Bijoy Roy v. Manju Singh — 1992 DIGILAW 443 (CAL)

Order: By the instant revisional application under Section 401/482 of the Code of Criminal Procedure (hereinafter referred to as Code) the accused-petitioner bijoy Roy has prayed the Court for quashing the proceedings of Case No. C-222 of 1988 under Section 420, I. P. C., pending before the learned Metropolitan Magistrate, 7th Court, Calcutta. 2. The opposite party-complainant had filed a petition of complaint under Section 420, I. P. C. before the learned Magistrate with a prayer for directing the Office-in-Charge. Jorasanko P. S., to investigate the relevant case under Section 156(3) of the Code treating the petition of complaint as First Information Report or for passing such other order or orders as the Court may deem fit and proper, alleging, inter-alia, that the accused-petitioner herein who was closely acquainted with her, had induced her to hand over gold and silver ornaments etc. to him on the representations made by him as stated in the complaint/petition, in January 1981. At the request of the complainant and her husband the accused-petitioner had also granted a receipt acknowledging receipt of gold and silver ornaments and 73 pieces of silver coins for making by her (complainant) and her mother-in-law. But the accused-petitioner had eventually declined to return back the same to the complainant, giving cause for complaint by her. 3. The learned Magistrate, as observed in his relevant order dated 18.8.82, did not find any sufficient ground to forward the relevant petition of complaint to the police officer under Section 156(3) of the Code for causing investigation, and had accordingly rejected the prayer of the complainant to that effect. He had, however, offered opportunity to the complainant to submit a list of witnesses for making further orders thereon. The complainant having submitted a list of her witnesses, the learned Magistrate had examined her two witnesses on 8.8.89 and had taken cognizance of the offence, fixing 13.9.88 for orders. The learned Magistrate by his subsequent order dated 13.9.88 had directed issue of summons upon the accused petitioner under Section 420, I. P. C, on being satisfied that the complainant had been able to make out a prima facie case thereunder on due consideration of the materials on record fixing 11.19.88 for service return/appearance. 4. The learned Magistrate by his subsequent order dated 13.9.88 had directed issue of summons upon the accused petitioner under Section 420, I. P. C, on being satisfied that the complainant had been able to make out a prima facie case thereunder on due consideration of the materials on record fixing 11.19.88 for service return/appearance. 4. On appearance of the accused in terms of the said order, the complainant had examined certain witnesses some of whom had been cross-examined by the accused before charge and the cross-examination of some other witnesses before charge had been declined by him. 5. In the instant revisional application for quashing the entire proceedings before the learned Magistrate it is sought to be contended on behalf of the petitioner-accused that since the complainant had filed an application under Section 156(3) of the Code before the learned Magistrate, it was incompetent for him to take cognizance of the offence and direct issue of process against him the way he (Magistrate) did, without forwarding the same to the police for treating the same as F. I. R. 6. The question that falls for consideration in the instant matter is whether it is obligatory for a Magistrate to order investigation under Section 156(3) of the Code on mere asking by a party concerned. 7. It would be pertinent to look to the relevant provisions contained in the Code regarding complaints made to a Magistrate, the conditions requisite for initiation of proceedings and the commencements of proceedings before him (Magistrate). Chapter XIV of the Code describes the conditions requisite for initiation of proceedings before Magistrate. In terms of Section 190(1)(a) thereunder, a Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence. As defined in Section 2(d) of the Code, "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. A complaint in a criminal case is what a plaint is in a civil suit. It is one of the modes in which" Magistrate can take cognizance of an offence. A complaint in a criminal case is what a plaint is in a civil suit. It is one of the modes in which" Magistrate can take cognizance of an offence. The requisites of a complaint are: (1) an oral or written allegation, (2) that some persons, known or unknown had committed an offence, (3) made to a Magistrate, (4) with the object that he should take action thereunder. No form is prescribed which the complaint may take. It is the allegation of fact/s which constitute/s a complaint. 8. Chapter XV lays down the procedure which a Magistrate empowered to take cognizance of an offence should follow when a complaint is made to him under Section 190(1)(a). The Magistrate taking cognizance of an offence on complaint is required to examine upon oath the complainant and the witnesses present, if any, in terms of Section 200 thereunder. In terms of Section 202 the Magistrate may, if he thinks fit, postpone the issue of process against the accused and either inquire 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. If, upon consideration of the Statement/s on oath (if any) of the complainant and of the witness/ss and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint briefly recording his reasons for so doing under s. 203. 9. Chapter XVI of the Code relates to commencement of proceedings before a Magistrate. If in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding he is required to issue process against the accused under Section 204 thereunder. At the time of issuing process what the Court is required to find out is whether there is prima facie case. It is not required to determine the adequacy of the evidence or the probability of the accused being found guilty. The Magistrate will issue process under the aforesaid provision if there be sufficient ground for proceeding. If there be no sufficient ground, he would dismiss "the complaint under Section 203. It is not required to determine the adequacy of the evidence or the probability of the accused being found guilty. The Magistrate will issue process under the aforesaid provision if there be sufficient ground for proceeding. If there be no sufficient ground, he would dismiss "the complaint under Section 203. The Magistrate in deciding whether process should issue must exercise a judicial discretion having regard to the materials duly placed before him. 10. As already indicated above, Chapters XIV, XV and XVI of the Code deal with the conditions requisite for the initiation of proceedings before a Magistrate, the procedure to be followed by him therefor, and the commencements of proceedings before him. There is no other provision in the Code enabling a Magistrate to take cognizance of an offence upon receiving a complaint for taking further action thereunder. The word "may take cognizance" occurring in Section 190(1) of the Code means "must take cognizance". The Magistrate has no discretion in the matter, otherwise the section would be violative of Article 14 of the Constitution. The use of the term' 'may take cognizance of any offence" refers rather to the action of the Magistrate in taking cognizance of the offence in either of the specified courses in which the facts constituting an offence may be brought to his knowledge. He is bound to examine the complainant, and then can either issue summons to the accused, or order an inquiry under Section 202, or dismiss the complaint under Section 203. 11. A Magistrate may, however, before taking cognizance under Section 190(1) of the Code, ask for investigation under Section 156(3). In terms of the said latter provision, any Magistrate empowered under Section 190” may order investigation thereunder. The said provision being, what it is a Magistrate "empowered under Section 190" may order investigation thereunder, not independent of Section 190. Sub-section (3) of Section 156 of the Code, therefore, empowers a Magistrate to order police inquiry in a case where the Magistrate does not himself issue process at once. The word "may order such an investigation", as occurring therein, clearly appears to be discretionary. Section 156 occurs in Chapter XII of the Code relating to information to the police and their powers to investigate. A Magistrate cannot clearly receive a "Complaint" under Chapter XII of the Code. He can receive "Complaint" only under Chapter XIV. The word "may order such an investigation", as occurring therein, clearly appears to be discretionary. Section 156 occurs in Chapter XII of the Code relating to information to the police and their powers to investigate. A Magistrate cannot clearly receive a "Complaint" under Chapter XII of the Code. He can receive "Complaint" only under Chapter XIV. There is nothing in the Code to indicate that a Magistrate can receive a "complaint" under Section 156(3) of the Code. Whenever a Magistrate receives a complaint of facts constituting an offence, the same must be deemed to be a complaint under Section 190(1)(a) of the Code, no matter whether the cause title of the petition of complaint describes the same to be a petition under Section 156(3). A petition of complaint of facts constituting offence under Section 156(3) of the Code must clearly, therefore, be held to be a misconceived petition. With the relevant provisions of the Code, such as they are, as discussed above, it is neither obligatory for a Magistrate to order investigation under Section 156(3) on mere asking by a party. A Magistrate, in his discretion, "may" order investigation under Section 156(3) of the Code before taking cognizance, or "may" ("must") take cognizance of an offence under Section 190 for taking further action in the manner hereinbefore indicated. It would also be pertinent to note in this context that the power to order police investigation under Section 156(3) is different from the power to direct investigation under Section 202(1). The first is exercisable at the pre-cognizance stage, and the second is at the post-cognizance stage when the Magistrate is seized of the case. The power under Section 156(3), as indicated above, could only be invoked by a Magistrate before it takes cognizance of the offence under Section 190. 12. In the relevant case before us the petition of complaint by the o.p. complainant, also described as a petition under Section 156(3) of the Code in the cause title thereof. contains all the requisites of a "complaint" within the meaning of Section 2(d) of the Code. The relevant petition of complaint by the complainant-opposite party, on the face of it, clearly appears to be (1) a written allegation. (2) that the accused-petitioner has committed an offence (punishable under Section 420, I.P.C.). (3) made to the learned Magistrate, (4) with the object that he should take action thereon, The learned. The relevant petition of complaint by the complainant-opposite party, on the face of it, clearly appears to be (1) a written allegation. (2) that the accused-petitioner has committed an offence (punishable under Section 420, I.P.C.). (3) made to the learned Magistrate, (4) with the object that he should take action thereon, The learned. Magistrate could not thus be held to have erred in taking cognizance of the offence under Section 190(1)(a) of the Code, the way he did. He could neither be deemed to have fallen into errors in examining the complainant and her witnesses under Section 202, (? 200) and issuing process against the accused-petitioner under Section 204 of the Code. As already indicated above, at the time of the issuing of process what the Court is required to find out is whether there is prima-facie case. It is not required to determine the adequacy of the evidence or the probability of the accused being found guilty. The Magistrate will issue process under Section 204 if there is sufficient ground for proceeding. As held in the decision in Dr. Dhanwanti Vaswani vs. State and anr., Judgments Today 1991 (6) S.C. 176, the question to be determined by the Court at the stage of summoning the accused is whether on the basis of the allegations in the complaint without adding or subtracting anything a cognizable offence is made out; and at that stage of truth or otherwise of the allegations does not come for scrutiny. On the application of the said test, the action of the learned Magistrate in taking cognizance of the alleged offence and issuing process against the accused-petitioner under Section 420, I.P.C., on the basis of the allegations in the complaint, as appearing therefrom, as also the statements of the complainant and her witness, cannot be said to suffer from any incorrectness, illegality calling for interference by this Court in Revision under Section 401 or in the exercise of its inherent jurisdiction under Section 482 of the Code. The instant application by the accused petitioner thereunder is liable to fail as such as it must. 13. In the result, the revisional application fails and be accordingly dismissed. Interim stay, if any stands vacated. 14. The instant application by the accused petitioner thereunder is liable to fail as such as it must. 13. In the result, the revisional application fails and be accordingly dismissed. Interim stay, if any stands vacated. 14. Since the instant case has remain stayed for so long a period in view of the instant revisional application, the learned Magistrate is hereby directed to proceed with the trial; and he shall seek to dispose of the case at the earliest, preferably within a period of six months from the date of communication of this order. 15. Let a xerox copy of the order be supplied to the learned Advocates for both sides on usual undertaking. Application dismissed.