*THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY +WRIT PETITION No.24845 of 2005 %Date:17-01-2008 #D.K.Pattanaik and another. … Petitioners Vs. $The Station House Officer, Nallabelly Police Station, Nallabelly Mandal, Warangal District and another. … Respondents !Counsel for the petitioners : Sri M.Ravindranath Reddy. ^Counsel for respondents : G.P. for Home for R.1. Sri Mummaneni Srinivas Rao for R.2 <Gist: >Head note: ?Cases referred: 1. (1977) 4 SCC 459 2. (2006) 1 SCC 627 3. 1992 Suppl (1) SCC 335 4. (2005) 13 SCC 540 5. (2002) 3 SCC 89 6. WP 20470 OF 2006 AND BATCH DT.19-7-2007 7. (2000) 3 SCC 693 THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.24845 of 2005 Date:17-01-2008 Between: D.K.Pattanaik and another. … Petitioners AND The Station House Officer, Nallabelly Police Station, Nallabelly Mandal, Warangal District and another. … Respondents Counsel for the petitioners : Sri M.Ravindranath Reddy. Counsel for respondents : G.P. for Home for R.1. Sri Mummaneni Srinivas Rao for R.2 HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO.24845 of 2005 ORDER: Accused Nos.1 and 2 in Crime registered under FIR No.78 of 2005 of Nallabelli Police Station, Warangal District, for the offence punishable under Section 420 IPC, filed this Writ Petition seeking invalidation of action of Judicial I Class Magistrate, Narasampet in forwarding the complaint of respondent No.2 to respondent No.1 for investigation and the consequential action of respondent No.1 in registering the crime. The petitioners also seek restraint order on respondent No.1 from proceeding with the investigation by quashing FIR dated 3-11-2005. The facts to the extent they are relevant are stated hereunder: Petitioner No.2-Hindusthan Petroleum Corporation Ltd., (for short “the Corporation”), which is a fully owned Government Company, is engaged in the business of refining and marketing of petroleum products, such as, Motor Sprit (MS), High Speed Diesel (HSD), Liquefied Petroleum Gas (LPG), Lubricants (Lubes) etc., through out the country. It carries on its business of selling the said products through its dealers, who are selected through a selection process. For the purpose of selecting its dealers, the Corporation laid down selection guidelines. Petitioner No.1 is the Chief Regional Manager (Retail) of the Corporation. In order to appoint some dealers, the Corporation issued notification dated 18-11-2003, whereunder it invited applications from the eligible candidates for awarding retail outlet dealerships at different places. Chegunta of Medak District is one such place, which is notified for this purpose. The said dealership was reserved for Scheduled Caste candidates. Respondent No.2 is one of the applicants for the said dealership and the Corporation issued call letter dated 29-7-2005, wherein he was asked to appear for interview before the Interviewing Committee at 9-30 AM on 18-8-2005 along with all the originals. Along with the call letter, the Corporation sent a brochure with the title “Guidelines for Selection of Retail Outlet Dealers”. The said brochure also contains the guidelines for awarding marks. In pursuance of the said call letter, respondent No.2 appeared before the Interviewing Committee on 18-8-2005, but he was unsuccessful in getting selected. The Committee selected a person, by name, Sri K.Bhaktapal. On coming to know about the non-selection of respondent No.2, he approached the Corporation through his representations dated 29-7- 2005 and 22-8-2005, wherein he complained that the Selection Committee failed to award marks as per the Corporation’s guidelines in his favour for holding Law Degree, land, infrastructure and capital. In response to the said representations, the Corporation wrote letter dated 5-9-2005 wherein they called upon respondent No.2 to substantiate his grievances with reference to the documentary evidence. On receiving the documents sent by respondent No.2, the Corporation appointed petitioner No.1 as Investigating Officer to investigate into the allegations made by respondent No.2. In the affidavit filed in support of the Writ Petition, the petitioners averred that from a news item published by a Telugu daily newspaper on 06-11-2005, they came to know that the learned Munsif Magistrate, Narasampet, registered a criminal case against petitioner No.1 and other officers of the Corporation for the offence of cheating and, thereafter, they obtained copy of First Information Report (FIR) dated 3-11-2005. The petitioners further averred that the contents of FIR, which was registered by respondent No.1 discloses that the grievance of respondent No.2 was that as against 15 marks, which shall be awarded for higher educational qualification (Law Degree), he was awarded only 8 marks and that though the Interviewing Committee had the power and discretion to award only to the extent of 40 marks towards educational qualification, capability to generate business, age, experience, business ability, personality in the case of candidates belonging to Scheduled Castes and Scheduled Tribes, they gave marks in excess of 40 in favour of the selected candidate and, thereby, the Interviewing Committee cheated respondent No.2. Initially, the petitioners sought for issuance of a Writ of Mandamus to declare the action of respondent No.1 in registering the Criminal Case against petitioners on 3-11-2005 and for quashing of the said case. At the stage of hearing and having regard to the objection raised by respondent No.2 that the petitioners cannot maintain this Writ Petition without questioning the order of the jurisdictional Magistrate in referring the complaint to the Police for investigation under Section 156(3) of the Code of Criminal Procedure (for short “Cr.P.C”), the petitioners filed an application for amendment, which, after hearing the counsel for both sides, was allowed by this Court on 3-10-2007. By way of amendment, the petitioners sought for invalidation of the action of the learned Judicial I Class Magistrate, Narsampet, in forwarding the complaint of respondent No.2 to respondent No.1. In the affidavit filed in support of the Writ Petition, the petitioners averred that the jurisdictional Magistrate committed a grievous error in referring the complaint to the Police for investigation without any application of mind to the contents of the complaint and that even if the allegations in the complaint are accepted on their face value, they do not constitute any offence under Section 420 IPC as the two ingredients required for constituting an offence under the said provision, viz., deception and dishonest intention to do or omit to do something are not satisfied. At the hearing, Sri M.Ravindranath Reddy, learned counsel for the petitioners, apart from reiterating the above two grounds, also submitted that the learned Judicial I Class Magistrate, Narasampet, has no territorial jurisdiction to entertain the complaint and forward the same to respondent No.1 for investigation. According to him, no part of the offence was allegedly committed within the territorial jurisdiction of the said Court and, therefore, the said Court has no jurisdiction to receive and act on the said complaint. Though no specific contention is raised in this regard in their pleadings, since this contention relates to jurisdictional issue, I felt it appropriate to consider the said contention and in order to afford an opportunity to the learned counsel for respondent No.2 to get prepared to reply to the said contention, I enquired from him whether he required any time for this purpose. Sri M.Srinivasa Rao, learned counsel representing respondent No.2, stated that the case need not be adjourned for that purpose. Accordingly, I proceeded to hear the case. Sri M.Ravindranath Reddy, the learned counsel for the petitioner submitted that the learned Judicial First Class Magistrate, Narsampet had no jurisdiction to entertain the complaint as he had no territorial jurisdiction. The learned Magistrate, contends the counsel, is duty bound to apply his mind before referring the complaint to police under Section 156(2) of Cr.P.C. and that his order does not disclose any such application of mind. He further contended that the allegations in the complaint, taken on their face value does not disclose commission of any offence and that therefore, the FIR is liable to be quashed. Sri Mummaneni Srinivasa Rao, the learned counsel for respondent No.2 submitted that the writ petition is premature since the case is still under investigation stage. He further contended that the petitioner failed to file the order of the Magistrate in pursuance of which the criminal case is registered by respondent No.2. He also contended that the allegations contained in the complaint prima facie disclose commission of offence and hence this court may not exercise its extra ordinary jurisdiction to quash the complaint. From the pleadings and the submissions of the learned counsel for the petitioner and respondent No.2, the following points arise for consideration: 1) Whether the learned Judicial I Class Magistrate, Narasampet, has territorial jurisdiction to entertain the complaint filed by respondent No.2? 2) Whether the jurisdictional Magistrate is required to prima facie satisfy himself that a cognizable offence has taken place before exercising his power under Section 156(3) Cr.P.C. and, if so, whether the learned Judicial I Class Magistrate, Narasampet arrived at such a satisfaction before referring the case to Police for investigation? and 3) Whether the action of the learned Judicial I Class Magistrate, Narasampet, in referring the case to respondent No.1 for investigation and the consequential action of registration of crime against the petitioners are liable to be declared as illegal and invalid? Re Point No.1: Section 177 Cr.P.C. envisages that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Under Section 190 Cr.P.C., any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf under sub-Section (2) may take cognizance of any offence in accordance with the provisions of Clauses (a) to (c) of the said provision. Under Section 14, subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits to the areas within which the Magistrates appointed under Section 11 or under Section 13 may exercise all or any of the powers with which they may respectively be invested under the Code. Sub-Section (2) of Section 14 prescribes that unless otherwise defined, the jurisdiction and powers of every such Magistrate shall extend throughout the district. Under sub-Section (1) of Section 156 Cr.P.C., the powers of a Police Officer to investigate any cognizable offence is coextensive with the powers of the Magistrate to enquire into or try a cognizable criminal case as regards the jurisdiction over the local area. The above mentioned provisions, thus, clearly indicate that the jurisdiction of a Magistrate is confined to a defined territorial area and if his jurisdiction is not specifically fixed by the Chief Judicial Magistrate, subject to the control of the High Court, the same will extend throughout the district. This would necessarily mean that unless a Magistrate is specifically empowered to enquire and try the offences committed beyond the territorial limits of a district, his territorial jurisdiction is either limited to the area specified within the district or in the absence of such specification it will not extend beyond the district. It is not the case of Respondent No.2 that the jurisdiction of the Judicial First Class Magistrate is fixed beyond Warangal district. A careful reading of the complaint filed by respondent No.2 before the learned Judicial I Class Magistrate shows that in response to the call letter issued by the Corporation he attended the interview on 18- 8-2005 at 9-30 AM and the Interviewing Committee cheated him by calling for interview conducted at Secunderabad and, thereby, he incurred an expenditure of Rs.9,000/- for applying for and attending the interview. Respondent No.2 also alleged that marks were not properly awarded by the Interviewing Committee. In the FIR registered by respondent No.1, against Col.5 – “Place of occurrence, (a) direction and distance from P.S” it was written in Telugu as “Western side, 150 K.Ms”; and against Col.5(b) – ‘Address’ – it was written as ‘Secunderabad’. It is, therefore, clear from the contents of the complaint and the FIR that it is the admitted case of respondent No.2 that the alleged offence had taken place at Secunderabad where the Selection Committee met and interviewed respondent No.2 and it is not even faintly alleged that any part of the offence was committed within the territorial limits of the Court of Judicial Magistrate of I Class, Narasampet or for that matter within Warangal district. It is indeed interesting to notice from the record produced by the learned Government Pleader for Home that on presentation of the complaint before the learned Magistrate, Narasampet, the same was returned by the Magistrate on 3-10-2005 with the following endorsement: “Returned on 3-10-05: State how this complaint is maintainable for the offence u/s.420 IPC and jurisdiction. Sd/xxxxxx JFCM”. It was resubmitted with the following endorsement: “Re-submitted: The complaint is maintainable u/sec.420 IPC as the complainant stated in the complaint and for jurisdiction u/sec.182(1) of IPC. Call at Bench. Sd/xxxx Advocate for complainant, 5-10-2005”. The office then made the following endorsement: “Sir, Objection not complied. However, the advocate for the complainant has endorsed that ‘call at bench’ ”. Thereupon, the complaint was entertained by the Magistrate and referred the same to respondent No.1 under Section 156(3) Cr.P.C. for investigation. From the above reproduced endorsements contained in the Court proceeding sheet, it appears that the counsel for respondent No.2 relied upon the provisions of 182(1) Cr.P.C., which reads as under: “Any offence which includes cheating may, if the deception is practised by means of letters or telecommunication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or were received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person”. In my considered view, Section 182(1) Cr.P.C., has no application on the facts of this case. In the complaint, respondent No.2 has not specifically pleaded what are the letters or telecommunication messages, by means of which deception is allegedly practised by the petitioners and if there are any such letters or communications, whether they were received within the territorial limits of the jurisdiction of the Magistrate of Narasampet. Not only that, no such allegations were made, but, as already noted above, in the FIR the place of occurrence was mentioned as ‘Secunderabad’ which is admittedly outside the territorial jurisdiction of the Judicial Magistrate of I Class, Narasampet. I have, therefore, no hesitation to hold that the Judicial I Class Magistrate, Narasampet, had no territorial jurisdiction to receive and forward the complaint filed by respondent No.2 to respondent No.1 for investigation. Under Section 201 Cr.P.C., if the complaint is made to a Magistrate, who is not competent to take cognizance of the case, he shall, if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; and if the complaint is not in writing, he shall direct the complainant to the proper Court. Having raised the issue of jurisdiction, it is not known why the learned Judicial I Class Magistrate, Narasampet, has not followed the provisions of Section 201 Cr.P.C., in the absence of anything on record to show that he was satisfied with the endorsement made by the learned counsel for respondent No.2 while re-submitting the papers. Point No.1 is answered accordingly. Re Point No.2: Sri M.Ravindranath Reddy, learned counsel for the petitioners, contended that before referring the complaint for investigation under Section 156(3) Cr.P.C., the jurisdictional Magistrate shall apply his mind and be prima facie satisfied that a cognizable offence is made out from the allegations contained in the complaint. In support of his contention, he relied upon the judgments of the Supreme Court in TULA RAM v. KISHORE SINGH[1] and MOHD. YOUSUF v. AFAQ JAHAN[2]. Section 190 Cr.P.C., empowers the jurisdictional Magistrate to take cognizance of any offence – (a) upon receiving a complaint of facts which constitute such offence; (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 an offence has been committed. Under Section 200 Cr.P.C., the Magistrate taking cognizance of an offence shall examine 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. This is, however, subject to two exceptions envisaged in Clauses (a) and (b) of the proviso to the said Section where the complaint is made by a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Under Section 202 Cr.P.C., the Magistrate, on receipt of the complaint, if he thinks fit, may 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, subject, however, to two exceptions, viz., (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 complainant and the witnesses present (if any) have been examined on oath under Section 200. Under Section 156(3) Cr.P.C., any Magistrate empowered under Section 190 Cr.P.C., may order such an investigation to be made by the Police Officer into a cognizable offence. On a careful examination of the above mentioned provisions, we can find that there are two stages where the Magistrate can order for investigation by the Police. The first stage is pre-cognizance stage and the second stage is post-cognizance stage. When a complaint is received under Section 190 Cr.P.C., the Magistrate before taking cognizance can refer the same for investigation by Police under Section 156(3) Cr.P.C. This is pre-cognizance stage. However, after taking cognizance also, in order to decide whether or not there is sufficient ground for proceeding further, the Magistrate can refer the complaint for investigation by Police. At the pre-cognizance stage if the Magistrate was satisfied that a cognizable offence was made out, there was no necessity for him to direct any investigation by the Police. Similarly, where the Magistrate is satisfied that the allegations in the complaint do not disclose commission of any offence, no further question arises and he will refuse to take cognizance. The need for investigation by police is necessary only in cases where the Magistrate is prima facie satisfied that the allegations contained in the complaint point to the commission of an offence, but they require further investigation to enable him to finally decide whether to take cognizance of the offence or not. The Magistrate is therefore bound to apply his mind to know whether there are grounds to straightaway take cognizance of the offence under Section 190 Cr.P.C., or refuse to take cognizance or to direct investigation of further facts before taking cognizance by exercising power under Section 156(3) Cr.P.C. Without application of mind, the Magistrate cannot decide which of the above mentioned three courses, as open to him, should be adopted. In TULA RAM (1 supra), the Supreme Court examined, whether reference of complaint to the Police for investigation by itself constitutes act of taking cognizance by the Magistrate, and held thus: “It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter – proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, 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 the investigation, he cannot be said to have taken cognizance of the offence”. (emphasis added) The Supreme Court referred to its earlier judgment in JAMUNA SINGH V. BHADAI SAH – AIR 1964 SC 1541 – and extracted the following portion in the said judgment: “ It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offence mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under Section 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence”. Though the two judgments of the Supreme Court referred to above have not directly dealt with the question whether the Magistrate is required to apply his mind for ordering investigation under Section 156(3) Cr.P.C., the above reproduced paragraphs contained in the said judgments nevertheless suggest by implication that the Magistrate is bound to apply his mind even for the purpose of ordering investigation under Section 156(3) Cr.P.C. On a careful consideration of the Scheme of the Code and the above mentioned judgments, I am of the view that even for ordering investigation by Police under Section 156(3) Cr.P.C., the Magistrate cannot act merely as a post office and he is bound to apply his mind before so doing. The endorsement of the Magistrate, by which he directed the Police to investigate the complaint, does not show that there was any application of mind whatsoever. There is nothing to suggest therein whether he felt that the allegations, prima facie, made out an offence alleged and a further investigation is required or not. For this purpose, in my considered view, the Magistrate is bound to disclose his mind by a brief indication of the reason for ordering such an investigation. Otherwise, it is not possible to know whether the Magistrate has mechanically forwarded the complaint to the Police or he had done so after application of mind. For the above mentioned reasons, I hold that before a Magistrate orders for investigation by Police under Section 156(3) Cr.P.C., he has to apply his mind to know whether the allegations in the complaint, prima facie, make out a case. I further hold that the learned Judicial Magistrate of I Class, Narasampet, failed to apply his mind before referring the complaint to Police for investigation. The second point is ordered accordingly. Re Point No.3: The scope of Judicial intervention by the High Courts in exercise of their extraordinary powers under Article 226 of the Constitution of India or inherent powers under Section 482 Cr.P.C., is well delineated by the Apex Court in a plethora of judicial precedents. In STATE OF HARYANA & OTHERS V. BHAJAN LAL & OTHERS[3], the Supreme Court laid down broad guidelines in this regard and they are as follows:- “1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence,