Judgment : 1. The petitioners in all these petitions are the accused in C.C.No.65 of 2011 on the file of the Judicial Magistrate No.1, Nagercoil. The first respondent Police filed the final report against the accused. The second respondent herein originally filed a private complaint before the Judicial Magistrate, Eraniel, against the accused and the complaint was taken on file and the sworn statement of the second respondent herein was recorded and statements of some witnesses also were recorded. Thereafter, the learned Magistrate forwarded the complaint to the 1st respondent police ordering for an enquiry under Section 202 Cr.P.C. and to submit a report. The first respondent Police, on receipt of the said complaint and order, registered a case in Crime No.44 of 2009 under Sections 120-B, 406, 420, 477(A), 423, 447, 427 r/w 34 IPC and after investigation, instead of filing a report before the Judicial Magistrate No.I, Nagercoil, filed the final report against 10 accused before the Judicial Magistrate No.I, Nagercoil for offences under Sections 120-B, 406, 420, 423, 465, 468 r/w 34 IPC and the cognizance was taken by the Magistrate. 2. The accused/petitioners herein aggrieved over taking cognizance of the case by the learned Judicial magistrate No.I, Nagercoil, filed these quash petitions. 3. The learned counsel Mr. M. Suri, appearing for the petitioners, submitted that he is advancing argument only on one point regarding that the learned Judicial Magistrate, Eraniel having taken cognizance of the case already, the learned Judicial Magistrate No.I, Nagercoil has no jurisdiction to take cognizance of the case and as it is illegal to take cognizance, the proceedings cannot be allowed to be continued, and it should be quashed. The learned counsel appearing for the petitioners further submitted that even registration of FIR by the Police is illegal and the Police should have simply enquired the matter as per the order of the learned Judicial Magistrate, Eraniel and should have filed the report before the same Court. The learned counsel in support of his contentions relied on the following decisions; a) AIR 1964 S.C. 1541 (Jamuna Singh and others Vs. Bhadai Shah) b) 1976 S.C.C. (Crl.) 380 (Devarapalli Lakshminarayana Reddy and others Vs. V. Narayana Reddy and others) c) 1992 MLJ (Crl.) 86 (A. Lakshmanan and other Vs. State of Karnataka and another) d) 2008 MLJ (Crl.) 108 (Dasan Vs. State of Tamil Nadu) 4. The learned counsel Mr. Bhadai Shah) b) 1976 S.C.C. (Crl.) 380 (Devarapalli Lakshminarayana Reddy and others Vs. V. Narayana Reddy and others) c) 1992 MLJ (Crl.) 86 (A. Lakshmanan and other Vs. State of Karnataka and another) d) 2008 MLJ (Crl.) 108 (Dasan Vs. State of Tamil Nadu) 4. The learned counsel Mr. Thambi, appearing for the second respondent/defacto complainant, submitted that Police always have power to investigate regarding cognizable offences even on any information and as Magistrate can forward a complaint to the Police for the purpose of investigation under Sections 156(3) Cr.P.C., even if report is called under Section 202 Cr.P.C. and any final report is filed by Police after investigation, there is no illegality and it could be treated, as it proceeded under Section 156(3) Cr.P.C. The Nagercoil Court had jurisdiction under normal circumstance and the said jurisdiction cannot be wiped out. There is no bar expressed or implied in the Cr.P.C. for taking cognizance of the same offence by any Magistrate of more than one having concurrent jurisdiction. The learned counsel also pointed out Section 210 Cr.P.C. and submitted that if private complaint is filed and Police investigation is also pending, the Court has to wait for completion of investigation and after the filing of final report by the Police both the cases must be tried together. The learned counsel in support of his contentions relied on the following decisions: a) AIR 1932 Lahore 579 (Rashid Ahamad and another Vs. Emperor) b) 1976 Crl.L.J. 902 (Bhudaraju Sheshagiri Rao and others Vs. T.V. Sarma and another) c) 2003 Crl.L.J. 3620 (M/s M.O. Hasan Muthoos Maricar (P) Ltd. Vs. U. Nargis and others) 5. The learned Government Advocate submitted that both the cases must be clubbed together and the trial must be allowed to proceed on the basis of the Police report filed under Section 173 Cr.P.C. 6. This Court considered the submission carefully and the decision cited by either side. 7. Section 202 of the 1898 Code and 1973 Code, placed in juxtaposition, read as follows: 8. The Hon’ble Supreme Court in the decision reported in AIR 1964 S.C. 1541 (Jamuna Singh and others Vs. Badai Shah) has held as follows: “9.) In the case before us the Magistrate after receipt of Bhadai Shah’s complaint proceeded to examine him under Section 200 of the Code of Criminal Procedure. The Hon’ble Supreme Court in the decision reported in AIR 1964 S.C. 1541 (Jamuna Singh and others Vs. Badai Shah) has held as follows: “9.) In the case before us the Magistrate after receipt of Bhadai Shah’s complaint proceeded to examine him under Section 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under Section 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by Section 200 the Magistrate could have issued process at once under Section 204 of the Code of Criminal Procedure or could have dismissed the complaint under Section 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under Section 202 of the Code of Criminal procedure. That section empowers the Magistrate to “postpone the issue of process for compelling the attendance of persons complained against, the either enquire into the case himself of if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.” If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under Section 203 of the Code of Criminal Procedure. 10.) We find that in the case before us the Magistrate after completing the examination under Section 200 of the Code of Criminal Procedure and recording the substance of it made the order in these words: “Examined the complaint on Sections. The offence is cognizable one. To S.I. Baikunthpur for instituting a case and report by 12.12.56”. If the learned Magistrate had used the words “for investigation” instead of the words “for instituting a case.” the order would clearly be under Section 202 of the Code of the Criminal Procedure. The offence is cognizable one. To S.I. Baikunthpur for instituting a case and report by 12.12.56”. If the learned Magistrate had used the words “for investigation” instead of the words “for instituting a case.” the order would clearly be under Section 202 of the Code of the Criminal Procedure. We do not think that the fact that he used the words “for instituting a case” makes any difference. It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under Section 156 (3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under Section 202 of the Code of Criminal Procedure and not under Section 156(3) of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under Section 203 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under Section 202 of the Code of Criminal Procedure and not under Section 156(3) of the Code. It would be proper in these circumstances to hold that though the Magistrate used the words “for instituting a case” in this order of November 22, 1956 he was actually taking action under Section 202 of the Code of Criminal Procedure, that being the only section under which he was in law entitled to act. 11.) The fact that the Sub-Inspector of Police treated the copy of the petition of complaint as a first information report and submitted “charge-sheet” against the accused persons cannot make any difference. In the view we have taken of the order passed by the Magistrate on November 22, 1956, the report made by the police officer though purporting to be a report under Section 173 of the Code of Criminal Procedure should be treated in law to be a report only under Section 202 of the Code of Criminal Procedure. In the view we have taken of the order passed by the Magistrate on November 22, 1956, the report made by the police officer though purporting to be a report under Section 173 of the Code of Criminal Procedure should be treated in law to be a report only under Section 202 of the Code of Criminal Procedure. 12.) Relying on the provisions in Section 190 of the Code that cognizance could be taken by the Magistrate on the report of the police officer the learned counsel for the appellants argued that when the Magistrate made the order on November 22, 1956 his intention was that he would take cognizance only after receipt of the report of the police officer and that cognizance should be held to have been taken only after that report was actually received in the shape of a charge-sheet under Section 173 of the Code, after December 13, 1956. The inseparable difficulty in the way of this argument, however, is the fact that the Magistrate had already examined the complainant under Section 200 of the Code of Criminal Procedure. That examination proceeded on the basis that he had taken cognizance and in the face of this action it is not possible to say that cognizance had not already been taken when he made the order “to Sub-Inspector, Baikunthpur, for instituting a case and report by 12.12.56.” 13.) Cognizance having already been taken by the Magistrate before he made the order there was no scope of cognizance being taken afresh of the same offence after the police officer’s report was received. There is thus no escape from the conclusion that the case was instituted on Bhadai Sah’s complaint on November 22, 1956, and not on the police report submitted later by the Police Sub-Inspector, Baikunthpur.” 9. In the decision reported in 1976 S.C.C. (Crl.) 380 (Devarapalli Lakshminarayana Reddy and others Vs. V. Narayana Reddy and others), the Hon’ble Supreme Court held as follows: “16.) The position under the Code of 1898 with regard to the powers of a Magistrate having jurisdiction, to send a complaint disclosing a cognizable offence-whether or not triable exclusively by the Court of Session-to the police for investigation under Section 156(3), remains unchanged under the Code of 1973. The distinction between a police investigation ordered under Section 156(3) and the once directed under Section 202, has also been maintained under the new Code; but a rider has been clamped by the first proviso to Section 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation. 17.) Section 156(3) occurs 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 complainants to Magistrates”. 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 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 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”. 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. It is held by the Lahore High Court in the decision reported in AIR 1932 Lahore 579 (Rashid Ahmad Vs. Emperor) as follows: “The function of investigation cognizable cases has been conferred on the police in most general terms by the Code. No power is given to Magistrates to restrain the police in their investigation but the Magistrate is given power to obtain their assistance in having investigations made either under Section 156(3) or Section 202. It is difficult to see how it can be imputed to the legislature that by conferring the latter power it meant by implication to limit the general power of the police already given by the Code. ….i think that the powers given to the police by S.156 are not affected when an order to investigate under S.202 is made: and though it is not open to the Magistrate when a complaint has been made to him, to direct the police to make a charge in the same case, it is open to the police to do so, if they think proper. … Mr. Carden Noad has also argued that even if the procedure adopted in this case is wrong then by reason of S.529 of the Code, this Court ought not now to interfere with these proceedings. That Section provides (inter alia) that if any Magistrate not empowered by law to take cognizance of an offence under Section S.190, Sub-S.(1) Cl.(b) erroneously in good faith does so, his proceedings shall not be set aside merely on the ground of his not being so empowered.” 11. In a similar situation, when the matter came up before this Hon’ble High Court, His Lordship Justice S. Nagamuthu in the decision reported in (2008) 2 MLJ (Crl.) 108 (Dasan Vs. In a similar situation, when the matter came up before this Hon’ble High Court, His Lordship Justice S. Nagamuthu in the decision reported in (2008) 2 MLJ (Crl.) 108 (Dasan Vs. State of Tamil Nadu) held as follows: “9.) This case is a classic example as to how a learned Judicial Magistrate as well as the fist respondent, the Inspector of Police have misunderstood the provisions of the Code of Criminal Procedure. In the instant case, on the private complaint filed, learned Judicial Magistrate took cognizance on the date of filing of the complaint itself. Thereafter, the learned Judicial Magistrate has proceeded to record the statement of the complainant under Section 200 Cr.P.C. rightly. Having considered the facts and circumstances, the learned Judicial Magistrate rightly thought it fit to refer the case to the Police under Section 202 Cr.P.C. for investigation and for submission of report. A perusal of the order of the learned Judicial Magistrate would clearly show that he has rightly invoked and referred only Section 202 Cr.P.C. and he has not referred to Section 156(3) Cr.P.C. at all. But the Inspector of Police had misunderstood the said direction ofthe learned Magistrate and had chosen to register a case on the said complaint. There can be no second opinion that the registration of the case is not legal. Thereafter he investigated into the allegations and finally submitted a final report. 10.) The Officer who investigated the case again misunderstood the provision and had chosen to file a final report under Section 173 Cr.P.C. instead of submitting a report as required under Section 202 of Cr.P.C. The learned Judicial Magistrate also has misunderstood the provision and has taken cognizance treating the said report of the Police Officer as a report under Section 173 Cr.P.C. Thereafter he issued summons to the accused. Having taken cognizance once on the private complaint, and when the said case is pending on his file, it is absolutely illegal on the part of the learned Magistrate to take cognizance again in respect of the same offence, treating the report of the police as the one filed under Section 173 Cr.P.C. Therefore, I cannot have even slightest hesitation to quash the proceedings in C.C.No.182 of 2005 since the very order taking cognizance is illegal. 11.) At the same time, mere quashing the said calendar case would not be in the interest of justice as the said course would render the second respondent who is an aggrieved party remedyless. Therefore, as rightly pointed by the learned counsel for the second respondent, necessary directions are to be issued. It is to be remembered that no act of Court shall prejudice a party. Applying the said principle and considering the request of the learned counsel for the second respondent and also considering the facts and circumstances, the following order is passed. a) the entire proceedings in C.C.No.182 of 2005 on the file of the learned Judicial Magistrate No.II, Kuzhithurai is quashed. b) the learned Judicial Magistrate No.II, Kuzhithurai is directed to treat the report of the first respondent filed as a final report only as a report under Section 202 Cr.P.C. and to consider the same along with the private complaint filed originally and the statement of the complainant recorded under Section 200 Cr.P.C. and to proceed further either to pass an order under Section 203 Cr.P.C. or to issue process under Section 204 Cr.P.C. by independently assessing the materials available on record.” 12. This Court now analyses the situation as per provisions under the Criminal Procedure Code. The Section 202 Cr.P.C. comes into operation only after the Court takes cognizance under Section 199(2)(a) Cr.P.C. and follows procedure under Section 200 Cr.P.C. Of course, it is open to the Magistrate without taking cognizance of the matter may order for investigation by police under Section 156(3) Cr.P.C. Once the Magistrate without invoking Section 156(3) Cr.P.C. takes cognizance of the case, then the procedure to be followed is only under Section 200 Cr.P.C. While so, if the case is forwarded by the Court for investigation by Police, by an order under Section 202(1) Cr.P.C. then the question arises whether police can register an FIR and proceed with the investigation. The Police has got all the powers provided in the code for the purpose of investigation. The Police has got all the powers provided in the code for the purpose of investigation. That means Police can register an FIR (Since it is the first information to the Police) and proceed with investigation and Police has got power even to arrest and remand the accused pending investigation, since it is made clear by the provision under Section 200 (3) Cr.P.C. As per Section 200(1) Cr.P.C. the Court can order for investigation either by Police or by any individual as Court thinks fit. The said individual can exercise all power given to Police, as per the Code, except the power of arrest without warrant. Further the Police get power to investigate only under Section 156 Cr.P.C. In cases under cognizable offences the order of Magistrate is not required, wherein non-cognizable cases order of Magistrate is mandatory for the purpose of investigation. As per Section 156(3) any Magistrate empowered under Section 190 may order for investigation. Here the stage for ordering investigation is not mentioned. While the Court ordering for investigation to Police as far as Police is concerned there is no difference in investigating the matter, whether it is pre-cognizance stage by Court or after taking cognizance by Court. Therefore, I am of the opinion that FIR can be registered by the Police prior to investigation, but the report should be filed only before the Court which already took cognizance and called for report. The Criminal Procedure Code does not use the word ‘charge sheet’, but describes only as final report. The final report should be in the form prescribed under Section 173 Cr.P.C. Therefore, Police filing final report as per procedure laid down in 173 Cr.P.C. is also not illegal. 13. The question that arises for consideration is only, on receiving such report, what should be done by the Court. Since the Court had already taken cognizance and proceeded under Section 202 Cr.P.C. it has to be decided whether to pass an order under Section 203 Cr.P.C. or to issue process under Section 204 Cr.P.C. by assessing the materials on record. 14. The earlier decision of Our High Court, cited above, did not refer to Section 210 Cr.P.C. 15. Section 210 Cr.P.C. reads as follows: “210. 14. The earlier decision of Our High Court, cited above, did not refer to Section 210 Cr.P.C. 15. Section 210 Cr.P.C. reads as follows: “210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.-(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the enquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.” 16. As per Section 210 Cr.P.C., even if the Court had taken cognizance and trial is proceeding, if police report is filed u/s 173 Cr.P.C., the Court is not forbidden from taking cognizance once again on the basis of Police report, but the condition is that both the cases should be clubbed and tried together, as if both cases were instituted on a police report. Only if Police report does not relate to any accused or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial on the basis of complaint case. 17. Therefore, this Court is of the view that the police on filing final report on the basis of report called by Court under Section 202 Cr.P.C. the trial Court is bound to follow the procedure, as per Section 210 Cr.P.C. 18. 17. Therefore, this Court is of the view that the police on filing final report on the basis of report called by Court under Section 202 Cr.P.C. the trial Court is bound to follow the procedure, as per Section 210 Cr.P.C. 18. In this particular case, the Police, which was called to investigate and file a report by the learned Judicial Magistrate, Eraniel, after investigation, erroneously filed report before the learned Judicial Magistrate No.I, Nagercoil, instead of filing the same before the learned Judicial magistrate, Eraniel. In order to rectify the defect, the proceedings pending before the learned Judicial Magistrate No.I, Nagercoil in C.C.No.65 of 2011 is quashed, instead the records i.e., report filed by the Police shall be sent to the Court of the Judicial Magistrate, Eraniel which shall treat the said report as filed by the Police incompliance with the order passed under Section 202 Cr.P.C. by the learned Magistrate, Eraniel in Cr.M.P.No.2860 of 2009. The learned Magistrate, Eraniel shall act further as per Section 210 Cr.P.C. 19. These Criminal Original Petitions are ordered accordingly. Consequently, connected miscellaneous petitions are closed.