code are a statutory one, empowering the Magistrate to remedy police inaction, for victims of crime. Police inaction is as much harmful as police excess. The discretion is with the magistrate whether to resort to this provisions or proceed u/s 200 or 202 Criminal Procedure Code The allegations in the petition of complaint in our case did disclose cognizable offences committed. If the same are accepted to be so on the perusal of complaint, the Magistrate was justified in taking action u/s 156(3) Criminal Procedure. Code as police investigation helps in collection of evidence. But even if all the details are not disclosed in a complaint and some cognizable offence is stated to have been omitted, the Magistrate can directed the police to make investigation u/s 156(3) Criminal Procedure Code. The Magistrate is not required, at this stage to send for documents from suspected accused or from the petitioner complainant or from other persons involved. The only scrutiny required is if the complaint, by its contents and allegations, discloses a cognizable offence. The Learned Counsel for the petitioner could not suggest under what other pre-conditions or circumstances, the Magistrate should or should not exercise discretion u/s 156(3) Criminal Procedure Code.
The fact that investigation is being made by the police does not mean that Police will reach a particular conclusion. They will reach a conclusion which is revealed in the investigation and then they will proceed to file a report u/s 173 Criminal Procedure Code which may be either a final report or a report for taking cognizance. thus as, I find no illegality in the order of the Magistrate nor any illegality in this process of investigation which is required to be gone into by the police under the order of the Magistrate. This revision has no force and the same is dismissed. A copy of the order shall be sent immediately to the Magistrate concerned. The investigation should be completed with expedition.