Rajasthan High Court - Jaipur
Ramesh Kumar Dalmiya vs State Of Rajasthan And Anr on 1 April, 2013
Author: R.S. Chauhan
Bench: R.S. Chauhan
In the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur O R D E R S.B. Criminal Miscellaneous Petition No.3380 of 2012. Ramesh Kumar Dalmiya VERSUS The State of Rajasthan and another Date Of Order ::: 01/04/2013. Hon'ble Mr. Justice R.S. Chauhan Mr. Gurvinder Singh, Counsel for the Petitioner Mr. Peeyush Kumar, Public Prosecutor for the State
*** Reportable (Per Court ):
The petitioner, Ramesh Kumar Dalmiya, is aggrieved by the order dated 13.08.2012 passed by the Additional Civil Judge [Junior Division] & Metropolitan Magistrate, No.11, Jaipur Metropolitan, whereby the learned Magistrate has returned the negative Final Report to the Police, and has directed the Police to carry out further investigation.
Brief facts of the case are that the respondent No.2, Nitin Sarraf, filed a criminal complaint against the petitioner before the learned Magistrate. The Magistrate sent the said complaint for investigation under Section 156 (3) Cr.P.C. to the Police Station, Vaishali Nagar, Jaipur City [South]. On receipt of the said complaint, the Police registered a formal F.I.R., namely F.I.R. No.598/2010, for offences under Sections 420, 406, 467, 468, 471, 120-B and 386 I.P.C. as well as for offences under Sections 65 and 66 of the I.T. Act. However, after a thorough investigation, on 27.10.2010, the Police submitted a negative Final Report claiming that the case was basically of a civil nature, and since the parties have entered into a compromise, no criminal case was made out against the petitioner. Since the complainant-respondent was aggrieved by the negative Final Report, he filed a protest petition before the learned Magistrate. On 24.02.2011, the Magistrate recorded the statement of the complainant under Section 200 Cr.P.C. By order dated 13.08.2012 the Magistrate returned the negative Final Report to the Police, and directed the Police to further investigate the case. Since the petitioner is aggrieved by the said order, he has submitted the present petition before this Court.
Mr. Gurvinder Singh, the learned counsel for the petitioner, has raised the following contentions before this Court : firstly, it is unclear whether the impugned order has been passed under Section 156 (3) Cr.P.C. or under Section 202 (2) Cr.P.C. However, as further investigation has been ordered, the impugned order seems to have been passed under Section 156 (3) Cr.P.C.
Secondly, once the statement under Section 200 Cr.P.C. was recorded by the learned Magistrate, he could not have ordered for further investigation under Section 156 (3) Cr.P.C.
Thirdly, once the statement has been recorded under Section 200 Cr.P.C., the learned Magistrate could not have ordered further investigation under Section 202 (1) Cr.P.C. Hence, the learned Magistrate has traveled far beyond his jurisdiction.
In order to buttress this contention, the learned counsel has relied upon on the case of Bhushan Prakash @ Prasad Vs. State of Rajasthan & Ors. [2007 (1) Cr.L.R. (Raj.) 7, on the case of Ishwar Singh Vs. Baga Ram [2007 (2) W.L.C. [Raj.] 552], and on the case of Sagarmal & Ors. Vs. State of Rajasthan [2010 (1) Cr.L.R. (Raj.) 113].
On the other hand, the learned Public Prosecutor, Mr. Peeyush Kumar, has contended that the impugned order does not reveal the fact that direction for further investigation has been made under Section 156 (3) Cr.P.C. Therefore, keeping in mind the presumption of law that any act by the official is done strictly in accordance with law, an inference should be drawn that the impugned order, in fact, has been passed under Section 202 Cr.P.C.
Secondly, before a direction for investigation can be made, according to proviso (b) of Section 200 Cr.P.C., the Court is duty bound to first record the statement of the complainant, and then to issue a direction for investigation.
Thirdly, the word investigation used in Section 202 Cr.P.C. cannot be limited to the initial investigation made by the Police, but would include even further investigation, if so directed by the Court.
Lastly, Section 202 Cr.P.C. is rather clear on the point about the procedure to be adopted by the Court before ordering investigation by the Police.
Heard the learned counsel for the parties, and perused the impugned order.
Sections 200 and 202 Cr.P.C. are as under :
200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.
202. Postponement of issue of process.(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised 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 witness 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.
A bare perusal of Section 202 Cr.P.C. would clearly reveal that the Magistrate has two options before him, namely either to inquire into the case himself, or to direct an investigation to be made by a Police Officer, or by such other person as whom he may think fit. However, before a direction for investigation can be made, a rider has been added in the form of the proviso. The proviso (b) clearly states that no such direction for investigation shall be made, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200 Cr.P.C. Thus, the direction for further investigation can be made only after recording the statement of the complainant, and of his witnesses, if any.
The word 'investigation' would obviously include further investigation to be made by the Police. There is no cogent reason for limiting the meaning of the word investigation only to the initial investigation to be made by the Police. Moreover, since the Magistrate is not bound by the negative Final Report submitted by the Police, therefore, he is entitled to entertain a protest petition. A protest petition is treated as a complaint. Once the protest petition is treated as a complaint, obviously the Magistrate is duty bound to record the statement of the complainant under Section 200 Cr.P.C. before directing the investigation, or further investigation by the Police.
Although, the impugned order does not mention the fact whether it is being passed under Section 156 (3) Cr.P.C., or under Section 202 Cr.P.C., but this Court can look into the factual matrix of the case. Admittedly, a negative Final Report was submitted by the Police on 27.10.2010. On 24.02.2011, the Magistrate recorded the statement of the complainant under Section 200 Cr.P.C. On 13.08.2012, he returned the negative Final Report to the Police, and directed the Police to further investigate the case. Hence, the direction to further investigate the case has been given after recording the statement of the complainant. Obviously, the said direction has been given under Section 202 Cr.P.C., keeping in mind the proviso (b) attached to Section 202 (1) Cr.P.C.
There is, indeed, a presumption of law that an official performs his duty in accordance with law. It is, indeed, a settled position of law that once a statement has been recorded under Sections 200 Cr.P.C., or 202 Cr.P.C., the Magistrate cannot send the complaint for investigation under Section 156 (3) Cr.P.C. For, Section 156 (3) Cr.P.C. operates in a situation before the cognizance is taken by the Magistrate. However, the recording of the statement has been interpreted by the Apex Court, as indicative of the fact that the Magistrate has taken cognizance of the offence. He is merely directing further investigation in order to see, if the process needs to be issued against the alleged offender or not. The direction to the Police to investigate the case under Section 202 Cr.P.C., thus, can be issued only after taking of the cognizance. Since in the present case, the said direction was issued after recording of the complainants statement, as mentioned above, naturally that direction has been given under Section 202 Cr.P.C. and not under Section 156 (3) Cr.P.C., as pleaded by the learned counsel for the petitioner.
A similar issue had arisen in the case of Bhagat Ram Vs.Surinder Kumar and Others [(2004) 11 SCC 622]. In that case also, the Additional Chief Judicial Magistrate had examined the complainant, and his witnesses. Thereafter, he had directed the investigation to be done by the Police. He, therefore, referred the matter for investigation/inquiry by the Police. On receipt of the Police report, the matter was heard afresh by the learned Magistrate. Thereafter, summons were issued to the respondents. This action of the learned Magistrate was challenged before the High Court on the ground that having once taken cognizance and proceeded to hold the inquiry under Section 202 Cr.P.C., the learned Magistrate could not have referred the matter for inquiry/investigation by the police at all, and he should have proceeded in the matter himself. The Apex Court rejected this contention, and opined that the learned Magistrate has not done anything other than to comply with the directions of Section 202 (1) proviso (b) of Cr.P.C. After examining the complainant, and his witnesses, he found it necessary to further probe into the matter. Therefore, he had directed the investigation to be done by the Police. And after the investigation was done by the Police, and on a report filed by the Police, he heard the matter afresh, and directed issuance of summons. The Apex Court found the procedure adopted by the learned Magistrate perfectly in the order.
The present case is covered by the case of Bhagat Ram [supra], therefore this Court does not find anything illegal about the impugned order. The impugned order is perfectly in consonance with the law.
The three cases relied upon by the learned counsel are distinguished on their factual matrix.
In the case of Bhushan Prakash @ Prasad [supra], the Police had refused to register the F.I.R. of the complainant. Therefore, the complainant had filed a complaint, and his statement was recorded under Section 200 Cr.P.C. However, instead of sending the complaint for investigation under Section 202 Cr.P.C., in fact, the Magistrate had sent it for further investigation under Section 156 (3) Cr.P.C. Therefore, this Court had quashed the impugned order dated 26.08.2005. For, once the statement is recorded under Section 200 Cr.P.C. the Magistrate could not have sent the complaint for investigation under Section 156 (3) Cr.P.C.
In catena of cases, the Hon'ble Supreme Court has already opined that Section 156 (3) Cr.P.C. is available in cases where no cognizance has been taken by the Magistrate. But once the statement had been recorded under Section Section 200 Cr.P.C., and under Section Section 202 Cr.P.C., the Magistrate is deemed to have taken cognizance of the offences. He is merely postponing the issuing of the process under Section 202 Cr.P.C. Therefore, once the statement is recorded under these two provisions, the Magistrate cannot direct the Police to investigate under Section 156 (3) Cr.P.C., as the Magistrate has already taken cognizance. Keeping in view the principles in mind, in the case of Bhushan Prakash @ Prasad [supra], this Court had struck down the impugned order therein.
The case of Ishwar Singh [supra] is distinguishable on the ground that the learned Judge has not analyzed the scope of Section 202 Cr.P.C. The issue in the case was quite different. After recording the statement of complainant, and of his witnesses under Sections 200 and 202 Cr.P.C., the Magistrate had directed the Police to investigate the entire case. Subsequently, the S.H.O. had submitted his report. However, after considering the statements recorded under Sections 200 and 202 Cr.P.C., and after considering the investigation report, the Magistrate had dismissed the complaint and had, in fact, directed that the complaint be filed against the complainant for filing false complaint, and for committing offence under Section 211 I.P.C. Therefore, the case is distinguishable on the factual matrix itself.
The case of Sagarmal & Ors. [supra] is also distinguishable, as in the said case the Magistrate had given specific points for investigation to be done by the Police. This Court was of the opinion that the Magistrate is not empowered to specify the course of investigation, or the specific points on which the investigation should be carried out. However, in the present case, the Magistrate has not framed specific points for investigation, and has merely directed the Police to further investigate the case.
For the reasons stated above, this Court does not find any merit in the present petition; it is, hereby, dismissed.
Upon dismissal of the main petition, the stay application, filed therewith, does not survive; the same is also dismissed.
[R.S. Chauhan] J.
ashok/ Certificate - All corrections have been incorporated in the judgment/order being emailed.
Ashok Kumar Songara/P.A.cum J.W