Kedarmal Agarwal vs State of Andhra Pradesh and Another

P.S. Mishra, C.J.—These petitions have come on a reference by a learned single Judge on the question whether without taking cognizance of the offence on the basis of one of the modes provided under clauses (a), (b) and (c) of sub-section (1) of Section 190 of the Code of Criminal Procedure, 1973, a Magistrate can direct for investigation of a cognizable offence u/s 156(3) of the Code of Criminal Procedure, 1973. Learned single judge has precisely stated the question whether the Magistrate can direct the inquiry in terms of Section 156(3), Cr. P.C. without examining complainant and his witnesses on oath, and proceeded to order as follows :-

"Section 200, Cr. P.C., provides that a Magistrate taking cognizance of offence on a complaint, shall examine, on oath, the complainant and the witnesses present, if any. In the instant case, the Magistrate has not taken cognizance of the offence, but, directed an enquiry u/s 156(3), Cr. P.C. in terms of Section (1), Cr. P.C., the Magistrate on receipt of a complainant either may take cognizance of the offence or if he thinks fit, postpone the issue of process against the accused, either enquire into the case himself or direct an investigation to be made by a Police Officer. The power of issuing such a direction is subject to the conditions provided under Clauses (a) and (b) of proviso to Section 202, Cr. P.C. which states 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.

Thus for issuing a direction for investigation u/s 156(3), Cr. P.C., precondition is laid down under Clause (b) to proviso (1) of Section 200, Cr. P.C., and examination of the complainant and the witnesses, if any, on oath, is mandatory. In the instant case, the complainant has not been examined and he is a private party.

However, the learned Public Prosecutor submits that the present complaint discloses some of the offences which are cognizable, therefore, examination of the complainant on oath, is not necessary. He relies upon Section 190, Cr. P.C., by contending that the Magistrate can take cognizance of the offence either upon receiving a complaint or upon a police report or upon information received from any other person, other than a police officer. Prima facie, this argument is not acceptable for the reason that in the instant case Magistrate has not taken cognizance of the offence on the basis of one of the modes provided under Clauses (a), (b) and (c) to proviso (1) of Section 190, Cr. P.C. but investigation is ordered u/s 156(3) even before taking cognizance of the offence. Therefore, the provisions u/s 190, Cr. P.C. prima facie may not apply. The resultant position would be that unless the Magistrate examines the complainant and witnesses on oath, he cannot direct the investigation in view of the restriction provided under Clause (b) to proviso (1) of Section 202, Cr. P.C.

Since in a number of cases this issue is being raised, I think it appropriate to refer the matter to the Division Bench for an authoritative pronouncement of law in this behalf."

It needs to be clarified, however, that Section 156(3) of the Code of Criminal Procedure, 1973 deals with Police Officer''s powers to investigate cognizable case and states that, 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 of the Code and that 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 and in sub-section (3) provides as follows :-

"(3) Any Magistrate empowered u/s 190 may order such an investigation as abovementioned."

Read as a whole, thus, Section 156(3) says that a cognizable offence can be investigated by any officer in charge of a police station without the order of a Magistrate who has jurisdiction over the local area within the limits of such station to inquire into or try the case and the Magistrate who has power u/s 190 direct for such investigation. Magistrate''s power to 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 after taking cognizance is stipulated u/s 202 of the Code and power is given to him to make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, as contemplated u/s 192(2) of the Code. Section 190 spells out that any Magistrate of the first class, any Magistrate of the second class specially empowered in this behalf 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. Above, being the condition requisite for all proceedings by the Magistrate in a Court, speaks of taking of cognizance of any offence whether cognizable or not cognizable. Section 156(3), however, by using the expression "may order such an investigation as abovementioned" has envisaged that any Magistrate who is competent to take cognizance of any offence who has jurisdiction over the local area within the limits of the police station can direct for investigation of a cognizable offence by the officer in charge of a police station. The power to order police investigation u/s 156(3) is different from the power to direct investigation conferred by Section 202. 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. Any doubts in this behalf must be held to have been settled by the Supreme Court in Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, , which was a case arising from a judgment of this Court in Criminal Misc. Petn. No. 1890 of 1975 dated 20-10-1975. The Supreme Court in the said case has pointed out that in the case of complaint regarding the commission of a cognizable offence the power u/s 156(3) can be invoked by the Magistrate before he takes the cognizance of the offence u/s 190 but if he wants to take such cognizance and embarks upon the procedure provided 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 than an order made sub-section (3) of Section 156(3) is in the nature of a peremptory remainder or intimation to the police to exercise their plenary powers of investigation u/s 156(3). Such an investigation embraces the entire continuous process which begins with the collection of evidence u/s 156(3) 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. The Supreme Court in the said case pointed out that since the Magistrate had not applied 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 had seen the complaint, he did not bring into motion the machinery of Chapter XV. Since 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(3). The Supreme Court has left no doubt by further saying,

"19. This being the position, Section 202, 1st proviso was not attracted. Indeed, it is not necessary for the decision of this case to express any final opinion on the ambit and scope of the 1st Proviso to Section 202 of the Code of 1973. Suffice it to say, the stage at which Section 202 could become operative was never reached in this case .............."

Since the Magistrate has only exercised the powers conferred upon him u/s 156(3) of the Code and has not proceeded u/s 200 for taking cognizance of the offence, there is absolutely no reason for any doubt as to the exercise of power at the precognizance stage by him and since Section 156(3), Cr. P.C. is independent of the proceedings under Chapter XV as envisaged under Sections 200 and 202 of the Code of Criminal Procedure the reference, in our view, has to be answered accordingly as follows :-

The Magistrate has power without examining the complainant and his witnesses on oath to direct for investigation of a cognizable offence/offences u/s 156(3) of the Code of Criminal Procedure. The above has arisen, in our view, only because the learned single judge was not informed about the correct legal position by learned counsel for the parties and his attention was not drawn to the authoritative pronouncements of the Supreme Court as above. As a result of the above, since the petitions have been admitted only on the above point, they have to be dismissed. Accordingly the petitions are dismissed. The investigation, as ordered by the Magistrate, shall proceed strictly in accordance with law.

Order accordingly