Kamala and others vs State

T. Sudanthiram, J.—The petitioners in all these petitions are the accused in C.C. No. 65 of 2011 on the file of the Judicial Magistrate No. 1,

Nagercoil. The first respondent Police filed the final report against the accused. The second respondent herein originally filed a private complaint

before the Judicial Magistrate, Eraniel, against the accused and the complaint was taken on file and the sworn statement of the second respondent

herein was recorded and statements of some witnesses also were recorded. Thereafter, the learned Magistrate forwarded the complaint to the 1st

respondent police ordering for an enquiry u/s 202 Cr.P.C. and to submit a report. The first respondent Police, on receipt of the said complaint and

order, registered a case in Crime No. 44 of 2009 under Sections 120-B, 406, 420, 477(A), 423, 447, 427 r/w 34 IPC and after investigation,

instead of filing a report before the Judicial Magistrate No. 1, Nagercoil, filed the final report against 10 accused before the Judicial Magistrate No.

1, Nagercoil for offences under Sections 120-B, 406, 420, 423, 465, 468 r/w 34 IPC and the cognizance was taken by the Magistrate. The

accused/petitioners herein aggrieved over taking cognizance of the case by the learned Judicial Magistrate No. 1, Nagercoil, filed these quash

petitions.

The learned counsel Mr. M. Suri, appearing for the petitioners, submitted that he is advancing argument only on one point regarding that the

learned Judicial Magistrate, Eraniel having taken cognizance of the case already, the learned Judicial Magistrate No. 1, Nagercoil has no

jurisdiction to take cognizance of the case and as it is illegal to take cognizance, the proceedings cannot be allowed to be continued, and it should

be quashed. The learned counsel appearing for the petitioners further submitted that even registration of FIR by the Police is illegal and the Police

should have simply enquired the matter as per the order of the learned Judicial Magistrate, Eraniel and should have filed the report before the same

Court. The learned counsel in support of his contentions relied on the following decisions;

a) Jamuna Singh and Others Vs. Bhadai Sah,

b) 1976 S.C.C. (Crl.) 380 (Devarapalli Lakshminarayana Reddy and others Vs. V. Narayana Reddy and others)

c) 1992 MLJ (Crl.) 86 (A. Lakshmanan and others Vs. State of Karnataka and another)

d) 2008 MLJ (Crl.) 108 (Dasan Vs. State of Tamil Nadu)

The learned counsel Mr. Thambi, appearing for the second respondent/defacto complainant, submitted that Police always have power to

investigate regarding cognizable offences even on any information and as Magistrate can forward a complaint to the Police for the purpose of

investigation under Sections 156(3) Cr.P.C., even if report is called u/s 202 Cr.P.C. and any final report is filed by Police after investigation, there

is no illegality and it could be treated, as it proceeded u/s 156(3) Cr.P.C. The Nagercoil Court had jurisdiction under normal circumstance and the

said jurisdiction cannot be wiped out. There is no bar expressed or implied in the Cr.P.C. for taking cognizance of the same offence by any

Magistrate of more than one having concurrent jurisdiction. The learned counsel also pointed out Section 210 Cr.P.C. and submitted that if private

complaint is filed and Police investigation is also pending, the Court has to wait for completion of investigation and after the filing of final report by

the Police both the cases must be tried together. The learned counsel in support of his contentions relied on the following decisions;

a) AIR 1932 579 (Lahore)

b) Budaraju Seshagiri Rao and Others Vs. T.V. Sarma and Another,

c) M.O. Hasan Muthoos Maricar (P) Ltd. Vs. U. Nargis, Agata International (P) Ltd., C. Durairaj, R. Mohan, Mrs. Ranjana Khanna, Murali

Rajagopalan and S. Radhakrishnan,

The learned Government Advocate submitted that both the cases must be clubbed together and the trial must be allowed to proceed on the

basis of the Police report filed u/s 173 Cr.P.C.

This Court considered the submissions carefully and the decision cited by either side.

Section 202 of the 1898 Code and 1973 Code, placed in juxtaposition, read as follows;

1898 1973

Postponement of 202. Postponement of issue of process.-(1) Any Magistrate, on receipt

issue of process.-(1) of a complaint of an offence which he is authorised to take cognizance

Any Magistrate, on or which has been made over to him u/s 192 may, if he thinks fit,

receipt of a complaint ofpostpone the issue of process against the accused, and either inquire

an offence of which he isinto the case himself or direct an investigation to be made by a police

authorised to take officer or by such other person as he thinks fit, for the purpose of

cognizance, or which deciding whether or not there is sufficient ground for proceeding:

has been transferred to

him u/s 192, may, if he Provided that no such direction for investigation shall be made-

thinks fit, for reasons to

be recorded in writing,

postpone the issue of

process for compelling

the attendance of the

person complained

against, and either

inquire into the case

himself or, if he is a

Magistrate other than a

Magistrate of the third

class, direct an inquiry

or investigation to be

made by any Magistrate

subordinate to him, or

by a police officer, or by

such other person as he

thinks fit, for the

purpose of ascertaining

the truth or falsehood of

the complaint:

Provided that, save (b) where the complaint has not been made by a court, unless the

where the complaint hascomplainant and the witnesses present, if any, have been examined on

been made by a Court, oath u/s 200.

no such direction shall

be made unless the

complainant has been

examined on oath under

the provisions of Section

200.

(2) If any inquiry or Provided that if it appears to the Magistrate that the offence complained

investigation under this of is triable exclusively by the Court of Session, he shall call upon the

section is made by a complainants to produce all their witnesses and examine them on oath.

person not being a

Magistrate or a police

officer, such person shall

exercise all the powers

conferred by this Code

on an officer in-charge

of a police station,

except that he shall not

have the power to arrest

without warrant.

(2-A) Any Magistrate (3) If an investigation under sub-section (1) is made by a person not

inquiring into a case being a police officer, he shall have for that investigation all the powers

under this section may, ifconferred by this Code on an officer in-charge of a police station

he thinks fit, take except the power to arrest without warrant.

evidence of witnesses

on oath.

(3) This section applies

also to the police in the

towns of Calcutta and

Bombay.

The Hon''ble Supreme Court in the decision reported in Jamuna Singh and Others Vs. Bhadai Sah, has held as follows;

In the case before us the Magistrate after receipt of Bhadai Shah''s complaint proceeded to examine him u/s 200 of the Code of Criminal

Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and

the witnesses present, if any, upon oath. This examination by the Magistrate u/s 200 of the Code of Criminal Procedure puts it beyond doubt that

the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it

to writing as required by Section 200 the Magistrate could have issued process at once u/s 204 of the Code of Criminal Procedure or could have

dismissed the complaint u/s 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action

u/s 202 of the Code of criminal Procedure. That section empowers the Magistrate to ""postpone the issue of process for compelling the attendance

of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an

enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the

purpose of ascertaining the truth or falsehood of the complaint."" If and when such investigation or inquiry is ordered the result of the investigation or

inquiry has to be taken into consideration before the Magistrate takes any action u/s 203 of the Code of Criminal Procedure.

We find that in the case before us the Magistrate after completing the examination u/s 200 of the Code of Criminal Procedure and recording

the substance of it made the order in these words:

Examined the complaint on Sections. The offence is cognizable one. To S.I. Baikunthpur for instituting a case and report by 12.12.56

If the learned Magistrate had used the words ""for investigation"" instead of the words ""for instituting a case."" the order would clearly be u/s 202 of

the Code of the Criminal Procedure. We do not think that the fact that he used the words ""for instituting a case"" makes any difference. It has to be

noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking

cognizance, directed an investigation of the case by the police u/s 156(3) of the Code of Criminal Procedure. Once however he took cognizance

he could order investigation by the police only u/s 202 of the Code of Criminal Procedure and not u/s 156(3) of the Code of Criminal Procedure.

As it is clear here from the very fact that he took action u/s 203 of the Code of Criminal Procedure, that he had taken cognizance of the offences

mentioned in the complaint, it was open to him to order investigation only u/s 202 of the Code of Criminal Procedure and not u/s 156(3) of the

Code. It would be proper in these circumstances to hold that though the Magistrate used the words ""for instituting a case"" in this order of

November 22, 1956 he was actually taking action u/s 202 of the Code of Criminal Procedure, that being the only section under which he was in

law entitled to act.

The fact that the Sub-Inspector of Police treated the copy of the petition of complaint as a first information report and submitted ""charge-sheet

against the accused persons cannot make any difference. In the view we have taken of the order passed by the Magistrate on November 22,

1956, the report made by the police officer though purporting to be a report u/s 173 of the Code of Criminal Procedure should be treated in law

to be a report only u/s 202 of the Code of Criminal Procedure.

Relying on the provisions in Section 190 of the Code that cognizance could be taken by the Magistrate on the report of the police officer the

learned counsel for the appellants argued that when the Magistrate made the order on November 22, 1956 his intention was that he would take

cognizance only after receipt of the report of the police officer and that cognizance should be held to have been taken only after that report was

actually received in the shape of a charge-sheet u/s 173 of the Code, after December 13, 1956. The inseparable difficulty in the way of this

argument, however, is the fact that the Magistrate had already examined the complainant u/s 200 of the Code of Criminal Procedure. That

examination proceeded on the basis that he had taken cognizance and in the face of this action it is not possible to say that cognizance had not

already been taken when he made the order ""to Sub-Inspector, Baikunthpur, for instituting a case and report by 12.12.56.

Cognizance having already been taken by the Magistrate before he made the order there was no scope of cognisance being taken afresh of the

same offence after the police officer''s report was received. There is thus no escape from the conclusion that the case was instituted on Bhadai

Sah''s complaint on November 22, 1956, and not on the police report submitted later by the Police Sub-Inspector, Baikunthpur.

In the decision reported in 1976 S.C.C. (Crl.) 380 (Devarapalli Lakshminarayana Reddy and others Vs. V. Narayana Reddy and others), the

Hon''ble Supreme Court held as follows;

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 begins 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.

It is held by the Lahore High Court in the decision reported in AIR 1932 579 (Lahore) as follows;

The function of investigation cognizable cases has been conferred on the police in most general terms by the Code. No power is given to

Magistrates to restrain the police in their investigation but the Magistrate is given power to obtain their assistance in having investigations made

either u/s 156(3) or Section 202. It is difficult to see how it can be imputed to the legislature that by conferring the latter power it meant by

implication to limit the general power of the police already given by the Code.....I think that the powers given to the police by S. 156 are not

affected when an order to investigate under S. 202 is made : and though it is not open to the Magistrate when a complaint has been made to him,

to direct the police to make a charge in the same case, it is open to the police to do so, if they think proper....... Mr. Carden Noad has also argued

that even if the procedure adopted in this case is wrong then by reason of S. 529 of the Code, this Court ought not now to interfere with these

proceedings. That Section provides (inter alia) that if any Magistrate not empowered by law to take cognizance of an offence u/s S. 190, Sub-S.

(1) C1.(b) erroneously in good faith does so, his proceedings shall not be set aside merely on the ground of his not being so empowered.

In a similar situation, when the matter came up before this Hon''ble High Court, His Lordship Justice S. Nagamuthu in the decision reported in

(2008) 2 MLJ (Crl.) 108 (Dasan Vs. State of Tamil Nadu) held as follows;

This case is a classic example as to how a learned Judicial Magistrate as well as the first respondent, the Inspector of Police have misunderstood

the provisions of the Code of Criminal Procedure. In the instant case, on the private complaint filed, learned Judicial Magistrate took cognizance

on the date of filing of the complaint itself. Thereafter, the learned Judicial Magistrate has proceeded to record the statement of the complainant u/s

200 Cr.P.C. rightly. Having considered the facts and circumstances, the learned Judicial Magistrate rightly thought it fit to refer the case to the

Police u/s 202 Cr.P.C. for investigation and for submission of report. A perusal of the order of the learned Judicial Magistrate would clearly show

that he has rightly invoked and referred only Section 202 Cr.P.C. and he has not referred to Section 156(3) Cr.P.C. at all. But the Inspector of

Police had misunderstood the said direction of the learned Magistrate and had chosen to register a case on the said complaint. There can be no

second opinion that the registration of the case is not legal. Thereafter he investigated into the allegations and finally submitted a final report.

The Officer who investigated the case again misunderstood the provision and had chosen to file a final report u/s 173 Cr.P.C. instead of

submitting a report as required u/s 202 Cr.P.C. The learned Judicial Magistrate also has misunderstood the provision and has taken cognizance

treating the said report of the Police Officer as a report u/s 173 Cr.P.C. Thereafter he issued summons to the accused. Having taken cognizance

once on the private complaint, and when the said case is pending on his file, it is absolutely illegal on the part of the learned Magistrate to take

cognizance again in respect of the same offence, treating the report of the police as the one filed u/s 173 Cr.P.C. Therefore, I cannot have even

slightest hesitation to quash the proceedings in C.C. No. 182 of 2005 since the very order taking cognizance is illegal.

At the same time, mere quashing the said calendar case would not be in the interest of justice as the said course would render the second

respondent who is an aggrieved party remedyless. Therefore, as rightly pointed by the learned counsel for the second respondent, necessary

directions are to be issued. It is to be remembered that no act of Court shall prejudice a party. Applying the said principle and considering the

request of the learned counsel for the second respondent and also considering the facts and circumstances, the following order is passed.

a) the entire proceedings in C.C. No. 182 of 2005 on the file of the learned Judicial Magistrate No. II, Kuzhithurai is quashed.

b) the learned Judicial Magistrate No. II, Kuzhithurai is directed to treat the report of the first respondent filed as a final report only as a report u/s

202 Cr.P.C. and to consider the same along with the private complaint filed originally and the statement of the complainant recorded u/s 200

Cr.P.C. and to proceed further either to pass an order u/s 203 Cr.P.C. or to issue process u/s 204 Cr.P.C. by independently assessing the

materials available on record.

This Court now analyses the situation as per provisions under the Criminal Procedure Code. The Section 202 Cr.P.C. comes into operation

only after the Court takes cognizance u/s 199(2)(a) Cr.P.C. and follows procedure u/s 200 Cr.P.C. Of-course, it is open to the Magistrate

without taking cognizance of the matter may order for investigation by police u/s 156(3) Cr.P.C. Once the Magistrate without invoking Section

156(3) Cr.P.C. takes cognizance of the case, then the procedure to be followed is only u/s 200 Cr.P.C. While so, if the case is forwarded by the

Court for investigation by Police, by an order u/s 202(1) Cr.P.C. then the question arises whether police can register an FIR and proceed with the

investigation. The Police has got all the powers provided in the code for the purpose of investigation. That means Police can register an FIR (Since

it is the first information to the Police) and proceed with investigation and Police has got power even to arrest and remand the accused pending

investigation, since it is made clear by the provision u/s 200 (3) Cr.P.C. As per Section 200(1) Cr.P.C., the Court can order for investigation

either by Police or by any individual as Court thinks fit. The said individual can exercise all power given to Police, as per the Code, except the

power of arrest without warrant. Further the Police get power to investigate only u/s 156 Cr.P.C. In cases under cognizable offences the order of

Magistrate is not required, wherein non-cognizable cases order of Magistrate is mandatory for the purpose of investigation. As per Section 156(3)

any Magistrate empowered u/s 190 may order for investigation. Here the stage for ordering investigation is not mentioned. While the Court

ordering for investigation to Police as far as Police is concerned there is no difference in investigating the matter, whether it is pre-cognizance stage

by Court or after taking cognizance by Court. Therefore, I am of the opinion that FIR can be registered by the Police prior to investigation, but the

report should be filed only before the Court which already took cognizance and called for report. The Criminal Procedure Code does not use the

word ''charge sheet'', but describes only as final report. The final report should be in the form prescribed u/s 173 Cr.P.C. Therefore, Police filing

final report as per procedure laid down in 173 Cr.P.C. is also not illegal.

The question that arises for consideration is only, on receiving such report, what should be done by the Court. Since the Court had already

taken cognizance and proceeded u/s 202 Cr.P.C., it has to be decided whether to pass an order u/s 203 Cr.P.C. or to issue process u/s 204

Cr.P.C. by assessing the materials on record.

The earlier decision of Our High Court, cited above, did not refer to Section 210 Cr.P.C.

Section 210 Cr.P.C. reads as follows;

Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.-(1) When in a case instituted

otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the

enquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or

trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer

conducting the investigation.

(2) If a report is made by the investigating police officer u/s 173 and on such report cognizance of any offence is taken by the Magistrate against

any person who is an accused in the complaint case and the case arising out of the police report as if both the cases were instituted on a police

report.

(3) it the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the

police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.

As per Section 210 Cr.P.C., even if the Court had taken cognizance and trial is proceeding, if police report is filed u/s. 173 Cr.P.C., the Court

is not forbidden from taking cognizance once again on the basis of Police report, but the condition is that both the cases should be clubbed and

tried together, as if both cases were instituted on a police report. Only if Police report does not relate to any accused or if the Magistrate does not

take cognizance of any offence on the police report, he shall proceed with the inquiry or trial on the basis of complaint case.

Therefore, this Court is of the view that the police on filing final report on the basis of report called by Court u/s 202 Cr.P.C. the trial Court is

bound to follow the procedure, as per Section 210 Cr.P.C.

In this particular case, the Police, which was called to investigate and file a report by the learned Judicial Magistrate, Eraniel, after investigation,

erroneously filed report before the learned Judicial Magistrate No. 1, Nagercoil, instead of filing the same before the learned Judicial Magistrate,

Eraniel. In order to rectify the defect, the proceedings pending before the learned Judicial Magistrate No. 1, Nagercoil in C.C. No. 65 of 2011 is

quashed, instead the records i.e., report filed by the Police shall be sent to the Court of the Judicial Magistrate, Eraniel which shall treat the said

report as filed by the Police in compliance with the order passed u/s 202 Cr.P.C. by the learned Magistrate, Eraniel in Cr.M.P. No. 2860 of

2009. The learned Magistrate, Eraniel shall act further as per Section 210 Cr.P.C. These Criminal Original Petitions are ordered accordingly.

Consequently, connected miscellaneous petitions are closed.