Allahabad High Court
Vishwanath vs State Of U.P. And 4 Ors. on 9 December, 2019
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 41 Case :- CRIMINAL REVISION No. - 4629 of 2019 Revisionist :- Vishwanath Opposite Party :- State Of U.P. And 4 Ors. Counsel for Revisionist :- Harish Chandra Singh,Anand Pal Singh Counsel for Opposite Party :- G.A. Hon'ble Mrs. Sunita Agarwal,J.
1. The present criminal revision has been filed challenging the order dated 06.09.2019 passed in Criminal Misc. No. 203 of 2019 (Vishwanath vs. Santosh & others) by the Additional Sessions Judge, Court No.1, Kushinagar on an application under Section 156(3) Cr.P.C. filed by the revisionist.
2. The Court below while disposing of the application under Section 156(3) Cr.P.C. has treated the same as complaint and directed it to be registered as complaint case fixing date for recording statement of the complainant under Section 200 Cr.P.C.
3. Challenging this order, learned counsel for the revisionist vehemently submits that from the reading of the application under Section 156(3) Cr.P.C. itself, a cognizable offence was made out and as such it was required for the Court concerned to direct the police to investigate. The appropriate course of action for the Court was to issue direction to the police to lodge a first information report and submit the report under Section 173(2) Cr.P.C.
4. The allegations are of gang rape by the accused persons (opposite party nos. 2 to 5) falling under Section 376 I.P.C., the application seeking for lodging of the first information report could not have been treated as a complaint case.
5. Reliance is placed on the judgment and order dated 07.12.2019 of this Court passed in an application under Section 482 No. 44699 of 2019 (Maneeta vs. State of U.P. & Ors.) wherein following the law laid down in Lalita Kumari vs. Government of U.P. & ors1, it was observed that once a cognizable offence is made out, an FIR should be registered and the summoning order under challenge was quashed as it did not provide any reason for not doing so. The matter had been relegated for fresh decision under Section 156(3) Cr.P.C.
6. Learned counsel for the revisionist vehemently submits that in Lalita Kumari1, the Supreme Court has laid down guidelines holding that an obligation is cast on a police officer to register a first information report under Section 154 of the Code of Criminal Procedure upon receiving any information relating to commission of a cognizable offence. It is contended that the Supreme Court has categorically held that the registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. Only in a case where the information received does not disclose a cognizable offence, the necessity for a preliminary inquiry may arise which may be conducted only to ascertain whether cognizable offence is disclosed or not. In that case also, once the preliminary inquiry discloses the commission of a cognizable offence, the FIR must be registered.
7. Submission is that the application under Section 156(3) Cr.P.C. was filed by the revisionist/applicant for the direction to lodge a first information report as police did not do so. The Court below instead of issuing necessary direction to the police to lodge the first information report and investigate, had illegally treated it as a complaint and proceeded to record the statement of the complainant.
8. Submission is that this act of the Court/Magistrate was beyond the powers conferred on it, as the principle laid down in Lalita Kumari1 would be attracted even in the matter of filing of an application under Section 156(3) Cr.P.C. before the Magistrate. The result would be that once the application under Section 156(3) Cr.P.C. filed before the Magistrate or Court discloses commission of a cognizable offence, it had no option but to issue direction to the police to register a case and investigate the matter for submission of the police report under Section 173(2) Cr.P.C.
9. Learned AGA, on the other hand, submits that the power of a Magistrate under Section 156(3) Cr.P.C. can be equated to the power conferred on it under Section 190 Cr.P.C. as it flows from the said provision. Thus, on the presentation of an application under Section 156(3) Cr.P.C. before the Magistrate, it has two options either to direct the police to investigate by registration of a first information report or proceed to treat it as a complaint case to make an inquiry for recording statement of the complainant under Section 200 Cr.P.C. and his witnesses under Section 202 Cr.P.C.
10. The decision in Lalita Kumari1 is on a reference regarding the power of a police officer to conduct a preliminary inquiry in order to test the veracity of the information received by him relating to commission of a cognizable offence, before registering the same under Section 154 Cr.P.C.
11. Submission is that the said decision has no reflection on the powers of the Magistrate or curtail his discretion to make a preliminary inquiry to ascertain truth or veracity of the information of commission of a criminal offence by treating it as a complaint instead of sending the matter to the police for investigation.
12. To deal with these submissions of the learned counsel for the parties, it would be appropriate to go through the provisions relating to registration of a criminal case and "investigation" thereof by the police under Chapter XII and as also the power and jurisdiction of the criminal courts/Magistrates in inquiries and trials as contained in Chapter XIII; and Chapter XIV of the Code pertaining to the requisite conditions for initiation of judicial proceedings.
13. The definition of "inquiry", "investigation" and "judicial proceedings" are also to be taken note of. "Inquiry" as defined under Section 2(g) means every inquiry other than a trial, conducted under the Code by a Magistrate or Court. Section 2(h) defines "investigation" to include all the proceedings under the Code for the collection of evidence conducted by a police officer or any person authorised by a Magistrate in this behalf, but other than a Magistrate. The "judicial proceedings" defined in Section 2(i) includes any proceeding in the course of which evidence is or may be legally taken on oath.
14. Thus, from the careful reading of the definitions as above, it is evident that the "inquiry", "investigation" and "judicial proceedings" are three different stages of a criminal matter reported to the police or the Magistrate/Court, and connotes different meaning under the Code. The "investigation" is done by the police officer or any other officer authorised by the Magistrate (but not a Magistrate), whereas "inquiry" means a preliminary inquiry conducted by the Magistrate or a Court on receipt of information of commission of an offence which shall not include a trial where evidence is to be taken in a legal manner on oath being the "judicial proceedings". The "information" and "investigation" by the police is contained in Chapter XII and is distinguished from the jurisdiction of the Magistrate in taking cognizance of criminal offence under Chapter XIV of the Code.
15. In the case of Lalita Kumari1, the question which arose for consideration on a reference was "whether a police officer is bound to register a first information report (FIR) upon receiving an information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short "Code") or the police officer has the power to conduct a preliminary inquiry in order to test the veracity of such information before registering the same in the context of the question before it"
16. The five judges Bench in Lalita Kumari1 taking note of the provisions contained in Section 154, 156 & 157 in Chapter XII of the Code of Criminal Procedure has held in para '120' to '120.8' as under:-
"120. In viwe of the aforesaid discussion, we hold:
120.1 The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2 If the information received does not disclose commission of a cognizable offence but indicates that the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith (not later than one week) disclosing reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering an offence if cognizable is disclosed. Action must be taken against an erring officer who do not register the FIR if information received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise by the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases the preliminary inquiry is to be conducted, will depend on the facts and circumstances of each case.The category of cases in which preliminary inquiry may be made are identified as under:-
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8 Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
17. Noticing the above directions issued by the Apex Court in the case of Lalita Kumari1 in the context of the question referred before it, it is evident that all the directions issued therein apply in the matter of receipt of information of commission of a cognizable offence by the police and the stage of "investigation" as defined in Section 2(h) of the Code to be made by the police in exercise of power conferred upon it under Chapter XII of the Code.
18. From a careful reading of the observations and directions issued by the Apex Court in Lalita Kumari1, it cannot be said that they relate in any manner or curtail the power of the Magistrate to make an "inquiry" as defined in Section 2(g) of the Code.
19. This view is further fortified from the observations of the Apex Court in paragraph '87' & '88' in Lalita Kumari1 itself, which reads as under:-
"87. The term "inquiry" as per Section 2(g) of the Code reads as under:
"2.(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court."
Hence, it is clear that inquiry under the Code is relatable to a judicial act and not to the steps taken by the Police which are either investigation after the stage of Section 154 of the Code or termed as "preliminary inquiry" and which are prior to the registration of FIR, even though, no entry in the General Diary/Station Diary/Daily Diary has been made.
88. Though there is reference to the term "preliminary inquiry" and "inquiry" under Sections 159 and Sections 202 and 340 of the Code, that is a judicial exercise undertaken by the Court and not by the Police and is not relevant for the purpose of the present reference."
20. Further, this Court may also deal with the relevant Section 156(3) contained in the same Chapter XII of the Code which empowers the Magistrate to order investigation on receipt of information of commission of criminal offence. Section 156(3) states that :-
"(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned."
21. The words "investigation as above mentioned", as contained in Section 156(3) contemplate investigation by the officer in charge of a police station.
22. The question of power of Magistrate to order investigation under Section 156(3) Cr.P.C. came up for consideration before the Apex Court in Mohammad Yousuf Vs. Smt. Afaq Jahan & another2. In the said matter, on an application filed by the appellant therein alleging commission of offences by the named accused persons, the Magistrate directed the police to register and investigate. The said order of the learned Magistrate was challenged by means of an application under Section 482 of the Code after the police had completed the investigation and submitted the charge sheet. The High Court proceeded to quash the charge sheet on the ground that the Magistrate had no power to order registration of the case.
23. It is observed therein that the "investigation" under the directions of the Magistrate under Section 156(3) Cr.P.C. falling within Chapter XII contemplates "investigation" by the police authorities. Whether the investigation is started by the police by the registration of FIR on the information received by it or under the order of the Magistrate under Section 156(3) Cr.P.C., it would be same kind of investigation which would end up only with the report contemplated under Section 173 of the Code. But when a Magistrate orders "investigation" under Chapter XII, he does so before he takes cognizance of the offence under Chapter XV of the Code.
24. It is observed that Chapter XV of the Code which confers power on the Magistrate to order "investigation" under Section 202 of the Code deals with the provisions relating to the steps which a Magistrate may adopt after taking cognizance of an offence on a complaint. Thus, the investigation under Section 202, which falls under Chapter XV, though refers to the power of a Magistrate " to direct an investigation by a police officer", but is different from the "investigation" contemplated in Section 156(3) falling within Chapter XII of the Code.
25. Further, it was observed in paragraph nos. '9' & '11' of the report {Mohd. Yousuf2} that it is not necessary for the Magistrate to order investigation under Chapter XII if he proposes to take cognizance of the offence, and once he takes cognizance he has to follow the procedure envisaged in Chapter XV of the Code. The position as clarified therein 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 need not to examine the complainant on oath because he was not taking cognizance of any offence therein.
26. Relevant paragraphs '9', '10' & '11' of the report are to be quoted herein:-
"9. 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".
10. 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.
11. 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."
27. Further the position of law as clarified by the Apex Court in R.R. Chari vs The State Of Uttar Pradesh3; Narayandas Bhagwandas Madhavdas vs State Of West Bengal4 and Gopal Das Sindhi & others Vs. State of Assam & another5 as also the decision of the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee6, approved in R.R. Chari3, has been cited with approval in paragraph Nos.'13', '14' of the report in Mohd. Yousuf2 to fortify the above view.
28. In Suresh Chand Jain Vs. State of M.P. & another7, the question before the Apex Court was whether the Magistrate was empowered to direct the police to register a case under Section 156(3) Cr.P.C. on a complaint of commission of offences under Section 3 of the Prized Chits and Money Circulation Scheme (Prohibition) Act and under Section 420 of the IPC.
29. The order of the Magistrate under Section 156(3) to register and investigate was upheld in the revision before the Sessions court and application under Section 482 Cr.P.C. before the High Court. The Apex Court while dismissing the appeal before it held in paragraphs Nos. '7', '8', '9' & '10' as under:-
"7. 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.
8. 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.
9.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 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.
10.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."
30. The decision of the Apex Court in Tula Ram Vs. Kishore Singh8 has also been cited with approval to state in Mohd. Yousuf2 that the Apex Court had reiterated the same legal position after referring to its earlier decisions.
31. The abovenoted observations of the Apex Court in Suresh Chand Jain7 were made after taking note of the observations of the Apex Court in its earlier decision in Gopal Das Sindhi5. Relevant extract of para '7' in Gopal Das Sindhi5 is quoted herein as under:-
7.............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 com-plaint 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............"
32. As to what would mean "by taking cognizance" has been clarified by the Apex Court in R.R. Chari3. While approving the decision of the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal6, paragraph Nos. '8' & '9' of the report in R.R. Chari3 read as under:-
"8. In Gopal Marwari v. Emperor (1), it was observed that the word 'cognizance'is used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. it is a different thing from the initiation of proceedings. It is the condition precedent to the initiation of proceedings by the Magistrate. The court noticed that the word 'cognizance'is a word of somewhat indefinite import and it is perhaps not always used in exactly the same sense.
"9. After referring to the observations in Emperor v. Sou- rindra Mohan Chuckerbutty (2), it was stated by Das Gupta J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (3) as follows :--
" 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 subse- quent 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 investiga- tion, he cannot be said to have taken cognizance of the offence."
In our opinion that is the correct approach to the question before the court."
33. The above view had been noted with approval by the Apex Court in Narayandas Bhagwandas Madhavdas4 by observing as under:-
"............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 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 purpose 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."
34. The above legal position laid down in Suresh Chand Jain7 was considered by the Full Bench of this Court in Ram Babu Gupta Vs. State of U.P. & others9 to answer the question referred to it "as to whether on an application filed under Section 156(3) Cr.P.C., the Magistrate need not to apply his mind and simply direct the police to register and investigate." The Full Bench has held that it is not possible to hold that when an application is moved before the Court only for exercise of powers under Section 156(3) Cr.P.C., it will remain an application only and would not be in the nature of the complaint. It was held that in any case, the Magistrate has to apply his mind on the allegations in the complaint to use his powers under Section 156(3) Cr.P.C. It was, thus, held that:-
"on receiving a complaint the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated.T he order of the Magistrate must indicate application of mind. If the Magistrate takes cognizance; he proceeds to follow the procedure provided in Chapter XV of Cr.P.C."
35. The questions referred to the Full Bench was answered, accordingly.
36. In India Carat Pvt. Ltd. vs. State of Karnataka10, considering the provisions as contained in Chapter XIV, Chapter XV and Chapter XVI of the Code, it was observed in paragraph '13' as under:-
"13. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him................... ....................Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2). On receiving the police report the Magistrate may take congnizance of the offence under Section 190(1)(c) and issue process straightaway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued."
37. The question regarding the power of Magistrate to order investigation under Section 156(3) Cr.P.C. further came up for consideration before the Apex Court in Sakiri Vasu vs. State of U.P. & Ors.11 wherein it is observed that Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII of the Code. In case where the Magistrate finds that the police has not done its duties of investigating the case at all or has not done it satisfactorily, he can issue direction to the police to do the investigation properly and can also monitor the same.
38. It was held therein that although Section 156(3) is very briefly worded but there is an implied power with the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal case and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same.
39. The above view taken in Sakiri Vasu11 is supported by the reasoning therein that even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., they are implied in the said provision as when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. Relevant paragraph Nos. '18', '19' & '20' are noted as under:-
"18. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.
19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd edn. page 267):-
If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission.
20. In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein."
40. The abovenoted views have been considered in a recent decision in Vinubhai Haribhai and Malaviya & Ors. vs. State of Gujarat & Anr.12 while dealing with the power of the Magistrate to order further investigation under Section 173(8) of the Code after the charge sheet is filed and cognizance is taken. The argument there was that the Magistrate would have no power to order further investigation into an offence after he takes cognizance of the offence on submission of the charge-sheet on the direction issued by it under Section 156(3) of the Code. Dealing with the said argument, it was observed that the power of a Magistrate under Section 156(3) of the Code is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place.
41. Relevant paragraph '23' of the report is quoted as under:-
"23. It is thus clear that the Magistrates power under Section 156(3) of the CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a proper investigation takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would Vinubhai Haribhai Malaviya vs The State Of Gujarat on 16 October, 2019 Indian Kanoon continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the investigation referred to in Section 156(1) of the CrPC would, as per the definition of investigation under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC."
42. The Apex Court in Vinubhai12 in paragraph '24' has then considered an earlier three Judge Bench decision in Devarapalli Lakshminarayan Reddy & Ors. vs. V. Narayana Reddy & Ors.13 wherein the question considered was that "in view of clause (a) of the first proviso to Section 202 (1) of the Code a Magistrate who receives a complaint, disclosing an offence exclusively triable the Court of Sessions, is debarred from sending the same to the police for investigation under Section 156(3) of the Code." In the facts of that case, in the complaint of commission of offences under Sections 307, 395, the Magistrate forwarded it to the police for investigation.
43. While dealing with the power of the Magistrate to order police investigation under Section 156(3) Cr.P.C and Section 202 (1) of the Code, it was held in Devapralli13 that there is distinction between a police investigation ordered under Section 156(3) on the one and directed under Section 202(1) Cr.P.C., as two operate in distinct spheres at different stages. Further it was observed that the first is excersiable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That means in the case of a complaint regarding commission of a cognizable offence, the power under Section 156(3) Cr.P.C. can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a) Cr.P.C. 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 precognizance stage and avail of Section 156(3).
44. Paragraph '17' of Devapralli13 has been noted in paragraph '24' of the report in Vinubhai12 and is extracted as under:-
"24. However, Shri Basant relied strongly on a Three Judge Bench judgment in Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors. (1976) 3 SCC 252. This judgment, while deciding whether the first proviso to Section 202 (1) of the CrPC was attracted on the facts of that case, held:
"17................It may be noted further that an order made under sub- section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 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 Section 202 to direct, within the limits circumscribed by that section an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding. Thus the object of an investigation under Section 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."
This judgment was then followed in Tula Ram & Ors. v. Kishore Singh (1977) 4 SCC 459 at paragraphs 11and 15."
45. It may further be relevant to quote paragraph '25' & '26' of the report in Vinubhai12 which read as under:-
"25. Whereas it is true that Section 156(3) remains unchanged even after the 1973 Code has been brought into force, yet the 1973 Code has one very important addition, namely, Section 173(8), which did not exist under the 1898 Code. As we have noticed earlier in this judgment, Section 2(h) of the 1973 Criminal Procedure Code defines investigation in the same terms as the earlier definition contained in Section 2(l) of the 1898 Criminal Procedure Code with this difference that investigation after the 1973 Code has come into force will now include all the proceedings under the CrPC for collection of evidence conducted by a police officer. All would clearly include proceedings under Vinubhai Haribhai Malaviya vs The State Of Gujarat on 16 October, 2019 Indian Kanoon - http://indiankanoon.org/doc/131202146/ 13 Section 173(8) as well. Thus, when Section 156(3) states that a Magistrate empowered under Section 190 may order such an investigation, such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of investigation contained in Section 2(h).
26. Section 2(h) is not noticed by the aforesaid judgment at all, resulting in the erroneous finding in law that the power under Section 156(3) can only be exercised at the pre-cognizance stage. The investigation spoken of in Section 156(3) would embrace the entire process, which begins with the collection of evidence and continues until charges are framed by the Court, at which stage the trial can be said to have begun. For these reasons, the statement of the law contained in paragraph 17 in Devarapalli Lakshminarayana Reddy (supra) cannot be relied upon." (emphasis added)
46. Having carefully gone through the above observations in Vinubhai12, it is evident that the power of a Magistrate to direct the police to conduct "investigation" under Section 156(3) flows in Chapter XII from the power conferred upon it under Section 190 Cr.P.C. under Chapter XIV of the Code to take cognizance of a criminal offence upon receiving an information of commission of offence(s), which is within his competence to inquire into. As noted in Vinubhai12, the investigation "spoken of in Section 156(3) would embrace the entire process, which begins with the collection of evidence and continues until charges are framed by the Court, at which stage the trial can be said to have begun." The statement of law as contained in paragraph '17' in Devarapalli13 noted above that "once the Magistrate takes cognizance of the offence under Section 190(1)(a) and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail Section 156(3) to issue direction to the police to conduct investigation for collection of evidence" has been held to be erroneous finding in law, ignoring the language of Section 2(h) of the Code.
47. It was further observed in Vinubhai12 that the provisions of Section 173(8) Cr.P.C. is an important addition in the 1973 Code which did not exist under the 1898 Code whereas Section 156(3) remains unchanged, to hold that "nothing in the provisions of Section 173(1) to 173(7) Cr.P.C. shall be deemed to preclude further investigation in respect to an offence, after a report under Sub-section (2) of Section 173 has been forwarded to the Magistrate." It was held therein that the Court of Magistrate enjoys the jurisdiction to direct further investigation under Section 173(8) into the offence even after taking cognizance on the charge-sheet/police report submitted under Section 173(2) Cr.P.C. Section 173(8) Cr.P.C. opens with Non-obstante clause and, therefore, the power therein cannot be said to have any inhibition.
48. In Vinay Tyagi vs. Irshad Ali @ Deepak & others14 having analysed the provisions of the Code and various judgments of the Apex Court, it is said that:-
40. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code:
40.1. The Magistrate has no power to direct reinvestigation or fresh investigation (de novo) in the case initiated on the basis of a police report.
40.2. A Magistrate has the power to direct further investigation after filing of a police report in terms of Section 173(6) of the Code.
40.3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singhs case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence.
40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. (emphasis added)............ It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own.
40.6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue further investigation and file supplementary chargesheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case."
49. In Ramdev Food Products Private Ltd. vs. State of Gujarat15, the dispute was that on a complaint filed by the appellant therein against 14 accused for alleged commission of offences under Sections 409, 420, 406, 467, 468, 471 read with Sections 120-B and 114 of the Penal Code, 1860, the Magistrate passed an order directing the police to give a report to the Court under Section 202(1) of the Code instead of directing investigation under Section 156(3) of the Code, as sought by the appellant. The said order was not interfered by the High Court. Challenging the order of the Magistrate and the High Court, it was argued that the Magistrate has erred in declining to order investigation under Section 156(3) Cr.P.C. which was necessary in view of the allegation of forgery of documents and stamp paper by the accused to create backdated partnership deeds by forging signatures of a dead person. Such documents being in custody of the accused could not be otherwise produced except on arrest in the course of investigation and in accordance with Section 27 of the Evidence Act. Option of proceeding under Section 202, as against Section 156(3), has to be exercised only when evidence has already been collected and what remained to be decided was whether there was sufficient ground to proceed. Mere fact that the appellant first approached the police and the police did not register first information report could not be taken against it nor the dispute being of civil nature was a bar to criminal proceedings, if a case was made out. It was further argued that the direction under Section 156(3) for investigation was all the more necessary as under Section 202, the police officer had no power of arrest. In such a situation calling for report under Section 202 will not serve the purpose of finding out the truth. The arrest was integral part of the investigation.
50. In the light of above submissions, one of the questions framed for consideration is as under:-
"6.1 (I) 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?"
51. To answer the said question, in paragraph '13' of the report, the Court has proceeded to deal with the following question:-
"13. We may first deal with the question as to whether the Magistrate ought to have proceeded under Section 156(3) or was justified in proceeding under Section 202(1) and what are the parameters for exercise of power under the two provisions."
52. The Apex Court after considering the provisions in Chapter XII, Chapter XIV and Chapter XV has considered the law laid down by the Apex Court in Lalita Kumari1 and held in paragraph 19 that:-
"19. Thus, this Court has laid down that while prompt registration of FIR is mandatory, checks and balances on power of police are equally important. Power of arrest or of investigation is not mechanical. It requires application of mind in the manner provided. Existence of power and its exercise are different. Delicate balance had to be maintained between the interest of society and liberty of an individual. Commercial offences have been put in the category of cases where FIR may not be warranted without enquiry."
53. It was further observed in paragraph '20' while relying upon the decision of the Apex Court in Anil Kumar vs. M.K. Aiyappa16 that directions by the Magistrate for investigation under Section 156(3) cannot be given mechanically.
54. It was then held in paragraph '22' to '22.3' to hold as under:-
"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 instance 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 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 (supra) 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."
55. Thus, in the whole scheme of the Code of Criminal Procedure as clarified in the pronouncements of the Apex Court ranging from 1951 to 2019, it is evident that if a person has a grievance that his FIR has not been registered by the police, his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If his grievances still persist, then he can approach a Magistrate under Section 156(3) Cr.P.C. He has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. On receipt of the complaint, however, several courses are open to the Magistrate:-
(i) He may take cognizance of the offence at once and proceed to record statements of the complaints and the witnesses present under Section 200, and proceed under Chapter XV and Chapter XVI, accordingly.
(ii) If, he thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other process as he may thinks fit, for the purpose of deciding whether or nor there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground of proceeding; or dismiss the complaint if there is no sufficient ground for proceeding.
(iii) Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order investigation to be made by the police under Section 156(3).
(iv) On receiving the police report, the Magistrate may take cognizance of the offence under Section 190(1)(b) and issue process straightway to the accused. The Magistrate may exercise his power in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not.
56. Thus, the above discussion pertaining to the power of the Magistrate under Section 156(3) in Chapter XII read with Section 190 in Chapter XIV of the Code leaves no room for doubt that there is nothing in the Code of the Criminal Procedure, which curtails or puts any embargo on the power of the Magistrate to make an "inquiry" as defined under Section 2(g) of the Code or to order for "investigation" defined under Section 2(h) of the Code, in dealing with the application under Section 156(3) Cr.P.C. i.e. in exercise of the power conferred upon it under Chapter XII or Chapter XIV of the Code to satisfy itself about the veracity of the allegations of commission of a criminal offence made therein.
57. In its discretionary power, it is open for the Magistrate to direct the police to register a criminal case under Section 154 Cr.P.C. and conduct investigation. At the same time, it is open for the Magistrate, where the facts of the case and the ends of justice so demand, to take cognizance of the matter by treating it as a complaint and proceed for the "inquiry" under Section 200 and 202 Cr.P.C.
58. It cannot be said nor it could be demonstrated that in each case, without application of its independent mind, the Magistrate shall issue simply direction "to register and investigate" i.e. to lodge a first information report on an application filed under Section 156(3) Cr.P.C. The power to conduct a preliminary inquiry into the report of commission of criminal offence(s), conferred on the Magistrate within the scheme of the Code of Criminal Procedure has not been curtailed by any of the observations made by the Apex Court in the case of Lalita Kumari1.
59. However, it is pertinent to note that while exercising its discretionary power under Section 156(3) Cr.P.C., the Magistrate like any other Court of discretionary jurisdiction is to act fairly and consciously and ensure that the discretion conferred upon it is exercised within the limits of judicial discretion. The entire emphasis is to act in an unbiased and just manner, strictly in accordance with law, to find out the truth of the case which shall come before it.
60. It is a Magistrate who is the competent authority to take cognizance of an offence and it is his duty to decide whether on the basis of the record and documents produced, an offence is made out or not and if made out, what course of law should be adopted. Emphasis is laid to the statement in Vinubhai12, wherein it is stated that "it is the judicial conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to an appropriate conclusion in consonance with the principles of law." It would not be out of place to note para '17' of the report in Vinubhai12 at this stage:-
"17. It is clear that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the CrPC that must needs inform the interpretation of all the provisions of the CrPC, so as to ensure that Article 21 is followed both in letter and in spirit." (emphasis added)
61. Applying the above legal principles, in the facts of the present case, this Court finds that the application under Section 156(3) Cr.P.C. was filed after a period of two months of the alleged incident and it was noted by the Court concerned that nothing could be traced in favour of the prosecution by medical examination etc. In the circumstances before it, the Court deemed it fair, just and proper to search the evidence(s) which is/are well known to the applicant and in his possession so as to find out the truth of the allegations in the application.
62. Having perused the contents of the application and the order of the Court below, it cannot be said that the Court concerned has committed illegally in exercise of its discretionary jurisdiction under Section 156(3) Cr.P.C. or it has exceeded in its jurisdiction in any manner or has exercised jurisdiction not vested in it in law. It cannot be said also that any material injustice has been caused to the applicant on account of the decision of the Court below to treat the application under Section 156(3) Cr.P.C. as a complaint for the purpose of deciding whether or not there is sufficient ground for proceeding, rather than directing the police to register an FIR and investigate under Section 154 of the Code.
63. The judgment of this Court dated 07.12.2019 in the Application u/s 482 No. 44699 of 2019 (Maneeta vs. State of UP), relied upon by the learned counsel for the revisionist is based on the facts of that case and is of no benefit to the revisionist herein.
64. No illegality much less procedural irregularity can be found in the order passed by the Additional Sessions Judge, Court No.1, Kushinagar, which would warrant interference by this Court in exercise of its revisional jurisdiction.
65. The revision is, thus, found devoid of merits and hence dismissed.
Order Date :- 9.12.2019 P Kesari