Patna High Court
Ramprabesh Rai And Ors. vs Bishun Mandal on 24 April, 1980
Equivalent citations: 1981CRILJ139
ORDER
1. This case has come to us on a reference made by S. Shamsul Hasan, J. The question for consideration is whether an executive Magistrate can be asked to investigate a complaint under Section 202 of the Cr. P.C., 1973 (hereinafter referred to as the new Code).
2. On 21-3-75 a complaint was filed by opposite party Bishun Mandal in the Court of the Chief Judicial Magistrate, Bhagalpur. On the next day, the learned Magistrate examined the complainant on solemn affirmation and directed Shri S. Ram, Executive Magistrate, Bhagalpur, to investigate into the allegations. Phri S. Ram, Executive Magistrate, recorded the statement of some witnesses produced by the complainant and submitted a report. The learned Chief Judicial Magistrate, on 17-6-76; disagreeing with the said report, took cognizance of the offences under Sections 147, 148, 379 and 427, I.P.C. against the petitioners and transferred the case to the file of Shri H.P. Yadavendu, Judicial Magistrate, 1st Class, for disposal.
3. It has been submitted on behalf of the petitioners that the Chief Judicial Magistrate could not direct an investigation to be made by an Executive Magistrate under Section 202 of the New Code, Reliance in this connection was placed on a decision of this Court in Umakant Dubey v. Bhunnu Bhuiyan 1975 BBCJ 388 as also on two un-reported decisions in Jodhi Pandev v. Mahendra Mohan Pandey Criminal Misc. No. 741 of 1978 and Safi Mian v. Most. Asia Khatoon Criminal Misc. No. 4593 of 1978 decided on 2-5-78 and 8-11-1979, respectively. The two unreported decisions referred to above are by S. Shamsul Hasan, J., who himself has expressed a doubt about their correctness. In the order of reference, the learned Judge has stated that these two cases were decided by him under a complete misrepresentation of the decision reported in the case of Umakant Dubey (supra).
4. The facts of the case of Umakant Dubey 1975 BBCJ 388 (supra) was as such. On the receipt of a complaint and after examining the complaint on solemn affirmation, the Sub-divisional Judicial Magistrate directed the police to investigate into the case and submit report. Later, the Sub-Divisional Judicial Magistrate, directed that the case be sent to Shri R. Chand, Judicial Magistrate, 1st Class, to hold an enquiry into the matter and submit a report. A report was received from Shri R. Chand and the Sub-Divisional Judicial Magistrate passed an order directing issuance of a warrant of arrest. This order was challenged in this Court. It was in that context that it was observed that any Judicial Magistrate on receipt of the complaint of an offence, of which he was authorised to take cognizance, could enquire into the case himself or direct an investigation to be made by a police officer or by any other person; but he could not get it enquired into by any other Magistrate. In the case of Umakant Dubey (supra) the question whether an Executive Magistrate could hold an investigation as contemplated under Section 202 of the new Code, did not come up for consideration at all. The facts of that case were also quite different inasmuch as a Judicial Magistrate had been directed to hold an enquiry. In the two unreported decisions of this Court the orders were quashed on the basis that investigation could not be held by any Executive Magistrate under Section 202 of the new Code. It has been stated in both the decisions that this point was decided in the case of Umakant Dubey (supra). This was obviously not correct.
5. Section 202 of the new Code provides that any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either enquire into the case himself or "direct an investigation to be made by a police officer or by such other person as he thinks fit'1 for the purpose of deciding whether or not there is sufficient ground for proceeding. By now it is well settled that an enquiry into the case be held by the Magistrate himself or by the Magistrate to whom the case has been made over under Section 192 of the new Code, There is also no controversy over the fact that the learned Magistrate can direct the investigation to be made by a police officer or by such other person whom he thinks fit. The question only is whether an Executive Magistrate shall also be included amongst "such other persons".
6. Section 6 of the new Code provides that in every State there shall be, besides the High Courts and Courts constituted under any law, the following classes of Criminal Courts, namely:
(i) Court of Session;
(ii) Judicial Magistrate of the first class and in any Metropolitan area, Metropolitan Magistrate;
(iii) Judicial Magistrate of the second class; and
(iv) Executive Magistrate.
According to Section 3 of the new Code, any reference, without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires,-
(i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;
(ii) in relation to metropolitan area, as a reference to a Metropolitan Magistrate.
There are several sections in the new Code where a Magistrate has been referred to with qualifying words. Reference may be made to Sections 107, 144, 145 and 147 of the Code. But wherever there are no qualifying words, any reference to a Magistrate has to be construed as reference to a Judicial Magistrate. Chapter XV, relating to complaints to Magistrate, refers to a Magistrate. With the separation of Judiciary from the Executive, the power to take cognizance has been assigned to a Judicial Magistrate. The Executive Magistrates are no longer authorised to take cognizance of an offence. In that view of the matter, the reference to a Magistrate in Section 202 of the new Code has to be construed as reference to a Judicial Magistrate. Any Magistrate meaning thereby a Judicial Magistrate is authorised to take cognizance under Section 202. On the receipt of a complaint, if the said Judicial Magistrate thinks fit to postpone the issue of processes against an accused, he may himself enquire into the case. If a case has been made over to a Judicial Magistrate under Section 192 of the new Code, he may also enquire into the case himself. Section 202 of the new Code further provides that the Judicial Magistrate may direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of finding out a prima facie case. An enquiry means every enquiry other than a trial conducted under the Code by a Court. This means that before holding a trial the Magistrate, in order to satisfy himself, may hold an enquiry to find out a prima facie case. The word "investigation" is defined in Section 2(h) of the new Code. It includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. It may be relevant here to state that word "Magistrate" has been used in Section 2(h) also without any qualifying words. Reference to the word "Magistrate" in Section 2(h) shall have to be construed as reference to a Judicial Magistrate. This means that an investigation cannot be made by a Judicial Magistrate. The collection of evidence can be made by a police officer or by any other person who is thought fit and is authorised by a Judicial Magistrate in that behalf. An Executive Magistrate is not authorised to take cognizance or to hold any trial under the new Code. In our opinion, there does not appear to be any bar in directing an investigation to be made by an Executive Magistrate under Section 202 of the new Code in order to collect evidence. An Executive-Magistrate is included amongst "such other person" referred to in Section 202. In the case of Bijay Kumar Sharma v. Ramchandra Sharma Criminal Misc. No. 4547 of 1975 decided on 20-5-1977, one of the learned Judges of this Court has taken a similar view. In that view, the matter was sent to an Executive Magistrate for enquiry and report. It was held that the word "enquiry" had been loosely used and, in fact, the Judicial Magistrate while entrusting the complaint to the Executive Magistrate wanted an investigation under the Code to be made. It was found that an investigation under the Code can be entrusted to an Executive Magistrate. We find ourselves in agreement with the views expressed in the case of Bijay Kumar Sharma (supra).
7. So far as the present case is concerned, the investigation was entrusted by the Chief Magistrate to an Executive Magistrate. The Executive Magistrate took the statement of cerain witnesses and submitted a report stating, inter alia, that there was no prima facie case, The learned Chief Judicial Magistrate disagreeing with him has taken cognizance of the offences. The Chief Judicial Magistrate could disagree with the report of the police officer or any other person whom the matter had been entrusted for investigation and take cognizance. It was, however, argued by learned Counsel for the petitioners that witnesses were examined on solemn affirmation by the Executive Magistrate which he was not authorised to do while making an investigation under Section 202 of the new Code. It is nowhere stated in the application that the Executive Magistrate examined the witnesses on oath and it is also not clear from the records of the case. We, however, do not think it necessary to discuss this question as the point was neither originally raised nor does it arise from the materials on the record,
8. In the result, this application fails and is dismissed.