SHYAM vs STATE OF M P

This petition has been filed under Section 482 Cr.P.C. being aggrieved with the order passed by Additional Sessions Judge (Fast Track Court), Bhind in Criminal Revision No. 181/2010 on 26.11.2010 whereby the order passed by Judicial Magistrate First Class on 10.08.2010 issuing process against the petitioner has been affirmed and the revision petition has been dismissed.

Brief facts of the case are that respondent No.2/complainant has lodged a private complainant that he is working as Security Guard at Bhind. His ancestral house is situated in Hanuman Road, Mehgaon. In the intervening night of 19-20, July, 2009 theft took place in his house then he came to Mehgaon on 24.7.2009. While he was talking regarding the process received from the Court Ramawatar armed with 12 bore gun started abusing him. Brijesh, Girraj and Gudiya started pelting stones from their roof, when complainant objected then they slapped his daughter-in-law and wife. The complainant went to lodge the report but police has not taken any action against the accused persons because Ramawatar Sharma is the Head Constable, hence he filed private complaint before the Judicial Magistrate First Class, Mehgaon. The learned Magistrate recorded the statements of Complainant under Section 200 of Cr.P.C., and of Shakuntala (PW-1), Usha (PW-2) and Sanjay Khan (PW-5) under Section 202 of Cr.P.C. The learned Magistrate also called the police report but without filing of the police report, the order of summoning of the petitioners have been passed. Being aggrieved, criminal revision was preferred before the Additional Sessions Judge, Bhind, who has dismissed the criminal revision. Being aggrieved, this petition has been filed.

Learned counsel for the petitioner submitted that the court below has committed illegality in issuing process against the petitioners. Once the learned Magistrate has directed to inquire by the police, no order can be passed for summoning the petitioners in absence of such police report.Reliance has been placed in the decision of this Court in the matter of A.K.Singh, Special Railway Magistrate Jabalpur Vs. Virendra Kumar Jain, Advocate, 2001 4 MPLJ 324 and decision of Bombay High Court in the matter of P.K.Ramakrishnan and others Vs. Neelkanth M. Kamble and another, 1996 CrLJ 2119). Hence, it is prayed that the impugned order be set aside.

Learned counsel appearing on behalf of the respondent supported the impugned order by submitting that learned Magistrate after holding inquiry has found prima facie material against the petitioners, hence has not committed any illegality in passing the impugned order without waiting the police report. It is further submitted that the police report is not binding on the Court.

I have considered the submissions of the learned counsel and perused the record.

In order to appreciate the submissions of the learned counsel, it is appropriate to refer the provisions of Sections 200 and 202 of Cr.P.C., which reads as under:- "200. Examination of complainant.

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 under section 192 : Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them."

"202. Postponement of issue of process.--

(1) Any 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 under section 192, may, if he think 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 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 be Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or

(b) where the complaint has not been made by a Court, unless the complainant and the witness es present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit take evidence of witnesses on oath. Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant."

"190. Cognizance of offences by Magistrate.--

(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 acts which constitute such offence;

(b) upon a police report of such fac ts;

(c) upon information received from any person other then 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."

A harmonious consideration of these provisions would be that when a complaint comes before a Magistrate is empowered to take cognizance of the offence under section 191 (a) above referred. At that stage he has two options; first is that he may act under section 156(3) and direct a police officer incharge of police station to investigate. Such police officer then register the first information report on that basis, investigates the offence under the provision of Chapter XII of Criminal Procedure Code and he may file a charge-sheet under section 173, Criminal Procedure Code, if an offence is disclosed or a final report if no offence is disclosed. On the basis of charge-sheet and material filed therewith the Magistrate may then take cognizance against the accused or he may accept the final report that there is no offence disclosed.

The first option may be exercised only when offences alleged in the complaint are cognizable.

The second option before the Magistrate, at the time of filing of the complaint before him, is to proceed under section 200, Criminal Procedure Code and record the statements of the complainant and his witnesses who are present and thereafter he has further three options;

(I) if he is satisfied to take cognizance of the offence and issue summons against the accused persons (ii) to enter into further inquiry himself or by another magistrate under section 202(2), Criminal Procedure Code by directing the complainant to bring or produce any other witness, if he sop desires. On such inquiry or its report he may proceed to take cognizance or dismiss the complaint. (iii) to refer the mater for inquiry to a police officer or tro any other person as the Magistrate think fit, under section 202(1), Criminal Procedure Code who will then report after inquiry.

Although the words used in section 202(1), Criminal Procedure Code "direct an investigation to be made by police officer or by other person as the Magistrate thinks fit", it is in fact an inquiry to be made by that police officer or other person. Such inquiry can be ordered duly after recording statement of complainant and witnesses present. (Section 202(1) proviso (b). On the basis of report of such inquiry by police officer or other person, the Magistrate may accept it and dismiss the complaint or take cognizance and summons the accused if an offence is reported to be disclosed or he may not accept even that report of inquiry and give further opportunity to the complainant to produce his witnesses before the Magistrate himself if he so desires fit and then proceed. After these inquiries either by himself or through another Magistrate or through police officer or through another person, options of the Magistrate are either to dismiss the complaint under section 203, Criminal Procedure Code or to take cognizance of offence and issue process against accused under section 204, Criminal Procedure Code."

In the light of aforesaid provision, if we examine the instant case, it is clear that learned Magistrate after recording statement under Section 200 and 202 of Cr.P.C. directed the police to make inquiry and submit its report and no report has been submitted before the learned Magistrate, who passed the impugned order. Once the Magistrate has directed the police to inquire into the matter, then without submission of report, the impugned order could not be passed. In similar circumstances, the Bombay High Court in the matter of P.K.Ramakrishnan and others Vs. Neelkanth M. Kamble and another has held that taking cognizance and issuing process without waiting for police report would not be proper.

In view of aforesaid, in the opinion of this Court, the trial Court erred in issuing process without waiting the police report and this petition deserves to be allowed.

Consequently, this petition is allowed. The impugned order is set aside. The learned Magistrate is directed to call the police report and thereafter proceed in accordance with law.