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2007 DIGILAW 229 (MP)

Damodar Sharma v. Nathuram

2007-02-26

A.P.SHRIVASTAVA

body2007
ORDER 1. Heard finally at motion stage. 2. This revision is directed against the order dated 4.12.2006 passed by the Judicial Magistrate, First Class, Dabra (District Gwalior) in unregistered case /06 (Nathuram Jatav v. Abdheys Sharma and others) by which the Magistrate forwarded the complaint for investigation under section 156(3) of CrPC to the police. 3. In short, the fact of the case is that non-petitioner No.1 (complainant) filed a complaint against the petitioners under sections 323, 294, 506B, 427 of IPC and also under section 3(1)(10) of SC & ST (Prevention of Atrocities) Act, 1989. The grievance of the petitioners is that the Magistrate cannot direct investigation under section 156(3) of CrPC in case trible by the Special Court or Court of Sessions. In support of the above contention, counsel for the petitioners relied on Kamlesh Pathak and Five others v. State of M.P. and another, Reported in 2006(1) MPJR 159 . 4. Counsel for the State submits that under section 190, Magistrate has power to direct investigation under section 156(3) of CrPC and there is no bar in the CrPC. 5. From the perusal of the impugned order, it appears that the non-petitioner No.1 filed the complaint against the petitioner as stated above and the matter was referred to the police for investigation under section 156(3) of CrPC. In this regard, we have to see section 156(3) and proviso (a) to sub-clause (1) of section 202 of CrPC. These two provisions impose two limitations on the power of Magistrate in respect of offences exclusively trible by a Court of Sessions. Clause (a) of proviso to sub-clause (1) bars a Magistrate from sending complaint to police officer or some other person for investigation. He is to enquire himself. But, this proviso does not bar him to order investigation by the police under section 156(3) of CrPC before taking cognizance. 6. In the case of Devarapalli Lakshminarayana Reddy and others v. Narayana Reddy and others, reported in AIR 1976 SC 1672 , in which it is laid down that the power to order police investigation under section 156(3) is different from the power to direct investigation conferred by section 202(1). The two operate in distinct is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. The two operate in distinct is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of section 156(3). It may be noted further that an order made under sub-section (3) of section 156, is in the nature of a peremptory reminder of intimation to the police to exercise their plenary powers of investigation under section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under section 156 and ends with a report or charge-sheet under section 173. On the other hand, section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under section 202 to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding". Thus the object of an investigation under section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. It is made clear that the expression "taking cognizance of an offence", cognizance can be set to be taken. Hence, the Magistrate applies his mind for proceeding under section 200 of CrPC. In the case of Kamlesh (supra), the Court observed in para 7 that: "From the perusal of the said judgment, it appears that in that case the apex Court was not considering the powers of Magistrate in cases where the offence is triable by the Session Court. Hence, the Magistrate applies his mind for proceeding under section 200 of CrPC. In the case of Kamlesh (supra), the Court observed in para 7 that: "From the perusal of the said judgment, it appears that in that case the apex Court was not considering the powers of Magistrate in cases where the offence is triable by the Session Court. Counsel for the petitioner relying on proviso to section 202(2) CrPC has urged that as in the present case offence under section 307 IPC is triable exclusively by Session Court, the impugned order issuing direction under section 156(3) CrPC is without jurisdiction and cannot be sustained in the eyes of law." 7. Therefore, in view of the present context and the decision of the apex Court in the case of Devarapalli (supra), it is clear that the Magistrate prior to taking cognizance in the case, ordered for investigation under section 156(3) of CrPC. It cannot be said that the Magistrate has committed any illegality or irregularity. Hence, revision petition is dismissed accordingly.