Kerala High Court
P.V. George And Ors. vs Jacob Mathews And Anr. on 20 December, 1995
Equivalent citations: 1996CRILJ1299
Author: N. Dhinakar
Bench: N. Dhinakar
ORDER N. Dhinakar, J.
1. The question to be decided in this Crl. M. C. is whether the Magistrate, after having decided to act and initiated action under Chapter XV of the Crl. P. C, can revert back to Chapter XV of the said Code.
2. A few facts, which need for deciding the above said question can be summarised and stated as follows.
3. Petitioners are A1, A2 and A9 in C. M. P. No. 8654 of 1993 on the file of the Judicial First Class Magistrate, Thiruvalla, instituted on a private complaint filed on 19-11-1993 for an offence punishable under Section 420 read with Section 34, I. P. C. In the said complaint 9 persons including these petitioners are shown as accused. A7 and A8 are the daughters of A1 and A2. A9 is the other daughter. A3 to A6 are the close friends of A1.
4. The allegation in the said complaint is that in order to settle the earlier dispute between the 1st respondent in this petition (complainant in C. M. P. No. 8654 of 1993) and the 1st petitioner, 7 signed blank cheques were given to the 1st petitioner by the 1st respondent on 10-10-1991 as one of the conditions for the settlement of disputes. This handing over of signed blank cheques was at the instance of an advocate, who happens to be a mutual friend of both the parties. According to the complainant/1st respondent 4 cheques were signed by him, two by his mother and one by his daughter. Later, the promise of settlement was not honoured and the .1st accused with the help of the other accused converted the signed blank cheques into the valuable securities by filling up the names of drawees and the amounts. When the said cheques were presented with the bankers they were returned unpaid with the endorsement "insufficient funds". The 4th accused thereafter filed a civil suit in O.S. No. 193 of 1991 before the Sub Court, Thiruvalla, for the recovery of a sum of Rs. 4,50,000/- and the 3rd accused also filed a Civil Suit before the same Court in O.S. No. 194 of 1991 for the recovery of a sum of Rs. 5 lakhs. The 5th accused filed O.S. No. 197 of 1991 before the said Court for the recovery of a sum of Rs. 3 lakhs. He also filed a criminal complaint under Section 138 of the Negotiable Instruments Act before the Judicial First Class Magistrate, Thiruvalla, against the 1st respondent/complainant. The 6th accused filed another complaint before the same Court under the said Act against the 1st respondent's daughter on an allegation that she issued a cheque for a sum of Rs. 2 lakhs without sufficient funds. The 4th accused also filed a criminal complaint against the 1st respondent under Section 138 of the Negotiable Instruments Act for issuing a cheque for a sum of Rs. 3,25,000/- without sufficient funds. According to the 1st respondent/complainant the civil suits and the criminal complaints were laid at the instance of the 1st accused making use of the blank signed cheques earlier given by him on 10-10-1991. It is also averred in the said complaint that Al, A2 and A7 are partners in a business. The sum and substance of the complaint is that all the accused with the common intention committed the offence of cheating punishable under Section 420 read with Section 34, I.P.C.
5. After the complaint was filed on 19-11-1993 the sworn statement as contemplated under Section 200, Crl. P. C. was taken on 8-2-1994. Thereafter the Magistrate decided to conduct an inquiry under Section 202, Crl. P. C. without straightway issuing process to the accused. The case was posted to 19-2-1994 and thereafter to 24-2-1994. On 24-2-1994 the case was adjourned to 7-3-1994 and then to 8-3- 1994. The Magistrate directed an investigation under Sub-section (1) of Section 202, Crl. P. C. to be conducted by the Sub Inspector of Police, Thiruvalla. After investigation the Sub Inspector filed a report under the said section before the Magistrate. On .8- 12-1994 the learned Magistrate heard the arguments of the 1st respondent and after three postings he forwarded the complaint to the police under Section 156(3), Crl. P. C. to the Sub Inspector, Thiruvalla. for investigation on the basis of which a case in Crime No. 6 of 1995 was registered on 6-1-1995. This Crl. M. C. is to set aside this order of the Magistrate dated 28-12-1994 ordering investigation under Section 156(3), Crl. P. C.
6. The question is whether the Magistrate was justified in ordering investigation under Section 156(3), Crl. P. C. on 28-12-1994 when he already ordered an investigation under Section 202, Crl. P. C. and obtained a final report. The contention is that the Magistrate having acted under Chapter XV by ordering investigation under Section 202(1). Crl. P. C. cannot order a fresh investigation under Section 156(3), Crl. P. C. The sum and substance of the argument of the petitioners is that once the. cognizance is taken by the Magistrate he cannot order investigation under Section 156(3), Crl. P. C.
7. The above contention raises an incidental question as to what is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190, Crl. P. C. While dealing with the said question, the Supreme Court in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, , held that 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 the 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. Section 156(3), Cr. P. C. occurs in Chapter XII whereas Section 200 and the succeeding sections occur in Chapter XV of the said Code. Chapter XII and Chapter XIV subserve two different purposes: one pre-cognizance action and the other post-cognizance action. In Tula Ram v. Kishore Singh, , the Supreme Court quoted the above judgment with approval and ultimately laid the following legal propositions:
"1. That a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.
2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:
(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record .the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
(3) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
(4) Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above."
8. The Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations. The Criminal P. C. contemplates several methods by which a complaint can be disposed of after taking cognizance. The cognizance can be taken on receiving a complaint of facts or upon a police report of such facts or upon the information received from any person other than the police officer or upon his own knowledge. Before a Magistrate takes cognizance of an offence under Section 190(1) (a), Crl. P. C. he must not only have applied his mind to the contents of the petition but also must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of Chapter XV and thereafter sending it for inquiry and report under Section 202. In Anil Saran v. State of Bihar, , the Supreme Court look the view that as soon as the Magistrate applies his judicial mind to the offence stated in the complaint or the police report etc., conginzance is said to be taken. Cognizance of the offence takes place when the Magistrate takes judicial notice of the offence. Whether the Magistrate has taken cognizance of offence on a complaint or on a police report or upon information of a person other than the police officer, depends upon further action taken pursuant thereto and the attending circumstances of the particular case including the mode in which case is sought to be dealt with or the nature of the action taken by the Magistrate.
9. Keeping the above principles in mind we have to now decide whether the action of the Magistrate in ordering investigation under Section 156(3), Crl. P. C. is justified. A similar question when posed before the Supreme Court, in the case reported in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, , the Supreme Court emphatically stated as follows : (Para 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 Section 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 when the Magistrate is in session 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 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 XV, he is not competent to switch back to the precognizance 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 ease on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him."
10. In view of the above discussions and the law laid down by the Supreme Court I am of the view that the order of the learned Magistrate dated 28-121994 ordering investigation under Section 156(3), Cr. P. C. has to be set aside and accordingly it is set aside. Crime No. 6/95 dated 6-1-1995 registered at Thiruvalla Police Station on the above orders of the Magistrate are to be quashed and accordingly the said crime number is quashed. If there are sufficient grounds for proceeding with the complaint the learned Magistrate may dispose it of according to law.