Devesh Gupta vs Sudha Shrivastava and Others

Indrani Datta, J.

This petition has been preferred by the Petitioner u/s 482 Code of Criminal Procedure for setting aside the order dated 20-1-2011 passed by First AS J, Gwalior affirming the order passed by JMFC, Gwalior in unregistered case No. /2010 dated 20-1-2011 whereby, learned trial Court has directed police to investigate u/s 156(3), Code of Criminal Procedure concerning the complaint filed by Respondent No. 1 in that Court.

Facts in nut-shell giving rise to this petition are that Respondent No. 1/complainant has filed one complaint under Sections 420, 467, 468, 473, 504, 506, 193 and 189, Indian Penal Code against Petitioner in the Court of JMFC, Gwalior in which, learned trial Court directed police to investigate u/s 156(3), Criminal Procedure Code. Against that order, revision was preferred on the ground that as the complaint filed against Petitioner discloses the offences triable by Sessions Court hence, the Magistrate has no power to order police to investigate u/s 156(3), Criminal Procedure Code. Revision was preferred against that order. Revisional Court has dismissed the revision giving rise to this petition.

It is contended by learned Counsel for the Petitioner that as per allegations of complaint, the offences are exclusively triable by the Court of Session hence Magistrate should not have directed police to investigate u/s 156(3), Criminal Procedure Code. The Magistrate should have considered the case as per the provisions of Section 202(2), Criminal Procedure Code.

Learned Counsel for the Petitioner has relied upon the citation Nanjiram v. State of M.P. 2008 (4) MPLJ 581 : 2008 (2) MPLJ 415 : 2008 (4) Crimes 292 (MP). In that case, a bench of this Court has held that in case of complaint in which allegations were for offence triable by Sessions Court, a Magistrate had no power to direct investigation u/s 156(3), Criminal Procedure Code. Placing reliance on this citation, learned Counsel for the Petitioner submits that the order of learned trial Court as well as that of revisional Court are improper, illegal and not sustainable and deserve to be set aside.

Per contra, learned PP urged that there is no perversity in the impugned order. The order passed by learned trial Judge is correct and proper as learned trial Court without taking cognizance has directed police to investigate u/s 156(3) Code of Criminal Procedure hence, obstruction of Section 202 is not applicable in the case. As Chapter XII of Code of Criminal Procedure deals with pre-cognizance stage and Chapter XIV of Code of Criminal Procedure deals with post-cognizance stage. Hence, this revision being sans merit is to be dismissed.

Heard rival contention of both the counsels and perused the documents on record.

While exercising revisional powers, correctness, legality and propriety of order passed is to be examined.

In order to examine the scope of Sections 156(3) and 202 Code of Criminal Procedure, these sections need to be quoted, the same read 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 abovementioned.

Section 202, Code of Criminal Procedure reads as follows:

Postponement of issue of process. -- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him u/s 192, may, if he thinks fit, (and shall, in a case where the accused is residing to a place beyond the area in which he exercises his jurisdiction) postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding Whether or not there is sufficient ground for proceeding?

Provided that no such direction for investigation shall be made:

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath u/s 200.

(2) in an inquiry under Sub-section (1), The Magistrate may, if he thinks fit, take evidence of witness on oath;

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.

From bare perusal of Sections 156 and 202 of Criminal Procedure Code, it is apparent that the power to order police investigation u/s 156(3) of Code of Criminal Procedure is different from the power to direct investigation conferred by Section 202(1) of Criminal Procedure Code. The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage and the second at post-cognizance stage.

In the case of Mohd. Yousuf Vs. Smt. Afaq Jahan and Another, Hon''ble Apex Court has highlighted investigation envisaged under Sections 156(3) and 202, Code of Criminal Procedure and difference between two is discussed.

Further in the case of Rameshbhai Pandurao Hedau Vs. State of Gujarat, , the Apex Court has held that the power to direct an investigation to the police authorities is available to the Magistrate both u/s 156(3), Code of Criminal Procedure and u/s 202, Criminal Procedure Code. The only difference is the stage at which the said powers may be invoked. The power u/s 156(3) to direct an investigation by the police authorities is at the pre-cognizance stage while the power to direct a similar investigation u/s 202 is at the post-cognizance stage.

Furthermore in the case of Arun Kumar Jain v. Dinesh Tripathi and Ors. 2010 (2) MPLJ 621 : 2010 (1) MPLJ 451 : ILR (2010) M.P. 707 a Single Bench of this Court has held that even if the allegations alleged in the complaint shows that the offences are triable by Court of Session, the Magistrate is empowered to pass an order to investigate the allegations alleged in complaint u/s 156(3) of Criminal Procedure Code.

Yet in the case of Tula Ram and Others Vs. Kishore Singh, , it is held by the Apex Court that Sections 190 and 156(3) are mutually exclusive and work in totally different spheres. In other words, the position is that even if a Magistrate receives a complaint u/s 190 he can act u/s 156(3) provided that he does not take cognizance. The position, therefore, is that while Chapter 14 deals with post cognizance stage Chapter 12 so far as the Magistrate is concerned deals with pre-cognizance stage, that is to say once a Magistrate starts acting u/s 190 and the provisions following he cannot resort to Section 156(3). It is further held that when a Magistrate orders investigation u/s 156(3) the complaint disappears and goes out of existence. The provisions of Section 202 of the present Code debar a Magistrate from directing investigation on a complaint where the offence charged is triable exclusively by the Court of Session, it is further held that "the Magistrate''s power u/s 156(3) of the Code to order investigation by the police have not been touched or affected by Section 202 because these powers are exercised even before cognizance is taken, in other words, Section 202 would apply only to cases where the Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency".

Yet in another case Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, the Hon''ble Apex Court has held that in view of first proviso to Section 202(1) of the Criminal Procedure Code, a Magistrate who receives a complaint disclosing offences exclusively triable by the Court of Session, is not debarred from sending the same to the police for investigation u/s 156(3) of the Code.

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 spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in (sic) 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(1)(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 or 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 or 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.

in view of the aforesaid position of law envisaged by Apex Court in the judgments cited above which is law of land, the citation relied by learned Counsel for the Petitioner Nanjiram (supra) is not helpful in this case.

Considering the facts and circumstances of the case coupled with the aforesaid position of law and reasons mentioned in foregoing paras of this order, I am of the considered opinion that even in complaint disclosing offences exclusively triable by Court of Session, Magistrate is not debarred from sending the same for police investigation u/s 156(3) of Criminal Procedure Code, if he has opted to take recourse of Section 156(3) Code of Criminal Procedure at pre-cognizance stage. Therefore, the order passed by learned trial Court on 11-10-2010 and affirmed by the revisional Court in Cr. Revision No. 570 of 2010 vide order dated 20-1-2011 is legal and proper and requires no interference.

Hence, this petition sans merit and the same is hereby dismissed. Copy to concerned Court as per rules.