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Jharkhand High Court · body

2017 DIGILAW 2199 (JHR)

Bijay Kumar Tripathy v. State of Jharkhand

2017-12-19

RONGON MUKHOPADHYAY

body2017
ORDER : Heard Mr. Rajiv Ranjan, learned senior counsel for the petitioner in W.P.(Cr.) No. 326 of 2016, Mr. Anil Kumar Sinha, learned senior counsel for the petitioners in WP.(Cr.) No. 268 of 2016 and Mr. Anil Kumar, learned senior counsel for the petitioner in Cr. M.P. No. 199 of 2017, Mr. Shailesh Kumar Singh, learned counsel for the ACB in all the cases and Mr. Bhola Nath Ojha, learned counsel appearing for the complainant in Cr. M.P. No. 199 of 2017. 2. Since a common prayer has been made in all these applications which relates to the order dated 27.08.2016 passed by the learned Special Judge, Anti Corruption Bureau, Ranchi-cum-Judicial Commissioner II, Ranchi in Complaint Case No. 1 of 2015 corresponding to Vigilance P.S. Case No. 62 of 2016, these matters are being disposed of by this common order. 3. Before embarking on an individual discussion of each of the cases, the factual aspects which led to institution of a complaint and the subsequent events which unfolded are being discussed at the first instance. 4. A complaint case was instituted by the Uttam Kumar being registered as Complaint Case No. 1 of 2015 against Sri Amool Ranjan Singh, presently posted as Director Incharge, RINPAS, Ranchi; Sri Rajendra Prasad Singh, the then Minister, Department of Health, Medical Education and Family Welfare, Jharkhand and Sri B.K. Tripathy, the then Principal Secretary, Department of Health, Medical Education and Family Welfare, Jharkhand. 5. It has been alleged in the complaint petition that A2 being hand in gloves with A3 appointed A1 as Director Incharge of RINPAS. It has been stated that A3 had declared in his letter that A1 was not eligible to be appointed as Director Incharge, but by taking illegal gratification A3 and A2 appointed A1. From the very inception, Ranchi Mansik Arogyashala has never been allowed to run smoothly because of mismanagement and misappropriation of funds. A PIL was filed before the Hon'ble Supreme Court and after its intervention the situation improved to a certain extent and Ranchi Mansik Arogyashala was renamed as Ranchi Institute of Neuro Psychiatry and Allied Sciences (RINPAS). However, misappropriation of funds, illegal appointments and illegal tenders continued to rule the roost. Allegation has been levelled that persons not eligible were appointed in various posts. The joint inquiry report contains serious allegation with respect to illegal appointment of A1. However, misappropriation of funds, illegal appointments and illegal tenders continued to rule the roost. Allegation has been levelled that persons not eligible were appointed in various posts. The joint inquiry report contains serious allegation with respect to illegal appointment of A1. Although, various other irregularities were also detected, but no action was taken on the said report. A writ of quo-warranto has also been filed by the complainant challenging the appointment of A1. It has been alleged that another joint inquiry report was submitted on 12.02.2001 by the Additional Collector, Flying Squad and others with respect to financial irregularities in RINPAS. The Report indicates misappropriation in drugs, food, library books, stipend, building works and others. However, no action was taken and the matter was represented before the Chief Minister, but the re-inquiry has been deferred. It has been stated that the complainant had also made a representation before the ADGP, Jharkhand, but no action was taken. In the year 2014 an inquiry was conducted by a 4 Member Committee and it was concluded that several appointments including that of the Director was illegal. Another irregularity which surfaced was of work allotted to Cobra Industrial Security which caused illegal benefit to A1 and the security agency. Further allegation has also been levelled that financial irregularities were also committed with respect to purchase of books. On the basis of aforesaid allegations, a complaint case was instituted for the offence punishable under Sections 406, 468 and 467 of I.P.C. and under Sections 7, 13(1) and 12(2) of the Prevention of Corruption Act. After the complaint case was lodged vide order dated 23.10.2015 passed by the Special Judge, ACB, the Officer Incharge of Vigilance Police Station was directed to inquire and submit a report. Pursuant to the submission of the preliminary report vide order dated 27.08.2016, the Officer Incharge, ACB was directed to register an FIR and all the petitioners are aggrieved with the order dated 27.08.2016 and the subsequent events which also includes institution of an FIR. 6. Having been done with the broader outline of the common thread which runs through all the cases, this Court shall now consider the arguments advanced on behalf of the parties in each of the cases for deciding the issue in question. W.P. (Cr.) No. 326 of 2016 : 7. It has been submitted by Mr. 6. Having been done with the broader outline of the common thread which runs through all the cases, this Court shall now consider the arguments advanced on behalf of the parties in each of the cases for deciding the issue in question. W.P. (Cr.) No. 326 of 2016 : 7. It has been submitted by Mr. Rajiv Ranjan, learned senior counsel for the petitioner that the complaint case was filed with a prayer to send it to ACB for registering an FIR under Section 156(3), Cr.P.C. Learned senior counsel submits that the Court had initially directed for a preliminary inquiry by the Officer Incharge of Vigilance Police Station under Section 202, Cr.P.C. and after receipt of the report allowed the prayer of the complainant by directing the ACB to register an FIR. It has been submitted that the only channel available to the Court, once it has called for a preliminary report was either to issue process in the complaint case under Section 204, Cr.P.C. or to dismiss the complaint case under Section 203, Cr.P.C. It has been submitted that exercising neither of the options and referring the matter to the police for registering an FIR in terms of Section 156 (3), Cr.P.C. makes the impugned order dated 27.08.2016 fallible. Learned senior counsel submits that the petitioner belongs to the Indian Administrative Services and is presently posted as Secretary, National Capital Region, Ministry of Urban Development, New Delhi, Government of India. It has been submitted that Vigilance P.S. Case No.66 of 2015 was registered against 17 persons without taking sanction as required under Section 17 of the Prevention of Corruption Act. No approval has also been taken from the Cabinet Secretariat and Co-ordination (Vigilance) Department which is a mandatory pre-requirement for lodging an FIR. Furthering his argument, learned senior counsel adds that there was an advertisement for appointment of Director, RINPAS in which A1 had also applied, but his name was never considered on the ground that certain allegations were levelled against him. A1 was made Director Incharge on 10.09.2014 as no body was found eligible for the said post and on the basis of A1 being the senior most professor, he was made the Director Incharge. A1 was made Director Incharge on 10.09.2014 as no body was found eligible for the said post and on the basis of A1 being the senior most professor, he was made the Director Incharge. Learned senior counsel further submits that the impugned order dated 27.08.2016 clearly has held that in the matter of appointment, there is no criminality against the petitioner, but in spite of the same; the FIR has been lodged to tarnish the image of the petitioner. While once again referring to the order dated 27.08.2016 it has been stated that there is nothing to show that the petitioner was involved in taking of illegal gratification. The third report of ACB reveals that prima-facie case was made out against 11 persons excluding the petitioner. Submission has been advanced that there is no allegation of any quid pro quo or that the petitioner had made wrongful gain for himself. In support of his contention, learned senior counsel for the petitioner has referred to the judgment in the case of A. Sivaprakash v. State of Kerala reported in (2016) 12 SCC 273 . 8. Mr. Shailesh Kumar Singh, learned counsel for the ACB countering the argument advanced by the learned senior counsel for the petitioner has raised a preliminary objection that the stage at which the petitioner is praying for quashing of the entire criminal proceedings is premature, since investigation is going on and it cannot be predetermined at this stage as to whether the complicity of the petitioner is evident or not. Learned counsel further submits that the petitioner has never alleged that it was a malicious or mala-fide prosecution being lodged against him. Learned counsel submits that the criminal proceedings cannot be capped at this stage. Referring to paragraph 10 of the counter-affidavit, it has been stated that A1 did not have the requisite qualification and was in absolute contrast to the order of the Hon'ble Supreme Court that a person appointed as Director, RINPAS should have a confirmed integrity apart from a strong background in modern scientific approach to the treatment of mental patients and their social and occupational rehabilitation. He states that A1 is a person of doubtful integrity and credentials, but even in spite of the said fact, he was posted as Director Incharge which reveals the culpability of the petitioner. He states that A1 is a person of doubtful integrity and credentials, but even in spite of the said fact, he was posted as Director Incharge which reveals the culpability of the petitioner. Concluding his argument, learned counsel submits that at this stage, it is difficult to come to an ultimate conclusion with respect to the culpability or otherwise of the petitioner which can only be ascertained after the outcome of the investigation. In support of his contentions, learned counsel for the ACB has referred to the judgments passed in the cases of State of Orissa v. Ujjal Kumar Burdhan reported in (2012) 4 SCC 547 and State of M.P. v. Surendra Kori reported in (2012) 10 SCC 155 . W.P. (Cr.) No. 268 of 2016 : 9. This writ application is confined to 4 petitioners whose qualifications and posts are delineated as follows. 10. The petitioner No. 1-Dr. Masroor Jahan was appointed to the post of Junior Clinical Psychologist of having the qualification of M.A. in Psychology and M.Phil on 31.07.1997 which was re-designated as Assistant Professor. She was confirmed on 07.09.2000 and thereafter promoted as Associate Professor on 01.02.2007 and Additional Professor on 10.02.2012. 11. The petitioner No.2-Dr. Manisha Kiran was appointed on 31.07.1997 as Junior Psychiatrist, Social Worker having the qualification of M.A. in Sociology and M. Phil in Psychiatric Social Work from Social Institute of Psychiatry. The services of petitioner No.2 was confirmed on 17.12.2000. She was promoted as Assistant Professor on 21.11.2003 through the Departmental Promotion Committee. She has subsequently enhanced her qualification and has been involved being an examiner/expert/moderator for MSW/M.Phil/Ph.D. courses in various institutions. 12. The petitioner No.3-Dr. Kaptan Singh Sengar was appointed as Assistant Professor on 25.01.2005 and was promoted as Associate Professor or 10.02.2012 and Additional Professor on 22.03.2013. 13. The petitioner No.4-Ranjan Kumar Das was appointed as a clerk in November 1999 and was promoted as Head Clerk vide office order dated 09.07.2015. 14. Mr. Anil Kumar Sinha, learned senior counsel for the petitioners has stated that RINPAS is an autonomous body and the whole process of appointment was made under the supervision of the Hon'ble Supreme Court. He has stated that the State had also filed an affidavit in that regard before the Hon'ble Supreme Court. 14. Mr. Anil Kumar Sinha, learned senior counsel for the petitioners has stated that RINPAS is an autonomous body and the whole process of appointment was made under the supervision of the Hon'ble Supreme Court. He has stated that the State had also filed an affidavit in that regard before the Hon'ble Supreme Court. Learned senior counsel submits that as per the order of the Hon'ble Supreme Court and as per the recommendation of Dayal Committee, a management committee had been constituted headed by the Divisional Commissioner. It has been submitted that the vigilance Court had adopted a stance which is unknown to law. It has misused its jurisdiction under Section 202, Cr.P.C. and called for an inquiry report and after the receipt of the report, sent the complaint for instituting an FIR in terms of Section 156(3), Cr.P.C. which the learned Special Judge was never empowered to do. Submitting further it has been stated that the process of appointment cannot be the subject-matter of scrutiny in a criminal case and that too for appointments made 12-19 years back. If at all there were some disputes or discrepancies in the appointment process, the same could have been at best a subject-matter of a departmental proceeding and by no stretch of imagination, the petitioners could be proceeded against in a criminal case. Learned senior counsel questions the power of learned Special Judge, ACB by stating that once a report which has been called for by exercising the powers under Section 202 Cr.P.C. is received the only option available to the learned Special Judge, ACB was either to dismiss the complaint under Section 203 Cr.P.C. or issue process under Section 204 Cr.P.C. It has been stated that at the stage of receipt of the report, the complaint could not have been referred to the police under the garb of exercising the powers conferred under Section 156(3) of the Cr.P.C. as the stage was over once the complaint was perused and a report was called for from the Officer Incharge, Vigilance Police Station. It has been stated that there is no criminality which would lead to prosecution of the petitioners and the petitioners are ready to face a departmental inquiry if at all there has been some suspicion with respect to the appointments of the petitioners which also is misplaced considering the fact that the petitioners were appointed after advertisement and after following the due process of law. It has been argued that if the appointments itself are illegal, responsibility should also be fixed upon the Managing Committee which had selected the petitioners, but none of the members of the Managing Committee have been made accused. Learned senior counsel adds that the complaint has been instituted at the behest of a contractor, who had a grudge with the officials of RINPAS and it can be said to be a malicious prosecution against the petitioners. It has been stated while referring to the qualification of the petitioners that they are well qualified for the post for which they were appointed and some of them subsequently enhanced their qualification and on being found suitable they have also been duly promoted to the respective posts they are holding. Learned senior counsel further submits that the report which was called for was initially submitted to the Secretary, Department of Health, Medical Education and Family Welfare and on a direction given by the learned Court below, the same was submitted before it which resulted in passing of the impugned order dated 27.08.2016. Reference has also been made to the supplementary affidavit filed on behalf of the petitioners which contains the fact that the National Humans Rights Commission had been engaged to look into the affairs of the RINPAS and the report of the Special Rapporteur, NHRC reveals that the mental health services have improved significantly over the years. The NHRC has also shown its dissatisfaction with the vigilance case instituted against the petitioners. Learned senior counsel has referred to the procedure for appointment and has stated that the same were diligently followed. He has also stated while referring to paragraph 9 of the counter-affidavit that if the appointment of the petitioner No.2 was not as per the advertisement, why was the advertisement not verified. Reference has also been made to the rules of NIMHANS which suggest that the qualification for appointment of psychiatric social worker is Masters degree in Social Work or Sociology or equivalent qualification. Reference has also been made to the rules of NIMHANS which suggest that the qualification for appointment of psychiatric social worker is Masters degree in Social Work or Sociology or equivalent qualification. In fact at the time of her entry into service, the petitioner No.2 held the qualification as prescribed by NIMHANS. Learned senior counsel has also referred to the advertisement in which for the post of Assistant Professor of Psychiatric Social Work, the qualification required is degree in Social Work/Sociology/Applied Sociology. It has been stated that the petitioner No.2 was also duly promoted by the Departmental Promotion Committee. Learned senior counsel further submits that the qualification for left over vacant posts of Psychiatric Social Worker was degree in Sociology and the petitioners who were holding the said posts were having the said qualification as depicted in the advertisement. In fact the Health Secretary had flied an affidavit before the Hon'ble Supreme Court in W.P. (Civil) No.339 of 1986 stating therein that selections were made for one Junior Psychiatrist, one Senior Clinical Psychologist, three Junior Clinical Psychologist and three Junior Social Worker amongst the applicants and the others were not found suitable. It has further been stated that departmental proceedings has already been started against the petitioner No.2. Learned senior counsel thus submits that the appointment of the petitioners were made under due process of law and since the complaint relates to the appointments of the petitioners, the criminal case in such circumstances does not have any legs to stand and also in view of the illegality committed by the learned Special Judge, ACB, Ranchi in referring the complaint to the police in the garb of Section 156(3), Cr.P.C., the entire criminal proceedings as against the petitioners deserve to be quashed and set aside. 15. Mr. Shailesh Kumar Singh, learned counsel appearing for the ACB has stated that if the petitioners were not qualified, then their appointment itself is illegal and the investigation will reveal the complicity of the petitioners in obtaining appointment by illegal means and the culpability or otherwise of the petitioners at this stage cannot be considered as only the investigation will bring out the actual facts. Learned counsel further submits apart from adopting the arguments advanced by him in W.P.(Cr.) No. 326 of 2016 that financial irregularities have also been alleged. Learned counsel further submits apart from adopting the arguments advanced by him in W.P.(Cr.) No. 326 of 2016 that financial irregularities have also been alleged. Learned counsel has referred to the cases of State of M.P. v. Surendra Kori reported in (2012) 10 SCC 155 , T. Vengama Naidu v. T. Dora Swamy Naidu reported in (2007) 12 SCC 93 and State of Orissa v. Ujjal Kumar Burdhan reported in (2012) 4 SCC 547 . Learned counsel has also stated that a complaint case and an FIR can continue for which he has referred to Section 210 of the Cr.P.C. 16. Mr. Anil Kumar Sinha, learned senior counsel for the petitioners has countered the arguments advanced by Mr. Shailesh Kumar Singh, learned counsel for the ACB by stating that the petitioners were never the public servants before their appointment and therefore, they could not be prosecuted under the provisions of the Prevention of Corruption Act and in support of his contention, he has relied upon the judgment in the case of A. Sivaprakash v. State of Kerala reported in (2016) 12 SCC 273 : Cr. M.P. No. 199 of 2017 : 17. Mr. Anil Kumar, learned senior counsel for the petitioner has submitted that the order dated 23.01.2015 passed by the learned Special Judge, ACB, Ranchi reveals that the records were perused and a direction was given to submit an inquiry report. It has been stated that whether the inquiry was a preliminary inquiry or an inquiry under Section 202 of the Cr.P.C., since the learned Court below had perused the record which would tantamount to taking of cognizance and therefore the only option available to the learned Court below was either to dismiss the complaint under Section 203, Cr.P.C. or to issue processes under Sections 204, Cr.P.C. Learned senior counsel submits that the stage of sending the complaint to the police under Section 156(3), Cr.P.C. had already passed. It has been stated that the impugned order itself contains contradictions inasmuch as, while on the one hand, the learned Special Judge notes that the complaint could not be sent to the police under Section 156(3), Cr.P.C., but in the concluding portion of the impugned order he has sent the complaint to the police, although he was precluded from exercising such powers once the report has been received with respect to a preliminary inquiry. Learned senior counsel further submits that the judgments referred to by the learned Court below in the case of Lalita Kumari v. Govt. of U.P., reported in (2014) 2 SCC 1 , is not applicable in the facts and circumstances of the case. It has been submitted that the said judgment was with respect to exercise of powers under Section 154, Cr.P.C. and not under Section 156(3), Cr.P.C. Apart from referring to the judgment in the case of Lalita Kumari (supra), Mr. Anil Kumar, learned senior counsel has also referred to the judgments in the cases of Ramdev Food Products (P) Ltd. v. State of Gujarat, reported in (2015) 6 SCC 439 and Anil Kumar v. M.K. Aiyappa, reported in (2013) 10 SCC 705 . 18. Mr. Shailesh Kumar Singh, learned counsel for the ACB has basically relied upon what has been argued by him in the earlier 2 cases to which Mr. Anil Kumar, learned senior counsel for the petitioner in the present case has submitted that Section 210, Cr.P.C. is not applicable in the facts and circumstances of the case. 19. Mr. Bhola Nath Ojha, learned counsel appearing for the complainant has supported the complaint petition and has stated that the complaint was made about financial irregularities and illegal appointments. Learned counsel submits that since the preliminary inquiry supported the contention of the complainant and since it requires further detailed investigation, the learned Court below had rightly referred the matter to the police under Section 156(3) of the Cr.P.C. It been stated that it is premature at this stage to interfere in the criminal proceedings and therefore in such circumstances, the present application is liable to be dismissed. 20. Since the individual arguments in each of the cases have been dealt with in the preceding paragraphs, this Court will now dissect and consider the factual and legal propositions advanced by the respective counsels. 21. The pivotal point which has been raised by the learned senior counsel for the petitioners is that the learned Special Judge, ACB, Ranchi was not empowered to direct registration of an FIR after receiving of the inquiry report from the Vigilance Police Station. Based on the arguments advanced by the learned senior counsel for the petitioner apart from the merits of the case, the following questions are formulated. Based on the arguments advanced by the learned senior counsel for the petitioner apart from the merits of the case, the following questions are formulated. A-Whether after the report called for from the Vigilance Police Station has been received, what were the options which were left with the learned Special Judge? B-Whether the learned Special Judge, ACB could have passed the order directing institution of the FIR against the accused persons whose complicity was detected in the preliminary inquiry report? C-Whether the learned Special Judge, ACB, Ranchi has exceeded his jurisdiction by travelling beyond the parameters laid down in Sections 202, 203 and 204 of Code of Criminal Procedure? 22. In order to appreciate the rival contentions of the learned counsel for the respective parties, it would be necessary at first to refer to Section 154, Cr.P.C. 23. Section 154, Cr.P.C. is with respect to information in cognizable cases and the same reads as under : "154. Information in cognizable cases.-(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to tile Superintendent of Police concerned who if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence." 24. The learned Court below in the impugned order dated 27.08.2016 while taking the aid of reference in the case of Lalita Kumari v. Government of Uttar Pradesh and Ors., reported in (2014) 2 SCC 1 had given a direction for registering an FIR, pursuant to which the same had been registered. In the case of Lalita Kumari (supra), certain guidelines/directions were given with respect to institution of FIR when there is an information regarding commission of a cognizable offence. The relevant paragraphs reads as under : "119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR." 25. Several guidelines / directions were enunciated in the said order, but for the purpose of this case, paragraph 120.6 would be necessary and relevant and the same is quoted hereinunder : "120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. Several guidelines / directions were enunciated in the said order, but for the purpose of this case, paragraph 120.6 would be necessary and relevant and the same is quoted hereinunder : "120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of case in which preliminary inquiry may be made are as under : (a) Matrimonial disputes/family disputes (b) commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry." 26. In the aforesaid sub-paragraph, corruption cases are also one of the category of cases in which a preliminary inquiry may be conducted. Section 156(3), Cr.P.C. gives power to the police office to investigate a cognizable offence and sub-section (3) empowers the Magistrate to order such an investigation. Be it noted herein that the complainant had preferred the complaint petition with a prayer to send the same to the police under Section 156(3), Cr.P.C. for instituting a case and the complaint petition was duly supported by an affidavit as directed in the case of Priyanka Srivastava and Anr. v. State of Uttar Pradesh and Ors., reported in (2015) 6 SCC 287 . Subsequently, another application was filed by the complainant after a report was called for by the learned Special Judge, ACB, Ranchi exercising his powers under Section 204, Cr.P.C. The directions which were given in the case of Priyanka Srivastava (supra) reads as under : "30. In our considered opinion, a stage has come in this country where Section 156(3), Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal Court as if somebody is determined to settle the scores. 31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR." 27. It would be necessary to refer to Chapter XIV of the Code of Criminal Procedure which relates to the conditions requisites for initiation of proceedings. Section 190, Cr.P.C. deals with cognizance of offences by Magistrate and the same reads as under : "190. It would be necessary to refer to Chapter XIV of the Code of Criminal Procedure which relates to the conditions requisites for initiation of proceedings. Section 190, Cr.P.C. deals with cognizance of offences by Magistrate and the same reads as under : "190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence— (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try." 28. Section 200, Cr.P.C. delves with the pre-requisites for taking of cognizance in a complaint case and it envisages that a Magistrate taking cognizance in an offence of complaint shall examine upon either the complainant and the witnesses present, if any and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. Exceptions have also been narrated in sub-sections A & B as to when the Magistrate need not examine the complainant and the witnesses. Section 202, Cr.P.C. gives power to the Magistrate to either enquire into the case himself or direct an investigation to made by a police officer or by such other person as he thinks fit. Section 202, Cr.P.C. is quoted herein under : "202. Section 202, Cr.P.C. gives power to the Magistrate to either enquire into the case himself or direct an investigation to made by a police officer or by such other person as he thinks fit. Section 202, Cr.P.C. is quoted herein under : "202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding : Provided that no such direction for investigation shall be made,-- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath : Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all, the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant." 29. The Magistrate as per Section 202, Cr.P.C. can direct an investigation unless the complainant and the witnesses present, if any have been examined on oath under Section 200, Cr.P.C. This would basically meant that the direction for investigation to be ordered by a Magistrate has to be at a post-cognizance stage and not a pre-cognizance stage, although, it can be prior to issuance of process. If the Magistrate after considering the statements on oath, if any of the complainant and the witnesses and/or the result of the investigation under Section 202, Cr.P.C. may dismiss the complaint by briefly recording the reasons for his doing so. The commencement of the prosecution against the accused in a complaint case starts once the Magistrate takes aid of Section 204, Cr.P.C. and issues processes against the accused. Section 204, Cr.P.C. reads as follows : "204. Issue of process.-(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be— (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, even summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall he issued until the fees are paid and. if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of Section 87." 30. Thus, on a plain reading of Section 190, Section 200, Section 202 and Section 204, Cr.P.C. would lead to an unambiguous situation as it is clear that the Magistrate can get an investigation done in terms of Section 202, Cr.P.C. at a post-cognizance stage by postponing the issue of process and not at a pre-cognizance stage. The application of mind on the part of the learned Magistrate can only be reflected once the examination of the complainant and the witnesses, if any are made and it is for the Magistrate after taking of cognizance and before issuance of process to get the matter investigated by the police or by a competent person. The application of mind on the part of the learned Magistrate can only be reflected once the examination of the complainant and the witnesses, if any are made and it is for the Magistrate after taking of cognizance and before issuance of process to get the matter investigated by the police or by a competent person. In the case of Ramdev Food Products (P) Ltd. v. State of Gujarat, reported in (2015) 6 SCC 439 , the questions which were formulated were as follows : "6. However, in the light of submissions made during the hearing, we frame the following questions for consideration : 6.1. (i) Whether discretion of the Magistrate to call for a report under Section 202 instead of directing investigation under Section 156(3) is controlled by any defined parameters? 6.2. (ii) Whether in the course of investigation in pursuance of a direction under Section 202, the police officer is entitled to arrest an accused? 6.3. (iii) Whether in the present case, the Magistrate erred in seeking report under Section 202 instead of directing investigation under Section 156(3)?" 31. The same was answered in the following fashion : "22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed". Category of cases falling under para 120.6 in Lalita Kumari may fall under Section 202." 32. In the case of Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, reported in (2012) 10 SCC 517 , it was held as follows : "20. Section 202 of the Code has twin objects; one, to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an unnecessary, frivolous or meritless complaint and the other, to find out whether there is some material to support the allegations made in the complaint. The Magistrate has a duty to elicit all facts having regard to the interest of an absent accused person and also to bring to book a person or persons against whom the allegations have been made. To find out the above, the Magistrate himself may hold an inquiry under Section 202 of the Code or direct an investigation to be made by a police officer. To find out the above, the Magistrate himself may hold an inquiry under Section 202 of the Code or direct an investigation to be made by a police officer. The dismissal of the complaint under Section 203 is without doubt a pre-issuance of process stage. The Code does not permit an accused person to intervene in the course of inquiry by the Magistrate under Section 202. The legal position is no more res integra in this regard. More than five decades back, this Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar with reference to Section 202 of the Criminal Procedure Code, 1898 (corresponding to Section 202 of the present Code) held that the inquiry under Section 202 was for the purpose of ascertaining the truth or falsehood of the complaint i.e. for ascertaining whether there was evidence in support of the complaint so as to justify the issuance of process and commencement of proceedings against the person concerned. 21. In Chandra Deo Singh a four-Judge Bench of this Court had an occasion to consider Section 202 of the old Code. The Court referred to the earlier decision of this Court in Vadilal Panchal and few previous decisions, namely, Parmanand Brahmachari v. Emperor, Radha Kishun Sao v. S.K. Misra, Ramkisto Sahu v. State of Bihar, Emperor v. J.A. Finan, Baidya Nath Singh v. Musprati and it was held that : (Chandra Deo Singh case, AIR p. 1433, para 8) "8. …In the object of the provisions of Section 202 (corresponding to present Section 202 of the Code) was to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath." It was further held that an accused person does not come into the picture at all till process is issued. 23. In Adalat Prasad a three-Judge Bench of this Court had an occasion to consider Sections 200, 202 and 204 of the Code. The scheme of the above provisions was explained in the following manner : (SCC pp. 342-43, paras 12-15) "12. Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. The scheme of the above provisions was explained in the following manner : (SCC pp. 342-43, paras 12-15) "12. Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. If on such examination of the complaint and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under Section 203 if he comes to the conclusion that the complaint, the statement of the complainant and the witnesses have not made out sufficient ground for proceeding. Per contra, if he is satisfied that there is no need for further inquiry and the complaint, the evidence adduced at that stage have materials to proceed, he can proceed to issue process under Section 204 of the Code. 13. Section 202 contemplates 'postponement of issue of process'. It provides that if the Magistrate on receipt of a complaint, if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself or directs 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, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the police if sought by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 of the Code. 14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case that before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the Court and making an application for dismissal of the complaint under Section 203 of the Code on a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.