Munni Devi vs Devendra

Anil Sharma, J.—The petitioner has filed this second petition u/s 482 of Cr. P. C. against the order dated 20.6.2011 passed by learned 3rd Additional Sessions Judge, Bhind in Criminal Revision No. 77/2011 reversing the order dated 18.3.2011 passed by learned Judicial Magistrate First Class, Lahar, District Bhind, sending the complaint for its investigation to the police u/s 156 (3) of Cr. P. C. on the ground that the complaint has been filed for offence under Sections 467, 468/ 34 and 120B of IPC, out of which, the offence punishable under Sections 467 and 468 are triable by the court of Sessions, therefore, the learned Judicial Magistrate First Class had no jurisdiction to send the complaint for its investigation to the police u/s 156 (3) of Cr. P. C. The complainant has filed the present petition for quashing the order of learned lower revisional court on the ground that the order of learned trial court has been reversed on the basis of judgment reported in ILR 2008 MP-2337. Learned Counsel for the respondents No. 1 to 4 has raised an objection that the second petition u/s 482 of Cr. P. C. is not maintainable. He has cited judgment of Hon''ble the Apex Court in the matter of R. Annapurna Vs. Ramadugu Anantha Krishna Sastry and Others, in which it has been held that "the second application filed on the same ground is not maintainable. The order of High court allowing the second petition filed u/s 482 of Cr. P. C. cannot stand, though it was passed without being informed of the prior order."

Learned Counsel for the petitioner has submitted that earlier petition filed u/s 482 of Cr. P. C. being M. Cr. C. No. 7948/11 was dismissed as withdrawn by order dated 15.11.2011 and it was not dismissed on merits. He has cited judgment of Gujarat High Court in the matter of R. S. Shah, Competent Authority, Gujarat Slums Clearance Board & Ors. V. Vinod H. Bhrambhatt & Anr. 1995 (2) Crimes 654 in which it has been held that "unconditional withdrawal of application u/s 482 does not amount to dismissal and the petitioner is entitled to approach the High Court second time u/s 482 of Cr. P. C."

The judgment cited by Learned Counsel for the respondents also shows that second petition u/s 482 Cr. P. C. is not maintainable where earlier application has been dismissed after hearing the petitioner. In the present case, earlier application has been dismissed as withdrawn, therefore, the second petition u/s 482 of Cr. P. C. is maintainable.

Learned Counsel for the petitioner has submitted that learned lower revisional court is not justified in reversing the order of learned trial court for sending the complaint for its investigation u/s 156 (3) of Cr. P. C. on the ground of judgment of this High Court. Learned Counsel for the petitioner has cited judgment of Hon''ble the Apex Court in the matter of Rameshbhai Pandurao Hedau v. State of Gujarat, 2010 Cr. L. I. (SC) 318, in which it has been held that "the investigation ordered by Magistrate u/s 156 (3) is at the pre-cognizance stage and the inquiry and / or investigation ordered u/s 202 is at the post cognizance stage." Learned Counsel for the petitioner has also cited judgment of Hon''ble the Apex court in the matter of Mona Panwar v. High Court of Judicature of Allahabad through its Registrar and others, (2011) 1 SCC (Cri) 1181, in which it has been held that "order made u/s 156 (3) is in the nature of a peremptory reminder or intimation to police to exercise its plenary power of investigation u/s 156 (1). The Magistrate can, u/s 190, before taking cognizance, ask for investigation by police u/s 156 (3)."

Learned Counsel for the petitioner has also cited judgment of this Court in the matter of Papita Devi Vs. Hari Singh and Another, , following the judgment of Hon''ble the Apex Court, it has been held that "complaint disclosing offences triable exclusively by Sessions Court, power of Magistrate to send complaint for investigation u/s 156 (3) is not debarred."

It has been held by the Apex Court in the matter of Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, power to order the police u/s 156 (3) is different from powers to take cognizance conferred by section 200 (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. The power u/s 156 (3) can be invoked by the Magistrate before he takes cognizance of the offence u/s 190 (1) (a). Learned Counsel for the petitioner has also cited judgment of this Court on the same point in the matter of Devesh Gupta v. Sudha Shrivastava and others, 2011 (1) MPLJ 612.

Learned Counsel for the respondents has also cited judgment of Karnataka High Court in the matter of Y. N. Ramachandra Rao and anr. v. CCI Ltd. Manipal Udupi Taluk and Anr. 2012 (1) Crimes 318 (Karnt.), in which it has been held that "before passing an order referring complaint to police for investigation it is necessary for Magistrate to peruse allegations and form his opinion that they disclosed commission of cognizable offence whether Magistrate had applied his mind to facts alleged in complaint is to be found only on reading of averments in complaint."

Learned Counsel for the respondents has also cited judgment of this Court in the matter of Nanjiram v. State of M.P. 2008 (4) Crimes 292 (MP), in which it has been held that "looking to the provisions of Section 156 (3) and 202 (2) proviso of Cr. P. C., Magistrate had no power to send the complaint for investigation u/s 156 (3) Cr.P.C. in which allegations were for offence triable by Sessions Court. He has to make inquiry himself as provided u/s 202 of Cr.P.C."

Learned Counsel for the respondents has also cited judgment of this Court in the matter of Arun Kumar Jain v. Dinesh Tripathi and others, 2010 (1) MPLJ (Cri) 451, in which it has been held that "before passing an order u/s 156 (3) of Cr. P. C., the Magistrate must apply his mind on the allegations of the complainant but it has been further held that the Magistrate is empowered to pass an order u/s 156(3) of Cr. P. C. to investigate the allegations as alleged in the private complaint even if it is triable by the Court of Sessions."

In view of foregoing and considering the legal propositions held by Hon''ble the Apex Court that proceeding u/s 156 (3) of Cr. P. C. is different, one is applicable at the pre-cognizance stage while second is applicable at the post-cognizance stage, therefore, the order of learned Magistrate sending the complaint for inquiry / investigation to the police concerned is not against the provisions of law. Hence, the learned revisional court has committed error in reversing the order passed by the learned Judicial Magistrate First Class, by the impugned order. Petition is allowed and the order impugned dated 20.6.2011 is hereby quashed.