Suresh Kumar vs State of Haryana

M.L. Koul, J.—This order shall dispose of Crl. Misc. No. 15613-M of 1995 and Cri.M. No. 15402-M of 1995 relating to quashing of F.I.R. No. 61 dated 21.2.1989 under Sections 406/498A, I.P.C. Police Station, Thanesar and F.LR. No. Ill dated 1.2.1994 under Sections 498A/34, I.P.C. Police city, Karnal respectively. Since identical questions of law and facts are involved in both these cases, therefore, these are bracketed together for the purposes of disposal.

Respondent No. 2 (hereinafter referred to as the complainant) was married to petitioner No. 1 Suresh Kumar at Thanesar, on 19.2.1987 according to Hindu custom and rites. The other two petitioners Piara Lal and Darshana Devi are her father-in-law and mother-in-law. It is alleged in the complaint that soon after the marriage took place the petitioner (hereinafter referred to as the accused) who were showing idealism and moral value proved otherwise and tortured the complainant and made many demands for the dowry as a result of which the first complaint was filed by her in the year 1988. The same was formulated as F.I.R. No. 61 dated 22.1.1988 by the police on the order of the Chief Judicial Magistrate, Kurukshetra, who sent the complaint to the police for registration and investigation of the case u/s 156(3), Cr.P.C. After the report was submitted by the police the accused faced trial for an offence u/s 406 of the Indian Penal Code before the said Chief Judicial Magistrate.

On the similar facts of the case the complainant filed another complaint in the year 1994 with the Chief Judicial Magistrate, Karnal who sent it down to the police for registration and investigation of the case. It was registered as F.I.R No. Ill dated 8.2.1994 and on completion of the investigation the report was made and the accused are facing trial before the said Chief Judicial Magistrate under Sections 498-A/34 of the Indian Penal Code.

In the earlier case although report u/s 173 of the Cr.P.C. was filed under Sections 406/498-A of the Indian Penal Code but the Trial Court charge-sheeted the accused for an offence u/s 406 of the Indian Penal Code only and refused to frame charge u/s 498-A of the Indian Penal Code for want of jurisdiction.

This order of the Magistrate was upheld by the Revisional Court i.e. the learned Additional Sessions Judge, Kurukshetra and by this Court as well vide its order dated 15.10.1993 holding that the revision was decided by the 1st Revisional Court by a speaking order and therefore, no interference by this Court u/s 482, Cr.P.C. was called for.

In the other case the accused have been charge-sheeted for an offence under Sections 498-A/34 of the Indian Penal Code.

Heard learned Counsel for the parties and also had a thoughtful consideration over the record on file.

It is vehemently argued by the learned Counsel for the accused that the Magistrate had no power to ask for the registration of the cases and they could simply refer the matter to the police investigation contemplated u/s 156(3) of the Cr.P.C.

Chapter XII of the Cr.P.C. deals with information to the police and the powers of the police to investigate a crime. Section 156(3) of the Cr.P.C. runs as under:

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

This section is placed under Chapter XII of the Cr.P.C. and not under Chapter XIV where Section 190 is placed. It is, therefore, clear that both these Sections 190 and 156(3) are mutually exclusive and work in totally different spheres. Suppose if a Magistrate receives a complaint u/s 190 he can act u/s 156(3) provided that he does not take cognizance. Once the Magistrate takes the cognizance u/s 190 he cannot resort to Section 156(3) of the Cr.P.C. In the instant case the Chief Judicial Magistrates at the pre-cognizance stage have referred the complaints to the police for investigation u/s 156(3) of the Cr.P.C. and after the final reports were received by them they could act on the reports and discharge the accused or straightaway issue process against the accused or apply their minds to the complaints filed before them and take action u/s 190 of the Cr.P.C.

Under Chapter XII of the Cr.P.C. within the ambit of Section 154 substance of any agport available with the police in writing or reduced to writing with regard to the commission of a cognizable offence signed by the informant is necessarily to be entered in a book to be kept by such officer in such form as the State Government may have prescribed in this behalf. A copy of the information as recorded under Sub-section (1) of Section 154 is also to be given forthwith free of cost to the informant. It postulates that a Police Officer has to conduct the investigation of any information receive by him u/s 154 of the Cr.P.C. as per terms of Sub-section (1) of Section 156 of the Cr.P.C. but upon a complaint received under the orders of the Magistrate he has to conduct the investigation strictly in contemplation of Section 156(3) of the Cr.P.C. and make a final report to the Court concerned for taking cognizance by the Magistrate. Upon such report the Magistrate as per his satisfaction can discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action u/s 190 of the Cr.P.C.

Number of authorities have been referred to by the learned Counsel for the accused to justify his argument that a Magistrate u/s 156(3) of the Cr.P.C. is empowered to ask for investigation of a criminal complaint at the pre-cognizance stage and could not initiate registration of a case as envisaged u/s 154 of the Cr.P.C.

The law laid down on the subject is contained in case Gopal Das Sindhi and Ors. v. State of Assam and Anr. AIR 1961 S.C. 986, Tula Ram and Others Vs. Kishore Singh, , State of Punjab v. Joginder Singh 1991 (3) R.C.R. 276, State of Punjab v. Kashmira Singh 1992 (2) R.C.R. 78, and in Criminal Misc. No. 4615 of 1994, Ganesh Dass and Ors. v. State of Haryana (DB). The law laid down by the Apex Court has been followed by the Division Benches of this Court in the above related cases and in nutshell it has been held that the Magistrate has no power within the contemplation of Section 156(3) of the Cr.P.C. to ask for registration of the case but could only refer the complaint to the police for investigation at the pre-cognizance stage to make the enquiry in the matter enabling the Magistrate to apply his mind with regard to the correctness of the complaint. The report submitted by the police in no manner is final and the Magistrate on receipt of the report being satisfied with the same could discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action u/s 190 of the Cr.P.C.

In the instant cases the Magistrates have acted wrongly in the matter and have directed the police to register the cases which orders are against the provisions of law. Therefore, the orders of the Chief Judicial Magistrates dated 19.2.1988 and dated 29.1.1994 upon which F.LR. Nos. 61 and 111 respectively have been registered against the accused on which both the Chief Judicial Magistrates have proceeded for trial of the accused are hereby quashed. However, it shall remain open to both the Chief Judicial Magistrates to proceed with the cases afresh in accordance with law.

It was argued by the learned Counsel for the accused that the accused Suresh Kumar and the complainant have separated their ways and have divorced each other and married afresh. Even both have given birth to children from the new wed-locks and therefore, these complaints have died down and cannot be proceeded ahead by the Magistrates. In this regard this Court cannot embark upon the matter and conduct the enquiry as to whether the allegations made in the complaints are likely to be established or not for the complaints are to be dealt with by the Chief Judicial Magistrates afresh in accordance with law and it is for the accused to raise such an argument before the Chief Judicial Magistrates, who shall be in seisin of the cases afresh as mentioned above.

Before parting with the judgment, it is observed that often it is found that the Judicial Magistrates working under the control of this Court many a time upon the complaints preferred before them, allegedly showing that a cognizable offence has been committed by the accused, direct the police to register and conduct the investigation in such cases u/s 156(3) of the Cr.P.C. After the reports are received from the police the Magistrates deal with those cases as police challans and conduct the proceedings in the matters against the provisions of law as discussed above. Hence the Registry is directed to send a copy of this judgment to all the Judicial Magistrates in the States of Punjab, Haryana and Union Territory, Chandigarh, for information and guidance.

Both the petitions are disposed of accordingly.