ORDER
Veerabhadraiah, J.
1. In this revision, the complainant has assailed the order of dismissal of the complaint in PCR No. 2451/2003 passed by the VIII Additional Chief Metropolitan Magistrate, Bangalore dated 1.4.2003.
2. The case of the complaint in brief is as follows:
The famous cine star of Karnataka viz., Dr. Rajkumar was abducted on the intervening night of 30/31.7.2000 by the notorious forest brigand Veerappan and his associates. After the cine star was freed from the clutches of the forest brigand, the then IPS Officer viz., Sri C.Dinakar wrote and published a book “Veerappan’s Prize Catch: Rajkumar which contains the following writings.”
“15 September 2000
The media is informed in the morning that Rajkumar was released at 4.30 a.m. today. Intelligence Chief P.S.Ramanujam rings me at about 10.00 a.m. to say that Rajkumar has been released. Poor chap, The Intelligence Chief does not know the source of intelligence of his own DGP.
He has been tapping all my telephones and mobile phones and reporting to S.M.Krishna, Mallikarjun Kharge and M.B, Prakash about my activities. That man with the dolichocephalic face does not know that I have learnt the police work the hard way instead of writing books and articles like him. Police work is not done with the nib of a pen. It is indeed a crafty game.
I am amused when I think of S.M.Krishna, Mallikarjun Kharge, M.B. Prakash, P.S. Ramanujam and DIG Jayaprakash. They may be intelligent men but should they underestimate others? May I say, ‘every information has a price’ (with an apology to the Englishman’s adage)
There is a law in our country, which requires that every commodity sold in the market should have a price tag. Human beings do not have a price tag. The price of human beings has to be bargained. The price paid for Rajkumar is:
1. Rs. 5 crore sent by S.M.Krishna through his son- in-law V.G. Siddhartha on two occasions and Rs. 5 crore sent by S.M. Krishna through DIG Jayaprakash.
2. Rs. 1 crore sent by Parvathamma in Chennai and given in M.Karunanidhi’s house
3. Rs. 2 crore handed over personally by Parvathamma to Bhanu in her house in Indiranagar, Bangalore
4. Rs. 2 crore given by the film industry people in M.Karunanidhi’s house at Chennai.”
3. Based on the said writings, the complainant presented a complaint under Section 200 Cr.P.C against the respondents for the offence under Section 120B r/w 34 IPC alleging that the respondents have conspired and actually participated in the conspiracy for the release of the Cine star. On the presentation of the complaint, the learned Additional Chief Metropolitan Magistrate, Bangalore, referred the matter to the High Ground Police for investigation and report in pursuance of the Memo filed by the Complainant on 11.2.2003. The Inspector of Police, High Ground Police Station submitted a report expressing his inability to register a case either under Section 154 Cr.P.C or under Section 156 Cr.P.C on the ground that the complainant did not disclose any criminal offence. After the report was submitted by the Inspector of Police, High Ground Police Station, the learned Additional Chief Metropolitan Magistrate, Bangalore, issued notice to the complainant, who appeared before the Court on 31.2.2003 and filed objections with a prayer to reject the report of the station House Officer and redirect the station House Officer to investigate the matter under Section 155(2) Cr.P.C. The learned Additional Chief Metropolitan Magistrate, Bangalore, by his order dated 1.4.2003 dismissed the complaint with the reasoning that no sufficient, sustainable and substantial grounds are made out by the complainant to redirect the Investigating Officer to investigate the matter. It is this order of dismissal of the complaint which is questioned in the present revision.
4. Learned Counsel for the petitioner Sri F.V. Patil, contended that the complaint is based on the writing of the book by Sri C.Dinakar, the then IPS Officer viz., “Veerappan’s Prize Catch: Rajkumar”. In fact, the complainant has no personal knowledge and based on the facts disclosed in the book it has come to light that crores of rupees came to be paid to the forest brigand Veerappan for the release of the cine actor Dr. Rajkumar, which is an illegal act and thereby respondent No. 1, Sri S.M.Krishna, the Chief Minister of Karnataka, respondent No. 3, Sri Jayaprakash, an IPS Officer holding high offices have actually participated in the conspiracy in releasing the cine actor Dr. Rajkumar illegally. It is therefore that a complaint was filed under Section 200 Cr.P.C for taking cognizance for the offence under Section 120B r/w 34 IPC. That after filing of the complaint, the learned VIII Additional Chief Metropolitan Magistrate, Bangalore City, referred the matter to the High Grounds Police, Bangalore city, for investigation under Section 156(3) Cr.P.C. But the concerned police without registering the case and taking further action, along with a report returned the same to the Court which is illegal. It is further contended that it is mandatory on the part of the police to register a case under Section 154 Cr.P.C if the offence is one of cognizable in nature or under Section 155(2) Cr.P.C to investigate a non-cognizable case as per the directions of the Magistrate and to submit the report. But the police of the High Grounds Police Station are afraid of registering a case against the accused persons. It is further contended that it is the duty of the police to investigate the complaint. Therefore, the dismissal of the complaint by the learned Magistrate is bad in law. Whether the offence is cognizable or non-cognizable, it is not open for the police to say that they cannot investigate. Therefore, the report of the Police Officer is contrary to the scope of Sections 154, 155 and 156 of the Code of Criminal Procedure. It is also contended that the Station House Officer is shirking his responsibility. That apart, the learned Additional C.M.M could not have dismissed the complaint as no report is submitted or in the alternative, he could have called upon the complainant to prove his case. In support of his contentions, he has relied on the decisions in the case of P.R.VENUGOPAL v. G.P.RAJASHEKAR & OTHERS, ILR 2003 KAR 801 H.N. RISHBUD AND ANR. v. STATE OF DELHI, DEVARAPALLI LAKSHMINARAYANA REDDY AND OTHERS v. V.NARAYANA REDDY AND OTHERS, MOHD. HUSSAIN UMAR KOCHRA v. K.S.DALIPSINGHJI AND ANOTHER, LEO ROY FREY v. SUPERINTENDENT, DISTRICT JAIL, AMRITSAR AND ANOTHER, and ABDUL KAREEM v. STATE OF KARNATAKA, AIR 2001 SC 116 and contended that the writer Sri C. Dinakar, Retd. IPS Officer had an access to the office of the Chief Minister and his story book revealed the conspiracy for payment of a huge ransom amount and the method adopted for payment of the amount requires investigation. Whether the offence is one of cognizable or non-cognizable is immaterial.
The police ought to have registered a case and investigated. If the matter is not investigated, great injustice will be done and it leads to a disaster. When it is clear from the book that ransom amount has been paid, the learned Magistrate is not justified in dismissing the complaint and that the learned Additional Chief Metropolitan Magistrate in his order has not mentioned that no offence is made out. The payment of the amount is nothing but extortion coming within the ingredients of Section 383 and 384 of IPC. Therefore, it is for the purpose of extortion that a conspiracy came to be hatched and the amount has been paid. Therefore, prayed to set aside the impugned order and to direct the Investigating Officer of the High Grounds Police Station to register the case and proceed in accordance with law.
5. Learned Counsel Sri C.V.Nagesh for the respondents contended that Section 2(d) Cr.P.C enables any person to file a complaint and it must contain the specific allegations and on such complaint, the Magistrate gets jurisdiction to deal with it. The complaint must contain and disclose a cognizable or a non-cognizable offence to take action in the matter. If the complaint discloses a cognizable offence, then action has to be taken under Section 190 Cr.P.C and the procedure laid down under Section 200 Cr.P.C has to be followed. If the learned Magistrate forms an opinion that the complaint discloses a non-cognizable offence, he may refer the matter under Section 156(3) Cr.P.C for investigation. Learned Counsel has further contended that Section 156(1) Cr-P.C. empowers the police officer to register a case as provided under Section 154 Cr.P.C. whereas Section 156(3) Cr.P.C provides for the Magistrate to direct investigation in respect of cognizable offences. Further Section 202 Cr.P.C also provides for a direction, may be, in relation to cognizable or non-cognizable offences and contended that Section 155(2) Cr.P.C is only in respect of non- cognizable offences, Section 156(3) Cr.P.C for cognizable offences and Section 202(2) Cr.P.C in respect of both offences after taking cognizance by the Court. Learned Counsel further submitted that the order of the learned Magistrate is dated 11.2.2003 referring the matter to the High Grounds Police Station for investigation and report. The order does not say for investigation and report. If the complaint discloses an offence, the police officer is bound to register a case in respect of cognizable offence as provided under Section 154 Cr.P.C and investigate under Section 156(1) Cr.P.C. In the present case, the complaint itself did not disclose whether it is a cognizable or a non-cognizable offence. Therefore, the Inspector submitted the report. It is thereafter, notice was issued to the Complainant. He having appeared filed his objections and requested the Court to refer the matter under Section 155(2) Cr.P.C for investigation of a non-cognizable offence. It is after hearing both sides, the impugned order came to be passed. In the present case, the question of providing an opportunity to prove the case of the complainant also does not arise as no cognizance was taken by the Court as required under Section 190 Cr.P.C. When once the cognizance is not taken, the question of considering the request of the complainant to refer the matter again under Section 155(2) Cr.P.C does not arise. When the learned Additional C.M.M has not chosen to take cognizance and dismissed the complaint in limine as the complaint did not disclose any offence, the order of the learned C.M.M does not suffer from any infirmities and justified the impugned order.
6. The learned Counsel further submitted that on going through the allegations contained in para 7 of the complaint, it does not disclose any offence. It is not even the statement of fact. Section 190(a) Cr.P.C provides that upon receiving a complaint consisting of facts constituting certain offence, the question of taking action does arise. In the present case, someone has written the story book. Therefore, the complainant wants to take action. Thereby it clearly shows that the complaint is vexatious and frivolous. In fact, it appears, the complainant wants to make a ransom to enrich himself by this complaint. The present complaint is in the nature of a public interest litigation which cannot be entertained. It is also contended that it is for the complainant to state the fact as to what is the offence. It is stated that there is conspiracy and common intention. In the complaint, it does not disclose as to what is the conspiracy and what is the common intention. Therefore contended that the complaint lacks the bona fides. He has further contended that the judgments referred to by the petitioner are not applicable to the facts of the case and submitted that the impugned order does not suffer from any infirmities as such. Lastly, in support of his contentions, he has relied on the decision in the case of GURUDUTH PRABHU AND OTHERS v. M.S.KRISHNA BHAT AND OTHERS, 1999 Crl. L.J. 3909 and contended that this complaint is nothing but blackmailing. The Complainant being a PWD Contractor at Raichur, it is the tendency of this person to make such allegations even as against other officers also for blackmailing. For the foregoing reasons, the learned Counsel justified the impugned order and prayed to dismiss the petition.
7. In the light of the contentions of the learned Counsel, the points for consideration that arise are:
1.Whether it is mandatory for the learned Magistrate to refer the complaint for investigation under Section 156(3) Cr.P.C or under Section 155(2) Cr.P.C even though the complaint does not disclose material allegations and facts regarding the alleged offence?
2.Whether the Impugned order suffers from infirmities? If so, liable to be interfered with?
3. What order?
8. The petitioner is by name Sri P.R.Venugopal resident of Raichur, calling himself to be a member of the Jana Sangharsha Samithi and a PWD Contractor. He has presented a complaint against (1) Sri S.M.Krishna, Chief Minister of Karnataka, (2) Sri V.J.Siddartha (3) Sri Jayaprakash, IPS Officer and (4) Smt. Parvathamma Rajkumarfor the offence under Section 120B r/w 34 I.P.C. based on the book “Veerappan’s Prize Catch:Rajkumar”, written by Sri C. Dinakar, the then IPS officer it is alleged that Sri S.M. Krishna Chief Minister of Karnataka sent an amount of Rs. 5 crores through his son-in-law, accused No. 2, Sri V.G. Siddartha and another sum of Rs. 5 crores through Sri Jayaprakash, IPS Officer, accused No. 3. Secondly, accused No. 4 sent an amount of Rs,1 crore to the residence of Sri M.Karunanidhi. Thirdly, accused No. 4, Smt. Parvathama Rajkumar paid an amount of Rs. 2 crores to the hands of one Bhanu. Fourthly, the film industry people contributed an amount of Rs. 2 crores in Sri M. Karunanidhi’s house at Chennai. It is further alleged that the said allegations are found in the book “Veerappan’s Prize Catch: Rajkumar”, written by Sri C.Dinakar, the then IPS Officer. Therefore, it is alleged that the accused persons have conspired for the payment of the amount to the forest brigand Veerappan for the release of the Cine actor Dr.Rajkumar and therefore committed the offence under Section 120B r/w 34 IPC. It is also alleged that the incident of kidnap had taken place on the Intervening night of 30/31.7.2000. Thus on a reading of the complaint, it makes clear that the petitioner based on the book “Veerappan’s Prize Catch:Rajkumar”, written by Sri C.Dinakar, the then IPS Officer, filed a complaint before the VIII Additional Chief Metropolitan Magistrate, Bangalore City. On presentation of the complaint, the learned VIII Additional Chief Metropolitan Magistrate, Bangalore City passed the following order dated 11.2.2003 which reads as under:
“Complainant is present and he files a Memo praying the Court to refer the matter to HGPS for investigation and report. Accordingly, case is referred to HGPS for investigation and report.”
The order dated 11.2.2003 shows that the matter was referred to the High Grounds Police Station for investigation and report. On 3.3.2003 the Investigating Officer of the High Grounds Police Station submitted a report stating that the complaint does not disclose any offence for registering a case and to proceed with the investigation. After submitting the report, the learned Additional Chief Metropolitan Magistrate, Bangalore City issued notice to the complainant. The Complainant having appeared filed the following objections with a prayer to redirect the SHO to investigate the matter under Section 155(2) Cr.P.C.
“The Counsel for the complainant in the above case respectfully submits as under:
1) In the above case by an order dated 11.2.2003 this Hon’ble Court was pleased to refer the above complaint to Police of High Grounds Police Station, Bangalore for investigation and report. In response to the orders of the Hon’ble Court the Police Inspector and the Station House Officer of the High Grounds Police Station, Bangalore (in short the SHO) has submitted a report on 3.3.2003 returning back the private complaint without investigation.
2) At the outset, it is submitted that the action of the SHO in returning the complaint without investigation amounts to disrespect to the orders of the Hon’ble Court and it amounts to obstruction in due process of the Hon’ble Court and it amounts to contempt of Court.
3) The SHO has stated in his report that he can commence investigation only if the complaint is referred Under Section 154 of Cr.P.C and that only in case of a cognizable offence he can register the case and commence the investigation. He has further stated that in the above private complaint the complainant has not stated about accused persons committing any cognizable offence. He has further stated that by registering a case Under Section 154 Cr.P.C he cannot investigate the same u/s156 of the Cr.P.C.
4) The action of the SHO is in flagrant violation of the authority of this Hon’ble Court in directing the SHO to investigate the complaint.
5) The SHO himself has stated that the complainant has not stated about commission of any cognizable offence by the accused persons. When it is so, he cannot expect registration of case Under Section 154 of Cr.P.C which lays down that every information relating to commission of cognizable offence if given to the SHO, he should enter in a book kept by such SHO and also the said Section provides for action to be taken by the Police. It was not necessary for the SHO to advise this Hon’ble Court about the action to be taken Under Section 154 Cr. P.C
6) Another objection of the SHO is that, the complainant has not stated about the commission of any cognizable offence by the accused and the complainant has stated about the offence Under Section 120B of IPC only
a) In this respect, it is respectfully submitted that in order to constitute an offence Under Section 120B of the IPC, it is not necessary for the complainant to make allegations of commission of further cognizable offence by the accused.
b) The offence Under Section 120B of IPC is an independent substantive offence and punishable Independently of any other offences in a case. In the case of Yashpal Ghosh Vs. State of Punjab, the Hon’ble Supreme Court has laid down that Section 120B of IPC is an independent substantive offence.
c) In the case of State of Maharashtra v. Somanath Thapa reported in 1966(2) Crimes 64 SC, the allegation was about the use of goods for illegitimate purpose and about the indulgence in an illegal act or a legal act by illegal means. It was held that to prove a charge of conspiracy knowledge about indulgence in an illegal act or a legal act by illegal means is essential.
d) In the case on hand the complainant has made specific allegation that in order to do the legal act of getting release of film actor Dr.Rajkumar from the custody of forest brigand Veerappan, the accused persons S.M.Krishna and others indulged in illegal act of paying huge amount of Rs. 20 Crores. As per Section 120B of the IPC indulgence is an illegal act for doing a legal act is also punishable as conspiracy. Allegation of criminal conspiracy only without making allegation of further cognizable offence against the accused persons attracts lesser punishment of imprisonment upto 6 months. But it is an offence and the offenders must be punished.
7) a) If it is the opinion of the SHO that the offence of Section 120B of the IPC alleged by the complainant in the complaint attracts the punishment of imprisonment only upto 6 months and for that reason it is non-cognizable offence, it was not open for the SHO to return the complaint without investigation.
b) As per Section155(2) of the Cr.P.C, the SHO was duty bound to register the case and investigate the offence alleged in the complaint. Because the said Section empowers the police officer to investigate into a non-cognizable offence with the order of the Magistrate having power to try such case. This Hon’ble Court has got power to try the complaint filed by the complainant and by the order dated 11.02.2003 this Court ordered the SHO to investigate.
c) While passing order of direction to the SHO for investigation, this Hon’ble Court has not used any Section either 155(2) of Cr.P.C or 156(3) of the Cr.P.C. This being so, the order is an order by the competent Court to the SHO to investigate into the complaint referred to him. By returning back the complaint the SHO has violated the provisions of Section 155(2) of the Cr.P.C. 8. For all the aforesaid reasons, the report dated03.03.2003 submitted by the SHO deserves to be rejected.
HENCE IT IS HUMBLY PRAYED
That the Hon’ble Court may be pleased to reject the report of the SHO and redirect the SHO Under Section 155(2) of the Cr.P.C to register the case and investigate into the complaint and report to this Hon’ble Court and initiate contempt of Court proceedings against the SHO in the interest of justice
9. The learned VIII Additional Chief Metropolitan Magistrate, Bangalore City, after hearing the learned Counsel for the petitioner dismissed the complaint with the following reasons:
“Perused the averments made in the report of the SHO in the light of the objections raised by the complainant wherein this Court found no sufficient, sustainable and substantial grounds are made out by the Complainant to redirect the complaint to the SHO of High Grounds PS.”
10. It is in this background, it is to be examined, whether the dismissal of the complaint is justified or not.
11. Section 2(d) of Cr.P.C reads as under.
“2(d) “complaint” means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence but does not include a police report.”
It enables a person to lodge a complaint before the Magistrate with specific allegations as to someone has committed an offence for taking action as provided under the Code of Criminal Procedure. The requirement to lodge a complaint is that, it must be specific and it must contain the statement of facts in respect of the offence alleged to have been committed.
12. Section 190 Cr.P.C. provides for conditions requisite for initiating proceedings by the Magistrate which reads as under:
“190 Cognizance of offences by Magistrate,-(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.”
It is clear from the reading of Section 190(a) Cr.P.C that the complaint shall contain statement of facts so as to constitute an offence for taking cognizance by the Magistrate. In the present case, the learned Magistrate has not taken cognizance and referred the matter for investigation under Section 156(3) Cr.P.C.
13. Section 156 Cr.P.C reads as under:
“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.”
Sub-section (1) of Section 156 Cr.P.C. enables the police officer to investigate into the matter in respect of cognizable offences. Sub-section (2) of Section 156 Cr.P.C. is an unlimited power of the Investigating Officer which cannot be called in question. Apart from that, Sub-section (3) of Section 156 Cr.P.C enables the Magistrate to make an investigation upon receiving the complaint as provided under Section 190(a) of the Code of Criminal Procedure. In view of the fact that the Investigating Officer of the High Grounds Police Station has submitted the report, it was incumbent on the part of the learned Magistrate to find out whether the complaint consists of certain facts which constitute an offence.
14. Section 154 Cr.P.C reads thus:
“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 there of 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.”
15. It is in respect of cognizable offences, Sub-section (1) of Section 154 Cr.P.C enables the Station House Officer to make an entry regarding the substance of such information and there upon proceed to investigate the matter.
16. Section 155 Cr.P.C reads thus:
“155. Information as to non- cognizable cases and investigation of such cases,-(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any policeofficer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.”
It enables the SHO to make an entry of the substance of an information in respect of a non-cognizable offence. Sub-Section (2) enables the Investigating Officer to proceed with the investigation in respect of a non-cognizable offence with the order of the Magistrate.
17. Though the matter came to be referred to the learned Magistrate under Section 156(3) Cr.P.C, as the complaint did not disclose as to whether the offence is one of cognizable or non- ognizable, the Investigating Officer has submitted a report. It is also pertinent to note that after the report was submitted, the complainant requested the learned VIII Additional Chief Metropolitan Magistrate, Bangalore City, for referring the matter under Section 155(2) Cr.P.C. Thus it is very well within the knowledge of the complainant that the offence is one of non- cognizable in nature. But to refer the matter under Section 155(2) Cr.P.C, the Court should satisfy itself whether the complainant has pleaded sufficient material facts so as to constitute a non-cognizable offence. The complaint is filed for the offence under Section 120B r/w 34 IPC. The offence under Section 120B IPC is either it may become cognizable or non-cognizable depending upon the main offence alleged. It is well settled position of law that for the offence under Section 120B IPC, the accused persons can be punished independently provided if it is established what is the main offence committed. At this stage, it has to be examined whether the decisions relied upon by the learned Counsel Sri F.V.Patil are applicable to the facts of this case or not.
18. In the case of P.R.VENUGOPAL v. G.P.RAJASHEKAR AND OTHERS reported in ILR 2003 Kar 801, it is observed as under:
“Complaint referred for investigation under Section 156(3) should be sent again to Inspector, Lokayuktha, Raichur, to register the case and proceed further in accordance with law.”
In the case supra, the facts are entirely different, wherein the special Judge ordered recalling the matter referred for investigation under Section 156(3) Cr.P.C. It is in that sense held, when once the Court made a judicial order referring the matter for investigation under Section 156(3) Cr.P.C, it has no power to recall the same. But in the present case, the facts are altogether different. The Learned VIII Additional Chief Metropolitan Magistrate, Bangalore City has not recalled the order. That apart, it is clear from the very objections statement filed, that the complainant, in the prayer portion has sought to redirect the SHO under Section 155(2) Cr.P.C to register the case and investigate. This makes clear that the Complainant has prayed the Court to direct the police to investigate in respect of a non-cognizable offence. In that view of the matter, the decision cited supra is not applicable to the facts of this case.
When the Complainant himself has sought for an investigation under Section 155(2) Cr.P.C in respect of a non-cognizable offence, before issuing any such direction it must satisfy itself whether sufficient material facts have been pleaded to make such a reference.
19. Learned Counsel Sri F.V Patil further relied on a decision in the case of H.N.RISHBUD AND ANR. v. STATE OF DELHI, and contended that the scheme of the Criminal Procedure enables the investigating Officer to proceed to the spot, ascertain the facts and circumstances, discovery and arrest of the suspected offender, collection of evidence relating to the commission of the offence etc., and to make an investigation without fear or favour. If it discloses a cognizable offence, to file a charge sheet or if no offence is disclosed from the investigation, to file ‘B’ report. But the police is not empowered to return when the matter is referred under Section 156(3) Cr.P.C and thereby they have to file some report in accordance with law.
20. There cannot be any dispute regarding the principles laid down and also the scheme and enactment of the Code of Criminal Procedure. But each case has to be examined on its own facts and circumstances. In the case supra, the questions that came up for consideration are under Sections 4 and 5 of the Prevention of Corruption Act,1947. The case against the appellants are that, they along with some others entered into criminal conspiracies to obtain for themselves or for others Iron and Steel materials in the name of certain bogus firms and that they actually obtained quota certificates on the strength of which some of the members of the conspiracy took delivery of quantities of Iron and steel from the stock holder of these articles. The charges therefore under which the various accused including the appellants are being prosecuted are under Section 120B IPC, Section 420 IPC and Section 7 of the Essential Supplies (Temporary Powers) Act, 1946. In respect of such of these accused as are public servants, there are also charges under Section 5(2} of the Prevention of Corruption Act, 1947. While considering the provisions of Section 5(2) of the Prevention of Corruption Act, 1947, at the end of para 12 of the judgment, it is held as under:
“It is only when the material so collected disclosed the commission of an offence under Section 5(2) of the Act by public servants, that any question of taking the sanction of the Magistrate for the investigation arose. In such a situation, the continuance of such portion of the investigation as remained as against the public servants concerned by the same officer after obtaining the permission of the Magistrate was reasonable and legitimate. We are therefore of the opinion that there has been no such defect in the investigation in this case as to call for interference.”
On considering the facts of the reported case and the facts of the present case, it is in no way applicable to the facts of this case.
21. In the case of DEVARAPALLI LAKSHMINARAYANA REDDY AND OTHERS v. V.NARAYANA REDDY AND OTHERS , it is clearly held that though the offence alleged is one exclusively triable by the Court of Sessions, there is no bar for the Magistrate to refer the matter for investigation under Section 156(3) Cr.P.C. Further at para 18 of the judgment, it is observed as under:
“18. In the instant case, the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, but only for ordering an investigation under Section 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses under Section 200 Cr.P.C which is the first step in the procedure prescribed under that Chapter. The question of taking the next step of that procedure envisaged in Section 202 did not arise. Instead of taking cognizance of the offence, he has, in the exercise of his discretion sent the complaint for investigation by police under Section 156.”
22. This makes clear that even for referring the matter for investigation that the Court has to apply its mind to find out whether or not there is sufficient ground for proceeding. Therefore, it has to be examined on the basis of the allegations contained in the complaint, whether, there are sufficient materials to proceed with and to make a reference for investigation as prayed for by the Complainant under Section 155(2) Cr.P.C.
23. The principles laid down in the case of MOHD. HUSSAIN UMAR KOCHRA v. K.S.DALIPSINGHJI AND ANOTHER, , and in the case of LEO ROY FREY v. SUPERINTENDENT, DISTRICT JAIL, AMRITSAR AND ANOTHER, , regarding the ingredients for the offence under Section 120B IPC, that criminal conspiracy is an offence created and made punishable by the Indian Penal Code. For a charge of conspiracy, only an agreement is sufficient. So it is sufficient to include in the charge the crime which is alleged to have been arrived at between the conspirators. It is also settled proposition of law that conspiracy to commit an offence is itself an offence and a person can be separately charged with respect to such conspiracy.’ Therefore, there cannot be any dispute regarding the principles laid down.
24. The learned Counsel also makes a reference to the decision in the case of ABDUL KAREEM v. STATE OF KARNATAKA reported in AIR 2001 SC 116, wherein at para 45, it is observed as under:
“45. The application and order under Section 321 is a result of panic reaction by overzealous persons without proper understanding of the problem and consideration of the relevant material, though they may not have any personal motive. It does not appear that anybody considered that if democratically elected Governments give an impression to the citizens of this Country of being law breakers, it would not breed contempt for law; it would not invite citizens to become a law onto themselves. It may lead to anarchy. The Governments have to consider and balance the choice between maintenance of law and order and anarchy. It does not appear that anyone considered this aspect. It yielded to the pressure tactics of those who according to the Government are out to terrorise the police force and to overawe the elected Governments. It does not appear that anyone considered that with their action people may lose faith in the democratic process, when they see public authority flouted and the helplessness of the Government. The aspect of paralysing and discrediting the democratic authority had to be taken into consideration. It is the executive function to decide in public interest to withdraw from prosecution as claimed. But, it is also for the Government to maintain its existence. The self-preservation is the most pervasive aspect of sovereignty. To preserve its independence and territories is the highest duty of every nation and to attain these ends nearly all other considerations are to be subordinated. Of course, it is for the ‘state to consider these aspects and take a conscious decision. In the present case, without consideration of these aspects the decision was taken to withdraw the TADA charges. It is evident from materials now placed on record before this Court that Veerappan was acting in consultation with secessionist organizations/ groups which had the object of liberation of Tamil from India. There is no serious challenge to this aspect. None of the aforesaid aspects were considered by the Government or the Public Prosecutors before having recourse to Section 321 Cr.P.C.”
25. The learned Counsel nextly contended that the author of the book Sri C.Dinakar, who wrote and published the book “Veerappan’s Prize Catch; Rajkumar”, was having access with the Chief Minister. The method adopted for the release of the cine actor Dr. Rajkumar and the payment of huge ransom have been specifically narrated in the book. This shows that the Complainant did not have any personal knowledge of the allegations or of any information as such.
26. In the case of Guruduth Prabhu and others v. M.S. Krishna Bhat reported in 1999 Crl.L.J 3909, at para 10, it is observed thus:
“When the allegation made in the complaint does not disclose cognizable offence, the Magistrate has no jurisdiction to order police investigation under Sub-section (3). In the present case, the learned Magistrate without applying his mind had directed an investigation by the police. Such an order which is passed without application of mind is clearly an order without jurisdiction. Therefore, the order passed directing the police to investigate under Sub-section (3) of Section 156 Cr.P.C passed without jurisdiction is liable to be quashed by this Court either under Section 482 Cr.P.C or under Article 26 of the Constitution of India. We find from the materials on record, the learned Magistrate has not at all applied his mind before directing police investigation under Section 156(3) Cr.P.C. If the Magistrate had applied his mind, the Magistrate could have found that no cognizable offence in made out even if the entire allegations made in the complaint are accepted.”
That from the decision supra, it is clear, to make a reference to police for investigation, that. The Magistrate has to apply his mind as to whether the allegations in the complaint are sufficient to make such order for investigation under Section 156(3) or under Section 155(2) Cr.P C. When the allegation does not disclose any offence, the complaint has to be thrown out and the question of entertaining such complaint also does not arise.
27. Keeping in mind the principles enunciated by the Apex Court and various other Courts, on a careful examination of the complaint filed by the petitioner, it is seen that the complaint is based on an alleged story book “Veerappan’s Prize Catch: Rajkumar”, written by a retired Police Officer Viz., Sri C. Dinakar. That nothing is within the personal knowledge of the complainant in so far as the allegations narrated in the story book. Firstly, that in order to make a reference either under Section 156(3) or under Section 155(2) Cr.P.C. that the complaint must disclose the allegations of facts which constitutes such an offence. In the absence of any allegations of facts or where the complaint does not disclose or constitute any such offence, it is needles to say such complaints have to be referred for investigation. Secondly, it is only in case if the Magistrate takes cognizance, then the question of examining the complaint does arise and to proceed under Sections 200, 202 and 204 of the Code of Criminal Procedure. In the present case, firstly the learned Magistrate has not taken cognizance, Therefore, the question of examining the complainant on oath does not arise. When the complaint itself is based on an alleged story book “Veerappan’s Prize Catch: Rajkumar”, written by a retired Police Officer, viz Sri C. Dinakar the complainant having no personal knowledge about such alleged incident could not have stated anything.
28. The learned VIII Additional Chief Metropolitan Magistrate, Bangalore City, after carefully examining the contents of the complaint and also the objections filed by the complainant requesting the Court to refer the matter for investigation under Section 155(2) Cr.P.C. passed the impugned order which reads as under:
“Perused the averments made in the report of the SHO in the light of objections raised by the complainant, wherein this Court found no sufficient, sustainable and substantial grounds are made out by the complainant to redirect the complaint to the SHO of the High Grounds PS.”
With the said observation, dismissed the complaint. This itself shows that the learned VIII Additional Chief Metropolitan Magistrate, Bangalore City, after applying his mind to the facts of the case, as the complaint did not disclose any allegations of fact which are within the personal knowledge of the complainant has dismissed the complaint. If the Courts were to be permitted to entertain this kind of flimsy complaints based on story books, there will be no end for criminal litigations which results in miscarriage of justice.
29. On examination of the complaint, it clearly discloses that it is frivolous and vexatious. To constitute an offence under Section 120B IPC that there should be an element of meeting of minds of two or more to wit a crime. The conspiracy should be to do a criminal act. In this case, even going for the extreme, the release of the cine actor Dr. Rajkumar from the clutches of the forest brigand Veerappan cannot be said, the respondents have committed any such criminal offence. No material facts are forthcoming in respect of the alleged conspiracy for having paid ransom running to crores of rupees for the release of the cine actor Dr.Rajkumar. That apart the author of the story book “Veerappan’s Prize Catch: Rajkumar”, written by the retired Police Officer Viz., Sri C. Dinakar himself has not voiced and approached the appropriate Court. The complaint neither contains material facts nor allegations so as to constitute conspiracy. Therefore, the learned VIII Additional Chief Metropolitan Magistrate, Bangalore City, considering all these facts dismissed the complaint on the ground no sufficient, sustainable and substantial grounds are made out by the complainant to redirect the complaint to the SHO of the High Grounds Police Station. As such, the said order does not call for interference.
30. At this stage, it is also relevant to take note of the conduct of this complainant who is in the habit of filling private complaints and the same are evidenced from the copies of the complaints produced by the respondents’ Counsel in PC No. 5/98 (P.R. Venugopal v. S.B.Nagabhushan and another) on the file of the Principal Sessions Judge, Raichur, PC.No.1/1999 (P.R.Venugopal v. G.P. Rajashekar and Others) on the file of the Principal Sessions Judge Raichur, P.C.No.112001 (P.R. Venugopal v. Mohammad Sayeed Afzal and others) on the file of the Sessions Judge (Special Judge) Raichur, P.C.No. 41/1990 (P.R.Venugopal v. B.Surendra Babu and Others) on the file of the JMFC Raichur, and P.C.No.45/2003 (P.R.Venugopal v. Manohar) on the file of Principal JMFC II, Raichur, This shows that it has become the fancy of the complainant to file complaints after complaints against some persons which can be said that it is for the purpose of blackmailing as contended by the learned Counsel for the respondents.
31. In the present case, the learned VIII Additional Chief Metropolitan Magistrate, Bangalore City, after applying his mind held that there are no sufficient, sustainable and substantial grounds made out by the complainant to take cognizance or to refer the matter for investigation It is time and again the Apex Court has held that before taking cognizance or referring the matter for investigation either under Section 156(3) or under Section 155(2) Cr.P.C., that the Magistrate should satisfy himself regarding the allegations in the complaint as to what the complainant is alleging and it should be within his personal knowledge.
32. Considering the facts of the case, the impugned order does not suffer from any infirmities. Further, I hold that it is also not mandatory in all cases to direct the investigation blindly in the absence of the allegations of the material facts.
33. For the foregoing reasons, I do not find any merit in this revision. Accordingly, the revision stands dismissed.
34. The Complainant having filed this complaint without any personal knowledge based on a story book, I feel that it is a fit case to levy a cost of Rs. 10,000/-. The cost shall be recovered by the Appropriate authorities in accordance with law.
