Allahabad High Court
Kailash Nath Dwivedi vs State Of U.P. And 4 Others on 6 July, 2021
Equivalent citations: AIRONLINE 2021 ALL 1484
Author: Y.K. Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 84 Case :- APPLICATION U/S 482 No. - 6727 of 2021 Applicant :- Kailash Nath Dwivedi Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Jitendra Prasad Mishra Counsel for Opposite Party :- G.A. Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Jitendra Prasad Mishra, learned counsel for the applicant and Sri Pankaj Saxena, learned A.G.A.-I and Ms. Akanksha Gaur, learned State Law Officer for the State-opposite party.
2. The present application under Section 482 of the Code of Criminal Procedure, 19731 has been filed seeking to quash the order dated 16.01.2021 passed by Sessions Judge, Banda in Criminal Revision No.55 of 2020 (Kailash Nath Dwivedi v State of U.P. and others) as well as order dated 25.09.2020 passed by Chief Judicial Magistrate, Banda, in Misc. Case No.406 of 2020 (Kailash Nath Dwivedi v Rudra Narayan Dwivedi and others) under Section 156(3) of the Code, Police Station Tindwari, District Banda.
3. The facts of the case, as disclosed from the pleadings, are that an application dated 04.08.2020, filed by the applicant under Section 156(3) of the Code (registered as Misc. Case No.406 of 2020) before the Court of the Chief Judicial Magistrate, Banda, has been treated as a complaint and in terms of an order dated 25.09.2020, it has been directed to be registered as a complaint case fixing a date for recording of the statement of the complainant under Section 200 of the Code.
4. A revision against the aforesaid order was preferred by the applicant being Criminal Revision No.55 of 2020 (Kailash Nath Dwivedi v State of U.P. and others) primarily seeking to contend that the application filed under Section 156(3) of the Code discloses a cognizable offence and, accordingly, the court was required to direct the police to investigate and submit a report under Section 173(2) of the Code.
5. The revisional court, upon considering the facts and circumstances of the case and the legal position in this regard, has held that it is open for the Magistrate while exercising discretionary power under Section 156(3) of the Code to issue directions to register the case under Section 154 of the Code and conduct investigation or to take cognizance of the matter by treating it as a complaint and proceed for inquiry as per procedure under Sections 200 and 202 of the Code.
6. Taking notice of the fact that the civil and criminal litigation is pending between the parties and that the applicant had full knowledge of the facts of the incident regarding which, he could lead evidence, the revisional court has held that there is no error in the view taken by the learned Magistrate that no case was made out for investigation by the police and in view thereof, has rejected the revision.
7. The principal ground sought to be raised by learned counsel for the applicant to assail the orders passed by the courts below is that the case of the applicant rests on the allegation of manipulation of documents and forgery which can be proved only after investigation by the police and submission of a report. Learned counsel for the applicant has sought to draw attention of the Court to certain documentary evidence appended as annexures alongwith the affidavit to support his contention with regard to manipulation of documents.
8. Per contra, learned counsel appearing for the State-opposite party have submitted that upon receiving the complaint, the Magistrate while exercising its discretionary power, may direct the police to register a criminal case under Section 154 of the Code and conduct investigation or where the facts of the case are such, the Magistrate may take cognizance of the matter by treating it as a complaint and proceed for the inquiry under Sections 200 and 202 of the Code. It is contended that there is nothing in the Code of Criminal Procedure which curtails or puts any embargo on the power of the Magistrate to make an inquiry in dealing with the application under Section 156(3) of the Code in order to satisfy itself about the veracity of the allegations with regard to commission of a cognizable offence. It is also pointed out that looking into the facts of the case and in particular, the civil and criminal litigation pending between the parties and also that the applicant is in possession of the documents, which form the basis of the allegations with regard to forgery and manipulation; the view taken by the Magistrate that the applicant can lead evidence to prove his allegations, which has been affirmed by the revisional court, do not call for any interference.
9. The principal issue involved in the present case is with regard to the scope and parameters for exercise of the discretionary powers of the Magistrate in dealing with a complaint containing allegations regarding commission of a cognizable offence.
10. The provisions relating to information to police and their power to investigate are contained under Chapter XII of the Code and in terms of the scheme contained therein it is provided that upon an information relating to commission of a cognizable offence being given orally or in writing, it is required to be registered as a case and investigation is to be proceeded with. In a situation where the officer in charge of the police station refuses to record the information, the informant may approach the Superintendent of Police giving substance of the information in writing or by post and in the event F.I.R. is not being lodged or the investigation is not being proceeded with, it is open to the aggrieved person to file an application under Section 156(3) of the Code before the Magistrate having jurisdiction, who can then direct the police to register the F.I.R. and conduct investigation.
11. The Magistrate upon receiving a complaint or an application under Section 156(3) of the Code, with regard to facts disclosing commission of an offence, "may take cognizance", which in the context of Section 190 of the Code, cannot be read as "must take cognizance". The use of the expression "may" under Section 190 of the Code gives a discretion to the Magistrate to either take cognizance or to forward the complaint to the police and order investigation under Section 156(3) of the Code.
12. The question as to whether it is mandatory for the Magistrate to order registration of a criminal case and direct the officer in charge of the concerned police station to hold a proper investigation, is no longer res integra and it has been consistently held that where a Magistrate receives an application under Section 156(3) of the Code, he is not bound to take immediate cognizance even if the alleged facts disclose commission of an offence.
13. In the case of Gopal Das Sindhi and others v State of Assam and another2, while considering the provisions of Section 190 of the Code it was held that once a complaint is filed a Magistrate is not bound to take cognizance as the word "may" cannot be construed so as to be "must" and it would be within the discretion of the Magistrate to send the complaint to the police for investigation under Section 156(3) of the Code or to exercise his discretion and take cognizance and thereafter proceed. It was stated thus:-
"7. ...We cannot read the provisions of S. 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under S. 156 (3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code..."
14. While considering the powers of the Magistrate under Sections 156(3) and 200 of the Code in Suresh Chand Jain v State of M.P. and another3 it was held that the Magistrate, after taking cognizance of the offence, could order investigation under Section 156(3) of the Code or take cognizance of the offence and follow the procedure under Chapter XV of the Code. The relevant observations made in the judgment are as follows:-
"7. In our opinion, the aforesaid direction given by the learned Single Judge of the Punjab and Haryana High Court in Suresh Kumar v. State of Haryana (1996) 3 Rec Cri R 137 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 officer's 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."
15. A similar view was taken in Mohd. Yousuf v Afaq Jahan (Smt.) and another4 wherein it was held that upon receiving a complaint disclosing a cognizable offence, the Magistrate can order investigation under Section 156(3) of the Code or if he proposes to take cognizance of the offence, he need not order such investigation and may follow the procedure under Chapter XV of of the Code. The observations made in the judgment in this regard are as follows:-
"6. 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.
7. 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.
8. 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.
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 complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."
16. In Fakhruddin Ahmad v State of Uttaranchal and another5, it was reiterated that on receipt of complaint, the Magistrate has more than one course open to him to determine the procedure and the manner to be adopted for taking cognizance of the offence. One of the courses open to the Magistrate would be that instead of exercising his discretion and taking cognizance of the offence and following the procedure under Section 200 or Section 202 of the Code, he could order an investigation to be made by the police under Section 156(3). The observations made in the judgment in this regard are as follows:-
"9. Before examining the rival contentions, we may briefly refer to some of the relevant provisions in the Code. Chapter XIV of the Code, containing Sections 190 to 199 deals with the statutory conditions requisite for initiation of criminal proceedings and as to the powers of cognizance of a Magistrate. Sub-section (1) of Section 190 of the Code empowers a Magistrate to take cognizance of an offence in the manner laid therein. It provides that a Magistrate may take cognizance of an offence either (a) upon receiving a complaint of facts which constitute such offence; or (b) upon a police report of such facts; or (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed.
10. Chapter XV containing Sections 200 to 203 deals with "Complaints to Magistrates" and lays down the procedure which is required to be followed by the Magistrate taking cognizance of an offence on complaint. Similarly, Chapter XVI deals with "Commencement of Proceedings before Magistrates". Since admittedly, in the present case, the Magistrate has taken cognizance of the complaint in terms of Section 190 of the Code, we shall confine our discussion only to the said provision. We may, however, note that on receipt of a complaint, the Magistrate has more than one course open to him to determine the procedure and the manner to be adopted for taking cognizance of the offence.
11. One of the courses open to the Magistrate is that instead of exercising his discretion and taking cognizance of a cognizable offence and following the procedure laid down under Section 200 or Section 202 of the Code, he may order an investigation to be made by the police under Section 156(3) of the Code, which the learned Magistrate did in the instant case. When such an order is made, the police is obliged to investigate the case and submit a report under Section 173(2) of the Code. On receiving the police report, if the Magistrate is satisfied that on the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence, he may take cognizance of the offence under Section 190(1)(b) of the Code and issue process straightaway to the accused. However, Section 190(1)(b) of the Code does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation makes out a case against the accused. Undoubtedly, the Magistrate can ignore the conclusion(s) arrived at by the investigating officer.
12. Thus, it is trite that the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether an offence has been made out or not. This is because the purpose of the police report under Section 173(2) of the Code, which will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom is primarily to enable the Magistrate to satisfy himself whether on the basis of the report and the material referred therein, a case for cognizance is made out or not."
17. The question as whether a Magistrate while exercising power under Section 156(3) of the Code is required to apply his mind to the allegations in the complaint before proceeding to take cognizance or directing the police to register and investigate the same, was considered by a Full Bench of this Court in Ram Babu Gupta and others v State of U.P. and others6, and the reference was answered by holding 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, or if the Magistrate takes cognizance, he would have to follow the procedure provided in Chapter XV of the Code. It was further held that in both the cases the Magistrate's order must indicate application of mind. The relevant extract from the judgment is as follows:-
"17. In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby 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. The Magistrate's order must indicate application of mind. If the Magistrate takes cognizance, he proceeds to follow the procedure provided in Chapter XV of Cr.P.C. The first question stands answered thus."
18. The question whether the Magistrate is bound to pass an order on each and every application under Section 156(3) of the Code containing allegations of commission of a cognizable offence for registration of the F.I.R. and its investigation by the police, even if those allegations, prima facie, do not appear to be genuine and do not appeal to reason, or he can exercise discretion in the matter and can pass an order for treating the same as "complaint" or to reject it in suitable cases, was referred for consideration before a Division Bench in Sukhwasi v State of U.P7, and the Division Bench answered the reference by holding that there is no legal mandate under which the Magistrate is bound to allow an application under Section 156(3) of the Code and he has a discretion to treat an application under Section 156(3) of the Code as a complaint. The observations made by the Division Bench are as follows:-
"23. The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under Section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under Section 156(3) Cr.P.C. as a complaint."
19. The requirement of application of mind by the Magistrate while exercising powers under Section 156(3) of the Code to order investigation on a private complaint was emphasized in Anil Kumar v M.K. Aiyappa and another8, it was stated thus:-
"11. The scope of Section 156(3) Cr.P.C. came up for consideration before this Court in several cases. This Court in Maksud Saiyed case (2008) 5 SCC 668 examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted..."
20. The power conferred upon the Magistrate to order investigation under Section 156(3) of the Code again came up for consideration before a Full Bench of this Court in Jagannath Verma and others v State of U.P. and another9, and taking note of the provisions contained under Section 190 of the Code which uses the expression "the Magistrate may take cognizance" and not "the Magistrate must take cognizance", it was held that under Section 190 a Magistrate is not bound, once a complaint is filed, to take cognizance even though the complaint may disclose a cognizable offence and he may well be justified in sending the complaint under Section 156(3) to the police for investigation. It was stated thus:-
"14. Section 190 empowers a Magistrate to take cognizance of any offence: (i) upon receiving a complaint of facts which constitute such offence; (ii) upon a police report of such facts; and (iii) upon information received from any person other than a police officer, or upon his own knowledge, that such an offence has been committed. Under Section 190, a Magistrate is not bound, once a complaint is filed, to take cognizance if the facts stated in the complaint disclose the commission of any offences. Section 190 uses the expression that 'the Magistrate may take cognizance' and not that 'the Magistrate must take cognizance'. Though, a complaint may disclose a cognizable offence, a Magistrate may well be justified in sending the complaint under Section 156 (3) to the police for investigation. In Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986, the Supreme Court held that 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. The Magistrate before taking cognizance may well refer the complaint under Section 156(3) to the police for investigation. Cognizance, it is well-settled under CrPC, is where the Magistrate on receiving a complaint applies his mind for the purposes of proceeding under Section 200 and the succeeding Sections in Chapter XV of the Code. If, instead of proceeding under Chapter XV, the Magistrate orders an investigation by the police under Section 156(3), he is not said to have taken cognizance of an offence. In Mohd Yousuf v. Afaq Jahan, (2006) 1 SCC 627, this position was elaborated in the following observations of the Supreme Court:
''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.''
15. When a written complaint disclosing a cognizable offence is made before a Magistrate, he may take cognizance under Section 190(1)(a) and proceed in accordance with the provisions of Chapter XV. The other option available to the Magistrate is to transmit the complaint to the police station concerned under Section 156(3), before taking cognizance, for investigation. Once a direction is issued by the Magistrate under Section 156(3), the police is required to investigate under sub-section (1) of that Section and to submit a report under Section 173(2) on the complaint after investigation, upon which the Magistrate may take cognizance under Section 190(1)(b). (Madhu Bala v. Suresh Kumar, (1997) 8 SCC 476)."
21. The judicial discretion vested upon the Magistrate to take cognizance directly under Section 200 of the Code, or to direct registration of a case and order the police authorities to conduct an investigation in terms of Section 156(3) of the Code, was reiterated in Samaj Parivartan Samudaya and others v State of Karnataka and others10, and it was held as follows:-
"26. Section 154 of the CrPC places an obligation upon the authorities to register the FIR of the information received, relating to commission of a cognizable offence, whether such information is received orally or in writing by the officer in- charge of a police station. A police officer is authorised to investigate such cases without order of a Magistrate, though, in terms of Section 156(3) Cr.P.C. the Magistrate empowered under Section 190 may direct the registration of a case and order the police authorities to conduct investigation, in accordance with the provisions of the CrPC. Such an order of the Magistrate under Section 156(3) CrPC is in the nature of a pre-emptory reminder or intimation to police, to exercise their plenary power of investigation under that Section. This would result in a police report under Section 173, whereafter the Magistrate may or may not take cognizance of the offence and proceed under Chapter XVI CrPC. The Magistrate has judicial discretion, upon receipt of a complaint to take cognizance directly under Section 200 CrPC, or to adopt the above procedure. (Ref. Gopal Das Sindhi & Ors. v. State of Assam, AIR 1961 SC 986]; Mohd. Yusuf v. Smt. Afaq Jahan, (2006) 1 SCC 627 and Mona Panwar v. High Court of Judicature of Allahabad, (2011) 3 SCC 496.
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32. A person who complains of commission of a cognizable offence has been provided with two options under Indian Criminal jurisprudence. Firstly, he can lodge the police report which would be proceeded upon as aforenoticed and secondly, he could file a complaint under Section 200 CrPC, whereupon the Magistrate shall follow the procedure provided under Sections 200 to 203 or 204 to 210 under Chapter XV and XVI CrPC. In the former case, it is upon the police report that the entire investigation is conducted by the investigating agency and the onus to establish commission of the alleged offence beyond reasonable doubt is entirely on the prosecution. In a complaint case, the complainant is burdened with the onus of establishing the offence and he has to lead evidence before the Court to establish the guilt of the accused. The rule of establishing the charges beyond reasonable doubt is applicable to a complaint case as well.
33. The important feature that we must notice for the purpose of the present case is that even on a complaint case, in terms of Section 202, the Magistrate can refer the complaint to investigation by the police and call for the report first, deferring the hearing of the complaint till then."
22. The powers of the Magistrate, upon receiving complaint with regard to a cognizable offence again came up for consideration in the case of Madhao and another v State of Maharashtra and another11, and amongst the courses open, it was held that the Magistrate concerned can on the one hand invoke power under Section 156(3) of the Code, direct investigation in such matter and on the other hand he may take cognizance and embark upon the procedure embodied in Chapter XV. The relevant extracts from the judgment are as follows:-
"15. Chapter XIV of the Code speaks about conditions requisite for initiation of proceedings. Section 190 deals with cognizance of offences by Magistrates. In terms of sub-section (1) subject to the provisions of the said Chapter, any Magistrate of first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
16. Sub-section (3) of Section 156 of the Code enables any Magistrate empowered under Section 190 to order such an investigation in terms of sub-section (1) of that section.
17. In CREF Finance Ltd. vs. Shree Shanthi Homes (P) Ltd., (2005) 7 SCC 467, while considering the power of a Magistrate taking cognizance of the offence, this Court held: (SCC p.471, para 10) "10. ...Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure."
It is clear 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.
18. When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3)."
23. The power to direct investigation under Section 156(3) of the Code or to call for a report under Section 202, by the Magistrate in exercise of its discretionary powers has been considered in Ram Dev Food Products Pvt. Ltd. v State of Gujarat12, and it has been held that the power of the Magistrate in this regard is discretionary and is to be guided by interest of justice from case to case. It was stated thus:-
"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.
14. The two provisions are in two different chapters of the Code, though common expression 'investigation' is used in both the provisions. The normal rule is to understand the same expression in two provisions of an enactment in same sense unless the context otherwise requires. The heading of Chapter XII is "Information to the Police and their Powers to Investigate" and that of Chapter XV is "Complaints to Magistrate". Heading of Chapter XIV is "Conditions Requisite for Initiation of Proceedings". The two provisions i.e. Sections 156 and 202 in Chapters XII and XV respectively are as follows:
"156. Police officer's power to investigate cognizable case.--(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.
202. Postponement of issue of process.--(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him Under Section 192, may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made--
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath Under Section 200.
(2) In an inquiry Under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation Under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
15. Cognizance is taken by a Magistrate under Section 190 (in Chapter XIV) either on "receiving a complaint", on "a police report" or "information received" from any person other than a police officer or upon his own knowledge.
16. Chapter XV deals exclusively with complaints to Magistrates. Reference to Sections, 202, in the said Chapter, shows that it provides for "postponement of issue of process" which is mandatory if accused resides beyond the Magistrate's jurisdiction (with which situation this case does not concern) and discretionary in other cases in which event an enquiry can be conducted by the Magistrate or investigation can be directed to be made by a police officer or such other person as may be thought fit "for the purpose of deciding whether or not there is sufficient ground for proceeding". We are skipping the proviso as it does not concern the question under discussion. Clause (3) provides that if investigation is by a person other than a police officer, he shall have all the powers of an officer in charge of a police station except the power to arrest."
24. Referring to the guidelines laid down in the earlier judgment in the case of Lalita Kumari v Government of U.P. and others13, with regard to prompt registration of the F.I.R. and the requirement of application of mind by the Magistrate for directing investigation under Section 156(3), the Supreme Court in the case of Ram Dev Food Products (supra) further held as follows:-
"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.
20. It has been held, for the same reasons, that direction by the Magistrate for investigation under Section 156(3) cannot be given mechanically. In Anil Kumar vs. M.K. Aiyappa, (2013) 10 SCC 705, it was observed: (SCC p.711, para 11) "11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case (2008) 5 SCC 668 examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
The above observations apply to category of cases mentioned in para 120.6 in Lalita Kumari (supra).
21. On the other hand, power under Section 202 is of different nature. Report sought under the said provision has limited purpose of deciding "whether or not there is sufficient ground for proceeding". If this be the object, the procedure under Section 157 or Section 173 is not intended to be followed. Section 157 requires sending of report by the police that the police officer suspected commission of offence from information received by the police and thereafter the police is required to proceed to the spot, investigate the facts and take measures for discovery and arrest. Thereafter, the police has to record statements and report on which the Magistrate may proceed under Section 190. This procedure is applicable when the police receives information of a cognizable offence, registers a case and forms the requisite opinion and not every case registered by the police.
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 the issuance 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."
25. The affirmative obligation cast upon the police to register F.I.R. and to investigate the offence as part of a fundamental and inalienable duty of the State has also been emphasized in the case of Lalita Kumari (supra), and it was stated thus:-
"53. Investigation of offences and prosecution of offenders are the duties of the State. For "cognizable offences", a duty has been cast upon the police to register FIR and to conduct investigation except as otherwise permitted specifically under Section 157 of the Code. If a discretion, option or latitude is allowed to the police in the matter of registration of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality."
26. It may be apposite to refer to the case of Gulab Chand Upadhyaya v State of U.P. and others14, wherein considering the question whether the Magistrate was justified in directing that an application under Section 156(3) of the Code seeking for registration of an F.I.R. and investigation, be registered as complaint, certain guidelines were formulated for exercise of discretion by the Magistrate in regard to such cases. The relevant observations made in the judgment are as follows:-
"22. The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example (1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or (2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or (3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trail (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of cases property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.
23. But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary cases to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202(1) Cr.P.C. order investigation, even thought of a limited nature..."
27. It is therefore seen that upon an application received under Section 156(3) disclosing a cognizable offence, the Magistrate may direct the police to register the F.I.R. and investigate or alternatively the Magistrate can take cognizance of the complaint, register it as complaint case and follow the procedure under Chapter XV of the Code. While exercising this discretion and taking either of the courses, it would be incumbent upon the Magistrate to apply judicial mind and the exercise of discretion would have to be guided by interest of justice, depending upon the facts of the case. In a situation where the investigation required is of a nature which can only be made by a police officer upon whom the statute has conferred the powers of investigation, the Magistrate may be well within his discretion to direct the registration of an F.I.R. and its investigation by the police officer. In a case where the complainant is in possession of the complete details of the case and also the material evidence, such that 'investigation' by the police may not be required, the Magistrate may follow the procedure of a complaint case.
28. It may be added that while exercising the discretion in regard to such matters the Magistrate would be required to keep in view that under the scheme of the Code an affirmative obligation is cast on the police to investigate the cases involving cognizable offences and where the complaint discloses a cognizable offence requiring investigation by the police, the burden should not routinely be shifted on the complainant. This is more for the reason that there exists a vital societal interest in the investigation and prosecution of crime and the State has a fundamental and inalienable duty in this regard.
29. In the facts of the present case, the courts below have taken notice of the fact that civil and criminal litigation was pending between the parties and the applicant had full knowledge of the facts and also the material evidence in respect of the case and accordingly the order passed by the Magistrate while exercising discretionary powers under Section 156(3) of the Code and directing the registration of the case as complaint case and also its affirmation by the revisional court cannot be said to suffer from any material illegality or procedural irregularity so as to warrant interference.
30. Having regard to the aforesaid, this Court is not inclined to exercise its inherent jurisdiction under Section 482 of the Code.
31. The present application stands accordingly dismissed.
Order Date :- 6.7.2021 Shalini/Shahroz (Dr. Y.K. Srivastava,J.)