Gujarat High Court
Harshadbhai C. Patel vs Indravadan P. Shah And Anr. on 25 November, 1985
Equivalent citations: (1986)1GLR643
Author: M.B. Shah
Bench: M.B. Shah
JUDGMENT M.B. Shah, J.
1. This revision application is filed by the d by the Chief Judicial Magistrate, Himatnagar, directing investigation under Section 156(3) of the Criminal Procedure Code by die P.S.I. Himatnagar, instead of issuing process.
2. The complainant is the Group Branch Manager of Himatnagar Branch of the firm named Laxmichand Bhagaji which carries on business of advancing loans on hire-purchase agreements etc. At the relevant tune i.e. in the years 1982-83 and 1983-84 the accused was working as a Group Branch Manager at Himatnagar. It is the allegation of the complainant that the accused taking some benefit committed criminal breach of trust by advancing a loan of Rs. 12 lacs to M/s. Govind Jeku & Co. at 15% instead of advancing it at the interest rate of 18% by taking undue advantage of his position by submitting a false report to the Head Office a loan of Rs. 2,50,000/- was given to the firm M/s. Krishna Metal Works; in 1983 there was one Incentive Scheme and after recovering the incentive commission dishonestly the deposit amount was refunded; a false entry is made in the books of account showing that Rs. 25,000/- were paid by way of loan to M/s. Arun Marketing in breach of the rules framed by the firm, dishonestly loan at the lower interest rate is given to certain persons by getting illegal monetary benefits and various amounts as alleged in the complaint are falsely debited as expenses. After receiving the complaint, the Chief Judicial Magistrate recorded the statement of complainant Harshadbhai Chunilal Patel. Thereafter he ordered that the P.S.I. Himatnagar be directed to investigate the complaint under Section 156(3) of the Criminal Procedure Code. This order was objected to by the learned advocate for the complainant. His objection was overruled by holding that to find out the modus operandi he had order of the police investigation and there is no question of holding detailed inquiry by the Court. Being aggrieved by the said order, the complainant has filed this revision application under Section 482 of the Criminal Procedure Code.
3. The learned advocate Mr. A. D. Shah was permitted to intervene in the matter and he vehemently submitted that now-a-days there is tendency of the Judicial Magistrate to refer all the cases to the police for investigation under Section 156(3) of the Criminal Procedure Code without applying mind to the facts of the complaint. The learned advocate for the petitioner submitted that in this case also the learned Judicial Magistrate has straightway referred the matter to the police for investigation without applying his mind to the fact that almost all documents were in the possession of the complainant and there was no question of referring the matter for any investigation. As such, according to him, no investigation was necessary.
4. Once the complaint is filed under Section 190(1)(a) of the Criminal Procedure Code, the Magistrate has three options open to him viz.:
(1) to take cognizance of the offence and to record the statements of the complainant and witnesses present under Section 200 of the Criminal Procedure Code. Thereafter if in his opinion there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203 of the Criminal Procedure Code. If there is sufficient ground, he may issue process under Section 204 of the Criminal Procedure Code.
(2) to take cognizance of the case and to hold an inquiry as contemplated under Section 202 of the Criminal Procedure Code without issuing process. He may inquire 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 with the matter. If he arrives at the conclusion that there are no sufficient grounds for proceeding, he shall dismiss the complaint by recording reasons for doing so. If he arrives at the conclusion that there is sufficient ground for proceeding, then he shall issue process under Section 204 of the Code.
(3) to refer it; to the police officer for investigation under Section 156(3) of the Criminal Procedure Code. This is a pre-cognizance stage i.e. before taking cognizance of the matter under Sections 190, 200 and 204 of the Code. If he has followed the procedure under Sections 200 or 202 of the Criminal Procedure Code, he has no jurisdiction to order any investigation under Section 156(3) of the Criminal Procedure Code. Even the inquiry which; he directs under Section 202 by a police officer would not be in the nature of an inquiry under Section 156(3) of the Criminal Procedure Code but would be only under Section 202 of the Code. Inquiry under Section 202 is at the post-cognizance stage; i.e. when the Magistrate is season of the case. This positions clarified in number of decisions. It would be worthwhile to incorporate paragraph 17 of the Supreme Court decision in the case of D.L. Reddy v. V. Narayana Reddy , wherein the Court has held as under:
The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate indistinct spheres at different stages. The first is exercisable at the precognizance stage when the magistrate is season of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before be 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 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 premptory 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.
5. It is also well established that on receipt of the complaint the Magistrate is not bound to take cognizance of the case even if the facts alleged in the complaint disclose the commission of an offence. It gives a discretionary power to the magistrate and on reading the complaint if he arrives at the conclusion that 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 take cognizance of the offence, himself. Still, however, the question whether in all cases the magistrate should refer the matter for investigation under Section 156(3) of the Criminal Procedure Code or whether he should take cognizance or whemer he should hold enquiry under Section 202 of the Criminal Procedure Code and thereafter decide whether to issue process or not, would be a question of fact which would be required to be decided by the magistrate after receipt of the complaint, it is true that no hard and fast role can be laid down in which cases he should refer the matter to the police for investigation under Section 156(3) or in which cases he should himself enquire as contemplated under Section 202 of the Criminal Procedure Code but as a general rule it cannot be said that in all cases as soon as something is required to be investigated in a complaint the magistrate should refer the complaint to the police for investigation. He has to exercise his judicial discretion and decide it by passing appropriate order.
6. If the Court is satisfied that the facts alleged in the complaint necessitate the investigation by the police and in the absence of such investigation the material evidence cannot be gathered, then he may direct investigation under Section 156(3) of the Criminal Procedure Code. But in those cases whether the complainant is in possession of necessary material, then there is no question of ordering investigation under Section 156(3) of the Criminal Procedure Code. In a private complaint for the offences of criminal breach of trust, cheating or say in cases of trespass there may not be any necessity of investigation by the police. In this type of cases no useful purpose will be served by ordering the police to investigate the matter. On the contrary, this may amount to shirking the responsibility by the Court. In some cases it may delay the matter and also may cause lot of inconvenience to the complainant and his witnesses. In giving statements the complainant and his witness would be required to visit police station often without their fault. In the case of Kedar Ram v. Ram Bharose A.I.R. 1952 Vindhya Pradesh 49, the Judicial Commissioner has aptly described the cases wherein the Court should refer the cases for investigation of the police or in which cases the Court should proceed with the complaint without referring it to police for investigation under the provisions of Section 156(3). In paragraph (6) the Court has held as under:
I may also point out here that even in cognizable case the complainant going to the Magistrate direct should not be sent to the police except for special reasons. Our criminal procedure, gives the complainant the option of moving the police or filing a complaint. Often the former is more expeditious and by filing complaint the complainant incurs expenses, suffers delay, risks the disappearance of clues and traces, and allows the witnesses to remain unexamined for sometime. These are important in assessing the evidence, when complainant comes to the Court directly, even in a cognizable case, it is obvious that he does not choose to go to the police and should not be driven back to them unless it is in public interest that the police should inquire or investigate. For example there may be cases of kidnapping, abduction, or violent theft or dacoity calling for immediate arrests and searches, or pursuit of the accused or the property into another jurisdiction or the stopping of a continuing offence involving danger to the public. In such cases, a private party is not capable of adequate and effective action; and they have to be made over to the police. Otherwise, the case should proceed on the complaint.
7. No doubt it would be difficult to lay down absolute norms in which cases the Court should issue process or hold inquiry under Section 202 or direct investigation of the matter under Section 156(3) as in each case it depends upon facts of the case. Yet in my view also, normally in those cases wherein immediate arrests and searches or pursuit of the accused or the property is called for, then in a private complaint the Court should refer the matter for investigation under Section 156(3) of the Criminal Procedure Code. But otherwise when the complainant is in a position to produce evidence on record, then the Court should not shirk its responsibility and refer the matter for investigation to the police.
8. In the present case the whole procedure adopted by the Magistrate is on the face of it illegal. On receipt of the complaint he has recorded the complainants statement under Section 200 of the Criminal Procedure Code. That means that he has taken cognizance of the matter. Once he has taken cognizance of the matter, the Magistrate has no power or jurisdiction to refer the case to the police for investigation under Section 156(3). This position of law is well settled which does not require any elaboration. Reference may be made to the case of Jamuna Singh v. Bhadai Shah , and Tula Ram v. Kishore Singh . Once the Magistrate starts under Section 1 and the provisions following, he cannot resort to Section 156(3) of the Code. Apart from this aspect it is clear that the learned Magistrate has not applied his mind to the complaint at all. This was a private complaint for criminal breach of trust and the complainant has alleged in the complaint various acts of criminal breach of trust for which he was in possession of the documentary evidence. In this case there was no necessity of collecting any other material by the investigating agency. In any case if some evidence was required, then it was for the complainant to produce it before the Court. The learned Chief Judicial Magistrate has observed that for finding out modus operandi investigation was ordered. Bat in this case there is no question of any modus operandi to be enquired into because in the complaint various acts of Criminal breach of trust are stated. The documentary evidence is in possession of the complainant. The complainant has also agreed to produce the necessary witnesses before the Court. Therefore the learned Magistrate has not applied his mind before referring the matter to the police investigation.
9. In the result, the Criminal Revision Application is allowed. The order passed by the Chief Judicial Magistrate, Himatnagar, on 1-10-85 on the Criminal Complaint filed by the petitioner before the Judicial Magistrate, First Class, Himatnagar, directing the investigation by the P.S.I., Himatnagar, under Section 156(3) of the Criminal Procedure Code is quashed and set aside. The learned Chief Judicial Magistrate is directed to proceed in accordance with law. Rule made absolute.