Pawan Sharma And Anr. vs Smt. Kamalabai And Anr. on 10 April, 2007

Madhya Pradesh High Court
Pawan Sharma And Anr. vs Smt. Kamalabai And Anr. on 10 April, 2007
Equivalent citations: 2007 CriLJ 3539
Author: B Gupta
Bench: B Gupta


ORDER

B.M. Gupta, J.

1. Heard finally at motion stage.

Two legal questions are involved in this case-

1. That whether in a private complaint filed for the offence exclusively triable by the Court of Session, a Magistrate can direct the police to investigate into the matter under Section 156(3) of Cr.P.C?

2. That, whether in the present case, cognizance under Section 200 of Cr.P.C. has been taken by the learned Magistrate?

3. In the present case, as per the facts mentioned in the petition as well as in the copy of the complaint, it appears that the incident happened on 16th March, 2007, one complaint has been filed by Smt. Kamla Bai, respondent No. 1, against the petitioners for the offences punishable under Sections 376, 354, 294 and 323 of IPC. It has been alleged in the complaint that the daughter of the complainant was beaten by the petitioners and thereafter they committed rape on her. Without recording any evidence under Sections 200 and 202 of Cr.P.C. the learned Magistrate vide impugned order dated 21-3-2007 directed the police under Section 156(3) of Cr.P.C. to register a case and after investigation file a report in the Court. This action of the learned Magistrate has been impugned by Smt. Uma Kushwah, the learned Counsel for the petitioners, on the ground that as provided under proviso A of Sub-section (1) of Section 202 of Cr.P.C. without examining the witnesses of the complainant, directing the police as aforesaid is prohibited. In support, she has drawn attention on an order of this Court passed in Kamlesh Pathak v. State of M.P. 2006 (1) MPJR 159 in which vide para 12 the following observation has been made by one single Bench of this Court:

12. Thus, after perusing the aforesaid case laws and the language of proviso to Section 202 it clearly appears that the Magistrate has no power to issue direction under Section 156(3), Cr.P.C. in cases where offence is triable by exclusively by Sessions Court and if directions are issued that would be without jurisdiction. In case a complaint is made to the Magistrate of an offence which is exclusively triable by Sessions Court it is incumbent on him to call upon the complaint to produce witnesses on which he relied and after recording their statements the Magistrate may decide whether cognizance of offence it to be taken or not. In the present case, the Court has not followed the said procedure and has directed investigation by police under Section 156(3), Cr.P.C.

On perusal of the order in the case of Kamlesh Pathak (supra), it appears that judgment delivered by the Apex Court in Devrapalli Laxminarayana Reddy v. Narayana Reddy 1976 Cri LJ 1361 was neither cited nor considered by this Court. As per the facts of the case of Devrapalli, a complaint was filed on 26th July, 1975 for the offences punishable under Sections 147, 148, 149, 307, 395, 448, 378 and 342 of IPC. The offences under Sections 307 and 395 were exclusively triable by the Court of Session. The Magistrate on receiving the complaint, forwarded the same to the police for investigation with the following endorsement- “forwarded under Section 156(3) of Cr.P.C. to Inspector of Police, Dharmavaram, for investigation and report on or before 5th August, -1975 – The similar objection, as has been raised in the present case, was raised on behalf of the accused persons. The matter went up to the Apex Court in which as per paras 17 to 19 following observation has been recorded:

17. Section 156(3) occurs in Chapter XII, under the caption : “Information to the police and their powers to investigate”; while Section 202 is in Chapter XV which bears the heading “Of complaints to Magistrate”. The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second a the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(l)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3)….

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.

19. This being the position, Section 202(1), 1st Proviso was not attracted. Indeed, it is not necessary for the decision of this case to express any final opinion on the ambit and scope of the 1st Proviso to Section 202(1) of the Code of 1973. Suffice it to say, the stage at which Section 202 could become operative was never reached in this case. We have therefore in keeping with the well established practice of the Court, decided only that much which was essential for the disposal of this appeal, and no more.

4. The observation of the Apex Court is complete answer to the first objection raised on behalf of the petitioners. In the light of this observation, the aforesaid observation of this Court in the case of Kamlesh Pathak (supra) does not support the contention of the petitioners.

5. For second question, perusal of the orders passed by the learned Magistrate on receiving the complaint as well as the relevant provisions of Section 200, Cr.P.C. will be required to be seen. Order dated 20th March, 2007 goes as under:

(Vernacular text omitted.)

Order dated 21st March, 2007 goes as under:

(Vernacular text omitted.)

6. Relevant provisions of Section 200 of Cr.P.C. goes as under:

200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided…

(a) and (b)…

Provided under…

7. Shri Saxena while placing reliance on Mohd. Yosuf v. Afaq Jahan (Smt.) (2006) 1 SCC (Cri) 460 : 2006 Cri LJ 788 has submitted that the learned Magistrate has taken cognizance under Section 200 of Cr.P.C. To appreciate the contention, the following observation of Hon’ble Supreme Court in paras 11 to 14 will be required to be perused, which goes as under:

11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein…

12. The above position was highlighted in Suresh Chand Jain v. State of M.P. 2001 AIR SCW 189.

13. In Gopal Das Sindhi v. State of Assam AIR 1961 SC 986 it was observed as follows (AIR pp 988-89, para 7):

7. When the complaint was received by Mr. Thomas on 3-8-1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the officer in charge of Police Station Gauhati for investigation. Section 156(3) states any Magistrate empowered under Section 190 may order such investigation as abovementioned. Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342 and 448 were cognizable offences. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complaint and the witnesses present if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word ‘may’ in Section 190 to mean ‘must’. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code. Numerous cases were cited before us in support of the submissions made on behalf of the appellants. Certain submissions were also made as to what is meant by ‘taking cognizance’. It is unnecessary to refer to the cases cited. The following observations of Mr. Justice Das Gupta in the case of Supdt. and Remembrancer of Legal Affairs v. Abani Kumar Banerjee .

‘What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter – proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence were approved by this Court in R. R. Chari v. State of U.P. . It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various Sections of Chapter XVI but for taking action of some other kind, e.g., ordering investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. The observations of Mr. Justice Das Gupta above-referred to were also approved by this Court in the case of Narayandas Bhagwandas Madhavdas v. State of W.B. . It will be clear, therefore, that in the present case neither the Additional District Magistrate nor Mr. Thomas applied his mind to the complaint filed on 3-8-1957, with a view to taking cognizance of an offence. The Additional District Magistrate passed on the complaint to Mr. Thomas to deal with it. Mr. Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mind to it with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police under Section 156(3) of the Code. The action of Mr. Thomas comes within the observations of Mr. Justice Das Gupta. In these circumstances, we do not think that the first contention on behalf of the appellants has any substance.

14. In Narayandas Bhagwandas Madhavdas v. State of W.B. it was observed as under (SCR pp. 102-06):

On 19-9-1952, the appellant appeared before the Additional District Magistrate who recorded the following order:

He is to give bail of Rs. 50,000 with ten sureties of Rs. 5000 each. Seen police report. Time allowed till 19-11-1952, for completing investigation.

On 19-11-1952, on perusal of the police report the Magistrate allowed further time for investigation until 21-1-1953, and on. that date time was further extended to 2-2 -1953. In the meantime, on 27-1-1953, Inspector Mitra had been authorized under Section 23(3)(b) of the Foreign Exchange Regulation Act to file a complaint. Accordingly, a complaint was filed on 2-2-1953. The Additional District Magistrate thereon recorded the following order:

Seen the complaint filed today against the accused Narayandas Bhagwandas Madhavdas under Section 8(2) of the Foreign Exchange Regulation Act read with Section 23B thereof read with Section 19 of the Sea Customs Act and notification No. FERA 105/51 dated 27-2-1951, as amended, issued by Reserve Bank of India under Section 8(2) of the Foreign Exchange Regulation Act. Seen the letter of authority. To Shri M. N. Sinha, SDM (Sadar), Magistrate, First Class (Spl. Empowered) for favour of disposal according to law. Accused to appear before him.

Accordingly, on the same date Mr. Sinha then recorded the following order ;

Accused present. Petition filed for reduction of bail. Considering all facts, bail granted for Rs. 25,000 with 5 securities.

To 26-3-1952 and 27-3-1952 for evidence.’

It is clear from these orders that on 19-9-1952, the Additional District Magistrate had not taken cognizance of offence because he had allowed the police time till 19-11-1952, for completing the investigation. By his subsequent orders time for investigation was further extended until 2-2-1953. On that date the complaint was filed and the order of the Additional District Magistrate clearly indicated that he took cognizance of the offence and sent the case for trial to Mr. Sinha. It would also appear from the order of: Mr. Sinha that if the Additional District Magistrate did not take cognizance, he certainly did because he considered whether the bail should be reduced and fixed the !26th and 27th of March, for evidence. It was, however, argued that when Mitra applied for a search warrant on 16-9-1952, the Additional District Magistrate had recorded an order thereon, ‘Permitted. Issue search warrant.’ It was on this date that the Additional District Magistrate took cognizance of the offence. We cannot agree with this submission because the petition of Inspector Mitra clearly states that ‘as this is non-cognizable offence, I pray that you will kindly permit me to investigate the case under Section 155, Cr.P.C That is to say, that the Additional District Magistrate was not being asked to take cognizance of the offence. He was merely requested to grant permission to the police officer to investigate a non-cognizable offence. The petition requesting the Additional District Magistrate to issue a warrant of arrest and his order directing the issue of such a warrant cannot also be regarded as orders which indicate that the Additional District Magistrate thereby took cognizance of the offence. It was clearly stated in the petition that for the purposes of investigation his presence was necessary. The step taken by Inspector Mitra was merely a step in the investigation of the case. He had not himself the power to make an arrest having regard to the provisions of Section 155(3) of the Code of Criminal Procedure. In order to facilitate his investigation it was necessary for him to arrest the appellant and that he could not do without a warrant of arrest from the Additional District Magistrate. As already stated, the order of the Additional District Magistrate of 19-9-1952, makes it quite clear that he was still regarding the matter as one under investigation. It could not be said with any good reason that the Additional District Magistrate had either on September 16, or at any subsequent date up to 2-2-1953, applied his mind to the case with a view to issuing a process against the appellant. The appellant had appeared before the Magistrate on 2-2-1953, and the question of issuing summons to him did not arise. The Additional District Magistrate, however, must be regarded as having taken cognizance on this date because he sent the case to Mr. Sinha for trial. There was no legal bar to the Additional District Magistrate taking cognizance of the offence on 2-2-1953, as on that date Inspector Mitra’s complaint was one which he was authorised to make by Reserve Bank under Section 23(3)(b) of the Foreign Exchange Regulation Act. It is thus clear to us that on a proper reading of the various orders made by the Additional District Magistrate no cognizance of the offence was taken until 2-2-1953. The argument that he took cognizance of the offence on 16-9-1952, is without foundation. The orders passed by the Additional District Magistrate on 16-9-1952, 19-9-1952, 19-11-1952 and 2-1-1953, were orders passed while the investigation by the police into a non-cognizable offence was in progress. If at the end of the investigation no complaint had been filed against the appellant the police could have under the provisions of Section 169 of the Code released him on his executing a bond with or without sureties to appear if and when so required before the Additional District Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. The Magistrate would not be required to pass any further orders in the matter. If, on the other hand, after completing the investigation a complaint was filed, as in this case, it would be the duty of the Additional District Magistrate then to enquire whether the complaint had been filed with the requisite authority of Reserve Bank as required by Section 23(3)(b) of the Foreign Exchange Regulation Act. It is only at this stage that the Additional District Magistrate would be called upon to make up his mind whether he would take cognizance of the offence. If the complaint was filed with the authority of Reserve Bank, as aforesaid, there would be no legal bar to the Magistrate taking cognizance. On the other hand, if there was no proper authorisation to file the complaint as required by Section 23 the Magistrate concerned would be prohibited from taking cognizance. In the present case, as the requisite authority had been granted by Reserve Bank on 27-1-1953, to file a complaint, the complaint filed on February, 2, was one which complied with the provisions of Section 23 of the Foreign Exchange Regulation Act and the Additional District Magistrate could take cognizance of the offence which, indeed, he did on that date. The following observation by Das Gupta. J., in the case of Supdt. and Remembrancer of Legal Affairs v. Abani Kumar Banarjee was approved by this Court in the case of R. R. Chari v. State of U.P. .

‘ What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a). Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter – proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

It is, however, argued that in Chari case this Court was dealing with a matter which came under the Prevention of Corruption Act. It seems to us, however, that makes no difference. It is the principle which was enunciated by Das Gupta, J. which was approved. As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts f4 by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure or under Section 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.

(Emphasis supplied)

8. Similarly, in the case of Devrapalli (supra), in para 14 it is observed, that –

This raises the incidental question : What is meant by “taking cognizance of an offence” by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly, speaking, when on receiving a complaint. the Magistrate applies his mind for the purposes of proceedings under Section 200 and the succeeding Sections in Chapter XV of the Code of 1973. he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.

(Emphasis supplied)

9. That, it appears that before it can be said that a magistrate has taken cognizance of any offence under Section 190(1)(a), he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceedings in a particular way as indicated in the subsequent provisions of Chapter 15 of Cr. P.C. i.e. under Sections 200 and 202 of Cr. P.C. Immediately on filing of the complaint on 20-3-2007, an application under Section 156(3) of Cr. P.C. and another application for sending the victim for medical examination were also filed along with the petition. Considering the application, learned Magistrate ordered that the complaint along with enclosures be sent to in-charge police Station Gijora and be written to him to get the medical examination done of the victim and file the medical report along with his report. On 21-3-2007, on perusal of the report of the police as well as medical report, learned Magistrate has mentioned that vide reports the offences under Sections 376, 354, 506B and 342/34 of IPC has been found. The learned Magistrate chose not to proceed under Section 200 of Cr. P.C. hence, did not examine the prosecutrix and while returning the complaint back to the police, he ordered that after registering the offence, investigation be conducted and thereafter report be filed.

10. Thus, it is abundantly clear, that neither the learned Magistrate applied his mind to the complaint as well as on the point as to what offence appeared from the complaint nor did he proceed according to the procedure as laid down in Section 200 of Cr. P.C. Had he proceeded under Section 200, it was incumbent upon him to examine the complainant on oath and her witnesses present, as it has been prescribed by Section 200 in the words ‘shall examine upon oath the complainant and the witnesses present’ instead he considered an application under Section 156(3) of Cr. P.C. and while sending the complaint to the police, directed as aforesaid. The medical examination is part of the investigation. On considering the application under Section 156(3), he sent the complaint to the police with a direction to get the prosecutrix examined medically. That was a direction for the investigation because it was a work of the police during investigation. Even on next date i.e. 21st March, 2007, vide report of the police, it was mentioned that aforesaid offences are made out, hence, he returned the complaint along with the papers to the police and directed to register the case and investigate into the matter. As contended on behalf of the petitioner by Shri Saxena, neither the intention nor any of the steps of the learned Magistrate indicate that he applied his mind to proceed in the way as prescribed in Chapter XV of Cr. P.C. On the contrary, it is clear that he is proceeding under Section 156(3) of Cr. P.C. from the very beginning till the end.

11. Thus, there appears no abuse of the process of the Court in the impugned order. It is perfectly justified. Hence, no interference is called for. The petition, being devoid of merits, is dismissed.

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