Patna High Court
Ram Ekabal Pandey vs Kapildeo Rai And Ors. on 7 October, 1983
Equivalent citations: 1984CRILJ945
ORDER M.P. Varma, J.
1. In this application the learned Advocate Sri Wasi Akhtar appearing for the petitioner has raised several issues with regard to the powers vested in a Magistrate under Chapter 15 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') and how a Magistrate is to act and to proceed in case of a complaint, filed before him.
2. The application has been directed against an order, dated 22-6-1981, passed in an Enquiry Case No. 131/1980 by Sri R.P. Pandey, Judicial Magistrate, 1st Class at Motihari, district East Champaran. The learned Magistrate, by this order impugned, has dropped the case. The order reads as follows :
Complainant is present. In the present case final form submitted by the police was accepted on 12-2-1980 and proceeding of this case was also dropped. Thereafter the case is being proceeded on the protest in the form of complaint.
In view of the observation of the Hon'ble High Court, Patna in Cr. Misc. No. 3869/1979 (passed on 9-1-1981), the cases emerged on the basis of protest petition in form of complaint after submission of final form by the police and accepted by the court is bad in law. So the present case will not proceed and hence, it is dropped.
3. The petitioner had filed a petition of complaint on 9-1-1979 in the court of the Chief Judicial Magistrate, Motihari. The learned Magistrate, vide order, passed on 12-11-1979, transmitted the petition of complaint, to the local police for institution of a case and for investigation. The Chief Judicial Magistrate has passed the following orders :
The offence is cognizable. It needs investigation. So, the petition of complaint is transmitted to draw up an F.I.R.
4. It was on the basis of the petition of complaint that the police registered Kalyanpur P.S. Case No. 11(11)79 for offences under Sections 147. 148 and 379 of the Indian Penal Code against the members of the opposite parties Nos. 1 to 10.
5. On 8-2-1980 the petitioner filed another petition in the court of the Chief Judicial Magistrate, which was a sort of petition of protest against the investigation taken up by the police. It was alleged therein that the police was not taking proper interest in the case inasmuch as, no step was taken for arresting the accused or even seizing the subject-matter of theft, said to be in possession of the accused persons. In substance, the protest, more or less, was in the form of a petition of complaint. The police, however, after completing investigation, submitted final form stating therein that it was a case of insufficient evidence. It, was on 12-2-1980 that the learned Chief Judicial Magistrate accepted the final form, but at the same time, proceeded to pass the following orders on the petition of protest, which was filed earlier in this Court.
Since there is a protest in the nature of complaint-petition, let the protest be registered as complaint case.
6. The Chief Judicial Magistrate, thereafter granted several adjournments, on one ground or the other and on 8-5-1980 recorded the following orders transferring the case to Sri R.P. Pandey for enquiry and disposal of the petition of complaint :
Complainant is present. The case is made over under Section 192 , Cr.P.C. to Sri R.P. Pandey, Motihari for enquiry and disposal in accordance with law. The Magistrate shall examine the complainant on S.A....
7. On receipt of the record, the aforesaid complaint case was registered in the file of Sri R.P. Pandey as Enquiry Case No. 131/80 and the learned Magistrate, in course of the enquiry examined the complainant and some of his witnesses. But before the enquiry could be completed or any other order could be passed, the learned Magistrate, by order dated 22-6-1981, passed the aforesaid order that the case would not proceed and the same was dropped.
8. Submissions advanced on behalf of the complainant-petitioner is that, the police takes up an investigation of an offence in two contingencies, namely, upon the basis of a First Information Report, lodged by some person or upon a complaint forwarded to the police by a Magistrate treating the said complaint as First Information Report, in either case the police investigates the case under the provisions contained in Chapter XII after institution of the case at the police station under Section 156 of the Code under the said Chapter.
9. Learned counsel further submitted that transmitting the complaint by a Magistrate to the police for investigation is an act, prior to taking of cognizance of the offence by the said Magistrate, which means that the said act was not a judicial act, inasmuch as, while sending it for an investigation by a police officer, the Magistrate does not examine the complainant on oath. It has also been urged that in case, the Magistrate sends the petition of complaint for investigation under Section 202 of the Code, he can do it only after examining the complainant on oath, because the Code contemplates postponement of the issue of process, only under Section 202 of the Code, where direction for an investigation by a police or by any other person or an enquiry to the case by the Magistrate himself is at par with each other. Therefore, the counsel for the petitioner, in my opinion, rightly stated that the transmission of the petition of complaint by a Magistrate to a police for investigation must necessarily follow after the Magistrate has examined the complainant on oath and not otherwise, Adopting a course different from the one prescribed under Section 202 of the Code, i.e., transmitting the complaint-petition for investigation by police before the Magistrate has examined the complainant on oath, cannot be given any nomenclature other than an administrative act, because in doing that or in taking such a recourse, the Magistrate does not apply his judicial mind to the petition of complaint, nor does he act in accordance with the provisions of law, laid down in Chapter XV of the Code or as required under Section 200 of the Code or even under Section 202 under that chapter.
10. Another approach of the case by the counsel is that the transmission of a petition of complaint to the police before examination of the complainant on oath, entails in the case being registered by the police, treating the same as a First Information Report, followed by investigation and in the end, submission of the 'final form' under Section 173 of the Code, whereas investigation by a police officer into a complaint, referred to him under Section 202 of the Code, finally results into submission of a 'report' which may be described as anything but not a 'final form' in that technical sense of the term, for the simple reason that in the earlier case the direction for investigation under Section 156(3) is prior to taking cognizance of the complainant, whereas in the later case there is a direction for investigation after the cognizance has been taken by the Magistrate. In other words, the investigation under Section 156(3) of the Code results in the submission of the 'final form' under Section 173 of the Code, forming subject-matter of consideration by Magistrate under Section 190 (1) (b) of the Code, whereas submission of a 'report' after investigation of the case under Section 202 of the Code, which is necessarily after taking cognizance of the case furnishes material either to summon the accused by passing an order under Section 204 of the Code or refusing to issue process by passing an order under Section 203 of the Code, technically termed as 'dismissal of complaint'.
11. On the basis of this supposition, it has been contended that till before the Magistrate takes cognizance acting under Section 190 (1) (b) his entire acts in the proceeding are administrative acts and not judicial one - the procedure prescribed for dealing with the petition of complaint which includes a protest petition, as contained in Sections 200 to 202 of the Code, and if a complaint is filed, it has to be dealt with in that very manner, independent of any other consideration. In this context, it can well be said that the submission of 'final form' stating that no case is made out and acceptance thereof by a Magistrate, cannot, in any way interfere with the powers conferred upon the Magistrate under Sections 200 to 202 of the Code to take any view in the matter, and importing any noxious between the two, i. e., the submission of 'final form', aforesaid and proceeding with the complaint would amount to legislating, which the Criminal Procedure Code does not permit.
12. The settled view on the question being that in the matter of dealing with the complaint, a Magistrate is not permitted to take into consideration anything else, except the petition of complaint, statements of the complainant and the witnesses, if any examined and the result of the investigation or enquiry, if any, and while doing so the Magistrate is not permitted to take into account any extraneous facts, such as, an earlier 'final form' or its acceptance by himself, because that will be beyond the scope of the judicial scrutiny, as prescribed by the Code. It therefore, necessarily follows that if a Magistrate is approached by a complainant with a petition of complaint, he cannot refuse to proceed with the same in accordance with Sections 200 to 202 of the Code, and can only pass order either under Sections 203 or 204 of the Code, as the case may be, on the ground that in the case with regard to the same offence, police has submitted 'final form' stating that no case is made out and accepted by the same Magistrate, such a refusal would be an action unknown to the Criminal Procedure Code.
13. In the instant case the transferee court or the court to whom the case was made over, refused to proceed on the plea that earlier the court had accepted the final form and had dropped the case and considering the decisions referred to in the order impugned the learned Magistrate dropped the case, which order, for all practical purposes, appears to be illegal one and the order is therefore, fit to be set aside.
14. There is another ground equally forceful, contended by the learned Counsel is that action taken by the Magistrate in the instant case stands vitiated, as the learned Chief Judicial Magistrate, by order dated 8-5-1980 made over the case to the Magistrate under Section 192 of the Code without applying himself to the facts mentioned in the petition of complaint which will necessarily mean without taking cognizance of the offence. Section 192 of the Code does not permit a routine order of transfer in a casual way. Section 192 of the Code lays down that any Chief Judicial Magistrate may, after taking cognizance of offence, make over a case for enquiry or trial to any competent Magistrate subordinate to him, and any departure from it makes the order bad.
15. The order dated 8-5-1980 is violative of the mandatory provisions, laid down under Section 192 of the Code and therefore, action taken by the Magistrate stands vitiated for this reason as well.
16. In the result, the order impugned is set aside. But in the circumstances of the case, as discussed above it is remitted to the court of the Chief Judicial Magistrate. I direct that the Chief Judicial Magistrate to whom the case is remanded, shall take action and shall proceed to dispose of the same in accordance with law.