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2017 DIGILAW 544 (ORI)

Gopinath Acharya v. Pitha Hembram

2017-05-09

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. None appears on behalf of the petitioners. Learned counsel for the opp. party No.1 is present. The petitioners in this application under section 482 Cr.P.C. have challenged to quash the complaint case proceeding vide I.C.C. Case No. 80 of 2004 pending in the Court of learned J.M.F.C. (P), Kujanga. 2. The opp. party no.1 Pitha Hembram filed the complaint petition against the petitioners for taking cognizance of offences punishable under sections 452, 323, 324, 325, 294, 379, 307, 506, 149 of the Indian Penal Code and sections 3 and 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter ‘1989 Act’) and to issue summons to the petitioners to face the trial and after trial to convict the petitioners in accordance with law. The complaint petition was filed on 04.06.2004. 3. On the very day, the learned J.M.F.C. (P), Kujanga on perusal of the complaint petition sent it to the Inspector in charge of Paradeep Police station under section 156(3) of Cr.P.C. for registration of the case and for investigation. 4. The main ground that has been taken for challenging the impugned order 04.06.2004 passed by the learned J.M.F.C.(P), Kujang is that the Court has no jurisdiction to exercise the power under section 156(3) of Cr.P.C. in directing the police to register and investigate the case since the offence under section 3 of the 1989 Act is triable exclusively by the Special Court which is a Court of Session and therefore, the impugned order is illegal and unsustainable in the eye of law and the same should be quashed. 5. The question that crops up for consideration is whether in a complaint case proceeding which involves offence triable by the Special Court, the Magistrate can send it to the police for registration and investigation invoking power under section 156(3) of Cr.P.C.? 6. There is no dispute that out of the offences under which the complaint petition was filed, offence under section 307 of the Indian Penal Code is triable by Court of Session and Section 3 of the 1989 Act is triable by Special Court. 7. Section 156 of Cr.P.C. deals with the power of the police officer to investigate cognizable case. Sub-section (3) of Section 156 reads as follows:- “156(3). 7. Section 156 of Cr.P.C. deals with the power of the police officer to investigate cognizable case. Sub-section (3) of Section 156 reads as follows:- “156(3). Any Magistrate empowered under section 190 may order such an investigation as above mentioned.” Section 202(1) of Cr.P.C. which deals with postponement of issue of process when the impugned order was passed read as follows:- “202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, 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: 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.” 8. The proviso (a) to sub-section(1) of section 202 of the Code curtails the power of Magistrate to direct an investigation of a complaint case by police or by any other person where it appears to him that the offence complained of is triable exclusively by the Court of Session. In other words, in exclusively sessions triable cases, at the stage of section 202 of Cr.P.C., no direction for an investigation by police officer or investigation by any other person can be issued. Except sessions triable cases, there is no bar for the Magistrate to direct such investigation in other cases. In a complaint case triable exclusively by the Court of Session, once the Magistrate enters into 202 Cr.P.C. stage and postpones the issue of process, he has to enquire into the case himself for the purpose of deciding whether or not there is sufficient ground for proceeding. However, at the threshold, even in sessions triable cases, the empowered Magistrate can direct for police investigation in view of the provision under section 156(3) of Cr.P.C. In case of Devarapalli Lakshminarayana Reddy Vs. However, at the threshold, even in sessions triable cases, the empowered Magistrate can direct for police investigation in view of the provision under section 156(3) of Cr.P.C. In case of Devarapalli Lakshminarayana Reddy Vs. V. Narayana Reddy and others reported in A.I.R. 1976 S.C. 1672, it is held 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 under section 156(3) is different from the power to direct investigation conferred by section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of section 156(3). It may be noted further that an order made under sub-section (3) of section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under section 156 and ends with a report or charge sheet under section 173. On the other hand section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under section 202 to direct within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding ". Thus the object of an investigation under section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.” 9. In case of Suresh Chandra Jain Vs. Thus the object of an investigation under section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.” 9. In case of Suresh Chandra Jain Vs. State of Madhya Pradesh reported in A.I.R. 2001 S.C. 571, it is held as follows:- “10. The position is thus clear. Any Judicial Magistrate, before, taking cognizance of the offence, can order investigation under Section 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 under Section 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 complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.” 10. In case of Rameshbhai Pandurao Hedau Vs. State of Gujarat reported in (2010) 46 OriCriR 100, it is held as follows:- “17. The law is well-settled that an investigation ordered by the Magistrate under Chapter XII is at the pre-cognizance stage and the inquiry and/or investigation ordered under Sec. 202 is at the post-cognizance stage. What we have to consider is whether the Magistrate committed any error in refusing the appellant's prayer for an investigation by the police under Section 156(3) of the Code and resorting to Section 202 of the Code instead, since both the two courses were available to him. 18. The power to direct an investigation to the police authorities is available to the Magistrate both under Section 156(3) Cr.P.C. and under Section 202 Cr.P.C. The only difference is the stage at which the said powers may be invoked. 18. The power to direct an investigation to the police authorities is available to the Magistrate both under Section 156(3) Cr.P.C. and under Section 202 Cr.P.C. The only difference is the stage at which the said powers may be invoked. As indicated hereinbefore, the power under Section 156(3) Cr.P.C. to direct an investigation by the police authorities is at the pre-cognizance stage while the power to direct a similar investigation under Section 202 is at the post-cognizance stage. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the Appellant as a complaint under Section 200 of the Code and has thereafter proceeded under Section 202 Cr.P.C. and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of sub-sec. (2) of Sec. 202 the learned Magistrate deems it fit, he may either dismiss the complaint under Sec. 203 or proceed in terms of Sec. 193 and commit the case to the Court of Session.” 11. In the case of Ramdev Food Products Pvt. Ltd. Vs. State of Gujarat reported in (2015) 61 OriCriR(SC) 1 where the question was formulated as to whether discretion of the Magistrate to call for a report under section 202 instead of directing investigation 156(3) is controlled by any defined parameters, it is held as follows:- “22. Thus, we answer the first question by holding that the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. 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". 12. In case of Hamant Yashwant Dhage Vs. State of Maharashtra & Ors. reported in (2016) 63 OriCriR(SC) 937, it is held as follows: “10. 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". 12. In case of Hamant Yashwant Dhage Vs. State of Maharashtra & Ors. reported in (2016) 63 OriCriR(SC) 937, it is held as follows: “10. In view of the aforesaid broad consensus amongst the counsel for the various parties, it is not necessary for us to go deeper into the relevant issue of law as to whether the earlier order of this Court dated April 12, 2010 warranted registering of F.I.R. by the police before commencing investigation. But we would like to only indicate in brief the law on this subject expressly stated by this Court in the case of Mohd. Yousuf Vs. Afaq Jahan (Smt.) and another, (2006) 1 SCC 627 . This Court explained that registration of an F.I.R. involves only the process of recording the substance of information relating to commission of any cognizable offence in a book kept by the officer in charge of the concerned police station. In paragraph 11 of the aforementioned case, the law was further elucidated by pointing out that to enable the police to start investigation, it is open to the Magistrate to direct the police to register an F.I.R. and even where a Magistrate does not do so in explicit words but directs for investigation under Section 156(3) of the Code, the police should register an F.I.R. Because Section 156 falls within chapter XII of the Code which deals with powers of the police officers to investigate cognizable offences, the police officer concerned would always be in a better position to take further steps contemplated in Chapter XII once F.I.R. is registered in respect of the concerned cognizable offence.” 13. Sub-section (3) of Section 156 of the Code provides that any Magistrate empowered under section 190 may order an investigation of a cognizable case to be made by a police officer. 14. The investigation contemplated under Chapter XII of the Code can be commenced by police even without the order of a Magistrate, but that does not mean that when the Magistrate orders an investigation under section 156(3) of the Code, it would be a different kind of investigation. 14. The investigation contemplated under Chapter XII of the Code can be commenced by police even without the order of a Magistrate, but that does not mean that when the Magistrate orders an investigation under section 156(3) of the Code, it would be a different kind of investigation. Such investigation must also end with a report under section 173 of Cr.P.C. Thus when the Magistrate orders investigation under Chapter XII of the Code on receiving a complaint case, he does so before he takes cognizance of the offence. For the purpose of enabling the police to start investigation, it is open for the Magistrate to direct the police to register the complaint petition as first information report. 15. In view of the ratio laid down by the Hon’ble Supreme Court, I find no infirmity or illegality in the impugned order dated 04.06.2004 passed by the learned J.M.F.C. (P), Kujanga in directing the IIC, Paradeep police station for registration of the case and investigation invoking its power under section 156(3) Cr.P.C. Needless to say that if the police after registration of the case, investigates the matter and submits charge sheet and on basis of such charge sheet, the Magistrate takes cognizance of offences, the petitioners are at liberty to challenge the order of taking cognizance in accordance with law. 16. However, at this stage, since I am of the view that the Magistrate has not committed any illegality in sending the complaint petition to the IIC, Paradeep police station under section 156(3) Cr.P.C. for registration of the case and investigation, the application under section 482 of Cr.P.C. being devoid of merits, stands dismissed. 17. The stay order passed on 26.10.2004 in Misc. Case No. 1426 of 2004 stands vacated.