DAULAT RADHU BHATIJA v. STATE OF DELHI — 1994 DIGILAW 268 (DEL)

S. C. Jain, J. ( 1 ) THE facts giving rise to this writ petition, in brief are that Sh. Sunil Bagga (hereinafter referred to as Respondent No. 2)as attorney of M/s S. A. S. Exports, A-30 Bapu Park, Kotia Mubarak Pur, New Delhi filed a complaint before Additional Chief Judicial Magistrate. New DELHI purporting to be undersection 156 Cr. P. C. against Sh. Daulat Radhu Bhatija (hereinafter referred to as the Petitioner) seeking a direction to the S. H. O. Police Station Kotia Mubarak Pur, New Delhi to register a case for offences undersections 420/506/379/323 Indian Penal Code. and investigate the same and file a report under Section 173 Cr. P. C. ( 2 ) SH. Sukhdev Singh, M. M, to whom this case was assigned, by his Order dated 19. 7. 1993 directed the S. H. O. Police Station Kotla Mubarak Pur to get a case registered and investigate the same under Section 156 (3) Cr. P. C. and to submit his report on 10. 8. 1993. ( 3 ) IT is this order of the M. M. which has been challenged in this writ petition. Investigation being made by the police pursuant to the order dated 19. 7. 1993 has also been sought to be quashed. ( 4 ) LEARNED counsel for the petitioner while challenging the order passed by the learned M. M. argued that on presentation of the complaint, the M. M. has to examine the complainant on oath and all his witnesses present. The Magistrate would not examine the complainant only if the case is covered by proviso (a) of Section 200 Cr. P. C. According to the learned Counsel the M. M. without taking cognizance of the matter illegally directed the police to register the case and to investigate under Section 156 (3) Cr. P. C. and to submit the report. According to the learned counsel the-M. M. in an appropriate case can order investigation or further investigation by police under Section 156 (3) Cr. P. C, but only to find out the truth or falsehood of the contents of a complaint as a scope of enquiry undersection 202 Cr. P. C. is limited to find out the truth or otherwise of the complaint in order to determine whether process be issued or not. Learned counsel submitted that the Magistrate in terms of Section 156 (3) Cr. P. C. is limited to find out the truth or otherwise of the complaint in order to determine whether process be issued or not. Learned counsel submitted that the Magistrate in terms of Section 156 (3) Cr. P. C, can send the complaint to police for investigation and not for registration of the case. According to the learned counsel the procedure adopted by the Magistrate is illegal and the impugned order is not sustainable. ( 5 ) REGARDING quashing of the proceedings the learned counsel submitted that no case either under Section 420 Indian Penal Code. or undersection 5061. P. C. orunderany other provision of law is made out against the petitioner even on prima facie ground and also on the basis of the report submitted by the police as per the order of the M. M. and as such these proceedings and investigation are also liable to be quashed. ( 6 ) ON receipt of a complaint a Magistrate has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to recordstatements of the complainant and the witnesses present under Section 200. After recording those statement, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203. On the other hand, if in his opinion there is sufficient ground for proceeding, he may issue process undersection 204. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he things fit, for the purpose or deciding whether or not there is sufficient ground for proceeding. Another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156 (3 ). When such an order is made, the police will have to investigate the matter and submit a report under Section 173 (2 ). On receiving the police report the Magistrate may take cognizance of the offence under Section 190 (1) (b) and issue process straightaway to the accused. ( 7 ) IT has been laid down by the Hon ble Supreme Court in Devarapalli Lakshminarayana Reddy Vs. On receiving the police report the Magistrate may take cognizance of the offence under Section 190 (1) (b) and issue process straightaway to the accused. ( 7 ) IT has been laid down by the Hon ble Supreme Court in Devarapalli Lakshminarayana Reddy Vs. V. Narayana Reddy and Others (1976 S. C. C. {cri} 380) that "the power to order police investigation under Section 156 (3) is different from the power to direct investigation conferred by Section 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. Therefore, in the case of a complaint regarding the commission of a cognizable of fence, the power under Section 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 Section 156 (3 ). ( 8 ) IT is well settled that the order directing the police to investigate the case under Section 156 (3) Cr. P. C. can be validly made but it should be at the precognizance stage. When a magistrate receives complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has discretion 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 Section 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 bejustified in adopting that course as an alternative to taking cognizance of the offence himself. ( 9 ) IT is to be seen whether the order passed by the Magistrate under Section 156 (3) Cr. P. C. is before taking cognizance by the Magistrate or not. It is well settled as has been laid down by the Hon ble Supreme Court, in Jamuna Singh Vs. ( 9 ) IT is to be seen whether the order passed by the Magistrate under Section 156 (3) Cr. P. C. is before taking cognizance by the Magistrate or not. It is well settled as has been laid down by the Hon ble Supreme Court, in Jamuna Singh Vs. Bhadai Sah (A. I. R. 1964 S. C. 1541) and followed in Tula Ram and Others Vs. Kishore Singh (A. I. R. 1977 S. C. 2401) that "when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions ofchapter XVI of Cr. P. C. he must be held to have taken cognizance of the offence mentioned in the complaint. When however he applies his mind not for such purpose but for proposes of ordering investigation under Section 1. 56 (3) or issuing a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence. " ( 10 ) ON facts, 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 aninvestigation under Section 156 (3) Cr. P. C. Instead of taking cognizance of the offence, he has in the exercise of his discretion sent the complaint for investigation by police undersection 156cr. P. C. From the facts of this case, it is apparent that the order passed by the Magistrate is at the precognizance stage. ( 11 ) LEARNED counsel for the petitioner relies upon a decision of Punjab and Haryana High Court in Rughbir Singh Vs. State of Haryana (1990 Vol. 1 Crimes 600) for the proposition that the order of the Magistrate directing registration of the case while exercising power under Section 156 (3) Cr. P. C. is illegal. The facts of the cited decision show that the Magistrate had already taken cognizance of the offence undersection 190 (1) (a) of the Cr. P. C. inasmuch as the trial Magistrate in the said case had already recorded some evidence and, therefore, the Magistrate could not legally invoke his power under Section 156 (3) Cr. P. C. Likewise in the case of Rattan Amol Singh and Anothervs. State of Punjab and Another (1988vol. P. C. inasmuch as the trial Magistrate in the said case had already recorded some evidence and, therefore, the Magistrate could not legally invoke his power under Section 156 (3) Cr. P. C. Likewise in the case of Rattan Amol Singh and Anothervs. State of Punjab and Another (1988vol. 2 RCR 600), the Magistrate had already taken cognizance of the offence under Section 190 (a) (i) and had already recorded some evidence. The decision of the Supreme Court in M/s India Carats Pvt. Ltd. Vs. State of Karnataka and Another (1989 [1] R. C. R. 395) does not directly deal with the question whether the Magistrate while acting undersection 156 (3) of Cr. P. C. is legally empowered to order registration of the case of not. ( 12 ) THE Single Bench of Punjabi Haryana High Court took the view in Jagdish Rai and Others Vs. State of Punjab and Another (1988 [i I R. C. R. 202) that "even if direction of the Magistrate, with the order for registering a case on the complaint, is some what irregular, the registration of the FIR and the investigation following it cannot be said to be illegal as even otherwise, the Police Officer could register a case and investigate and then submit a report under Section 173 of the Code of Criminal Procedure. ( 13 ) THE aforesaid decision in the case of Jagdish Rai was cited with approval by another learned Single Judge of Punjab and Haryana High Court in Baru Ram and Others Vs. The State of Haryana and Another (1990 CC Cases 118 HC ). ( 14 ) IN the present case the Magistrate has exercised power under Section 156 (3) Cr. P. C. at the pre-cognizance stage. In the facts and circumstances of this case the order of the Magistrate directing the police to register a case under Section 156 (3) Cr. P. C. may be somewhat irregular but that is of no consequence and it cannot be held to be illegal and the order in so for as it directs the investigation and calls for a report at this pre-cognizance stage is perfectly legal and cannot be said to beeither irregular or illegal. The arguments raised by learned counsel for the petitioner, therefore, are not legally sustainable. The arguments raised by learned counsel for the petitioner, therefore, are not legally sustainable. ( 15 ) REGARDING the quashing of the investigation and the proceedings, the law is well settled, as has been laid down by the Hon ble Supreme Court in State of Haryana and Others Vs. Ch. Bhan Lal and Others (AIR 1992 S. C. 604 ). Their Lordships of the Supreme Court have laid down seven categories wherein the High Court may in exercise of powers under Articles 226 or undersection 482 Cr. 0 P. C. may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Courier otherwise to secute the ends of justice. However, as a word of caution, it has been observed that the power should be exercised sparingly and that too in the rarest of rare cases. ( 16 ) IN this case, the Magistrate has not taken cognizance of the offence, though a report has been submitted which shall be treated by him undersection 173 (2) Cr. P. C. He might drop the proceedings, if he comes to the conclusion that there is no case for taking cognizance in the matter and at this stage, we do not find any ground for quashing the investigation and the proceedings. ( 17 ) ACCORDINGLY, the Writ Petition is dismissed.