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Madhya Pradesh High Court · body

2011 DIGILAW 910 (MP)

Papita Devi v. Hari Singh

2011-08-10

G.D.SAXENA

body2011
ORDER 1. This revision petition under section 397/401 'of the Code of Criminal Procedure 1973 preferred by the complainant is directed against an order dated 15th May 2006 passed in Criminal Revision No. 160/2005 by the Sessions Judge, Morena setting aside thereby the order dated 21st July 2005 of the Judicial Magistrate First Class, Ambah. 2. Facts in short for the decision of this revision petition are that the complainant/petitioner filed a complaint under section 190 of CrPC against the accused-respondent No.1 for commission of offence punishable under sections 376, 506-B of IPC. The learned trial Magistrate vide order dated 21st July, 05 while sending copy of the said complaint directed the SHO of concerned Police Station to register it as an FIR and after investigation in the matter submit the report to the Court. 3. The contention of the learned counsel for the petitioner is that on filing the complaint under section 190 of CrPC, the learned trial Court instead of taking cognizance under section 200 CrPC, sent the copy of the complaint for registration of an offence and investigation under section 156 (3) of CrPC. It is contended that the provisions contained under section 156 (3) and 202 (1) (a) of CrPC are distinct and separate provisions, therefore, they cannot be clubbed together. A Magistrate before taking cognizance of the offence and before examining the complainant on oath, may sent the complaint to the concerned officer In-charge of the police station to register the complaint as FIR and thereafter to take further steps contemplated in chapter XII. If the complaint discloses offence exclusively triable by Sessions Court; even then the Magistrate has power to send complaint to police for investigation under section 156 (3) and his power to send complaint to police for investigation under section 156 (3) of Code is not barred under first proviso to section 202 of the Code. The order dated 21st July, 2005 passed by trial Magistrate is valid as per provisions of law as mentioned and the order passed by the revisional Court is not correct, hence, the same is liable to be set aside. 4. On the other hand, learned Panel Lawyer for the respondent No. 2/State supported the impugned order and prayed for dismissal of the revision. 5. 4. On the other hand, learned Panel Lawyer for the respondent No. 2/State supported the impugned order and prayed for dismissal of the revision. 5. The question for determination before this Court is whether the Magistrate while exercising the power under section 156 (3) of Code has passed the valid order for sending the complaint to In-charge of the Police Station having jurisdiction to register and investigate the complaint. 6. Heard the counsel for the parties and also perused the impugned order and the law applicable to the case. 7. Before adverting to the rival submissions of the learned counsel for the parties, it would be profitable to reproduce relevant provisions of the Code, which are extracted herein below Section 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) xxxx xxxx xxxx (3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned. Section 202 - Postponement of issue of process.- (1 ) Any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction 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: Provided that no such direction for investigation shall be made :( a) where it appears to the Magistrate that the offence complained of is triable by the Court of Sessions; or (b) where the complaint has not been made by a Court unless the complainant and the witnesses present (if any), have been examined on oath under section 202. (2) In an inquiry under sub-section (1) the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath' (3) xxx xxxx xxxx 8. In the case of Rameshbhai Pandurao Hedau v. State of Gujrat (2010 AIR SCW 2353) = AIR 2010 SC 1877 the apex Court held: "The power to direct an investigation to the police authorities is available to the Magistrate both under section 156 (3) CrPC and under section 202 CrPC. The only difference is the stage at which the said powers may be invoked. As indicated herein before, the power under section 156 (3) CrPC to direct an investigation by the Police authorities is at the pre-cognizance stage while the power to direct a similar investigation under section 201 is at the post-cognizance stage. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the Appellant as a complaint under section 200 of the Code and has thereafter proceeded under section 202 CrPC and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the matter in which the learned Magistrate has proceeded and if at the stage of sub-section (2) of section 202 the learned Magistrate deems it fit, he may either dismiss the complaint under section 203 or proceed in terms of section 193 and commit the case to the Court of Sessions." 9. In the case of Devarapalli Lakshminarayan Reddy v. V. Narayan Reddy ( AIR 1976 SC 1672 ). the apex Court held :- "Section 156 (3) occures in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while section 202 is in Chapter XV which bears the heading "Of complaints to Magistrate". 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 spheres at different stages. The first is exercisable at the pro cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. 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 spheres at different stages. The first is exercisable at the pro 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 embodies 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 premptory reminder or 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." 10. A perusal of the aforesaid decisions makes it clear that in ordering an investigation under section 156 (3) of the Code, the Magistrate is not empowered to take cognizance of the offence and such cognizance is taken only on the basis of the complaint of the facts received by him which includes a police report of such facts or information received from any person, other than a police officer, under section 190 of the Code. Section 200 which falls in Chapter XV, indicates the manner in which the cognizance has to be taken and that the Magistrate may also inquire into the case himself for direct an investigation to be made by a police officer before issuing process. Hence, in a case triable by the Court of Sessions, the Magistrate on receipt of the complaint instead of conducting the inquiry himself under section 202 of CrPC may order for investigation by the police under section 156 (3) CrPC. Normally, an order under section 200 of the Code for examination of the complainant and his witnesses would not be passed because it consumes the valuble time of the Magistrate being vested in inquiring into the matter which primarily is the duty of the police to investigate. The examination of complainant and his witnesses under section 200 of the Code would be directed by the Magistrate only when a case is found to be serious one and not as a matter of routine course. Hence, in the opinion of this Court the action of the learned trial Magistrate can neither be termed as an illegal or improper. 11. Resultantly, the revision is allowed. The impugned order dated 15th May 2006 passed in Criminal Revision No. 160/2005 by the Sessions Judge, Morena stands hereby set aside.