Suresh
Chand Jain Vs. State of Madhya
Pradesh & Anr
[2001] Insc 11 (10
January 2001)
K.T.Thomas,
R.P.Sethi Thomas, J.
{Arising out of Special Leave Petition (crl.) 2225 of 2000 }
Leave
granted.
A
complaint was forwarded by a magistrate to the police for registering an FIR
and for conducting investigation. One of the persons arrayed in the complaint
as accused questioned the legality of the above order first in revision before
the Sessions Court and then by invoking the inherent powers of the High Court.
Both did not succeed. This appeal is by the same person contending that the
order of the magistrate should have been upset in the interest of justice.
The
complaint was filed by the second respondent (Mahesh Patidar) before the Chief
Judicial Magistrate, Neemuch (M.P.) on 12.8.1999 alleging that the appellant
and his wife Geeta Devi have committed offence under Section 3 of the Prized
Chits and Money Circulation Scheme (Prohibition) Act and under Section 420 of
the Indian Penal Code. The Chief Judicial Magistrate passed an order on
18.8.1999 which is extracted below: The complaint submitted by the complainant
has been perused. This complaint has been submitted by the complainant for
initiating action against the accused under Section 3 of the Prizes, Chits and
Money Circulation Scheme (Prohibition) Act and Section 420 of the IPC. Both the
offences are serious, therefore, the case is required to be investigated by the
police station, Nemuch Cantt. under Section 156(3) Cr.P.C., therefore, the
complaint submitted by the complainant be sent to the In-charge, Police Station
Neemuch Cantt. with the direction to register F.I.R. and initiate
investigation. The copy of the F.I.R. and initiate investigation. The copy of
the F.I.R. be sent to this court immediately.
Appellant
challenged the said order in a revision before the Sessions Court and when the
revision was dismissed he moved the High Court under Section 482 of the Code of
Criminal Procedure (for short the Code). Learned Single Judge of the High Court
of Madhya Pradesh took the view that in a private complaint case under Section
156(3) of the Code the magistrate is empowered to order investigation; the
allegation made in the complaint needs to be investigated in public interest.
Shri
R.K. Jain, learned senior counsel contended first that a magistrate on receipt
of a complaint should@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
have examined the complainant on oath before proceeding to@@ JJJJ any other
step. Learned senior counsel adopted the alternative contention that the
magistrate has no power to direct the police to register an FIR. In support of
the said contention learned counsel cited two decisions. One is Ram Narain vs. Lokuram
{1986(37) Rajasthan Law Weekly 143} and the other was rendered by the Punjab and Haryana High Court in Suresh
Kumar vs. State of Haryana {1996 (3) Recent Criminal Reports
137}.
The
former decision of the Rajasthan High Court need not vex our mind as the
consideration focussed therein was on the scope of Section 202(1) of the Code
and the learned Single Judge observed therein that a magistrate cannot make any
order regarding police investigation without examining the complainant on oath.
If the facts in that case remained one under Section 202(1) of the Code then
the observation cannot be faulted with. That apart, as the point involved in
this case is different we do not think it necessary to examine the said
decision. But the other decision rendered by a Single Judge of the Punjab and Haryana
High Court (Suresh Kumar vs. State of Haryana) has gone a step further as he
held that the magistrate has no power within the contemplation of Section
156(3) of the Code to ask for registration of the case, but could only refer
the complaint to the police for investigation at the pre-cognizance stage to
make the enquiry in the matter enabling the magistrate to apply his mind with
regard to the correctness of the complaint. In that decision learned Single
Judge, at the end of the judgment, made a direction as follows: Before parting
with the judgment, it is observed that often it is found that the Judicial
Magistrates working under the control of this Court many a time upon the
complaints preferred before them, allegedly showing that a cognizable offence
has been committed by the accused, direct the police to register and conduct
the investigation in such cases under Section 156(3) of the Cr.P.C. After the
reports are received from the police the Magistrates deal with those cases as
police challans and conduct the proceedings in the matters against the
provisions of law as discussed above.
Hence
the Registry is directed to send a copy of this judgment to all the Judicial
Magistrates in the States of Punjab, Haryana and Union Territory, Chandigarh, for information and guidance.
In our
opinion, the aforesaid direction given by the learned Single Judge of the
Punjab and Haryana High Court in Suresh Kumar vs. State of Haryana (supra) is
contrary to law and cannot be approved. Chapter XII of the Code contains
provisions relating to information to the police and their powers to
investigate, whereas Chapter XV, which contains Section 202, deals with
provisions relating to the steps which a magistrate has to adopt while and
after taking cognizance of any offence on a complaint. Provisions of the above
two chapters deal with two different facets altogether though there could be a
common factor i.e. complaint filed by a person. Section 156, falling within
Chapter XII, deals with powers of the police officers to investigate cognizable
offences. True, Section 202 which falls under Chapter XV, also refers to the
power of a Magistrate to direct an investigation by a police officer. But the
investigation envisaged in Section 202 is different from the investigation
contemplated in Section 156 of the Code. Section 156 of the Code reads thus:
156. Police officers power to investigate cognizable cases.-
(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 XIII.
(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.
The
investigation referred to therein is the same investigation the various steps
to be adopted for it have been elaborated in Chapter XII of the Code. Such
investigation would start with making the entry in a book to be kept by the
officer-in-charge of a police station, of the substance of the information
relating to the commission of a cognizable offence. The investigation started
thereafter can end up only with the report filed by the police as indicated in
Section 173 of the Code. The investigation contemplated in that Chapter can be
commenced by the police even without the order of a magistrate. But that does
not mean that when a magistrate orders an investigation under Section 156(3) it
would be a different kind of investigation. Such investigation must also end up
only with the report contemplated in Section 173 of the Code.
But
the significant point to be noticed is, when a magistrate orders investigation
under Chapter XII he does so before he takes cognizance of the offence.
But a
magistrate need not order any such investigation if he proposes to take
cognizance of the offence. Once he@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ takes cognizance
of the offence he has to follow the procedure envisaged in Chapter XV of the
Code. A reading of Section 202(1) of the Code would convince that the
investigation referred to therein is of a limited nature.
The
magistrate can direct such an investigation to be made either by a police
officer or by any other person. Such investigation is only for helping the
magistrate to decide whether or not there is sufficient ground for him to proceed
further. This can be discerned from the culminating words in Section 202(1)
i.e. or direct an investigation to be made by a police officer or by such other
persons as he thinks fit, for the purpose of deciding whether or not there is
sufficient ground for proceeding. This is because he has already taken
cognizance of the offence disclosed in the complaint, and the domain of the
case would thereafter vest with him.
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.
Though
the learned Single Judge of the Punjab and Haryana High Court in Suresh Kumar
vs. State of Haryana (supra) made reference to two decisions rendered by this
Court [Gopal Das Sindhi and ors. vs. State of Assam and anr. (AIR 1961 SC 986)
and Tula Ram and ors. vs. Kishore Singh (AIR 1977 SC 2401)] learned Single
Judge fell into error in formulating a legal position which is quite contrary
to the dictum laid down by this Court in the afore-cited decisions. In Gopal Das
Sindhi vs. State of Assam (supra) a three Judge Bench of this Court considered
the validity of the course adopted by a judicial magistrate of the 1st class in
ordering the police to register a case, investigate and if warranted, submit
charge-sheet. Learned Judges repelled the contention that the magistrate ought
to have examined the complainant on oath under Section 200 of the Code. Dealing
with the said contention their Lordships stated thus: If the Magistrate had not
taken cognizance of the offence on the complaint filed before him, he was not obliged
to examine the complainant on oath and the witnesses present at the time of the
filing of the complaint. We cannot read the provisions of S.190 to mean that
once a complaint is filed, a Magistrate is bound to take cognizance if the
facts stated in the complaint disclose the commission of any offence. We are
unable to construe the word may in section 190 to mean must. The reason is
obvious. A complaint disclosing cognizable offences may well justify a
Magistrate in sending the complaint, under S.156(3) to the police for
investigation. There is no reason why the time of the Magistrate should be
wasted when primarily the duty to investigate in cases involving cognizable
offences is with the police. On the other hand, there may be occasions when the
Magistrate may exercise his discretion and take cognizance of a cognizable
offence.
In Tula
Ram vs. Kishore Singh (supra) a two Judge Bench of this Court, after referring
to the earlier decision, reiterated the same legal position. It is unfortunate
that when this Court laid down the legal position so explicitly in the above
two decisions which reached the notice of the learned Judge of the Punjab and Haryana
High Court he had formulated a position contrary to it by stating that the
Magistrate has no power within the contemplation of Section 156(3) of the Code,
to ask for registration of the case. It appears that the judicial officers
under Punjab and Haryana High Court who were,
till then, following the correct position, were asked by the learned Judge to
follow the erroneous position formulated by him in the aforesaid judgment.
In the
present case the High Court of Madhya Pradesh had rightly upheld the course
adopted by the magistrate.
Hence
we dismiss this appeal.
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