Sohan Singh and Others vs State of Rajasthan

N.M. Kasliwal, J.—This revision is directed against an order of the learned Session Judge, Bundi dated 29th September, 1983, framing charge against the accused persons under Sections 302, 302/149, 120B, 147, 148 and 201 IPC.

One Mohan Singh father of deceased Prasan Kaur instituted a private complaint in the court of Munsif and Judicial Magistrate, Bundi on 19th June, 1980, who forwarded the same u/s 156(3) Cr.PC to Station House Officer, Talera for investigation and report. The Station House Officer made a report to Superintendent of Police, Bundi, who sent a detailed report on 2nd July, 1980 to the concerned Magistrate that this case had already been investigated and no case of murder had been proved in police investigation. Thereafter on 11th July, 1980, the learned Magistrate passed an order for registering the FIR and to make further investigation and send the report u/s 173 Cr. PC to the court and also issued a notice to the Station House Officer as to why contempt of court proceedings should not be proceeded against u/s 29 of the Police Act. The case of the petitioners is that on receipt of this threatening order dated 11th July, 1980, the Station House Officer, registered a case under Sections 302, 201, 120B, and 149 IPC and filled a charges against the petitioners for the above offences in the court of learned Magistrate. The learned Magistrate thereafter committed the case for trial to the Sessions Judge Bundi, who framed the charges against the petitioners for the offences mentioned above by his order dated 29th September, 1983

Learned Counsel for the petitioners contended that the case being exclusively triable by the learned Sessions Judge, the learned Magistrate had no jurisdiction to take cognizance in this case without recording evidence as contemplated u/s 202 Cr. PC. Attention was drawn to provision to Sub-section (1) of Section 202 Cr. PC wherein it has been mentioned that no direction for investigation can be made by the Magistrate where it appears to him that the offence complained of is triable exclusively by the Court of Sessions. It is submitted that no witnesses were examined by the learned Magistrate before taking cognizance in this case and he had no jurisdiction to give a direction for further investigation in the case to the police when a final report had already been submitted in the case by the police. It is thus, submitted that the order of committal itself being illegal, the learned Sessions Judge bad no jurisdiction to frame charge and the entire proceedings taking cognizance and framing charge in the case should be quashed. Reliance in this regard is placed on Abhinandan Jha and Others Vs. Dinesh Mishra, and Tula Ram and Ors. v. Kishore Singh AIR 1917 SC 2401.

On the other hand, it was submitted by the learned Public Prosecutor that in view of the proviso to Section 202(1) of the Cr. PC a Magistrate, who receives a complaint disclosing offences exclusively triable by the Court of Session is not debarred from sending the same to the police for investigation u/s 156(3) of the Code. It is further submitted that till cognizance was taken of an offence, the Magistrate was authorized to give a direction for investigation to the police u/s 156(3) and the provisions of Section 202 Cr. PC will not come into operation in the present case, as no cognizance was taken by the Magistrate. It is submitted that the Magistrate has rightly passed an order u/s 156(3) Cr. PC and thereafter, the police itself had filed a challan considering the case to be made out and thereafter there was no irregularity in committing the case by the learned Magistrate to the Court of Sessions for trial. It is also submitted that now the charge has been framed by the learned Sessions Judge himself considering a prima facie case to be made out against the applicants and no interference is called for in such an order. Reliance is placed on Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others,

In the present case it is no doubt correct that the police had initially after making investigation had arrived at the conclusion that no offence was made out and submitted its report to the learned Magistrate on 2nd July, 1980 The learned Magistrate again on 11th July, 1980, gave a direction to the Station House Officer to register the FIR and to submit his report again u/s 173 Cr.PC. Learned Counsel for the petitioners vehemently contended that this order dated 11th July, 1980 was passed by the learned Magistrate after hearing the arguments of both the parties and had taken into consideration the evidence recorded during the investigation by the police and thus, the learned Magistrate had applied his mind to the case and this tantamount to taking cognizance of the case. It is contended that after taking cognizance in the case the learned Magistrate had no jurisdiction to give a further direction for investigation u/s 156(3) Cr.PC in a case which was exclusively triable by a Sessions Court. I see no force in this contention. A perusal of the order dated 11th July, 1980 shows that the learned Magistrate had not taken cognizance in the case but had given a direction to the Station House Officer to register the FIR and to submit his report u/s 173 Cr. PC. It has been clearly observed in Devarapalli Lakshminarayana Reddy''s case (spura) that:

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 precognizance stage, the second at the post cognizance stage when the Magistrate is in raisin 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(l)(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 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 brings 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 above statement of law laid down by their Lordships of the Supreme Court makes the position abundantly clear that the power to order police investigation u/s 156(3) and the power to direct investigation conferred by Section 202(1) are entirely different. In the present case, the Magistrate had not embarked upon any inquiry as contemplated under Chapter XV before giving a direction to the police on 11th July, 1980. The order dated 11th July, 1980, therefore, was a direction given by the learned Magistrate in exercise of the powers conferred u/s 156(3) Cr. PC. In this view of the matter there is no force in the contention of the learned Counsel for the petitioners that the learned Magistrate had no jurisdiction to take any cognizance in the case or to commit the case for trial to the learned Sessions Judge without recording any evidence himself u/s 202 Cr. PC. It is undisputed that subsequently the police itself submitted a report u/s 173 Cr. PC coming to the conclusion that an offence is made out against the accused petitioner. The learned Magistrate thus, took cognizance on the challan hled by the police itself and thereafter committed the case for trial to the Sessions Court. The authorities relied upon by the learned Counsel for the accused are clearly distinguishable and the case is squarely covered by the decision of the Supreme Court in Devarapalli Lakshiminarayana Reddy''s case (supra).

In view of these circumstances, I find no force in this revision and same is accordingly dismissed.