Damodar Sharma and Others vs Nathuram Jatav and Another

A.P. Shrivastava, J.

Smt. Uma Kushwah, counsel for the Petitioners.

Shri B. D. Mahore, Public Prosecutor for the Respondent No. 2/State

Heard finally at motion stage.

This revision is directed against the order dated 4-12-2006 passed by the Judicial Magistrate, First Class, Dabra (District Gwalior) in unregistered case /06. Nathuram Yatav v. Abdheys Sharma and others by which the Magistrate forwarded the complaint for investigation u/s 156(3) of Code of Criminal Procedure to the police.

In short, the fact of the case is that non-Petitioner No. 1 (complainant) filed a complaint against the Petitioners under Sections 323, 294, 506B, 427 of Indian Penal Code and also u/s 3(1)(10) of SC and ST (Prevention of Atrocities) Act, 1989.

The grievance of the Petitioners is that the Magistrate cannot direct investigation u/s 156(3) of Code of Criminal Procedure in case tribal by the Special Court or Court of Sessions. In support of the above contention, counsel for the Petitioners relied on Kamlesh Pathak and Others Vs. State of Madhya Pradesh and Another, .

Counsel for the State submits that u/s 190, Magistrate has power to direct investigation u/s 156(3) of Code of Criminal Procedure and there is no bar in the Criminal Procedure Code.

From the perusal of the impugned order, it appears that the non-Petitioner No. 1 filed the complaint against the Petitioner as stated above and the matter was referred to the police for investigation u/s 156(3) of Criminal Procedure Code.

In this regard, we have to see Section 156(3) and proviso (a) to sub Clause (2) of Section 202 of Criminal Procedure Code. These two provisions impose two limitations on the power of Magistrate in respect of offences exclusively tribal by a Court of Sessions. Clause (a) of proviso to Sub-clause (1) bars a Magistrate from sending complaint to police officer or some other person for investigation. He is to enquire himself. But, this proviso does not bar him to order investigation by the police u/s 156(3) of Code of Criminal Procedure before taking cognizance.

In the case of Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, , in which it is laid down that the power to order police investigation u/s 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct is exercisable at the pre-cognizance stage, the second at 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 u/s 156(3) can be invoked by the Magistrate before he takes cognizance of the offence u/s 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). It may be noted further that an order made under Sub-section (3) of Section 156. is in the nature of a peremptory reminder of intimation to the police to exercise their plenary powers of investigation u/s 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence u/s 156 and ends with a report or charge-sheet u/s 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered u/s 202 to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding." Thus the object of an investigation u/s 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.

It is made clear that the expression "taking cognizance of an offence", cognizance can be set to be taken. Hence, the Magistrate applies his mind for proceeding u/s 200 of Criminal Procedure Code.

In the case of Kamlesh (supra), the Court observed in para-7 that:

From the perusal of the said judgment, it appears that in that case the Apex Court was not considering the powers of Magistrate in cases where the offence is tribal by the Sessions Court. Counsel for the Petitioner relying on proviso to Section 202(2) Code of Criminal Procedure has urged that as in the present case offence u/s 307. Indian Penal Code is tribal exclusively by Sessions Court, the impugned order issuing direction u/s 156(3) Code of Criminal Procedure is without jurisdiction and cannot be sustained in the eyes of law.

Therefore, in view of the present context and the decision of the Apex Court in the case of Devarapalli (supra), it is clear that the Magistrate prior to taking cognizance in the case, ordered for investigation u/s 156(3) of Criminal Procedure Code. It cannot be said that the Magistrate has committed any illegality or irregularity.

Hence, revision petition is dismissed accordingly.