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Judgment
Arunachalam, J.—Petitioners have been shown as accused, in a private complaint preferred by the first Respondent, before the Judicial
Magistrate, Nanguneri, alleging that they had committed offences punishable under Ss. 341 and 397 I.P.C. Learned Magistrate who received the
complaint on 29.11.1989 forwarded the same for investigation and report to the Inspector of Police, Nanguneri, u/s 156(3), Code of Criminal
Procedure Even so, within a short period, on 8.12.1989, Respondent preferred an application before the same Magistrate to recall the complaint
forwarded to the Inspector of Police, Nanguneri, examine him and his witnesses and dispose of the complaint in accordance with law. Learned
Magistrate chose to dismiss the petition preferred by the Respondent, on the ground, that the Inspector of Police was competent to conduct
investigation, and had sufficient time, to avoid limitation bar, before filing of the final report. Learned Magistrate has observed, that within ten days,
the Respondent had chosen to plead for recalling of the complaint, without sufficient cause. Aggrieved first Respondent preferred Criminal R.C.
No. 16 of 1990 before the III Additional Sessions Judge, Tirunelveli. First revisional Court, on an erroneous view, held that the Enquiring
Magistrate had no right to forward the complaint, for investigation u/s 156(3) Code of Criminal Procedure to the concerned police, since the
offences alleged are exclusively triable by a Court of Session and therefore ought to have followed the provisions u/s 202 Code of Criminal
Procedure First revisional Court allowed the plea of the first Respondent and set aside the order of the Trial Magistrate refusing to recall the
complaint. Hence, this revision.
Facts narrated above speak for themselves. It is apparent that the impugned order passed by the first revisional Court cannot be sustained in
law. Provisions u/s 156(3), Code of Criminal Procedure and Section 200, Code of Criminal Procedure operate in different fields. The identical
question involved in this revision was considered by the Supreme Court in D. Lakshminarayana Reddy v. Narayana Reddy (1976 MLJ (Crl.)
610). Supreme Court stated as hereunder:
A Magistrate who receives a complaint disclosing an offence exclusively triable by the Court of Sessions, is not debarred by Clause (a) of the first
proviso to Section 202(1) of the Code of Criminal Procedure, 1973 from sending the same to the police for investigation u/s 156(3).
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 and 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) of the Code. 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). Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding u/s 200 and
the succeeding sections in Chapter XV, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(g); but if, instead
of proceeding under Chapter XV, he has in the 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.
On the facts available, it is clear that the learned Magistrate had not applied his mind to the complaint for deciding whether or not there were
sufficient grounds for proceeding under Chapter XV of the Code, but had only ordered investigation u/s 156(3), Code of Criminal Procedure
Obviously, he had not brought into motion, the machinery of Chapter XV. Instead of taking cognizance of the offence, he had, in the exercise of his
discretion, sent the complaint for investigation by the police u/s 156(3), Code of Criminal Procedure Law enunciated by the Supreme Court,
directly applies to the instant facts. This revision is allowed. The order passed by the Third Additional Sessions Judge, Tirunelveli, shall stand set
aside. The order passed by the Trial Magistrate shall stand restored. The trial Magistrate shall call upon the Inspector of Police, Nanguneri, to
forward his report on the basis of investigation conducted by him.