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Madhya Pradesh High Court · body

2008 DIGILAW 1037 (MP)

Lalit Sugandhi v. Mahendra Kumar Sugandhi

2008-08-19

R.S.GARG

body2008
JUDGMENT Garg, J.--1. The short facts necessary for disposal of the present petition are that the non-applicant No.1 Mahendra Kumar filed a private complaint/a complaint under section 190 of the Code of Criminal Procedure on 16.2.2006 against the applicant for the alleged offences punishable under section 406, 420 and 500 of the Indian Penal Code. 2. On 16.2.2006, the non-applicant-complainant also filed an application under section 156(3) of CrPC before the learned Judicial Magistrate First Class and on the said application the learned trial Court directed the concerned police to make an enquiry/investigation into the offence. 3. According to the applicant, the concerned police of Police Station M.G. Road started investigation in the matter and thereafter submitted the report dated 11.5.2006 before the learned trial Court. On 3.8.2006, the learned Judicial Magistrate First Class observed that on basis of the complaint and the documents, an offence punishable under section 420 of Indian Penal Code is positively made out. The Court below accordingly directed the police to make further investigation and file a challan and simultaneously directed that the matter be consigned to the record room. 4. Being aggrieved by the said order dated 3.8.2006 and the earlier order dated 16.2.2006, the applicant has filed this petition submitting inter alia that the Court below acted without jurisdiction and contrary to the provisions contained in section 156, section 190 and section 200 of the Code of Criminal Procedure. 5. Learned counsel for the applicant submitted that a perusal of section 156 read with section 190 of the Code would make it clear that in a private complaint, the Magistrate is obliged and required to examine the witnesses and in case he records his prima facie satisfaction then he can either direct the police to make investigation under section 156(3) of the Code or may direct the complainant to produce his witnesses and ultimately may register a case. It is also submitted that the Magistrate without taking cognizance in the matter could not refer the matter to the police. It is also submitted that before a direction under section 156(3) of the Code was issued, the Court was obliged to hear the accused because the directions so issued by the Court were to adversely affect the rights of the accused. 6. For proper appreciation of the argument, I am required to refer to section 156, section 190 and section 200 of the Code. 6. For proper appreciation of the argument, I am required to refer to section 156, section 190 and section 200 of the Code. The said sections reads as under: "156. Police Officer's power to investigate cognizable case, -- (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 abovementioned. 190. Cognizance of offences by Magistrate. -- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence - (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 200. Examination of complainant. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 200. Examination of complainant. --- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 193: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them" Section 190 provides that a Magistrate of First Class may take cognizance of any offence upon receiving a complaint of facts which constitutes such offence, he may take cognizance of offence upon a police report of such facts and/or he may take cognizance of any offence upon information received from any person other than the police, officer or upon his own knowledge that such offence is committed. Section 190 is in contra- indication of section 156 of the Code. Section 156 relates to the powers of the investigation and a direction which can be issued by a competent Court to the police to take up the matter for investigation. For exercising the powers under section 156, a Court is not required nor shall it take cognizance of the matter because once the Court takes cognizance under section 190 of the Code of Criminal Procedure on a complaint not based upon the police challan then the Court has to proceed under section 200 of the Code. Section 156 clearly provides that any officer-in-charge of a police station may, without the orders of Magistrate investigate any cognizable case and the proceedings of such a police officer shall not be called in question on the ground that the case was one which such officer was not empowered under section 156 to investigate. Section 156 clearly provides that any officer-in-charge of a police station may, without the orders of Magistrate investigate any cognizable case and the proceedings of such a police officer shall not be called in question on the ground that the case was one which such officer was not empowered under section 156 to investigate. That is one power of the police to make investigations into the allegations made by a complainant on which a first information report is registered. Section 156(3) has nothing to do with the powers of the police officers. It clothes a Judicial Magistrate First Class, who is empowered under section 190 to make investigation into the alleged offence. 7. The empowerment referred to in section 156(3) of the Code has nothing to do with taking of the cognizance. The empowerment is in relation to the authority of the concerned Magistrate to take cognizance of the case. If it is prima facie found that a Magistrate is competent to take cognizance of the matter then he certainly would be empowered under section 190 and that empowerment would provide him a foundation under section 156(3) of the Code to direct for an investigation into the allegations made before him in a complaint coupled with an application under section 156(3) of the Code. 8. The moment a Magistrate takes cognizance under section 190 then it would be clear that the Court has taken cognizance upon receiving a complaint or upon a police report of such facts or upon information received from any person other than a police officer or upon the personal knowledge of the Magistrate. The moment cognizance is taken, it will be' presumed that either there is a complaint before the Court or there is a police report/challan before the Court or some information has been received from some person not a police officer or upon the personal know ledge of the Judge/Magistrate. If the argument of the learned counsel is accepted, it will put the cart before the horse. On one side, the Magistrate would take cognizance of the offence and at the same time, he would be directing investigation. If he has already taken cognizance, he would not be entitled to direct investigation under section 156(3) of the Code. 9. If the argument of the learned counsel is accepted, it will put the cart before the horse. On one side, the Magistrate would take cognizance of the offence and at the same time, he would be directing investigation. If he has already taken cognizance, he would not be entitled to direct investigation under section 156(3) of the Code. 9. It was contended that if the complaint is filed under section 190 of the Code of Criminal Procedure and the Magistrate has taken cognizance then the procedure as required under section 200 of the Code is required to be observed. 10. So far as the submission simpliciter is concerned, it has to be accepted as a proposition of law. The moment a Magistrate takes cognizance of an offence on basis of a complaint made by a person other than a police officer or upon receiving a complaint then he has to proceed in accordance with section 200 of the Code of Criminal Procedure. 11. The question before me is that whether before taking cognizance, can a Magistrate exercise his powers under section 156 (3) of the Code of Criminal Procedure. The scheme of the Code prima facie appears to be that once a complaint is filed and the Magistrate finds that a cognizable offence has been committed by the alleged accused person then instead of taking cognizance under section 190 of the Code, he can direct the police to make investigation and if the police finds that the person has committed an offence then it may file a charge-sheet/challan against the named accused and in case the police finds that no offence is made out, it can submit such a report. 12. According to the learned counsel for the applicant, in the present case, when the report was favouring the accused then the Court could not issue a further direction under section 156(3) of the Code of Criminal Procedure to register an offence without hearing the applicant. 13. In my opinion, the argument submitted by learned counsel for the applicant runs contrary to the scheme of the Code. If the argument is to be accepted then somebody can raise an objection that before the police registers an offence, the police is required and obliged to hear the accused. Such a right is not conferred upon the accused if the investigation is made by the police. 14. If the argument is to be accepted then somebody can raise an objection that before the police registers an offence, the police is required and obliged to hear the accused. Such a right is not conferred upon the accused if the investigation is made by the police. 14. In the present case, when an application under section 156 (3) of the Code of Criminal Procedure is filed then the accused would not be entitled to say that before directing the police to proceed for investigation, the accused should have been heard by the Court entertaining the application under section 156 (3) of the Code of Criminal Procedure. 15. An accused in the scheme of the Code is entitled to be heard only after the charge-sheet is filed or the process is issued against him. The moment a Court issues a direction to the accused to appear before him and contest the application filed under section 156 (3) of the Code then the Magistrate would be taking cognizance of the offence and would be making an enquiry by himself. Such procedure is not applicable to an application filed under section 156 (3) of the Code. An accused is not required to be heard before issuance of a direction under section 156 (3) of the Code. 16. In the matter of Mohammad Yousuf v. Afaq Jahan (Smt.) and another [ (2006)1 SCC 627 ], the Supreme Court while considering the scope of sections 100, 156 (3), 173 and 202 of the Code of Criminal Procedure has observed as under: "Chapter XIII of the Code contains provisions relating to "information to the police and their powers to investigate", whereas Chapter XV, which contains section 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. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences, True, section 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 section 202 is different from the investigation contemplated in section 156 of the Code. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences, True, section 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 section 202 is different from the investigation contemplated in section 156 of the Code. The investigation started thereafter can end up only with the report filed by the police as indicated in section 173, CrPC. 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 section 173, CrPC. 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. 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 Chapter XV CrPC. A reading a section 202(1) CrPC makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. 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. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under section 156(3) CrPC. But if he does so, he is not to examine the complainant on oath because he was not taking cognizance 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. But if he does so, he is not to examine the complainant on oath because he was not taking cognizance 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 cognizable offence in a book kept by the officer in charge of the police station, Even if a Magistrate does not say in so many words while directing investigation under section 156 (3) CrPC 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 complainant because that police officer could take further steps contemplated in Chapter XII CrPC only thereafter." 17. It was lastly submitted that the learned Court below was unjustified in directing registration of the offence on the report submitted by the police. In my opinion, the said argument is to be rejected being misconceived. If the police filed a report favoring the accused or showing that the dispute was of civil nature then too the complainant would be entitled to submit before the Court that the police report is not correct and that the Court should proceed further in the matter sent matter, it clearly appears that the Court, after going through the allegations made in the complaint and the documents annexed with it and on going through the police. 18. In the pres report, was of prima facie opinion that an offence punishable under section 420 of Indian Penal Code is made out. If the complainant party is still aggrieved by the said direction then they were entitled to file a protest petition and submit before the Magistrate that the police report was wrong, illegal and contrary to the records and their private complaint for prosecution of the accused for other offence should be tried separately. However, in the present case, it appears that the complainant side was satisfied with a direction made by the learned Judicial Magistrate First Class. 19. However, in the present case, it appears that the complainant side was satisfied with a direction made by the learned Judicial Magistrate First Class. 19. Taking into consideration the totality of the circumstances, I must hold that there is a patent difference between the powers exercisable under section 156(3) and section 190 of the Code of Criminal Procedure. I must hold that the accused has no right of hearing before the Magistrate issues an order under section 156(3) of the Code. I also make it clear that if the police submits a report in favour of the accused either in relation to all charges or some charges then the complainant side would always have a right to file a protest petition and submit to the Magistrate that the protest petition filed by the complainant party insofar as it relates to all or some of the offences should be treated as a private complaint and the Court should take cognizance under section 190 of the Code of Criminal Procedure and proceed under section 200 of the Code of Criminal Procedure. 20. I find no reason to interfere. The petition is dismissed.