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2023 DIGILAW 535 (JK)

Anil Kumar v. State Of J. &K.

2023-09-20

RAJNESH OSWAL

body2023
JUDGMENT : 1. The petitioners, through the medium of present petition, have impugned the FIR No.49//2015 under Section 420 RPC of Police Station, Pattan, registered pursuant to order dated 27.02.2015, passed by the Judicial Magistrate, 1st Class, Pattan. 2. The FIR (supra) has been impugned by the petitioners on the ground that respondent No.2 has no locus to file the complaint on the basis of alleged cheque of Rs.2,00,000 (rupees two lakhs) issued by one Santosh Asrafi Lal Gupta in favour of one Bashir Ahmad Pall and the cheque in question was never issued in favour of respondent No.2 by the petitioners. It is also stated that the allegations are only against the petitioner No.1-Anil Kumar and there is no allegation of any transaction of petitioner No.2 with the complainant/respondent No.2. It is further averred that the allegations levelled in the complaint by the respondent No.2 are civil in nature and no offence is made out on the basis of the allegations levelled in the complaint. 3. Mr. Mudasir Bin Hassan, learned counsel for the petitioners, argued that once the learned Magistrate had directed the SHO Pattan to conduct enquiry under Section 202 of the Code of Criminal Procedure, subsequent direction for the registration of FIR could not have been issued. He further submitted that the dispute between the parties, if any, is primarily civil in nature and no criminality is involved. 4. Per contra, Mr. Gulzar Ahmad Bhat Sopori, learned counsel for respondent No.2, vehemently argued that the petitioners had duped the respondent No.2 of his hard earned money, as such, the learned Magistrate was right in directing the registration of FIR. 5. Heard and perused the record. 6. The perusal of the record reveals that an application was submitted by respondent No.2 against the petitioners before learned Judicial Magistrate, 1st Class, Pattan, for directing SHO, P/S, Pattan, to register FIR against the petitioners. It was stated in the complaint that the respondent had borrowed an amount of Rs. 29,65,077.00 from the respondent No.2 and did not return back to him. It appears that the learned Magistrate was not satisfied in respect of truthfulness of allegations, therefore the learned Magistrate vide order dated 18.03.2015, forwarded the complaint to SHO, P/S, Pattan, for enquiry under Section 202 of Cr. 29,65,077.00 from the respondent No.2 and did not return back to him. It appears that the learned Magistrate was not satisfied in respect of truthfulness of allegations, therefore the learned Magistrate vide order dated 18.03.2015, forwarded the complaint to SHO, P/S, Pattan, for enquiry under Section 202 of Cr. P. C. On the receipt of the report, the learned Magistrate on 27.03.2015 passed the following order: Received report from SHO, P/S Pattan under Section 202 Cr.P.C. The report reveals that there is some transaction inter se parties which has resulted into scuffle and dispute between the parties, wherein present applicant finds cheated. In view of the report of the police, the SHO is directed to register a case under relevant provisions of law and submit compliance on or before 30th March, 2015. 7. Pursuant to the above order, FIR No.49/2015 under Section 420 RPC was registered against the petitioners by Police Station, Pattan and after investigation charge-sheet also has been filed. The sole question which arises before this Court is as to whether once the matter was referred to the police for investigation under Section 202 Cr.P.C, the learned Magistrate was competent to direct the registration of FIR or not. In this respect, law is well settled that once the Magistrate orders an enquiry/investigation under Section 202 Cr.P.C and the investigation/enquiry report is submitted before the Magistrate, the Magistrate can either issue the process against the accused or dismiss the complaint if no offence is made out but in no manner, he can direct the police to register FIR under section 156(3) Cr.P.C. In “Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 SCC OnLine SC 569”, the Hon’ble Supreme Court has examined the scope of investigation in terms of section 156(3) and in terms of section 202 Criminal Procedure Code and it has been held as under: Difference in the power of Police to register and investigate an FIR under Section 154(1) read with 157 of the Code, and the Magistrate's direction to register an FIR under Section 156(3) of the Code. Power of the Magistrate to direct registration of an FIR under Section 156(3) in contrast with post-cognizance stage power under Section 202 of the Code. 66. Power of the Magistrate to direct registration of an FIR under Section 156(3) in contrast with post-cognizance stage power under Section 202 of the Code. 66. The operandi for registration of information in a cognizable offence and eventual investigation is not limited to Police, and as observed above, sub-section (3) to Section 156, subject to legal stipulations, gives the ameliorating power to a Magistrate empowered under Section 190 to order an investigation in a cognizable offence. Two different powers vested with two distinct authorities, namely the Police and the Magistrate, who discharge distinct functions and roles under the Code as indicated above are not entirely imbricating. 67. The power of Magistrate to direct investigation falls under two limbs of the Code : one is pre-cognizance stage under Section 156(3), and another on cognizance under Chapter XIV (‘Conditions Requisite for Initiation of Proceedings’; Sections 190-199) read with Chapter XV (‘Complaints to Magistrates’; Sections 200-210). These two powers are different and there also lies a procedural distinction between the two. 68. A three Judge Bench decision of this Court in Ramdev Food Products Private Limited (supra) had examined the distinction between powers of the Magistrate to direct registration of an FIR under Section 156(3) and power of the Magistrate to proceed under Section 202 of the Code. It was observed that the power under the former Section is to be exercised, on receiving a complaint or a Police report or information from any person other than the Police officer or upon his own knowledge, before he takes cognizance under Section 190. Once the Magistrate takes cognizance, the Magistrate has discretion to take recourse to his powers under Section 202, which provides for postponement of the issue of process and inquire into the case himself or direct 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 are sufficient grounds for proceedings. The proviso to Section 202 states that no direction for investigation shall be made where a complaint has not been made by a Court, unless the complainant and the witnesses present (if any) are examined on oath under Section 200. When it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. When it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. However, in such cases, the Magistrate cannot issue direction for investigation of an offence. Thus, the Magistrate has the power, when a written complaint is made, to issue direction under Section 156(3), but this power is to be exercised before the Magistrate takes cognizance of the offence under Section 190. However, in both cases, whether under Section 156(3) or under Section 202 of the Code, the person accused as the perpetrator, when the proceedings are pending before the Magistrate, remains unrepresented. Under Section 203, the Magistrate, after considering the statement of the complainant and witnesses (if any) on oath and the result of an inquiry (if any) under Section 202, can dismiss the complaint if he is of the opinion that there is no sufficient ground for proceeding and in every such case briefly record his reasons. If the Magistrate after taking cognizance of the offence, is of the opinion that there are sufficient grounds for proceeding he will issue the process to the accused for appearance as per the procedure and mode specified under Section 204 of the Code. Process to the accused under Section 204 falls under Chapter XVI of the Code and is issued post the cognizance and inquiry/investigation/evidence recorded in a private complaint in terms of Section 202 of the Code. In Ramdev Food Products Private Limited (supra), examining 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, it was held thus: “22. Thus, we answer the first question by holding that: 22.1. 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 the 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. 22.2. 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. 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 [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 ] may fall under Section 202. 22.3. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.” 70. Explaining the nature of cases to be dealt with under Section 202 of the Code, the judgment observes, are those cases where the material available is not clear to proceed further. The Magistrate, though in seisin of the matter having taken cognizance, has to decide whether there is any ground to proceed further. Further, Section 202 not only refers to an inquiry but also to an investigation. Thus, in such cases, the Police cannot on its own exercise the power of arrest in course of making its report in pursuance of the direction under Section 202 of the Code. 71. In this Court in Priyanka Srivastava (supra) referred to the nature of power exercised by the Magistrate under Section 156(3) of the Code and after referring to several earlier judgments held that the direction for registration of an FIR should not be issued in a routine manner. The Magistrate is required to apply his mind and exercise his discretion in a judicious manner. If the Magistrate finds that the allegations made before him disclose commission of a cognizable offence, he can forward the complaint to the Police for investigation under Section 156 and thereby save valuable time of the Magistrate from being wasted in inquiry as it is primarily the duty of the Police to investigate. However, the Magistrate also has the power to take cognizance and take recourse to procedure under Section 202 of the Code and postpone the issue of process where the Magistrate is yet to determine existence of sufficient ground to proceed. However, the Magistrate also has the power to take cognizance and take recourse to procedure under Section 202 of the Code and postpone the issue of process where the Magistrate is yet to determine existence of sufficient ground to proceed. In a third category of cases, the Court may not take cognizance or direct registration of an FIR, but direct preliminary inquiry in terms of the dictum in Lalita Kumari's case (supra). 76. However, the position is different at the post-cognizance stage. Under Section 202, the Magistrate can analyse the veracity of the complaint made and appreciate whether there are grounds to proceed further. In Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose, AIR 1963 SC 1430 , this Court referred to the objective of Section 202, to observe: “8. ……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. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant.” 8. Thus, the direction to register FIR can be issued under section 156(3) Cr.P.C only at the pre-cognizance stage but once the cognizance has been taken, then the Magistrate has to proceed in terms of section 202 or section 204 Cr.P.C and if no offence is made out, to dismiss the complaint in terms of 203Cr.P.C but in no manner the Magistrate can put the clock back to the pre-cognizance stage by directing the Police to register FIR. On this ground only the FIR impugned and the subsequent proceedings deserve to be quashed. Further the record depicts that the Magistrate concerned has directed the SHO Pattan to conduct inquiry under section 202 Cr.P.C without recording the statement of complainant or his witness, which is contrary to the mandate of section 200 Cr.P.C. 9. Accordingly, the present petition is allowed and the impugned FIR No.49/2015 for offence under Section 420 of P/S Pattan along with all the consequential proceedings is quashed. The learned Judicial Magistrate, 1st Class, Pattan, is directed to proceed in terms of section 200 Cr.P.C and thereafter pass fresh order in accordance with law and various pronouncements of the Hon’ble Supreme Court in such type of matters. A copy of this order be sent to the learned Magistrate for information and compliance.