Mohd. Yousuf
Vs. Smt. Afaq Jahan & Anr [2006] Insc 1 (2 January 2006)
Arijit
Pasayat & S.H. Kapadia
(Arising
Out Of Slp (Crl.) No. 2305 Of 2004) Arijit Pasayat, J.
Leave
Granted.
Challenge
in this Appeal is to the order passed by a learned Single Judge of the Allahabad
High Court, Lucknow Bench. The respondent No. 1 filed a petition under Section
482 of the Code of Criminal Procedure, 1973 (in short the 'Code') to quash the
direction given to register F.I.R., charge sheet filed after investigation as
well as the cognizance taken by the learned Chief Judicial Magistrate (in short
CJM) Raebareli. By order dated 13.7.1998 learned CJM had directed the police to
register and investigate the case. On 19.7.1998 on the basis of the order
passed by learned CJM police registered FIR No. 830 of 1998 for alleged
commission of offences punishable under Sections 420, 467, 468 and 471 of the
Indian Penal Code, 1860 (in short the IPC).
Background
facts as projected by the appellant are as follows:
Appellant
received a notice dated 18.1.1996 from the Union Bank of India, Raebareli
asking him to pay back the loan amount with interest amounting to
Rs.1,25,421/-.
Appellant
was shown to be a guarantor for the loan taken by respondent no.1 on
30.12.1994. Appellant was surprised to receive the notice as he had never stood
as guarantor for any loan. He made enquiry from the Bank and came to know that
the respondent No. 1 had forged some documents in conspiracy with her husband Zahirul
Islam. An affidavit purported to have been signed by the appellant was filed
with the bank to make him the second guarantor. Appellant had never signed the
document and his signature was forged.
A writ
petition was filed before the Allahabad High Court to quash the notice issued
by the Bank. The writ petition was dismissed giving liberty to the appellant to
seek appropriate remedy. On 13.7.1998 an application was filed before learned
CJM alleging commission of offences by the named accused persons. Learned CJM
directed the police to register and investigate the case. As noted above, on
the basis of order of learned CJM the FIR was registered. The essence of the
grievance of the appellant was that the accused persons with the help of the
bank manager made forged signature of the appellant in the agreement form and
an affidavit to show him as a guarantor. After investigation charge sheet was
filed by the police on 13.9.1999. On 24.5.2000 respondent no.1 filed the
application under Section 482 of the Code for quashing the FIR, the charge
sheet and the order of learned magistrate by which he had taken cognizance, and
the order directing the police to register the case under Section 156(3) of the
Code. By the impugned order the High Court quashed the charge sheet on the
ground that the magistrate had no power to order registration of the case.
In
support of the appeal learned counsel for the appellant submitted that the
order of the High Court is clearly contrary to law and on misreading of the
provisions contained in Section 156(3) of the Code. Learned counsel for the
respondent No.1 on the other hand submitted that the true scope and ambit of
Section 156(3) of the Code has been kept in view by the High Court and the
impugned order does not suffer from any infirmity. Learned counsel for the
State supported the stand of the appellant.
In
order to appreciate rival submissions Section 156 of the Code needs to be
quoted; the same reads as follows:
"156.
Police officer's power to investigate cognizable cases. –
-
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.
-
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.
-
Any Magistrate
empowered under Section 190 may order such an investigation as above
mentioned." Section 156 falling within Chapter XII, deals with powers of
police officers to investigate cognizable offences. Investigation envisaged in
Section 202 contained in Chapter XV is different from the investigation
contemplated under Section 156 of the Code.
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.
The
various steps to be adopted for investigation under Section 156 of the Code
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 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 makes the position clear 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 person
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
clear position therefore is that 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.
The
above position was highlighted in Suresh Chand Jain v. State of M.P. and Another [2001(2) SCC 628].
In Gopal
Das Sindhi and Ors. v. State of Assam and Anr.
(AIR
1961 SC 986) it was observed as follows:
"When
the complaint was received by Mr.
Thomas
on August 3, 1957, his order, which we have already quoted, clearly indicates
that he did not take cognizance of the offences mentioned in the complaint but
had sent the complaint under Section 156(3) of the Code to the Officer Incharge
of Police Station Gauhati for investigation. Section 156(3) states "Any
Magistrate empowered under section 190 may order such investigation as
above-mentioned". Mr. Thomas was certainly a Magistrate empowered to take
cognizance under Section 190 and he was empowered to take cognizance of an
offence upon receiving a complaint. He, however, decided not to take cognizance
but to send the complaint to the police for investigation as Sections 147, 342
and 448 were cognizable offences. It was, however, urged that once a complaint
was filed the Magistrate was bound to take cognizance and proceed under Chapter
XVI of the Code. It is clear, however, that Chapter XVI would come into play
only if the Magistrate had taken cognizance of an offence on the complaint
filed before him, because Section 200 states that a Magistrate taking
cognizance of an offence on complaint shall at once examine the complainant 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. 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 Section 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 Section 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. If he does so then he would have to proceed in the manner provided by
Chapter XVI of the Code. Numerous cases were cited before us in support of the
submissions made on behalf of the appellants.
Certain
submissions were also made as to what is meant by "taking
cognizance." It is unnecessary to refer to the cases cited. The following
observations of Mr. Justice Das Gupta in the case of Superintendent and Remembrancer
of Legal Affairs, West
Bengal v.
Abani
Kumar Banerjee, AIR 1950 Cal 437 "What is taking cognizance
has not been defined in the Criminal Procedure Code and I have no desire to
attempt to define it. It seems to me clear however that before it can be said
that any magistrate has taken cognizance of any offence under Section 190(1)(a),
Criminal Procedure Code, he must not only have applied his mind to the contents
of the petition but he must have done so for the purpose of proceeding in a
particular way as indicated in the subsequent provisions of this Chapter-
proceeding under Section 200 and thereafter sending it for inquiry and report
under Section 202. When the Magistrate applies his mind not for the purpose of
proceeding under the subsequent sections of this Chapter, but for taking action
of some other kind, e.g., ordering investigation under Section 156(3), or
issuing a search warrant for the purpose of the investigation, he cannot be
said to have taken cognizance of the offence".
were
approved by this Court in R.R. Chari v.
State
of Uttar Pradesh (1951 SCR 312). It would be clear
from the observations of Mr.
Justice
Das Gupta that when a Magistrate applies his mind not for the purpose of
proceeding under the various sections of Chapter XVI but for taking action of
some other kind, e.g., ordering investigation under Section 156(3) or issuing a
search warrant for the purpose of investigation, he cannot be said to have
taken cognizance of any offence. The observations of Mr. Justice Das Gupta
above referred to were also approved by this Court in the case of Narayandas Bhagwandas
Madhavdas v. State of West
Bengal (AIR 1959 SC
1118). It will be clear, therefore, that in the present case neither the
Additional District Magistrate nor Mr. Thomas applied his mind to the complaint
filed on August 3, 1957, with a view to taking cognizance
of an offence. The Additional District Magistrate passed on the complaint to
Mr. Thomas to deal with it. Mr.
Thomas
seeing that cognizable offences were mentioned in the complaint did not apply
his mind to it with a view to taking cognizance of any offence; on the contrary
in his opinion it was a matter to be investigated by the police under Section
156(3) of the Code.
The
action of Mr. Thomas comes within the observations of Mr. Justice Das Gupta. In
these circumstances, we do not think that the first contention on behalf of the
appellants has any substance." In Narayandas Bhagwandas Madhavdas v. The
State of West Bengal (AIR 1959 SC 1118) it was observed
as under:
"On
19.9.1952, the appellant appeared before the Additional District Magistrate who
recorded the following order:- "He is to give bail of Rs.50,000 with ten
sureties of Rs. 5,000 each. Seen Police report. Time allowed till 19th November, 1952, for completing
investigation." On 19.11.952, on perusal of the police report the
Magistrate allowed further time for investigation until January 2, 1953, and on that date time was further
extended to February 2,
1953. In the meantime,
on January 27, 1953, Inspector Mitra had been
authorized under s.23(3)(b) of the Foreign Exchange Regulation Act to file a
complaint.
Accordingly,
a complaint was filed on February
2, 1953. The
Additional District Magistrate thereon recorded the following order:
"Seen
the complaint filed to day against the accused Narayandas Bhagwandas Madhavdas
under section 8(2) of the Foreign Exchange Regulation Act read with section 23B
thereof read with Section 19 of the Sea Customs Act and Notification No.
F.E.R.A. 105/51 dated the
27th February, 1951,
as amended, issued by the Reserve Bank of India under Section 8(2) of the Foreign Exchange Regulation Act. Seen the
letter of authority. To Sri M. N. Sinha, S.
D.M. (Sadar),
Magistrate 1st class (spl. empowered) for favour of disposal according to law. Accused
to appear before him." Accordingly, on the same date Mr. Sinha then
recorded the following order:-
"Accused
present. Petition filed for reduction of bail. Considering all facts, bail
granted for Rs. 25,000 with 5 sureties. To 26.3.1952 and 27.3.1952 for
evidence." It is clear from these orders that on 19.91952, the Additional
District Magistrate had not taken cognizance of the offence because he had
allowed the police time till November 19, 1952,
for completing the investigation. By his subsequent orders time for
investigation was further extended until February 2, 1953. On what date the complaint was
filed and the order of the Additional District Magistrate clearly indicated
that he took cognizance of the offence and sent the case for trial to Mr. Sinha.
It would also appear from the order of Mr. Sinha that if the Additional
District Magistrate did not take cognizance, he certainly did because he
considered whether the bail should be reduced and fixed the 26th and 27th of
March, for evidence. It was, however, argued that when Mitra applied for a
search warrant on September,
16, 1952, the
Additional District Magistrate had recorded an order thereon, "Permitted.
Issue search warrant." It was on this date that the Additional District
Magistrate took cognizance of the offence. We cannot agree with this submission
because the petition of Inspector Mitra clearly states that "As this is
non-cognizable offence, I pray that you will kindly permit me to investigate
the case under section 155 Cr. P.C." That is to say, that the Additional
District Magistrate was not being asked to take cognizance of the offence. He
was merely requested to grant permission to the police officer to investigate a
non-cognizable offence. The petition requesting the Additional District
Magistrate to issue a warrant of arrest and his order directing the issue of
such a warrant cannot also be regarded as orders which indicate that the
Additional District Magistrate thereby took cognizance of the offence. It was
clearly stated in the petition that for the purposes of investigation his
presence was necessary.
The
step taken by Inspector Mitra was merely a step in the investigation of the
case. He had not himself the power to make an arrest having regard to the
provisions of s. 155(3) of the Code of Criminal Procedure. In order to
facilitate his investigation it was necessary for him to arrest the appellant
and that he could not do without a warrant of arrest from the Additional
District Magistrate. As already stated, the order of the Additional District
Magistrate of September
19, 1952, makes it
quite clear that he was still regarding the matter as one under investigation.
It could not be said with any good reason that the Additional District
Magistrate had either on September 16, or at any subsequent date upto February 2, 1953, applied his mind to the case with
a view to issuing a process against the appellant. The appellant had appeared
before the Magistrate on February
2, 1953, and the
question of issuing summons to him did not arise. The Additional District
Magistrate, however, must be regarded as having taken cognizance on this date
because he sent the case to Mr. Sinha for trial. There was no legal bar to the
Additional District Magistrate taking cognizance of the offence on February 2,
1953, as on that date Inspector Mitra's complaint was one which he was
authorized to make by the Reserve Bank under s. 23(3)(b) of the Foreign
Exchange Regulation Act. It is thus clear to us that on a proper reading of the
various orders made by the Additional District Magistrate no cognizance of the
offence was taken until February
2, 1953. The argument
that he took cognizance of the offence on September 16, 1952, is without foundation. The orders
passed by the Additional District Magistrate on September 16, 1952, September 19, 1952, November 19,
1952, and January 2, 1953, were orders passed while the
investigation by the police into a non-cognizable offence was in progress. If
at the end of the investigation no complaint had been filed against the
appellant the police could have under the provisions of s. 169 of the Code
released him on his executing a bond with or without sureties to appear if and
when so required before the Additional District Magistrate empowered to take
cognizance of the offence on a police report and to try the accused or commit
him for trial. The Magistrate would not be required to pass any further orders
in the matter. If, on the other hand, after completing the investigation a
complaint was filed, as in this case, it would be the duty of the Additional
District Magistrate then to enquire whether the complaint had been filed with
the requisite authority of the Reserve Bank as required by s. 23(3)(b) of the
Foreign Exchange Regulation Act. It is only at this stage that the Additional
District Magistrate would be called upon to make up his mind whether he would
take cognizance of the offence. If the complaint was filed with the authority
of the Reserve Bank, as aforesaid, there would be no legal bar to the
Magistrate taking cognizance. On the other hand, if there was no proper
authorization to file the complaint as required by s. 23 the Magistrate
concerned would be prohibited from taking cognizance. In the present case, as
the requisite authority had been granted by the Reserve Bank on January 27,
1953, to file a complaint, the complaint filed on February 2, was one which
complied with the provisions of s. 23 of the Foreign Exchange Regulation Act
and the Additional District Magistrate could take cognizance of the offence which,
indeed, he did on that date. The following observation by Das Gupta, J., in the
case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji [A.I.R.
(1950) Cal. 437] was approved by this Court in the case of R. R. Chari v. The
State of Uttar Pradesh [[1951] S.C.R. 312]:- "What is
taking cognizance has not been defined in the Criminal Procedure Code and I
have no desire to attempt to define it. It seems to me clear however that
before it can be said that any magistrate has taken cognizance of any offence
under section 190(1)(a) Criminal Procedure Code, he must not only have applied
his mind to the contents of the petition but must have done so for the purpose
of proceeding in a particular way as indicated in the subsequent provisions of
this Chapter - proceeding under section 200 and thereafter sending it for
inquiry and report under section 202. When the magistrate applies his mind not
for the purpose of proceeding under the subsequent sections of this Chapter,
but for taking action of some other kind, e.g., ordering investigation under
section 156(3), or issuing a search warrant for the purpose of the
investigation, he cannot be said to have taken cognizance of the offence."
It is, however, argued that in Chari's case
this Court was dealing with a matter which came under the Prevention of
Corruption Act.
It
seems to us, however, that that makes no difference. It is the principle which
was enunciated by Das Gupta, J., which was approved. As to when cognizance is
taken of an offence will depend upon the facts and circumstances of each case
and it is impossible to attempt to define what is meant by taking cognizance.
Issuing of a search warrant for the purpose of an investigation or of a warrant
of arrest for that purposes cannot by themselves be regarded as acts by which
cognizance was taken of an offence.
Obviously,
it is only when a Magistrate applies his mind for the purpose of proceeding
under s. 200 and subsequent sections of Chapter XVI of the Code of Criminal
Procedure or under s. 204 of Chapter XVII of the Code that it can be positively
stated that he had applied his mind and therefore had taken cognizance." A
faint plea was made by learned counsel for the respondent No.1 that the
petition filed by the appellant was not a complaint in strict sense of the
term. The plea is clearly untenable. The nomenclature of a petition is
inconsequential. Section 2(d) of the Code defines "complaint" as
follows:
"'Complaint'
means any allegation orally or in writing to a Magistrate, with a view to his
taking action under this Code, that some person, whether known or unknown, has
committed an offence, but does not include a police report.
Explanation:-
A report made by a police officer in a case which discloses, after
investigation, the commission of a non- cognizable offence shall be deemed to
be a complaint; and the police officer by whom such report is made shall be
deemed to be the complainant." There is no particular format of a
complaint. A petition addressed to the magistrate containing an allegation that
an offence has been committed, and ending with a prayer that the culprits be
suitably dealt with, as in the instant case, is a complaint.
In
view of the aforesaid position in law, order passed by the High Court is
clearly unsustainable and is quashed.
The
appeal is allowed.
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