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1999 DIGILAW 284 (MP)

MANORAMA PATEL v. SUBHASH SONI

1999-04-07

S.P.KHARE

body1999
S. P. KHARE, J. ( 1 ) THIS is a revision by the accused persons against the order by which their application for dismissal of the complaint has been rejected. ( 2 ) ON 10-1-1995 respondent-Subhash Soni filed a complaint before the Judicial Magistrate First Class, Jabalpur. He sent this complaint to the Police under Section 156 (3) of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the Code) for investigation. On receipt of the police report he took cognizance of the offences under Sections 323, 294 and 506, Part I, I. P. C. and issued process against the petitioners. ( 3 ) THE contention of the petitioners is that the cognizance of the offences has been taken on the basis of complaint under Section 190 (1) (a) of the Code and, therefore, it was necessary for the Magistrate to examine the complainant and his witnesses on oath as required by Section 200 of the Code and then alone summons could be issued for the attendance of the accused if there was sufficient ground for proceeding against them. It is further argued that the Magistrate had no jurisdiction to issue the process against the accused without following the procedure laid down in Sections 200, 202 and 204 of the Code. ( 4 ) ON the other hand it has been pointed out that the complaint was sent for investigation to the police under Section 156 (3) of the Code at the pre-cognizance stage and on receipt of the police report the cognizance has been taken under Section 190 (1) (b) of the Code and, therefore, it was not necessary to follow the procedure prescribed for complaint case. ( 5 ) AFTER hearing the learned counsel for both the sides this Court is of the opinion that there is no legal infirmity in the impugned order. Section 190 (1) (a) of the Code provides that the Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence. This does not mean that once a complaint is filed, the Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of an offence. The word 'may' cannot be construed as 'must'. This does not mean that once a complaint is filed, the Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of an offence. The word 'may' cannot be construed as 'must'. A complaint disclosing a cognizable offence may well justify a Magistrate in sending the complaint, under Section 156 (3) of the Code, to the Police for investigation. That would be the pre-cognizance stage. There is no reason why the time of the Magistrate should be wasted when the duty to investigate the cases involving cognizable offences is primarily with the police. The report submitted by the police consequent upon the investigation under Section 156 (3) of the Code would be treated as 'police report' for purposes of taking cognizance under Section 190 (1) (b) of the Code. Even if the police report under Section 173 (2) of the Code states that no offence appears to have been committed the Magistrate disagreeing with the conclusion of the police may issue process to the accused if in his opinion there is sufficient ground for proceeding on the basis of the material available before him. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence, on receipt of a complaint, without police investigation and if he does so he would be required to follow the procedure laid down in Sections 200 to 204 of the Code. ( 6 ) IN H. S. Bains v. State, AIR 1980 SC 1883 : (1980 Cri LJ 1308) the Supreme Court has held that the Magistrate instead of taking cognizance of the offence may order an investigation under Section 156 (3 ). The police will then investigate 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 straightway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police will then investigate 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 straightway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. A Magistrate who on receipt of a complaint, orders investigation under Section 156 (3) and receives a police report under Section 173 (2), may thereafter, do one of the three things; (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of offence under Section 190 (1) (b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190 (1) (a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative he may hold or direct an enquiry under Section 202 if he thinks fit. Thereafter, he may dismiss the complaint or issue process, as the case may be. ( 7 ) THE decision of the Supreme Court referred above has recently been relied upon by this Court in Shyamlal v. Lavkush, 1999 0 MPLJ 260, while dealing with a case where the complaint was dismissed under Section 203 without following the procedure prescribed under Sections 200 and 202 of the Code. ( 8 ) IN India Carat Pvt. Ltd. v. State of Karnataka, AIR 1989 SC 885 : (1989 Cri LJ 963) also the Supreme Court has expressed the same view. It has been observed that even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156 (3) the police would have had to submit a report under Section 173 (2 ). It has been observed that even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156 (3) the police would have had to submit a report under Section 173 (2 ). If the police officer after making an investigation, sends a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190 (1) (b) and issue process or in the alternative, he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of the opinion that the case should be proceeded with. ( 9 ) AGAIN in Madhu Bala v. Suresh Kumar, AIR 1997 SC 3104 : (1997 Cri LJ 3757) it has been reiterated that when a written complaint disclosing a cognizable offence is made before a Magistrate, he may take cognizance upon the same under Section 190 (1) (a) of the Code and proceed with the same in accordance with the provisions of Chapter XV. The other option available to the Magistrate in such a case is to send the complaint to the appropriate police station under Section 156 (3) for investigation. Once such a direction is given under sub-section (3) of Section 156 the police is required to investigate into that complaint under sub-section (1) thereof and on completion of investigation to submit a "police report" in accordance with Section 173 (2) on which a Magistrate may take cognizance under Section 190 (1) (b ). The complaint, as soon as an order under Section 156 (3) is passed thereon, transforms itself into a report given in writing within the meaning of Section 154 of the Code which is known as the first information report (FIR ). When an order for investigation under Section 156 (3) of the Code is to be made the proper direction to the police would be"to register a case at the police station treating the complaint as first information report and investigate into the same". When an order for investigation under Section 156 (3) of the Code is to be made the proper direction to the police would be"to register a case at the police station treating the complaint as first information report and investigate into the same". ( 10 ) IN view of the foregoing discussion of the legal position on the question of law which has been raised in this revision petition the Magistrate has followed the correct procedure in taking cognizance of the offences on the basis of police report under Section 190 (1) (b) of the Code and issuing process to the accused having found sufficient ground to proceed against them. Having done so it was not necessary to take recourse to the other option of reverting back to the complaint and take cognizance under Section 190 (1) (a) after following the procedure under Sections 200 to 204 of the Code. This revision petition is, therefore, dismissed. The point which has been raised and answered in this revision petition is of day-to-day occurrence and, therefore, a copy of this order be circulated to all the Judges and Magistrate in the State. Petition dismissed. .