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2001 DIGILAW 14 (ORI)

Suresh Chand Jain v. State of Madhya Pradesh

2001-01-10

K.T.THOMAS, R.P.SETHI

body2001
JUDGMENT K. T. THOMAS, J.— Leave granted. 2. A complaint was forwarded by a Magistrate to the police for registering an FIR and for conducting investigation. One of the persons arrayed in the complaint as accused questioned the legality of above order first in revision before the Sessions Court and then by invoking the inherent powers of the High Court. Both did not succeed. This appeal is by the same person contend¬ing that the order of the Magistrate should have been upset in the interest of justice. 3. The complaint was filed by the second respondent (Mahesh Patidar) before the Chief Judicial Magistrate, Neemuch (M.P.) on 12.8.1999 alleging that the appellant and his wife, Geeta Devi have committed offence under Sec. 3 of the Prized Chits and Money Circulation Scheme (Prohibition) Act and under Sec. 420 of the Indian Penal Code. The Chief Judicial Magistrate passed an order on 18.8.1999 which is extracted below : “The complaint submitted by the complainant has been pe¬rused. This complaint has been submitted by the complainant for initiating action against the accused under Sec. 3 of the Prizes, Chits and Money Circulation Scheme (Prohibition) Act and Sec. 420 of the IPC. Both the offences are serious, therefore, the case is required to be investigated by the Police Station, Neemuch Cantt. under Sec. 156 (3), Cr.P.C., therefore, the complaint submitted by the complainant be sent to the in charge Police Station, Neemuch Cantt. with the direction to register F.I.R. and initiate inves¬tigation. The copy of the F.I.R. be sent to this Court immediate¬ly.” 4. Appellant challenged the said order in a revision before the Sessions Court and when the revision was dismissed he moved the High Court under Sec. 482 of the Code of Criminal Procedure (for short ‘the Code’). Learned Single Judge of the High Court of Madhya Pradesh took the view that “in a private complaint case under Sec. 156 (3) of the Code the Magistrate is empowered to order investigation; the allegation made in the complaint needs to be investigated in public interest.” 5. Shri R.K.Jain, learned senior Counsel contended first that a Magistrate on receipt of a complaint should have examined the complainant on oath before proceeding to any other step. Learned senior Counsel adopted the alternative contention that the Magistrate has no power to direct the police to register an FIR. Shri R.K.Jain, learned senior Counsel contended first that a Magistrate on receipt of a complaint should have examined the complainant on oath before proceeding to any other step. Learned senior Counsel adopted the alternative contention that the Magistrate has no power to direct the police to register an FIR. In support of the said contention learned Counsel cited two decisions. One is Ram Narain v. Lokuram [1986 (37) Rajasthan Law Weekly 143] and the other was rendered by the Punjab and Haryana High Court in Suresh Kumar v. State of Harayana [1996 (3) Recent Criminal Reports 137]. 6. The former decision of the Rajasthan High Court need not vex our mind as the consideration focused therein was on the scope of Sec. 202 (1) of the Code and the learned Single Judge observed therein that a Magistrate cannot make any order regard¬ing police investigation without examining the complainant on oath. If the facts in that case remained one under Sec. 202 (1) of the Code then the observation cannot be faulted with. That apart, as the point involved in this case is different we do not think it necessary to examine the said decision. But the other decision rendered by a Single Judge of the Punjab and Haryana High Court (Suresh Kumar v. State of Haryana) has gone a step further as he held that “the Magistrate has no power within the contemplation of Sec. 156 (3) of the Code to ask for registration of the case, but could only refer the complaint to the police for investigation at the pre-cognizance stage to make the enquiry in the matter enabling the Magistrate to apply his mind with regard to the correctness of the complaint.” In that decision learned Single Judge, at the end of the judgment, made a direction as follows : “Before parting with the judgment, it is observed that often it is found that the judicial Magistrate working under the con¬trol of this Court many a time upon the complaints preferred before them, allegedly showing that a cognizable offence has been committed by the accused, direct the police to register and conduct the investigation in such cases under Sec. 156 (3) of the Cr.P.C. After the reports are received from the police the Magis¬trate deal with those cases as police challans and conduct the proceedings in the matters against the provisions of law as discussed above. Hence the Registry is directed to send a copy of this judgment to all the Judicial Magistrates in the States of Punjab, Haryana and Union Territory Chandigarh, for information and guidance.” 7. In our opinion, the aforesaid direction given by the learned Single Judge of the Punjab and Haryana High Court in Suresh Kumar v. State of Haryana (supra) is contrary to law cannot be approved. Chapter XII of the Code contains provisions relating to “information to the police and their powers to inves¬tigate”, whereas Chapter XV, which contains Sec.202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether though there could be a common factor i.e. complaint filed by a person Sec. 156, falling within Chapter XII, deals with powers of the police officers to investigate cogniza¬ble offences. True, Sec. 202, which falls under Chapter XV, also refers to the power of a Magistrate to “direct an investigation by a police officer.” But the investigation envisaged in Sec. 202 is different from the investigation contemplated in Sec. 156 of the Code. Sec. 156 of the Code reads thus: “156. Police officer’s power to investigate cognizable cases - (1) 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 Sec. 190 may order such an investigation as above mentioned.” 8. The investigation referred to therein, is the same inves¬tigation and the various steps to be adopted for it have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer-in-charge of a police station, of the substance of the informa¬tion relating to the commission of a cognizable offence. Such investigation would start with making the entry in a book to be kept by the officer-in-charge of a police station, of the substance of the informa¬tion relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Sec. 173 of the Code. The investigation contemplated in that Chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Sec. 156 (3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Sec. 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence. 9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envis¬aged in Chapter XV of the Code. A reading of Sec. 202 (1) of the Code would convince that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investiga¬tion to be made either by a police officer or by any other per¬son. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Sec. 202 (1) i.e. “or direct an investigation to be made by a police officer or by such other persons as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding”. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him. 10. The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Sec. 156 (3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cogni¬zance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. If he does so, he is not to examine the complainant on oath because he was not taking cogni¬zance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cogniazable offence in a book kept by the officer-in-charge of the police station as indicated in Sec. 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Sec. 156 (3) of the Code that an FIR should be registered, it is the duty of the officer-in-charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. 11. Though the learned Single Judge of the Punjab and Har¬yana High Court in Suresh Kumar v. State of Haryana (supra) made reference to two decisions rendered by this Court [Gopal Das Sindhi and Others v. State of Assam and another ( AIR 1961 SC 986 )] and Tula Ram and others v. Kishore Singh [ AIR 1977 SC 2401 ] learned Single Judge fell into error in formulating a legal position which is quite contrary to the dictum laid down by this Court in the aforecited decisions. In Gopal Das Sindhi v. State of Assam (supra) a three Judge Bench of this Court considered the validity of the course adopted by a Judicial Magistrate of the 1st class in ordering the police “to register case, investigate and if warranted, submit chargesheet”. Learned Judges repelled the con¬tention that the Magistrate ought to have examined the complain¬ant on oath under Sec. 200 of the Code. Dealing with the said contention their Lordships stated thus : “If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. Dealing with the said contention their Lordships stated thus : “If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Sec. 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word ‘may’ in Sec. 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint under Sec. 156 (3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investi¬gate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence.” 12. In Tula Ram v. Kishore Singh (supra) a two Judge Bench of this Court, after referring to the earlier decisions, reiter¬ated the same legal position. It is unfortunate that when this Court laid down the legal position so explicitly in the above two decisions which reached the notice of the learned Judge of the Punjab and Haryana High Court, he had formulated a position contrary to it by stating that “the Magistrate has no power within the contemplation of Sec. 156 (3) of the Code, to ask for registration of the case.” It appears that the judicial officers under Punjab and Haryana High Court who were, till then, follow¬ing the correct position, were asked by the learned Judge to follow the erroneous position formulated by him in the aforesaid judgment. 13. In the present case the High Court of Madhya Pradesh had rightly upheld the course adopted by the Magistrate. Hence we dismiss this appeal. Appeal dismissed.