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2001 DIGILAW 11 (KAR)

Jayalakshmma v. State by C. C. B. by its D. C. P.

2001-01-02

V.G.SABHAHIT

body2001
ORDER V.G. Sabhahit, J.—This revision under Section 397 read with 401 of the Code of Criminal Procedure is filed by the accused-1 and 2 in C.C. No. 2397 of 1999 on the file of the 4th Additional Chief Metropolitan Magistrate, Bangalore against the order dated 15.7.1999. 2. The facts of the case in brief necessary for the disposal of this revision are as follows: A private complaint was filed under Section 200 of Code of Criminal Procedure, against accuseds-1 to 6 on 17.4.1998. The said complaint was presented before the Additional Chief Metropolitan Magistrate on 17.4.1998 was ordered to be registered as P.C.R. 126 of 1998 and the complaint was referred to Deputy Commissioner of Police, East for investigation and report who in turn directed the Jeevan Bheema Nagar Police for enquiry and Jeevan Bheema Nagar Police have filed F.I.R. on 21.4.1998 and after enquiry, they submitted 'B' report on 18.8.1998. Which was sent to the Court on 28.11.1998. A notice was sent to the complainant on the said report and the complainant appeared before the learned Magistrate and filed protest petition dated 6.1.1999 to reject the 'B' report and to take cognizance of the offences and punish the accused in accordance with law and to refer the matter to City Crime Branch (CCB) for further investigation under Section 156(3) of Code of Criminal Procedure. The learned Magistrate by order dated 7.1.1999, after hearing the counsel for the complainant rejected the 'B' report submitted by the J.B. Nagar Police and directed to refer the complaint to D.C.P., C.C.B., Bangalore for further investigation and to submit the report as per Section 156(3) Code of Criminal Procedure and thereafter, charge sheet was filed before the learned Magistrate by the C.C.B. on 8.7.1999 and on 15.7.1999, the learned Magistrate took cognizance and ordered to register the case and issued summons to the accused returnable by 14.10.1999. Being aggrieved by the said order, the accused-1 and 2 (Petitioners herein) have preferred this revision petition. 3. I have heard the learned Counsel appearing for the Petitioners and the learned High Court Government Pleader appearing for the Respondent. 4. Being aggrieved by the said order, the accused-1 and 2 (Petitioners herein) have preferred this revision petition. 3. I have heard the learned Counsel appearing for the Petitioners and the learned High Court Government Pleader appearing for the Respondent. 4. It is contended by the learned Counsel appearing for the Petitioners that the order of the learned Magistrate taking cognizance against the Petitioners and issuing summons on the basis of the charge sheet filed by the CCB for the offences punishable under Section 471, 420 read with 198 Indian Penal Code cannot at all be sustained. He submitted that once the learned Magistrate by his order dated 7.1.1999 held that the 'B' report was liable to be rejected, he ought to have proceeded in accordance with law after recording the statement of the complainant as per the decision of the Supreme Court in (1) Tula Ram and Others Vs. Kishore Singh, AIR 1977 SC 2401 , (2) H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), AIR 1980 SC 1883 and the decision of this Court in Balasubramanya Vs. Srikanth, ILR (1993) KAR 2356. 5. The learned High Court Government Pleader argued in support of the order and submitted that what is contended by the learned Counsel appearing for the Petitioners is only a curable and does not entail setting aside the impugned order by exercising the revisional jurisdiction of this Court. 6. It is clear from the perusal of the original records of the proceedings before the learned Magistrate that on the basis of the private complaint filed against accuseds-1 to 6 (Petitioners were arrayed as accused-1 and 2), the learned Magistrate by his order dated 17.4.1998 referred the matter under Section 156(3) for investigation by the police and at that stage, he does not recorded the statement of the complainant nor taken cognizance and he has only referred the matter for investigation under Section 156(3) of Code of Criminal Procedure and Jeevan Bheema Nagar police filed 'B' report after investigation and on the protest petition filed by the complainant, the learned Magistrate by order dated 7.1.1999 rejected the 'B' report. However, by the same order he directed to refer the complaint to D.C.P., C.C.B., Bangalore for further investigation again under Section 156(3) and after filing of the charge sheet by the C.C.B. police, the learned Magistrate chosen to take cognizance of the offences against the Petitioners and he has issued summons. 7. There is a force in the contention of the learned Counsel appearing for the Petitioners. The learned Magistrate having held that 'B' report filed on the basis of the investigation conducted under Section 156(3) Code of Criminal Procedure, is liable to be rejected, would not have again referred the matter for further investigation under Section 156(3). It is well settled by the decision of the Supreme Court in Tula Ram and Others Vs. Kishore Singh, AIR 1977 SC 2401 and H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), AIR 1980 SC 1883 that where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of Code of Criminal Procedure and receives the final report from the police under Section 173(1) Code of Criminal Procedure, thereafter, the Magistrate can adopt any one of the following three modes: (1) He may decide that there is no sufficient ground for proceeding further and drop action. (2) He may take cognizance of the 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 Code of Criminal Procedure or he may hold or direct an inquiry under Section 202 of Code of Criminal Procedure if he thinks fit. 8. The same principles have been followed and reiterated by this Court in Balasubramanya Vs. Srikanth, ILR (1993) KAR 2356 , wherein it is held: When the Magistrate directs an investigation under Section 156(3) Code of Criminal Procedure or other of two things may follow. The Police, after holding the investigation direct, may find the case to be true and may make a report to that effect under Section 170. If such report is received by the Magistrate, he may proceed to issue process against the accused persons. The Police, after holding the investigation direct, may find the case to be true and may make a report to that effect under Section 170. If such report is received by the Magistrate, he may proceed to issue process against the accused persons. If on the other hand, the Police finds the case to be false and reports accordingly, which report also, it appears, is to be made under Section 170, the Magistrate has nothing further to do in the chain of that proceeding. He is in seisin of nothing and neither the police nor anybody else is complaining before him and insisting that a proceeding should be started or any further enquiry held. When a police enquiry or investigation is directed under Section 202 Code of Criminal Procedure and the police report is against the complainant, there is a practice of entertaining what are called 'naraji' petitions or protest petitions. Even Section 202 does not contain any express provisions that such petition can be filed, but they are always filed and entertained, presumably on the basis that since the Magistrate has taken cognizance upon examination of the complainant on oath, he is in seisin of the case and an application to a Court which is in seisin of a case can always be made. The position under Section 156(3) or to be more correct Section 170 is far different. It is true that if the complainant is dissatisfied, he may come even at that stage to file a petition embodying his dissatisfaction. If it is so treated, then the complainant will have to be examined on oath before any further action is taken on the petition. In the instant case, it is not disputed that the complainant was not examined on oath before referring the case for Police investigation under Section 156(3) Code of Criminal Procedure. Therefore, it cannot be said that the Magistrate was in seisin of the case. 9. In the instant case, it is not disputed that the complainant was not examined on oath before referring the case for Police investigation under Section 156(3) Code of Criminal Procedure. Therefore, it cannot be said that the Magistrate was in seisin of the case. 9. The principles laid down by this Court applies on all fours to the facts of this case as the learned Magistrate in the present case also has not examined the complainant on oath before ordering further investigation and in view of the decision of the Supreme Court and this Court, having rejected the 'B' report, the appropriate course to be adopted by the learned Magistrate was to record the statement of the complainant on oath and thereafter proceed in accordance with law. Wherefore, the order of the learned Magistrate referring the case for further investigation under Section 156(3) Code of Criminal Procedure to the Deputy Commissioner of Police, C.C.B., Bangalore and taking cognizance on the basis of the said report cannot at all be sustained as the very reference of complaint for investigation by order dated 7.1.1999 itself is illegal and wherefore, the order of the learned Magistrate from the state of referring the complaint for further investigation under Section 156(3) by order dated 7.1.1999 cannot be sustained and the same is liable to be set aside and the learned Magistrate has to be directed to proceed in accordance with law after having rejected the 'B' report by order dated 7.1.1999 in the light of the decision of the Supreme Court and this Court referred to above. Accordingly, I pass the following order. 10. The revision petition is allowed. The impugned order dated 15.7.1999 passed by the I Additional Chief Metropolitan Magistrate, Bangalore in C.C. No. 2397 of 1999, taking cognizance against the Petitioners on the basis of the charge sheet filed by the Police Inspector of Police C.C.B., Bangalore for the offence punishable under Section 471, 420 read with 198 Indian Penal Code against the Petitioners is set aside and the learned Magistrate is directed to proceed in accordance with law in the light of the observations made in the body of the order.