Vijay Kumar and anr. vs Kartar Singh

S.S. Grewal, J.

The petition under Sec. 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) relates to quashment of impugned order passed by Sub Divisional Judicial Magistrate, Dabwali, dated 18th July, 1989, Annexure P1, whereby on the complaint, Annexure P3. filed by Kartar Singh complainant, the Station House Officer, Police Station City, Dabwali, was ordered to register a case and conduct investigation under Section 156(3) of the Code, as well as impugned first information report Annexure P2 registered against the present petitioners under Sections 406/418/192/426/465/463/47 1/504/506 of the Indian Penal Code.

According to the allegations made in the complaint, on 20.6.1986, Vijay Kumar, the present petitioner being representative of M/s Anil Steel Corporation went to the shop of the complainant i.e. M/s Kartar Singh Agricultural Implements Co., G.T. Road, Mandi Dabwali and demanded the payment of Rs. 10,691.13. The complainant agreed to give a cheque of Rs. 7000/ and to pay the remaining amount of Rs. 3,691.13 after 2561989. The cocomplainant who could only sign the cheque in Punjabi was unable to fill up the form of the cheque and on the assurance given by Vijay Kumar that he will fill up the amount of Rs. 7,000/ in the cheque, the complainant handed over the blank cheque bearing No. 921532 drawn on Punjab National Bank, Mandi Dabwali, to him in the presence of Mohinder Singh and Narain Dass. Later on M/s Anil Steel Corporation got issued a notice through their lawyer to the complainant stating therein, that the complainant had purchased articles worth Rs. 48,400/ the shop of Vijay Kumar and the latter in conspiracy with other, associate members of the Company had written Rs. 64,186/ in the aforesaid blank cheque, instead of Rs. 7,000/ and also prepared a false record in their books about the purchase of articles. The complainant never purchased articles on 2161989 worth Rs. 48,400/ from the shop of Anil Steel Corporation during the last two years. M/s Anil Steel Corporation never gave bill number/case memo number about the purchase of such huge amount articles. Nor they gave any details of such articles and it was rather strange that the said Company would supply articles of Rs. 48,400/ without getting the signatures of the complainant. In conspiracy with each other and other partners, M/s Anil Steel Corporation have fabricated amount of Rs. 64,186/ instead of Rs. 7,000/ in the cheque and thereby they caused wrongful loss to the complainant and wrongful gain to themselves. Thereby both the accusedpetitioners and their associate partners of the firms M/s Anil Steel Corporation committed an offence punishable under Sections 406/192/418/426/465/468/471/474 read with Sections 504 and 505 of the Indian Penal Code. The complainant approached M/s Anil Steel Corporation and Vijay Kumar and complained to them about the wrong entry of the amount in the cheque, but both the accused threatened the complainant, that in case he initiated any proceedings against them they will ruin him by lodging false civil and criminal false cases and also abused him.

The learned counsel for the parties were heard.

On behalf of the petitioners it was submitted that the Sub Divisional Judicial, Magistrate, could only direct the police to conduct investigation concerning the allegations made in the complaint (Annexure P3) under Section 156(3) of the Code and could not order the Investigating Agency to register a case.

Before dealing with the contention made by the counsel for the petitioners, it would be desirable to know the distinction of power of Magistrate to order police investigation under Section 156(3) of the Code from his power to direct investigation under Section 202(1) of the Code. Dealing with this aspect of the matter, it was observed in Devarapalli Lakshminarayana Reddy and others v. Naryana Reddy and others, 1976 SCC (Crl.) 380, by their Lordships of the Supreme Court, as under :

"The power to order police investigation under Section 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 seisin of the case.

Therefore, in the case of a complaint regarding the commission of a cognizanable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 109(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)".

While dealing with the meaning of term "taking cognizance", under Section 190 of the Code of Criminal Procedure, 1898 relying upon authorities in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abni Kumar Banerjee. AIR 1950 Calcutta 437; R.R. Chari v. State of Uttar Pradesh, AIR 1951 SC 207 and Narayandas Bhagwandas v. State of West Bengal, AIR 1959 SC 1118, it was held by their Lordships of the Supreme Court in case Gopal Das Sindhi and others v. State of Assam and another, AIR 1961 SC 986 that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind, e.g. ordering investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence.

It was further observed that the provisions of Section 190 do not mean that once a complaint is tiled, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. The word `may'' in Section 190 cannot be construed to mean must. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending a complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his deiscretion and take cognizance of a. cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code.

Applying the principle of law enunciated in the afore cited authorities to the facts and circumstances of the present case, it is quite, obvious that the learned Sub Divisional Judicial Magistrate has not taken cognizance of the offence as disclosed in the complaint itself as contemplated under Section 190 of the Code and merely directed investigation under Section 156 (3) of the Code after registration of the case at precognizable stage.

Faced with this situation, it was further submitted by the learned counsel for the petitioners that a Magistrate had no power to order registration of the case under Section 156(3) of the Code and as such the impugned order passed by the learned Magistrate as far as direction given to the police for registration of the case is concerned, is not a legal order. It is true that under Section 156(3) of the Code it has not been specifically provided that the Magistrate can direct the police officer concerned to register a case in respect of a cognizable offence. However, from the wording of Section 156 (3) of the Code it is patently clear that no specific bar has been imposed on the power of the Magistrate to direct the police officer concerned for registration of a case in respect of cognizable offence before conducting investigation. It would be pertinent to refer to Section 154 of the Code which deals with. the registration of the case in respect of commission of a cognizable offence on the basis of information given orally to an officer in charge of a police station, who is duty bound to reduce such information into writing and record the same in the register prescribed by the State Government in this behalf. The informations sent in the form of complaint under the orders of the Magistrate to the police officer Sec. 156(3) of the Code obviously can form basis for recording the first information report as contemplated under Section 154 of the Code. Thus there would be no legal bar for the Magistrate to direct the police officer concerned to register a case and conduct investigation under Section 156(3) of the Code. I am supported in my view by Single Bench authority of this Court in Hari Singh and others v. The State of Punjab and others, 1986(1) Recent Criminal Reports 555 : 1986(1) CLR 67 , wherein it was held that the Magistrate before taking cognizance of the case can certainly order the registration of the case and the investigation by the police.

I find further support in my view on this point by the Single Bench authorities of this Court in Jagdish Rai and others v. State of Punjab and another. 1988(1) Recent Criminal Reports 202, and Baru Ram and others v. The State of Haryana and another, 1990 Chandigarh Criminal Cases 118 : 1990(1) Recent Criminal Reports 105.

In the authority of the apex Court in Gopal Das Sindhi''s case (Supra), the Magistrate to whom the complaint had been transferred for disposal further directed the officerincharge of the police station, Gauhati to register a case and order investigation. The action of the Magistrate was upheld right upto the Supreme Court.

The authority of the Single Bench of this Court in Rattan Amol Singh and another v. State of Punjab and another, 1988(2) Recent Criminal Reports 600 , relied upon by the counsel for the petitioner obviously relates to the case where the Magistrate had already taken cognizance of the offence under Section 190(1)(a) of the Code, inasmuch as the Magistrate in the said case had already recorded some evidence and, therefore, the Magistrate could not legally invoke his power under Section 156(3) of the Code, whereas in present case the Magistrate has exercised his power under Section 156(3) of the Code at the precognizance stage. The aforesaid authority in Rattan Amol Singh''s case (Supra) does not help the case of the petitioners, the same is clearly distinguishable, and not applicable to the facts of the case in hand.

It was further argued by the counsel for the petitioners that after registration of the case the very nature of the complaint would change, and it would be converted into a police case and such procedure would adversely affect the rights of the accused party, who can be arrested and in order to. avoid arrest may have to apply for grant of anticipatory bail. The argument is devoid of any merit. Even after registration of the case the police after investigation can submit a report for cancellation of the case against the accused and it is not necessary that in all cases accused party would be challaned, whereas in the complaint case also after the accused is summoned through bailable or nonbailable warrants normally he would seek bail. At any rate, mere fact that the complaint is converted into a police case or that the accused can be arrested or even remanded to police custody cannot be considered to be a valid ground for depriving a Magistrate to order registration of the case while acting under Section 156(3) of the Code, particularly when the first information report can be recorded on the oral, or written complaint made to the police by the complainant or even by a person other than the affected party.

The learned counsel for the petitioners has also relied upon Single Bench authority of Himachal Pradesh High Court in Kewal Ram Chauhan v. Prithipal Singh Bakshi and others, 1988(2) CLR 214, in support of his contention that the Magistrate while ordering investigation under Section 156(3) of the Code cannot make an order for registration of a case because that will be the function of the police authorities and the function of the police authority is quite distinct from the function of a Court.

In Kewal Ram Chauhan''s case (supra) reliance was placed on the authority of the apex Court in Abhinandan Jha and ors. v. Dinesh Mishra, AIR 1968 SC 117 wherein it was observed that there is no power expressly or impliedly conferred, under the Code on a Magistrate to call upto the police to submit a chargesheet, when they have sent a report under section 169 of the Code, that there is no case made out for sending up an accused for trial.

Besides the facts and circumstances in Kewal Ram Chauhan''s case (supra) were entirely different wherein application under Section 155 (3) of Code read with Section 8A of the Criminal Law Amendment Act, 1952 with a prayer for ordering investigation and registration of a case under Sections 379/420/120B IPC read with Sections 41 and 42 of the Indian Forest Act and Section 12 of the Timber Transit Rules and Section 5(2) of the Prevention of Corruption Act, was moved against the respondents before the Special Judge, Shimla, who found that there was no ground to allow the prayer of the petitioner and dismissed the petition. In the said case sanction to prosecute respondent No. 2 who was the Chief Minister of the State had already been refused by the Governor of Himachal Pradesh and in view of the facts and circumstances referred to above was held in Kewal Ram Chauhan''s case (supra) that to entrust the case for investigation to the police under Section 156(3) of the Code would not serve, any purpose. The aforecited authority is based on facts and circumstances which are entirely different from those in the case in hand. Thus the said authority is clearly distinguishable, and is. not applicable to the facts, of the present case.

For the foregoing reason, the impugned order does not suffer from any legal infirmity. This petition is accordingly dismissed.