Fakir Singh vs Bijaya Kumar Bagaria

B.P. Das, J.—This application is directed against an order taking cognizance passed by the Judicial Magistrate, First Class (R), Cuttack in I.C.C. No. 42 of 1999 for the offence,under Section 394, Indian Penal Code (for short the "I.P.C."). In this regard the orders dated 2.8.1999 and 20.8.1999 are relevant. They are quoted hereunder ;

"2.8-1999 : Complainant is present. Initial statement of the complainant is recorded. Cognizance is taken u/s 394, I.P.C. Call on 7.8.1999 for enquiry u/s 202, Cr.P.C."

"20.8.99. Complainant is present. Enquiry u/s 202, Cr.P.C. is closed. Perused the complaint petition, initial statement of the complainant and statement of witnesses recorded u/s 202, Cr.P.C. It is clearly revealed a case u/s 394, I.P.C. against the accused person named in the complaint petition. Cognizance of the said offence is already taken. There are also sufficient materials to proceed against the accused person. Complainant files process fee and requires. Issue summons to accused person fixing 9.9.1999 for appearance." .

Section 202, Cr.P.C. which is relevant for the purpose of this case is quoted hereunder ;

"202, Postponement of issue of process : (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him u/s 192, may if he thinks fit, 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 Session; 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 witnesses 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."

So here is a case where learned Magistrate has taken cognizance first and conducted an inquiry u/s 202, Cr.P.C. thereafter.

In a decision of this Court reported in 1990 (I) OLR 408 (Nira @ Niranjan Mohanty v. Narayan Padhan and Ors.), this Court held as follows :

"It is elementary that if it is not possible for the Magistrate to take cognizance of offences on the existing material, he can direct an enquiry u/s 202, Cr.P.C. If the materials, existing are sufficient, there is no impediment for the Magistrate to take cognizance of the offences and issue process against the accused without holding any such enquiry. In this case, the learned Magistrate put the cart before the horse. First he took cognizance of the offences against the opposite parties and then directed an enquiry u/s 202. Such a procedure is unknown to the Code of Criminal Procedure. If he had any doubt, on 12.4.1988 about existence of a prima facie case, he ought not to have taken cognizance of the offences and at that stage it was within his jurisdiction to direct an enquiry u/s 202. Taking cognizance of the offences and directing an enquiry simultaneously are, to say the least, irregular and illegal."

Looking to the facts of the present case which are akin to the Nira alias Niranjan Mohanty''s case (supra), the Criminal Misc. Case is allowed, the impugned orders dated 2.8.99 and 20.8.99 passed by the Judicial Magistrate First Class, (R), Cuttack are set aside.