Jaipur Ex-Servicemen Welfare Coop. Society vs State and Another

Hon''ble Mahesh Chandra Sharma, J.—This criminal Cr. Misc. Petition has been filed u/s 482 Cr.P.C. against the order dated 05.1.2012 passed by Additional Chief Judicial Magistrate No. 7 Jaipur Metropolitan, Jaipur in case No. nill of 2011 by which the application filed by the petitioner for sending the complaint for investigation u/s 156 (3) Cr.P.C. to the Police Station, Bajaj Nagar, Jaipur was dismissed. It is an admitted fact that on 15.12.2011 the petitioner filed a complaint u/s 190 Cr.P.C. for offences under sections 379, 406, 384, 467, 468, and 120 B IPC before the ACJM No. 7 Jaipur Metropolitan Jaipur. The ACJM on 16.12.2011 passed the following order:

On 17.12.2011 the ACJM passed the following order:

On 4.1.2012 the complainant filed the following application:

On the application the ACJM passed the following order:

On 5.1.2012 the ACJM passed the following order:

The petitioner filed the petition challenging the order of the ACJM rejecting the application of the complainant on the ground that the ACJM has already passed orders for recording the statement of the complainant and without recording the statement the complaint could not be sent for investigation u/s 156(3) Cr.P.C.

Mr. Mahesh Gupta, learned counsel appearing for the complainat states that the ACJM without looking to the seriousness of the allegation and recovery involved in it and the fact that there will be every apprehension that officers of the Jaipur Zila Dugdh Utpadak Sahakari Sangh will destroy the evidence, rejected the application of the petitioner for sending the complaint to the Police Station before recording the statement of the complainant. The learned counsel for the petitioner in support of his contentions placed reliance on Mohd. Yousuf vs. Smt. Afaq Jahan and anr. (2006 Cr.L.R. (SC) 154 - RLW 2006(2) SC 962, State of Haryana and others Vs. Ch. Bhajan Lal and others, Srinivas Gundluri and others vs. M/s. Sepco Electric Power Construction Corporation and others ( 2010 R.C.C. (SC) 822, Babu Lal vs. State of Rajasthan and others (2009 (3) R.C.C. 1257.

Mr. Peeyush Kumar, Public Prosecutor appearing for the State has contended that the ACJM has already passed the order for recording the evidence of the complainant before sending the complaint for investigation u/s 156(3) Cr.P.C. to the Police Station Bajaj Nagar. The order directing the complainat for recording his evidence was not followed and the ACJM was requested to directly send the complaint to the police station without recording the statement of the complainant. He stated that the order rejecting the application is just and proper.

Heard learned counsel for the petitioner and the learned public prosecutor at length.

Before proceeding further it would be necessary to have a look at the various provisions of the criminal procedure code, which are 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 above mentioned.

Cognizance of offences by Magistrates.--(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence--

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

Examination of complainant.-- 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 shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate u/s 192:

Provided further that if the Magistrate makes over the case to another Magistrate u/s 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them.

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, [and shall, in a case where the accused is residing at 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 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.

The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation u/s 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation u/s 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. (See Suresh Chand Jain vs. State of M.P. 2001(2) SCC 628 = RLW 2001(2) (SC) 317

But in Rameshbhai Pandurao Hedau Vs. State of Gujarat, the Apex Court held as under :

The power to direct an investigation to the police authorities is available to the Magistrate both u/s 156(3) Cr.P.C. and u/s 202 Cr.P.C. The only difference is the stage at which the said powers may be invoked. As indicated hereinbefore, the power u/s 156(3) Cr.P.C. 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. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the Appellant as a complaint u/s 200 of the Code and has thereafter proceeded under Section

202 Cr.P.C. and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of Sub-section (2) of Section 202 the learned Magistrate deems it fit, he may either dismiss the complaint u/s 203 or proceed in terms of Section 193 and commit the case to the Court of Sessions.

The ruling cited by the learned counsel for the petitioner in Mohd. Yousuf vs. Smt. Afaq Jahan and another is not applicable to the facts of the case as in that case the petitioner challenged the directions of the CJM to register FIR, charge sheet filed after investigation and the cognizance taken by him. The other rulings cited by the counsel are also not applicable to the facts of this case.

In the instant matter the Magistrate after taking into consideration the complaint filed by the complainant directed for recording of the statement of the complainant before proceeding further and thereafter the complainant filed application for sending the complaint to the police u/s 156(3) Cr.P.C. for investigation before recording the statement of the complainant. This order of the Magistrate in my view does not call for any interference u/s 482 Cr.P.C. The Magistrate has only rejected the application of the complainant for sending the complainant to the police u/s 156(3) Cr.P.C. before recording his statement. It is true that the Magistrate has power to send complaint to the police u/s 156(3) Cr.P.C. but at the same time it is necessary for him to atleast look into the complaint and whether prima facie any offence is made out or not has to be looked into by him before sending the complaint u/s 156(3) Cr.P.C. for investigation or to record the statement of the complainant to find out whether any offence is made out or not on the basis of the complaint filed by the complainant before him.

It has been noticed by this court in number of cases that the Judicial Magistrates are sending the complaints filed by the complainants without going through the contents of the complaints to the police stations concerned u/s 156(3) Cr.P.C. It is true that the Magistrate is having discretion to send the complaint u/s 156(3) Cr.P.C. to the concerned Police Station, but before sending the same the same should have been examined cautiously and if his conscious allows him to do so it should be sent to the concerned Police Station or to take steps in accordance with law. For the reasons mentioned above, the criminal misc. petition stands dismissed. The order passed by the ACJM dated 5.1.2012 does not call for any interference u/s 482 Cr.P.C. The application dated 4.1.2012 filed by the complainant for sending the complaint u/s 156(3) Cr.P.C. to the police station concerned before recording the statement of the complainant was rightly rejected by the ACJM. The ACJM is directed to proceed in the matter in accordance with law.

The Deputy Registrar (Judicial) of this court is directed to send copies of this order to all the Sessions Judges in Rajasthan and the Sessions Judges may be requested to send copies of this order to all the Judicial Magistrates in his jurisdiction for proceeding in accordance with law.