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2013 DIGILAW 481 (RAJ)

Suresh Chand v. State of Rajasthan

2013-02-27

RAGHUVENDRA S.RATHORE

body2013
Hon'ble RATHORE, J.—Heard learned counsel for the parties. 2. Being aggrieved of the order dated 28.03.2012 passed by the learned Civil Judge (J.D.) and Judicial Magistrate, First Class, Tijara, District Alwar, whereby he has returned the complaint having the prayer to send the same to the concerning police station under Section 156(3) Cr.P.C., the complainant petitioner has filed this criminal miscellaneous petition. 3. It was on 17.03.2012 that the complainant petitioner had submitted a report against the accused respondents, at Police Station Tijara, District Alwar. The said report was kept pending by the police on the assurance that it would soon be registered and appropriate action thereupon would be taken. But the police did not register the report and no further action was taken by it. On the contrary, the petitioner was asked to bring an order from the court for registration of the report. Ultimately, the petitioner filed a compliant in the Court against the respondents, with the prayer that the same be sent to the concerning police station for registration and investigation. After filing of the complaint on 21.03.2012, the same was kept for the next date i.e. 22.03.2012. The learned court below, on 28.03.2012, returned the complaint in original to the complainant (Annexure-2). Hence, the present miscellaneous petition has been filed by the complainant before this Court. 4. Learned counsel for the petitioner has submitted that the impugned order dated 28.03.2012 is illegal and contrary to law. Further, he has submitted that the learned court below had committed error in law by returning the complaint in original to the petitioner. There is no such provision under the Code of Criminal Procedure. It has also been submitted by the counsel for the petitioner that on bare perusal of the complaint, a cognizable offence is prima facie made out against the accused respondents and therefore, the learned Magistrate was required to send the same under Section 156(3) Cr.P.C., as had been prayed by the petitioner, to the concerning police station for registration of the report and to investigate the matter. But the learned Magistrate had failed to proceed in accordance to the procedure laid down in law and has returned the complaint in original. Therefore, it has been submitted by the counsel for the petitioner that the impugned order deserves to be quashed and set aside. 5. But the learned Magistrate had failed to proceed in accordance to the procedure laid down in law and has returned the complaint in original. Therefore, it has been submitted by the counsel for the petitioner that the impugned order deserves to be quashed and set aside. 5. Learned Public Prosecutor, who is the only necessary party at the stage as a prayer has been made in the complaint for sending the same for registration of the report and no other person has any locus standi because they are yet to be made accused in accordance to law, has tried to support the impugned order passed by the learned court below. He has referred to the impugned order dated 28.03.2012 and submitted that it is a well considered one which also discloses the reasons for passing of the same. He has also submitted that the learned court below has arrived to a conclusion that no case for proceeding further by exercising the powers under Section 156(3) Cr.P.C. is made out, in the instant case. Therefore, he has submitted that the complainant petitioner may proceed further on the complaint which has been returned to him, in accordance to the provisions of law. 6. After considering the facts and circumstances of the case and giving thoughtful consideration to the submissions made by the learned counsels for the rival parties, this Court is of the view that this criminal miscellaneous petition has force. The learned court below has erred in not taking into account the complaint filed by the petitioner; the prayer made therein and the relevant provisions under the Code of Criminal Procedure for proceeding on the complaint so filed by the complainant petitioner. 7. The learned court below has erred in not taking into account the complaint filed by the petitioner; the prayer made therein and the relevant provisions under the Code of Criminal Procedure for proceeding on the complaint so filed by the complainant petitioner. 7. In somewhat similar situation, this Court had elaborately considered, in the case of Babu Lal vs. State of Rajasthan, 2009(3) WLC (Raj.) 199, the scope of Section 156(3) Cr.P.C.; the powers of the Magistrate thereunder; whether a Magistrate can decline the prayer made under Section 156(3) Cr.P.C. and proceed in a different manner and whether a Magistrate can direct the applicant to take recourse of a particular form of litigation by proceeding under the provision of Chapter XIV of the Code of Criminal Procedure after considering the application as a complaint under Section 190(1)(a) Cr.P.C. It was held in the case of Babu Lal (supra) that when an application/ complaint is filed with the prayer and object under Section 156(3) Cr.P.C., then it seek limited indulgence of the concerning Magistrate for issuing directions to the police to register a case and investigate the same if the contents of the application discloses a cognizable offence. The provisions of Section 156(3) are containing in Chapter XII of the Code which deals with the information to the police officer and their powers to investigate the matter. Section 156(1) empowers an officer incharge of police station to investigate any cognizable case without the orders of the Magistrate. Section 156(3) empowers a Magistrate to order for investigation of a cognizable offence. In other words, the provision under Section 156(3) relates to registration and investigation of the case. When an order is passed under Section 156(3) Cr.P.C., the police would follow the procedure containing in Section 156(1) Cr.P.C. and thereafter submit a report under Section 173 Cr.P.C. A cognizance on such report is taken under Section 190(1)(b) Cr.P.C. A separate procedure for trial of such case is provided under the Code of Criminal Procedure. But on filing of a complaint before a Magistrate, with the intention that he is to proceed in the matter, then he has to adopt the procedure laid down under Chapter XIV of the Code of Criminal Procedure and a cognizance taken thereupon is under Section 190(1)(a) and a separate procedure is provided for trial of a complaint case. But on filing of a complaint before a Magistrate, with the intention that he is to proceed in the matter, then he has to adopt the procedure laid down under Chapter XIV of the Code of Criminal Procedure and a cognizance taken thereupon is under Section 190(1)(a) and a separate procedure is provided for trial of a complaint case. Therefore, separate procedure are to be followed in both type of cases and the procedure of one cannot be converted into another. A Magistrate has no power to register an application/ complaint, with a prayer for issuing order under Section 156(3) Cr.P.C. as a complaint under Section 190(1)(a) Cr.P.C. and start the proceedings under Chapter XIV Cr.P.C. 8. The Hon'ble Supreme Court, in the case of State of Haryana & Ors. vs. Bhajan Lal & Ors, AIR 1992 SC 604 , had laid down that:- “It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer-in-charge of a police station satisfying the requirements of section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.” In the case of Madhu Bala vs. Suresh Kumar & Ors., AIR 1997 SC 3104 = RLW 1997(3) SC 364, the Hon'ble Supreme Court had held that:- “The provisions of the Code, therefore, do not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the police would be “to register a case at the police station treating the complaint as the first information report and investigate into the same.” 9. The Hon'ble Supreme Court, in the case of Central Bureau of Investigation through S.P. Jaipur vs. State of Rajasthan & Anr., AIR 2001 SC 668 , has held as follows: “What is contained in sub-section (3) of section 156, is the power to order the investigation referred to in sub-section (1), because the words “order such an investigation as above mentioned” in sub-section (3) are unmistakably clear as referring to the other sub-section. Thus the power is to order an “officer-in-charge of a police station” to conduct investigation”. Further, it has been held, in para 16, as follows:- “We, therefore, reiterate, that the magisterial power cannot be stretched under the said sub-section beyond directing the officer in charge of a police station to conduct the investigation.” 10. After considering the relevant provisions of law as well as the principles in respect of it, as laid down by the Hon'ble Supreme Court, it was held in the case of Babu Lal (supra), at para 15, that:- “Whenever an aggrieved person approaches a Magistrate with the prayer that the police has refused to register his report in respect of a cognizable offence, then the Magistrate is required to look into his application only to determine whether any cognizable offence is disclosed thereby or not. In case it is so disclosed, then the Magistrate has no option but to direct the police to register an FIR and investigate the case.” It was also observed, in para 16 of the said case, that: “A Magistrate is not required to conduct an enquiry whatsoever under Section 156(3) of the Code and he is not expected to act in any other manner but to order the police for registration of a report and to investigate the matter. In case, any other enquiry is conducted and the matter is delayed on account of calling of report from the police, it would rather tantamount to encroach upon the function of the police and the same is not to be undertaken by a Judicial Court.” 11. The action which is required to be taken by a Magistrate on a complaint is provided under Chapter XIV of the Code. Accordingly, the subsequent action to be taken by a Magistrate after filing of a complaint is by way of recording of the statements of the complainant under Section 200 Cr.P.C. and that of his witnesses under Section 202 of the Code. It is also clear that if a complaint makes any other prayer, then the one mentioned under Section 2(d) it does not fall under the said category. It is also clear that if a complaint makes any other prayer, then the one mentioned under Section 2(d) it does not fall under the said category. Therefore, every application/complaint, before a Magistrate, filed by an aggrieved which does empower the Magistrate to take cognizance on it under Section 190(1)(a), and is an application/ complaint with a prayer for order under Section 156(3) Cr.P.C. is not a complaint under Section 2(d) of the Code. Thus, there lies a distinction between a complaint under Section 190(1)(a) and an application/complaint with a prayer for exercising powers under Section 156(3) Cr.P.C. When an applicant desires that the Magistrate should take action against the persons then it is a 'complaint'. But when no action is to be taken by the Magistrate and the intention is for some other kind of action, such as to the police, then it will certainly not amount to a 'complaint'. In other words, an application with a prayer for direction to register an FIR for investigation cannot be registered as a 'complaint' by the Magistrate and himself proceeds with it. The purpose of a complaint under Section 2(d) and a complaint/ application under Section 156(3) Cr.P.C. are totally different and such application cannot be treated to be a complaint under Section 190 (1)(a) by the Magistrate, on his own. As a matter of fact, a Magistrate cannot transform a complaint/application with a prayer for passing of the orders under Section 156(3) Cr.P.C. into a complaint under Section 2(d) Cr.P.C. It is for the aggrieved person to start the lis in the form and forum which he deems fit and proper and not for the Magistrate concerned in his own way. In a complaint/ application where cognizable offence is disclosed and a prayer for exercising powers under Section 156(3) Cr.P.C. has been made then the Magistrate has to pass orders to the police for registration of the report and to investigate the matter. In other words, if a cognizable offence is disclosed in an application/ complaint with a prayer under Section 156(3) Cr.P.C. then the Magistrate concerned does not have the option to convert the same into an application under Section 190(1)(a) Cr.P.C. and to proceed himself under Chapter XIV, but to direct the police to register the report and investigate the case. In other words, if a cognizable offence is disclosed in an application/ complaint with a prayer under Section 156(3) Cr.P.C. then the Magistrate concerned does not have the option to convert the same into an application under Section 190(1)(a) Cr.P.C. and to proceed himself under Chapter XIV, but to direct the police to register the report and investigate the case. It is noteworthy that where a Magistrate is of the view that matter does not require any investigation and he would inquire himself then it would amount to prejudging the issue of investigation. 12. Coming back to the facts of the present case, it is to be noted that after filing of the complaint on 21.03.2012, the learned Magistrate had returned the same in original to the complainant with a liberty to file again. A perusal of the impugned order goes to show that a complaint on behalf of Suresh Chand was filed before the court below on 20.03.2012. On 28.03.2012, the learned counsel for the complainant, while reiterating the averments made in the complaint, requested that the same be sent under Section 156(3) Cr.P.C. to the Police Station, Tijara, District Alwar. Further, it is revealed from the order impugned that the learned court below had referred to the judgment of the Hon'ble Supreme Court in the case of Sakiri Vasu vs. State of Uttar Pradesh & Ors., (2008) 2 SCC 409 = 2008(1) RLW 136 (SC), and observed that it is not appropriate for any person to approach the court directly without exhausting the alternative remedy under Section 36 and 154(3) Cr.P.C. The learned court below had also taken into consideration elaborately the nature of dispute between the parties, the purpose of filing the complaint, etc. It would suffice to say that at the time of considering the complaint and hearing the counsel for the complainant regarding sending of the same before the concerning police station under Section 156(3) Cr.P.C., the learned Magistrate ought to have passed appropriate orders, in accordance to law, without observing in respect of alternative remedy. It is to be noted that the observation made by the Hon'ble Apex Court in the case of Sakiri Vasu (supra) was in the context that complainants were often found approaching directly under Article 226 of the Constitution of India. It is to be noted that the observation made by the Hon'ble Apex Court in the case of Sakiri Vasu (supra) was in the context that complainants were often found approaching directly under Article 226 of the Constitution of India. It was on the said premise that the Hon'ble Supreme Court had elaborately specified the alternatives available to an aggrieved person under the Code of Criminal Procedure and had deprecated the practice to approach the High Court directly, by such like persons. As regards the details given in the impugned order, in respect of dispute between the parties and the purpose of filing complaint, it is sufficient to point out that the learned court below was, at that time, seized with complaint/ application filed by the complainant with the specific prayer for exercising powers under Section 156(3) Cr.P.C. so as to send the matter to the concerning police station for registration and to investigate thereupon. It was not appropriate for the court below to have gone into the details of the facts with regard to dispute between the parties, etc., as if it was deciding the matter finally. The short question which required consideration of the learned Magistrate, at that stage, was as to whether cognizable offence appears to have been made out from the complaint and if so, then an order was required to be passed to send the same before the concerning Police Station for registration of the first information report and to investigate in it. 13. For the aforesaid reasons, the learned Magistrate had erred in passing the impugned order because it had not taken into consideration the settled principles of law in respect of exercising the powers under Section 156(3) Cr.P.C., by going into the facts of the case and reasons of dispute between the parties at that stage. When the complaint/ application was filed before the learned court below with the prayer that the same be sent to the concerning police station under Section 156(3) Cr.P.C. for registration of the report and to investigate, then it was to peruse the complaint so as to assess about a cognizable offence having been made out against the accused respondents. If the views of the learned Magistrate were in the affirmative then he was required to send the complaint under Section 156(3) Cr.P.C. to the concerning police station for registration of a report and to investigate the matter. If the views of the learned Magistrate were in the affirmative then he was required to send the complaint under Section 156(3) Cr.P.C. to the concerning police station for registration of a report and to investigate the matter. The learned court below has returned the complaint to the complainant in original which is contrary to the provisions of law. As a matter of fact, there is no such provision under the Code of Criminal Procedure that when an application/ complaint with the prayer for exercising the powers under Section 156(3) Cr.P.C. is filed then the original complaint be returned to the complainant. 14. In the result, the inevitable conclusion is that the impugned order deserves to be set aside and the learned court below is to consider the application so as to assess whether any cognizable offence is made out and on satisfaction with regard to it, the complaint be ordered to be sent to the concerning police station for registration of the report and to investigate the case. 15. Consequently, this criminal miscellaneous petition is allowed. The impugned order dated 28.03.2012 is quashed and set aside. The learned trial court is directed to consider the application filed by the petitioner on 21.03.2012 as well as the prayer made therein and pass orders, in accordance to law. 16. Before parting with this order, it is deemed just and proper to take note of a situation which has come up, in the minds of a few, after the judgment rendered by this Court in the case of Babu Lal (supra) whereby the court concerned have been sending the complaint/ application, with the prayer for exercising of powers under Section 156(3) Cr.P.C., to the concerning police station for registration and investigation without even considering the contents of it and coming to a prima facie conclusion that a cognizable offence is made out from the same or not. The procedure adopted by some of the courts is that as if the principle laid down and the observation made by this Court in the case of Babu Lal (supra) is that in all circumstances, such applications are to be sent to the concerning Magistrate for registration of the first information report and direction for investigation. The procedure adopted by some of the courts is that as if the principle laid down and the observation made by this Court in the case of Babu Lal (supra) is that in all circumstances, such applications are to be sent to the concerning Magistrate for registration of the first information report and direction for investigation. As noted hereinabove, when an application/ complaint with the prayer for exercising of powers under Section 156(3) Cr.P.C. and to send the same to the police station concerned for registration and investigation, the Magistrate is required to look into the application so as to assess as to whether any cognizable offence is made out or not. In case, it is so disclosed then the Magistrate has to direct the police station to register an FIR and to investigate the case. In other words, on receipt of such application, the Magistrate is to consider the same for determining with regard to disclosure of a cognizable offence and then send the same to the police station for registration of report and investigation. The words 'only' and 'no option' used in the case of Babu Lal (supra), was for the purpose to emphasize that when an application/ complaint is received by a Magistrate with the prayer under Section 156(3) Cr.P.C. then he is to assess about a cognizable offence being disclosed in it or not. He is neither required to conduct an enquiry himself at that stage nor is expected to act in any other manner but to order the police for registration of report and to investigate the matter. He is neither required to conduct an enquiry himself at that stage nor is expected to act in any other manner but to order the police for registration of report and to investigate the matter. An enquiry being made by the Magistrate, in whatever manner as it had happened in the case of Babu Lal (supra), where he called for a report from the police before passing order under Section 156(3) Cr.P.C. or by passing any order on the complaint as provided under Chapter XIV of the Code that is to say by issuing directions, after treating it to be one under Section 190(1)(a), for recording of the statement of the complainant under Section 200 Cr.P.C. and that of his witnesses under Section 202 Cr.P.C. Such procedure is not to be adopted by the Magistrate when a request is made to exercise the powers under Section 156(3) Cr.P.C. But it is clarified that it does not mean that when an application/ complaint is filed before the Magistrate with a prayer under Section 156(3) Cr.P.C., he is not to determine as to whether a cognizable offence is made out or not, and straight of send the same in routine to the police station for registration of report. Similarly, what was meant by this Court in observing that the Magistrate has no option but to direct the police to register an FIR was for the reasons and purpose that he himself is not to inquire into the matter while keeping it pending or to pass order that the same be proceeded with by him under Chapter XIV of the Code, by calling upon the complainant and also his witnesses to give statements. Such procedure would tantamount to converting the application/ complaint which is filed for the purpose of exercising the powers under Section 156(3) Cr.P.C. to the one under Section 190(1)(a) Cr.P.C. which can be proceeded with only under Chapter XIV and not under Chapter XII which it ought to have been. As mentioned above when an FIR is registered under Section 156(3) Cr.P.C. and after investigation, the conclusion is filed before the court concerned then it has to proceed in accordance to Section 190(1)(b) Cr.P.C. Separate procedures are provided in respect of two situations before the court and even the trial is to be proceeded with differently. As mentioned above when an FIR is registered under Section 156(3) Cr.P.C. and after investigation, the conclusion is filed before the court concerned then it has to proceed in accordance to Section 190(1)(b) Cr.P.C. Separate procedures are provided in respect of two situations before the court and even the trial is to be proceeded with differently. Therefore, this Court had emphasized in the case of Babu Lal (supra), by observing that the Magistrate has no option but to direct the police station to register a first information report, by which it was never meant that the court concerned is not to assess and determine as to whether any cognizable offence is disclosed from the application/ complaint or not. 17. On filing of an application/complaint with the prayer to exercise the powers under Section 156(3) Cr.P.C. for directing the police station concerned to register the case and to investigate the matter, the Magistrate is not to act as a 'post office' to pass on such application of the complainant to the police station concerned but has also to see as to whether the same discloses a cognizable offence or not. In case, the Magistrate is of the view that no cognizable offence is disclosed in such like application/ complaint then he can refuse to exercise the powers under Section 156(3) Cr.P.C. for sending the same to the police station and such like complaint can be rejected. However, on filing of such complaint, the Magistrate, is not to make enquiry into the matter or call for evidence or to conduct the same himself because that would be amounting to pre-judging the issue of investigation which no judicial court is supposed to do. All such issues are to be inquired into and considered by the police after due investigation. Therefore, it is clarified that the observation made in the case of Babu Lal (supra) are that on filing of application/complaint with the prayer to exercise powers under Section 156(3) Cr.P.C., the Magistrate concerned is to consider the contents of it and assess as to whether any cognizable offence is disclosed or not. It is only thereafter that the same be sent to the police station for registration and investigation. In case, such like applications do not disclose a cognizable offence then the same can be rejected. 18. It is only thereafter that the same be sent to the police station for registration and investigation. In case, such like applications do not disclose a cognizable offence then the same can be rejected. 18. In order to remove the clouds from the minds of the concerning officers and to clarify the observation made in the case of Babu Lal (supra), the Registrar General of this Court is directed to send a copy of this order to all District and Sessions Judge of the State. All the learned District and Sessions Judge are further directed to get copies of this order distributed to all the judicial officers, upto the rank of Chief Judicial Magistrate, for their information and guidance.