Gurubasappa Gurupadappa vs State of Karnataka and Others

N.R. Kudoor, J.—The short point involved in this criminal petition is whether a Magistrate before whom a private complaint is filed is empowered to refer the complaint for investigation u/s 156 (3) of the Code of Criminal Procedure, if the offences disclosed in the complaint are exclusively triable by the Court of Session.

The facts necessary for deciding the question involved in the petition may be stated as under:

The petitioner herein Sled a private-con-plaint u/s 200. Cr. P. G. on 26-8-1977 against respondents 2 to 19 before the Munsiff and J. M. F. G., Ranebennur alleging commission of offences punishable under Sections 395, 149, 447 and 504 read with Section 34, I. P. C. After the complaint was (To set aside the order of Prl. Munsiff and J. M. F. C. Ranebennur, D/- 29-8-1977.) filed, the Magistrate, under his order dated 29-8-1977, referred the case to the Circle Inspector of Police, Ranebennur for investigation and report u/s 156 (3) Cr.P.C.

The question now for consideration will be whether this order referring the complaint for investigation u/s 156 (3) Cr, P. C. is valid in law.

Sri A. H. Bhagavan, the learned Counsel appearing for the petitioner contended that Clause (a) of the proviso to Sub-section (1) of Section 202 Cr.P.C. is a statutory bar for referring the complaint to the police for investigation since one of the offences alleged against the accused is exclusively triable by the Court of Session. This contention will have no force for the reasons I presently show. The procedure to be followed in complaints to the Magistrate is laid down in Chapter XV of the Cr.P.C. which contains Section 200 to Section 203- It is provided u/s 200 that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and it shall be signed by the complainant and the witnesses, and also by the Magistrate. An exception is made for the examination of the complainant and the witnesses if the complaint is made in writing to the Magistrate in the cases referred to in Clauses (a) and (b) of the first proviso to Section 200. Section 202, Cr.P.C. will come into play after the Magistrate takes cognizance of the offence u/s 200 Cr.P.C. and before issue of process to the accused. If after taking cognizance of the offence, the Magistrate thinks fit in a given case to postpone the issue of process against the accused, he can 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. However, in a case which is exclusively triable by the court of session, the Magistrate is not empowered to give any direction for investigation in view of the provision contained in Clause (a) of the proviso to Sub-section (1) of Section 202. Cr.P.C. On the other hand, he himself should conduct an inquiry as provided under the proviso to Sub-section (2) of Section 202, Cr.P.C.

Section 156 is found in Chapter XII of the Code of Criminal Procedure under the head Information to the police and their powers to investigate''. It is provided u/s 156 (3) that any Magistrate empowered u/s 190 may order an investigation of a cognizable case by the police. The power of the Magistrate to direct an investigation u/s 156 (3) is an independent power outside the scope of Chapter XV. However, if the Magistrate once takes cognizance; of an offence on complaint u/s 200, then he could act only under the other Section-1of Chapter XV. On the other hand, if the Magistrate does not take cognizance of an offence on a complaint filed u/s 200, he is empowered to refer the complaint for investigation by the police u/s 150 (3) Cr.P.C In such a case, the prohibition contained in Clause (a) of the proviso to Sub-section (1) of Section 202 would not come into play-

In the instant case, admittedly the Magistrate did not take cognizance of the offence on the complaint filed by the petitioner. He straightway referred the complaint for investigation u/s 156 (3) Cr. P- C. That being so, the contention urged by the learned Counsel for the petitioner is clearly unsustainable. Consequently the petition also fails and the same is dismissed.