Rajkishore Mathur vs Mangatram Agrawal and Others

P.K. Misra, J.—All the three cases between the same parties raise common question of law and fact and are disposed of by one common order.

The complainant is the petitioner in each of the cases. He had filed three separate complaint cases against the very same accused persons alleging commission of offence u/s 139 of the Negotiable Instruments Act. The Magistrate in each case had directed the police to investigate into the matter u/s 156(3) of the Code of Criminal Procedure. Subsequently, however, without waiting for the report of the police, the Magistrate proceeded with the case and took cognizance in the matter and issued process. The accused persons against whom process had been issued had filed applications before the Magistrate for recalling the order relating to taking of cognizance which were rejected by the Magistrate. Thereafter three separate revisions bearing Criminal Revision Nos. 17/95, 18/95 and 19/95 were filed before the Sessions Judge which were disposed of by a common order by the Sessions Judge. The Sessions Judge while allowing the revisions passed the following order :

"4. In the result all the above three revisions are allowed. The impugned orders passed by the learned Court below in ICC 12/94, ICC 13/94 and ICC 15/94 in taking cognizance of the offence against the present petitioners are set aside. It is open to the Court below to again direct the local police to submit its report after investigation and may proceed according to law after receipt of the police report. With this observation the revision petitions are disposed of."

After the cases came back to the Court of the Magistrate, he passed the following order in each of the complaint cases :

"It is seen that the copy of the complaint petition of this case sent u/s 156(3) of the Cr.P.C. has already been returned back by the police with an intimation that the fact of this case relates to one transaction with that of the fact of G.R. Case No. 292/94. In view of the same and in view of the order passed by the Hon''ble Court of the District and Sessions Judge, Kalahandi-Nuapada at Bhawanipatna no further action need be taken in this case."

The legality of the aforesaid order passed in each of the complaint cases is in question.

It is apparent that the Magistrate thought fit to pass the aforesaid order because the police had registered G.R. Case No. 292/94 after receiving direction from the Magistrate to investigate into the matter u/s 156(3) of the Code of Criminal Procedure. Though the allegations in each of the complaint cases were same, the complaint cases related to different cheques. After receiving the direction from the Magistrate regarding investigation u/s 156(3), the police for convenience registered one case numbered as G.R. Case No. 292/94. Registration of police case did not have the effect of effacement of the different complaint cases and their separate identity was not lost. The report, if any, to be submitted by the police is to be considered in each of the complaint cases and thereafter action as envisaged in law is to be taken by the Magistrate. In this connection, the scope of Section 156(3) as enunciated by the Supreme Court, in the decision reported in H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), is to be kept in mind. In paragraph - 6 of the said decision, it was observed-

"............... On the other hand, in the first instance on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation u/s 156(3). The police will then investigate and submit a report u/s 173(1). On receiving the police report the Magistrate may take cognizance of the offence u/s 198(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report u/s 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommended that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to lake cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present u/s 200, Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation u/s 156(3) and received a report u/s 173 will not have the effect of the total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation u/s 156(3) and receives a police report u/s 173(1) may, thereafter, do one of three things :

(1) he may decide that there is no sufficient ground for proceeding further and drop action;

(2) he may take cognizance of the offence u/s 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report:

(3) he may take cognizance of the offence u/s 190(1)(a) on the basis of the original complaint and proceed to examine on oath the complainant and his witnesses u/s 200.

If he adopts the third alternative, he may hold or direct an inquiry u/s 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case nay be."

In view of the observations made by the Supreme Court, it is clear that the mere fact that the Magistrate had directed for an investigation u/s 156(3) of the Code of Criminal Procedure, did not have the effect of total effacement of the complaint and the Magistrate has committed an illegality in passing an order treating the complaint case to be closed. It is directed that the Magistrate should now proceed to deal with the matter in each of the complaint cases in accordance with law keeping in view the observations of the Supreme Court.

The question may crop up as to whether a Magistrate who has directed an investigation u/s 156(3) has to wait till eternity in case the police does not submit the report. As observed by the Supreme Court, merely because the Magistrate has directed for investigation u/s 156(3) does not mean that he loses all control over the proceeding and it would be open to the Magistrate to issue direction to the police to submit its report after investigation in cases referred to the police u/s 156(3). The Magistrate cannot remain a helpless and mute spectator and can always exercise effective control over the police for submission of the report within a reasonable period depending upon the facts and circumstances of the case. It has to be borne in mind that the main intention of the Legislature in empowering a Magistrate to direct investigation u/s 156(3) is for convenient gathering of materials through a specialised agency. Even after report is received from the police, the Magistrate has to act independently and judiciously in accordance with law and is not bound by the conclusions drawn by the police.

Subject to the aforesaid observations, the Criminal Misc. Cases are allowed. The lower Court records be sent back immediately.