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Judgment
This petition filed u/s 482 of the Code of Criminal Procedure (for short ''the Code'') raises a question as to the procedure required to be followed by a Magistrate, on receipt of a complaint, alleging commission of an offence.
A brief narrative of the facts would facilitate having a proper perspective of the issue involved. The petitioner is a company incorporated under the Companies Act (for short ''the Company''). A complaint was filed by the Company''s authorised representative under S. 138 of the Negotiable Instruments Act, 1881 alleging that M/s. Modern Packers, arraigned as accused No. 1 in the complaint, was a proprietory concern of Ch. Ram Singh, shown as accused No. 2, and that a cheque was issued in the name of accused No. 1 for a sum of Rs. 32,666.50 on 15th June 1989 duly signed by accused No. 2 towards payment of the price of goods but on presentment the said cheque was received back with banker''s endorsement : ''refer to drawer''. It was alleged that the cheque had been dishonoured owing to the fact that the account of the accused in the bank did not contain sufficient amount to meet the same. A registered notice was issued thereafter informing the accused about the cheque having been dishonoured but failing to get any response, and after issuing another notice, which was duly received by the accused, and no payment having been received within the stipulated period of 15 days, since after the expiry of the receipt of the notice, an offence as contemplated by S. 138 of the Act was alleged to have been made out.
The complaint filed on 25th July, 1989 was received by the concerned Magistrate on the same day whereupon he passed the following order :
"25-7-89. Present : Sh. Rajesh Batra, Adv. for the complainant Fresh complaint received by assignment. Ahlmad to check and register the same. Although case pertains to P.S. Chandni Chowk yet SHO of Town Hall is directed to investigate the report on 13-9-89. A copy of this complaint along with photostat copies of documents filed with the complaint be sent to the SHO for investigation and report. A copy of this order be also sent to the SHO for compliance.
Sd/- M.M. Delhi/25-7-89."
Aggrieved by the order, the petitioner has come to this Court, seeking quashment thereof on the plea that the procedure resorted to by the Magistrate is wholly unwarranted, and in contravention of the provisions of the law. The matter has been heard at length, after notice to the State.
Mr. Barta appearing for the petitioner, has argued that the offence under S. 138 of the Act is a non-cognizable offence by virtue of provisions of S. 142 of the Act which provides, inter alia, that :
"142. Cognisance of offence. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -
(a) no court shall take cognizance of any offence punishable under S. 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) to (c) ..................................................."
The contention is that by virtue of the non-obstante clause as comprised in S. 142 of the Act, the Magistrate receiving the complaint has to proceed straightway to take cognizance of the offence on a complaint being made to him in writing, and that he cannot send the same for investigation to the police, and that the learned Magistrate has grossly erred in forwarding the complaint to the police at the recognizance stage.
Mr. Batra conceded, in response to a Court query that in a case where the offence alleged is cognizable, the Magistrate may in appropriate cases exercise power under S. 156(3) of the Code, and order investigation to be made by an officer in charge of a police station. He submitted however that in no event such a power, as contemplated by S. 156(3) could be exercised on a complaint being received in its court, involving a non-cognizable offence.
According to the learned counsel, in such cases the Magistrate has to take cognizance, as contemplated by S. 190(1)(a) of the Code and thereafter follow the procedure as laid down by Chapter XV of the Code, which makes it incumbent upon a Magistrate to examine upon oath the complaint and the witnesses present with him, if any.
On attention being drawn to the provisions of S. 202 of the Code wherein a Magistrate has been given power in cases where be is authorised to take cognizance on receipt of a complaint, to either enquire into the case himself 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, Mr. Batra contended that this stage shall reach only after the Magistrate has acted under S. 200 of the Code. The learned counsel referred to the Provisions of proviso (b) to S. 202 of the Code to support his contention.
Mr. Batra further placed reliance on a judgment of the Supreme Court in the case Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, , where it was laid down, inter alia, hat S. 202 of the Code comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV of the code but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure, and that in such a situation the Magistrate in empowered under S. 202 to direct, within the Emits circumscribed by that section, an investigation for the Purpose of deciding whether or not there is sufficient ground for proceeding. He also cited two other Supreme Court judgments, namely, H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), , and India Carat Pvt. Ltd. Vs. State of Karnataka and Another, .
Mr. R. P. Lao, appearing for the State, controverter the contentions raised by the learned counsel for the petitioner by contending that the powers of the Magistrate are not confined only to one procedure, namely, the one contemplated under S. 200 of the Code, and that it was open to him to either take cognizance straightway examine the complainant and his witnesses, and then proceed either to dismiss the complaint under S. 203 of the Code, or issue process against the accused under S. 204, but it is open to a Magistrate to postpone the issue of process, and call for police report. He sought to derive support for the proposition canvassed by him by reading from paragraph 6 in the case of H. S. Bains (supra) and paragraph 13 from the judgment in the case of M/s. India, Carat Pvt. Ltd. 1989 Cri LJ 963 (supra).
On a comparative as well as cumulative consideration of all the relevant provisions as set out in the Code I am of the view that the contentions raised by Mr. Batra have to be upheld, Even Mr. Lao did not dispute that in a non-Cognizable case the provisions of S. 156(3) of the Code shall not be attracted, and thus the Magistrate is precluded from straightway ordering investigation by the police. If that is so, then the only remaining procedure, as contemplated by law is the one laid down by Chapter XV of the Code, which is a Chapter dealing specifically with complaint cases, as being headed :
"COMPLAINTS TO MAGISTRATES".
The provisions of S. 200 are unmistakable and enjoin upon the Magistrate after he has taken cognizance of the complaint, which he does only under S. 190(1)(a) of the Code, to examine upon oath the complainant and the Witnesses, if any, present with him. The stage as contemplated by S. 202 arises only thereafter. Proviso (b) to S. 202 of the Code puts the matter beyond any dispute and lays down that the power under S. 202 cannot be exercised unless the complainant and the witnesses, present, if any, have been examined on oath under S. 200 of the Code.
The intention is clear from the wording of S. 202 itself which indicates that it is only when the Magistrate feels the necessity for further enquiry into the matter, that he may hold the same either himself or direct the investigation to be made by police officer or by such other person as he thinks fit. The duty to examine the complainant and the witnesses, as mandated by S. 200 of the Code, is not obliterated by the provisions of S. 202 of the Code. The matter has been put beyond the ambit of any doubt by the following observations of the Supreme Court in the case of Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, (at page 1678) :
"In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under S. 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses under S. 200, Cr.P.C. which is the first step in the procedure prescribed under that Chapter. The question of taking the next step of that procedure envisaged in S. 902 did not arise.
Mr. Lao''s reliance on certain observations in the other two cases referred to above seems to be misplaced. In the case of H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), , the offences complained of were cognisable, and in that context it was observed that the Magistrate could order investigation under S. 156(3) but even in this judgment it was made clear that once this procedure had been adopted then the report which is received from the police is to be treated as under S. 173 of the Code. The question that such a procedure can be adopted in non-cognisable offences was never before the Supreme Court, but in view of the dictum laid down in this judgment that once resort to S. 156(3) is taken, then the report which a police officer makes is a report as contemplated under S. 173 of the Code; it is apparent that such a procedure cannot be adopted in a case relating to non-cognisable offence, particularly when the Statute lays down that the Magistrate can take cognizance only on a complaint filed before him in writing and in no other manner.
Even this judgment says that once the Magistrate proceeds on the basis of the original complaint, then he must first proceed to examine on oath the complainant and his witnesses under S. 200 and thereafter either hold an enquiry himself or direct the enquiry to be held by police officer under S. 202 of the Code, as he thinks fit, and then either dismiss the complaint or issue the process, as the case may be.
Likewise in the case of M/s. India Carat Pvt. Ltd., 1989 Cri LJ 963 (supra) it is unmistakably made clear that in cases covered by complaints to Magistrate, the only procedure applicable is that of Chapter XV containing Ss. 200 to 203 of the Code and in such cases, the Magistrate taking cognizance is required by S. 200 to examine the complainant and the witnesses present, if any. The subsequent observations on which Mr. Lao placed reliance as contained in paragraph 13 are a summing up of the position after taking note of Chapter XVI which deals with "Commencement of Proceedings before the Magistrate". The embargo placed by proviso (b) to S. 200 was not at all put in focus because the issues raised in that case before the Supreme Court were entirely different, namely, as to whether in spite of the fact that the police report did not disclose the commission of any offence against the accused, the Magistrate could take cognizance of an offence under S. 190(1)(b) or not. It was in that context that it was held that when a police report is received, to the effect that no offence is made out, then the Magistrate was not bound to accept that report and can take cognizance of the offence in exercise of the power under S. 190(1)(b) of the Code and in that event, he was not bound to follow the procedure laid down in Ss. 200 and 202 for taking cognizance of a case under S. 190(1)(b) of the Code, though it is open to him to act under Ss. 200 and 202 also.
I am Therefore of my considered view that in a complaint case, alleging commission of a non-cognizable offence, made in writing to a Magistrate or received in his Court, under S. 192 of the Code, it is incumbent upon him to immediately take cognizance and proceed to examine upon oath the complainant and his witnesses, if any, and a Magistrate cannot straightway assign the complaint to the police for investigation, as such a procedure is not warranted by law. In the present case, Therefore, it has to be held that the concerned Magistrate erred in sending the copy of the complaint to the SHO, police station for further investigation or enquiry and in not straightway taking cognizance of the complaint and examining the complainant and his witnesses.
The impugned order thus stands vitiated is accordingly set aside. The matter is remitted to the concerned Court for proceeding with the complaint in the manner as noticed above, and by following the procedure prescribed by law, and then proceed expeditiously as no action has so far been taken on the complaint because of an erroneous order having been passed by the concerned Magistrate.
The case shall be placed in the first place before the District & Sessions Judge, Delhi on 28th August, 1990 who shall ensure that the case is sent to the appropriate Court, and also have a copy of the judgment sent to the Magistrate who passed the impugned order, in case he is no longer presiding over the concerned Court.
The case records be sent back.
No order as to costs.
Petition allowed.