Gujarat High Court
Patel vs State on 17 June, 2011
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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SCR.A/36/2010 22/ 22 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 36 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PATEL
HARESHKUMAR ARVINDBHAI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
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Appearance :
MR
BB NAIK Senior Advocate with MR KUNAN B NAIK for Applicant(s) : 1,
MR
KARTIK PANDYA APP for Respondent(s) : 1,
MR ND NANAVATY Senior Advocate for
Accused
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 17/06/2011
CAV
JUDGMENT
The petitioner-complainant has challenged the order dated 24.12.2009 passed by learned 3rd Additional Civil Judge and JMFC, Modasa in Inquiry Case No.65 of 2009 in exercise of powers under Section 202 Chapter XV of the Code of Criminal Procedure, 1973 by which a criminal complaint is forwarded to PSI, Dhansura to investigate into the matter and report to the Court on or before 08.01.2010.
2. The above order was passed on the complaint filed by the complainant and on the basis of allegations leveled and averments made therein that the respondent No.2 had committed offences under sections 463, 465, 467, 468, 471, 408, 114 and 120B of the Indian Penal Code by preparing forged documents and availed loan from the District Cooperative Bank.
3. It is to be noted that in the above complaint dated 23.12.2009 a request was made to the learned Magistrate that investigation be ordered, as required under section 156(3) of the Code.
4. Mr. B.B.Naik, learned Senior Advocate appearing with Mr. Kunan Naik for the petitioner, submitted that in the facts and circumstances of the case and in view of the allegations made in the complaint, ordering inquiry under section 202 of the Code by learned Magistrate is illegal and the learned Magistrate ought to have exercised powers available to him under section 156(3) of the Code. It is further submitted that in the present case, forged documents pertaining to loan transaction and entries made in revenue record are required to be recovered from the accused so as to strengthen the case of the complainant in the trial, order under section 156(3) of the Code was desirable. It is next contended that it is settled law by decisions of the Apex Court and this Court that once a complaint is filed before the Magistrate disclosing cognizable offences, the Magistrate has to apply his mind to the allegations in the complaint and the Magistrate has to decide as to whether he may proceed to take cognizance or may order officer in- charge of the police station for registration of offence for investigation. It is further submitted that in the facts of the present case, learned Magistrate has not applied his mind to allegations, and therefore, ordering inquiry under section 202 of the Code is not in accordance with law. Lastly, it is submitted that it is obligatory upon the learned Magistrate to examine the complaint on oath and then only such order could have been made in exercise of power under section 202 of the Code. In support of his arguments, learned counsel has placed reliance on the following decisions in the cases of:-
[a] [1997(2) GLH 356] in the case of Suresh Kumar Gupta v. State of Gujarat & Anr.
[b] [AIR 2007 SC 3234] in the case of Dilawar Singh v. State of Delhi [c] AIR 1961 SC 986 in the case of Gopal Das Sindhi v. State of Assam [d] AIR 1959 SC 1118 in the case of Narayandas Bhagwandas Madhavdas v. State of W.B. [e] [1991(1) GLR 387] in the case of Shankerbhai Mathurbhai Patel & Anr. V. Ramanlal Vrajlal Patel & Anr.
[f] Oral Judgment dated 16.04.2009 passed by learned Single Judge of this Court in the case of Vallabhbhai N. Poshia v. Vinodben N. Thakkar in Special Criminal Application No.1361 of 2005.
5. Per contra, Mr. Kartik Pandya, learned APP appearing for the respondent - State of Gujarat submitted that powers exercised by learned Magistrate under section 202 under Chapter XV of the Code is just and proper and there is no mandate or obligation upon the learned Magistrate to pass the order under Section 156(3) of the Code in a case of private complaint. It is further submitted that it is for the learned Magistrate to exercise his discretion in the backdrop of averments and allegations made therein and in the instant case also inquiry is to be made by the Police Sub-Inspector of concerned Police Station and report may be submitted to the Court, and thereafter also if any grievance exists, it is open for the complainant to take action in accordance with law.
6. Mr. N.D.Nanavaty, learned Senior Advocate appeared by filing an application for joining as a party in writ petition preferred by the accused, who is named in the complaint and submitted that in a writ petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code though challenge is to the order passed by the learned Magistrate under section 202 of the Code, serious allegations have been leveled against applicant / accused and averments in the body of the petition, no decision be taken without hearing him. Learned Senior Advocate further submitted that prayer to exercise powers under section 156(3) of the Code is made only with a view to exert pressure upon the investigating authority and to select a mode of investigation and same is evident from the averments made in the petition that police officer conducting inquiry under section 202 of the Code cannot exercise any coercive powers and therefore, according to learned counsel for the accused in the proceedings of inquiry ordered under Section 202 of the Code, accused may not have any locus, but in the petition under Articles 226 and 227 of the Constitution of India he has right to be heard when such averments are made in the petition.
In view of the submissions made by learned counsel for the parties, it is necessary to reproduce Sections 156(3), 190, 200 and 202 of the Code, which reads as under:
"CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE
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.
CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS
190. Cognizance of offences my 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 fact 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.
CHAPTER XV COMPLAINTS TO MAGISTRATES
200. Examination of complaint - 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 authorized 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 witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court o Sessions, 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 Code on an officer in charge of a police station except the power to arrest without warrant."
7. Having heard learned counsel for the parties and on perusal of the record, including impugned order, I am of the opinion that there is no force in the submissions of the learned counsel for the petitioner that the impugned order dated 08.01.2010 passed by the learned Magistrate in exercise of powers under section 202 of the Code is illegal and deserves to be quashed and instead of passing order under section 202 of the Code, learned Magistrate ought to have exercised powers under section 156(3) of the Code.
7.1 In the complaint filed before the learned Magistrate being Inquiry Case No.65 of 2009, the learned 3rd Additional Civil Judge and JMFC, Modasa passed the following order:-
"Read the complaint and heard the learned advocate Shri Bihola. It appears that there are series of facts which required to investigate to consider the offence, in the circumstances this court think fit and proper to sent the complaint under section 202 of the Code of Criminal Procedure to P.S.I., Dhansura to investigate in to the matter and report to this court on or before 08.01.10"
7.2 The above order shows that the learned Magistrate has applied his mind to the relevant facts of the case and was satisfied to the extent that the above facts / allegations required preliminary investigation by the police officer so that the Magistrate may decide whether or not there is sufficient ground for him to proceed further on account of the fact that cognizance is already taken by him of the offence disclosed in the complaint, but issuance of process is postponed. The above aspect cannot be said to be in any manner illegal and once the learned Magistrate has taken cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code and ordering investigation under Chapter 12 of the Code in exercise of powers under section 156(3) of the Code, learned Magistrate does so before he takes cognizance of the offence. In the facts of this case, learned Judge has applied his mind and adopted the course of action as contemplated under section 202 of the Code at the post cognizance stage and, therefore, exercise of such powers cannot be said to be illegal.
7.3 That reliance placed by the learned counsel for the petitioner on the oral judgment dated 16.04.2009 in Special Criminal Application No.1361 of 2005 is of no application to the facts of the present case inasmuch as in the said case, a specific contention was raised by learned counsel for the petitioner that there was no order passed by learned Magistrate for inquiry under section 202 of the Code directing the police to hold investigation and submit report and in the above backdrop of facts, factual submissions and the procedure adopted by learned Magistrate and different applications preferred by the complainant from time to time, learned Single Judge found that the order passed by the learned Magistrate lacked bonafide and relying on the decision of the Apex Court in the case of Express Newspapers Pvt. Ltd. & Ors. V. Union of India & Ors. [AIR 1986 SC 872] observed that a fraudulent act found in judicial proceedings cannot be allowed to stand and in para 13 found that, "it appears that even no proper procedure has been followed by the learned Magistrate as required under Section 202 of the Code of Criminal Procedure before taking cognizance and issuing the process against the accused persons and even complainant was not examined on oath and consequently there was no order passed by the learned Magistrate on 1.5.2002 under section 202 of the Code of Criminal Procedure for police investigation under section 156(3) of the Code of Criminal Procedure. Therefore, the observation of the learned Magistrate while dismissing the application Exh.s4, 9, 10 and 11 to the effect that an order passed under Section 202 for police investigation is factually incorrect and cannot be accepted". Therefore, the order of learned Magistrate was found to be vague and ambiguous and ultimately was quashed and set aside.
7.4 In the above circumstances, reliance placed by learned counsel on the decision of the Apex Court in the case of Dilawar Singh [supra], where a difference in the investigative procedure in Chapter XII and XV of the Code has been considered, but at the same time, fundamental difference in exercise of powers under section 156(3) of the Code under Chapter XII and under section 202 of the Code under Chapter XV about the stages of exercising of such powers viz. pre-cognizance and post-cognizance, as held by the Apex Court in the case of Devarapalli Lakshminarayana Reddy v. Narayana Reddy [1976(3) SCC 252] and the distinction made between an investigation under section 156(3) of the Code and under section 202 of the Code in Chapter 17 of the above judgment came to be followed in the following cases also.
7.5 In the case of S.K.Sinha, Chief Enforcement Officer v. Videocon International Ltd. & Ors. [(2008)2 SCC 492] the Apex Court had an occasion to consider the scheme of Chapter XIV, XV and XVI of the Code of Criminal Procedure and what is of taking cognizance and in the context of section 190(1) (a), (b) & (c) and sections 200 & 202 of the Code and considered various decisions in the cases of;
[1] AIR 1950 Cal 437 in the case of Supdt. & Remembrancer of Legal Affairs v. Abani Kumar Banerjee.
[2] AIR 1951 SC 207 in the case of R.R.Chari v. State of U.P. [3] AIR 1959 SC 1118 in the case of Narayandas Bhagwandas Madhavdas v. State of W.B. [4] AIR 1963 SC 765 in the case of Ajit Kumar Palit v. State of W.B. [5] (1978)4 SCC 58 in the case of Hareram Satpathy v. Tikaram Agarwala.
[6] AIR 1961 SC 986 in the case of Gopal Das Sindhi v. State of Assam.
[7] (1973)3 SCC 753 in the case of Nirmaljit Singh Hoon v. State of W.B. [8] (1971)2 SCC 654 in the case of Darshan Singh Ram Kishan v. State of Maharashtra.
[9] (1976)3 SCC 252 in the case of Devarapalli Lakshminarayana Reddy v. Narayana Reddy.
[10] AIR 1967 SC 528 in the case of M.L.Sethi v. R.P.Kapur and reiterated that though the expression "cognizance" has not been defined in Criminal Procedure Code, it indicates the point when the court or a Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence said to have been committed by some one. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. The Apex Court reiterated principles laid down in the case of Devarapalli [supra] about stage of exercising powers under section 156(3) and 202 of the Code at pre and post cognizance and consequences thereof.
In the facts of this case, the learned Magistrate has read the complaint and after hearing the learned counsel for the complainant, when it appeared to learned Magistrate that series of facts required to be investigated to consider the offence and therefore, order was passed under Section 202 of the Code of Criminal Procedure, which reveals taking of cognizance of the offence and, therefore, it cannot be said the learned Magistrate has excised power contrary to law or the provisions of the Code.
7.6 In the case of Muksud Saiyed v. State of Gujarat & Ors. [(2008)5 SCC 668] the Apex Court while considering the sections 156(3) and section 200 of the Code, Their Lordships held in paras 13 and 15, as under:
"13.
Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. Indian Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.
14. It will bear repetition to state that throughout the complaint petition, no allegation had been made as against any of the respondents herein that they had any thing to deal with personally either in discharge of their statutory or official duty. As indicated hereinbefore, in the prospectus, a bona fide mistake had been committed. The fact that such a mistake had been committed stands accepted. In any event, the statement that the matter was pending before the DRT in stead and place of the City Civil Court, Ahmedabad, per se, cannot be said to be defamatory as the fact that a suit was pending for recovery of the huge amount is neither denied nor disputed. Whether such a suit was maintainable and/ or is ultimately to be decreed or disposed of is a question which has to be gone into in the suit itself. A criminal court cannot even take that factor into consideration. The High Court considered the matter at some great details. Having analysed the materials placed before it, it was held:
"....It was, therefore, stated that there was no suppression or concealment of any facts and it did not amount to criminal breach of trust and cheating on the part of the Bank as alleged by the complainant. The said export bills under L/C were negotiated by the Bank under the provisions of UCPDC 500 1995 Revision. The Bank has also informed vide its letter dated 8.2.2005 to M/s. SBI Capital Markets Ltd. It was stated therein that the Bank has not concealed or suppressed any material fact against the interest of the public at large and investors in particular. The bonafide misdescription in setting out the nature of claim was unintentional. It was further stated that the material particulars like the amount of claim, date of filing and name of the company was correctly mentioned. The mis-description did not materially influence/affect the decision of the investors/public...."
It was furthermore opined:
"It appears to the Court that the learned Chief Judicial Magistrate has not applied his mind while passing the order under Section 156(3) of the Criminal Procedure Code directing the police to investigate in the matter. The impugned order, on the face of it, reveals that he has not gone through the complaint. He has stated in the order that the accused Nos. 1 to 10 are Manager and Branch Manager of Dena Bank. As a matter of fact, the accused No. 1 was the Ex-Chairman and Managing Director of Dena Bank, and the accused No. 2 was the Executive Director. The accused Nos. 3 to 10 are Directors of Dena Bank. None of these persons are Managers or Branch Manager. Despite this, the learned Chief Judicial Magistrate has mentioned in his order that they are Managers or Branch Managers. With regard to the prospectus he has simply stated that the Bank has issued prospectus for its public issue and at page No. 87 false informations were given so as to cause damage to the Company and to jeopardize the reputation of the Company. Despite the fact that the litigations are pending before the Civil Court he has mentioned about non-returning of export bills etc. On these facts he has passed order under Section 156 (3) of the Criminal Procedure Code, directing the PSI, Sayajiganj Police Station to make inquiry in the matter."
The approach of the High Court, with respect, is entirely correct.
15. This Court in Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [(1998) 5 SCC 749], held as under:
"28.
Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
The learned Magistrate, in our opinion, shall have kept the said principle in mind."
7.7 In case of Parshottambhai Karshanbhai Surani & Ors. v. Chandrikaben Karshanbhai Surani & Anr. reported in [2008(2) GLH 6], this Court [Coram : Hon'ble Ms. Justice H.N.Devani] had an occasion to examine the scheme of the Chapters XII, XV of the Code of Criminal Procedure, 1973 and held in para 16 as under:
"16. In the light of the decisions cited hereinabove, the only answer to the said issue can be that once having taken cognizance of the offence by examining the complainant on oath and directing the police to investigate the case under section 202 of the Code, it was not legally permissible to the learned Judicial Magistrate to switch back to the pre-cognizance stage and direct investigation under section 156(3) of the Code. Though the order dated 13th November, 2007 does not clearly specify the provision under which it is made, considering the fact that the said direction has been given after examining the complainant on oath, the same can be construed to be an order under section 202(1) alone, as that is the only provision under which such direction could have been issued post-cognizance. In the circumstances, the impugned order dated 14th November, 2007 suffers from the legal infirmity of being contrary to the statutory provisions and as such cannot be sustained".
7.8 The Apex Court considered the above aspect of exercising powers under section 156(3) and 202(1) of the Code in the case of Rameshbhai Pandurao Hedau v. State of Gujarat [2010(4) SCC 185] and after considering various case laws, including the decision of Reddy [supra] and Dilawar Singh [supra] in paras 20, 21, 22, 23, 24, 25 and 26 held as under:-
"20. The settled legal position has been enunciated by this Court in several decisions to which we shall refer presently. The courts are ad idem on the question that the powers under Section 156(3) can be invoked by a learned Magistrate at a pre-cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint but before issuance of process. Such a view has been expressed in Suresh Chand Jain case [(2001) 2 SCC 628] as well as in Dharmeshbhai Vasudevbhai [(2009)6 SCC 576] and in Devarapalli Lakshminarayan Reddy case [(1976)3 SCC 252].
21. The three aforesaid cases have been cited on behalf of the parties. We may also refer to the decision of this Court in Dilawr Singh v. State of Delhi [(2007)12 SCC 641] where the difference in the investigative procedure in Chapters XII and XV of the Code has been recognized and in that case this Court also appears to have taken the view that any Judicial Magistrate, before taking cognizance of an offence, can order investigation under Section 156(3) of the Code and in doing so, he is not required to examine the complainant since he was not taking cognizance of any offence therein for the purpose of enabling the police to start investigation. Reference has been made to the decision of this Court in Suresh Chand Jain case. In other words, as indicated in the decisions referred to hereinabove, once a Magistrate takes cognizance of the offence, he is, thereafter, precluded from ordering an investigation under Section 156(3) of the Code.
22. It is now well settled that in ordering an investigation under Section 156(3) of the Code, the Magistrate is not empowered to take cognizance of the offence and such cognizance is taken only on the basis of the complaint of the facts received by him which includes a police report of such facts or information received from any person, other than a police officer, under Section 190 of the Code. Section 200 which falls in Chapter XV, indicates the manner in which the cognizance has to be taken and that the Magistrate may also inquire into the case himself or direct an investigation to be made by a police officer before issuing process.
23. Reference was also made to the decision of this Court in Mohd. Yousuf v. Afaq Johan [(2006) 1 SCC 627] where it has been held that when a Magistrate orders cognizance of the offence. Once he takes cognizance of the offence, he has to follow the procedure envisaged in Chapter XV of the Code. The inquiry contemplated under Section 202(1) or investigation by a police officer or by any other person is only to help the Magistrate to decide whether or not there is sufficient ground for him to proceed further on account of the fact that cognizance had already been taken by him of the offence disclosed in the complaint but issuance of process had been postponed.
24. The law is well settled that an investigation ordered by the Magistrate under Chapter XII is at the pre-cognizance stage and the inquiry and/or investigation ordered under Section 202 is at the post-cognizance stage. What we have to consider is whether the Magistrate committed any error in refusing the appellant's prayer for an investigation by the police under Section 156(3) of the Code and resorting to Section 202 of the Code instead, since both the two courses were available to him.
25. The power to direct an investigation to the police authorities is available to the Magistrate both under Section 156(3) CrPC and under Section 202 CrPC. The only difference is the stage at which the said powers may be invoked. As indicated hereinbefore, the power under Section 156(3) CrPC to direct an investigation by the police authorities is at the pre-cognizance stage while the power to direct a similar investigation under Section 202 is at the post-cognizance state.
26. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the appellant as a complaint under Section 200 of the Code and has thereafter proceeded under Section 202 CrPC and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of sub-section (2) of Section 202 the learned Magistrate deems it fit, he may either dismiss the complaint under Section 203 or proceed in terms of Section 193 and commit the case to the Court of Session".
7.9 The contention about non-examination of the complainant on oath by the learned Magistrate while passing order under section 202 of the Code to which the complainant could not have raised any grievance particularly when a report is called by learned Magistrate from the In-Charge Police Officer of the concerned police station after preliminary investigation and the above aspect was considered by the Apex Court in the context of non-examination of some of the witnesses cited by the complainant when High Court had remitted the matter to the Chief Judicial Magistrate for further inquiry only on the ground that all the witnesses named by the appellant had not been examined in the facts of the case of Shivjee Singh v. Nagendra Tiwary & Ors. [2010(7) SCC 578]. In the above case, the Apex Court has also considered proviso to section 202(2) of the Code whether is mandatory or not and after examining the sections 200, 202, 203, 204, 207, 208, 209 of the Code and after considering various decisions of the Apex Court in paras 18, 19, 20 and 21, in para 22 of the Apex Court held as under:-
"18. The expression sufficient ground" used in Sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction. This interpretation of the provisions contained in Chapters XV and XVI of Cr.P.C. finds adequate support from the judgments of this Court in R.C. Ruia v. State of Bombay, 1958 SCR 618, Vadilal Panchal v. Duttatraya Dulaji Ghadigaonkar (1961) 1 SCR 1, Chandra Deo Singh v. Prokash Chandra Bose (1964) 1 SCR 639, Nirmaljit Singh Hoon v. State of West Bengal (1973) 3 SCC 753, Kewal Krishan v. Suraj Bhan (1980) Supp SCC 499, Mohinder Singh v. Gulwant Singh (1992) 2 SCC 213 and Chief Enforcement Officer v.
Videocon International Ltd. (2008) 2 SCC 492.
19. In Chandra Deo Singh v. Prokash Chandra Bose (supra), it was held that where there was prima facie evidence, the Magistrate was bound to issue process and even though the person charged of an offence in the complaint might have a defence, the matter has to be left to be decided by an appropriate forum at an appropriate stage. It was further held that the issue of process can be refused only when the Magistrate finds that the evidence led by the complainant is self contradictory or intrinsically untrustworthy.
20. In Kewal Krishan v. Suraj Bhan (supra), this Court examined the scheme of Sections 200 to 204 and held:
"At the stage of Sections 203 and 204 of the Criminal Procedure Code in a case exclusively triable by the Court of Sessions, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 of the Criminal Procedure Code, there is prima facie evidence in support of the charge leveled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges."
21. The aforesaid view was reiterated in Mohinder Singh v. Gulwant Singh (supra) in the following words (SCC p.217, para 11):
"The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the enquiry officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry."
(emphasis supplied)
22. The use of the word 'shall' in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word 'all' appearing in proviso to Section 202(2) is qualified by the word `his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process".
The Apex Court in the above judgment further considered the decision of the Apex Court in the case of Rosy & Anr. v. State of Kerala & Ors. [(2000)2 SCC 230] and while expressing Their Lordships views about sections 200 and 202 of the Code, in para 30 held as under:
"30. Although, Shah, J. and Thomas, J. appear to have expressed divergent views on the interpretation of proviso to Section 202(2) but there is no discord between them that non examination of all the witnesses by the complainant would not vitiate the proceedings. With a view to clarify legal position on the subject, we deem it proper to observe that even though in terms of the proviso to Section 202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so. Such an order passed by the Magistrate cannot be nullified only on the ground of non-compliance of proviso to Section 202(2).
Thus, the Apex Court in the above context considered the case of Rosy [supra], which held that section 202 of the Code is an enabling provision and it is the discretion of the learned Magistrate depending upon the facts of each case, whether to issue process straightaway or hold the inquiry. However, in a case where inquiry is held, failure to comply with the statutory direction to examine, witnesses would not vitiate further proceedings in all cases. Similar would be the case when learned Magistrate exercises powers under sections 200 and 202(1) of the Code and while ordering inquiry by himself or directing an investigation to be held by the police officer or by such other person for the purpose of deciding whether or not there exist sufficient ground for proceedings, ordinarily the Magistrate is duty bound to examine the complainant and his witnesses on oath as required under section 200, which is mandatory in nature, but failure to examine the complainant would ipso facto not result into vitiating the order under section 202(1) of the Code as held in para 22 of Shivjee Singh [supra], as the scope of inquiry under section 202 of the Code is extremely restricted so as to find out the truth or otherwise the allegations made in the complaint in order to determine whether process should be issued or not under section 204 of the Code or where complaint should be dismissed by resorting to section 203 of the Code on the ground that there appears no sufficient ground for proceeding on the basis of the statement of the complainant and of his witnesses, if any.
7.10 Even recently, the Apex Court in the case of Mona Panwar v. High Court of Judicature of Allahabad Through Its Registrar & Ors. [2011(3) SCCC 496] while considering the provisions of Sections 156(3), 200, 202 of the Code, in paras 16, 17, 18, 19, 20, 21, 22 and 23 held as under:-
"16.
Section 156(1) of the Code authorizes the police to investigate into a cognizable offence without requiring any sanction from a judicial authority. However, sub-section (3) of Section 156 of the Code provides that any Magistrate empowered under Section 190 of the Code may order such an investigation as mentioned in sub-section (1) of the said Section. Section 190 of the Code deals with cognizance of offences by Magistrates and inter alia provides that any Magistrate of the first class may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Neither Section 154 nor Section 156 of the Code contemplates any application to be made to the police under Section 156(3) of the Code. What is provided in Section 156(1) of the Code is that:-
"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 inquiry into or try under the provisions of Chapter XIII".
17. However, this Court finds that in the present case it was alleged by the respondent No. 3 that she had filed complaint before police but according to her, the police officer in charge of the police station had refused to register her complaint and, therefore, she had made application to the Senior Superintendent of Police as required by Section 154(3) of the Code, but of no avail. Therefore, the respondent No. 3 had approached the appellant, who was then discharging duties as Judicial Magistrate II, Court No. 14, Saharanpur.
18. When the complaint was presented before the appellant, the appellant had mainly two options available to her. One was to pass an order as contemplated by Section 156(3) of the Code and second one was to direct examination of the complainant upon oath and the witnesses present, if any, as mentioned in Section 200 and proceed further with the matter as provided by Section 202 of the Code. An order made under sub-section (3) of Section 156 of the Code is in the nature of a peremptory reminder or intimation to the police to exercise its plenary power 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 the final report either under Section 169 or submission of charge sheet under Section 173 of the Code. A Magistrate can under Section 190 of the Code before taking cognizance ask for investigation by the police under Section 156(3) of the Code. The Magistrate can also issue warrant for production, before taking cognizance. If after cognizance has been taken and the Magistrate wants any investigation, it will be under Section 202 of the Code.
19. The phrase "taking cognizance of" means cognizance of offence and not of the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Before the Magistrate can be said to have taken cognizance of an offence under Section 190(1)(b) 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 Section 200 and the provisions following that Section. However, when the Magistrate had applied his mind only for ordering an investigation under Section 156(3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence.
20. Taking cognizance is a different thing from initiation of the proceedings.
One of the objects of examination of complainant and his witnesses as mentioned in Section 200 of the Code is to ascertain whether there is prima facie case against the person accused of the offence in the complaint and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such person. Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding further.
21. From the order dated August 1, 2009, passed by the appellant, it is evident that the appellant had called for report from the concerned police station and considered the said report wherein it was inter alia mentioned that no case was registered on the basis of the application made by the respondent No. 3. The respondent No. 3 at the time of filing complaint before the appellant had filed her own affidavit, carbon copy of the application sent by her to the Senior Superintendent of Police, Saharanpur with its postal registration and photocopy of the medical certificate. Under the circumstances the appellant had exercised judicial discretion available to a Magistrate and directed that the application, which was submitted by the respondent No. 3 under Section 156(3) of the Code, be registered as complaint and directed the Registry to present the said complaint before her on August 28, 2009 for recording the statement of the respondent No.3 under Section 200 of the Code.
22. The judicial discretion exercised by the appellant was in consonance with the scheme postulated by the Code. There is no material on the record to indicate that the judicial discretion exercised by the appellant was either arbitrary or perverse. There was no occasion for the learned Single Judge of High Court to substitute the judicial discretion exercised by the appellant merely because another view is possible. The appellant was the responsible judicial officer on the spot and after assessing the material placed before him he had exercised the judicial discretion. In such circumstances this Court is of the opinion that the High Court had no occasion to interfere with the discretion exercised judiciously in terms of the provisions of Code.
23. Normally, an order under Section 200 of the Code for examination of the complainant and his witnesses would not be passed because it consumes the valuable time of the Magistrate being vested in inquiring into the matter which primarily is the duty of the police to investigate. However, the practice which has developed over the years is that examination of the complainant and his witnesses under Section 200 of the Code would be directed by the Magistrate only when a case is found to be serious one and not as a matter of routine course. If on a reading of a complaint the Magistrate finds that the allegations therein disclose a cognizable offence and forwarding of the complaint to the police for investigation under Section 156(3) of the Code will not be conducive to justice, he will be justified in adopting the course suggested in Section 200 of the Code".
In view of the above decision, in the facts of this case, ordering investigation and adopting the course suggested in sections 200 and 202 of the Code by the learned Magistrate cannot be said to be in any manner contrary to law.
In the above judgment, the Apex Court considering about disparaging remarks against subordinate judicial officers, in para 29, Their Lordships held as under:
"29. The record would show that the appellant had discharged her judicial duties to the best of her capacity. To err is human. It is often said that a Judge, who has not committed an error, is yet to be born. This dictum applies to all the learned Judges at all levels from the lowest to the highest. The difference in views of the higher and the lower courts is purely a result of a difference in approach and perception. But merely because there is difference in views, it does not necessarily establish that the lower courts are necessarily wrong and the higher courts are always right. Therefore, this Court in several reported decision has emphasized the need to adopt utmost judicial restraint against making the disparaging remarks so far as members of lower judiciary are concerned".
The decisions relied upon by learned counsel for the petitioner is of no help to the petitioner in view of the discussion already made in the above paragraphs and order impugned cannot be said to be in any manner lacking bonafide on the part of the learned Magistrate or contrary to law requiring any interference by this Court in exercise of powers under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code.
8. In view of the above decisions and facts of the present case, order passed by the learned Magistrate under section 202 of the Code cannot be said to be in any manner contrary to law laid down by the Apex Court and this petition deserves to be rejected.
Rule stands discharged. No costs.
Order accordingly.
[Anant S. Dave, J.] *pvv Top