Criminal Appeal No 219 of 1975 Appeal by special leave from the judgment and order dated the 20th October of the Andhra Pradesh High Court at Hyderabad in Criminal Misc
Petition No 1890 of 1975 P B Basi Reddy and AV V Nair for the appellants
M R K Chaudhary and B K Kanta Rao for respondent No 1 525 P Ram Reddy and P Parameshwara Rao for respondent Nos 2 and 3 The Judgment of the Court was delivered by SARKARIA J
Whether in view of Clause a of the First Proviso to s 221 of the Code of Criminal Procedure 1973 a Magistrate who receives a complaint disclosing an offence exclusively triable by the Court of Session is debarred from sending the same to the police for investigation under section 1563 of the Code is the short question is that falls to be determined in this appeal by special leave
The question arises in these circumstances Respondent 1 herein made a complaint on July 26 1975 before the Judicial Magistrate First Class Dharamavaram against the appellants herein alleging that
On account of factions existing village Thippapalli the appellants formed themselves into an unlawful assembly armed with deadly weapon such as axes spears and sticks on the night of June 20 1975 and entered the houses of several persons belonging to the opposite party attacked the inmates and forcibly took way jewels paddy ground nuts and other valuables of the total value of two lakhs of rupees
It was further alleged that the miscreants thereafter went to the fields and removed parts of machinery worth over Rs 40000  installed at the wells of their enemies
On these facts it was alleged that the accused had committed offences under sections 147 148 149 307 395 448 378 and 342 of the Penal Code
The offences under sections 307 and 395 are exclusively triable by the Court of Session
The Magistrate on receiving the complaint forwarded ii to the Police for investigation with this endorsement Forwarded under section 1563 Cr
Procedure Code to the Inspector of Police Dharmavaram for investigation and report on or before 5 8 1975
 The appellants moved the High Court of Andhra Pradesh by petition under section 482 of the Code of Criminal Procedure 1973 which corresponds to section 561 A of the old Code praying that the order passed by the Magistrate be quashed inasmuch as it was illegal unjust and gravely prejudicial to the petitioners
The learned Judge of the High Court
who heard the petition
 dismissed it by an order dated October 20 1975
Hence this appeal
Mr Basi Reddy appearing for the appellants contends that the High Court has afield to appreciate the true effect of the changes brought by the Code of 1973
According to the Counsel under the new Code is a complaint discloses an offence triable exclusively be court of Session the Magistrate is bound to proceed with that complaint himself before issuing process to the accused
The point pressed into argument is that clause a of the first Proviso to section 2021 the new Code peremptorily prohibits the Magistrate to direct investigation of such a complaint by the Police or any other person
The cases Gopal Da vs State of Assaml
Jamuna Singh vs Bhadai She 2 referred to by the High Court are sought to be distinguished 1 1961 AIR 191 section C 986 2 1964 5 S SCR 37
526 on the ground that they were decided under the old Code section 212 of which did not provide for any such ban as has been expressly enacted in the 1st Proviso to section 202 of the new Code
As against this Mr Ram Reddy whose arguments have been adopted by Mr Chaudahry submits that the powers conferred on the Magistrate under section 1563 of the Code are independent of his power to send the case for investigation under
section 22 of the Code that the power under section 156 3 can be invoked at a stage when the Magistrate has not taken cognizance of the case while section 202 comes into operation after the Magistrate starts dealing with the complaint in accordance with the Provisions of Chapter XV
It is urged that since in the instant case the Magistrate had sent the complaint for police investigation without taking such cognizance section 202 including the ar enacted therein was not attracted
In the alternative it is submitted that the ban in the 1st Proviso to section 202 becomes operative only when the Magistrate after applying his mind to the allegations in the com plaint and the other material including the statement of the complainant and his witnesses if any recorded under section 200 is prima facie satisfied that the offence complained of is triable exclusively by the Court of Session
The point sough to be made out is that a mere allegation in the complaint that the offence committed is one exclusively triable by the Court of Session does not oust the jurisdiction of the Magistrate to get the case investigated by the police or other person
The word appears according to Counsel imports a prerequisite or condition precedent the existence of which must be objectively and judicially established before the prohibition in the 1st Proviso to section 202 becomes operative
It is added that in the instant case the existance of this condition precedent was not and indeed could not he established
It appears to us that this appeal can be disposed of on the first ground canvassed by Mr Ram Reddy
Before dealing with the contention raised before us it will be appropriate to notice the relevant provisions of the old and the new Code
Section 156 of the Code of 1973 reads thus 1561
Any officer in charge of a police station may without the order of a Magistrate investigate any cognizable case Which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII
2 No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate 3 Any Magistrate empowered under section 190 may order such an investigation as above mentioned
 527 This provision is substantially the same as section 156 of the Code of A 1898 excepting that in sub section
1 for the words Chapter XV relating to the place of inquiry or trial the words Chapter XIII have been substituted
Sections 200 and 202 of the 1898 Code and the 1973 Code placed in juxtaposition read as follows 1898 Code section 200 A Magistrate taking cognizance of an offence on complaint shall at once examine the complaint and the witnesses present if any upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate Provided as follows a when the complaint is made in writing nothing herein contained shall be deemed to require a Magistrate to 
examine the complainant before transferring the case under section 192 aa when the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties b where the Magistrate is a Presidency Magistrate such examination may be on oath or not as the Magistrate in each case thinks fit and where the complaint is made in writing need not be reduced to writing
but the Magistrate may if he thinks fit before the matter of the complaint is brought before him require it to be reduced to writing c when the case has been transferred under section 192 and the Magistrate so transferring it has already examined the complainant the Magistrate to whom it is so transferred shall not be bound to re examine the complainant
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 1973 Code section 200 A Magistrate taking cognizance of an offence on complaint shall ex
mine 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 enquiry 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 which he is authorised to take cognizance or 528 which has been transferred to him under section 192 may if he thinks fit for reasons to be recorded in writing postpone the issue of process for compelling the attendance of the person complained against and either inquire into the case himself or if he is a Magistrate other than a Magistrate of the third class direct an inquiry or investigation to be made by any Magistrate subordinate to him or by a police officer or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint Provided that save where the complaint has been made by a Court no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200
2 If any inquiry or investigation under this section is made by a person not being a Magistrate or a Police officer
such person shall exercise all the powers conferred by this Code on an officer in charge of a Police station
except that he shall not have the power to arrest without warrant
2A Any Magistrate inquiring into a Case under this section may if he thinks fit take evidence of witnesses on oath
3 This section applies also to the police in the towns of Calcutta and Bombay
which has been made over to him under sec
192 may if he thinks 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 officer 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 the Magistrate that the offence complained of is triable exclusively by the Court of Session or b where the complaint has not been made by a Court unless the complaint and the witnesses present if any have been examined on oath under Section 200  2 If any 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 complainants to produce all his witnesses and examine them on oath
3 If an investigation under sub section I 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 incharge of a police station except the power to arrest without warrant
Before proceeding further we may have a look at section 190 of the new Code
This section is captioned Cognizance of offences by Magistrates
This section so far as it is material for our purpose n provides 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 may take cognizance of any offence a upon receiving a complaint of facts which constitute such offence 529 b upon a police report of such facts c upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed
2      It is well settled that when a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence
This is clear from the use of the words may take cognizance which in the context in which they occur cannot be equated with must take cognizance
The word may gives a discretion to the Magistrate in the matter
If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under section 1563 will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate he will be justified in adopting that course as an alternative to taking cognizance of the offence himself
This raises the incidental question What is meant by taking cognizance of an offence  by a Magistrate within the contemplation of section 190 This expression has not been defined in the Code
But from the scheme of the Code the content and marginal heading of section 190 and the caption of Chapter XIV under which sections 190 to 199 occur it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein
The was in which such cognizance can be taken are set out in clauses a b and c of Section 1901
Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action if any taken by the Magistrate
Broadly speaking when on receiving a complaint the Magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in Chapter XV of the Code of 1973 he is said to have taken cognizance of the offence within the meaning of section 190la
If instead of proceeding under Chapter XV he has in the judicial exercise of his discretion taken action of some other kind such as issuing a search warrant for the purpose of investigation or ordering investigation by the police under section 1563 he cannot be said to have taken cognizance of any offence
This position of law has been explained in several cases by this Court
the latest being Nirmaljit Singh Hoon vs The State of West Bengal and anr1
The position under the Code of 1898 with regard to the powers of a Magistrate having jurisdiction to send a complaint disclosing a cognizable offence whether or not triable exclusively by the Court of 1  36 833SCI76 530 Session to the Police for investigation under section 1563 remains unchanged under the Code of 1973
The distinction between a police investigation ordered under section 1563 and the one directed under section 202 has also been maintained under the new Code but a rider has been clamped by the 1st Proviso to section 2021 that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed he shall not make any direction for in vestigation
Section 1563 occurs in Chapter XII under the caption Information to the Police and their powers to investigate while section 202 is in Chapter XV which bears the heading Of complaints to Magistrates
The power It order police investigation under section 1563 is different from the power to direct investigation conferred by section 2021
The two operate in distinct spheres at different stages
The first is exercisable at the pre cognizance stage the second at the post cognizance stage when the Magistrate is in seisin of the case That is to say in the case of a complaint regarding the commission of a cognizable offence the power under section 1563 can be invoked by the Magistrate before he takes cognizance of the offence under section 1901a
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 pre cognizance stage and avail of section 1563
It may be noted further that an order made under 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 under section 1561
Such an investigation embraces the entire continuous process which begins with the collection of evidence under section 156 and ends with a report or chargesheet under section 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 under section 202 to direct within the limits circumscribed by that section an investigation for the purpose of deciding whether or not here is sufficient ground for proceeding 
Thus the object of an investigation under section 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
In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding but only for ordering an investigation under section 1563
He did not bring into motion the machinery of Chapter XV
He did not examine the complaint or his witnesses under section 200 Cr
PC which is the first step in the procedure prescribed under that Chapter
The question of taking the next step of that procedure envisaged in section 202 did not arise
Instead of taking cognizance of the offence he has
 in the exercise of his discretion sent the complaint for investigation by police under section 156
531 This being the position section 2021 1st Proviso was not attracted
A Indeed it is not necessary for the decision of this case to express any final opinion on the ambit and scope of the 1st Proviso to section 2021 of the Code of 1973
Suffice it to say the stage at which section 202 could become operative was never reached in this case
We have therefore in keeping with the well established practice of the Court decided only that much which was essential for the disposal of this appeal and no more
For the foregoing reasons we answer the question posed in the negative and dismiss this appeal
MR Appeal dismissed


Summary:
On receiving a complaint against the appellants for allegedly Committing offences under sections 147 148 307 395 448 378 and 342 IPC the Judicial Magistrate FC Dharmavaram forwarded it to the police under section 1563 Cr
PC for investigation The appellants filed an application in the High Court under section  against the Magistrate s order hut the same was dismissed
it was contended before this Court that the complaint included offences triable exclusively by the Sessions Court and under section 2021 Proviso la 1973 the Magistrate was prohibited from directing the police to investigate it that he was bound to proceed with it himself before issuing process to the accused
The appeal was inter alia contested on the ground that 
the powers conferred on the Magistrate under section 1563 of the Code are independent of his power to send the case for investigation under section 2021 af the Code
Section 1563 can be invoked before the Magistrate takes congnizace of the case but section 202 comes into operation only after he start dealing with the com Plaint in accordance with the provisions of Chapter XV
Dismissing the appeal of the Court  HELD 1 The power to order police investigation under  1563 different from the power to direct investigation conferred by section 2021 The two operate in distinct spheres at different stages
The first is exercisable at the re cognizance stage the second at the post cognizance stage when the Magistrate is in seisin of the case
An investigation under section 202 is for the purpose or deciding whether or not there is sufficient ground for proceeding
its 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 stage at which section 202 could become operative was never reached in this case
530 H 531B 2 When on receiving a complaint the Magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in chapter XV of the Code of 1973 he is said to have taken cognizance of the offence within the meaning of section 190la
If instead of  proceeding under Chapter XV
he has in the exercise of his discretion taken action of some other kind he cannot be said to have taken cognizance of any offence
526D G Nirmaljit Singh Hoon 
The State West Bengal ond Anr
1973 3 section 53 referred to