Research › Browse › Judgment

Karnataka High Court · body

1997 DIGILAW 292 (KAR)

BHARATIBEN VERMA v. N. G. LOKANATH SINGH

1997-06-13

M.P.CHINNAPPA

body1997
( 1 ) THE short point involved in this case is: Whether the Magistrate has jurisdiction to direct the police to investigate into the matter after taking cognizance and recording sworn statement of complainant and witnesses under S. 202 (1), Cr. P. C. ( 2 ) HEARD the learned counsel for the petitioner and the learned counsel for the Respdt. ( 3 ) THE brief facts leading to this case are: the respondent made a report to the Station House Officer, High Grounds Police /station on 14-9-1995 against the petitioners which came to be registered in Crime No. 501/95 for the alleged offences under Ss. 420 and 465, IPC. The police sent the FIR to the VIII Additional Chief Metropolitan Magistrate, Bangalore. After investigation, the police filed a 'b' Summary Report on 1-7-1996 as per Document No. 1. The allegations made in the complaint are that the petrs. have altered the cheque amount of 'rs. 2,78,916/-' into 'rs. 32,78,716/-' and attempted to encash the cheque with dishonest attention of making unlawful gain for themselves and that therefore they forged and altered the cheque. After submission of the 'b' Summary Report, the complainant filed a protest petition on 19-7-1996 and requested the court either to take cognizance of the offence or to direct the investigation by a competent police officer through the Commissioner of Police, Bangalore. On 25-10-1996, the court had taken cognizance and had recorded the sworn statement of the complainant and thereafter, on 29-10-1996 after examining 2 witnesses, referred the case under S. 202 (1) Cr. P. C. to the Circle Inspector of Police, Sanjay Nagar PS. along with C. C of all the documents marked, copy of the statement of witnesses, copy of FIR and all related documents. Thereafter, the police registered a case in Crime. No. 450/96. On the requisition submitted by the police, the court also issued notice to the accused persons directing them to produce the cheque and assist the Investigating Officer in the case. Thereafter, on 6-1-97, the I. O. submitted that the accused is deliberately absconding from his residence. On his request, the Court has passed an order to issue NBW to accused. These orders of the learned Magistrate are questioned in this petition. Thereafter, on 6-1-97, the I. O. submitted that the accused is deliberately absconding from his residence. On his request, the Court has passed an order to issue NBW to accused. These orders of the learned Magistrate are questioned in this petition. ( 4 ) THE learned counsel for the petitioners at the very outset submitted that when once the Magistrate has taken cognizance of the offence and record the sworn statement of witnesses, he is not empowered to refer the case to the police for investigation under S. 202 (1) Cr. P. C. He also further submitted that the Magistrate ought to have either continued the enquiry by itself or directed the police to investigate the matter before recording the sworn statement of complaint and witness. ( 5 ) PER contra, the learned Counsel for the respondent submitted that the Magistrate after having been satisfied that there are matters to be investigated by the police directed them to investigate into the offence. The accused persons were not before the court when the order came to be passed. Therefore, it is not open to them to question the said order. He further submitted that the order passed by the learned Magistrate is in accordance with S. 202 (1) Corp. and it does not call for interference. ( 6 ) IN support of this argument, the learned Counsel for the petitioners placed reliance on a decision reported in Nagawwa v. Veeranna Shivlingappa Koujalagi, ILR (1975) Kant 769: (1975 Cri Lj 1367) wherein it is held: that the Magistrate having commenced enquiry himself, he referring the case to police for report is not legal. In this case enquiry was not commenced for that mater, the accused were not summoned. ( 7 ) HOWEVER, the learned counsel for the respondent placed reliance on a decision reported in (1984) 2 SCC 500 : (1984 Cry LJ 647) A. R. Antulay v. Ramdas Srinivas Nayak wherein it is held that court has discretion either to issue process after examining the complaint or witness, if any, or to hold enquiry or direct investigation. Subsequently, in (1976) 3 SCC 252 : (1976 Cri LJ 1) Devarapalli Lakshminarayan Reddy v. Narayana Reddy the Hon'ble Supreme Court has considered the difference between S. 156 (3) and S. 202 (1) of the Cr. Subsequently, in (1976) 3 SCC 252 : (1976 Cri LJ 1) Devarapalli Lakshminarayan Reddy v. Narayana Reddy the Hon'ble Supreme Court has considered the difference between S. 156 (3) and S. 202 (1) of the Cr. P. C. , wherein it is held:"the power to order police investigation under S. 156 (3) is different from the power to direct investigation conferred by S. 202 (1 ). The two operate is distinct spheres at difference stages. The first is exercisable at the pre-cognizance stage, the second at the post - cognizance stage when the Magistrate is in Session of the case. "therefore, 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 the takes cognizance of the offence under S. 190 (1) (a) but if he once takes such cognizance and embarks upon the procedure imputed in chapter XV is not competent to switch back and order investigation under S. 156 (3 ). The police after registering the case investigated the matter and submitted 'b' report. Therefore, the complainant had filed a protest petition. At that time, the learned Magistrate has taken cognizance, recorded the sworn statement of the complainant and witnesses and thereafter he felt that it requires further investigation into the matter. Under the circumstances he passed the order directing the sub - Inspector to investigate into the matter. Therefore, this order came to be passed under S. 202 (1) Cr. P. C. A bare reading of S. 202 also clearly discloses that the Magistrate has power to refer the matter to the police for further investigations. Therefore, the contention of the learned Counsel for the petitioners that the learned Magistrate after recording sworn statement has no power to direct the police to investigate into he offence is unsustainable. ( 8 ) THIS is further fortified by a decision rendered by the Hon'ble Supreme Court in a decision reported in (1997) I S C C 361 ( AIR 1997 SC 639 ) Randhir Singh Rana v. State (Delhi Administration ). In that case, their Lordships have observed that A Judicial Magistrate, after taking cognizance of an offence on the basis of police report and after appearance of the accused cannot order of his own further investigation in that case. In that case, their Lordships have observed that A Judicial Magistrate, after taking cognizance of an offence on the basis of police report and after appearance of the accused cannot order of his own further investigation in that case. (Emphasis supplied) In this case as stated earlier, the Magistrate has taken cognizance of the offence but the accused persons have not summoned to appear before the Court. Even before the accused were summoned before Court, the Magistrate has passed the order. Therefore, the action taken by the learned Magistrate under S. 202 (1) is valid and in accordance with law. Their Lordships also considered the judgment rendered by the Supreme Court in Devarapalli Lakshminarayana Reddy's case (1976 Cri LJ 1361), referred to supra. In the aforesaid judgment it is clear that the Hon'ble Supreme Court set aside the order passed by the learned Magistrate directing the police to investigate the matter after the accused persons appeared before the court. For the foregoing reasons, I hold that the Magistrate has jurisdiction to direct the police to investigate into the matter after taking cognizance and recording the sworn statement of complainant and witnesses u/s. 202 (1) Cr. P. C. However, it is made clear that the Magistrate has no power to direct investigation after the accused appeared before the Court on being summoned. ( 9 ) THE learned counsel for the petitioners however pointed out that the learned Magistrate issued non - bailable warrant against the accused at eh request of the Investigating Officer on the ground that the petitioner has not been co-operating with the police in investigating into the case. This order was unwarranted. The police should have dealt with the matter according to the law. In this case, the Court has not issued summons to the accused to appear before the Court before taking cognizance of the case. On the other hand, the Court proceeded to record the sworn statement and directed the police to investigate into the offence under S. 202 (1), Corp. as stated above. It is not a case of the accused not appearing before the Court after the summons being served on them. On the other hand, only on the allegation made by the I. O. that the accused have deliberately absconded from the residence, the Magistrate ought not to have issued NBW to the accused. as stated above. It is not a case of the accused not appearing before the Court after the summons being served on them. On the other hand, only on the allegation made by the I. O. that the accused have deliberately absconded from the residence, the Magistrate ought not to have issued NBW to the accused. This order is palatably illegal and the same is liable to be set aside. It was open to the police to seize the cheque for the purpose of investigation instead of approaching the Court with a requisition to issue NBW against the accused persons on untenable grounds. Hence, the order so far as it relates to issuance of NBW against the petitioners is set aside and the NBW issued against the accused is recalled. ( 10 ) FOR the foregoing reasons, the petition is dismissed subject to the recalling of the NBW as indicated above. Petition dismissed. --- *** --- .