Dinesh Chandra and Others vs State of U.P.

S.K. Agarwal, J.—This revision has been filed by the applicants challenging the order directing the registration and investigation of the allegations made in the application of the opposite party by Magistrate dated 2.7.1997. I have admitted this revision and directed the same to be connected with these 4 writ petitions which were referred to for consideration by a larger Bench comprising of 3 or more Judges of this Court. The reference was made by Hon''ble Palok Basu and Hon''ble J. C. Gupta, JJ.

On an examination of the reference order, what I could gather from the paragraph In other words, if it is possible to hold that Madhu Bala lays down as a matter of rule that a mere application which will not be or may not be a complaint as envisaged by the provisions of Section 200/190, Code of CPC also has to be registered and investigated just because a Magistrate passes such an order, then only the orders of the Magistrate courts in these four writ petitions can be sustained. If it is not possible to hold what has been stated above and the emphasised portion from the paragraph quoted above is taken to be the real legal proposition following from the Supreme Court judgment, then it must be held that unless the Court/Magistrate had before it a complaint filed within the meaning of Section 200/190, Cr. P.C., he could not have directed registration of the case at the respective police station and investigation therein by the police station concerned.

What could be gathered from the contents of this paragraph is whether a complaint as required by Section 200/190, Cr. P.C., is a must before any Magistrate could direct the registration of the case for its consequent investigation by the police as required u/s 156(3). Since no straight question has been framed, I am left with no option but to read between the lines the real intention of the referring order from this paragraph alone. No other paragraph furnishes any clue towards the mind of the Bench otherwise. This particular question was posed by the Bench for consideration to a larger Bench deriving a portion from the judgment of the Apex Court. It is reported in Madhubala v. Suresh Kumar. This decision was reported in various journals.

Now what is to be examined is the intent of the Apex Court while referring and reiterating the term "complaint" in these quoted lines. As defined in Section 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". The Explanation appended to it has also some relevance. It reads thus "A report made by a police officer in a case which disclosed after investigation the commission of a non-cognizable offence shall be deemed to be a complaint and the police officer by whom such report is made shall be deemed to be the complainant". Thus, what does a complaint mean is made abundantly clear by the definition and the Explanation appended thereto. It clearly indicates that a complaint is nothing but an application containing allegations regarding commission of a cognizable offence made orally or in writing to a Magistrate for initiation of an action against the offenders. These persons may be known or unknown. It clearly excludes from its purview police report, i.e., charge-sheet. This provides clearly that a report submitted by a police officer u/s 173(2) of Cr. P.C. cannot be treated a complaint except as provided by the Explanation appended to Section 2(d), Cr. P.C.

The police normally submits report u/s 173(2) of Cr. P.C. after completing exercise of the collection of evidence and afterwards on an evaluation of all evidences so collected when it comes to a conclusion that a cognizable offence is disclosed from the evidence so collected. This exercise is undertaken only after the registration of a case u/s 154(1) of Cr. P.C. In this context, the meaning of term "investigation" as defined in Section 2(h) also assumes significance. The definition is quoted as under:

''Investigation includes all the proceeding under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

Here reference to Section 2(i) is also necessary which defines judicial proceeding. Accordingly Judicial proceeding includes any proceeding in the course of which evidence is or may be legally taken on oath. This definition does not refer to the term ''cognizance'' and it does not define what a trial is but it comprehends them very well. Chapter XIV deals with the procedure in which judicial proceedings may be initiated. Section 190(1)(a) clearly deals with the stage regarding initiation of a proceedings when a ''complaint'' is received. "I am quoting the language of this Section as it is for an easy reception of the meaning of the term complaint: 190(1)(a) ; upon receiving a complaint of facts which constitute such offence". Once it is read in consonance with the definition of "complaint" given u/s 2(d), it does not remain any more latent that a complaint has to contain (a) facts which constitute an offence, (b) it is to be made to a Magistrate and (c) for initiation of proceedings in a Court of law against the offenders in accordance with generally the provisions of Code of Criminal Procedure. Chapter XIV thus empowers a Magistrate to take cognizance of such offence or offences reported orally or in writing with a view to take suitable action on it. Chapter XV deals with the procedure to be adhered to in such complaints by Magistrates, Sections 200, 201, 202 and 203 deal with the preliminary stage after cognizance is taken in accordance with Section 190(1)(a), Cr. P.C. on any complaint. It culminates u/s 203 with the dismissal of that complaint in which cognizance was taken and evidence was recorded under Sections 200 and 202. The proceeding effectively commences before the Magistrates when the question of issue of process crops up u/s 204(1).

According to this Sub-section, the cognizance as envisaged under Chapter XV was already taken under Chapter XVI and evidence collected. On scrutiny of such an evidence, if the Magistrate finds sufficient ground for proceeding, then only he has to decide whether the case is to be tried as a summons case under Sub-clause (a) or a warrant case under Sub-clause (b). Sub-section (2) lays down a bar to issuing of summons or warrant against any accused till a list of the prosecution witnesses is submitted by the complainant. It further prescribes under Sub-section (3) that any proceeding instituted by the Court on a complaint made in writing, summons or warrant issued u/s 204(1) shall be accompanied by a copy of such complaint. Thus, from provisions of these two Chapters (XV and XVI), no room for any doubt remains that the complaint as contemplated by Section 2(d) and Section 190(1)(a) is an application containing facts which constitute an offence and brought before a Magistrate with an intention to initiate proceeding against the offenders for such offence as is disclosed from the facts it contains. It, thus obtains its nomenclature ''complaint'' from the occurrence of above facts and situations, i.e., principally intention to initiate prosecution.

Section 2(d) clearly further also includes a report made by a police officer in a case which discloses after investigation a non-cognizable offence. Thus, the report submitted by a police officer for a non-cognizable offence is also to be admitted, as a complaint and such police officer to be called the complainant.

Thus, the scope of the ''complaint'' is much wider and enlarged than an application moved before a Magistrate for directing an investigation on the facts alleged therein. In the nutshell, this is a clear distinction to be drawn between an application u/s 156(3), Cr. P.C. and a complaint. It is also required to contain the allegations constituting a cognizable offence if it is made to a Magistrate and the Magistrate has the authority to apply its mind only to this extent before commanding the police to register and investigate. So far as a complaint before the Court is concerned, it may disclose a cognizable or a non-cognizable offence.

Here let us pause and consider the heading of Chapter XII and caption to Section 154(1), Cr. P.C. Section 154(1) is quoted for ready reference as under:

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 thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

Let us also examine the title of Chapter XII-It reads, "information to police and their power to investigate.

Let us examine for ourselves whether this Section prescribes any format at all for communicating such information regarding the commission of a cognizable offence to a police officer. Plainly speaking, it does not. It comprehends both oral information as well as written information. What in essence is necessary under this Section is that such information must disclose the commission of a cognizable offence. This constitutes the basic ingredient to roll the law into motion. In other words, a direction for the registration of the case by the police and pursuance of the investigation. One thing more is there in complete contrast to the maker of a complaint, the person passing such an information on to a police officer is called ''informant'' and not ''complainant''. Rest of this section deals with procedure. He still remains an informant and will not become complainant simply by communicating such an information either orally or in writing to a Magistrate for a command to police to investigate these allegations. For this purpose, the procedure shall remain the same, i.e., 154(1), Cr. P.C. It stands exactly in the footsteps of an order passed by a Superintendent of Police u/s 154(3), Cr. P.C. This order is more or less in the nature of an executive (administrative) exercise by a Judicial Magistrate empowered to take cognizance of such cognizable cases as contemplated by Section 156(1), Cr. P.C.

Now coming to Section 156(3) which also is a part of Chapter XII like Section 154. We find certain similarity in these two Sections. For enumerating them, let us examine Section 156(1) and compare it with Section 154(1). It is necessary to quote this Section for realising its import:

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.

Section 156(1), thus, does not call for any logic. What it want to convey is loud and clear. It clearly imparts following factors:

(i) Power to investigate any cognizable case is vested unfettered in the incharge of a police station once he has the information of such a case (offence).

(ii) No order of any Magistrate is required by him to do so.

(iii) The case should be one of a police station the local area of which is under the jurisdiction of a Judicial Magistrate who can inquire into or try the same under the provisions of Chapter XIII.

(iv) It thus recognises the authority of a Judicial Magistrate and none else.

So far as Section 156(3) is concerned, it has to be read along with Section 154(1) and Section 156(1), Cr. P.C. It does not vest in a police officer anything anew. It clearly proceeds to declare that it is a cognizable case that is registered and investigated u/s 154(1). It further clarifies that the power to investigate is inherent in the incharge of a police station and it is not servient to any order from a Court of law.

It is, therefore, abundantly clear from the above analysis that the application given u/s 156(3) has only a limited purpose, i.e., to seek the interference of the Court of concerned Judicial Magistrate for an order to the police to register and investigate the cognizable case, facts of which are disclosed in such an application. Such an application is never meant for cognizance u/s 190, Cr. P.C. or for drawing of proceedings under Chapter XV and XVI. The moment application discloses such an intention, both the courses shall be open for the Magistrate either to proceed u/s 190(1)(a), Cr. P.C. or to order investigation u/s 156(3), Cr. P.C. In this situation, the Magistrate has freedom to choose meaning thereby he has to apply himself before deciding to adhere to anyone of the two courses otherwise if only prayer is to order investigation, the Magistrate has very little left for himself. He will only examine from the facts contained in that application whether it discloses a cognizable case or not. If it fulfils this requirement, he is to issue such an order, beyond this there is no scope for any application of mind for any other purpose.

Suppose the Magistrate comes across, ''an application which only discloses'' that ''a dead body is lying at X-place with injuries on it person. The concerned police refuses to take any notice of it''. What the Magistrate is required to do? The Magistrate has no option but to forward this application with an order to ''register and investigate'' to the police station concerned wherein the dead body is lying.

Therefore, the similarity between an application u/s 156(3) and a complaint is that both comprise the allegations constituting a cognizable offence. A complaint means disclosure of a cognizable offence or offences with a request to the Magistrate for taking cognizance and proceeding further to take that cognizance to its logical end, i.e., discharge, conviction or acquittal. An application u/s 156(3), Cr. P.C. just desires an order for police to investigate and nothing more. It falls short of a complaint here.

The intention of the Apex Court in paragraph 11 as quoted by the Bench making the impugned reference comprising of Hon''ble Palok Basu and Hon''ble J. C. Gupta, JJ., was never to give any different meaning to the term ''complaint'' so as to encompass not only Section 190/200 but also Section 156(3), Cr. P.C. As a matter of fact, the Apex Court was right in using this term ''complaint'' in its judgment. It was actually dealing with the applicability of two judgments, Gopal Das Sindhi v. State of Assam AIR 1961 SC 988 and Tula Ram v. Kishore Singh AIR 1977 SC 2406 , as it has found that these two judgments (supra) have no relevance to the facts of the case, i.e., Madhu Bala Vs. Suresh Kumar and others, . Moreover, in the above cases, Gopal Das and Tula Ram, there were complainants before the Court for cognizance u/s 190(1)(a) and the Magistrates instead of initiating proceedings u/s 190(1)(a) directed investigation u/s 156(3), Cr. P.C. In Madhubala''s case also, there were two complaints, one before C.J.M., Kurukshetra and another before C.J.M., Karnal. In both the complaints, orders u/s 156(3), Cr. P.C. were passed, i.e., at pre-cognizance stage itself. In this context, the Apex Court was dealing with the question whether u/s 156(3), Cr. P.C. a Magistrate can only direct investigation by the police and has no power to direct a registration of the case, as decided by Punjab and Haryana High Court. The finding of the Apex Court is that registration of a case is a duty of the police before it can take up the case for investigation. Since the Apex Court was dealing with cases where complaints as recognised by Section 190(1)(a), were brought before the Magistrates and at the pre-cognizance stage the Magistrates ordered them to be investigated. The Apex Court in this manner and sense used in its judgment the word ''complaint''. No word can be shorn of out of context from any decision to come to a positive conclusion so as to change completely the intent of the Legislature for restricting or curtailing the right of the people. The Legislature has not contemplated this inference in any simple manner and, therefore, has not provided any format for the same. How can any Court in its over-zealousness envisage to give such a meaning to the application u/s 156(3), Cr. P.C. especially when these Chapters are enacted to give effect to two different obligations. Chapter XII simply deals with information of cognizable cases and power to investigate of a police officer. It does not intend to traverse beyond it.

The power u/s 156(3) is in essence different from the power to be exercised by the Magistrate under Chapter XV or Chapter XVI. Once this power is exercised as contemplated by the above two Chapters, the Magistrate has no option but to proceed with the case and either dismiss that complaint if he finds that the allegations have no substance u/s 203 or issue process u/s 204(1), Cr. P.C. against the accused if there is sufficient ground to proceed. He cannot revert back to the provisions u/s 156(3), Cr. P.C. once he has adhered to first of the above two courses. This is abundantly clear from the decision of the Apex Court in "Veerapalli''s case." What is most important is that whether it is an application or a complaint, it must contain the facts that give rise to a cognizable case (offence), only then a Magistrate is competent to either take cognizance or to order the matter for investigation to the police as the situation may be and the police in such a situation has to register and investigate it treating that application or complaint as an F.I.R. u/s 154(1). The powers u/s 156(3) are entirely different and distinct from the powers conferred upon a Magistrate by Section 190 or Section 200, Cr. P.C. They cannot be read conjointly.

In view of the foregoing discussions, what is essential for the exercise of the power u/s 156(3) is that the application must disclose the commission of a cognizable case and the facts given therein relate to commission of a cognizable offence. If that is there, the Magistrate has to order investigation.

The Magistrate even in the case of a complaint, requesting him to take action against the offender, may also exercise this option. There is no bar to his doing this but it can be done at a precognizance stage and not after cognizance is taken by him. We cannot take the sheen of the word ''complaint'' the Apex Court has used in its decision to elaborate and discuss a particular situation so as to give a completely different texture to a particular provision viz., 156 (3), Cr. P.C. No straightjacket format or terminology is desired by legislation because it has no bearing upon the order to be passed u/s 156(3), Cr. P.C. After such an order is passed, the police has to follow the course prescribed u/s 154(1) before it takes on its investigation.

The Apex Court has definitely not used the term ''complaint'' to thwart or defeat the purpose behind the enactment of Section 156 itself. The term was never used with any intention that the reference order appears to chanelise. Thus, in my view, it should be an application and not a complaint. This application must disclose a cognizable case. As a matter of abundant precaution, we may require such an application to be accompanied by an affidavit of the applicant.