PuIIoo Jaidev v. State of U. P. — 1986 DIGILAW 30 (ALL)

B. I. YADAV, J. ( 1 ) THIS revision under sections 397/401 of the Code of Criminal Procedure, 1974, (for short the Code) is directed against the order dated 24. 1. 87 passed by the lind Additional Sessions Judge, Varanasi allowing the revision and setting aside the order dated 14. 5. 86 passed in Criminal case No. 372 of 1986 and directing the Magistrate to pass an order under sections 203 and 204 of the Code after hearing the complainant. ( 2 ) THE facts of the case are that a complaint under sections 147/323/504/506 I. P. C. was filed by Praveen Kumar against Pulloo and others, the present applicants before the Chief Judicial Magistrate, Varanasi, who recorded evidence under section 200 of the Code, but postponed the issue of process and started taking statements of P. W. 1 Shyamdas, P. W. 2 Bal Kishan under section 202 and perused the F. I. R. and injury report. But he was not satisfied that certain circumstances appear in the statement of witnesses, inasmuch as it was not explained as to why did Shyam Das, the companion of the complainant not go to the police station for assistance instead of going to the hospital for examination of his injuries. Similarly the complainant also went straight way to the hospital rather than to police station. The next circumstance was that when Shyam Das ran away from the market, why not he went to the police station just to safeguard the complainant from the accused. Consequently, the learned Magistrate was of the view that investigation by the police on these points was necessary and hence he directed the Station Officer, Chowk, Varanasi, to investigate the matter and submit report within two weeks and fixed the case for orders on 15. 7. 86. A revision was filed by the complainant and the same was allowed by the impugned order dated 24. 1. 87. It is against this order that the present revision has been filed. ( 3 ) LEARNED counsel for the applicant urged that section 202, he has no power to direct the investigation by a Police Officer as the Magistrate has to decide as to which of the two alternatives he has to follow, either to enquire into the case himself or direct the investigation to be made by the police. Reliance was placed on Parsuram Jha v. State of Bihar. Reliance was placed on Parsuram Jha v. State of Bihar. ( 4 ) THE principal question for determination is as to whether the Magistrate can direct the investigation by police even though he has started recording statement of witnesses under section 202 (1) as thereby he expressed his discretion in following one of the two alternatives either to enquire himself or to direct the police officer to make an investigation. In order to appreciate the controversy it is better to have the statutory provision under section 202 (1) of the Code, so far as it is material for the purpose, as follows: p202 Postponement of issue of process (1) Any Magistrate on receipt of a complainant of an offence which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either enquire 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. , ( 5 ) IN order to ascertain the correct intendment of the legislature under section 202 (1) it is better to read sections 156 (3), 190 (1) (a), 200, 202, 203 and 204 of the Code together. In fact, section 190 occurs in chapter XIV of the code under the caption conditions Requisite for initation of proceedings section 156 occurs in Chapter XII under the caption Information to the Police and their power to Investigate. Section 200, 202 and 203 occur in Chapter XV under the caption Complaints to Magistrates, whears section 204 occurs in Chapter XVI under the caption Commencement of the Proceedings before Magistrates. The power of the Magistrate under section 156 (3) is entirely different than the powers of the magistrate under section 201 (1 ). The power under section 156 (3) is before cognizance of the offence has been taken by the Magistrate. In fact, taking cognizance of offence has not been defined under the Code, rather it means application of judicial mind at a point of time when a Magistrate or a Judge first takes Judicial notice of the offence. In other words, cognizance means application of the judicial mind for taking further action in the matter. In fact, taking cognizance of offence has not been defined under the Code, rather it means application of judicial mind at a point of time when a Magistrate or a Judge first takes Judicial notice of the offence. In other words, cognizance means application of the judicial mind for taking further action in the matter. After cognizance has been taken either on perusal of police papers or on the receipt of any information (vide section 190 (1) (b) (c) of the Code) or upon receiving a complaint of facts which constitute such offence (vide section 190 (1){a) But this section 190 (1) (a) is in connection with Chapter XV, Tcomplaints to Magistrate even though complaints to Magistrates are entirely different rather than the complaints contemplated under section 190 (1) (a ). But in substance sections 200, 202 and 203 start only after the first stage, namely, the Magistrate has taken cognizance of an offence on a complaint. Thereafter the Magistrate shall examine the complainant and the witnesses present if any. The next stage is the assessment of evidence with a view to decide as to whether the said evidence makes out a sufficient ground for proceeding, i. e. for Issuing process. If, that being the matter under section 202, in case the Magistrate postpones the issue of process, he records statement of the complainant and his witnesses. At this stage the Magistrate has been given option either to enquire into the matter himself or direct the investigation to be, made by a Police Officer, for the purpose of deciding whether or not there is sufficient ground for proceeding. ( 6 ) UNDER section 202 (1) of the Code, the procedure provided to be followed by the Magistrate, either to enquire himself into the matter or direct the investigation to be made by a Police Officer, is, with a larger object for deciding whether or not there is sufficient ground for proceeding. In case such larger, object has not been attained and the Magistrate remains still in doubt as to whether there is sufficient ground for proceeding or not, even though he has recorded statement of witnesses as a consequence of decision to enquire into the matter himself, in. that event the object of the legislature would be attained only if the. In case such larger, object has not been attained and the Magistrate remains still in doubt as to whether there is sufficient ground for proceeding or not, even though he has recorded statement of witnesses as a consequence of decision to enquire into the matter himself, in. that event the object of the legislature would be attained only if the. Magistrate directs the investigation to be made by a Police Officer either on certain points or on the entire case. The language of section 202 is couched in such a form that this interpretation is plausible. In other words there is nothing to indicate that once the Magistrate has started enquiring into the case himself, he could not follow the next alternative, i. e. direct the investigation to be made by the Police Officer. ( 7 ) THE construction I am trying to place on Section 202 may appear to be strange interpretation upon some words, i. e. with the use of words either and or. But if the purpose of the enactment is clear and it is consistent with that object, even two interpretations are possible. In this connection it is better to refer to the following observation in Southern Land Publication Co. Ltd. v. Caxtion Publication Co. Ltd. 2 When the purpose of an enactment is clear it is often legitimate, because it is necessary to put a strange interpretation upon some words which have been inadvertently used and of which a plain meaning would defeat the obvious intention of the legislature. It may even be necessary and, therefore, legitimate, to substitute for an inapt word or words with which such intention requires. T ( 8 ) THE power of the Magistrate under section 156 (3) is different and this power is exercised at the pre-cognizance stage. Whereas the power of the Magistrate under section 202 (1) is exercised at the post-cognizance stage when the Magistrate is in seisin of the case. In other words, the power under section 156 (3) can be exercised by a Magistrate before he takes cognizance of the offence under section 190 (1) (a ). But if he once takes cognizance and embarks upon the procedure embodied in Chapter XV, ordinarily he would not switch, back and direct the police to investigate. In other words, the power under section 156 (3) can be exercised by a Magistrate before he takes cognizance of the offence under section 190 (1) (a ). But if he once takes cognizance and embarks upon the procedure embodied in Chapter XV, ordinarily he would not switch, back and direct the police to investigate. But at the same time in case recording of statement of witnesses and assessment of evidence do not enable the Magistrate to form an opinion as to whether there is sufficient ground for proceeding or not, and if he feels that the investigation by polite can serve some positive purpose, he would certainly be justified in directing the police to make investigation either on some points raised or on the entire case as a whole. See Deorapalli Laxmi Narain Reddy v. V. Narain Reddy. 3 ( 9 ) IN Alladin and others v. State4 this court has held that while interpreting Section 202 (1) that in case the Magistrate was not satisfied with the evidence of witnesses and passes an order for further investigation by the police in order to ascertain as to whether there was sufficient ground for proceeding, the Magistrate was perfectly justified. ( 10 ) IN Parsuram Jha v. State of Bihar, (supra) a Division Bench of the Patna High Court held as follows: Therefore, it must be held that though resort to different investigations or enquiry afresh should ordinarily be avoided in the interest of permitting justice, yet it should not lead to denial thereof or bar a Magistrate who is entitled to take cognizance from going to the root of the matter by resorting to ail the choice made available to him by section 202,ti Even though the aforesaid case was relied upon by the learned counsel for the opposite parties, but considering the facts and circumstances of the case I am of the view that the said case does not help the opposite party, rather it is in support of the view that I am taking. ( 11 ) IN Prafulla Pradhan v. State of West Bengal5 the Calcutta High Court has held as follows: TTIn view of the language of section 202 of the Code of Criminal Procedure, we are of the view that even after directing the officer in-charge of the local police station to make an enquiry and report, the hands of the Magistrate would not be tied if he proposed to hold further enquiry into the matter himself. But if he holds further enquiry by himself for determining whether to issue process or not, it will be within his competence and his power under the Code of Criminal Procedure. ( 12 ) JUST to ascertain whether or not there was sufficient ground for proceeding, the investigation by police has been ordered by the Magistrate in exercise of the powers under section 202 (1 ). Under section 203 of the code on the basis of statement of witnesses recorded by him under section 202 and after considering the result of investigation by the Police Officer, the Magistrate would decide under section 203 whether there was sufficient ground for proceeding or not. In case he finds that there was sufficient ground for proceeding, he shall issue process under section 204, otherwise he will dismiss the complaint. The procedure adopted by the learned Magistrate cannot be said to be erroneous, rather the lind Additional District and Sessions Judge, Varanasi did not pass a correct order sending the case back; to the learned Magistrate to pass an order under sections 203 and 204 without waiting for the result of investigation by the police. The impugned order accordingly cannot be sustained. ( 13 ) IN the result, the present revision succeeds and is allowed. The impugned order dated 24. 1. 87 is set aside. As the matter has dragged on for too long, what is required is expedition. The learned Magistrate is directed to obtain police report within three months from the date of receipt of a copy of this order and should immediately decide as to whether there was sufficient ground for proceeding or not and would pass an appropriate order under section 203 or 204 of the Code after considering the result of investigation by the police and also the statement of witnesses recorded by him. Revision allowed. . .