JUDGMENT
A.H. Joshi, J.
1. At the outset, Mr. Gupta, learned Advocate for the applicant states that he does not press for prayer Clause (a) and shall argue the application only as far as the prayer Clause (b) and consequential reliefs are concerned.
2. The applicant herein filed the complaint to the Police on 5-9-2002 under sections 467, 471 and 474 of the Indian Penal Code. The offence complained of pertains to creation of forged and fabricated Will. Police registered the non-cognizable offence and applied to the Judicial Magistrate First Class, Akola requesting for permission to investigate the offences. The Judicial Magistrate First Class, Akola passed an order on 10-10-2002 to the effect that:-
“In view of the reasons permission granted under Section 155(2) of Criminal Procedure Code dt. 10-10-2002.”
3. This order was challenged by the present non-applicant No. 2 by filing a Criminal Revision Application which was registered as Criminal Revision No. 235 of 2002. The present applicant was not made party to the revision application for which the applicant filed the application Exh.8 for intervention and the applicant herein was accordingly heard. The grievance represented before the Revisional Court as a ground can be grasped from the reasons recorded by the Revisional Court wherein para 9 of the submissions of the present non-applicant No. 2 have been noted which reads as follows:-
“9 Shri K.M.A. Husain, learned Adv. for the applicant submits that the police is not empowered to investigate the non-cognizable offence without the order of Magistrate. The duty of the Police is to record the information of non-cognizable and refer the informant to Magistrate. He submits that the policy of law is to seek the relief through Magistrate without intervention of the police. He submits that the order passed by the Magistrate does not disclose any reason for the investigation, and therefore, the order is not sustainable.”
4. Thus, the grievance in a nutshell is that the police without the order from the Magistrate investigated into the offence which is non-cognizable. All that which is required to be done is to make a report to the Magistrate of having received a report of Commission of non-cognizable offence. According to the present non-applicant No. 2, therefore, the action of the Investigating Officer in seeking permission for investigation into the offences was absolutely without any grounds and foundation. According to the non-applicant, as was further urged before the Court, that in the intervening period, the present applicant has already filed a private complaint before the Judicial Magistrate First Class and even examined the witnesses in which process was issued and in that background, no further investigation was warranted or permissible. The order was also challenged on account of being an unreasoned order.
5. The learned Sessions Judge was convinced with the submissions of the petitioner and held that the order passed by the Magistrate did not show that he had applied mind before permitting the police to investigate the offence and the order being passed without reasons was liable to be set aside. The Court further found that there were no good reasons for granting such permission as Kedarnath Agrawal has already, in his own remedy approached the Magistrate, and allowed the revision application and set aside the order passed by the Magistrate on 10-10-2002 which was under challenge.
6. The learned Advocate Shri Gupta further argued that the fact remains that in a private complaint filed by the petitioner for cognizable offence, process is already issued, and for the same event complained of by the applicant before police, now the investigation shall be done by the Police may be with a belief that no cognizable offence is committed. According to Mr. Gupta due to such investigation, no prejudice whatsoever can be said to be caused to the accused more particularly when the procedure as prescribed by law in Section 210 of Criminal Procedure Code contemplates possibility of such investigation and it provides as to what procedure shall be followed. The proceedings of complaint shall get stayed until completion of investigation by police. He further submitted that the accused persons shall get full and fair opportunity in even this eventuality. Moreover, the Judgment of the Sessions Court which is impugned is based on technicalities. The Court has banked upon the conclusion as to the merit of the case as well erred in holding that the Investigating Officer ought to have made out a case for investigation.
7. Learned Advocate Mr. Gupta further submitted that he is aware that he has undertaken not to press first prayer for mandatory order for registration of FIR for cognizable offence against police. He, however, says that he would rely upon reported Judgment of this Court in 2004 Cr. L.J. 2278, Sudhir M. Vora v. Commissioner of Police, Greater Bombay and Ors.. He further submits that as is ordered by this Court in the said reported Judgment, it was in law incumbent upon the Police to record the FIR when it discloses information regarding commission of cognizable offence when the information was specific and was not vague. The Police was thereupon bound to take cognizance and investigate. According to Mr. Gupta, report lodged by the petitioner was thus, liable to be recorded as First Information Report of cognizable offence, however, it was not done and the petitioner proceeded to lodge a private complaint. According to Mr. Gupta, when requested by police, the Magistrate has ordered permitting the police to take cognizance of alleged non-cognizable offence and now it is open for the police to conduct investigation and file appropriate final report in terms of whatever offence would reveal during the course of the investigation which could be even a cognizable offence. He, therefore, submitted that considering the spirit of law that any process of investigation ought not be throttled, the Judgment of Sessions Court was liable to be reversed.
8. In the present application, learned Advocate for the applicant submitted that filing of the private complaint by the applicant does not preclude further investigation as such situation is contemplated by Section 210 of Criminal Procedure Code. All that will have to be done is that either the party present before the Magistrate in the private complaint will have to point out to the Magistrate that now the very offence i.e. subject-matter is being investigated by the police, whereupon the Magistrate shall stay the proceedings either of enquiry or the trial, and shall call for report of the investigation from the Police Officer conducting the investigation. In the event the trial is stayed and the investigation progresses, the Investigation Officer has filed the report under Section 173 and proper cognizance thereafter can be taken by the Magistrate, whereupon the Magistrate shall be competent to take a decision as to the manner in which he shall proceed with the complaint case and the case arising out of the Police Report, as if both the cases were instituted on the Police Report or deal with the matter appropriately, as provided under Sub-section (3) if so required. The situation discussed hereinbefore shall have emerged, had the police been permitted to proceed with the investigation, had the intervention occurred due to the Criminal Revision Application filed by the present non-applicant No. 2, not occurred.
9. While opposing present application, learned Advocate Shri V. M. Deshpande for non-applicant No. 2 relied upon a reported Judgment reported in 2002(9) SCALE 769, M. C. Abraham and Anr.v. State of Maharashtra and Ors.. The case in reported Judgment was for prayer for mandatory order for seeking direction to arrest, where Court has held that such mandamus would not be issued as well that it is for the Investigating Agency to submit a report after investigation, and what shall be the contents or form of the report is not the matter to be decided by the Court, though, the Court can always disagree with the findings and can take cognizance. This reported Judgment, therefore, in no manner helps the applicant.
10. Learned Advocate Shri V. M. Deshpande, further urged that the case has taken the turn of publicity stunt and once the order is set aside and the police is required to investigate, it would result in the harassment of the non-applicant No. 2 and other persons, by various modes including due to undesirable publicity.
What are the possible consequences of permission to the police to investigate the offences are not the matter for which any person who is named as accused in the complaint can at all make any grievance, as whatever are the legal consequences, will have to follow and all will have to be endured subject to safeguards in law as may be available to the persons accused therein. The grievance as to publicity is in regards the act of press who is not before the Court.
11. Upon perusal of record and examining the submission of the learned Advocates what is seen is that the learned Sessions Judge was in error in totally setting aside the order on the ground of non-application of mind. Once any higher Court comes to the conclusion that order impugned is passed without application of mind, what would normally follow is that the case would go back by an order of remand to the lower Forum for hearing and disposal as per law. The Sessions Judge has denied this opportunity to the complainant, if at all order needed interference on the ground of non-application of mind. The finding of the learned Sessions Judge that the Investigating Officer has not made it clear as to why he wants to investigate into the offence which is non-cognizable, is not factually correct inasmuch as letter of request seeking permission to investigate into the offence is eloquent enough and reveals sufficient grounds.
12. The jurisdiction of the Magistrate while considering the request either from the complainant or from the State for permission or direction to investigate in a non-cognizable offence is in the nature of supervisory jurisdiction and it does not call for a well reasoned or detailed order inasmuch as if Magistrate does not adjudicate upon the right of the parties. Since investigation upon permission is the rule or course of law, and failure would rather amount to foreclosure of effects of offence, which the complainant victim police might feel need to be investigated. Whose right would be affected shall be the victim complainant or State, and not the accused.
13. There can be a case where the F.I.R. is already recorded or is not recorded, and direction is sought for investigation of the offence. All that will be done will be is that law will be set in motion for the purpose of investigation. The commencement of investigation cannot and does not in any manner be said to violate any right of the person who is named as accused.
14. It is pertinent to note that the Additional Sessions Judge has not quashed the FIR lodged by Kedamath i.e. the applicant herein. What would remain is the FIR as a fact without any investigation, while the applicant’s case for cognizable offence filed by him will be proceeded as a private case unassisted by the prosecution by State when the State Police is otherwise well acquainted and equipped with the investigating machinery. It can still happen that in the course of investigation of a non-cognizable offence, the investigating Officer may file a final report under Section 173 of Criminal Procedure Code for the offences which may be cognizable if so found to have been committed. The process of investigation which is to be commenced, therefore, cannot be throttled based on grounds such as apprehensions or propriety.
15. The result that follows is that the Judgment and order delivered by Additional Sessions Judge Akola, in Criminal Revision Application No. 235 of 2002 dated 24-12-2003 requires to be quashed and set aside and the order passed by the Judicial Magistrate, First Class on 10-10-2002 needs to be restored.
16. Rule is accordingly made absolute, and Judgment and order passed by Additional Sessions Judge, Akola in Criminal Revision Application No. 235 of 2002 dated 14-12-2003 is set aside, and order passed by Judicial Magistrate First Class on 10-10-2002 permitting the police to investigate is restored. The Police shall complete the investigation as expeditiously as possible.
17. Respondent’s apprehensions about undue publicity could be reasonably remedied, for which this Court expresses observance self restraint by the petitioner and petitioner’s Advocate shall translate to the petitioner as to what Court expects. This shall serve adequate safeguard to the respondents against any undue publicity.