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Judgment
This revision petition is directed against the order dated 21SI June, 2005, hereinafter referred to as impugned order, passed by learned Chief
Judicial Magistrate, Anantnag, whereby and whereunder application moved by petitioner under subsection 3 of Section 156 of Criminal Procedure
Code, hereinafter for short Code, came to be dismissed.
Heard.
Learned counsel for petitioner argued that an application under subsection 3 of Section 156 of the Code came to be filed before the learned
Chief Judicial Magistrate, Anantnag. Trial Court sought report from police and after receiving report, dismissed the application illegally and
erroneously in terms of the impugned order. Learned Magistrate had to take cognizance in terms of Section 190 of the Code and conduct enquiry
or had to direct police to register a case. The procedure followed by the learned Magistrate is illegal and erroneous. The impugned order is illegal
and has caused miscarriage of justice and also suffers from perversity.
Learned counsel for respondents argued that impugned order is well reasoned, needs no interference.
In order to marshal and thrash out the controversy, it is necessary to give a brief resume of the case herein:
It appears that there was a dispute about the trees in between respondents and petitioner including the deceased, namely, Ghulam Rasool.
Tehsildar Anantnag had directed, vide order bearing No. 1603/OQ dated 4th November, 2004, Naib Tehsildar to cut down the trees. Naib
Tehsildar asked SHO concerned vide order dated 11th April, 2005 to provide police protection. Naib Tehsildar, accordingly, proceeded on spot
and complied with the directions. Thereafter, Ghulam Rasool Rayoo died after a few days.
It appears that petitioner herein, Mohammad Yousuf Rayoo son of deceased, Ghulam Rasool Rayoo, had filed an application before the District
Mobile Magistrate Traffic, Anantnag, on 2nd May, 2005 with the allegations that after cutting down the trees the complainant/petitioner
approached the police for registering the case but police denied to register the case and due to the denial of the registration of the case by Police
the deceased suffered heavy heart attack and died. The Photostat copy of the said application is on the record. It is profitable tb reproduce para6
of the said application herein:
That due to denial for the registering the case the owner of the said land suffered heart attack and ultimately died of the heart attack.
District (sic) Mobile Magistrate had asked the police to submit report and accordingly, police submitted report on 3rd of May, 2005. Police
had categorically reported that neither owner of the land nor his family members were present on spot at the time of cutting down the trees.
It appears that petitioner left that application there and moved another application before learned Chief Judicial Magistrate, Anantnag on 10th
May, 2005 with the allegation that respondents herein had kicked the deceased and had prayed that police be directed to register a case in terms
of Section 156 of the Code.
Learned Chief Judicial Magistrate directed the police to submit report. It is profitable to reproduce order dated 10th May, 2005, herein, which
reads as under:
I have carefully gone through the averments made in this application which is supported by an affidavit, a photo copy of an application preferred
earlier by the applicant before the Judicial Magistrate (District Mobile Magistrate) Anantnag and Daily newspaper Alsafa cutting dated 6.5.2005
regarding the episode. Before proceeding further in the matter, SHO Police Station Achabal is directed to submit a detailed report in light of the
averments made in the application positively on or before 14.()5'.2005. Copy of this application be sent to the SHO Police station Achabal
alongwith copy of this order for compliance. Application be put up on 14.5.2005 for further proceedings.
Police submitted report on 14th May, 2005 and after hearing the learned counsel for parties, the application came to be dismissed vide
impugned order.
Following points emerge for consideration.
Whether Magistrate has powers to ask for report before taking cognizance or before directing the police to register a case?
Whether the impugned order is legally correct?
Section 156 is contained in Chapter XIV of the Code. Chapter XIV of the Code deals with ""INFORMATION TO THE POLICE AND THEIR
POWERS TO INVESTIGATE"".
It is profitable to reproduce Section 156 of the Code herein, which reads as under:
Investigation into cognizable cases. (1) Any officerincharge 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 local limits of such station would have power to inquire into or try
under the provisions of Chapter XV relating to the place of inquiry or trial.
(2) No proceeding of police officer in any such case shall at any stage be called in question on the ground that the case was one which such office
was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned.
Subclause3 of Section 156 of the Code gives jurisdiction to the Magistrate, who can take cognizance in terms of Section 190 of the Code, to
direct conducting of investigation in terms of Clause1 and 2 of Section 156 of the Code.
Section 190 of the Code is contained in Chapter XV of the Code which deals with the JURISDICTION OF THE CRIMINAL COURTS IN
INQUIRIESANDTRIALS.
It is profitable to reproduce Section 190 of the Code, herein, which reads as under:
79ft Cognizance of offence by Magistrate.(1) Except as hereinafter provided, [any Chief Judicial Magistrate and any other Judicial Magistrate]
specially empowered in this behalf, may take cognizance of any offence
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police office;
(c) upon information received from any person other than a police office, or upon his own knowledge or suspicion, that such offence has been
committed.
(2) The [High Court may empower any Judicial Magistrate] to take cognizance under subsection (1), clause (a) or clause (b), of offences for which
he may try or commit for trail.
(3) The [High Court may empower any Judicial Magistrate] of the first or second class to take cognizance under subsection (I), clause (c), of
offences for which he may try or commit for trial.
This Section mandates how the Magistrate can take cognizance. Chapter XVI of the Code provides what procedure is to be followed by the
Magistrate.
In the instant case learned Magistrate had not taken cognizance but before taking cognizance and directing the police to register a case, asked
the police to submit report. Thus, it means that Magistrate had exercised jurisdiction before taking cognizance by directing police to submit report.
While going through subsection 3 of Section 156 read with Section 190 of the Code, the Magistrate can, before directing to register case seek
report in order to ascertain whether registration of the case is necessary and whether any offence has been committed.
Keeping in view the mandate of subsection 3 of Section 156 of the Code read with Section 190 of the Code I am of the considered view that
Magistrate has powers to call for report and after calling report has powers to take cognizance and direct registering of case or, to proceed in
terms of Section 200,202,203,240 of the Code.
In case titled Tula Ram and others v. Kishore Singh reported in AIR 1977 SC 2401, Apex Court has held that Magistrate can ask police for
submitting report even before taking cognizance is taken. It is profitable to reproduce para14 of the said judgment, herein, which reads as under:
14.............Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge:
I..................
Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:
(a) He can peruse the complaint 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 requirements of Section 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 any other person or an investigation by the police.
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 complaint.
Where a Magistrate orders investigation by the police before taking cognizance under S. 156(3) 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 complainant filed
before him and take action under Section 190 as described above.
Apex Court in case titled State of Assam v. Abdul Noor and others, reported in 1970 SC 1365 has held that Magistrate is within his powers to
ask for report. It is profitable to reproduce para13 of the judgment herein:
In the present case, it is not necessary to go into the question as to whether cognizance was taken without examination of the complainant.
The Magistrate can under Section 190 of the Criminal Procedure Code before taking cognizance ask for investigation by the police under Section
156(3) of the Criminal Procedure Code. The Magistrate can also issue warrant for production before taking cognizance. If after cognizance has
been taken, the Magistrate wants any investigation, it will be under Section 202 of the Criminal Procedure Code. The investigation which was
ordered in the present case elucidated facts as to the marriage of Amina Khatoon whereupon it is clear the complaints do not disclose any offence.
Recently a case titled as Mohammad Yousf v. Smt. Afaq Jahan and anr, reported in AIR 2006 SCW 95, came up before the Apex Court
wherein their lordships have held that after taking cognizance by Magistrate under Section 190 of the Code, the Magistrate can direct police to
register case in terms of subsection 3 of Section 156 of the Code or after taking cognizance and without issuing process can direct any police
agency or Magistrate to submit report. It is profitable to reproduce paras 9 and 10 of the said judgment herein, which read as under:
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 has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear 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 ground 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 office or by such other
person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. "" 10. 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.
In this judgment Apex Court has also held that Magistrate can ask for report precognizance stage. It is profitable to reproduce paras 8 and 11
of the judgment herein, which read as under:
The various steps to be adopted for investigation under Section 156 of the Code have been elaborated in Chapter XII of the Code. Such
investigation would start with making the entry in a book to he kept by the office in charge of a police station, of the substance of the information
relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as
indicated in Section 173 of the Code. The investigation contemplated in that chapter can be comm3encedby the police even without the order of a
Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of
investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be
noticed is, when a Magistrate orders investigation under Chapter XII lie does so before he takes cognizance of the offence.
The clear position therefore is that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section
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. For
the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in
doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the
cognizable offence in a book kept by the officer in charge of the police station as indication in Section 154 of the Code. Even if a Magistrate does
not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the
officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer
could take further steps contemplated in Chapter XII of the Code only thereafter.
I am of the considered view that learned Chief Judicial Magistrate had exercised due caution while asking the police to submit report for the
following reasons:
Petitioner after completing the requisite religious formalities after the death of Ghulam Rasool Rayoo moved an application before District
Mobile Magistrate, Anantnag wherein he has categorically stated that he had approached police for registering case for felling of trees but police
refused to do so and that was cause of heart attack of deceased and that had caused death of deceased. There is not a whisper in the said
application that respondents herein had bet the deceased or kicked the deceased and that was the cause of death of the deceased. The relevant
portion of the said application is referred hereinabove. After receiving report, as discussed above, petitioner abandoned that application there and
moved the application before the Chief Judicial Magistrate, Anantnag. Learned Chief Judicial Magistrate, after judging the case from all angles has
rightly dismissed the application.
Viewed, thus I am of the considered view that impugned order is legal one, needs no interference.
Accordingly, the revision petition is dismissed along with all connected Cr.MP(s).