Kedar Nath v. State of Rajasthan — 1993 DIGILAW 432 (RAJ)

Honble RAJESH BALIA, J.—The petition raises a short point. 2. A written complaint was lodged by one Asha Ram Bhil in the Court of Chief Judicial Magistrate, Jaisalmer alleging that the petitioners have committed offences under sections 147, 148, 149, 427, 452, 300, 354, 504, 506 I.P.C. and Sec. 323 I.P.C. read with S.34 I.P.C. and under S.3 (x) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short hereinafter to be referred as the Act of 1989) on January 19,1993. On the receipt of the complaint, the Chief Judicial Magistrate ordered as under : ^^19-1-1993 izLrqrdrkZ ifjoknh Jh vkkkjke e; odhy Jh vkj-,l- esgrk mifLFkrA mUgksaus ;g bLrxklk isk fd;kA ewy bLrxklk vUrxZr /kkjk 156 ¼3½ lh-vkj-ih-lh-] esa ,l-,p-vks- tSlyesj dks izsf"kr dj vknsk fn;k tkrk gS fd bLrxklk ds lEcU/k esa eqdnek ntZ dj vuqla/kku dj urhtk U;k;ky; gktk esa kh?kz isk djsaA 3. It is this order directing investigation by the Police made by the Chief Judicial Magistrate, Jaisalmer, that has been challenged. 4. The petitioners case is that the offences under the Act of 1989 are exclusively triable by a Court of Sessions notified as Special Court under S. 14 of the Act of 1989. S. 20 of the Act gives over-riding effect to the provisions of the Act of 1989. In view of these provisions, the learned counsel contends that since the offences alleged to have been committed by the petitioners includes offences under the Act of 1989 which are exclusively triable by Sessions Court notified as Special Court, the Chief Judicial Magistrate had no jurisdiction to direct investigation through the Police. It is only the Special Court which under law is authorised to take cognizance and issue directions to the investigating agency for investigation. 5. His contention is founded on the premises that as aforesaid, as the offences under the Act of 1989 are exclusively triable by the Special Court proceedings for taking cognizance is part of trial, in the context of Act of 1989, it is the Special Court alone which is entitled to take cognizance. Under S. 156 (3) of the Code of Criminal Procedure (for short hereinafter to be referred as the Code) the directions to the Police Officer for investigating the offences can be issued only by the Magistrate empowered under S. 190 for taking cognizance of the offences. Under S. 156 (3) of the Code of Criminal Procedure (for short hereinafter to be referred as the Code) the directions to the Police Officer for investigating the offences can be issued only by the Magistrate empowered under S. 190 for taking cognizance of the offences. He also, in this connection placed reliance on Cl. (a) of the proviso to sub-section (1) of S. 202 of the Code which debars the Magistrate from ordering investigation where offence is triable exclusively by a Court of Sessions. 6. On the other hand, learned Public Prosecutor contended that S. 190 of the Code empowers only Magistrate to take cognizance of any offences except provided in Chapter XII of the Code. S. 193 of the Code puts a complete embargo on the Sessions Court, which undoubtedly the Special Court under S.14 is, from taking cognizance unless the case has been committed to it by Magistrate under the Code. According to him, the provisions of S.190 and 193 of the Code are not in derogation of any provisions of the Act of 1989 and notwithstanding Ss. 14 and 20 of the Act of 1989, the procedure which is applicable to the investigation and trial under the Act is the same as provided under the Code because the Act of 1989 does not provide any special procedure. 7. In order to appreciate the controversy: it would be profitable to reproduce all the relevant provisions referred to above; "S. 4 of the Code reads as under: Trial of offences under the Indian Penal Code and other laws. 4. (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Sec. 156 of the Code reads as under:- Police officers power to investigate cognizable case, 156. Sec. 156 of the Code reads as under:- Police officers power to investigate cognizable case, 156. (l)Any officer in charge 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 limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above - mentioned. S. 190 of the Code reads as under:- Cognizance of offences by Magistrate. 190.(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence ; (c) upon a police report of such facts ; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. S. 193 of the Code reads as under: Cognizance of offences by Courts of Session. 193. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. S. 200 of the Code reads as under: Examination of complainant. 200. S. 200 of the Code reads as under: Examination of complainant. 200. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present: if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate : Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. S. 202 of the Code reads as under: Postponement of issue of process. 202. (1) Any Magistrate, on receipt of a complaint of an offence of 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 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: Provided that no such direction for investigation shall be made- (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he think fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (2) In an inquiry under sub-section (1), the Magistrate may, if he think fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. S.2 (d) of the Act of 1989 reads as under: 2.Definitions.-(l)In this Act, unless the context otherwise requires,- (a) ............ (b) ............ (c) ............ (d) "Special Court" means a Court of Session specified as a Special Court in Section 14; (e) ............ (f) ............ (2) ........................... S. 14 of the Act of 1989 reads as under: 14. Special Court.—For the purpose of providing for speedy trial, the State Government shall with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette specify for each district a Court of Session to be a Special Court to try the offences under this Act. S. 20 of the Act of 1989 reads as under: 20. Act to override other laws.—Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law. 8. S. 156 of the Code finds place in Chapter XII which deals with the procedure of investigation by the Police and powers of Police in respect of investigation. 9. Ss. 190 and 193 of the Code find place in Chapter XIV which lays down conditions requisite for initiation of proceedings. 10. Chapter XV which deals with procedure to be followed by Magistrate on receipt of complaint commences with S. 200 and S. 202 is a part of that Chapter. 11. The Act of 1989 which provides for certain crimes committed against the members of the Scheduled Castes and Scheduled Tribes, the weaker and exploited section of the society, and also for enhanced punishment for certain offences which are otherwise covered by other Acts including Indian Penal Code. 11. The Act of 1989 which provides for certain crimes committed against the members of the Scheduled Castes and Scheduled Tribes, the weaker and exploited section of the society, and also for enhanced punishment for certain offences which are otherwise covered by other Acts including Indian Penal Code. S. 14 read with S.20 of the Act of 1989 leaves no room of doubt that offences under the Act of 1989 are exclusively triable by the Sessions Court nominated as Special Court under S. 14 of the Act. S. 20 gives the provisions of said Act overriding effect. However, what procedure shall be followed for investigation and what procedure shall be adopted during the trial, the Act makes no special provision except that under S.9, the State Government may by Notification confer powers of the Police Officer on any Official of the State Government and on such conferment, the provisions of the Code shall apply so far as said provisions may be applied to the exercise of the powers by such specially notified officer. 12. S. 4 (2) of the Code provides that offences under any other law than the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code, subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealt with such offences. Thus it is clear that in the absence of the special provisions made in the Special Statute making certain acts or omissions as special offence, in respect thereof, the same procedure for investigation, inquiry and trial have to be followed as are provided under the Code. 13. Keeping in view above principle, one is to examine the Scheme of the Code in the context of the controversy raised before me. 14. Under Chapter XII, the Police has plenary powers of investigation into the cognizable offences even without any orders of the Magistrate and into non-cognizable offences on the orders of the Magistrate. That is the effect of combined reading of Ss. 154, 155 and 156(1) (2) of the Code. Under S. 156 (3) the police is also required to investigate into the alleged commission of offences if ordered by the Magistrate empowered under S. 190 of the Code. 15. That is the effect of combined reading of Ss. 154, 155 and 156(1) (2) of the Code. Under S. 156 (3) the police is also required to investigate into the alleged commission of offences if ordered by the Magistrate empowered under S. 190 of the Code. 15. S. 156(3) of the Code envisages that the Magistrate empowered under S.190 only may order such investigation S. 190, which comes under Chapter XIV deals with certain conditions for initiation of proceedings, provides that subject to the provisions of Chapter XIV, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section(2), may take cognizance of any offence upon receiving a complaint of facts which constitute such offence; upon a police report of such facts, or upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. That is to say, ordinarily Magistrate alone, who can take cognizance of offences under S. 190, can direct investigation under S. 156 (3) of the Code. 16. By reading the two provisions along with the provisions of the Act of 1989, learned counsel has contended that as the case is exclusively triable by the Sessions Judge, nominated as Special Judge and the context trial must include the process of taking cognizance, the only person authorised to direct investigation in the offences under the Act of 1989 is the Sessions Court, specially notified in that behalf and no other Court is entitled to take cognizance and order investigation under S. 156 (3). He has buttressed his argument with Cl. (a) of proviso to sub-section (1) of S.202 of the Code which prohibits any direction for investigation to police under S. 202 (1) on receipt of the complaint where it appears to the Magistrate that the offence complained of is triable exclusively by the court of sessions. 17. The argument though attractive at the first sight fails on the deeper probe. 18. In this connection it is relevant to refer S. 193 of the Code, reproduced above. 17. The argument though attractive at the first sight fails on the deeper probe. 18. In this connection it is relevant to refer S. 193 of the Code, reproduced above. S. 193 is clear in its ambit that except as otherwise "expressly" provided by the Code or any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. 19. Whether such offence is under the India Penal Code or under any law, the Sessions Court is not entitled to take cognizance of any offence as a Court of original jurisdiction. In the absence of any "express" provision, it is the Magistrate alone empowered under S. 190 is entitled to take cognizance. The power of Sessions Court under the Code or as a Special Court nominated under the Special Act to take cognizance of any offence arises only after the case has been committed to it by the Magistrate. S. 193 of the Code is clear indication of the Scheme that for the purposes of S. 156(3), the Sessions Court or a Special Court does not become the Court empowered to take cognizance unless a express power has been conferred on the Sessions Court to take cognizance as the original Court by any special provision under the Special Act governing the offences. For illustration, it may be mentioned that S.5 of the Prevention of Corruption Act, 1988, confers such powers of taking cognizance of an offence expressly on the Special Judge appointed under the said Act. 20. Thus in my opinion, unless there is express provision for the Special Court or the Sessions Judge, to take cognizance of the offences under the Act of 1989, the power of the Magistrate to take cognizance under S. 190 is not excluded and the Sessions Court though is exclusively entitled to try the sessions case, is not empowered to take cognizance until the case is committed to it. This is also clear indication that in the context of controversy raised presently, taking cognizance is no part of trial. 21. Then there is fundamental difference between scope and ambit of direction to investigate under S.156 (3) and under S. 202 of the Code. The two provisions operate in distinct spheres and at different stages. This is also clear indication that in the context of controversy raised presently, taking cognizance is no part of trial. 21. Then there is fundamental difference between scope and ambit of direction to investigate under S.156 (3) and under S. 202 of the Code. The two provisions operate in distinct spheres and at different stages. Under S. 156 (1) read with S. 154 of the Code, the police exercises plenary power to investigate into any cognizance offence. It does not depend upon taking cognizance. The information to initiate such pre-cognizance investigation may emanate from any source, including an information from a court. The order under S. 156 (3) by a Magistrate to investigate is in the nature of information or reminder to police to carry out its obligation under S. 1 56. 22. However, where the complaint is submitted to a Magistrate authorised to take cognizance, the procedure prescribed in Chapter-XV of the Code is set on motion only on taking cognizance of offence by the Court. The opening provision of S. 200 of the Code reads "A Magistrate taking cognizance of an offence on complaint. . ." is clear indication that provisions of Chapter XV at all stages become operative only after a Magistrate takes cognizance of offence and not before. The act of taking cognizance though need not be in any specific form, but is a conscious act of the Magistrate on the basis of material before in after due application of mind. All acts prior to due application of mind to any material on record is not covered by any provisions of Chapter XV. It may be noticed that on receipt of complaint the Magistrate is not under an obligation to take cognizance, even if the allegation in complaint make out a case that an offence has been committed. The word used in S. 200 is may take cognizance and not shall take cognizance. The Magistrate has two options open to him. One course is to send the complaint to police for investigation without taking cognizance of offence. That will be an order falling under S. 156(3) of the Code. The other course open to him is to take cognizance and proceed in the manner provided under S. 200 and subsequent provisions of Chapter XV. That includes recording statement of complainant and his wit-nsses. That will be an order falling under S. 156(3) of the Code. The other course open to him is to take cognizance and proceed in the manner provided under S. 200 and subsequent provisions of Chapter XV. That includes recording statement of complainant and his wit-nsses. Thereafter, if he is satisfied that there is sufficient ground to proceed further, he may issue summons to the accused for appearance before him, or warrant to be brought before him as the case may be, under S. 204 of the Code. If before issuing such process the Magistrate in appropriate case if thinks fit to postpone the issue of process, he may himself hold an enquiry or direct the police to investigate into the question whether there is sufficient ground to proceed with the case. Obviously this stage is reached only after the Magistrate has applied his mind to material before it and decides to take one or other course open to him, as he thinks fit. This state of applying mind and deciding which way to proceed amounts to taking cognizance of offence. Thus while the Magistrate may direct the complaint for investigation to police agency as an information for proceeding under S. 156 (3) in discharge of its primary duty to investigate before taking cognizance of offence, it may require the police to investigate into existence of sufficient grounds to proceed further in the matter, after taking cognizance of the offence. In the former case, the stage is never reached where provisions of S. 202 can be invoked. Directing the complaint to police to investigate under S. 156(3) merely acts as information and reminder to exercise of plenary power of investigation at pre-cog-nizance stage and the Magistrate is not precluded from adopting this course even in respect of cases exclusively triable by Sessions Court, unless there are express provisions to that effect, as discussed above. 23. In my view, I am supported by a decision of Apex Court in Deva-rapalli Lakshminarayana Reddy Vs. Narayana Reddy (1), wherein their Lordships posed the following question for determination: "Whether in view of Clause (a) of the first proviso to S. 202 (1) of the Code of Criminal Procedure, 1973 a Magistrate who receives a complaint, disclosing an offence exclusively triable by the Court of Session, is debarred from sending the same to the police for investigation under S. 156(3) of the Code". 24. 24. Their Lordships answered the question in negative after observing as under:- "It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with "must take cognizance". The word "may" gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under S. 156 (3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself." Their Lordships further observed as under - "The power to order police investigation under Section 156 (3) is different from the power to direct investigation conferred by S. 202 (1). The two operate in distinct spheres at different stages. The first is exercisable at the pre cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under S. 156 (3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190 (1) (a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Sec. 156 (3). It may be noted further that an order made under sub-sec. (3) of see. 156, is in the nature of a pre-emptory reminder or intimation to the police to exercise their, plenary powers of investigation under S. 156(1), Such an investigation embraces the entire continuous process which begins with the collection of evidence under S. 156 and ends with a report or charge-sheet under S. 173. (3) of see. 156, is in the nature of a pre-emptory reminder or intimation to the police to exercise their, plenary powers of investigation under S. 156(1), Such an investigation embraces the entire continuous process which begins with the collection of evidence under S. 156 and ends with a report or charge-sheet under S. 173. On the other hand, Section 202 comes in at a stage then evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under S. 202 to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding". Thus the object of an investigation under S. 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. 25. The case is on all fours. 26. In the instant case, the Magistrate so soon he received complaint, ordered on the complaint itself the police to investigate, as quoted above, he did not bring into motion the procedure of Chapter XV of the Code. He did not examine the complainant or his witnesses, which is the first step prescribed under S. 200 of the Code. The stage of taking next step of deciding to proceed further or to postpone the issue of process and direct investigation as a result of due applications of mind after taking cognizance did not reach, in as much as, no act suggestive of taking cognizance appear on record. The Magistrate instead of taking cognizance of offence, has in exercise of his discretion sent the complaint for investigation by police under S. 156 (3). 27. Learned counsel for the petitioners urged that the Honble Supreme Court has struck a discardant note in Sampat Singh Vs. State of Haryana (2). 28. Having carefully considered the aforesaid decision, I am unable to accept the contention of the learned counsel. It was a case arising under Prevention of Corruption Act. 27. Learned counsel for the petitioners urged that the Honble Supreme Court has struck a discardant note in Sampat Singh Vs. State of Haryana (2). 28. Having carefully considered the aforesaid decision, I am unable to accept the contention of the learned counsel. It was a case arising under Prevention of Corruption Act. The question which arose for consideration of their Lordship was not the power of Magistrate to order investigation under S. 156 (3) of the Code in cases exclusively triable by the Special Court, but whether the Magistrate has got power to act on the basis of cancellation report one way or other under S. 173 of the Code. The Court opined about the duty of court competent to act in this regard in the following term : "When an investigation culminates into a final report as contemplated under S. 173 of Cr.P.C, then the competent court enjoins a duty Within its authority sanctioned by law to scrupulously scrutinise the final report and the accompaniments by applying its judicial mind and take a decision either to accept or reject the final report. In the present case, that stage has come on the submission of the final report, namely the cancellation report, by the investigating officer". 29. It was in the context of the aforesaid duty to act with judicial mind in dealing with a final report the court held that such duty must be discharged by the court competent to try the offence and as under section 5 of the Prevention of Corruption Act the offences are triable by Special Judge also, the court held as under:- "In the instant case, the case is registered under Ss. 161 and 165 of the Indian Penal Code and under S. 5 (2) of the Prevention of Corruption Act, which offences can only be tried by a Special Court. We think it is not necessary to expatiate the proposition of law in this regard but suffice to refer to the decision in A.R. Antulay Vs. R.S. Nayak (3) wherein at page 44, the following dictum is laid down: "Section 7(1) of the 1952 Act creates a condition which is sine qua non for the trial of offences under Sec. 6(1) of the said Act. R.S. Nayak (3) wherein at page 44, the following dictum is laid down: "Section 7(1) of the 1952 Act creates a condition which is sine qua non for the trial of offences under Sec. 6(1) of the said Act. The condition is that notwithstanding anything contained in the Code of Criminal Procedure or any other law, the said offences shall be triable by Special Judges only," "In the light of the above observation, it was necessary for the Magistrate to have sent the final report to the Special Court which is alone competent to try the case." 30. Thus the ratio of Sampat Singhs case (supra) can have no application to the issue in the present case, which is squarely governed by ratio in Laxminarayanas case (supra). 31. Moreover as noticed above the Prevention of Corruption Act makes specific and express provision authorising Special Court to take cognizance of the offence and the Special Court, come within the preview of a Magistrate empowered to take cognizance under S. 190 of the Code. 32. As a result of aforesaid decision, this petition must fail and the same is hereby dismissed.