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2012 DIGILAW 795 (HP)

Kuldeep Kumar Dass v. State Of Himachal Pradesh

2012-11-05

KULDIP SINGH

body2012
JUDGMENT : Kuldip Singh, J. 1. This petition u/s 482 Cr.P.C. has been filed for quashing FIR No. 68 dated 23.08.2012, registered at Police Station, Gagret, and for quashing of orders dated 19.08.2012 and 22.08.2012 passed by Judicial Magistrate Ist Class, Amb, in Case No. 160-1-2012 and for dismissal of complaint. It has been stated that petitioner belongs to a respectable family and is in public life since long. The petitioner remained M.L.A. of Himachal Pradesh Legislative Assembly. He remained Deputy Minister, Deputy Speaker and Cabinet Minister. The petitioner has unblemished career and he commands respect in general public. In order to tarnish the image of the petitioner, some persons have taken a step in the shape of putting a complaint before Judicial Magistrate Ist Class, Amb, the complaint ex-facie is false. The Magistrate either swayed away with the submissions made in the complaint u/s 156(3) Cr.P.C. or in routine without application of mind forwarded the complaint to respondent No. 2 to register an FIR. It has been stated that complaint has been filed against petitioner to achieve political mileage by political opponents of the petitioner. The Magistrate has overstepped the jurisdiction vested in him while passing the order on the complaint. The Magistrate has acted in an illegal manner in passing the impugned orders. It has been stated that examination of complainant is sine-qua-non for passing an order u/s 156(3) Cr.P.C. In alternative, the Magistrate is to send the complaint to the police for inquiry and then proceed further. The Magistrate has not adopted either course. The petitioner was not heard before the complaint was sent for investigation. 2. It has been stated that Magistrate has taken cognizance without first examining the complainant on oath. The taking of cognizance of the case by Magistrate is wrong, illegal. The Magistrate has not drawn the distinction between Sections 156 and 200 Cr.P.C. The cognizance can be taken u/s 200 Cr.P.C. and not u/s 156 Cr.P.C. The Magistrate has overstepped the jurisdiction. The allegation against the petitioner is that he got his caste changed from 'Tarkhan' to 'Lohar' by using his influence. 3. It has been stated that somehow mistake crept in Missal-Haqiat 1913-14, which was corrected by competent authority on 26.03.2003 and the correction attained finality. The political opponents of the petitioner got interpolations made in the 'Aks-Sajra-Nasab' of 1913-14. The interpolations were made unauthorizedly. 3. It has been stated that somehow mistake crept in Missal-Haqiat 1913-14, which was corrected by competent authority on 26.03.2003 and the correction attained finality. The political opponents of the petitioner got interpolations made in the 'Aks-Sajra-Nasab' of 1913-14. The interpolations were made unauthorizedly. The correct position in 'Aks-Sajra-Nasab' of 1913-14 is/was prevailing since 1868 onwards which needed correction and was corrected on 26.03.2003. In the record maintained by 'Pandits' at Haridwar, caste of petitioner has been shown as 'Lohar'. 4. The Magistrate has exceeded his jurisdiction while issuing order to the police for investigation. The complainant was not examined on oath nor he was directed to appear before police for preliminary inquiry. The respondent No. 2 has registered FIR No. 68/2012 on 23.08.2012. The complainant did not approach respondent No. 2 nor Superintendent of Police, Una, he directly filed complaint which is malafide. The Magistrate has taken cognizance and ordered inquiry. 5. The respondents 1 and 2 have filed the reply. It has been stated that petitioner has made false allegations. The respondent No. 3 had filed a complaint before Magistrate and the Magistrate has directed respondent No. 2 to register FIR and investigate the case. The FIR has been registered on the direction of the Magistrate. The case is under investigation. It has been stated that petition is not maintainable. The remaining stand of the petitioner has either been denied or denied for want of knowledge. The respondent No. 3 has not filed any reply. 6. I have heard Mr. Ajay Sharma, learned counsel for the petitioner, Ms. Ruma Kaushik, learned Additional Advocate General, for respondents No. 1 and 2 and Mr. Sanjeev Bhushan, learned counsel for respondent No. 3 and have also gone through the record. The Judicial Magistrate on 22.08.2012 directed respondent No. 2 to register the case and investigate the matter in accordance with law. The petitioner has also prayed for quashing of order dated 19.08.2012 of Magistrate. It appears respondent No. 3 had filed application u/s 156(3) Cr.P.C. on 17.08.2012. On 18.08.2012, the Magistrate ordered registration of the application and on 22.08.2012 passed the order for registration of the case. There is no order dated 19.08.2012 on the file of the Court below. On the direction dated 22.08.2012 of Magistrate an FIR No. 68 dated 23.08.2012 has been registered at Police Station, Gagret, under Sections 420, 463, 464, 465, 468, 471, 474 IPC. 7. There is no order dated 19.08.2012 on the file of the Court below. On the direction dated 22.08.2012 of Magistrate an FIR No. 68 dated 23.08.2012 has been registered at Police Station, Gagret, under Sections 420, 463, 464, 465, 468, 471, 474 IPC. 7. In the complaint, respondent No. 3 has stated that petitioner is a bonafide resident of village Majheen, Tehsil Dehra, now in Tehsil Khudian, District Kangra. In revenue record, petitioner is recorded Tarkhan Jambal' by caste as per pedigree table 1913-14. The petitioner is presently residing in village Shivbari, Mohal Ambota, Tehsil Amb, District Una. The petitioner belongs to Tarkhan' caste and is a politician. He took undue advantage of his position and got his caste changed fraudulently with dishonest intention and got himself recorded as 'Lohar Kaundal' in revenue record in connivance with revenue officials and got himself declared scheduled caste by cheating and playing fraud and has been wrongly, illegally taking benefit of reservation by corrupt means which is granted to scheduled caste. Tarkhan' caste belongs to O.B.C. The petitioner has got a scheduled caste certificate from Tehsildar, Amb, and using the same for his benefit and his family members. The petitioner is using fraudulently scheduled caste certificate as genuine. It has been alleged that complainant approached Police Station, Gagret, but police showed inability as petitioner is an influential person. 8. The petitioner along with petition has filed news items showing registration of case against the petitioner, copy of 'Khewat Tikka Birad' for the year 1868, but document is not legible, copy of jamabandi Tikka Birad, Tehsil Dehra, for the year 1913 showing caste of Badri etc. 'Lohar Narote', copy of 'Sajra Nasab' incorporated in jamabandi 1914-15 with sub-title caste 'Lohar Narote' with sub-heading Badri and others, copy of 'Sajra Nasab' owners Tikka Birad for the year 1913-14 with sub-title caste 'Lohar Narote' with the name of Badri etc., copy of jamabandi 1927 Tikka Birad showing Badri and others, caste 'Lohar' in the column of owners, copy of 'Sajra Nasab' owners Tikka Birad incorporated in the jamabandi 1931-32 with sub-title 'Lohar Narote' showing Badri etc, copy of 'Sajra Nasab' owners mauza Tikka Birad incorporated in the jamabandi 1951-52 with sub-title caste 'Lohar Narote' showing Badri and others, copy of 'Sajra Nasab' mohal and mauza Majheen, Tehsil Khundian for the year 1977-78 with sub-title 'Lohar Kaundal' showing Badri and Kuldeep Kumar etc. The petitioner has also filed copies of newspaper reports showing that in 2002 also similar issue was raised. The petitioner has also filed extract of record from 'Haridwar', but the document is not legible and language not understandable. The petitioner has filed copy of order dated 26.03.2003 passed by Collector, Kangra at Dharamshala, in File No. 24/2002 on the application of Joginder Kumar, s/o Badri, applicant. The Collector ordered that in the 'Sajra Nasab' of owners incorporated in missal haqiat 1913-14, mohal Birad mauza Majheen, the caste of Badri etc. be corrected from Tarkhan Jamwal' to 'Lohar Narote'. 9. The Magistrate on 22.08.2012 has passed the following order:- 22.8.2012 Present: Complainant with Sh. R.S. Bhatti, Advocate. Applicant Des Raj filed an application U/s 156(3) Cr.P.C. for directing the SHO Police Station Gagret for registering FIR U/s 420, 463, 464, 465, 468, 471, 474 IPC against the accused. It is submitted that the accused is bonafide resident of village Majheen, Tehsil Dehra, Distt. Kangra, H.P. His caste is recorded as Tarkhan (Jamwal) in the pedigree table for the year 1913-14 of his native village Majheen, Tehsil Khundian. But he is big politician. He after taking undue advantage of his position changed his caste fraudulently from Tarkhan to Lohar Kaundal in the revenue record when he shifted to village Shiv Bari. Now he is taking benefit of schedule caste reservation. Whereas he belongs to other backward class being Tarkhan. Thus, he has cheated the society at large. Therefore, SHO, Police Station Gagret may kindly be directed to register FIR against Kuldip Kumar U/s 420, 463, 464, 465, 468, 471, 474 IPC. I have perused the record. It is, prima facie, evident from the pedigree table filed on record that accused is son of Badri Dass. His caste is recorded Tarkhan (Jamwal) in the revenue record of Tika Padoh Pakhli Majheen Taluka Changar, Tehsil Dehra, Distt. Kangra, H.P. This pedigree table is of year 1913-14. But his recent pedigree table for the year 1995-96 of Up Mahal Shiv Bari, Mauja Ambota, Tehsil Amb, Distt. Una, HP is showing him of caste Lohar (Kaundal). The copy of his caste certificate also shows that he is Lohar by caste. Copy of schedule of OBC Classes shows that Tarkhan are listed in the serial No. 50 in the list of OBC. Una, HP is showing him of caste Lohar (Kaundal). The copy of his caste certificate also shows that he is Lohar by caste. Copy of schedule of OBC Classes shows that Tarkhan are listed in the serial No. 50 in the list of OBC. Whereas Lohar are listed in the serial No. 36 in the list of notified schedule caste. Thus, prima facie, it looks that the accused has prepared wrong certificate of his caste and is taking undue benefit of schedule caste certificate. In this case, it is averred by the complainant that he visited the police station and requested the police to register FIR. But the police showed its inability to register FIR. In such circumstances, this court observes that the contents of the complaint are disclosing cognizable offence. The officer incharge of a police station is statutorily obliged to register a case, but cannot embark upon any enquiry as to whether the information, laid by the informant is reliable genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. Reasonableness or credibility of the said information is not a condition precedent for registration of FIR. This is the view of Hon'ble Supreme Court of India in a case Parkash Singh Badal and Another Vs. State of Punjab and Others, AIR 2007 SC 1274 If the complaint of the complainant is true then the matter is very serious. Definitely, accused has flouted the Constitution and derailed the benefits reserved for the real class and to gain unconstitutional advantages. Lest it would defeat the Constitutional objective of rendering social, economic and political justice to marginalized class as envisaged u/a 14, 15, 16 and 46 of Indian Constitution. Thus, in my view, this case should necessarily be investigated by police. Hence, I direct the SHO police station Gagret to register the case and investigate the matter in accordance with law. The reference be sent to SHO police station, Gagret immediately. Paper of this court be consigned to record Room. 10. The learned counsel for the petitioner has relied some case law and therefore, before proceeding further, it is necessary to refer to such case law. The reference be sent to SHO police station, Gagret immediately. Paper of this court be consigned to record Room. 10. The learned counsel for the petitioner has relied some case law and therefore, before proceeding further, it is necessary to refer to such case law. In Akshoy Kumar Dutta and others versus Jogesh Chandra Nandy AIR 1956 Calcutta 76, the complainant had filed a petition of complaint charging the petitioners therein with offences under Sections 147, 354, 323 and 380 IPC. The Magistrate did not examine the complainant on oath and ordered officer-incharge to treat the petition as FIR and take up investigation, and if the facts as alleged appear to be correct, take cognizance, arrest the accused persons and submit the challan in the usual course. The Investigating Officer made the report and the complainant's case was found false. The complainant filed 'Naraji' petition. The Magistrate ordered judicial inquiry, the accused were discharged. It was contended in the High Court that since there was a petition of complaint, there was no room for recourse to Section 156(3) Cr.P.C. It has been held that Magistrate did not commit the initial error of examining the complainant on oath and directing police investigation u/s 156(3) Cr.P.C. thereafter. The contention raised was rejected. 11. In Gopal Das Sindhi and others versus State of Assam and another AIR 1961 SC 986 , the Magistrate on receiving the complaint directed the Officer Incharge of Gauhati Police Station to register a case, investigate and if warranted submit charge sheet by 23rd August, 1957. One of the contention raised before the Supreme Court was that Magistrate acted without jurisdiction in directing the police to register a case, to investigate it and thereafter to submit a charge sheet, if warranted. The Supreme Court held as follows:- 7. When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under S. 156(3) of the Code to the Officer Incharge of Police Station Gauhati for investigation. When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under S. 156(3) of the Code to the Officer Incharge of Police Station Gauhati for investigation. The Supreme Court further observed:- It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because S. 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. The Supreme Court continued:- We cannot read the provisions of S. 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under S. 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code. The Supreme Court held:- When a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind, e.g., ordering investigation under S. 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. The Supreme Court rejected the contention of the appellant. 12. In Moba Maring and Others Vs. Parhat Angba Maring and Another, (1963) CriLJ 464, it has been held, when a Magistrate receives a complaint, he has two courses open before him. The Supreme Court rejected the contention of the appellant. 12. In Moba Maring and Others Vs. Parhat Angba Maring and Another, (1963) CriLJ 464, it has been held, when a Magistrate receives a complaint, he has two courses open before him. He can either take cognizance of the case u/s 190(1)(a) by applying his mind to the case after examination of the complainant u/s 200 Cr.P.C. and by proceeding further under Sections 202, 203 and 204 or he need not take cognizance of the case and he can send it for police investigation u/s 156(3) Cr.P.C. 13. The learned counsel for the petitioner has also relied Banchhanidhi Maharatha versus Srinibass Paikroy and others AIR 1967 Orissa 62 on the point that investigation u/s 156(3) Cr.P.C. is ordered before cognizance of offence is taken and investigation u/s 202 Cr.P.C. is ordered after such cognizance. 14. The Supreme Court in Devarapalli Lakshminarayana Reddy and others versus V. Narayana Reddy and others AIR 1976 Supreme Court 1672 has interpreted taking cognizance of an offence as follows:- 14. This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190 (1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding u/s 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1) (a). Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding u/s 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1) (a). If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police u/s 156(3), he cannot be said to have taken cognizance of any offence. The Supreme Court has also considered power to order police investigation u/s 156(3) Cr.P.C. and power to direct investigation u/s 202(1) Cr.P.C. as follows:- 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 complaints to Magistrate". The power to order police investigation u/s 156(3) is different from the power to direct investigation conferred by Sec. 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 Sec. 156(3) can be invoked by the Magistrate before he takes cognizance of the offence u/s 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 u/s 156 (1). Such an investigation embraces the entire continuous process which begins with the collection of evidence u/s 156 and ends with a report or charge-sheet u/s 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. 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 u/s 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 u/s 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. The Supreme Court has further held as follows:- 18. In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation u/s 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses u/s 200, Cr. P.C., which is the first step in the procedure prescribed under that Chapter. The question of taking the next step of that procedure envisaged in Section 202 did not arise. Instead of taking cognizance of the offence, he has, in the exercise of his discretion, sent the complaint for investigation by police under S. 156. 15. In Tula Ram and Others Vs. Kishore Singh, AIR 1977 SC 2401 the question before Supreme Court was whether or not a Magistrate after receiving a complaint and after directing investigation u/s 156(3) Cr.P.C. and on receipt of the final report from the police can issue notice to the complainant, record his statement and the statements of the witnesses and then issue processes u/s 204 of the Code. The Supreme Court held that in the facts and circumstances of the case, the following legal propositions emerge:- 14............1. The Supreme Court held that in the facts and circumstances of the case, the following legal propositions emerge:- 14............1. That a Magistrate can order investigation under S. 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation u/s 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Sec. 202 of the Code. 2. Where a Magistrate chooses to take cognisance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. 3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. 4. Where a Magistrate orders investigation by the police before taking cognizance under S. 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action u/s 190 as described above. 16. In Sk. Jamaluddin and Others Vs. State of Bihar and Another, (1980) CriLJ 1054 it has been held that Section 202 of the Code refers to a stage after cognizance has been taken in the case. Investigation, thereafter, is designed for the purpose of issuing process against the accused and to that purpose alone the officer investigating the case u/s 202 has to direct his attention. State of Bihar and Another, (1980) CriLJ 1054 it has been held that Section 202 of the Code refers to a stage after cognizance has been taken in the case. Investigation, thereafter, is designed for the purpose of issuing process against the accused and to that purpose alone the officer investigating the case u/s 202 has to direct his attention. Whereas, under Chapter XII of the Code, the entire matter is at large before the investigating authority who is entitled to collect materials from any quarters whatsoever bearing on the truth or otherwise of the allegations made against the accused. The scope of the two investigations is quite different. 17. In Ramappa Vs. State of Karnataka and Others, (1984) ILR (Kar) 1064 it has been held as follows:- 5. A bare reading of the above provisions makes it clear that a Magistrate who is competent to take cognizance of any offence as provided u/s 190, on receipt of a complaint directly from the party, either hold an enquiry following the procedure laid down in Chapter XV or refer the complaint for investigation by the police under S. 156(3) embodied in Chapter XII of the Code. If the Magistrate chooses to hold an inquiry under Chapter XV on a complaint presented to him directly by the party, he is required to examine upon oath the complainant and the witnesses present, if any, reduce the substance of such examination to writing, to be signed by the complainant and the witnesses and also by him as laid down in Section 200, except in the case of complaints to which the provisions of the first proviso to Section 200 are attracted. It is also open to the Magistrate as provided under sub-section (1) of Section 202, on receipt of a complaint of an offence of which he is authorized to take cognizance, if he thinks fit, 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 and where the Magistrate chooses to direct an investigation under sub-section (1) of S. 202 of a complaint other than made by a Court, it is obligatory upon him to examine the complainant and the witnesses present if any on oath as provided u/s 200 before directing such investigation. If on the other hand the Magistrate deems it necessary to take action u/s 156(3), he should refer the complaint for investigation by the police without resorting to an inquiry as contemplated under Chapter XV provided the complaint discloses cognizable offence... 18. The learned counsel for the petitioner has relied Ganesh Dass and Others Vs. State of Kerala and Another, (1996) CriLJ 612 on the point that the Magistrate while passing order u/s 156(3) Cr.P.C. is not empowered to direct the police to register First Information Report. Madhuresh Vs. Cbi and others, (1997) 2 AD 952 has been relied on behalf of the petitioner in support of the contention that registration of an FIR is not a condition precedent for conducting a preliminary investigation as distinct from a regular investigation. It has been submitted that before ordering registration of the case, the Magistrate should have got conducted preliminary investigation keeping in view the dispute raised in the complaint. 19. The learned counsel for the petitioner has relied R.P. Kapur versus State of Punjab AIR 1960 SC 866 on the point that the High Court has inherent powers to quash the proceedings where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating the evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. Chandrapal Singh and Others Vs. Chandrapal Singh and Others Vs. Maharaj Singh and Another, AIR 1982 SC 1238 has been relied for quashing the complaint on the ground that the allegations in the complaint do not constitute an offence except mentioning various sections of Mangal Chouhan Vs. The State, (1983) CriLJ 279 has also been relied on behalf of the petitioner where it has been held that ordinarily when a cognizable crime is reported to the police, it will be their statutory duty and right to investigate into the offence reported, and Courts should be reluctant to interfere in the exercise of that duty, although the Courts have the inherent jurisdiction or power to interfere. Such interference may be exercised with justification in a very limited variety of cases, and only with great care and circumspection such as where the FIR taken in its entirety and accepted at its face value does not disclose elements of a cognizable case. 20. Suresh Chandra Swain Vs. State of Orissa, (1987) 64 CLT 693 has been relied on the point if the FIR does not disclose commission of cognizable offence against the accused, then the investigation commenced upon such FIR is liable to be quashed. No such quashing of the investigation would be made if by the time the consideration is made by the High Court, materials have come to light as a result of investigation disclosing prima facie commission of an offence by the accused; but even in such cases the investigation may be quashed if it is established that the carrying on of the investigation has resulted in miscarriage of justice. 21. In Mona Panwar versus High Court of Judicature of Smt. Mona Panwar Vs. The Hon'ble High Court of Judicature at Allahabad and Others, (2011) CriLJ 1619, the meaning of "taking cognizable of" has been held as follows:- 19. The phrase "taking cognizance of" means cognizance of an offence and not of the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Before the Magistrate can be said to have taken cognizance of an offence u/s 190(1)(b) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding u/s 200 and the provisions following that section. However, when the Magistrate had applied his mind only for ordering an investigation u/s 156(3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence. 20. Taking cognizance is a different thing from initiation of the proceedings. One of the objects of examination of complainant and his witnesses as mentioned in Section 200 of the Code is to ascertain whether there is prima facie case against the person accused of the offence in the complaint and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such person. Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding further. The Supreme Court further held that if on reading of complaint Magistrate finds that the allegations therein disclose a cognizable offence and forwarding of complaint to the police for investigation u/s 156(3) of the Code will not be conducive to justice, the Magistrate will be justified in adopting the course suggested in Section 200 of the Code. 22. The learned counsel for the respondent No. 3 has relied State of A.P. Vs. Gourishetty Mahesh and Others, (2010) CriLJ 3844 wherein it has been held that the powers possess by the High Court u/s 482 are wide, however, such power requires care/caution in its exercise. The interference must be on sound principles and inherent power should not be exercised to stifle a legitimate prosecution. 23. In Sushil Suri Vs. C.B.I. and Another, AIR 2011 SC 1713 the Supreme Court has noticed Central Bureau of Investigation Vs. A. Ravishankar Prasad and Others, (2009) 6 JT 589 to the following effect:- 20. It has been further observed that: Central Bureau of Investigation Vs. 23. In Sushil Suri Vs. C.B.I. and Another, AIR 2011 SC 1713 the Supreme Court has noticed Central Bureau of Investigation Vs. A. Ravishankar Prasad and Others, (2009) 6 JT 589 to the following effect:- 20. It has been further observed that: Central Bureau of Investigation Vs. A. Ravishankar Prasad and Others, (2009) 6 JT 589 23.......The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. 24. In Mohd. Yousuf Vs. Smt. Afaq Jahan and Another, AIR 2006 SC 705 , the Supreme Court has held as follows:- 11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation u/s 156(3) of the Code. 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 as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation u/s 156(3) of the Code 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 of the Code only thereafter. 25. It emerges from the submissions of learned counsel for the petitioner that Magistrate has passed illegal order, he took cognizance and then ordered registration of the FIR and investigation of the case. He has not examined the complainant. The submission in brief is that from any angle impugned order 22.08.2012 is not justified and therefore, not sustainable. 25. It emerges from the submissions of learned counsel for the petitioner that Magistrate has passed illegal order, he took cognizance and then ordered registration of the FIR and investigation of the case. He has not examined the complainant. The submission in brief is that from any angle impugned order 22.08.2012 is not justified and therefore, not sustainable. The caste of petitioner through his ancestors is recorded as 'Lohar' for more than a century, only at some point of time interpolation was made in the caste of petitioner in 'Parat Sarkar' which was corrected by lawful authority on 26.03.2003. There is no allegation of interpolation in 'Parat Patwar'. The complaint has been filed malafide at the instance of political opponents of the petitioner in the year 2012. 26. In the complaint, it has been alleged that in the pedigree table 1913-14 caste of petitioner is recorded Tarkhan Jamwal' as the predecessor of petitioner was Tarkhan Jamwal'. It has also been alleged that petitioner taking undue advantage of his position got his caste changed fraudulently, dishonestly in the revenue record and got himself recorded as 'Lohar Kaundal' in the revenue record in connivance with the revenue officials and got himself declared scheduled caste by cheating and playing fraud. The petitioner has been wrongly taking benefit of reservation by corrupt means as scheduled caste whereas Tarkhan' caste belongs to OBC. The petitioner has cheated the society by befooling people and using fraud scheduled caste certificate as genuine. 27. It has been contended on behalf of the petitioners that mistake in the caste of the petitioner in Missal Haqiat of 1913-14 was in 'Parat Sarkar' and not in 'Parat Patwar'. This was corrected by the competent authority on 26.03.2003. The learned counsel for the petitioner has submitted that in case of conflict between 'Parat Patwar' and 'Parat Sarkar' entries in 'Parat Sarkar' will prevail. The mistake or interpolation in 'Parat Sarkar' when crept in or when made is not clear. It is a matter of investigation when mistake crept in or interpolation was made in 'Parat Sarkar' of Missal Haqiat 1913-14. 28. The mistake or interpolation in 'Parat Sarkar' when crept in or when made is not clear. It is a matter of investigation when mistake crept in or interpolation was made in 'Parat Sarkar' of Missal Haqiat 1913-14. 28. On the basis of the submissions made by learned counsel for the petitioner that in case of conflict between 'Parat Patwar' and 'Parat Sarkar' entries in 'Parat Sarkar' will prevail, the obvious inference is that the entries in subsequent revenue record after Missal Haqiat 1913-14 are based on the basis of ' Durga Vs. Milkhi Ram, (1969) 1 UJ 41, the Supreme Court has affirmed the view taken by the High Court that although the presumption would be in favour of later entries but that presumption was rebuttable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorisedly or mistakenly, there being no material to justify the change of entries. The question is whether interpolation has been made in the relevant record at the instance of the petitioner and the petitioner has taken the benefit of such interpolation. This is a matter of investigation. 29. The Section 156 of the Code authorizes any police officer of a police station to investigate any cognizable case without the order of a Magistrate within the limits of police station. The sub-section (3) of Section 156 authorizes any Magistrate empowered u/s 190 to order an investigation as provided in Section 156(1). The Section 190 provides cognizance of offence by Magistrate and Section 200 provides that a Magistrate taking cognizance of an offence on complaint shall examine the complainant and the witnesses present if any with exception as provided in that Section. 30. It has been contended that the Magistrate in the order dated 22.8.2012 has observed prima-facie, it looks that the accused has prepared wrong certificate of his caste and is taking undue benefit of schedule caste certificate. It has been submitted that the Magistrate has taken the cognizance of the offence and therefore, he could not send the case for investigation u/s 156(3). The Magistrate is required to apply his mind when a complaint u/s 156(3) comes before him before sending the case for investigation. It has been submitted that the Magistrate has taken the cognizance of the offence and therefore, he could not send the case for investigation u/s 156(3). The Magistrate is required to apply his mind when a complaint u/s 156(3) comes before him before sending the case for investigation. The application of mind u/s 156(3) by the Magistrate cannot be equated with the application of mind by the Magistrate for taking cognizance u/s 200 Cr.P.C. In Mona Panwar (supra), the Supreme Court has held when the Magistrate has applied his mind only for ordering an investigation u/s 156(3) of the Code, he cannot be said to have taken cognizance of an offence, similar view has been taken by the Supreme Court in Devarapalli Lakshminarayana Reddy and others (supra). 31. The submission of learned counsel for the petitioner that Magistrate has taken the cognizance can be tested from yet another angle. In Tula Ram and others (supra) the Supreme Court has held that where Magistrate chooses to take cognizance he can adopt any alternatives (a) he can peruse the complaint and if satisfied can straightaway issue process to the accused but before that he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses; (b) the Magistrate can postpone the issue of process and direct an enquiry by himself; (c) the Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. 32. In the present case the Magistrate has not directed to hold an enquiry himself or by any other person nor he has recorded the statement of the complainant or his witnesses nor he has taken the cognizance of any offence mentioned in the complaint. On the contrary, the Magistrate has observed that in his view the case should necessarily be investigated by police, he directed the SHO, Police Station, Gagret to register the case and investigate the matter in accordance with law. The direction given by Magistrate squarely falls within the four corners of Section 156(3) Cr.P.C. The Section 200 would come into play only if Magistrate had taken the cognizance, in that case the complainant and his witnesses, if any, were required to be examined. The Section 156(3) nowhere provides that before ordering investigation accused is to be joined in the proceeding and he is to be heard. The Section 156(3) nowhere provides that before ordering investigation accused is to be joined in the proceeding and he is to be heard. The Section 156(3) also does not provide examination of complainant before issuing a direction to the police to investigate. The Section 156(3) also nowhere provides a direction to police to hold preliminary inquiry before registration of case. 33. It has been contended on behalf of the petitioner that the Magistrate u/s 156(3) could not order registration of the case. There is no force in this contention. In Mohd. Yousuf (supra) it has been held that for the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. In that case, it has further been held that even if a Magistrate does not say in so many words while directing investigation u/s 156(3) of the Code 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. In the complaint, there are allegations of change of caste by petitioner fraudulently with dishonest intention by cheating and playing fraud and taking benefit of reservation by corrupt means. The application u/s 156(3) Cr.P.C. has been filed for registration of case against petitioner under Sections 420, 463, 464, 465, 468, 471, 474 IPC. It cannot be said that allegations against the petitioner on the basis of complaint do not disclose cognizable offence. 34. The contention of the petitioner is that for more than a century through his ancestors the caste of the petitioner is recorded as 'Lohar' in the revenue record. The Collector ordered correction on 26.03.2003 regarding the caste of petitioner on the basis of long standing old record. The Magistrate has erred in ordering investigation u/s 156(3) Cr.P.C. The allegations in the complaint of tampering the revenue record have been made against the petitioner. The alleged tampered document has not been placed on record. The Magistrate has ordered investigation, he has not taken cognizance of the case. It is open to the Investigating Agency to submit report after investigation. In The Constitution (Scheduled Castes) Order 1950 (for short 'Order') in Himachal Pradesh Tarkhan Jamwal' has not been specified, whereas, 'Lohar' has been specified at serial No. 36 of Part-VI Himachal Pradesh of the Order. 35. It is open to the Investigating Agency to submit report after investigation. In The Constitution (Scheduled Castes) Order 1950 (for short 'Order') in Himachal Pradesh Tarkhan Jamwal' has not been specified, whereas, 'Lohar' has been specified at serial No. 36 of Part-VI Himachal Pradesh of the Order. 35. In Parsram and Another Vs. Shivchand and Others, AIR 1969 SC 597 , it has been held that it is not open to the Court to scrutinize whether a person who is properly described as a mochi also falls within the caste of chamars and can describe himself as such. In Palghat Jilla Thandan Samudhaya Samrakshna Samithi and Another Vs. State of Kerala and Another, (1993) 6 JT 622 , it has been held that the order has to be applied as it stands and no enquiry can be held or evidence let in to determine whether or not some particular community falls within it or outside it. No action to modify the plain effect of the Scheduled Castes Order, except as contemplated by Article 341, is valid. 36. The intention of the Order is to give benefit of the Order only to the specified caste in the Order and not to others. It is for the Investigating Agency to investigate and report the outcome of the investigation. On the basis of complaint and other material on record, it cannot be said that no case is made out for a direction to the police to investigate u/s 156(3) Cr.P.C. The order dated 22.08.2012 cannot be said to be wrong and illegal. The Supreme Court in Gourishetty Mahesh (supra) has held that power u/s 482 is wide, however, such power requires care/caution in its exercise. The inherent power should not be exercised to stifle a legitimate prosecution. Similar, observation of the Supreme Court in A Ravishankar Prasad has been noticed by the Supreme Court in Sushil Suri (supra). The petitioner has failed to make out a case for quashing of the proceedings. There is no merit in the petition. In view of above, petition fails and is accordingly dismissed. Cr.M.P. No. 732/2012 is also disposed of in view of disposal of main petition. The record of the trial Court be sent back immediately.