Madhya Pradesh High Court
Chetan Singh Rajput vs The State Of Madhya Pradesh on 21 September, 2015
M.Cr.C. No. 6365/2015
21.09.2015
Shri Z.A.Khan, learned Senior Counsel with Shri Ramesh
Gangare, learned counsel for the applicants.
Shri Aniket Naik, learned Dy. GA for the
respondent/State.
Shri Amit Agrawal, learned counsel for the respondent No.2.
This petition has been filed under Section 482 of the Cr.P.C. for quashing the First Information Report (Annexure P/5) registered at Crime No. 162/15 under Sections 363, 366, 376(D) and 506 of the IPC at Police Station Dharampuri, Distt. Dhar.
Short facts giving rise to this petition are that respondent No.2 filed a private complaint under Sections 363, 366 & 376 of the IPC before the Judicial Magistrate, First Class, Dharampuri. Learned Magistrate has recorded the statement of the complainant under Section 200 of the Cr.P.C. and after considering the statement directed that the complainant be examined by the Medical Officer and also called the enquiry report from police Dharampuri. The Station House Officer after receipt of complaint, informed the Magistrate that FIR at Crime No. 162/15 has been registered against the applicants. Being aggrieved, applicants have preferred this petition.
Learned counsel appearing on behalf of the applicants submits that registration of FIR against the applicants is illegal and amounts to an abuse of process of law. It is evident from the proceeding that learned JMFC has referred the complaint to police for enquiry as provided under Section 202 of the Cr.P.C. and directed the police to submit the report. Instead of submitting the enquiry report, police has registered the FIR and forwarded the information to the Court of JMFC exceeding its jurisdiction. Hence, prayed that FIR be quashed.
Learned counsel appearing on behalf of respondent No.2/complainant submitted that the police officer. whom the Magistrate has directed to investigate, may register the case under Section 154 of the Cr.P.C. and put up a report under Section 173 of the Cr.P.C. if the offence is cognizable. Police has acted in accordance with law. Hence, prayed for dismissal of the petition.
I have perused the record and considered the submissions of learned counsel for the parties. It is not disputed that respondent No.2 has filed a private complaint against the applicants under Section 363, 366 & 376 of the IPC. Magistrate has recorded the statement of complainant/respondent No.2 under Section 200 of the Cr.P.C. and after considering the statement of the complainant and facts of the case, directed for medical examination of the complainant and asked the police to submit its enquiry report regarding the complaint.
Learned counsel appearing on behalf of the applicants placed reliance on a decision in the matter of Devarapalli Lakshminarayana Reddy Vs. V. Narayana Reddy and ors. reported in (1976) 3 SCC 252 submitted that once the cognizance has been taken by the Magistrate and called enquiry report under Section 202(1) of the Cr.P.C., police has no power to register the FIR.
To appreciate the submissions of learned counsel, it will be appropriate to note the provisions of Section 200, 203 and Section 156(3) of the Cr.P.C. which reads as under :-
Section 200: 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 enquiry 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.
Section 202 : Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence which he is authorized to take cognizance or which has been made over to him under Section 192 may, if he thinks fit, 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 Session ; 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 witnesses 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.
156. Police Officer's power to investigate cognizable case -
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) ----------------------------
(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.
The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1) of the Cr.P.C. The object of investigation under Section 202(1) of the Cr.P.C. is not to initiate a fresh case on police report but to assist the Magistrate in completing the proceeding already instituted upon the complaint before him.
Section 202 of the Cr.P.C. authorizes the Magistrate to postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceeding.
The Hon'ble Apex Court in the case of Devarapalli Lakshminarayana Reddy Vs. V. Narayana Reddy and ors. (supra) dealing with the provisions of Section 156(3) and Section 202 of the Cr.P.C. has observed as under :-
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 Magistrates". 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 a seisin 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 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 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".
In the instant case, as noticed earlier, learned Magistrate has recorded the statement of the complainant under Section 200 of the Cr.P.C. Thus, the Magistrate has taken the cognizance of the offence. Learned Magistrate has sent the complaint asking the SHO to made an enquiry and submit its report. This enquiry report has been sought for the purpose of deciding whether or not there is sufficient ground for proceeding.
Had the learned Magistrate without recording the statement of the complainant under Section 200 of the Cr.P.C. directed the police to investigate the complaint, then certainly in the light of the provisions of Section 156(3) of the Cr.P.C., FIR should have been registered, but in the instant case, the learned Magistrate after taking cognizance and recording the statement of the complainant under Section 200 of the Cr.P.C. directed the police to enquire and submit its report. Hence, the SHO ought to have submitted its report and should not have registered the FIR.
Learned counsel appearing on behalf of the respondent No.2 placing reliance on a decision in the matter of Ghulam Nabi Mir Vs. Mohammad Ayub Khan reported in 1978 CriLJ 1225, wherein it has been held that police officer, whom the Magistrate has authorized to enquire may even register FIR under Section 154 of the Cr.P.C., submit its report under Section 173 of the Cr.P.C. submitted that FIR cannot be quashed. But in light of the decision of Devarapalli Lakshminarayana Reddy Vs. V. Narayana Reddy and ors. (supra), the submission of learned counsel for the respondent cannot be accepted.
In the light of the aforesaid discussion, I come to the conclusion that the FIR registered against the applicants deserves to be quashed.
Hence, the petition is allowed and FIR registered at Crime No. 162/15 under Sections 363, 366, 376(D) and 506 of the IPC is hereby quashed.
Petition is disposed of accordingly.
C.c. as per rules.
(D.K.Paliwal) Judge sk