1 IN THE COURT OF S. K. SARVARIA ADDL. SESSIONS JUDGE & INCHARGE ROHINI COURTS: DELHI [CASE NUMBER] M/s [ENTITY], A Partnership Firm Through Partners Manmohan Singh and Jasbir Singh OFF At: C/o Prince Egg Mart, A53, Indra Nagar, Near Adrash Nagar, delhi110033. Revisionist VERSUS 1. Sh. [ENTITY], Director of M/s Arti Poltry Fees (P) Ltd Office At: 99/3 Village Alipur, Delhi110036. 2. M/s [ENTITY] Office At: 99/3 M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc 2 Village Alipur, Delhi110036. Through its Director Respondent Date of Institution: 20.01.2011 Date of reserving order: 09.02.2011 Date of pronouncement : 11.02.2011 : ORDER :
1. The present revision petition under [SECTION]/[SECTION] of the [ACT] is filed against the order dated 16.09.2010, passed by Ld. Metropolitan Magistrate whereby the learned trial court refused to give directions for registration of FIR, thereby declining the request/application for investigation under [SECTION] [ACT].
2. Along with, the present petition an application under [SECTION] of [ACT] is filed. In the interest of justice, the delay of 34 days in filing revision petition is condoned.
The petitioner filed a complaint under [SECTION] [ACT] against the respondent for offences under [SECTION] of [ACT]. He has prayed for taking cognizance by the court and proceeding against M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc accused persons for the said offences. Along with the complaint, the petitioner has filed an application under [SECTION] [ACT] for direction to the police for registration of FIR and investigation of the case which was declined by the learned MM by impugned order. Aggrieved by the said order, the present revision petition is filed by the petitioner.
3. The contention of counsel for the revisionist was that the learned trial court did not properly appreciate the facts of the case. He submitted that the Ld. Trial Court erred in not considering that the facts disclosing commission of a cognizable offence and thus calls for registration of FIR as mandated by the various decisions of the Apex Court and decisions of our Delhi High Court.
He contended that thus, the impugned order deserves to be set aside. Reliance is placed upon [PRECEDENT]. Some other authorities are mentioned in the petition but these are not produced.
4. I have heard Ld. Counsel for the revisionist and have perused the trial court record.
The scheme of [ACT] is such that an officer in charge of a police station has to initate investigation as provided in [SECTION] or [SECTION] [ACT] on the basis of entry of the first M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc information report, on receiving the information of the commission of a cognizable offence. From the plain reading of [SECTION] [ACT], It is, manifestly clear that if any information disclosing a cognizable offence is made before an officer in charge of a police station satisfying the requirements of [SECTION] of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form to register a case on the basis of information. Pertaining to cognizable offence. But when the Police Officers do not register a case disclosing commission of a cognizable offence and complaint in this regard is made to the Magistrate, then under [SECTION] [ACT], the Magistrate empowered under [SECTION] [ACT] 'may' order investigation. The expression used herein is 'may' and not 'shall' or 'must'. The expression 'shall' or 'must' implies that the provision is mandatory and expression 'may' implies that the provision is directory. The expression 'may' gives discretion to the Magistrate. In this regard, the following decision of the Apex Court in [PRECEDENT] is apposite to be referred to, the relevant para is as under:
"13. It is well settled that when a Magistrate M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc 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] 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.
14. This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of [SECTION]? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of [SECTION] and the caption of [SECTION] under which [SECTION] 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 ways in which such cognizance can be taken are set M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc out in [SECTION]. 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] and the succeeding sections in [SECTION] of the [ACT], he is said to have taken cognizance of the offence within the meaning of [SECTION]. If, instead of proceeding under [SECTION], he, has in th 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], he cannot be said to have taken cognizance of any offence.
15. This position of law has been explained in several cases by this Court, the latest being [PRECEDENT].
16. 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 Session to the Police for investigation under [SECTION], M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc remains unchanged under the [ACT].
The distinction between a police investigation ordered under [SECTION] and the one directed under [SECTION], has also been maintained under the new Code; but a rider has been clamped by the 1st Proviso to [SECTION] 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 investigation.
17. [SECTION] occurs in [SECTION], under the caption: "Information to the Police and their powers to investigate"; while [SECTION] is in [SECTION] which bears the heading "Of complaints to Magistrate". The power to order police investigation under [SECTION] is different from the power to direct investigation conferred by [SECTION]. 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, 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] can be invoked by the Magistrate before he takes cognizance of the offence under [SECTION]. But if he once takes such cognizance and embarks upon the procedure embodied in [SECTION], he is not competent M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc to switch back to the precognizance stage and avail of [SECTION]. It may be noted further that an order made under [SECTION], is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under [SECTION]. Such an investigation embraces the entire continuous process which begins with the collection of evidence under [SECTION] and ends with a report or charge sheet under [SECTION]. On the other hand, [SECTION] comes in at a stage when some evidence has been collected by the Magistrate in proceedings under [SECTION], 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] 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 under [SECTION] 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."
Furthermore, in Jamuna Singh v. [ENTITY], A.I.R. 1964 SC 1541, it was observed as under:
M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc "[SECTION](1) of the [ACT] contains the provision for cognizance of offences by Magistrates. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts that is, facts constituting the offence made by any police officer; the third is upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion that such offence has been committed.
In the case before us the Magistrate after receipt of [ENTITY]'s complaint proceeded to examine him under [SECTION] of the [ACT]. That Section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under [SECTION] of the [ACT] puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by [SECTION] the Magistrate could have issued process at once under [SECTION] of the [ACT] or could have dismissed M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc the complaint under [SECTION] of the [ACT]. It was also open to him, before taking either of these courses, to take action under [SECTION] of the [ACT]. That Section empowers the Magistrate to 'postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint'. If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under [SECTION] of the [ACT].
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 under [SECTION] of the [ACT]. Once however he took cognizance he could order investigation by the police only under [SECTION] of the [ACT] and not under [SECTION] of the [ACT]. As it is clear here M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc from the very fact that he took action under [SECTION] of the [ACT], that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under [SECTION] of the [ACT] and not under [SECTION] of the Code."
In [PRECEDENT] it has been observed as under:
"The provisions of [SECTION] do not mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. The word `may' in the reason is obvious. A complaint disclosing cognizable offences may well justify the Magistrate in sending the complaint, under [SECTION] 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 discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by [SECTION] of the Code."
When a Magistrate applies his mind not for the M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc purpose of proceeding under the various sections of [SECTION] but for taking action of some other kind, e.g., ordering investigation under [SECTION] or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence."
5. The said judgments, only suggests that if a complaint discloses commission of a cognizable offence then investigation may be handed over to the police but does not direct that same should be the only course adopted by the Magistrate.
6. The position is thus clear. Any judicial Magistrate, before taking cognizance of the offence, can order investigation under [SECTION] of the Code. If he does so, he has not to examine the complainant on oath because he was not taking cognizance of any offence therein. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. Thus, merely because the Magistrate chose one of the two courses while exercising his discretion would not mean that he has acted out of law.
7. This aspect has been properly explained by our Delhi High Court in Smt Meenakshi Anand Sootha Vs State 2007(4) M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc JCC 3230 Delhi, the learned Metropolitan Magistrate dismissed the application under [SECTION] [ACT] for giving direction to SHO to investigate the matter and instead took cognizance of the offences and proceeded with the complaint case of the complainant. On these facts the following observations were made by our Hon'ble High Court :
"10. It is well settled that under [SECTION] [ACT], the Magistrate has not to pass the order mechanically and has to apply his judicial mind. On this point, decision of this court, M/s. [PRECEDENT], may be referred to in which it was held:
" It is true that [SECTION] [ACT] of the Code empowers to Magistrate to direct the police to register a case and initiate investigation but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass order under [SECTION] of the Code. This discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the court and interest of justice demand that the police should step in to help the complainant"
11. Here in the present case, all the evidence which are in the form of oral testimony, is in the knowledge of the complainant and her witnesses. The only documentary evidence, ie MLC, prima facie appears to be not connected with the present case, is also with the complainant herself. Under these circumstances, I do not find any illegality or infirmity in the impugned order passed by the Metropolitan Magistrate and it is still open for the petitioner to prove her case which is pending, in accordance with law."
In [PRECEDENT], our Hon'ble High Court has reiterated the legal position thus:
" It is not that in every case merely on asking of the petitioner the Court must direct registration of an FIR unless the Court is satisfied with the preliminary evidence which is to be submitted by the M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc complainant that an FIR must be registered ".
Recently in '[PRECEDENT], our Hon'ble High Court has held as under : "11. The use of the expression 'may' in [SECTION] of the Code leaves no doubt that the power conferred upon the Magistrate is discretionary and he is not bound to direct investigation by the Police even if the allegations made in the complaint discose commission of a cognizable offence. In the facts and circumstances of a given case, the Magistrate may feel that the matter does not require investigation by the Police and can be proved by the complainant himself, without any assistance from the Police. In that case, he may, instead of directing investigation by the Police, straightway take cognizance of the alleged offence and proceed under [SECTION] of the Code by examining the complainant and his witnesses, if any. In fact, the Magistrate ought to direct investigation by the Police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc the Police. The Magistrate is not expected to mechanically direct investigation by the Police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the Police under [SECTION] of the Code. Of course, if the allegations made in the complaint require complex and complicated investigation of which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the Police. The Magistrate is therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police."
8. Be that as it may, the very fact that the revisionist filed a complaint under [SECTION] [ACT] and also an application under [SECTION] [ACT] clearly goes on to show that he himself had put forth two simultaneous mutually exclusive reliefs before the Ld. MM and M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc now when the Ld. MM took cognizance under [SECTION] [ACT] to proceed under [SECTION] [ACT] and rejected the application under [SECTION] [ACT], the revisionist cannot turn turtle and claim that the order made by the Ld. MM was arbitrary and without application of mind.
9. Hence, from the above discussion, it is manifest that the Ld. MM committed no illegality and exercised his discretion as bestowed under the provisions of the [ACT]. In the light of the above discussion, there is no merit in the present revision petition.
Hence, interference in order of learned Metropolitan Magistrate is not warranted.
10. In view of the above discussion, the revision petition is dismissed as the impugned order dated 16.09.2010 does not suffer from any illegality, material irregularity or impropriety. The order be sent to the server (www delhidistrictcourts.nic.in). The trial court record be returned along with the copy of this order. The file of the revision be consigned to the record room.
Announced in the open ([ENTITY] ) Court on 11.02.2011 ADDL. SESSIONS JUDGE & INCHARGE ROHINI COURTSVIII, DELHI M/s Prince Layer cum Hatchery Farm Vs [ENTITY] etc