Purna Chandra Sahoo vs Santi ' Sukanti and Another

JUDGMENT

A.K. Parichha, J.—This is an application u/s 482 of the Code of Criminal Procedure (in short, "Code of Criminal Procedure.") for quashing the Order dated 4.4.2003 passed by the learned J.M.F.C., Nimapara in I.C.C. No. 60 of 2003 directing the Nimapara police authority to conduct investigation into the allegations raised by the Opp. Party No. 1 in her complaint petition.

Opp. Party No. 1 filed complaint case No. 60 of 2003 before the Learned J.M.F.C., Nimapara alleging that although she and her husband, the present Petitioner are not pulling on well and are living separately, the accused-petitioner visited her at her parent''s house on dated 23.3.2003 and forcibly committed sexual intercourse with her during the night. She also alleged that on the following morning she discovered that the Petitioner has decamped after removing her gold ornaments from the box without her consent. According to her she went to the Police Station and informed about the illegal action of the Petitioner, but the police authorities asked her to take shelter in the Court and accordingly she filed the complaint case.

Learned J.M.F.C., Nimapara forwarded the complaint petition of the Opp. Party No. 1 to the O.I.C., Nimapra for investigation u/s 156(3) of the Code of Criminal Procedure. and for submission of final form. Aggrieved with the said order, the Petitioner has filed the present application u/s 482, Code of Criminal Procedure.

Mr. M.R. Sarangi, Learned Counsel for the Petitioner submits that one of the offences alleged in the complaint petition is u/s 376, I.P.C., which is exclusively tribal by the Court of Session and so the Learned Magistrate could not have sent the complaint petition for investigation u/s 156(3) of the Code of Criminal Procedure. as proviso to Section 202(1) of the Code of Criminal Procedure. debars such direction for investigation. In support of this contention he relies on (2004) 28 OCR 374 Laxmidhar Das v. State of Orissa and Anr. and (2000) 18 OCR (SC) 490 Rosy and Anr. v. State of Kerala and Ors.

Mr. A. Rath, Learned Counsel for Opp. Party No. 1 on the other hand, contends that a Magistrate has legal jurisdiction to forward a complaint petition to the police authorities for investigation u/s 156(3) of the Code of Criminal Procedure. even if the offence alleged is exclusively tribal by Court of Sessions. According to him, proviso to Section 202(1), Code of Criminal Procedure. does not operate as a bar at the pre-cognizance stage. In this regard he relies on the decision of the SC reported in 1876 Cri. L.J. 1361 Devarapalli Laxminarayan Reddy v. Narayan Reddy and Ors.. Mr. Rath also contends that the Petitioner has no locus stand to approach this Court u/s 482, Code of Criminal Procedure. as he is not yet an accused. According to him, a person against whom a complaint is filed does not become an accused until the Court decides to issue process against him. In this regard he relies on a case of Dr. S.S. Khanna Vs. Chief Secretary, Patna and Another, .

From the rival contentions of the respective parties the following points emerge for consideration:

(i) Whether a Magistrate is competent to forward a complaint petition to the police for investigation u/s 156(3) of the Code of Criminal Procedure. when the offence alleged is tribal exclusively by Court of Session ?

(ii) Whether a person against whom complaint has been lodged can file a proceeding u/s 482, Code of Criminal Procedure. to quash the complaint case before an order has been passed for issue of process against him ?

Section 202(1), Code of Criminal Procedure. reads as follows:

Postponement of issue of Process: (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him u/s 192, may, if, he thinks fit, 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 tribal exclusively by the Court of Sessions; 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.

According to the Learned Counsel for the Petitioner, the wordings of the proviso to Section 202(1) of the Code of Criminal Procedure. are clear enough to debar a Magistrate from invoking the power u/s 156(3) of the Code of Criminal Procedure. where one of the offences alleged is exclusively tribal by Court of Sessions. He submits that this Court has also taken the same view in the case of Laxmidhar Das, and Ors. v. State of Orissa and Anr. (supra) and in several other cases. In the case of Laxmidhar Das relying on the decision of the Apex Court in the case of Rosy and Anr. v. State of Kerala and others this Court held that a Magistrate lacks jurisdiction to direct police investigation where the offences alleged in the complaint petition are tribal by Court of Session. It was held that in such case the Magistrate has to conduct inquiry himself under the provision of Section 202, Code of Criminal Procedure. In the case of Sudhansu Parida v. State of Orissa and Anr. (2004) 29 OCR 351 this Court, however, took a different view. In that case following the decision of the Apex Court in the case of Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, it was held that a Magistrate receiving a complaint disclosing offences exclusively tribal by Court of Session can direct investigation by the police without taking cognizance. In Devarapalli''s case (supra) a three Judge Bench of the Supreme Court held thus:

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 seizing 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.

The Apex Court thus held that in view of the first proviso to Section 202(1), Code of Criminal Procedure. a Magistrate who receives a complaint disclosing offences exclusively tribal by a Court of Sessions is not debarred from sending the same to the police for investigation u/s 156(3) of the Code of Criminal Procedure.

To counter the propositions laid down in Devarapalli'' case (supra) Learned Counsel for the Petitioner relies on the case of Rosy and Anr. (supra). In the case of Rosy and Anr. (supra) the Apex Court held that holding of an enquiry and decision to examine witnesses is at the discretion of the Magistrate when it does not proceed u/s 200 and once enquiry has commenced the proviso to Section 202(2) of the Code of Criminal Procedure. mandates the Magistrate to call upon the complainant to produce all the witnesses and examine them on oath. In that case it was not the issue and no decision was given as to whether a Magistrate can forward the complaint for investigation by police u/s 156(3) of the Code of Criminal Procedure. where the complaint petition contains allegation of offences exclusively tribal by the Court of Sessions. The interpretation of Section 202(1) by the Apex Court in Devarapalli''s case is clear, exhaustive and reasonable and this decision has not been negative by any of the subsequent decision of the Apex Court. So the correct legal position is that at the pre-cognizance stage a Magistrate can send a complaint petition to the police for investigation u/s 156(3) of the Code of Criminal Procedure. even if the allegation includes offences exclusively tribal by a Court of Sessions.

Mr. Rath, Learned Counsel for Opp. Party No. 1 submits that a person against whom a complaint is filed does not become an accused until it is decided to issue process against him and so even if he participates in the proceedings u/s 202, Code of Criminal Procedure. he does so not as an accused, but as a member of public and for that reason the Petitioner has no locus stand to file a petition u/s 482 of the Code of Criminal Procedure. for quashing of the proceeding in question. He cites the case of Dr. S.S. Khanna v. Chief Secretary, Patna (supra). In that case it was said that the object of enquiry u/s 202, Code of Criminal Procedure. is for ascertainment of the fact as to whether the complaint has valid foundation calling for issue of process to the person complained against or whether it is a baseless one for which no action need be taken and the Section does not require any adjudication to be made about the guilt or other wise of the person against whom a complaint is preferred and so such a person cannot be legally called to participate in the enquiry. So before an order of cognizance is passed and before a direction is given for issue of process a person against whom the complaint petition has been filed cannot have legal locus stand to file a proceeding u/s 482, Code of Criminal Procedure. for quashing the direction for investigation given by a Magistrate. The Court further observed that a direction for investigation u/s 156(3) of the Code of Criminal Procedure. gives a better opportunity to both the parties to put forth their respective submissions and materials and when in such investigation the accused gets an opportunity to put forth his case before the investigating agency. So he cannot be termed as an aggrieved party.

Crl. Misc. Case dismissed.