Sarup Ram vs State of Haryana

Rajendra Nath Mittal, J.—Briefly the case of the petitioner is that he had been working as a Secretary of Nanhera Co-operative Agricultural Service Society for about 20 years. One Banwari son of Kundan Lal Saini, resident of village Nanhera, Tehsil Naraingarh, filed complaint against the petitioner u/s 408/420, Criminal Procedure Code (hereinafter referred to as the Code), in the Court of Judicial Magistrate Ist Class, Ambala City, on May 24, 1976. The Magistrate, on the same day, passed the following order :-

Complaint presented today. The same be registered. Now the complaint to come up for the statement of the complainant on 29-5-1976.

On May 29, 1976, the complaint came up before the Magistrate . for hearing. He on that day passed the following order :

The case is cognizable. S. H. O, Narairigarh is ordered to make an investigation of the case u/s 156(3) of the Criminal Procedure Code.

It is stated by the petitioner that the order dated May 24, 1976, shows that the Magistrate had taken cognizance of the complaint on that date and in case he had done, so, he could not direct investigation by the police, u/s 156(3) of the Code. He further states that such an investigation could be ordered by the Magistrate only prior to taking cognizance of the offence on a complaint. It is also alleged by him that on the basis of the investigation, the police has recorded first information report No. 49 dated June 21, 1976, in the Police Station, Naraingarh. The petitioner has, therefore, prayed that the above said first information report and the order of the Judicial Magistrate dated May 29, 1976, ordering investigation u/s 156(3) be quashed.

It is contended by the learned Counsel for the petitioner that a reading of the order dated May 24, 1976, shows that the Magistrate applied his mind and after doing so, he ordered that the complaint be registered and the statement of the complainant be recorded. For that purpose he adjourned the complaint to May 29, 1976. Ac cording to the counsel, if the Magistrate took cognizance of the matter, then he could not direct the police to make an investigation u/s 156(3) of the Code. On the other hand, the learned Counsel for the State has vehemently argued that the aforesaid orders do not show that the Magistrate had applied the mind and they do not amount to taking cognizance of the offence.

I have heard the learned Counsel for the parties at a considerable length. In order to determine this question, it will be necessary to refer to some of the sections of the Code as the words taking cognizance have not been defined.

Section 156 forms part of Chapter XII, which relates to information to the police and is as follows :

156 (1). 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.

(2) No proceedings of a police officer in any such case shall at any stage be called 4 in question on the ground that the case was one which such officer was not empowered under this section to investigate.

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

Chapter XIV is regarding conditions requisite for initiation of proceedings. Section 190 is a part of this chapter. It relates to cog-nizance of offences by Magistrates and reads as under :

190 (1). Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), 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.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.

Chapter XV deals with complaints to Magistrates. Section 200 makes a provision for examination of complainant. The section reads as under :

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint ; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate u/s 192 :

Provided further that if the Magistrate makes over the case to another Magistrate u/s 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

Section 202 deals with postponement of issue of process. It says that a Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him u/s 192, may postpone the issue of process against the accused and either enquire into the case himself or direct 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 under the said section. From the scheme of the Act it appears that Section 156(3) and Section 202 operate in different spheres. A Magistrate passes an order u/s 156(3) before taking cognizance of the matter and u/s 202, after having taken cognizance thereof,

From the reading of the aforesaid sections it is further established that a Magistrate having once taken cognizance of a matter cannot send the case for police investigation u/s 156(3) of the Code. While dealing with the scope of Section 156(1), the Supreme Court in Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, observed as follows :

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 precognizance 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.

How cognizance of an offence is taken by a Magistrate has been given in Section 190. It says that a Magistrate may take cognizance of any offence ; (a) upon receiving complaint of facts which constitute such offence (b) upon a police report of such facts and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Whether cognizance has been taken by the Magistrate or not, is a question of fact to be determined in each case after perusing the facts of that case. The main criterion that can be laid down in the case of a complaint is whether the Magistrate after the receipt of the complaint has applied mind and proceeded under Chapter XV of the Code? In case he did, it can be held that he has taken cognizance of the matter. In the aforesaid view I am fortified by the observations of their Lordships of the Supreme Court in Devarapali Lakshminarayana Reddy''s case. The Hon''ble Supreme Court held therein as under ;--

The expression ''taking cognizance of an offence" by the Magistrate has not been defined in the Code, The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding u/s 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If instead of proceeding under Chapter IX he has in the judicial 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.

Adverting to the facts of the present case, it will be seen that the Magistrate, on May 24, 1976, passed an order that the) complaint be registered and adjourned the case for the statement of the complainant to May 29, 1976. On the next date of hearing he did not examine the complainant but sent the case u/s 156(3) of the Code to the Station House Officer, Naraingarh, for investigation. Merely by ordering that the case be registered and that the statement of the complainant would be recorded on the next day, would not show that the Magistrate had applied his mind to the facts of the case. Both the orders were formal type of orders which could be passed without application of mind. I am unable to hold that the order directing that the case be registered or that the statement of the complainant may be recorded on some other day, would amount to taking cognizance of the case. In case he did not take cognizance of the matter, he could send the case u/s 156(3) of the Code for investigation to the police. I do not find that there is anything wrong with the order of the Magistrate dated May 29, 1976. In the aforesaid view I get support from the observations in Devarapali Lakshminarayana Reddy''s case (supra).

The counsel for the petitioner has referred to the judgment of this Court in Shri Jug Lal v. The State of Haryana (1976) 78 PLR 480. The facts of that case are distinguishable from those of the present case In that case Sammant Singh, respondent No. 2, a Sarpanch, filed a complaint against Jug Lal, petitioner, Under Sections 406, 509, 465 and 468, Indian Penal Code, in the Court of a Judicial Magistrate on the ground that he (Jug Lal) was the Sarpanch of the Gram Panchayat in the year 1970-71. At that time he misappropriated Rs. 4500/- out of the Panchayat funds by showing that the amount was spent on certain items although no such expenses were incurred by him. The case first came up for hearing on September 7. 1974 before the Magistrate, which he adjourned for preliminary evidence on September 27, 1974. On that day he passed an order that the complaint be sent to Police Station, Narnaund u/s 202, Criminal Procedure Code. After the receipt of the report, he adjourned the case for consideration and arguments on it. Thereafter he sent the case to police Station, Narnaund, u/s 156(3) of the Code for necessary action. On the basis of the complaint, the police registered first information report u/s 409, Indian Penal Code, against Jug Lal and, started investigation against him. He came up in a petition u/s 482 of the Code, to this Court, The above facts go to show that the Magistrate had already proceeded u/s 202 of the Code. In the aforesaid circumstances the ratio in that case is not applicable to the facts of the present case, After taking into consideration the circumstances of the aforesaid facts and the law on the subject, I am of the opinion that the order passed by the Magistrate u/s 158(3) is in accordance with law and cannot be challenged.

For the reasons recorded above, this petition fails and the same is dismissed.