Anita Pawar vs Dharmendra Sikarwar and Another

Anil Kumar Sharma, J.—The only question involved in this revision is whether in a case instituted on a private complaint u/s 190 Cr.P.C. after the report filed by the Police u/s 156(3) Cr.P.C. on the direction of the Magistrate, the case can be treated as filed u/s 173(2) of Cr.P.C.

Learned Judicial Magistrate First Class, Guna by its order dated 19/1/2010 rejected the application filed by the complainant for framing charges on the basis of Police Report without taking evidence before the charge. In revision, the Additional Judge to the Court of Fourth Additional Sessions Judge, (Fast Track) Guna has allowed the revision petition filed by the complainant and directed that after receiving the report u/s 156(3) Cr. P.C. it is not necessary to take evidence before framing charge and since the Court has already taken cognizance on Police Investigation Report submitted u/s 156(3) Cr.P.C., the cognizance shall be treated as taken u/s 190(1)(b) Cr.P.C.

It means learned Additional Sessions Judge while mentioning the provisions of Section 190(1)(b) has overlooked the provisions of that Section. Section 190 Cr.P.C. reads as under:

Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.

From a bare reading of the Section 190 Cr.P.C., it is clear that cognizance of the offence shall be deemed to have been taken as soon as the complaint of facts which constitutes such offence has been received by the Magistrate. The second mode is upon a police report of such facts. Therefore, it is clear that as soon as the complaint is filed, cognizance shall be deemed to be taken by the Magistrate concerned.

The Judicial Magistrate may proceed to take statements of the complainant and his witnesses under Sections 200 and 202 of Cr.P.C. or he can refer the matter to be investigated by the Police Officers u/s 156(3) of Cr.P.C. Section 156 of the Cr.P.C. reads as under:

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 u/s 190 may order such an investigation as above-mentioned.

The learned Counsel for the respondent has relied on the judgment of Mohd. Yousuf v. Afaq Jahan (Smt.) and Anr. (2006) 1 SCC 460 in which it has been held that if a complaint has been sent for investigation to the officer-in-charge of the Police Station u/s 156(3), it is the duty of the officer in charge of the police station to register an FIR even when the Magistrate explicitly does not say so. Simply by registering the FIR, for investigating the matter u/s 156(3) of Cr.P.C. it is not necessary for the officer in charge of the Police Station to file challan u/s 173(2) Cr.P.C. he can submit a report to the concerned Magistrate who shall then issue process u/s 204 of Cr.P.C. and the case will be treated as complaint case and the procedure for trial will be mentioned in the case instituted otherwise than on police report provided u/s 242 - 247 of Chapter XIX of Cr.P.C.

Learned Counsel for the petitioner has cited a judgment of the Hon. Apex Court in the case of Ajay Kumar Ghose v. State of Jharkhand and Anr. (2010) 1 SCC (Cri.) 1301 in which while discussing the difference between case instituted on basis of police report and case instituted otherwise than on police report it has been held that in first category, prosecution gets opportunity to lead evidence only after charge is framed whereas in second category complainant gets two opportunities to lead evidence, first before charge is framed and second after charge is framed.

Therefore, it is clear from the above that simply by sending a case for investigation on a private complaint to the Police u/s 156(3) of Cr.P.C., on submission of the police report the case cannot be treated as instituted upon police report because cognizance of the offence has already been taken on the basis of complaint filed by the complainant. It is in continuation of provisions of Section 190(1)(a) of Cr.P.C. that report u/s 156(3) of Cr.P.C. submitted before the trial Court after which either the Magistrate can issue process against the accused or the complaint can be rejected. The report submitted u/s 156(3) Cr.P.C. cannot be treated as Police Report u/s 173(2) of Cr.P.C., therefore, it is clear that the order dated 30/3/2010 passed by learned Additional Sessions Judge cannot be said to be legal and the order passed by the learned Judicial Magistrate First Class dated 19/1/2010 in Criminal Case No. 27/2009 was proper and was in accordance with the procedure prescribed for warrant case instituted otherwise other than on Police Report.

Resultantly, the petition is allowed. The order passed by learned Additional Session Judge, Guna dated 30/3/2010 is hereby set aside. Consequently the order dated 19/1/2010 passed by learned Judicial Magistrate First Class, Guna is hereby affirmed. The revision filed by the accused against the cognizance although dismissed by this Court as mentioned in the order of the trial Court, this does not mean that this Court has directed the case instituted to be as Police case or procedure prescribed in the Police case be followed.