Allahabad High Court
Anand Kumar Pandey vs State Of U.P. And 3 Ors on 11 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 1383
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 76 Case :- CRIMINAL REVISION No. - 544 of 2020 Revisionist :- Anand Kumar Pandey Opposite Party :- State Of U.P. And 3 Ors Counsel for Revisionist :- Santosh Kumar Shukla Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Santosh Kumar Shukla, learned counsel for the revisionist, Mr. Sheetal Prasad Chakarvorty and Mr. P.K. Shahi, learned counsel for the State and perused the record.
2. This criminal revision under section 397/401 Cr.P.C. has been preferred by the revisionist against the impugned order dated 20.12.2019 passed by the learned Chief Judicial Magistrate, Auraiya in Complaint Case No. 4329 of 2019, arising out of Misc. Case No. 268 of 2019 (Anand Kumar Pandey vs. Rani Devi and others), whereby the application moved under Section 156 (3) Cr.P.C. was treated as complaint and proceeded to record the statement under Section 200 Cr.P.C.
3. The brief allegations as alleged in the present case are that the complainant / revisionist filed an application under Section 156(3) Cr.P.C. on 11.06.2019 before the learned Magistrate stating therein that the complainant had purchased land no.127/1 situated at Mauja Manepur, Phaphund, District-Auraiya from the opposite party no.3 and, thereafter, his name entered in the revenue record and he was absolute owner of the said land. Some trees were standing over the said land, but the accused opposite party no.2 to 4 obtained permission from the Forest Department by way of forged affidavit mentioned situation of trees in between Gata No.127/1 and 127/2, which was absolutely wrong. Thereafter, the accused opposite parties with joint conspiracy cut down the said trees situated at Gata No.127/1 only and committed offence of forgery and cheating by way of misrepresenting the correct situation of trees, whereas, the opposite party no.2 had already sold the said land to the complainant in the year 2011. With regard to the same, the complainant tried to lodge a first information report but no report was lodged. He had also sent a registered complaint to the Superintendent of Police, Auraiya even then no action was taken by the police though a cognizable offence has been made out against the accused persons. Therefore, the application under Section 156(3) Cr.P.C. was moved by the complainant/ revisionist before the concerned court below for registration of the first information report.
4. It has been contended by learned counsel for the revisionist that vide order dated 20.12.2019, the concerned court below while disposing of the said application under Section 156 (3) Cr.P.C. has treated the same as complaint and directed it to be registered as complaint case fixing date for recording statement of the complainant under Section 200 Cr.P.C.
5. Learned counsel for the revisionist vehemently submits that from perusal of the application under Section 156(3) Cr.P.C. itself, a cognizable offence was made out and as such, it was required for the concerned court below to direct the police to investigate the matter. However, the learned Magistrate instead of directing for registration of the first information report treated the same as complaint, though cognizable offence is made out against them, therefore, the order passed by the court below is unsustainable in the eye of law.
6. Learned counsel for the revisionist has relied upon the judgment of the Hon'ble Apex Court in the case of Lalita Kumari vs. Government of U.P. and Others reported in 2014 (2) SCC 1, the Hon'ble Apex Court has laid down guidelines holding that an obligation is cast on a police officer to register a first information report under Section 154 of the Code of Criminal Procedure upon receiving any information relating to commission of a cognizable offence. It is contended that the Hon'ble Apex Court has categorically held that the registration of F.I.R. is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. Only in a case where the information received does not disclose a cognizable offence, the necessity for a preliminary inquiry may arise which may be conducted only to ascertain whether cognizable offence is disclosed or not. In that case also, once the preliminary inquiry discloses the commission of a cognizable offence, the F.I.R. must be registered.
7. Per contra learned A.G.A. has contended that the order passed by the court below suffers from no error. The learned Magistrate is well within his power to treat the same as complaint. When an application is moved under Section 156 (3) Cr.P.C. it is not necessary to direct in every case to register the first information report, hence in view of the decision of this court in Sukhbasi's (supra) case the court below has treated the same as complaint.
8. Having heard the learned counsel for the revisionist and perusing the impugned order as well as the complaint, this Court does not find substance in the argument of the learned counsel for the revisionist. To appreciate the legal position in this regard, it is appropriate to have reference to provision of Sections 154 and 156 Cr.P.C before proceeding further. Provision of Sections 154 and 156 Cr.P.C is reproduced as under:-
"154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
"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)No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned."
9. Perusal of the provision of Section 156 (3) Cr.P.C shows that a Magistrate is empowered to direct the Station House Officer of the Police Station concerned to investigate the case; qua which a Magistrate is competent to take cognizance under Section 190 Cr.P.C. At this stage, it is also useful to have reference of Section 190 Cr.P.C which is as under:-
"190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."
10. Perusal of aforesaid Section 190 Cr.P.C shows that a Magistrate has a wide power to take cognizance of an offence either on police report or on receipt of the complaint constituting such an offence, or upon information received from any person or even on his own knowledge as well; that such as offence has been committed.
11. Further, perusal of the aforesaid provisions, it is evident that the police can investigate into matters relating to commission of 'cognizable offences' brought to its notice under section 154 CrPC. Officer-in-charge of police station has power to investigate U/s 156(1) Cr.P.C. in such case. Magistrate has power to take cognizance U/s 190 Cr.P.C. on receiving the 'complaint'. Thus the matter relating to section 156 (3) Cr.P.C. relates to power of Magistrate to order investigation by police in matters relating to cognizable offences brought before it through complaint. Complaint has been defined in section 2(d) Cr.P.C. of as follows :-
"complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but does not include a Police report."
Code of Criminal Procedure has given different type of powers to deal with such matters relating to commission of cognizable offences when brought before it.
12. In the case of Lalita Kumari vs. Government of U.P. and Others reported in 2014 (2) SCC 1, the question which arose for consideration on a reference was "whether a police officer is bound to register a first information report (FIR) upon receiving an information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short "Code") or the police officer has the power to conduct a preliminary inquiry in order to test the veracity of such information before registering the same in the context of the question before it.
13. The five judges Bench of Hon'ble Apex Court in the case of Lalita Kumari (supra), taking note of the provisions contained in Section 154, 156 & 157 in Chapter XII of the Code of Criminal Procedure has held in paragraph nos. 120 to 120.8 as under:-
"120. In view of the aforesaid discussion, we hold:-
120.1 The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2 If the information received does not disclose commission of a cognizable offence but indicates that the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith (not later than one week) disclosing reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering an offence if cognizable is disclosed. Action must be taken against an erring officer who do not register the FIR if information received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise by the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases the preliminary inquiry is to be conducted, will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are identified as under:-
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8 Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
14. Acquainting the above directions issued by the Hon'ble Apex Court in the case of Lalita Kumari (supra), in the context of the question referred before it, it is evident that all the directions issued therein apply in the matter of receipt of information of commission of a cognizable offence by the police and the stage of "investigation" as defined in Section 2(h) of the Code to be made by the police in exercise of power conferred upon it under Chapter XII of the Code.
15. From a careful reading of the observations and directions issued by the Apex Court in Lalita Kumari's (supra) case, it cannot be said that they relate in any manner or curtail the power of the Magistrate to make an "inquiry" as defined in Section 2(g) of the Code. The Hon'ble Apex Court has also observed as follows:-
"87. The term "inquiry" as per Section 2(g) of the Code reads as under:
"2.(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court."
Hence, it is clear that inquiry under the Code is relatable to a judicial act and not to the steps taken by the Police which are either investigation after the stage of Section 154 of the Code or termed as "preliminary inquiry" and which are prior to the registration of FIR, even though, no entry in the General Diary/Station Diary/Daily Diary has been made.
88. Though there is reference to the term "preliminary inquiry" and "inquiry" under Sections 159 and Sections 202 and 340 of the Code, that is a judicial exercise undertaken by the Court and not by the Police and is not relevant for the purpose of the present reference."
16. The question of power of Magistrate to order investigation under Section 156(3) Cr.P.C. came up for consideration before the Hon'ble Apex Court in the case of Mohammad Yousuf vs. Smt. Afaq Jahan & another reported in 2006 (1) SCC 627 wherein the Hon'ble Apex Court has held that the "investigation" under the directions of the Magistrate under Section 156(3) Cr.P.C. falling within Chapter XII contemplates "investigation" by the police authorities. Whether the investigation is started by the police by the registration of FIR on the information received by it or under the order of the Magistrate under Section 156(3) Cr.P.C., it would be same kind of investigation which would end up only with the report contemplated under Section 173 of the Code. But when a Magistrate orders "investigation" under Chapter XII, he does so before he takes cognizance of the offence under Chapter XV of the Code. It has also held that Chapter XV of the Code which confers power on the Magistrate to order "investigation" under Section 202 of the Code deals with the provisions relating to the steps which a Magistrate may adopt after taking cognizance of an offence on a complaint. Thus, the investigation under Section 202, which falls under Chapter XV, though refers to the power of a Magistrate to direct an investigation by a police officer, but is different from the "investigation" contemplated in Section 156(3) falling within Chapter XII of the Code.
17. The relevant paragraphs nos. 9, 10 & 11 of Mohammad Yousuf's (Supra) case are to be quoted herein:-
"9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. "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".
10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.
11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."
18. Further it is well settled law as laid down by the Hon'ble Apex Court in the cases of R.R. Chari vs the State of Uttar Pradesh reported in AIR 1951 SC 207, Narayandas Bhagwandas Madhavdas vs. State of West Bengal reported in AIR 1959 SC 1118 and Gopal Das Sindhi & others Vs. State of Assam & another reported in AIR 1961 SC 986 as also the decision of the Calcutta High Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Abani Kumar Banerjee reported in AIR 1950 Calcutta 437.
19. The relevant part of Superintendent and Remembrancer of Legal Affair's (supra) case is quoted herein below:-
".........."What is taking cognizance has not been defined in the Code of Criminal Procedure and I have no desire to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) of the Cr PC, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter --proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence." were approved by this Court in R.R. Chari v. State of Uttar Pradesh[1951 SCR 312] . It would be clear from the observations of Mr Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind, e.g. ordering investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. The observations of Mr Justice Das Gupta above-referred to were also approved by this Court in the case of Narayandas Bhagwandas Madhavdas v. State of West Bengal [1960 (I) SCR 93] .
It will be clear, therefore, that in the present case neither the Additional District Magistrate nor Mr Thomas applied his mind to the complaint filed on August 3, 1957, with a view to taking cognizance of an offence. The Additional District Magistrate passed on the complaint to Mr Thomas to deal with it. Mr Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mind to it with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police under Section 156(3) of the Code. The action of Mr Thomas comes within the observations of Mr Justice Das Gupta. In the circumstances, we do not think that the first contention on behalf of the appellants has any substance."
20. Further, in the case of Jamuna Singh Vs. Bhadai Shah, reported in AIR 1964 SC 1541 wherein the Hon'ble Apex Court observed as under:-
"............when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under s. 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence. It was so held by this Court in R.R. Chari v. State of U. P.(1) and again in Gopal Das v. State of, Assam(2) In the case before us the Magistrate after receipt of Bhadai Sah's complaint proceeded to examine him under s. 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under s. 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by s. 200 the Magistrate could have issued process at once under s. 204 of the Code of Criminal Procedure or could have dismissed the complaint under s. 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under s. 202 of the Code of Criminal Procedure. That section empowers the Magistrate to "postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint." If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under s. 203 of the Code of Criminal Procedure.
We find that in the case before us the Magistrate after completing the examination under s. 200 of the Code of Criminal Procedure and recording the substance of it made the order in these words :--
"Examined the complaint on s.a. The offence is cognizable one. To S.I. Bakunthpur for instituting a case and report by 12.12.56."
If the learned Magistrate had used the words "for investigation" instead of the words "for instituting a case" the order would clearly be under s. 202 01' the Code of Criminal Procedure. We do not think that the fact that he used the words "for instituting a case" makes any difference. It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under s. 156(3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under s. 202 of the Code of Criminal Procedure and not under s. 156(3) of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under s. 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under s. 202 of the Code of Criminal Procedure and not under s. 156(3) of the Code. It would be proper in these circumstances to hold that though the Magistrate used the words "for instituting a case" in this order of November 22, 1956 he was actually taking action under s. 202 of the Code of Criminal Procedure, that being the only section under which he was in law entitled to act."
21. As to what would mean "by taking cognizance" has been clarified by the Apex Court in the case of R.R. Chari vs. the State of Uttar Pradesh reported in AIR 1951 SC 207. The relevant paragraph Nos. 8 & 9 of the said judgment read as under:-
"8. In Gopal Marwari v. Emperor (1), it was observed that the word 'cognizance' is used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. it is a different thing from the initiation of proceedings. It is the condition precedent to the initiation of proceedings by the Magistrate. The court noticed that the word 'cognizance' is a word of somewhat indefinite import and it is perhaps not always used in exactly the same sense.
"9. After referring to the observations in Emperor v. Sou-rindra Mohan Chuckerbutty (2), it was stated by Das Gupta J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (3) as follows :-
"What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under section 190 (1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter-- proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under section 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."
In our opinion that is the correct approach to the question before the court."
22. Further the aforesaid view had been noted with approval by the Apex Court in the case of Narayandas Bhagwandas Madhavdas vs. State of West Bengal reported in AIR 1959 SC 1118 by observing as under:-
"............It is, however, argued that in Chari's case this Court was dealing with a matter which came under the Prevention of Corruption Act. It seems to us, however, that makes no difference. It is the principle which was enunciated by Das Gupta, J., which was approved. As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under s. 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure or under s. 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance."
23. Thereafter, the Full Bench of this Court in the case of Ram Babu Gupta Vs. State of U.P. & others reported in 2001 (43) ACC 50 has held that it is not possible to hold that when an application is moved before the Court only for exercise of powers under Section 156(3) Cr.P.C., it will remain an application only and would not be in the nature of the complaint. It was held that in any case, the Magistrate has to apply his mind on the allegations in the complaint to use his powers under Section 156(3) Cr.P.C. It was, thus, held that:-
"on receiving a complaint the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The order of the Magistrate must indicate application of mind. If the Magistrate takes cognizance; he proceeds to follow the procedure provided in Chapter XV of Cr.P.C."
24. In India Carat Pvt. Ltd. vs. State of Karnataka reported in 1989 (2) SCC 132, considering the provisions as contained in Chapter XIV, Chapter XV and Chapter XVI of the Code, it was observed in paragraph 13' as under:-
"13. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him................... ....................Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(c) and issue process straightaway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued."
25. The question regarding the power of Magistrate to order investigation under Section 156(3) Cr.P.C. further came up for consideration before the Apex Court in the case of Sakiri Vasu vs. State of U.P. & Ors. reported in 2008 (2) SCC 409; wherein it is observed that Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII of the Code. In case where the Magistrate finds that the police has not done its duties of investigating the case at all or has not done it satisfactorily, he can issue direction to the police to do the investigation properly and can also monitor the same.
26. It was held therein that although Section 156(3) Cr.P.C. is very briefly worded but there is an implied power with the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal case and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same.
27. The above view taken in Sakiri Vasu's (supra) case is supported by the reasoning therein that even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., they are implied in the said provision as when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. Relevant paragraph Nos. 18, 19 & 20 of the aforesaid judgement are noted as under:-
"18. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.
19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd edn. Page 267):-
If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission.
20. In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein."
28. The abovenoted views have been considered in a latest decision judgment of the Hon'ble Apex Court in the case of Vinubhai Haribhai and Malaviya & Ors. vs. State of Gujarat & Anr. Reported in 2019 SCC Online SC 1346 while dealing with the power of the Magistrate to order further investigation under Section 173(8) Cr.P.C. of the Code after the charge sheet is filed and cognizance is taken. The argument there was that the Magistrate would have no power to order further investigation into an offence after he takes cognizance of the offence on submission of the charge-sheet on the direction issued by it under Section 156(3) of the Code. Dealing with the said argument, it was observed that the power of a Magistrate under Section 156(3) of the Code is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. Relevant paragraph nos. 23 and 24 of the aforesaid judgment are quoted as under:-
23. It is thus clear that the Magistrate's power under Section 156(3) of the CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a "proper investigation" takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to ensure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the "investigation" referred to in Section 156(1) of the CrPC would, as per the definition of "investigation" under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC.
24. However, Shri Basant relied strongly on a Three Judge Bench judgment in Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors. (1976) 3 SCC 252. This judgment, while deciding whether the first proviso to Section 202 (1) of the CrPC was attracted on the facts of that case, held:
"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 in 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 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 case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him." This judgment was then followed in Tula Ram & Ors. v. Kishore Singh (1977) 4 SCC 459 at paragraphs 11 and 15."
29. It may further be relevant to quote paragraph nos. 25 & 26 of Vinubhai's (supra) case, which read as under:-
25. Whereas it is true that Section 156(3) remains unchanged even after the 1973 Code has been brought into force, yet the 1973 Code has one very important addition, namely, Section 173(8), which did not exist under the 1898 Code. As we have noticed earlier in this judgment, Section 2(h) of the 1973 Criminal Procedure Code defines "investigation" in the same terms as the earlier definition contained in Section 2(l) of the 1898 Criminal Procedure Code with this difference - that "investigation" after the 1973 Code has come into force will now include all the proceedings under the CrPC for collection of evidence conducted by a police officer. "All" would clearly include proceedings under Section 173(8) as well. Thus, when Section 156(3) states that a Magistrate empowered under Section 190 may order "such an investigation", such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of "investigation" contained in Section 2(h).
26. Section 2(h) is not noticed by the aforesaid judgment at all, resulting in the erroneous finding in law that the power under Section 156(3) can only be exercised at the pre-cognizance stage. The "investigation" spoken of in Section 156(3) would embrace the entire process, which begins with the collection of evidence and continues until charges are framed by the Court, at which stage the trial can be said to have begun. For these reasons, the statement of the law contained in paragraph 17 in Devarapalli Lakshminarayana Reddy (supra) cannot be relied upon.
(emphasis added)
30. In Ramdev Food Products Private Ltd. vs. State of Gujarat, reported in 2015 (6) SCC 439, the Apex Court after considering the provisions in Chapter XII, Chapter XIV and Chapter XV has considered the law laid down by the Apex Court in Lalita Kumari's (supra). The relevant paragraph nos. 19 and 22 of the aforesaid case are herein under:-
"19. Thus, this Court has laid down that while prompt registration of FIR is mandatory, checks and balances on power of police are equally important. Power of arrest or of investigation is not mechanical. It requires application of mind in the manner provided. Existence of power and its exercise are different. Delicate balance had to be maintained between the interest of society and liberty of an individual. Commercial offences have been put in the category of cases where FIR may not be warranted without enquiry.
22. Thus, we answer the first question by holding that the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed". Category of cases falling under Para 120.6 in Lalita Kumari (supra) may fall under Section 202. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case."
31. Further in the case of Anil Kumar vs. M.K. Aiyappa reported in (2013) 10 SCC 705, the Hon'ble Apex Court has held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C. Relevant paragraph no.11 is as under:-
"11. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore, clothed with all the magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options. He may take cognizance of the offence under Section 190 Cr.P.C. or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) Cr.P.C. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) Cr.P.C."
32. Further another judgment of Hon'ble Apex Court in the case of Madhao v. State of Maharashtra reported in (2013) 5 SCC 615; wherein the Apex Court held that magistrate had not exceeded his power nor violated any of the provisions contained in the Code. It is also settled position that any judicial magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code. Relevant paragraph nos.13, 14, 15 & 16 of the said judgment is as under:-
13. When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the 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 taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of 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). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3).
14. 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 straightaway 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.
15. 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.
16. 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 straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 of the Code."
33. After perusing the whole scheme of Code of Criminal Procedure as well as the law settled by the Hon'ble Apex Court in the aforesaid judgments, it is evident that if a person has a grievance that his FIR has not been registered by the police, his first remedy is to approach the Superintendent of Police with written application under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. In case of S.P. also does not still registered FIR, no proper investigation is done, in such a case, the aggrieved person can approach concerned Magistrate under Section 156(3) Cr.P.C. On receipt of the complaint, however, several courses are open to the Magistrate:-
(i) 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.
(ii) 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 straightaway 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.
(iii) 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.
(iv) 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 straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190.
34. Thus, the above discussion pertaining to the power of the Magistrate under Section 156(3) Cr.P.C. in Chapter XII read with Section 190 in Chapter XIV of the Code leaves no room for doubt that there is nothing in the Code of the Criminal Procedure, which curtails or puts any embargo on the power of the Magistrate to make an "inquiry" as defined under Section 2(g) of the Code or to order for "investigation" defined under Section 2(h) of the Code, in dealing with the application under Section 156(3) Cr.P.C., i.e. in exercise of the power conferred upon it under Chapter XII or Chapter XIV of the Code to satisfy itself about the veracity of the allegations of commission of a criminal offence made therein.
35. In its discretionary power, it is open for the Magistrate to direct the police to register a criminal case under Section 154 Cr.P.C. and conduct investigation. At the same time, it is open for the Magistrate, where the facts of the case and the ends of justice so demand, to take cognizance of the matter by treating it as a complaint and proceed for the "inquiry" under Section 200 and 202 Cr.P.C.
36. It cannot be said nor it could be demonstrated that in each case, without application of its independent mind, the Magistrate shall issue simply direction to lodge a FIR and investigate the matter on an application filed under Section 156(3) Cr.P.C. The power to conduct a preliminary inquiry into the report of commission of criminal offence, conferred on the Magistrate within the provisions of the Code of Criminal Procedure has not been curtailed by any of the observations made by the Apex Court in the case of Lalita Kumari's (supra).
37. However, it is pertinent to note that while exercising its discretionary power under Section 156(3) Cr.P.C., the Magistrate like any other Court of discretionary jurisdiction is to act fairly and consciously and ensure that the discretion conferred upon it is exercised within the limits of judicial discretion. The entire emphasis is to act in an unbiased and just manner, strictly in accordance with law, to find out the truth of the case which shall come before it. It is a Magistrate who is the competent authority to take cognizance of an offence and it is his duty to decide whether on the basis of the record and documents produced, an offence is made out or not and if made out, what course of law should be adopted.
38. Keeping the above principles, if I test the same with the direction issued by the magistrate for treating the revisionist's application under Section 156(3) of the Code as complaint case and facts of these cases, it cannot be said that the Court concerned has committed illegally in exercise of its discretionary jurisdiction under Section 156(3) Cr.P.C. or it has exceeded in its jurisdiction in any manner or has exercised jurisdiction not vested in it in law. It cannot be said also that any material injustice has been caused to the applicant on account of the decision of the Court below to treat the application under Section 156(3) Cr.P.C. as a complaint for the purpose of deciding whether or not there is sufficient ground for proceeding, rather than directing the police to register an FIR and investigate under Section 154 of the Code.
39. In view of the above discussions, there is no illegality or infirmity in the impugned order dated 20.12.2019 passed by the concerned Magistrate, which would warrant interference by this Court in exercise of its revisional jurisdiction.
40. The revision is, thus, found devoid of merits and hence dismissed.
(Manju Rani Chauhan, J.) Order Date :- 11.02.2020 JK Yadav