Jaswant Ram vs State of Punjab

K.K. Srivastava, J. (Oral)

By means of this petition filed under Section 482 Cr.P.C., the petitioners seek the quashing of FIR No. 34, dated 26.2.1998, Police Station Khuhi Khera, Tehsil Fazilka, District Ferozepur, under Sections 302/363/364, 210/34, IPC, and consequential proceedings and order dated 26.2.1998 passed by Judicial Magistrate Ist Class, Fazilka.

Respondent No. 2 Kala Singh, son of Ram Chand, filed a criminal complaint before Judicial Magistrate Ist Class, Fazilka, who, after recording the statements of the complainant proceeded to enquire into the case under Section 202(3), Code of Criminal Procedure, and recorded the statements of some witnesses. However, at that stage the learned Judicial Magistrate Ist Class, Fazilka, passed the impugned order vide which he issued a direction to the police to register the case on the basis of the complaint and investigate the same. The learned Magistrate placed reliance on the decision of the Hon''ble Supreme Court in the case of Madhu Bala v. Suresh Kumar, 1997(3) RCR (Crl.) 679 .

Upon the issuance of notice of motion to the respondents, they put in appearance. Written statement was filed on behalf of respondent No. 1, the State of Punjab, which is in the shape of an affidavit of DSP (Sub Division), Fazilka, contending inter alia that the impugned FIR was registered in compliance with the order passed by the learned Judicial Magistrate Ist Class, Fazilka, and the case was being proceeded accordingly. Respondent No. 2, however, did not file any separate reply but he has put in appearance through Mr. R.K. Girdhar, Advocate.

I have heard the counsel for the parties.

Sh. H.S. Bhullar, learned Advocate for the petitioner, has placed reliance on a judgment of Hon''ble apex Court in the case of D.L. Reddy and others v. V.V. Narayana Reddy and others, A.I.R. 1976 SC 1672. Apart from the said decision of the apex Court, the counsel placed reliance on the provisions contained in Section 202, Cr.P.C., for proper appreciation of the matter. It will be useful to refer to Section 202, Cr.P.C., which reads as under :

"202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under Section 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 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 under Section 200.

(2) In an inquiry under subsection (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 Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under subsection (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.

It will appear from a perusal of S. 202, Cr.P.C., that a Magistrate upon the receipt of complaint of an offence of which he is authorised to take cognizance may postpone the issuance of the process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer for the purpose of deciding whether or not there are sufficient grounds for proceeding. Proviso (a) appended to S. 202(1), Cr.P.C., lays down that no such direction for investigation shall be made where the offence complained of triable exclusively by the Court of Sessions. Sub Section (2) of Section 202, Cr.P.C., empowers the Magistrate to enquire into the complaint and if he thought if fit he could take evidence of witnesses on oath. The proviso appended to S. 202(2), Cr.P.C., enjoins a duty upon Magistrate to call upon the complainant to produce all his witnesses and examine them on oath in a case in which the offence complained of is exclusively triable by the Court of Sessions. In the instant case, the learned Magistrate, who is to enquire into the complaint himself, has thought it fit to record the evidence of the witnesses of the complainant. Once the learned Magistrate chose to enquire himself into the complaint, he could not revert back and issue a direction to the police to investigate the case. The Hon''ble Supreme Court in the case of D.L. Reddy and others (supra) has held that the Magistrate can exercise his powers under Section 156(3), Cr.P.C., before he takes cognizance of the offence under Section 191A, Cr.P.C. It has been held that if he once takes such cognizance and embarks upon the enquiry as embodied in Chapter XV he is not competent to switch over to the pre cognizance stage and avail of Section 156(3), Cr.P.C.

In view of the foregoing discussion, the order passed by the learned Magistrate directing the police officer to register the FIR and investigate the same and the consequential registration of the impugned FIR suffer from illegality, and the impugned order is contrary to the provisions of law as discussed above. Resultantly, this petition has considerable merit and is allowed to the extent that the impugned AIR and proceedings flowing therefrom, as also the impugned order passed by the learned Judicial Magistrate Ist Class, Fazilka, in the complaint case directing the police to register the case and investigate the same are set aside.

The learned Magistrate shall proceed to deal with the complaint case in accordance with the provisions of law as contained in Chapter XV, Code of Criminal Procedure, from the stage at which the impugned order was passed.