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Judgment
This matter is arising from rejection of application made by present applicant before the learned Judicial Magistrate First Class, Agar for issuing
directions under Section 156 (3) of Cr.P.C. to the police for conducting an investigation. Being aggrieved by Order dated 30.01.2017 passed in
complaint case No. 0/2016 the applicant has preferred the instant application.
The controversy leading to filing of the present case does not need descriptive narration of facts as the issue in the present case is confined to
interpretation of Section 210 as well as Section 156 (3), of Cr.P.C, while it also touches upon the powers available to the Magistrate at the time of
taking cognizance in the matter. The present applicant had approached this Court on earlier occasions by filing M.Cr.C. 249/2017 whereby the
Court examined the veracity of the order passed by the learned JMFC while rejecting the application under Section 156 (3) of Cr.P.C. for want of
sanction under Section 197 of Cr.P.C. This Court vide order dated 11.01.2017 disposed of the petition on the ground that lack of sanction under
Section 197 of Cr.P.C. may be an impediment for proceeding with the trial or for filing of charge-sheet under Section 173 of Cr.P.C. although by
no stretch of imagination, the same cannot limit the power to investigate the charge levied against any person. Consequently, the revision
application was disposed of with direction to reconsider the application under Section 156 (3) of Cr.P.C.
It is borne out from the record that the present applicant approached the learned Judicial Magistrate First Class with a prayer under Section 156
(3) of Cr.P.C. and while making such prayer, the applicant also invited the attention of the learned JMFC on a report authored by C.S.P., Agar,
which was forwarded to Deputy Inspector General of Police, Ujjain, for his consideration wherein it is submitted by the learned counsel for the
applicant that a direction was issued by Deputy Inspector General of Police, Ujjain, to take appropriate action against the person named therein.
The learned Court of JMFC decided the said application by a common order dated 30.01.2017 and rejected the application under Section 156
(3) of Cr.P.C. on the ground that the Magistrate is only required to recourse to the provision under Section 156 (3) of Cr.P.C. when the Court is
in need of a material which can only be gathered by conducting investigation. In this regard, the learned JMFC has recorded certain illustrative
circumstances on the basis of a judgment pronounced by the Allahabad High Court although it has been observed that none of those circumstances
exist in the present case and therefore, the application under Section 156 (3) cannot be allowed. It is borne out from the record that the Court of
JMFC supplemented certain more reasons for rejecting the application by which the report prepared by CSP, Agar and its endorsement by
Deputy Inspector General of Police, Ujjain, was sought to be called for just and proper adjudication of the matter.
The learned counsel for the applicant has challenged the impugned order on the ground that the Court below has shown complete disregard to
the directions issued by this Court in M.Cr.C. No. 249/2018 as also the Court below has not decided the application after taking note of all the
grounds canvassed in the application, which vitiates the impugned order. It was further vehemently argued that it was obligatory upon the Court
below to give due consideration to Section 210 of Cr.P.C. which clearly prescribes the procedure to be followed in a scenario where on the same
set of facts, the police is carrying on an investigation and the inquiry is being conducted in a complaint case. Therefore, the trial Court committed
error in rejecting the application under Section 156 (3) of Cr.P.C. as also by declining to take on record the report prepared by CSP, Agar and its
endorsement by Deputy Inspector General of Police, Ujjain.
Per contra the learned counsel for the respondent submitted that the contention of the learned counsel for the applicant is misplaced as the
procedure prescribed under Section 210 of Cr.P.C. is only applicable in a case where the complaint has been registered by the Court below
whereas in the present case, no such cognizance has been taken by the Court below. Apart from it, there is no illegality committed by the Court
below in declining to allow the application under Section 156 (3) of Cr.P.C. Therefore, he prayed for dismissal of the instant application.
I have carefully considered the rival contentions advanced by the parties and have perused record.
The issue involved in the case deals with exercise of power vested under Section 156 (3) of Cr.P.C. in the Magistrate. A critical examination of
the impugned Order dated 30.01.2017 demonstrates that the Court below did not commit any error in rejecting the application for issuing direction
under Section 156 (3) of Cr.P.C. as it is apparent from the facts of the case that the entire set of allegations against the respondent No. 1 is based
upon documentary evidence which does not warrant a direction to the Police for investigation and the reasoning recorded by the Court below
cannot be found fault with. So far as the contention of the applicant that the Court below did not deal with the contentions mentioned in the
application under Section 156 (3) of Cr.P.C. is concerned, this Court feels that a decision on an interlocutory application may be passed on
grounds necessary for its disposal and the Court is not expected to deal with each of the grounds separately canvassed therein because the same is
not resulting into final determination of proceedings pending before the Court below and such grounds can be very well raised at the stage of
advancing final arguments on the case pending before the Court below, unless there is a manifest error in exercise of power which will result in
miscarriage of justice or is finally determining the fate of the case. I have no hesitation in observing that none of such contingencies are present in
the instant case in which the Court has only declined to issue direction under Section 156 (3) of Cr.P.C. but has proceeded to the next stage of the
complaint case.
Now, the consideration of Section 210 of Cr.P.C. in the light of contention advanced by learned counsel for the applicant goes on to show that
the aforestated provision applies to the pending proceeding before the Magistrate which may be an inquiry at a pre-cognizance stage or a trial
which is post-cognizance. In this regard, this court can profitably refer to the definition of inquiry provided under Section 2 (g) of Cr.P.C, which
provides that any proceeding by Magistrate other that a trial will mean an inquiry by the Magistrate. Therefore, the Court below ought to have
called for the report dated 30.08.2016 prepared by the police officer and endorsed by the superior officer because It is clear from the perusal of
Section 210 of Cr.P.C. that once the Magistrate is informed about an investigation on the same subject matter by the police, then it is obligatory to
call for such report before proceeding further in the matter.
The submission of learned counsel for the respondent that the Magistrate has not committed any error in exercise of his discretion so far as it
relates to rejection of application Under Section 156 (3) of Cr.P.C. is concerned, the same can be upheld for which the reasons have already been
recorded in the preceding part of the order, however the portion of the order dated 31.07.2017 so far as it relates to rejection of prayer to call for
the report prepared by police dated 30.08.2016 is concerned the same cannot be given the stamp of approval as it is obligatory on the magistrate
to call for the report by the police officer since the same would assist the Magistrate in arriving at appropriate outcome of the case. Apart from it
the Court below has not given any reason for declining to call for such recorded which vitiates the order. Lastly ,it is observed that the Court below
erred in suggesting that for recording of any statement the present applicant can move a separate application under 164 of Cr.P.C, if such
approach is approved by this Court, then the same would lead into multiplicity of proceedings with respect to same subject matter and the
endeavour of the court must always be to avoid such multiplicity of proceeding for the same subject matter.
Taking this view of the matter the present application is partly allowed and the portion, by which Court below declined to call for the report
dated 30.08.2016 and its subsequent endorsement by D.I.G. Ujjain, is set aside with direction that the Court below shall call for such report and
shall proceed with recording of statement in accordance with law. However the portion of the impugned order which deals with rejection of
application under 156 (3) of Cr.P.C. is upheld. Let the copy of this order be sent to the Court below for information.