Shyam Sundar Sahoo and Others vs Bibhu Prasad Sahoo

L. Mohapatra, J.—This application u/s 482. Cr. P.C. is directed against the order dated 18.4.2002 passed by the learned S.D.J.M., Kendrapara in I.C.C. No. 130 of 2001 taking cognizance of the offences under Sections 294, 323, 341, 384, 394, 506 read with Section 34 of the Penal Code.

From the impugned order it appears that after presentation of the complaint before the Court, initial statement of the complainant. was recorded and the learned Magistrate proceeded with the inquiry u/s 202, Cr.P.C. and on the basis of initial statement of the complainant and the statements recorded during inquiry u/s 202, Cr.P.C. cognizance of the offences was taken.

Shri Sahoo, the learned counsel appearing for the petitioners challenged the procedure adopted by the learned Magistrate stating that on receipt of a complaint, the learned Magistrate may initially adopt one of the two courses available to him. The learned Magistrate may send the complaint for investigation by police as envisaged u/s 156(3) of the Code of Criminal Procedure or after recording of initial statement of the complainant, take cognizance of the offences and thereafter proceed with inquiry u/s 202, Cr. P.C. According to Shri Sahoo, the learned Magistrate cannot proceed with an inquiry u/s 202, Cr.P.C. before taking cognizance.

In course of hearing of this application, decisions of this Court were cited taking divergent views on the above question.

In the case of Nira alias Niranjan Mohanty v. Narayan Pradhan and Ors. reported in 1990 (I) O.L.R. 408 a single Bench of this Court held that taking cognizance of offence against the accused first and then directing an inquiry u/s 202, Cr.P.C. is unknown to law and it is like putting the cart before the horse. This Court further observed that taking cognizance of the offences and directing inquiry simultaneously is irregular and illegal. This decision was followed by another single Judge of this Court in the case of Binayak Behera and Another Vs. State of Orissa and Others, In this case the learned Magistrate had taken cognizance of the offence and thereafter conducted the inquiry u/s 202. Cr.P.C. and the order was quashed by this Court following the decision in the case of Nira alias Niranjan Mohanty (supra),

Funher in the case of Dr. R. P. Sharma v. Man Mohan Mathur reported in 1995 C LJ 387 a divergent view was taken and it was held as follows :

"The purpose of an inquiry or investigation contemplated u/s 202 of the Code is for the purpose of deciding whether or not there exists sufficient ground for proceeding against the person complained of. Thus while the purpose of taking cognizance u/s 190(1) of the Code is to take note that an offence has been allegedly committed the purpose of enquiry or investigation as contemplated u/s 202 is to decide whether or not there exists sufficient ground for proceeding against the person alleged to have committed the offence. The very purpose for which Sections 190(1) and 202 of the Code exist themselves clearly show that an enquiry or investigation u/s 202 is to follow the order of taking cognizance u/s 190(1) and not the vice-versa."

A similar view has also been expressed by a single Bench of this Court in the case of Abdul Jahangir and Ors. v. State of Orissa and Ors. reported in 2000 (18) O.C.R. 207 where the Court observed as follows :

"At the stage of taking cognizance of offences on the basis of complaint received, as provided in Section 200 of the Code, the cognizance taking Magistrate is bound to record the statement of the complainant, which is popularly known as initial statement. At that stage, if witnesses are present their statements shall also be recorded. However, complainant and witnesses, if any, need not be examined if the case falls under the categories as provided in Clauses (a) and (b) of the first proviso. (Second proviso being not relevant is not discussed here). Without complying with the provisions in Section 200 as narrated above. Magistrate cannot proceed further, with the complaint petition, in accordance with the provisions u/s 202 of the Code. Taking of cognizance of the offences is thus the condition pre-required for that purpose."

From the above four decisions, it is clear that the question that arises for consideration is whether the learned Magistrate has. to take cognizance first and then proceed u/s 202, Cr.P.C. or hold an inquiry and thereafter take cognizance. The Apex Court in the case of State of West Bengal v. Mohd. Khalid reported in 1995 S C C 266 observed as follows:

".....The expression has not been defined in the Code. In its broad and literal sense .it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word cognizance'' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of the persons........"

The Apex Court in the case of Raghubans Dubey Vs. State of Bihar, has more or less taken a similar view and held that cognizance is taken of an offence and not of the offenders and, therefore, once the Magistrate takes cognizance, it is his duty to find out who the offenders really are. In the case of Jamuna Singh and Others Vs. Bhadai Sah, the Apex Court observed as follows :

".......It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance. directed an investigation of the case by the police u/s 156(3) of the Code of Criminal Procedure once however he took cognizance, he could order investigation by the police only u/s 202 of the Code of Criminal Procedure and not u/s 156(3) of the Code of Criminal Procedure, as it is clear here from the very fact that he took action u/s 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only u/s 202 of the Code of Criminal Procedure and not u/s 156(3) of the Code........"

This decision was followed in the case of Kitti alias Kittaraju and Anr. v. Thammaiah Setty and Anr. reported in AIR 1967 Mys 243 as well as by this Court in the case of Mrutyunjaya Tripathy v. Naba Kumar Misra reported in Vol.33 (1991) O.J.D. 353 (Criminal). In another decision of the Apex Court in the case of Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, the Apex Court has held that Section 202. Cr.P.C. comes in at a stage when some evidence has been collected by the Magistrate in the proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure.

In view of the observations of the Apex Court in the decisions referred to above, it appears that the views expressed by this Court in the case of Niranjan Mohanty (supra) as well as Fakir Singh (supra) runs contrary to what has been decided by the Apex Court as well as two other decisions of this Court in the cases of R.P. Sharma (supra) and Abdul Jahangir (supra).

After going through all the above decisions, though this Court could have decided the case on the basis of the decision of the Apex Court, I feel it proper to refer the matter to a larger Bench in order to decide as to whether the decisions rendered by this Court in the case of Nira alias Niranjan Mohanty reported in 1990 (1) O.L.R. 408 and Fakir Singh reported in 2002 (2) O.L.R. 274 are required to be declared as bad in law or not.

Accordingly it is directed that the matter may be referred to a larger Bench with permission of the Hon''ble the Chief Justice.