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Judgment
Amar Saran, J.—Heard learned Counsel for the applicants, learned Counsel appearing for opposite party No. 2 and learned Additional Government Advocate representing the State.
This application has been filed for challenging an order dated 28.2.2005 passed by the Chief Judicial Magistrate, Court No. 17, Deoria whereby the learned Magistrate took cognizance against the applicants in case No. 640 of 2005, under Sections 420 467 468 471 IPC "police station Kotwali Deoria, district Deoria and for quashing the criminal proceedings in pursuance thereof.
Factual Background
2.1 The background facts of this case which initially commenced on an application u/s 156(3) of the Code of Criminal Procedure (hereinafter referred to as the Code) dated 24.7.2001 filed by opposite party No. 2 Vindhyachal Prasad Gupta were that he had jointly purchased a Jeep No. U.P 52-A 5639 with Megh Nath Gupta, applicant No. 1 on 13.1.1995. The said vehicle used to be parked in front of his house. On 2.2.1999 at 8.30 P.M. the applicant No. 1 Megh Nath Gupta, his brother applicant Mukhtyar and son Vinod alias Dabba decamped with the said vehicle from the front of the house of opposite party No. 2. Opposite party No. 2 gave repeated information about this incident to the police authorities after 2.2.1999. However only on 14.7.2001 he was successful in getting the said vehicle apprehended by the police and it was kept at police station Kotwaii Deoria. As the police still did not lodge his report, he filed the aforesaid application dated 24.7.2001 wherein it was also alleged that he was apprehensive that Megh Nath Gupta would get the papers changed and have the Jeep transferred in his solitary name.
2.2 On the said application an order was passed on 18.8.2001 by the Chief Judicial Magistrate, Deoria for registration of the case. After investigation, a final report was submitted on 20.7.2002 by the police of police station Kotwaii, Deoria that on the basis of the record and order of the A.R.T.O. Gorakhpur dated 18.1.2002 no offence under Sections 420 468 471 IPC was made out.
2.3 Opposite party No. 2 filed a protest petition against the said final report wherein he reiterated the facts of the case mentioned in the application u/s 156(3) of the Code. He also pointed out in the protest petition that he had learnt that Megh Nath Gupta had forged his signature and shown a sale of the Jeep in question in favour of Saraswati Devi and on the basis of the forged documents he had even succeeded in getting the vehicle released in her favour. It was further mentioned that even prior to the lodging of the FIR on the basis of the order of the Chief Judicial Magistrate dated 18.8.2001, he had moved an application before the ARTO Deoria that the vehicle should not be transferred without his consent to another party. After the order of the A.R.T.O. Gorakhpur dated 3.2.2000 transferring the vehicle in favour of Smt. Saraswati Devi, and rejecting the O.P. No. 2''s objections on 18.1.02 he had filed an appeal before the Deputy Transport Commissioner, Varanasi Division to get the handwriting of opposite party No. 2 analysed. The Deputy Transport Commissioner by his order dated 2.7.02 had found that the O.P. 2''s signature was forged and had set aside the sale letter in favour of Saraswati Devi and had again entered the names of Vindhyachal Prasad Gupta, opposite party No. 2 and Megh Nath Gupta, applicant No. 1 as owners of the vehicle. However, the police took no action on this fraud in spite of the said order.
2.4 However the Chief Judicial Magistrate passed an order on 7.9.2002 accepting the final report submitted by the police, and m rejecting the protest petition by the O.P. No. 2 observing that on a perusal of the case diary which referred to the order of the ARTO, Gorakhpur dated 18.1.2002 wherein it was mentioned that the ARTO Gorakhpur had got some enquiry conducted by subordinate officials about the objections of opposite party No. 2 dated 25.9.2001 and 27.9.2001 and had directed the presence of opposite party No. 2 and Saraswati Devi in his office on 30.1.2001 and 18.1.2002. But they did not appear. The A.R.T.O. Gorakhpur had found that the signatures with photographs of Vindhachal Gupta and Megh Nath Gupta were present on the sale letter, hence the A.R.T.O. Gorakhpur had considered the sale to be valid and rejected the objections of the opposite party No. 2.
2.5 It is significant to note here that the said order of the CJM dated 7.9.02 contained no reference of the orders of the appellate authority, i.e. Deputy Transport Commissioner who had allowed the appeal against the order of the ARTO Gorakhpur on 2.7.02, and had directed removal of the name of Smt. Saraswati Devi as owner of the vehicle, and showing the O.P. No. 2 Vindhyachal Gupta and Megh Nath Gupta as the owners of the vehicle.
Learned Counsel for the complainant has even drawn my attention to the fact that the Deputy Transport Commissioner, Varanasi Division in the order dated 2.7.2002 has noted that the signatures of Megh Nath Gupta and Vindhyachal Gupta in the two forms, i.e. Forms Nos. 29 and 30 differ. He also mentioned in the order that the ARTO Gorakhpur got three specimen signatures of Vindhyachal Gupta taken, which in the Deputy Transport Commissioner''s view were different from the signatures on the alleged sale letter and relevant documents.
Thereafter, it appears that opposite party No. 2 moved a complaint dated 19.10.2002 before the Chief Judicial Magistrate, Deoria wherein he alleged that an offence under Sections 420 468 471 IPC was disclosed on the basis that earlier the final report had been I submitted by the police because the ARTO, Gorakhpur in his order dated 18.1.2002 had upheld the transfer of the vehicle to Saraswati Devi, but the said transfer was set aside by the Deputy Transport Commissioner, Varanasi Division in an appeal by orders dated 2.7.02 and also an order 1.1.2003. In the latter order the Deputy Transport Commissioner observed that the original order transferring the vehicle on 3.2.2000 in favour of Saraswati Devi and subsequent order of the ARTO dated 18.1.2002 rejecting the O.P. No. 2''s objections were illegal and had set them aside.
In these circumstances, the Chief Judicial Magistrate passed an order for further investigation of the case in exercise of powers u/s 173(8) of the Code by an order dated 18.2.2003. After further investigation the police submitted a charge sheet whereupon the order taking cognizance dated 28.2.2005 was passed.
Contentions of Applicant''s Counsel
5.1 Learned Counsel for the applicants argues that the order dated 18.2.2003 passed by the Chief Judicial Magistrate, Deoria for further investigation was not permissible in exercise of powers u/s 173(8) of the Code in view of the decision of the Apex Court in Randhir Singh Rana Vs. The State Being the Delhi Administration, The further investigation and subsequent charge sheet and thereafter the order taking cognizance passed by the Magistrate dated 28.2.05 were therefore illegal. The order taking cognizance on 28.2.05 on the subsequent charge sheet in pursuance of the order for further investigation also resulted in a review of the earlier order of the Magistrate dated 7.9.2002 accepting the final report earlier submitted by the police on 20.7.2002 and was in the teeth of Section 362 of the Code. The order of the Appellate Authority, the Deputy Transport Commissioner, Varanasi setting aside the order of the ARTO Gorakhpur transferring the vehicle to Smt. Saraswati Devi had been stayed in C.M.W.P. No. 32900 of 2002 and the dispute between the parties was of civil nature in which criminal proceedings ought not to have been initiated. The order of cognizance dated 28.2.05 on the subsequent charge sheet being a cryptic order which gave no reasons could not be legally sustained.
No statutory bar on Magistrate directing further investigation on a complaint after acceptance of a final report, exceptions mentioned.
Legal position:
Apart from the circumstance that the order dated 18.2.03 directing further investigation on the O.P. No. 2''s complaint dated 19.10.02 was not challenged before a superior Court and had been allowed to become final, in my considered view there is no absolute bar on a Magistrate entertaining a complaint after earlier accepting a final report if some new facts which were earlier not brought to the notice or were ignored by the learned Magistrate are now brought to his notice which suggest commission of an offence.
In Mahesh Chand Vs. B. Janardhan Reddy and Another, it has been observed that simply because a final report has been submitted by the police after investigation and accepted by the Magistrate would not bar a complainant from filing a second complaint, although the circumstances when a second complaint may be entertained need to be considered. Thus in paragraph 12 of the aforesaid law report it has been stated:
There cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition. but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised.
(Emphasis added)
Some of the exceptional circumstances after dismissal of an earlier complaint u/s 203 of the Code or after accepting the final report submitted by the police laid down in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, are when an earlier complaint was dismissed on an incomplete perusal of the record, or some new facts are brought to the notice of the Court or if it was dismissed without assigning reasons. Paragraph 19 of Mahesh Chand''s case enumerates some of these exceptional circumstances as follows:
Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate u/s 204, Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Taluqdar''s case second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not.
(Emphasis added).
Considerations on merit
The new facts which were highlighted in the complaint dated 19.10.02 and which formed the basis for the Magistrate''s order 18.2.03 directing further investigation were the orders of the Appellate Authority, the Deputy Transport Commissioner, Varanasi Division dated 2.7.02 and 1.1.2003 whereby he had set aside the order of the A.R.T.O. Gorakhpur which had earlier been ignored by the Magistrate when he passed the order dated 7.9.2002 accepting the final report dated 20.7.02 and were now specifically brought to the notice of the Court.
It is noteworthy that the informant O.P. No. 2 had mentioned in his initial application u/s 156(3) Cr.P.C. on 14.7.2001 that he was apprehensive that his joint purchaser of the vehicle applicant Megh Nath Gupta might try to get the informant''s name eliminated from the vehicle registration papers and to show himself as the sole owner and to deprive him of his property after he had removed the vehicle from the front of the informant''s premises on 13.1.95. This apprehension appears to have been borne out to some extent by the subsequent allegations in the complaint that Megh Nath fraudulently got the vehicle transferred in the name of Smt. Saraswati Devi through the instrumentality of another ARTO at Gorakhpur even though the vehicle was registered at Deoria, by submitting applications in Forms 29 and 30 applications for the transfer of the vehicle, bearing the informant''s signatures which were forged. There was even a finding of forgery by the Appellate Authority, the Deputy Transport Commissioner Varanasi in his order dated 27.02 who had compared the signatures land set aside the order of the ARTO Gorakhpur transferring the vehicle? to Smt. Saraswati Devi. The other suspicious circumstances of the order transferring the vehicle to Saraswati Devi noted in the order of the Appellate authority dated 2.7.02 were the failure of the ARTO Gorakhpur to send information of the transfer to the original ARTO at Deoria which is mandated under the Motor Vehicle''s Act and his ignoring of the the informant''s application dated 4.2.99 to the ARTO Deoria not to permit transfer of the vehicle without his consent. The Appellate Authority (Deputy Transport Commissioner, Varanasi) had also by his order dated 2.7.02 compared the signature of the complainant on the sale papers (Forms 29 and 30) with his admitted specimen signatures and found them to differ. (It is noteworthy as the learned Counsel for the complainant has pointed that the police also when they eventually submitted the charge sheet consequent to the order for further investigation on 28.1.05 noted that the admitted specimen signatures of the complainant Vindhyachal Gupta were taken and compared by a hand writing expert with the signatures on the sale documents, and they were found to be different, hence the said signatures on the sale documents were forged). In view of this factual position of bringing some facts which had escaped the notice of the Magistrate when he earlier accepted the final report, it could be said that the earlier order was passed on an incomplete understanding of the facts involved and hence it was a proper case for entertainment of the fresh complaint on 18.2.2003 and for issuance of a direction for further investigation.
Analysis of ''Randhir Singh Rana''s'' case in the light of Supreme Court decisions in ''Bhaowan Samardha Sreepada'' and other Supreme Court decisions. No fetter on directions for further Investigation u/s 173(8). Does not amount to review of earlier order accepting final report
The learned Counsel for the applicant has placed strong reliance on the case of Randhir Singh Rana Vs. The State Being the Delhi Administration, for the proposition that once a final report has been accepted by the Magistrate, the Magistrate loses all powers for issuing directions for further investigation of the case u/s 173(8) Cr.P.C., (although it is conceded that the police, if it was satisfied could have investigated the case suo motu). A discussion of Randhir Singh Rana''s case on this point is in order. Specifically paragraph 13 of Randhir Singh Rana''s case where the Court has touched on this "grey area" is extracted below:
The aforesaid being the legal position as discernible from the various decisions of this Court and some of the High Courts, we would agree, as presently advised, with Shri Vasdev that within the grey area to which we have referred the Magistrate of his own cannot order for further investigation. As in the present case the learned Magistrate had done so, be set aside his order and direct him to dispose of the case either by framing the charge or discharge the accused on the basis of materials already on record. This will be subject to the caveat that even if the order be of discharge, further investigation by the police on its own would be permissible, which could even end in submission of either fresh charge sheet.
It may be noted that a somewhat contrary view to the decision in Randhir Singh Rana''s case appears to have been taken by the Apex Court in Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs. State of Andhra Pradesh and Others, Union Public Service Commission Vs. S. Papaiah and others, Kashmeri Devi Vs. Delhi Administration and Another, and in Hemant Dhasmane Vs. Central Bureau of Investigation and Another,
In Bhagwan Samardh''s case where a god man was claiming divine powers for healing an ailing child for which he took money from the complainant, but the child died. The police however submitted a final closure report, that there was only a mistake of fact but the Court directed re-investigation into the matter and observed that there was no fetter on the police investigating a case after submission of a final report, nor is there any inhibition on the Magistrate issuing a direction for further investigation. There is even no requirement on the Magistrate to hear the accused before issuing such a direction. Paragraphs 10 and 11 of the aforesaid law report may be usefully read:
Power of the police to conduct further investigation, after laying final report, is recognised u/s 173(8) of the Code of Criminal Procedure. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang Vs. State (Delhi Administration), . The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the Court and seek formal permission to make further investigation.
In such a situation the power of the Court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the Court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we would not burden the Magistrate with P such an obligation.
(Emphasis added)
Again in Union Public Service Commission Vs. S. Papaiah and others, which was a case where a candidate in the UPSC examinations in collusion with the centre supervisor engaged in unfair means by writing the examination paper outside the examination hall. However the CBI had submitted a final report, which was accepted by the Magistrate. The UPSC pointed out six flaws in the CBI''s investigation procedure, and the CBI also failed to inform the Court about the UPSC''s objections. However the Magistrate and later the Sessions Judge before whom applications for fresh investigation and a Criminal Revision were filed, held that as the order had become final, no review lay against an order earlier accepting the final report. This was challenged in the Apex Court, which considered the wide amplitude of powers u/s 173(8) Cr.P.C and the right of the complainant to file such an application. It was also clarified in the said decision that the subsequent order for re-investigation of the case would not amount to review of its earlier order by the Magistrate. Paragraph 13 of UPSC v. S. Papaiah''s case is important and is extracted below:
The appellant brought the contents of its communication dated January 23, 1995 to the notice of the learned Metropolitan Magistrate through its Misc. Petition No. 2040 of 1995 seeking "reinvestigation" but the learned Magistrate, rejected the petition vide order dated November 4, 1995 observing that "rightly or wrongly that Court had passed an order and it had no power to review the earlier order". Here again the learned Magistrate fell into an error. He was not required to "review" his order. He could have ordered "further investigation" into the case. It appears that the learned Metropolitan Magistrate overlooked the provisions of Section 173(8) which have been enacted to take care of such like situations also. That provision reads: "173(8) - Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2)".
The Magistrate could, thus in exercise of the powers u/s 173(8). Cr.P.C. direct the CBI to "further investigate" the case and collect further evidence keeping in view of the objections raised by the appellant to the investigation and the ''new'' report to be submitted by the investigating officer would be governed by Sub-sections (2) to (6) of Section 173, Cr.P.C. The learned Magistrate, failed to exercise the jurisdiction vested in him by law and his order dated November 4, 1995 cannot be sustained.
(Emphasis added)
In Hemant Dhasmana''s case the Apex Court has observed that even if Section 173(8) of the Code does not confer a specific power on the Court concerned to order further investigation, there is no fetter on the Magistrate "triggering into motion" such investigation. If such a power has been exercised then the Revisional Court should refrain from interfering with such a direction as further investigation (whether it is based on the earlier material or on fresh material) will only help in clarifying the true facts of the case as to the guilt or innocence of the accused and would serve the ends of justice. Paragraph 16 of Hemant Dhasmana reads as follows:
Although the said sub-section does not, in specific, terms, mention about the powers of the Court to order further investigation the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the Court. When any such order is passed by a Court which has the jurisdiction to do so it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. After the further investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back to that track. If they come to the same conclusion it is of added advantage to the persons against whom the allegations were made, and if'' the allegations are found false again the complainant would be in trouble.
(Emphasis added)
As there were conflicting single judge decisions based on Randhir Singh Rana''s view (supra) that after submission of the report u/s 173(2) Cr.P.C. the Magistrate could not direct further investigation on his own u/s 173(8) of the Code and in other single judge decisions based on Bhagwan Samardh''s case (supra), and other cases cited above taking the view that there was no Inhibition on the power of the Magistrate to issue directions for further investigation even after receipt of a report from the police, the matter was examined by a Full Bench of the Delhi High Court in Rajneesh Kumar Singhal Vs. The State (National Capital Territory of Delhi), which has held that divesting the Magistrate of such a power to order further investigation u/s 173(8) of the Code after submission of a police report u/s 173(2) would interfere with the powers of the Court to get to the bottom of the case, and the Court is not powerless to order further investigation when the police has acted in a partisan manner as procedural laws are meant for advancing and not for stifling the administration of justice. The later two judge decisions in Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs. State of Andhra Pradesh and Others, and Union Public Service Commission Vs. S. Papaiah and others, and an earlier decision in Kashmeri Devi Vs. Delhi Administration and Another, were preferred to the view taken in Randhir Singh Rana''s case, although the latter case was also sought to be distinguished on the ground that what had been prohibited in Randhir Singh Rana was a suo motu order of the Magistrate directing further investigation, and not an order when an application for this purpose had been moved by the informant or the investigating officer for further investigation after submission of the police report u/s 173(2) of the Code. Paragraphs 14 and 15 of the Delhi High Court Full Bench decision are being cited hereinafter:
Thus, it is obvious that the Supreme Court specifically acknowledged the power of the Magistrate u/s 173(8) of the Code to direct further investigation even after filing of a charge sheet.
In view of the aforesaid discussion we hold that the Magistrate is empowered to direct the police to further investigate the matter after the filing of the challan before it and even after taking cognizance of the offence and such a direction on the analogy of the decision of the Supreme Court in Union Public Service Commission Vs. S. Papaiah and others, will not amount to review of its earlier order whereby cognizance of the offence was taken. Before, however, parting with this point we would like to refer to the decisions cited by the learned senior counsel for the petitioner. He first relied upon a two Judge Bench decision of the Supreme Court in Randhir Singh Rana Vs. The State Being the Delhi Administration, decided on December 20, 1996, which was also noted in the order of reference of the learned single Judge. In that case it was held that the Magistrate acting suo motu has no power to order further investigation after taking cognizance of the offence. This case, however, does not deal with a situation where an application is made to the Magistrate for directing further investigation of the matter by the complainant or the police. Besides, as seen above, in at least three decisions of the Supreme Court, out of which two are decisions which were rendered after the decision in Randhir Singh Rana''s case (supra), the power of the trial Court, before whom police reports were filed, to direct the police to carry out further investigation have been recognised. There is no provision in the Code which bars the Magistrate before whom the report u/s 173(2) of the Code is filed to direct further investigation of the offence even in a case where cognizance has already been taken. All procedural laws are meant to do justice and not to stifle the same. In a given situation where a Magistrate finds that the matter requires further investigation in view of the partisan attitude of the police there can be no bar to his directing the investigating agency to conduct further investigation in the case. The Magistrate by giving such a direction does not trench upon the jurisdiction of the police who are empowered to further investigate the matter. The Magistrate simply by asking the police to further investigate the matter in a sense is directing it to exercise the jurisdiction which has been conferred on the police u/s 173(8) of the Code. Restricting the powers of the Magistrate will adversely affect the administration of justice. Magistracy cannot be made so powerless that it becomes incapable of correcting a wrong and advancing the cause of justice.
(Emphasis added)
On a similar reference to a division bench of the Kerala High Court in Shaji Vs. State of Kerala, whilst considering a similar conflict of two single judge decisions of the Kerala High Court based on the apparently conflicting views taken in Randhir Singh Rana and Bhagwan Samardha''s cases (supra) has signalled its preference for the view taken in Bhagwan Samardha''s case and has also approved of the decision of the Full Bench of the Delhi High Court in Rajneesh Kumar Singhal''s case (supra) and held that even after cognizance there is no bar on a Magistrate ordering further investigation u/s 173(8) of the Code.
A Full Bench Decision of the Allahabad High Court in Ganga Saran v. Civil Judge 1991 (9) LCD 149 has looked at this dilemma faced by the High Court when there is a conflict of two co-equal decisions of the Apex Court, which cannot possibly be reconciled. In such circumstances the Allahabad High Court Full Bench relying on a Punjab and Haryana High Court Full Bench in the case of Indo Swiss Time Limited Vs. Umrao and Others, and a Bombay High Court Full Bench in the case of The Special Land Acquisition Officer (I), Bombay and Another Vs. The Municipal Corporation of Greater Bombay, has held that it is not even necessary in such cases for the High Court to follow the later view, but this Court is entitled to decide which of the two views states the law more accurately and elaborately.
In this view of the matter after considering the aforesaid authorities in my opinion the view taken by the Apex Court in Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs. State of Andhra Pradesh and Others, Union Public Service Commission Vs. S. Papaiah and others, Kashmeri Devi Vs. Delhi Administration and Another, and in Hemant Dhasmane Vs. Central Bureau of Investigation and Another, and and the Delhi High Court Full Bench in Rajneesh Kumar Singhal Vs. The State (National Capital Territory of Delhi), and the Kerala High Court decision in Shaji Vs. State of Kerala, permitting a direction by the Magistrate for further investigation even after submission of a charge sheet or final report closing the case, can be said to be stating the law more accurately and elaborately than the view taken in Randhir Singh Rana Vs. The State Being the Delhi Administration, which denies such a power to the Magistrate, even when new facts not earlier noticed are brought to the notice of the Magistrate, but who would be powerless to order further investigation on this view simply because he has earlier accepted a final report on an incomplete presentation or understanding of the facts, which may Magistrate''s Powers of directing investigation after cognizance also u/s 202(1) Cr.P.C. and before cognizance u/s 156(3) Cr.P.C. After cognisance defect in investigation if any, cured unless miscarriage of justice
The apex Court has observed in Suresh Chand Jain Vs. State of Madhya Pradesh and Another, that a Magistrate has limited powers of directing investigation even after taking cognizance u/s 202(1) Cr.P.C., and he may postpone the issue of process against the accused, and may either inquire into the case himself or direct investigation by a police officer for deciding whether there is sufficient ground for proceeding after taking cognisance on a complaint. Of course this direction for investigation is subject to the proviso in to Section 202(1) Cr.P.C. that he can issue no such direction for further investigation if (a) it appears to the Magistrate that the offence complained of is triable by the Court of Session, or (b) where the complaint has not been made by a Court, unless the witness has been examined on oath. The Magistrate also has wide powers of directing investigation u/s 156(3) Cr.P.C., if he does not examine the complainant u/s 200 Cr.P.C., i.e., prior to taking cognizance.
The relevant lines from paragraphs 9 and 10 of Suresh Chand Jain''s case read as follows:
But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code would convince that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient around for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. "or direct an investigation to be made by a police officer or by such other persons as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding." This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him. 10. The position is thus clear. Any judicial Magistrate, before, taking cognizance of the offence, can order investigation u/s 156(3) of the Code. If he does so he is not to examine the complainant on oath because he was not taking cognizance of any offence therein.
(Emphasis supplied).
Thus in the present case in case cognizance has been taken and the complainant has already been examined on oath u/s 200 Cr.P.C. (though this matter is not clarified in the Magistrate''s order date: 18.2.03 or anywhere in the application u/s 482 Cr.P.C.), then the order directing investigation could be considered a valid order also u/s 202(1) Cr.P.C. as observed in Suresh Chand Jain''s case, as clearly the offences for which the applicant has been charge sheeted, viz. 420, 467, 468 and 471 IPC are all offences triable by a Magistrate, and not exclusively triable by a Court of Session and therefore the restriction on a direction for investigation under proviso (a) to Section 202(1) of the Code does not apply to such offences.
In the event that cognizance has not yet been taken, (and the complainant has not yet been examined on oath), then the order directing further investigation could be upheld as an order passed in exercise of powers u/s 156(3) Cr.P.C. As also held by the Apex Court in Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, , at the pre-cognizance stage, before examination of the complainant by the Magistrate u/s 200 of the Code, there is no fetter on the Magistrate issuing directions for investigation in exercise of powers u/s 156(3) of the Code.
The wide amplitude of powers of the Magistrate for directing investigation u/s 156(3) Cr.P.C. at the instance of a complainant in whose case the police is not proceeding or taking appropriate action or has even submitted a final report has again been emphasized in a very recent decision of the Apex Court in Sakri Vasu v. State of U.P. and Ors. (60) 2008 ACC 689. This decision emphasizes in paragraph 24 that even though the power u/s 156(3) Cr.P.C is very briefly worded, and it is not expressly mentioned therein, there is an implied power in the Magistrate under the said provision to order registration of a criminal offence by the police and to take all other incidental steps in pursuance thereof.
In this view of the matter it is not very material whether the Magistrate''s order for further investigation dated 18.2.03 after the complaint dated 19.10.02 was described as an order u/s 173(8) of the Code, or whether it is treated as an order for investigation u/s 202(1) or Section 156(3) of the Code, as it is also well settled that merely because power which exists with a Court has been exercised under a wrong provision, does not render the exercise of the power unwarranted, if the Court is authorized to exercise the said power.
The following lines from paragraph 8 of The Vice-chancellor, Jammu University and Another Vs. Dushiant Kumar Rampal, are apt:
It is true that the order of suspension did not recite Statue 24(ii) as the source of power under which it was made, but it is now well settled, as a result of several decisions of this Court, that when an authority makes an order which is otherwise its competence, it cannot fail merely because it purports to be made under a wrong provision of law, if it can be shown to be within its powers under any other provision: a wrong label cannot vitiate an order which is otherwise within the power of the authority to make. Vide Hukumchand Mills Ltd. Vs. The State of Madhya Bharat and Another, and P. Balakotaiah Vs. The Union of India (UOI) and Others,
(Emphasis supplied)
It is also noteworthy that consequent to the order ot the Magistrate dated 18.2.03 for further investigation cognizance has been taken on the basis of the charge sheet on 28.2.05 under Sections 420 467 468 471 IPC. After cognizance on submission of a charge sheet, even if there was any defect in the investigation, the same stands cured, unless the illegality in the investigation (even if it is assume to exist) has brought about a miscarriage of justice. Otherwise the competence and jurisdiction of the Court for conducting the trial is not affected. This position has been affirmed in several decisions of the apex court including the case of Union of India (UOI) Vs. Prakash P. Hinduja and Another, Thus, in paragraph 21 of the aforesaid law report, it has been observed that:
The Supreme Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, has held that if cognizance is in fact taken on a police report initiated bv the breach of mandatory provision relating to investigation, the result of the trial, which follows it. cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial. Hence, even assuming for the sake of argument that CBI committed an error or illegality in submitting the charge-sheet without the approval of the CMC, the cognizance taken by the learned Spl. Judge on the basis of such a charge-sheet could not be set aside nor could further proceedings in pursuance thereof be quashed.
(Emphasis supplied)
Pendency of matter in Civil Courts no reason for quashing complaint or charge sheet if criminal offence also disclosed.
No doubt that this Court had passed an order in C.M.W.P No. 32900 of 2002, Smt. Saraswati Devi v. 1. Asst. Deputy Transport Commissioner, Varanasi Region, Varanasi, 2. Bidhyachai Prasad Gupta and 3. Megh Nath Gupta on 19.8.2002 as follows: "Issue notice to the respondent Nos. 2 and 3 returnable after six weeks. The operation of the impugned order dated 2.7.02 shall remain stayed. However, the petitioner shall not transfer or encumber the vehicle."
It is not clear whether the said order was passed as the Dy. Transport Commissioner, Varanasi had passed the order dated 2.7.02 ex parte on account of non appearance of the O.P.s Smt. Saraswati Devi and Megh Nath Gupta or whether the impugned interim order had been passed in the writ petition on merits.
Significantly the complainant''s counsel has filed a certified copy of the order dated 3.4.2007 passed by Hon''ble Sudhir Agarwal, J dismissing the writ petition in default owing to non-appearance of counsel for the petitioner.
At any rate it has been clearly laid down in Trisuns Chemical Industry Vs. Rajesh Agarwal and others, that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit, if the facts also disclose the commission of a criminal offence. Paragraph 6 of the law report reads as follows:
Time and again this Court has been pointing out that quashment of FIR or a complaint in exercise of inherent powers of the High Court should be limited to very extreme exceptions (vide State of Haryana and others Vs. Ch. Bhajan Lal and others, and Rajesh Bajaj Vs. State NCT of Delhi and Others,
In the last referred case this Court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations AIR CriLJ 10 :
It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions.
(Emphasis supplied)
In the present case the allegations are that the signatures of opposite party No. 2 were forged on the sale letter. There is a finding to this effect in the order of the Deputy Transport Commissioner, Varanasi who has set aside the order of the ARTO, Gorakhpur. The investigating officer who subsequently submitted the charge sheet after the CJM''s order for further investigation dated 18.2.03 notes that on getting the specimen signatures of the complainant Vindhyachal Gupta compared with his alleged signatures on the sale letter by a handwriting expert, the latter were found forged, hence offences under Sections 420 468 and 471 IPC were disclosed. Hence it cannot be said that the criminal outfit in these circumstances was entirely denuded because a civil profile is also alleged.
No Illegality in order of cognizance on a charge sheet being cryptic order which does not contain reasons.
In Deputy Chief Controller Import and Export v. Roshan Lal Agrawal (46) 2003 ACC 686 and U.P. Pollution Control Board v. Mohan Meakins AIR 2000 SC 1456 and Kanti Bhadra Shah and Another Vs. The State of West Bengal, it has been held that no speaking order is needed when a Court merely takes cognizance or issues summons, although reasons may be required when a complaint is being dismissed, and therefore the attack to the order taking cognizance on the charge sheet passed by the CJM on 28.2.05 on this ground must be summarily repulsed as devoid of any substance. Paragraph 9 of Deputy Chief Controller Import and Expon v. Roshan Lal Agrawal XLVI 2003 ACC 686 may be usefully quoted in this connection:
In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board Vs. M/s. Mohan Meaking Ltd. and Others, and after noticing the law laid down in Kanti Bhadra Shah and Another Vs. The State of West Bengal, it was held as follows: (SCC p 749, para 6)
The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.
In view of what has been indicated herein above, there is no merit in this application. It is accordingly rejected.
Interim order dated 13.7.2005 is vacated.
As the criminal proceedings have remained stayed for a long time, the trial court is directed to conclude the trial expeditiously, if possible within six months of the production of the certified copy of this order before it. As I have extensively examined the factual and legal issues raised by the learned Counsel for the parties for the purpose of deciding this application, and for clarifying the legal issues raised, the trial court is directed to dispose of the trial on merit and by independently applying its mind uninfluenced by the observations herein above.