Jaswant Singh and Others vs Trilok Singh and Another

Radhe Shyam Sharma, J.—This petition is directed against order dated 6-5-2013 (Annexure P-1) passed by 6th Additional Sessions Judge, Durg (Mr. Brijendra Kumar Shastri) in a criminal revision arising out of order dated 15-1-2013 (Annexure P-2) passed by Judicial Magistrate, First Class, Durg (Ms. Rashmi Mandavi) in an unregistered criminal complaint case. By order dated 15-1-2013 (Annexure P-2), the learned Judicial Magistrate, First Class has ordered for registration of First Information Report in the matter and for filing a complete report after investigation. Facts of the case, as projected, are thus:

Complainant/respondent No. 1 was President of C.G. Truck Owners'' Association. On 23-9-2012, two trucks of the petitioner No. 1 were checked at Patekohra by the officials of Regional Transport Authority in which it was found that 3 tonnes of excess goods were loaded in the said truck. Therefore, Regional Transport Authority registered a case against petitioner No. 1. Petitioner No. 1 met with the complainant/respondent No. 1 and made complaint against the seizure of the truck and asked complainant/respondent No. 1 to talk with the said officers. Complainant/respondent No. 1 talked with the said officers. The said officers told complainant/respondent No. 1 that the trucks were overloaded and petitioner No. 1 had to pay fine to the tune of Rs. 10,000/- per truck. Complainant/respondent No. 1 informed the above fact to petitioner No. 1. The petitioners met with the complainant/respondent No. 1 and assaulted him with base-ball, lathi and bat and also threatened him to falsely implicate him in criminal case. Complainant/respondent No. 1 made a complaint before Police Station Chhawni, Bhilai. Police Station Chhawni, Bhilai directed complainant/respondent No. 1 u/s 155, Cr.P.C. Thereafter, complainant/respondent No. 1 filed a complaint u/s 200, Cr.P.C. along with an application u/s 156(3), Cr.P.C. By the impugned order dated 15-1-2013, learned Judicial Magistrate, First Class, Durg ordered for registration of First Information Report in the matter and for filing a complete report after investigation.

Shri Rajeev Shrivastava, learned counsel for the petitioners submitted that a Magistrate is empowered either to proceed u/s 156(3), Cr.P.C. or to proceed under the provisions contained in Chapter 15 of the Cr.P.C. and to direct investigation but only in accordance with the procedure and upon fulfillment of conditions enumerated in Section 202, Cr.P.C. He further submitted that the complainant/respondent No. 1 had made a report before Police Station Chhawni, Bhilai and after investigation Police Station Chhawni found that no cognizable offence was made out against the petitioners. Therefore, complainant/respondent No. 1 took the matter to the Court of Judicial Magistrate, First Class, Durg having jurisdiction. Therefore, the impugned order of learned Judicial Magistrate, First Class, Durg for registration of First Information Report in furtherance of the said complaint made by the complainant/respondent No. 1 is wholly illegal, baseless and erroneous and order of the Magistrate for registration of the FIR is wholly without jurisdiction. Registration of the FIR in pursuance of the above order of the Magistrate is liable to be quashed. He placed reliance on Dharmeshbhai Vasudevbhai and Others Vs. State of Gujarat and Others, and Sakiri Vasu Vs. State of U.P. and Others,

Shri Ashish Shukla, learned Govt. Advocate appearing for the State/respondent No. 2 argued that Section 156(3), Cr.P.C. empowers a Magistrate to direct the police to investigate into the offence. The impugned order passed by the Magistrate is in accordance with law. He further argued that a Magistrate has power to direct investigation into cognizable cases u/s 156(3), Cr.P.C. A Magistrate is empowered u/s 156(3), Cr.P.C. to send a complaint to appropriate police station for investigation. He further argued that once such direction is given under sub-section (3) of Section 156 of the Cr.P.C., the police is required to investigate into that complaint and on completion of investigation to submit a report in accordance with Section 173(2), Cr.P.C.

I have heard learned counsel for the parties at length and have also perused the pleadings and the documents appended thereto.

I consider it necessary to reproduce the relevant provisions of the Code of Criminal Procedure, 1973 which read thus:

Information as to non-cognizable cases and investigation of such cases.--(1) When information is given to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the information to the Magistrate.

(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer-in-charge of a police station may exercise in cognizable case.

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

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.

Report of police officer on completion of investigation.--(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2) (i) As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating--

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody u/s 170;

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed u/s 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report--

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded u/s 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

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 re-examine them.

Procedure by Magistrate not competent to take cognizance of the case.-If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,--

(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;

(b) if the complaint is not in writing, direct the complainant to the proper Court.

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.

Definitions.--In this Code, unless the context otherwise requires,--

xxxxx xxxxx xxxxx

(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;

A bare reading of the provisions contained in Section 155, Cr.P.C. would reveal that this Section deals with information relating to non-cognizable offence. The police officer receiving information of non-cognizable offence must enter the substance of it in a book kept in such form as the State Government may prescribe and then refer the information to the Magistrate. Section 156(3) and Sections 200-202, Cr.P.C. would reveal that Chapter XII of the Code deals with information to the police and their powers to investigation whereas Chapter XV which contains Section 202 deals with provisions relating to steps which a Magistrate has to adopt while and after taking cognizance of an offence on a complaint and therefore, the provisions of the above two chapters deal with two different facets together.

In Dharmeshbhai Vasudevbhai and others v. State of Gujarat and others (supra), the Hon''ble Supreme Court held thus:

It is well settled that any person may set the criminal law in motion subject of course to the statutory interdicts. When an offence is committed, a first information report can be lodged u/s 154 of the Code of Criminal Procedure (for short "the Code"). A complaint petition may also be filed in terms of Section 200 thereof. However, in the event for some reasons or the other, the first information report is not recorded in terms of sub-section (1) of Section 156 of the Code, the Magistrate is empowered under sub-section (3) of Section 156 thereof to order an investigation into the allegations contained in the complaint petition. Thus, power to direct investigation may arise in two different situations-(1) when a first information report is refused to be lodged; or (2) when the statutory power of investigation for some reason or the other is not conducted.

When an order is passed under sub-section (3) of Section 156 of the Code, an investigation must be carried out. Only when the investigating officer arrives at a finding that the alleged offence has not been committed by the accused, he may submit a final form; on the other hand, upon investigation if it is found that a prima facie case has been made out, a charge-sheet must be filed.

In Thermax Ltd. and Others Vs. K.M. Johny and Others, , the Hon''ble Supreme Court observed thus:

After considering the power u/s 482 of the Code and adverting to a series of decisions including Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, , and State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court concluded thus: Alpic Finance Ltd. Vs. P. Sadasivan and Another,

In a few cases, the question arose whether a criminal prosecution could be permitted when the dispute between the parties is of predominantly civil nature and the appropriate remedy would be a civil suit. In Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, , this Court held that if the allegations in the complaint are both of a civil wrong and a criminal offence, there would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. ...........

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...... The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that the respondents committed the offence u/s 420, IPC and the case of the appellant is that the respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the respondents made any willful misrepresentation. Even according to the appellant, the parties entered into a valid lease agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property. It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception.

In Maksud Saiyed Vs. State of Gujarat and Others, , the Hon''ble Supreme Court observed thus:

Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. As to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.

In Sakiri Vasu v. State of Uttar Pradesh and others (supra), the Hon''ble Supreme Court observed thus:

In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR u/s 154, Cr.P.C., then he can approach the Superintendent of Police u/s 154(3), Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application u/s 156(3), Cr.P.C. before the learned Magistrate concerned. If such an application u/s 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

In Srinivas Gundluri and Others Vs. SEPCO Electric Power Construction Corporation and Others, , the Hon''ble Supreme Court observed thus:

... ...

The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.

.........

It is well settled that when a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words ''may take cognizance'' which in the context in which they occur cannot be equated with ''must take cognizance''. The word ''may'' gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation u/s 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.

This raises the incidental question: What is meant by ''taking cognizance of an offence'' by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding u/s 200 and the succeeding sections in Chapter XV to the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police u/s 156(3), he cannot be said to have taken cognizance of any offence.

This position of law has been explained in several cases by this Court, the latest being Nirmaljit Singh Hoon Vs. The State of West Bengal and Another,

The position under the Code of 1898 with regard to the powers of a Magistrate having jurisdiction, to send a complaint disclosing a cognizable offence-whether or not triable exclusively by the Court of Session-to the police for investigation u/s 156(3), remains unchanged under the Code of 1973. The distinction between a police investigation ordered u/s 156(3) and the one directed u/s 202, has also been maintained under the new Code; but a rider has been clamped by the first proviso to Section 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation.

Section 156(3) occurs in Chapter XII, under the caption: ''Information to the Police and their powers to investigate''; while Section 202 is in Chapter XV which bears the heading: ''Of complaints to Magistrates''. The power to order police investigation u/s 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power u/s 156(3) can be invoked by the Magistrate before he takes cognizance of the offence u/s 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation u/s 156(1). Such an investigation embraces the entire continuous process which beings with the collection of evidence u/s 156 and ends with a report or charge-sheet u/s 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered u/s 202 to direct, within the limits circumscribed by that section an investigation ''for the purpose of deciding whether or not there is sufficient ground for proceeding''. Thus the object of an investigation u/s 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.

In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation u/s 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses u/s 200, Cr.P.C., which is the first step in the procedure prescribed under that chapter. The question of taking the next step of that procedure envisaged in Section 202 did not arise. Instead of taking cognizance of the offence, he has, in the exercise of his discretion, sent the complaint for investigation by police u/s 156.

From the above, it is clear that the Magistrate only ordered investigation u/s 156(3) of the Code. It also shows that the Magistrate perused the complaint without examining the merits of the claim that there is sufficient ground for proceeding or not and directed the police officer concerned for investigation u/s 156(3) of the Code. As rightly observed by the learned Single Judge of the High Court, the Magistrate did not bring into motion the machinery of Chapter XV of the Code. He did not examine the complainant or his witnesses u/s 200 of the Code which is the first step in the procedure prescribed under the said Chapter. The question of taking next step of the procedure envisaged in Section 202 did not arise. As rightly pointed out by Mr. Sundaram, instead of taking cognizance of the offence, the learned Magistrate has merely allowed the application filed by the complainant SEPCO u/s 156(3) of the Code and sent the same along with its annexure for investigation by the police officer concerned u/s 156(3) of the Code.

Neither the charge-sheet nor the final report has been defined in the Code. The charge-sheet or final report whatever may be the nomenclature, it only means a report u/s 173 of the Code which has to be filed by the police officer on completion of his investigation. In view of our discussion, in the case on hand, we are satisfied that the Magistrate in passing the impugned order has not committed any illegality leading to manifest injustice warranting interference by the High Court in exercise of extraordinary jurisdiction conferred under Article 226 of the Constitution of India. We are also satisfied that the learned Single Judge as well as the Division Bench rightly refused to interfere with the limited order passed by the Magistrate. We also hold that challenge at this stage by the appellants is premature and the High Court rightly rejected their request.

In Arun Bhandari Vs. State of U.P. and Others, the Hon''ble Supreme Court observed thus:

In R. Kalyani Vs. Janak C. Mehta and Others, , after referring to the decisions in Hamida Vs. Rashid @ Rasheed and Others, and State of Orissa and Another Vs. Saroj Kumar Sahoo, , this Court eventually culled out the following propositions: R. Kalyani Vs. Janak C. Mehta and Others,

Propositions of law which emerge from the said decisions are:

(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be ground to hold that the criminal proceedings should not be allowed to continue.

It is worth noting that it was observed therein that one of the paramount duties of the superior court is to see that a person who is absolutely innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint.

Recently in Gian Singh Vs. State of Punjab and Another, , a three-Judge Bench has observed that: (SCC pp. 339-40, para 55)

In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court u/s 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.

In T. Vengama Naidu Vs. T. Dora Swamy Naidu and Others, , the Hon''ble Supreme Court observed thus:

.........It was not for the learned Judge at the stage of investigation to examine the nature of the transaction and further to examine as to whether any offence was actually committed by the accused persons or not. At that stage the only inquiry which could have been made was as to whether the complaint or FIR did contain allegations of any offence. Whether those offences were made out, even prima facie, could not have been examined at that stage as the investigation was pending then. We, therefore, do not agree with the learned Single Judge that FIR was liable to be quashed. We also do not agree with the learned Judge that there are no ingredients of the offences complained of in FIR and this was a civil dispute. However, we do not wish to go deeper into that question.

In M. Narayandas Vs. State of Karnataka and Others, the Hon''ble Supreme Court observed thus:

...it is first necessary to set out the well-settled law. The law has been very succinctly set out in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, n this case the High Court had quashed an FIR. While setting aside the High Court judgment this Court held as follows:

It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has not other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.

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In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers u/s 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1) What the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. (SCC pp. 378-79, paras 102-03)

It must also be mentioned that it is settled law that the power to quash must be exercised very sparingly and with circumspection. It must be exercised in the rarest of rare cases. It is also settled law that the court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise or the allegations made in the FIR. The court also cannot inquire whether the allegations in the complaint are likely to be established or not.

In Anju Chaudhary Vs. State of U.P. and Another, ), the Hon''ble Supreme Court observed thus:

......

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.

Caution in this process had been introduced by this Court vide its judgment in the case of Tula Ram and Others Vs. Kishore Singh, ] where it was held that the Magistrate can order the police to investigate the complaint, but it has no power to compel the police to submit a charge sheet on a final report being submitted by the police.

......There also the Magistrate is vested with the power to direct investigation to be made by a police officer or by such other person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. This power is restricted and is not as wide as the power vested u/s 156(3) of the Code. The power of the Magistrate u/s 156(3) of the Code to order investigation by the police have not been touched or affected by Section 202 because these powers are exercised even before the cognizance is taken. In other words, Section 202 would apply only to cases where Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency. But there may be circumstances where the Magistrate, before taking cognizance of the case himself, chooses to order a pure and simple investigation u/s 156(3) of the Code. These cases would fall in different class. This view was also taken by a Bench of this Court in the case of Rameshbhai Pandurao Hedau Vs. State of Gujarat, ]. The distinction between these two powers had also been finally stated in the judgment of this Court in the case of Srinivas Gundluri and Others Vs. SEPCO Electric Power Construction Corporation and Others, ] where the Court stated that to proceed u/s 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. But where it takes cognizance and decides as to whether or not there exists a ground for proceeding any further, then it is a case squarely falling under Chapter XV of the Code.

In the instant case, the complainant/respondent No. 1 filed complaint before Police Station, Chhawni for offence under Sections 294, 506B, 323, 326, 342, 307, 365 and 394, IPC. The police, Chhawni refused to lodge first information report and he referred the matter u/s 155, Cr.P.C. The complainant/respondent No. 1 filed a complaint case u/s 200, Cr.P.C. for offence under Sections 294, 506B, 323, 326, 342, 307, 365 and 394, IPC against the petitioners and the complainant/respondent No. 1 also filed an application u/s 156(3), Cr.P.C. The order passed by the Magistrate, which is impugned herein, reads thus:

In T.T. Antony Vs. State of Kerala and Others, , the Hon''ble Supreme Court observed thus:

The scheme of Cr.P.C. is that an officer-in-charge of a police station has to commence investigation as provided in Section 156 or 157, Cr.P.C. on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion u/s 169 or 170, Cr.P.C., as the case may be, and forward his report to the Magistrate concerned u/s 173(2), Cr.P.C. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173, Cr.P.C.

From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173, Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154, Cr.P.C. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer-in-charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173, Cr.P.C.

In Suresh Chand Jain Vs. State of Madhya Pradesh and Another, , the Hon''ble Supreme Court observed thus:

The position is thus clear. 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 or 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 complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.

In the instant case, complainant/respondent No. 1 made a complaint before concerned police station, but the police station did not register any First Information Report and directed complainant/respondent No. 1 u/s 155, Cr.P.C. Therefore, complainant/respondent No. 1 made a complaint u/s 200, Cr.P.C. along with an application u/s 156(3), Cr.P.C. in the Court of Judicial Magistrate, First Class, Durg. It is evident that earlier, FIR was not registered against the petitioners in the police station. The FIR was registered against them only after a direction issued therefor by the concerned Magistrate. Therefore, instant is not a case in which the Magistrate directed for registering of second FIR. Therefore, the order of the Magistrate does not suffer from any irregularity or illegality and does not call for any interference by this Court.

The Court should exercise its power u/s 482, Cr.P.C. in quashing the FIR in the rarest of rare cases and it is not for this Court to examine the veracity or genuineness of the FIR or the documents produced by the petitioners in support of their contentions; this is for the trial Court to consider.

Having regard to the facts and circumstances of the case and to the above proposition of law, I am of the considered opinion that the present petition is premature. The Magistrate has passed the impugned order u/s 156(3), Cr.P.C. in accordance with law after perusing the complaint which discloses the cognizable offence. The police authorities, after registering the FIR, are investigating into the matter.

In view of the above, present is not a case in which the FIR against the petitioners can be quashed in exercise of powers u/s 482, Cr.P.C. In the result, the petition u/s 482, Cr.P.C., being devoid of any substance, deserves to be and is hereby dismissed.