Devarapalll Lakshminarayana Reddy
& Ors Vs. V. Narayana Reddy & Ors  INSC 136 (4 May 1976)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1976 AIR 1672 1976 SCR 524 1976 SCC
CITATOR INFO :
RF 1977 SC2401 (10)
Code of Criminal Procedure 1973, Ss. 156(3)
and 202- Investigations under-Difference between objects of Sec, 190(l)(a)
"taking cognizance", meaning of.
On receiving a complaint against the
appellants, for allegedly Committing offences under ss. 147, 148, 307, 395,
448, 378 and 342, I.P.C., the Judicial Magistrate, F.C.
Dharmavaram., forwarded it to the police
under s. 156(3) Cr.P.C. for investigation The appellants filed an application
in the High Court under s. 482 Cr.P.C. 1973, against the Magistrate's order,
hut the same was dismissed.
it was contended before this Court that the
complaint included offences triable exclusively by the Sessions Court, and
under s. 202(1) Proviso l(a), 1973, the Magistrate was prohibited from directing
the police to investigate it, that he was bound to proceed with it himself
before issuing process to the accused. The appeal was, inter alia, contested on
the ground that . the powers conferred on the Magistrate under s. 156(3) of the
Code are independent of his power to send the case for investigation under s.
2021 of the Code. Section 156(3) can be invoked before the Magistrate takes
congnizace of the case but s. 202 comes into operation only after he start;
dealing with the com Plaint in accordance with the provisions of Chapter XV.
Dismissing the appeal of the Court,
^ HELD: (1) The power to order police
investigation under , 156(3) different from the power to direct investigation
conferred by s. '202(1). 'The.` two operate in distinct spheres at different
stages. The first is exercisable at the re-cognizance stage, the second at the
post-cognizance stage when the Magistrate is in seisin of the case. An
investigation under s. 202 is "for the purpose or deciding whether or not
there is sufficient ground for proceeding".
its not to initiate a fresh case on police
report, but to assist the Magistrate in completing proceedings already
instituted upon a complaint before him. The stage at which s. 202 could become
operative was never reached in this case. [530-H; 531B] (2) When on receiving a
complaint, the Magistrate applies his mind for the purposes of proceeding under
s. 200 and the succeeding sections in chapter XV of the Code of 1973 he is said
to have taken cognizance of the offence within the meaning of s. 190(l)(a). If
instead of' proceeding under Chapter XV. he has in the exercise of his
discretion, taken action of some other kind, he cannot be said to have taken
cognizance of any offence. [526D-G] Nirmaljit Singh Hoon . The State West
Bengal ond Anr.
 3 S. ,53, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No 219 of 1975 (Appeal by special leave from the judgment and order
dated the 20th October, of the Andhra Pradesh High Court at Hyderabad in
Criminal Misc. Petition No 1890 of 1975) P B Basi Reddy, and AV V Nair for the
M R K Chaudhary and B K Kanta Rao for
respondent No 1 525 P. Ram Reddy, and P Parameshwara Rao, for respondent Nos. 2
and 3 The Judgment of the Court was delivered by SARKARIA, J.-Whether in view
of Clause (a) of the First Proviso to s, 22(1) of the Code of Criminal
Procedure, 1973, a Magistrate who receives a complaint, disclosing an offence
exclusively triable by the Court of Session, is debarred from sending the same
to the police for investigation under s. 156(3) of the Code, is the short
question is that falls to be determined in this appeal by special leave. The
question arises in these circumstances:
Respondent 1 herein made a complaint on July
26" 1975 before the Judicial Magistrate, First Class, Dharamavaram against
the appellants herein alleging that. On account of factions existing village
Thippapalli the appellants formed themselves into an unlawful assembly, armed
with deadly weapon, such as axes, spears and sticks, on the night of June
20" 1975 and entered the houses of several persons belonging to the
opposite party, attacked the inmates and forcibly took way jewels, paddy,
ground-nuts and other valuables of the total value of two lakhs of rupees. It
was further alleged that the miscreants thereafter went to the fields and
removed parts of machinery worth over Rs.
40,000/-, installed at the wells of their
enemies. On these facts it was alleged that the accused had committed offences
under ss. 147, 148, 149, 307, 395, 448, 378 and 342 of the Penal Code. The
offences under ss. 307 and 395 are exclusively triable by the Court of Session.
The Magistrate on receiving the complaint forwarded ii to the Police for
investigation with this endorsement:
"Forwarded under s. 156(3), Cr. Procedure
Code to the Inspector of Police, Dharmavaram for investigation and report on or
before 5-8-1975." The appellants moved the High Court of Andhra Pradesh by
petition under s. 482 of the Code of Criminal Procedure, 1973 (which
corresponds to s. 561-A of the old Code) praying that the order passed by the
Magistrate be quashed inasmuch as "it was illegal, unjust and gravely
prejudicial to the petitioners". The learned Judge of the High Court. who
heard the petition., dismissed it by an order dated October 20, 1975.
Hence this appeal.
Mr. Basi Reddy appearing for the appellants
contends that the High Court has afield to appreciate the true effect of the
changes brought by the Code of 1973. According to the Counsel, under the new
Code, is a complaint discloses an offence triable exclusively be court of
Session, the Magistrate is bound to proceed with that complaint himself before
issuing process to the accused. The point pressed into argument is that clause
(a) of the first Proviso to s. 202(1), the new Code peremptorily prohibits the
Magistrate, to direct investigation of such a complaint by the Police or any
other person. The cases, Gopal Da v. State of Assam(l),.
Jamuna Singh v. Bhadai She (2), referred to
by the High Court are sought to be distinguished (1) (1961) A.I.R. 19(;1 S. C.
986 (2)  5 S S.C.R. 37.
526 on the ground that they were decided
under the old Code, s. 21)2 of which did not provide for any such ban as has
been expressly enacted in the 1st Proviso to s. 202 of the new Code.
As against this, Mr. Ram Reddy, whose
arguments have been adopted by Mr. Chaudahry, submits that the powers conferred
on the Magistrate under s. 156(3) of the Code are independent of his power to
send the case for investigation under. s. 22 of the Code; that the power under
s. 156 (3) can be invoked at a stage when the Magistrate has not taken
cognizance of the case while s. 202 comes into operation after the Magistrate
starts dealing with the complaint in accordance with the Provisions of Chapter
XV. It is urged that since in the instant case, the Magistrate had sent the
complaint for police investigation without taking such cognizance s. 202
including the ar enacted therein, was not attracted. In the alternative, it is
submitted that the ban in the 1st Proviso to s. 202, becomes operative only
when the Magistrate after applying his mind to the allegations in the com
plaint and the other material" including the statement of the complainant
and his witnesses, if any, recorded under s. 200,, is prima facie satisfied that
the offence complained of is triable exclusively by the Court of Session. The
point sough to be made out is that a mere allegation in the complaint that the
offence committed is one exclusively triable by the Court of Session, does not
oust the jurisdiction of the Magistrate to get the case investigated by the
police or other person. The word "appears" according to Counsel,
imports a prerequisite or condition precedent, the existence of which must be
objectively and judicially established before the prohibition in the 1st
Proviso to s. 202 becomes operative.
It is added that in the instant case,, the
existance of this condition precedent was not, and indeed could not he
It appears to us that this appeal can be
disposed of on the first ground canvassed by Mr. Ram Reddy.
Before dealing with the contention raised
before us, it will be appropriate to notice the relevant provisions of the old
and the new Code.
Section 156 of the Code of 1973 reads thus:
"156(1). Any officer in charge of a police
station may, without the order of a Magistrate, investigate any cognizable case
which a Court having jurisdiction over the local area within the limits of such
station would have power to inquire into or try under the provisions of Chapter
(2) No proceeding of a police officer in any
such case shall at any stage be called in question on the ground that the case
was one which such officer was not empowered under this section to investigate,
(3) Any Magistrate empowered under section 190 may order such an investigation
as above-mentioned." 527 This provision is substantially the same as s.
156 of the Code of A 1898, excepting that in sub-s. (1) for the words
"Chapter XV relating to the place of inquiry or trial," the words
"Chapter XIII" have been substituted.
Sections 200 and 202 of the 1898 Code and the
1973 Code, placed in juxtaposition, read as follows:
1898 Code s. 200: A Magistrate taking
cognizance of an offence on complaint shall at once examine the complaint and
the witnesses present, if any, upon oath and the substance of the examination
shall be reduced to writing and shall be signed by the complainant and the
witnesses, and also by the Magistrate:
Provided as follows:- (a) when the complaint
is made in writing, nothing herein contained shall be deemed to require a
Magistrate to .
examine the complainant before transferring
the case under section 192;
(aa) when the complaint is made in writing,
nothing herein contained shall be deemed to require the examination of a
complainant in any case in which the complaint has been made by a Court or by a
public servant acting or purporting to act in the discharge of his official
(b) where the Magistrate is a Presidency
Magistrate, such examination may be on oath or not as the Magistrate in each
case thinks fit, and where the complaint is made in writing need not be reduced
to writing. but the Magistrate may, if he thinks fit, before the matter of the
complaint is brought before him, require it to be reduced to writing;
(c) when the case has been transferred under
section 192 and the Magistrate so transferring it has already examined the
complainant, the Magistrate to whom it is so transferred shall not be bound to
re-examine the complainant.
Sec. 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 1973 Code s. 200: A Magistrate taking
cognizance of an offence on complaint shall ex. mine upon oath 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.
Provided that, when the complaint is made in
writing, the Magistrate need not examine the complainant and the witnesses- (a)
if a public servant acting or purporting to act in the discharge of his
official duties or a Court has made the complaint; or (b) if the Magistrate
makes over the case for enquiry or trial to another Magistrate under section
Provided further that if the Magistrate makes
over the case to another Magistrate under section 192 after examining the
complainant and the witnesses, the latter Magistrate need not re-examine them.
Sec. 202 Postponement of Issue of process:-
(1) Any Magistrate, on receipt of a complaint of an offence which he is
authorised to take cognizance or 528 which has been transferred to him under
section 192, may, if he thinks fit, for reasons to be recorded in writing,
postpone the issue of process for compelling the attendance of the person
complained against, and either inquire into the case himself or, if he is a
Magistrate other than a Magistrate of the third class, direct an inquiry or
investigation to be made by any Magistrate subordinate to him, or by a police
officer, or by such other person as he thinks fit for the purpose of
ascertaining the truth or falsehood of the complaint;
Provided that, save where the complaint has
been made by a Court, no such direction shall be made unless the complainant
has been examined on oath under the provisions of section 200.
(2) If any inquiry or investigation under
this section is made by a person not being a Magistrate or a Police officer.
such person shall exercise all the powers conferred by this Code on an officer
in- charge of a Police-station. except that he shall not have the power to
arrest without warrant.
(2A) Any Magistrate inquiring into a Case
under this section may, if he thinks fit, take evidence of witnesses on oath.
(3) This section applies also to the police
in the towns of Calcutta and Bombay.
which has been made over to him under sec.
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 complaint and the
witnesses present (if any) have been examined on oath under Section 200. ` (2)
If any 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 complainants to produce all his witnesses and examine
them on oath.
(3) If an investigation under sub- section
(I) 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 incharge of a
police station except the power to arrest without warrant.
Before proceeding further, we may have a look
at s. 190 of the new Code. This section is captioned "Cognizance of
offences by Magistrates". This section so far as it is material for our
purpose, n provides:
"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 may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
529 (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
It is well settled that when a Magistrate
receives a complaint, he is not bound to take cognizance if the facts alleged
in the complaint, disclose the commission of an offence. This is clear from the
use of the words "may take cognizance" which in the context in which
they occur cannot be equated with must take cognizance". The word
"may" gives a discretion to the Magistrate in the matter. If on a
reading of the complaint he finds that the allegations therein disclose a
cognizable offence and the forwarding of the complaint to the police for
investigation under s.
156(3) will be conducive to justice and save
the valuable time of the Magistrate from being wasted in enquiring into a
matter which was primarily the duty of the police to investigate, he will be
justified in adopting that course as an alternative to taking cognizance of the
This raises the incidental question: What is
meant by "taking cognizance of an offence`' by a Magistrate within the
contemplation of s. 190? This expression has not been defined in the Code. But
from the scheme of the Code, the content and marginal heading of s. 190 and the
caption of Chapter XIV under which ss. 190 to 199 occur, it is clear that a
case can be said to be instituted in a Court only when the Court takes
cognizance of the offence alleged therein. The was in which such cognizance can
be taken are set out in clauses (a), (b) and (c) of Section 190(1).
Whether the Magistrate has or has not taken
cognizance of the offence will depend on the circumstances of the particular
case including the mode in which the case is sought to be instituted and the
nature of the preliminary action, if any, taken by the Magistrate. Broadly
speaking, when on receiving a complaint, the Magistrate applies his mind for
the purposes of proceeding under s. 200 and the succeeding sections in Chapter
XV of the Code of 1973, he is said to have taken cognizance of the offence
within the meaning of s. 190(l)(a). If, instead of proceeding under Chapter XV,
he has in the judicial exercise of his discretion, taken action of some other
kind, such as issuing a search warrant for the purpose of investigation, or
ordering investigation by the police under s. 156(3), he cannot be said to have
taken cognizance of any offence.
This position of law has been explained in several
cases by this Court. the latest being Nirmaljit Singh Hoon v. The State of West
Bengal and anr(1).
The position under the Code of 1898 with
regard to the powers of a Magistrate having jurisdiction, to send a complaint
disclosing a cognizable offence-whether or not triable exclusively by the Court
of (1)  3 S.C.C. 753.
36-833SCI/76 530 Session-to the Police for
investigation under s. 156(3)" remains unchanged under the Code of 1973.
The distinction between a police investigation ordered under s. 156(3) and the
one directed under s. 202, has also been maintained under the new Code; but a
rider has been clamped by the 1st Proviso to s. 202(1) that if it appears to
the Magistrate that an offence triable exclusively by the Court of Session has
been committed, he shall not make any direction for in vestigation.
Section 156(3) occurs in Chapter XII, under
the caption: "Information to the Police and their powers to
investigate"; while s. 202 is in Chapter XV which bears the heading
"Of complaints to Magistrates". The power It order police
investigation under s. 156(3) is different from the power to direct
investigation conferred by s. 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 s. 156(3) can be invoked by the Magistrate
before he takes cognizance of the offence under s. 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 s.
156(3). It may be noted further that an order made under sub-section (3) of s.
156, is in the nature of a peremptory reminder or intimation to the police to
exercise their plenary powers of investigation under s. 156(1). Such an
investigation embraces the entire continuous process which begins with the
collection of evidence under s. 156 and ends with a report or charge sheet
under s. 173. On the other hand s. 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 s.
202 to direct within the limits circumscribed by that section, an investigation
"for the purpose of deciding whether or not here is sufficient ground for
proceeding ". Thus the object of an investigation under s. 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.
In the instant case the Magistrate did not
apply his mind to the complaint for deciding whether or not there is sufficient
ground for proceeding; but only for ordering an investigation under s. 156(3).
He did not bring into motion the machinery of Chapter XV. He did not examine
the complaint or his witnesses under s. 200, Cr.P.C., which is the first step
in the procedure prescribed under that Chapter. The question of taking the next
step of that procedure envisaged in s. 202 did not arise. Instead of taking
cognizance of the offence he has., in the exercise of his discretion, sent the
complaint for investigation by police under s. 156.
531 This being the position, s. 202(1), 1st
Proviso was not attracted. A Indeed, it is not necessary for the decision of
this case to express any final opinion on the ambit and scope of the 1st
Proviso to s. 202(1) of the Code of 1973.
Suffice it to say, the stage at which s. 202
could become operative was never reached in this case. We have therefore in
keeping with the well-established practice of the Court, decided only that much
which was essential for the disposal of this appeal, and no more.
For the foregoing reasons, we answer the
question posed" in the negative, and dismiss this appeal.
M.R. Appeal dismissed.