Orissa High Court
Jagannath Das And Ors. vs State And Anr. on 31 October, 1991
Equivalent citations: 1992CRILJ2204
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. Petitioners have invoked the inherent jurisdiction of this Court Under Section 482 of the Code of Criminal Procedure for quashing the order of cognisance dated 8-3-1989 by which order the Magistrate has taken cognizance of the offences Under Sections 436/149 and 147, I.P.C.
2. The petitioners' case in brief is that an arson took place in the Harijan Busti on 8-4-1988 and on the basis of an information to that effect, the police registered a case and started investigation. While the police was preceding with the investigation, a complaint was filed by opposite party No. 2 on 19-4-1988. The Magistrate recorded the initial statement of the complainant on 20-4-1988 and instead of issuing process directed an enquiry Under Section 202 of the Code of Criminal Procedure. In the enquiry the complainant produced his witnesses. Finally on the basis of the available materials the Magistrate took cognizance of the offences by the impugned order dated 8-3-1989. The G.R. case which had been registered and was being investigated into by the police ended in submission of a final form by the police on 19-8-1988. After the cognizance was taken in the complaint case, the petitioners have approached this Court for quashing of the cognizance.
3. Mr. Rao appearing for the petitioners contends that on the date on which the complaint case was instituted, in respect of the self-same incident investigation by the police was in progress and, therefore, the magistrate in the complaint case should have stayed his hand under Sub-section (1) of Section 210 of the Code of Criminal Procedure. The same not having been done and instead an enquiry Under Section 202 having been directed in the complaint case, the said enquiry is vitiated and consequently, the order of the magistrate taking cognizance on the basis of the materials produced during the enquiry is also non est. Mr. Rao also contends that the magistrate while taking cognizance in the complaint case failed to exercise his jurisdiction in not considering the materials which were available on record during the investigation in the G.R. case and such non-consideration has vitiated the impugned order of taking cognizance.
The learned Public Prosecutor, on the other hand, contends that the enquiry made Under Section 202 of the Code of Criminal Procedure cannot be said to be without jurisdiction merely because on the date of the enquiry an investigation by the police was in progress in relation to the offence in question and, at any rate, the police having submitted the final form, the order of the magistrate in the complaint case taking cognizance of the offence on the basis of materials produced before him cannot be said to be in any way illegal. The learned Public Prosecutor also submits that a complaint case is initiated Under Section 200 of the Code of Criminal Procedure on examining the complainant on oath and in the said case the magistrate is called upon to consider the statements of the complainant on oath and of the witnesses and the result of the enquiry or investigation, if any, Under Section 202 and thereafter to either dismiss the complaint or issue process, as provided Under Section 203 of the Code. Consequently, it is not the requirement of law for a magistrate to take into consideration the materials brought on record in course of investigation by the police into the selfsame offence on the basis of institution of a G.R. case and, therefore, the magistrate did not commit any error in not considering those materials. The rival submissions require a careful examination of the provisions of the Code of Criminal Procedure.
4. Mr. Rao in support of his first contention places reliance on the provision of Section 210(1) of the Code of Criminal Procedure and a decision of the Supreme Court in the case of India Carat Pvt. Ltd. v. State of Karnataka, AIR 1989 SC 885 : (1989 Cri LJ 963). Under Section 210(1), a magistrate in course of enquiry or trial in a complaint case if comes to know that an investigation by the police is in progress in relation to the offence which is the subject matter of the enquiry or trial held by him, then the said magistrate shall stay the proceeding of such enquiry or trial and call for a report on the matter from the police officer conducting the investigation. Under Sub-section (2) of Section 210, when a police officer submits a report Under Section 173 and on such report the magistrate takes cognizance of any offence against a person who is also an accused in the complaint case, then the magistrate shall enquire and try the complaint case as well as the case arising out of the police report together as if both the cases were instituted on a police report. But under Sub-section (3) of Section 210 if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of the offence on the police report then he must proceed with the enquiry or trial of the complaint case which had been stayed by him under Sub-section (1). This being the provision of law, undoubtedly, a magistrate is required to stay his hand in the complaint case if it comes to his knowledge that self-same occurrence is being enquired into in a G.R. case. But if he does not stay his hand and proceeds with the enquiry, the enquiry cannot be said to be without jurisdiction or non est. So far as the present case is concerned, however, the report made by the Investigating Officer Under Section 173 was in the final form and, therefore, on such report no cognizance has been taken by the magistrate in respect of any offence. In the aforesaid premises, even if the magistrate would have passed an order of stay in the complaint case under Sub-section (1) of Section 210, then he was duty bound to proceed with the complaint case after submission of the final form by the police on 19-8-1988. Consequently, there is no substance in the argument of Mr. Rao that the magistrate had no jurisdiction to take cognizance of the offence in the complaint case on the basis of materials produced in the complaint case and in the enquiry directed Under Section 202 of the Code of Criminal Procedure. A bare reading of the provisions contained in Section 210 of the Code of Criminal Procedure does not make an enquiry directed by the magistrate in the complaint case either without jurisdiction or the result of the enquiry can be said to be vitiated on the ground that the magistrate was entitled to stay the complaint proceeding in exercise of power Under Section 210. Sub-section (3) of Section 210, on the other hand, itself authorises the magistrate to proceed with the enquiry or trial which had been stayed by the magistrate Under Section 210(1) if the magistrate does not take cognizance of any offence in the C.R. case under Sub-section (2) of Section 210.
5. The decision of the Supreme Court reported in AIR 1989 SC 885 : (1989 Cri LJ 963), on which Mr. Rao has placed reliance nowhere stipulates that where a magistrate was required to stay his hand in the complaint case Under Section 210 does not stay his hand and proceeds with the enquiry in the complaint case, then the said enquiry is invalid and the materials produced in the enquiry cannot be taken into consideration for taking cognizance of the offence in question. In the aforesaid Supreme Court decision what has been held is that upon receipt of a police report Under Section 173 of the Code of Criminal Procedure a magistrate is entitled to take cognizance of an offence Under Section 190 even if the police report is to the effect that no case is made out against the accused. In other words, a magistrate can ignore the conclusion of the police and by applying his mind to the materials produced during investigation it comes to the conclusion that prima facie case is made out can take cognizance under Section 190(1)(b). It has also been held in the said case that it is open to the magistrate to act Under Section 200 or 202 of the Code of Criminal Procedure also. I fail to understand how this decision is of any assistance to support the contention of Mr. Rao appearing for the petitioners. After going through the aforesaid decision of the Supreme Court as well as the provisions of Section 210 of the Code, I am of the considered opinion that when a complaint case is registered on the basis of a complaint made by the complainant and the magistrate in course of enquiry or trial into the said complaint comes to know that an investigation by the police is in progress in relation to the self-same offence, then he shall stay the proceeding before him on the basis of the complaint and shall call for a report on the matter from the police officer conducting investigation. If he does not stay his hand as provided under Sub-section (1) of Section 210 and proceeds with the complaint case, then the order taking cognisance or the order directing an enquiry Under Section 202 of the Code of Criminal Procedure cannot be said to be without jurisdiction. Where he stays his hand under Sub-section (1) of Section 210, the proceeding itself is revived if the report submitted by the police does not relate to any accused in the complaint case or if no cognizance of any offence is taken on the basis of the report submitted by the police and the magistrate would, therefore, proceed with the enquiry or trial which had been stayed by him under Sub-section (1) of Section 210. In the present case, even though the magistrate did not stay his hand under Sub-section (1) of Section 210, assuming that on the date he directed for an enquiry Under Section 202 of the Code of Criminal Procedure in the complaint case, an investigation, was in progress by the police in relation to the self-same offence, yet the police having submitted a final form on 19-8-1988, and no recognisance of any offence having been taken on the basis of the police papers, the magistrate was fully empowered to pass appropriate orders with regard to the taking of cognisance in the complaint case on the basis of the materials produced before him in the complaint case itself and consequently, the order of the magistrate taking cognisance of the offence dated 8-3-1989 does not suffer from any infirmity. The first contention of Mr. Rao accordingly stands rejected.
6. So far as the second submission of Mr. Rao is concerned, I also do not find any force in the same. Chapter-XV of the Code of Criminal Procedure commencing from Section 200 and concluding with Section 203 deals with complaints to magistrate. A combined reading of Sections 200 to 203 makes it abundantly clear that in the complaint case, the magistrate is required to consider the statements on oath, if any, of the complainant and of the witnesses and the result of the enquiry or investigation, if any, Under Section 202 of the Code of Criminal Procedure. The Supreme Court in the case of Chandra Deo Singh v. Prakash Chandra Bose alias Chabi Bose, AIR 1963 SC 1430 : (1963 (2) Cri LJ 397), has construed the provisions contained in Sections 202 and 206 of the Code of Criminal Procedure and has held that a Magistrate acting Under Section 203 of the Code has to satisfy himself that there is sufficient ground for proceeding and in order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry Under Section 202 or statements made in an investigation under that section, as the case may be, but he is not entitled to rely upon any material besides this. It has also been held in the said case that where the magistrate had ordered an enquiry Under Section 202 by another magistrate, it is not open to him to consider the statements recorded during investigation by the police, or the evidence adduced before him during the enquiry arising out of another complaint and if the magistrate has based his decision in dismissing the complaint on such extraneous matter, the proceeding would be vitiated. No doubt, the aforesaid decision indicates the materials to be considered for dismissing a complaint Under Section 203, but the same reasons would apply with regard to the materials to be considered for taking cognizance of an offence in a complaint case. In the premises, as aforesaid, Mr. Rao's second contention is wholly devoid of force and is accordingly rejected.
7. It has been held by the Supreme Court in large number of cases that inherent jurisdiction of this Court has to be exercised sparingly and only when this Court comes to the conclusion that otherwise there would be manifest injustice or there has been a glaring defect in the proceeding. In the present case, after applying my mind to the materials on record, I do not find any infirmity in the order taking cognisance so as to be interfered with by this Court in exercise of inherent jurisdiction.
In the result, this application fails and is dismissed.