Rajasthan High Court - Jaipur
Mst Laxma And Ors vs Jagdish And Anr on 8 March, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CRIMINAL MISC. PETITION NO.3924/2012 Mst. Laxma & Ors. vs. Jagdish & Anr. Date of Order: 08/03/2013 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Reportable Mr. Nawal Singh Sikarwar, learned counsel for the petitioners, Mr. G.S. Fauzdar, Public Prosecutor and Mr. Mukesh Kumar Verma, learned counsel for complainant respondent were heard on 05.03.2013 and they had concluded their submissions. But on account of paucity of time, the order could not be completed and therefore, the matter was listed for today.
2. By this criminal miscellaneous petition, the accused persons have challenged the order dated 28.08.2012 and prayed that the same be quashed and set aside. Further, it has been prayed that the criminal complaint filed by respondent No.1 be rejected.
3. In short, the facts of the case are that respondent No.1 filed a criminal complaint on 10.01.2011 in the Court of Civil Judge (JD) and Judicial Magistrate, Lalsot, District Dausa against the petitioners for the alleged offences under Section 420, 467, 468 and 120-B IPC and with the prayer that an order under Section 156(3) Cr.P.C. be passed to send the complaint to Police Station Rajgarh Pachwara for registration of the report and proceeding against the accused, in accordance to law.
Thereafter, on receiving the report from the office, the matter was kept for 11.01.2011. On the next date of hearing i.e. 11.01.2011, the learned court below had ordered that the statement of the complainant needs to be recorded under Section 200 Cr.P.C. and the case was posted for 10.02.2011. Subsequently, for one reason or the other, the statement of the complainant Jagdish could not be recorded and it was only on 07.01.2012, that the same was done. Besides, the statements of the complainant, the statements of his witnesses namely Sitaram and Ramsahai were recorded, on 07.01.2012 itself. Later on, the statement of the another witness of the complainant, namely Ramchandra was recorded on 17.02.2012.
The learned court below had then posted the case for argument on cognizance on 16.03.2012. It was on 18.05.2012 that the arguments on cognizance were heard. Thereafter, the impugned order came to be passed on 28.08.2012 whereby the learned court below had ordered that the complaint filed by the respondent Jagdish be sent to SHO, Police Station Ramgarh Pachwara with the direction that he shall register the case and investigate the matter in the light of the complaint and the statements on oath recorded before the court and shall submit the conclusion before the Court.
It is informed that subsequent to passing of the said order, the police registered a case (283/2012) for the offence under Section 420, 467, 468 and 120B IPC and after investigation found the case to be one of submitting final report on the ground of absence of incident and false information. On the said final report, recommendation was made by the Superintendent of Police, Dausa on 30.12.2012. Subsequently, Final Report No.102/2012 dated 30.12.2012 was chalked out and the Superintendent of Police, vide letter No.4284 dated 18.02.2013, directed for submitting the same in the court concerned.
4. It has been submitted by the learned counsel for the petitioner that the impugned order passed by the learned court below on 28.08.2012 is illegal and contrary to the principles of law. Further, he has submitted that the learned court below has committed grave error in law by remitting the matter for investigation after recording of the statements of complainant and and his witnesses under Section 200 and 202 Cr.P.C. It has also been submitted that the court has failed to appreciate the material facts of the case, as revealed from the impugned order, in its true perspective. He has also submitted that from the complaint and other material, it is apparent that the dispute between the parties is of a civil nature and therefore, the learned court below should not have remitted the case for investigation. This submission advanced by the counsel for the petitioner is further fortified from the fact that after registration of the case and on investigation of the matter, the police had also come to the conclusion that no case is made out and a final report was accordingly recommended. Therefore, the learned counsel for the petitioner submitted that the impugned order deserves to be quashed and set aside.
5. On the other hand, the learned counsel for the complainant respondent, who seems to have put in appearance on his own as no notices were issued in this miscellaneous petition, has strongly opposed the contentions raised by the counsel for the petitioner and tried to support the order passed by the court on 28.08.2012. He has submitted that no error has been committed by the court in sending the matter for investigation to the police as the law envisages that the Magistrate may inquire the matter himself or direct an investigation to be made by a police officer for the purpose of deciding that there are sufficient grounds for proceeding against the accused. On the said premise, the counsel for the complainant respondent has submitted that no interference is called for by this court and this criminal miscellaneous petition deserves to be dismissed.
6. At the outset, the sequence of events of the present case and the facts which are not in dispute needs to be taken note of. The respondent complainant filed a complaint on 10.01.2011 with the prayer that the same be sent to Police Station Ramgarh Pachwara in exercise of the powers under Section 156(3) Cr.P.C. and direction be issued to proceed against the accused in accordance to law. After filing of the said complaint and on receipt of the office report, the matter was listed on 11.01.2011 and it was ordered that the statement of the complainant be recorded under Section 200 Cr.P.C. Accordingly, the case was thereafter listed for the statement of the complainant under Section 200 Cr.P.C. and his witnesses under Section 202 Cr.P.C. As many as three witnesses were produced by the complainant. Subsequently, the learned court below, after considering the facts of the case and the statements of the complainant as well as his witnesses recorded before it, passed the impugned order in the term that the complaint be sent to the Police Station Ramgarh Pachwara for registration of the case and investigate the matter also in the light of the statements given before the court and thereafter submit the conclusion.
7. In other words, after filing of a complaint by the respondent with a specific prayer made therein to pass an order under Section 156(3) Cr.P.C. for the purpose of registration of the case and to investigate the same thereafter, the learned court below after registration of the case on 11.01.2011, ordered for proceeding under Chapter XV of the Code of Criminal Procedure for recording the statement of the complainant Jagdish under Section 200 of the Code. Thereafter, the case was listed for evidence of the complainant on 23.03.2011, 15.04.2011, 25.05.2011, 27.06.2011, 15.07.2011, 01.08.2011, 03.09.2011, 10.10.2011, 11.11.2011 and 28.11.2011. Subsequently, the statement of the complainant Jagdish was recorded on 07.01.2012 and also that of his witnesses Sitaram and Ram Sahai. On 17.02.2012, the statement of another witness Ramchandra was recorded under Section 202 Cr.P.C. The matter was then ordered to be listed on 16.03.2012 for arguments on cognizance. The case had then remained pending for arguments on cognizance on 16.03.2012, 17.04.2012, 04.06.2012, 19.07.2012 and 09.08.2012. It was on 28.08.2012 that the impugned order came to be passed by the learned court below with the direction to the police to register the case and to investigate the matter.
8. Before adverting to the merits of this case as well as legality and correctness of the impugned order dated 28.08.2012 and also the procedure which had been followed in the instant case by the learned court below, it would be appropriate to refer the relevant provisions of law herein:-
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 sub-section (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.
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.
200. Examination of complainant.-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 inquiry 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.
202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction 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 Sessions; 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 witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them 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 Court on an officer in charge of a police station except the power to arrest without warrant.
203. Dismissal of complaint.-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
204. Issue of process.-(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
9. From the aforesaid provisions of law, it is revealed that every information relating to commission of a cognizable case, orally or in writing, to an officer-in-charge of the police station is to be reduced in writing by him or under his directions and the substance thereof is to be entered in a book to be kept by such officer, in such form, as may be prescribed by the State Government. The power of a police officer to investigate a cognizable case are given under Section 156(1) Cr.P.C., who may, without the order of a Magistrate, investigate the same. Further, any Magistrate is empowered under Section 190 Cr.P.C. to order such an investigation under sub-section 3 of Section 156 Cr.P.C.
Section 190 Cr.P.C. of Chapter XIV relates to cognizance of offence by a Magistrate. According to it, any Magistrate of first class, may take cognizance of any offence, (a) upon receiving a complaint of facts which constitute such offence and (b) upon a police report of such facts. When a complaint of facts constitutes an offence is received by a Magistrate then he takes the cognizance of same under Section 190(1)(a) Cr.P.C. But when a Magistrate receives a police report of such facts then he takes a cognizance of an offence under Section 190(1)(b). As noted earlier, so far as the police report submitted to the Magistrate is concerned, the same is received only when an order is passed to the police to investigate a cognizable case under Section 156(3) Cr.P.C. The power of police officer to investigate a cognizable case is envisaged under Section 156(1) Cr.P.C. whereas the power of a police office to investigate a cognizable offence on the order of a Magistrate, lies under Section 156(3) Cr.P.C.
10. When an application/ complaint is filed before a Magistrate with a prayer that the same be investigated after registration by the police then the Magistrate can, in exercise of his powers under Section 156(3) Cr.P.C., order to a police officer to register the complaint and investigate the same. But such an order is to be passed by a Magistrate when the complaint/ application relates to a cognizable case. Therefore, before sending a complaint/ application to a police officer for registration and investigation, a Magistrate has to see that the same relates to a cognizable case. In other words, he is to consider and assess the complaint/ application as to whether any cognizable case is made out from it or not.
11. It is to be noted that when a complaint/ application is filed before the Magistrate and he decides to exercise the powers under Section 190(1)(a) then it is deemed that he has taken cognizance of the offence. Accordingly, he would then proceed under Chapter XIV and XV of the Code. But where a complaint is received by the Magistrate and he is not to entertain the same under Section 190(1)(a) and is requested to send it to the police officer, by exercising powers under Section 156(3) Cr.P.C., then the same shall be registered at the police station and on investigation, a report is to be sent to the Magistrate which falls under Section 190(1)(b) Cr.P.C. It is at that stage that the Magistrate takes cognizance upon a police report under Section 190(1)(b) Cr.P.C.
Further, where a cognizance of an offence is taken by the Magistrate under Section 190 Cr.P.C. on receiving complaint of facts which constitutes the offence under Section 190(1)(a) Cr.P.C., then he decides to proceed himself under the subsequent provisions after registration of the same. But on receipt of a complaint, the Magistrate decides to exercise powers under Section 156(3) Cr.P.C. and sends the same to a police officer for registration then it is only after a receipt of a report from the police under Section 190(1)(b) that the Magistrate takes the cognizance of the same and proceeds under a different procedure meant for such cases. Needless to say that procedure to be adopted by the Magistrate on a complaint case and on a police report are different in law and similar is the position of trial of such cases.
12. In case a Magistrate decides, on receiving of complaint of facts, to take cognizance under Section 190(1)(a) Cr.P.C., he shall examine upon oath the complainant and the witness present, if any. A Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance, may, if he thinks fit, postpone the issue of process against the accused and either inquire into the matter himself or direct an investigation to be made by a police officer, for the purpose of deciding whether there is no sufficient grounds for proceeding. In other words, a cognizance of an offence is taken by a Magistrate under Section 190 Cr.P.C. on receiving of complaint of facts or a police report; the statement of a complainant and his witnesses are recorded under Section 200 Cr.P.C. and if thought proper, he may postpone the issue of process against the accused and inquire the case himself or direct an investigation to be made by a police officer. Such an enquiry by the Magistrate or the police officer, if ordered to be made under Section 202 Cr.P.C. comes only after taking of cognizance under Section 190 Cr.P.C.
Therefore, taking of cognizance by a Magistrate on a complaint or on a police report is completed as soon as he applies his mind and decides to proceed in accordance to subsequent provisions of law, such as Section 200 Cr.P.C., etc.
13. As back as in the year 1951 the Hon'ble Supreme Court had considered this question in the Case of R.R. Chari Vs. The State of Uttar Pradesh, AIR (38) 1951 SC 207. After taking into consideration the facts and circumstances of that case, the Hon'ble Supreme Court while considering the provisions of Section 190 Cr.P.C. approved the observations of Calcutta High Court in the Case of Supdt. & Remembrancer of Legal Affairs, W.B. Vs. Abani Kumar, AIR (37) 1950 Cal. 437 and held as follows:-
What is taking cognizance has not been defined in the Cr.P.C. & 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 u/S. 190(1)(a), Cr.P.C., he must not only have applied his mind to the contents of the petitioner, 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 & thereafter sending it for inquiry & 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 the case of, Narayandas Bhagwandas Madhavdas vs. The State of West Bengal, AIR 1959 SC 1118, it was held as under:-
...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 section of Chapter XVI of the Code of Criminal Procedure or under Section 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.
Subsequently, in the case of Ajit Kumar Palit vs. State of West Bengal & Anr., (AIR) 1963 SC 765, it was observed as under:-
...The word cognizance has no esoteric or mystic significance in criminal law or procedure. It merely means-become aware of and when used with reference to a Court or Judge, to take notice of judicially...
taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence. Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled.
Later on, in the case of Devarapalli Lakshminarayana Reddy & Ors. Versus V. Narayana Reddy & Ors. 1976 Cr.L.J. 1361, it was held as under:-
It is well settled that 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. This is clear from the use of the words may take cognizance which in the context in which they occur cannot be equated with must take cognizance. The word may gives a discretion to the Magistrate 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, himself.
...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 by the police under Section 156(3), he cannot be said to have been taken cognizance of any offence..
The Hon'ble Supreme Court in the Case of Nirmaljit Singh Hoon Vs. The State of West Bengal & Ors., AIR 1972 SC 2639 had held that if a Magistrate orders for investigation under section 156(3) Cr.P.C. and issues a warrant for further investigation, he cannot be said to have taken cognizance of the offence and it observed, as under:-
...Secondly, it is well settled that before a Magistrate can be said to have taken cognizance of an offence under S. 190 (1) (a) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under S. 200 and the provisions following that section. But where he has applied his mind only for ordering an investigation under section 156(3) or issuing a warrant for purpose of investigation, he cannot be said to have taken cognizance of the offence...
The Hon'ble Supreme Court had again considered the question in the case of Bhagat Ram Vs. Surinder Kumar and Others, (2004)11 SCC 622, wherein the complaint was filed before the learned Magistrate who then made an order for examination of the complainant and his witnesses but having found that the matter needs further probe, the Magistrate directed for investigation to be done by the police and referred the matter to them. On receipt of the report from the police, the Magistrate considered the matter afresh and thereafter issued summons to the accused. A challenge was made before the High Court that once the cognizance had been taken and the Magistrate proceeded to hold the inquiry under section 202 Cr.P.C., he should not have referred the matter to police for investigation and should have himself proceeded in the matter. The High Court accepted the contention so raised and allowed the petition by setting aside the order of the Magistrate. The Hon'ble Supreme Court held that the procedure adopted by the learned Magistrate was perfectly in order. In that case while dealing with the issue as to when the cognizance of the offence is taken, the Hon'ble Court has observed as under:-
...Obviously, it is only when the Magistrate applies his mind for the purpose of proceeding under Section 200 Cr.P.C. and subsequent sections that it can positively be stated that he has taken cognizance.
14. The recording of the statement of the complainant and his witnesses and thereafter if it is thought proper to have an enquiry in the case himself or by a police officer under Section 202 Cr.P.C. and any order passed at this stage is only in respect of deciding as to whether there is sufficient grounds or not for proceeding against the accused and not to pass an order of taking cognizance. Cognizance of a case is already taken by the Magistrate at the stage of Section 190 Cr.P.C. and sooner he decides to register the case and to proceed under the subsequent provisions of law, the exercise of powers by the Magistrate for taking cognizance is complete. After completing the stage of Section 202 Cr.P.C., the Magistrate is only to consider the statement of the complainant and his witnesses and to consider the result of the enquiry or investigation, (if any), then he is to form an opinion whether there is sufficient ground for proceeding or not. In case, no sufficient grounds are found then the Magistrate shall dismiss the complaint under Section 203 Cr.P.C. after provisionally recording the reasons to do so.
Subsequent to it comes the stage of issuance of process under Section 204 Cr.P.C. where the Magistrate who had taken cognizance of an offence is of the opinion that there is sufficient ground for proceeding then if the case is a summons case, he shall issue summons for attendance of the accused and if it is a warrant case, he may issue warrants or summons if he thinks fit. It is at that stage that the list of prosecution witnesses should have been filed and in absence of it, no summons or warrants are to be issued against the accused.
15. Reverting back to the present case, it is to be noted that before the learned Magistrate a complaint had been filed with the prayer for exercising powers under Section 156(3); to order the police to register the case and investigate the same. The Magistrate had, after receiving the office report, ordered for recording of the statement of the complainant. While doing so, the learned Magistrate had not only crossed the stage of exercising the powers under Section 156(3) Cr.P.C. but also that of Section 190 Cr.P.C., meaning thereby he had deemed proper to take cognizance of the offence. Before that, the learned Magistrate ought to have abided by the settled principles of law that when a complaint with a specific prayer to exercise the powers under Section 156(3) Cr.P.C. is filed before it. On filing of such applications and being satisfied that a cognizable offence is made out, he should have ordered the concerning police station to register a first information report and after investigating the matter to send a report to him. After receiving of such report, which would be under Section 190(1)(b), the Magistrate is to take cognizance and proceed further.
This Court has, on occasions more than one, made it clear that after receipt of an application for exercising the powers under Section 156(3) Cr.P.C., the Magistrate is not to take it as a complaint under Section 190(1)(a) Cr.P.C. and proceed himself under the subsequent provisions of law. Such as section 200, 202 and 204 Cr.P.C. It has been elaborately dealt with by this Court in the case of Babu Lal vs. State of Rajasthan, 2009 (3) WLC (Raj.) 199 and Suresh Chand vs. The State of Rajasthan & Ors. (S.B. Cr. Misc. Petition No.1114/2012), decided on 27.02.2013.
16. Besides, the learned Magistrate had ordered for registration of the complaint on 17.02.2012. By that time, the learned Magistrate had already ordered, on 11.01.2011, for proceeding with the complaint and recording of statements under Section 200 Cr.P.C. As a matter of fact, the evidence of the complainant was over on the same day i.e. 17.02.2012 when the order for registration of complaint was passed. As mentioned above, a complaint is registered at the stage of Section 190 Cr.P.C. and it is a settled principle of law, since the celebrated judgment delivered in the case of R.R. Chari (supra) and other cases referred to earlier, that a cognizance of an offence is taken when the Magistrate decides to register and proceed with the complaint, on receiving of the same. This goes to show that there are clouds in the mind of the officer concerned as to when a complaint is registered; cognizance is taken on a complaint and order is passed for proceeding to issue process against an accused. By no stretch of imagination, a complaint can be registered at the stage when after receipt of complaint, statements of the complainant and his witnesses have already been recorded.
17. Similarly, the learned Magistrate has, subsequent to registration of the case on 17.02.2012, proceeded for hearing of arguments on cognizance. According to the procedure under law, cognizance of a compliant, whether it is received by the Magistrate himself or on a police report, is taken at the stage of Section 190 Cr.P.C. as soon as the Magistrate applies his mind and decides to proceed under the subsequent provisions of law against the accused persons. After recording of the statement of the complainant and his witnesses, the consideration to be made by the Magistrate concerned, if he thinks fit, is only in respect of deciding whether or not there is sufficient grounds for proceeding. At that stage, if the learned Magistrate is of the opinion that there is no sufficient grounds for proceeding then he is to dismiss the complaint under Section 203 Cr.P.C. If he holds it contrary, then he is to issue process against the accused under Section 204 Cr.P.C. But again, the learned Magistrate cannot, at that stage, proceed for hearing on cognizance.
18. Moreover, after having undertaken all the above procedure and the proceeding in the case had moved ahead the learned court below was not to issue direction to the police to register the case and submit report after investigating it. As mentioned above, such an order can be passed only in exercise of the powers under Section 156(3) Cr.P.C. In the instant case, the stage for exercising such powers had been over long back, when the Magistrate had proceeded under Section 190 Cr.P.C. and ordered for recording of the statement of complaint and his witnesses under Section 200 and 202 Cr.P.C. Though the learned Magistrate had mentioned in the impugned order that the complainant himself has made a prayer for sending the case to the police under Section 156(3) Cr.P.C., but that does not mean that after proceeding beyond the stage of Section 190 Cr.P.C. and recording of the statement of the complainant and his witnesses, that the Magistrate is to exercise powers under Section 156(3) Cr.P.C. at that stage. Such a power should have been exercised at the very inception of the proceeding and after filing of complaint.
19. After considering the facts of the present case and the manner in which the learned Magistrate had proceeded, it cannot be said that the impugned order passed by the court below for sending the case to the police for registration and investigation, is a one of an enquiry by the police under Section 202 Cr.P.C. Even under the said procedure, the learned Magistrate on receipt of a complaint and after taking cognizance can, if he thinks fit, postpone the issue of process against the accused and direct an investigation by a police officer only for the purpose of deciding whether or not there is sufficient grounds for proceeding. The said provisions does not empower the learned Magistrate to direct the police to register a case and then investigate the same. The complaint itself had already been registered by the learned Magistrate as 20/2012.
20. On considering the relevant provisions of the Code of Criminal Procedure and the principles of law laid down by the Hon'ble Supreme Court, it is amply clear that the impugned order passed by the learned court below that the complaint be sent to the police station for registration and investigation be done in the matter, also in the light of the statements so given before the court and thereafter submit the conclusion, is not sustainable in law. On filing of an application/ complaint under Section 156(3) Cr.P.C. and being satisfied that a cognizable offence is made out, a Magistrate should order to the concerning police station to register the same and to send a report after investigation. A report so received by the Magistrate concerned is under Section 190(1)(b) Cr.P.C. and after taking cognizance, the matter is to be proceeded further. On an application with the prayer for issuing direction under Section 156(3) Cr.P.C., Magistrate is not to take the same as a complaint under Section 190(1)(a) Cr.P.C. and proceed himself under the subsequent provision of law i.e. Section 200 Cr.P.C., etc. and pass an order under Section 203/204 Cr.P.C.
An order in respect of registration of the complaint is passed under Section 190(1)(a), as soon as he decides to consider it. Similarly, a cognizance is said to have taken, at the initial stage, when the learned court decides to proceed on the complaint and passes orders in respect of taking further steps in the case. Apart from it, if on a direction of a Magistrate, statements of the complainant and his witnesses are recorded and if he feels that situation has arisen, as given under Section 202 Cr.P.C. then the same can be sent for enquiry. But in no case, the Magistrate should, at that stage, pass an order to send the complaint/ application to the police with the direction that the same be registered and investigation be made in it. Thereafter, the conclusion of the investigation is to be sent to the court. If an enquiry is ordered as envisaged under Section 202 Cr.P.C., which can only be done in a complaint case after registration and recording of statements of the complainant and his witnesses, then the concerning court cannot thereafter order and convert a complaint case to a one of police report by directing that the application/ complaint be registered and on conclusion of investigation, a report be sent to it. In the instant case, the learned Magistrate has mixed the two procedures and passed the impugned order for registration of the application which was made with the prayer for exercising powers under Section 156(3) Cr.P.C., after statement of complainant and his witnesses and issued directions to submit the report after investigation. Such a procedure adopted is illegal and contrary to law.
21. Consequently, this criminal miscellaneous petition is allowed. The impugned order dated 28.08.2012 is quashed and set aside. As mentioned earlier, meanwhile the police on conclusion of investigation has already submitted a Final Report (102/2012) on 30.12.2012, no further order in the matter is required to be passed by this Court.
(RAGHUVENDRA S. RATHORE),J.
tikam daiya/-
Item no.74 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Tikam Daiya Junior Personal Assistan