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Allahabad High Court · body

2020 DIGILAW 1397 (ALL)

Krishna Kant Dixit v. State Of U. P.

2020-12-01

SHAMIM AHMED

body2020
JUDGMENT : 1. Heard Sri Yanendra Pandey, learned counsel for the applicant as well as learned AGA for the State and perused the record. 2. The instant application has been filed by the applicant with a prayer to quash the order dated 22.7.2020 passed by Chief Judicial Magistrate, Agra in Application No.251 of 2020 (Krishna Kant Dixit vs. Nikhil Agarwal and others) under Section 406, 418, 420, 467, 468, 471, 472, 120B, 504, 506 IPC, Police Station Hari Parwat District Agra, whereby the application under Section 156(3) Cr.P.C. has been treated as a complaint case and a date has been fixed for recording of the statement of complainant under Section 200 Cr.P.C. 3. Learned counsel for the applicant submits that the order passed by the learned Magistrate has been passed in a mechanical manner, without appreciating legal proposition and the facts as mentioned in the application under Section 156(3) Cr.P.C. It has been contended that the impugned order is wholly illegal and arbitrary and has been passed without application of mind and is against the facts on record and the learned Magistrate was bound to issue a direction for registration of the FIR and could not have treated the said application as a complaint case as police investigation was necessary. 4. Having heard the learned counsel for the applicant and the learned AGA and having perused the impugned order, this Court finds that the order by means of which the application under Section 156(3) Cr.P.C. has been treated as a complaint case, which is impugned in the present case, is a well reasoned and speaking order which shows that the learned Magistrate has applied his mind before passing the impugned order and considered all the legal and factual aspects of the matter. 5. All the contentions raised by the applicants' counsel relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded. In the process of invoking its inherent jurisdiction, this court cannot be persuaded to have a pre trial before the actual trial begins. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded. In the process of invoking its inherent jurisdiction, this court cannot be persuaded to have a pre trial before the actual trial begins. The submissions made by the learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. 6. The fact remains that when a complaint/application is filed before a Magistrate that the FIR is not being registered by police regarding a cognizable offence, the Magistrate has a discretion either to direct the police to investigate the case under Section 156(3) Cr.P.C. or to proceed to examine the complainant under Section 200 Cr.P.C. It is an established law that the discretion so exercised by the Magistrate cannot be interfered with only because some other view is also possible, the legal position in this regard is very clear. 7. In the present case, a bare perusal of the averments as made in the application under Section 156(3) Cr.P.C. and the order passed thereupon which is the order impugned in the present case shows that there is no material on record to indicate that the judicial discretion exercised by the Magistrate was either arbitrary or perverse. Thus, this Court finds that even though or merely because another view was possible it would not be an occasion for the High Court to substitute the judicial discretion exercised by the Magistrate. 8. In this regard, reference may be made to the law as laid down by the Hon'ble Apex Court in the case of Smt. Mona Panwar Vs. High Court of Judicature at Allahabad, 2011 (2) ALJ 445. The relevant extract of the aforesaid judgment is being quoted herein below:- "When the complaint was presented before the appellant, the appellant had mainly two options available to her. One was to pass an order as contemplated by Section 156(3) of the Code and second one was to direct examination of the complainant upon oath and the witnesses present, if any, as mentioned in Section 200 and proceed further with the matter as provided by Section 202 of the Code. One was to pass an order as contemplated by Section 156(3) of the Code and second one was to direct examination of the complainant upon oath and the witnesses present, if any, as mentioned in Section 200 and proceed further with the matter as provided by Section 202 of the Code. An order made under sub-section (3) of Section 156 of the Code is in the nature of a peremptory reminder or intimation to the police to exercise its plenary power 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 the final report either under Section 169 or submission of charge sheet under Section 173 of the Code. A Magistrate can under Section 190 of the Code before taking cognizance ask for investigation by the police under Section 156(3) of the Code. The Magistrate can also issue warrant for production, before taking cognizance. If after cognizance has been taken and the Magistrate wants any investigation, it will be under Section 202 of the Code. The phrase "taking cognizance of" means cognizance of 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. Before the Magistrate can be said to have taken cognizance of an offence under Section 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 under Section 200 and the provisions following that Section. However, when the Magistrate had applied his mind only for ordering an investigation under Section 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. Taking cognizance is a different thing from initiation of the proceedings. However, when the Magistrate had applied his mind only for ordering an investigation under Section 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. 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." 9. Similar view was taken by the Court in the case of Swayam Prabha Vs. State Of U.P. And Others 2012 (1) ALJ 204 wherein it has been held that "as far as the argument of learned counsel for the revisionist that police investigation is a must for recovery of the looted articles is concerned, the Magistrate still has power to order investigation by police at the stage of section 202 Cr.P.C. after recording the statement of the complainant under section 200 Cr.P.C. If the Magistrate, after examining the complainant, comes to the conclusion that prima facie the statement of the complainant is credible and recovery is to be made, he can still direct investigation under section 202 Cr.P.C." 10. The Hon’ble Apex Court was pleased to observe in the case of Rameshbhai Pandurao Hedau Vs. State of Gujrat AIR 2010 SC 1877 wherein it has been held that "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. and the Magistrate can invoke under Section 156(3) Cr.P.C. even at the pre-cognizable stage." 11. Thus, the apprehension of the applicant in the present case that there would not be a proper investigation is misconceived. Thus, the apprehension of the applicant in the present case that there would not be a proper investigation is misconceived. However, be as it may, liberty is given to the applicant that in case, he has any apprehension or is disgruntled with the investigation, he may file a proper application as per the Code of Criminal Procedure before the concerned Magistrate under the appropriate provisions and the concerned Magistrate shall decide the said application in accordance with law by reasoned and speaking order. 12. Thus, in view of what has been discussed above, no case for interference at this stage is made out by this Court in exercise of inherent power conferred under 482 Cr.P.C. jurisdiction. 13. Accordingly, in view of the observation made, the present application under Section 482 CrPC is finally disposed of. No order as to cost.