Delhi District Court
Rajender Paswan vs Anil Kumar Gupta on 14 October, 2009
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IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT
Criminal Revision No. 256/2009
Rajender Paswan
R/o Plot No. T891, Ward No.8,
Near Auliya Masjid, Mehrauli,
New Delhi - 110030 Petitioner
Vs.
Anil Kumar Gupta
R/o Flat No. 110
Shreedhar Apartment RWA
Mehrauli
New Delhi - 110030 Respondent
Date of Institution : 07/09/09
Date when of Arguments
were heard : 09/10/09
Date of order : 14/10/09
ORDER
By way of the present revision petition filed under S. 397 CrPC, the revisionist seeks setting aside of the order dated 2 30/5/2009, passed by the Ld. Trial court and also direct the S.H.O. Police Station, Mahrauli to register the FIR and commence investigation under S. 156 (3) CrPC in pursuance of the complaint made by the revisionist against the accused person. BRIEF FACTS The brief facts of the case, relevant for deciding the present petition are as under:
The petitioner filed the complaint under Section 156 (3) CrPC read with Section 200 CrPC alleging that the offences of cheating and breach of trust have been committed by the accused.
The petitioner wanted the learned Metropolitan Magistrate to issue directions under Section 156 (3) CrPC for investigation by police into the allegations made in the complaint. Learned Metropolitan Magistrate declined to issue such directions and instead passed impugned order dated 20/05/09 taking cognizance of the complaint and postponed the case for recording pre-summoning evidence.3
ARGUMENTS The learned counsel for the revisionist contended that the order passed by the Ld. MM is de hors the law laid down by the Hon'ble Apex Court and also since the complaint filed by the petitioner clearly discloses the commission of a cognizable offence thus, the magistrate had no jurisdiction to refuse passing of an order for registration and investigation of the FIR. The learned counsel also urged that by not allowing the application of the revisionist, the Ld. Trial court has rendered the provision of S. 156 (3) otiose. It was also averred that by disallowing the application of the revisionist, the trial court unnecessarily saddled itself with the burden of performing the function of the police. It was also contended that the police is under a statutory obligation to register the FIR and in case the police refuses to perform the same, then the magistrate is well justified in sending the complaint under S. 156 (3) CrPC to the police for investigation and according to law laid down by the Apex Court, the examination of complainant under S. 200 is deprecated since the same wastes the time of the Magistrate, when investigation is the province of the police 4 and not the court thus, the Ld. MM erred in passing the said order. In support of his contention the learned counsel relied on following judgments mainly:
1. Parvez Parwaz vs. State of U.P. & Ors. - 2009 CriLJ 614 (All);
2. Smt. Masuman, etc. etc vs. State of U.P. & Ors. - 2001 (1) CRJ 129 (All),
3. Santosh Kumari versus State of UP 2007 CRI LJ 3869 (All)
4. The decision of my colleague Sh. Rajnish Bhatnagar, in M/s.
K.S. Forge Metal Pvt. Ltd. Vs. State decided on 13/2/2008 in criminal revision no. 13/2007.
On the contrary Ld. Addl. Public Prosecutor for the State submitted that the present revision petition needs no indulgence by this court and same is an abuse of the process of the court. It was contended that nowhere in the CrPC it is mentioned that it is imperative for the Magistrate to direct investigation, whenever a complaint disclosing a cognizable offence comes before him rather it 5 is his discretion to either direct investigation or proceed under Chapter XV of CrPC. Be that as it may he further submitted that the order taking cognizance is an interlocutory order and same is not amenable to revisional jurisdiction.
FINDINGS I have heard Ld. Counsel for the revisionist and the Addl. Public Prosecutor for the State and perused the record and carefully considered the decisions relied upon by the counsel for the revisionist.
As regards the maintainability of the present petition, In Gautam R. Patel & Ors Vs. Government of NCT of Delhi & Ors 2007 (1) JCC 448, the petition for quashing of FIR registered against the petitioner by the direction of the Learned Metropolitan Magistrate u/s 156 (3) Cr. PC was filed and our Hon'ble High court observed that the appropriate remedy for the petitioner was to file a revision under Sec. 397 Cr. PC against the order of the Magistrate directing the registration of FIR.
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In Sabir Vs. Jaswant and others 2002 Cri. L.J 4563 it was observed that the order passed by the Magistrate directing investigation of matter by police u/s 156 (3) Cr. PC is revisable.
In Ajay Malviya Vs. State of UP and others 2001 Cri. L.J 313 (DB), it was held that an order u/s 156 (3) Cr. PC is a judicial order and is amenable to revisional jurisdiction.
The scheme of CrPC is such that an Officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. From the plain reading of Section 154 (1) CrPC, It is, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. This is as regards the duty of the Police. But when the Police Officers do not register a case disclosing commission of a cognizable offence and 7 complaint in this regard is made to the Magistrate, then under Section 156 (3) CrPC, the Magistrate empowered under S. 190 CrPC 'may' order investigation. The expression used herein is 'may' and not 'shall' or 'must'. The expression 'shall' or 'must' implies that the provision is mandatory and expression 'may' implies that the provision is directory. The expression 'may' gives discretion to the Magistrate. In this regard, the following decision of the Apex Court in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, A.I.R. 1976 SC 1672 is apposite to be referred to, the relevant para is as under:
"13. It is well settled that 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. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with "must take cognizance." The word "may" gives a discretion to the Magistrate 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, 8 himself.
14. This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190 (1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1) (a). If, instead of proceeding under Chapter XV, he, has in th judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156 (3), he cannot be said to have taken cognizance of any offence.
15. This position of law has been explained in several cases by this Court, the latest being Nirmaljit Singh Hoon v. State of West Bengal, 9 (1973) 3 SCC 753.
16. The position under the Code of 1898 with regard to the powers of a Magistrate having jurisdiction to send a complaint disclosing a cognizable offence - whether or not triable exclusively by the Court of Session - to the Police for investigation under Section 156 (3), remains unchanged under the Code of 1973. The distinction between a police investigation ordered under Section 156 (3) and the one directed under Section 202, has also been maintained under the new Code; but a rider has been clamped by the 1st Proviso to Sec. 202 (1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation.
17. Section 156 (3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading "Of complaints to Magistrate". The power to order police investigation under Section 156 (3) is different from the power to direct investigation conferred by Sec. 202 (1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage, the second at the post-cognizance stage when the magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Sec. 156 (3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190 (1)
(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter 10 XV, he is not competent to switch back to the pre-
cognizance stage and avail of Section 156 (3). 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."
Furthermore, in Jamuna Singh v. Bhadai Shah, A.I.R. 1964 SC 1541, it was observed as under:
"Section 190(1) of the Code of Criminal Procedure contains the provision for cognizance of offences by Magistrates. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing 11 of such facts - that is, facts constituting the offence
- made by any police officer; the third is upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion that such offence has been committed.
In the case before us the Magistrate after receipt of Bhadai Shah's complaint proceeded to examine him under Section 200 of the Code of Criminal Procedure. That Section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under Section 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by Section 200 the Magistrate could have issued process at once under Section 204 of the Code of Criminal Procedure or could have dismissed the complaint under Section 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under Section 202 of the Code of Criminal Procedure. That Section empowers the Magistrate to 'postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint'. If and when such 12 investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under Section 203 of the Code of Criminal Procedure.
It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under Section 156(3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under Section 202 of the Code of Criminal Procedure and not under Section 156(3) of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under Section 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under Section 202 of the Code of Criminal Procedure and not under Section 156(3) of the Code."
In Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986 it has been observed as under:
"The provisions of S. 190 do not 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. The word `may' in the reason is obvious. A complaint disclosing cognizable offences may well justify the 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 13 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."
When a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind, e.g., ordering investigation under S. 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence."
The said decisions, only suggests that if a complaint discloses commission of a cognizable offence then investigation may be handed over to the police but does not direct that same should be the only course adopted by the Magistrate.
In Ram Babu Gupta v. State of U.P., 2001 Cri.L.J. 3363 (Allahabad) (FB), it was observed as under:
"It is clear from the scheme of Chapter XII of the Code that it is obligatory upon the police to investigate cognizable offence and book the offender, if any. Therefore, where the police fails in its duty to register and investigate a cognizable offence, the aggrieved person may complain to the concerned Magistrate. Where the Magistrate 14 receives a complaint or an application which otherwise fulfils the requirements of a complaint envisaged by S. 2(d) of Cr.P.C. and the facts alleged therein disclose commission of an offence, he is not always bound to take cognizance. This is clear from the use of the words `may take cognizance' which in the context in which they occur in S. 190 of the Code cannot be equated with `must take cognizance'. The word `may' gives a discretion to the Magistrate in the matter. Two courses are open to him. He may either take cognizance under S. 190 or may forward the complaint to the police under S. 156(3), Cr.P.C. for investigation. Once he takes cognizance he is required to embark upon the procedure embodied in Chapter XV. On the other hand, if on a reading of complaint he finds that the allegations therein clearly disclose commission of a cognizable offence and forwarding of complaint under S. 156(3), Cr.P.C. to the police for investigation will be conducive to justice and valuable time of Magistrate will be saved in inquiring into the matter which was the primary duty of police to investigate, he will be justified in adopting that course as an alternative to take cognizance of the offence himself. An order under S. 156(3) Cr.P.C. is in the nature of a reminder or intimation to the police to exercise their full powers of investigation under S. 156(1), Cr.P.C. Such an investigation begins with the collection of evidence and ends with a report or charge-sheet under S. 173. It is obvious that power to order investigation under S. 156(3) is different from the power to direct investigation conferred by S. 202(1). The two operate in distinct spheres at different stages. The power under S. 156(3) is exercisable at a pre-15
cognizance stage. Once the Magistrate has taken cognizance of the offence, it is not within his competence to revert back to pre-cognizance stage and invoke S. 156(3), Cr.P.C. A great care is, therefore, to be taken by the Magistrate while deciding the course to be adopted. That discretion has to be exercised cautiously with application of judicial mind and not in a routine and mechanical manner."
In Smt Meenakshi Anand Sootha Vs State 2007(4) JCC 3230 Delhi, the learned Metropolitan Magistrate dismissed the application under Section 156(3) CrPC for giving direction to SHO to investigate the matter and instead took cognizance of the case and proceeded with the complaint case of the complainant. On these facts the following observations were made by our Hon'ble High Court :
"10. It is well settled that under Sec 156(3) CrPC, the Magistrate has not to pass the order mechanically and has to apply his judicial mind. On this point, decision of this court, M/s. Skipper Beverages Pvt Ltd V State 2001 IV AD( Delhi) 625, may be referred to in which it was held:
" It is true that Section 156(3) CrPC of the Code empowers to Magistrate to direct the police to register a case and initiate investigation but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those 16 cases where the allegations are not very serious and the complainant himself is a possession of evidence to prove his allegations there should be no need to pass order under Section 156(3) of the Code. This discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the court and interest of justice demand that the police should step in to help the complainant"
11. Here in the present case, all the evidence which is the form of oral testimony, is in the knowledge of the complainant and her witnesses. The only documentary evidence, ie MLC, prima facie appears to be not connected with the present case, is also with the complainant herself. Under these circumstances, I do not find any illegality or infirmity in the impugned order passed by the Metropolitan Magistrate and it is still open for the petitioner to prove her case which is pending, in accordance with law"
In Pawan Verma v. SHO PS Model Town and others 2009 (2) JCC 1000 Delhi, our Hon High Court has reiterated the label position thus:
" It is not that in every case merely on asking of the petitioner the Court must direct registration of an FIR unless the Court is satisfied with the preliminary evidence which is to be submitted by the complainant that an FIR must be 17 registered.........".
The position is thus clear. Any judicial Magistrate, before taking cognizance of the offence, can order investigation under S. 156(3) of the Code. If he does so, he has not to examine the complainant on oath because he was not taking cognizance of any offence therein. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. Thus, merely because the Magistrate chose one of the two courses while exercising his discretion would not mean that he has acted out of law.
Although, the counsel for the revisionist has submitted a voluminous compilation of decisions in support of his contentions but has sought to rely on only a few of them, which I shall discuss. The decision in Parvez Parwaz vs. State of U.P. & Ors. - 2009 CriLJ 614 (All), relied upon by the counsel for the revisionist, has no bearing on the case as therein the Court was not seized with the issue relevant to our case, the issue therein was registration of second FIR on same facts and situation, hence, the same is of no 18 assistance to the revisionist. In Smt. Masuman, etc. vs. State of U.P. & Ors. - 2001 (1) CRJ 129 (All), although the court referred to the Full Bench decision of the Allahabad High Court but it did not discuss the law laid therein, which it is bound to follow as per the mandate of Art. 141 of the Constitution of India, thus, the same is of no assistance to the revisionist. This decision and Parvez Parwaz's case (supra) of Allahabad High Court seems to be in conflict with the decisions of Hon'ble Supreme Court in Devarapalli's case (supra), Jamuna Singh's case (supra), Gopal Das Sindhi's case (supra) and decisions of our Hon'ble High Court in Meenakshi Anand Sootha's case (supra) and Pawan Verma's case (supra), so these decisions of Allahabad High Court do not help the petitioner. In Santosh Kumari versus State of UP 2007 CRI LJ 3869 Allahabad relied on behalf of the petitioner the Single Bench of Allahabad High Court held that Chief Judicial Magistrate has no power under Section 156 (3) CrPC to convert an application under Section 156 (3) CrPC into a complaint against the wishes of victim. But this observation of Single Bench of Allahabad High Court being in conflict with the Full 19 Bench decision of the same High Court in Ram Babu Gupta's case (supra) in this regard, which suggests that on such an application/complaint under Section 156 (3) CrPC the Magistrate can also take cognizance instead of issuing direction under this Section 156 (3) CrPC, Santosh Kumari's case (supra) do not help the petitioner. Further, in Santosh Kumari's case (supra) it was also held that the Magistrate cannot refuse to direct investigation by police in an application under Section 156 (3) CrPC filed before him. But these observations of Single Bank of Allahabad High Court also do not help the petitioner in the face of the above observations of our Hon'ble High Court in Meenakshi Anand's case (supra) and Pawan Kumar's case (supra).
Further in Gopal Das Sindhi & Ors. v. State of Assam & Anr., AIR 1961 SC 986, referring to earlier judgments, Hon Supreme Court said :
"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 20 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".
Therefore, it is not essential that on a complaint filed before Metropolitan Magistrate he is neither bound to consider to take cognizance of the alleged cognizable offences or pass directions under Section 156 (3) CrPC but to exercise either of these two options depending upon the facts and circumstances of the case. This discretion vested with the Metropolitan Magistrate like all other judicial discretions is to exercised judicially based on sound judicial principles with due regard to the consideration as to what is just and proper in exercise of this discretion in the given facts and circumstances of the case. The decision of my colleague Sh. Rajnish Bhatnagar, in M/s. K.S. Forge Metal Pvt. Ltd. Vs. State decided on 21 13/2/2008 in criminal revision no. 13/2007, has been relied by the counsel for the revisionist for the contention that the Ld. MM dismissed the application without giving reasons and hence should be held arbitrary, but the said decision relied on by the counsel does not address the said issue and thus, is not of any help to the revisionist.
The petitioner has filed the complaint before learned Metropolitan Magistrate with the heading showing that the complaint is filed under Section 156 (3) read with Section 200 CrPC. Therefore, when the learned Magistrate after taking cognizance under Section 190 CrPC has treated the complaint under Section 200 CrPC, the petitioner should not have any grievance against the impugned order passed by learned Metropolitan Magistrate.
Therefore, from the above discussion, it is manifest that the Ld. MM committed no illegality or material irregularity or impropriety and exercised his discretion as bestowed under the provisions of the CrPC. Hence, in the light of the above discussion, there is no merit in the present revision petition and the same warrants dismissal.
In view of the foregoing discussion, the present revision petition 22 is dismissed. The trial court record be returned along with the copy of this order. The order be sent to the server (www.delhidistrictcourts.nic.in). The revision file be consigned to the record room.
Announced in the open Court on 14/10/09 (S. K. SARVARIA) Additional Sessions Judge-01/South New Delhi