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Andhra High Court · body

2007 DIGILAW 1120 (AP)

Goremiya v. State of A. P.

2007-11-14

G.V.SEETHAPATHY

body2007
ORDER This petition is filed under Section 482 Cr.P.C., seeking to quash the proceedings against the petitioners/A-1 to A-3 in pursuance of the F.I.R in Cr.No.178 of 2007 of Madhapur Police Station. 2. The second respondent herein filed a private complaint before the IX Metropolitan Magistrate, Hyderabad against the petitioners/A-1 to A-3 alleging offences under Sections 307, 354, 420, 447, 448, 452, 456, and 458 read with Section 34 IPC. The learned Magistrate forwarded the same to the police under Section 156(3) Cr. P.C., for investigation, based on which the Station House Officer, Madhapur Police Station registered a case in Cr.No.178 of 2007 under the above sections of law. Aggrieved by the same, the petitioners/A-1 to A-3 filed the present application seeking quashing of the proceedings. 3. Heard the learned counsel for the petitioners and the learned counsel for the respondents. Records are perused. 4. The main contention of the learned counsel for the petitioners is that the offences alleged are triable by the Court of Sessions. The learned Magistrate ought to have conducted the enquiry himself under Section 202 Cr.P.C., and forwarding of the complaint to the police under Section 156(3) Cr.P.C., is unwarranted. 5. The learned counsel for the second respondent, on the other hand, contended that the learned Magistrate forwarded the complaint under Section 156(3) Cr.P.C., for the purpose of investigation and the stage of enquiry under Section 202 Cr.P.C., has not yet been reached. 6. Section 156 Cr.P.C., which deals with Police Officer's power to investigate cognizable cases, runs as under: "(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 section 190 may order such an investigation as above-mentioned." A perusal of the above provision would show that under sub-section (1) any officer in charge of a police station may even without the order of a Magistrate, investigate any cognizable offence. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned." A perusal of the above provision would show that under sub-section (1) any officer in charge of a police station may even without the order of a Magistrate, investigate any cognizable offence. Sub-section (3) enables any Magistrate empowered under Section 190 to order such an investigation i.e., investigation into a cognizable case. The Magistrate before taking cognizance is certainly empowered to direct the police to investigate into the case under Section 156(3) Cr.P.C., when the offences alleged are cognizable. Admittedly, the offences alleged in the complaint on hand are cognizable and the Magistrate has not taken cognizance of the same. At the threshold itself, he directed the police to investigate under Section 156(3) Cr.P.C. The said provision does not contain any bar or prohibition against directing investigation by the police into the offences which are triable by the Court of Sessions. 7. In D.LAKSHMINARAYANA V. V.NARAYANA REDDY AND OTHERS, AIR 1976 SC 1672 , the Apex Court held as follows: "In view of first proviso to Section 202 (1) of the Cr.P.C., a Magistrate who receives a complaint disclosing offences exclusively triable by the Court of Session, is not debarred from sending the same to the police for investigation under Section 156(3) of the Code." 8. In R.R.CHARI V. STATE OF U.P., AIR 1951 SC 207 , after referring to the earlier decisions on the aspect as to what amounts to taking cognizance, the Apex Court endorsed the view taken in SUPERINTENDENT & REMEMBRANCER OF LEGAL AFFAIRS, WEST BENGAL V. ALANI KUMAR, AIR 1950 Cal. 437 , as follows: "What is taking cognizance has not been defined in the Cri.P.C., & I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence u/s 190 (1)(a), Cri.P.C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chapter proceeding u/s 202 & thereafter sending it for enquiry inquiry & report u/s 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter but for taking action of some other kind e.g., order investigation.....u/s 15(3), or issuing a search warrant for the purpose of investigation he cannot be said to have take cognizance of the offence." From the above it can be seen that forwarding of a complaint for investigation to the police under Section 156(3) Cr.P.C., is an act preceding the stage of taking cognizance and it does not amount to taking cognizance of the offence. 9. Section 200 Cr.P.C., states that a Magistrate taking cognizance of an offence on complaint shall examine on oath the complainant and the witnesses present, if any. Section 202 Cr.P.C., provides that any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police Officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. The proviso to Section 202 Cr.P.C., states that no such direction for investigation shall, however, be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session and unless the complainant and the witnesses present, if any, examined on oath under Section 200 Cr.P.C. Proviso to sub-Section (2) of 202 Cr.P.C., states that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. 10. From the above provisions, the learned counsel for the petitioners contends that when the case is triable by the Court of Sessions, the Magistrate has no other alternative except to call upon the complainant to produce his witnesses and examine them on oath. 10. From the above provisions, the learned counsel for the petitioners contends that when the case is triable by the Court of Sessions, the Magistrate has no other alternative except to call upon the complainant to produce his witnesses and examine them on oath. The inquiry contemplated under Section 202 Cr.P.C., arises only when a Magistrate takes cognizance of an offence under Section 200 Cr.P.C. In the event it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall not make any direction for investigation to be made by the police officer or others, but he shall call upon the complainant to produce all his witnesses and examine them on oath. Such examination of the complainant and witnesses by the Magistrate is contemplated only in the event of the Magistrate taking cognizance under Section 200 Cr.P.C. Forwarding of the complaint under Section 156(3) is at a stage preceding taking of cognizance under Section 200 Cr.P.C. 11. In MOHD. YOUSUF V. SMT.AFAQ JAHAN AND ANOTHER, 2006 (1) ALD (Crl.) 428 (SC) = 2006 Crl. LJ 788, the Apex Court held as under: "Section 156 falling within Chapter XII, deals with powers of Police Officers to investigate cognizable offences. Investigation envisaged in Section 202 contained in Chapter XV is different from the investigation contemplated under Section 156. The investigation contemplated in Chapter XII 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 Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in S.173. But the significant point to be noticed is, when a Magistrate orders investigation under Chap.XII he does so before he takes cognizance of the offence. 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 envisaged in Chap.XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further." 12. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further." 12. In view of the principles laid down in the above decision and having regard to the fact that the Magistrate has not taken cognizance of the offence and merely forwarded to the police for investigation under Section 156(3) Cr.P.C., the question of proceeding with the inquiry under Section 202 Cr.P.C., does not arise at that stage. The contention of the learned counsel for the petitioners that the Magistrate ought not to have referred the complaint to the police under Section 156(3) Cr.P.C., and he ought to have recorded the statements of the complainant and his witnesses as contemplated under Section 202 Cr.P.C., is untenable. Simply because the complainant has mentioned some sections of law governing the offences exclusively triable by the Court of Sessions, it does not amount to the Magistrate concurring with the same. The direction for investigation is barred under the proviso to Section 202(1) Cr.P.C., only when it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions. The Magistrate has nowhere expressed any opinion that from the perusal of the complaint it appeared to him that the offences complained of are triable exclusively by the Court of Sessions. It is, therefore, not a case where it appeared to the learned Magistrate that the offences complained of are triable exclusively by the Court of Sessions and still he directed investigation. The Magistrate has forwarded the complaint to police for investigation under Section 156(3) Cr.P.C., at the threshold itself even before taking cognizance or expressing any opinion as to whether or not there is sufficient material to proceed further and such course of action is certainly permissible under Section 156(3) Cr.P.C. 13. The learned counsel for the petitioners further contended that the matter is essentially in the nature of civil dispute and the complaint is filed only to harass the petitioners/accused. It can be seen from the complaint that apart from the offences under Sections 420 IPC, the other offences under Sections 307 and 354 IPC are also alleged against the petitioners. The learned counsel for the petitioners further contended that the matter is essentially in the nature of civil dispute and the complaint is filed only to harass the petitioners/accused. It can be seen from the complaint that apart from the offences under Sections 420 IPC, the other offences under Sections 307 and 354 IPC are also alleged against the petitioners. Having regard to the nature of the offences alleged, it is only just and proper that investigation is allowed to be proceeded with by the police. 14. It is an established proposition that inherent jurisdiction under Section 482 Cr.P.C., though wide has to be exercised sparingly and with caution and is not to be resorted to for scuttling the investigation at the threshold especially when the offences alleged are serious in nature. 15. In 'State of Karnataka & another Vs. Pastor P.Raju, 2006 (2) ALD (Crl.) 594 (SC) = 2007 (1) ALT (Crl.) 210 (SC), the Apex Court held as follows: "Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. This question has been examined in detail in 'Union of India Vs. Prakash P.Hinduja and another, 2003 (2) ALD (Crl.) 199 (SC) = 2003 (2) ALT (Crl.) 222, where after referring to King Emperor V. Khwaja Nazir Ahmad, AIR 1945 PC 18, H.N. H.N.Rishbud and Inder Singh v. The State of Delhi, AIR 1955 SC 196 , 'State of West Bengal v. SN Basak, AIR 1963 SC 447 , 'Abhinandan Jha & others V. Dinesh Mishra, AIR 1968 SC 177 and 'State of Bihar and another v. JAC Saldanha & others, (1980) 1 SCC 554 , it was observed as under in para 20 of the reports:- "20. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of police station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency." This being the settled legal position, the High Court ought not to have interfered with and quashed the entire proceedings in exercise of power conferred by Section 482 Cr.P.C. when the matter was still at the investigation stage." 16. In the light of the principles laid down by the Apex Court in the above decisions and having regard to the nature of allegations made against the petitioners/A-1 to A-3 and the serious nature of offences complained of, it is considered not a fit case to invoke the inherent powers of this Court under Section 482 Cr.P.C., and quash further proceedings of investigation in pursuance of Cr.No.178 of 2007 of Madhapur Police Station. 17. In the result, the criminal petition is dismissed.