Criminal Misc. No. M-22013 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Misc. No. M-22013 of 2010 Date of decision:-10.5.2011 Pardeep Kumar ...Petitioner Versus Gopal Kanda and another ...Respondents 2. Criminal Misc. No. M-10694 of 2010 Mahabir Bagri and others ...Petitioners Versus State of Haryana and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. N.S. Sekhawat, Advocate for the petitioners. Mr. Kshitij Sharma, AAG Haryana (in CRM No.M-10694 of 2010). Mr. J.S. Bedi, Advocate for the respondents (in CRM No.M-22013 of 2010) and for respondent Nos.5 and 6 (in CRM No.M-10694 of 2010). RITU BAHRI J. This order shall dispose of both the aforesaid petitions as the same have arisen on the same facts. For the sake of convenience, the facts are being taken up from Criminal Misc. No. M-22013 of 2010. Criminal Misc. No. M-22013 of 2010 -2- This petition under Section 482 Cr.P.C. has been filed seeking quashing of order dated 04.5.2010 (Annexure P-1) passed by the learned Judicial Magistrate 1st Class, Sirsa whereby the prayer of the petitioner to send the complaint for lodging of FIR under Section 156(3) Cr.P.C. has been declined. On 03.4.2010 the residents of District Sirsa gave a call of 'Bandh' in Sirsa as a mark of protest against the electric power and water supply. The 'Bandh' was supported by the Indian National Lok Dal, the main opposition party in the State of Haryana. On 03.4.2010, the markets were closed and at some places in Sirsa, people were protesting against the electric power and water supply in Sirsa. At about 11 AM, the petitioner and others were sitting in Sharma Clinic, near Bhagat Singh Chowk, Sirsa. At that time, respondent No.1 Gopal Kanda, M.L.A. (State Minister) came in his official car in a convoy of police vehicles and other private vehicles. He got down from his car all of sudden accompanied by several police commondos and the other policemen, started hurling filthy abuses at the petitioner. Mr. N.S. Shekhawat, counsel for the petitioner submits that the police commondos and other policemen beat up the petitioner by giving fists and kicks. The clothes of the petitioner were torn. He was given beatings by the butts of their guns. Petitioner suffered serious injuries and cried for help. One person namely Mahabir Bagri, who was present there, he was beaten up by the police commondos. On hearing the cries of the petitioner other shopkeepers and persons started gathering around them. Respondent No.1 threatened everyone to go back and directed the police officials to lathi-charge the crowd. Counsel for the petitioner submits that he is in possession of video C.D. recorded during the said incident. On seeing the public anger, respondent Nos.1 and 2 decided to leave the place. The petitioner and other injured went to Criminal Misc. No. M-22013 of 2010 -3- Civil Hospital, Sirsa and respondent Nos.1 and 2 with their security men were already present there. The allegation is that on their instructions the Medical Officer declined to treat the petitioner. Thereafter the petitioner went to Choudhry Nursing Home, Janta Bhawan Road, Sirsa and got himself medico- legally examined. The MLR of the petitioner is Annexure P-3. On the next day, the matter was highlighted in the Print and Electronic Media. The TV footage aired by a news channel showed the minister using unparliamentary language against INLD men. A complaint was filed by the petitioner along with an application under Section 156(3) Cr.P.C. to the Chief Judicial Magistrate, Sirsa for ordering the investigation into the incident, was declined vide order dated 04.5.2010 (Annexure P-1). This petition has been filed for direction to send the complaint (Annexure P-2) for registration of case under Section 156(3) Cr.P.C. to the police. Mr. J.S. Bedi, learned counsel for the respondents has argued that the order dated 04.5.2010 (Annexure P-1) is revisable and the appropriate remedy for the petitioner would be to approach the learned Sessions Court by way of revision petition. An FIR bearing No.232 dated 03.4.2010 under Sections 148,149,323,382,307,506 IPC and Section 25 and 27 of the Arms Act as well as Section 2 of the Prevention of Insults to National Honour Act, 1971, Police Station Sirsa was registered at the instance of respondent No.2 and the investigation is going on in the said FIR. The police after investigating the complaint, filed by the petitioner found that no case is made out against the respondents. Mr. J.S. Bedi, Advocate further contends that the discretion exercised by the Magistrate is not giving any direction to the police to register FIR, is liable to be upheld in view of the judgment of the Allahabad High Court in Criminal Misc. No. M-22013 of 2010 -4- case of Sukhwasi versus State of U.P. 2008(1) RCR (Criminal) 520. Reference is made to the judgment of the Supreme Court in Nirmal Singh Kahlon versus State of Punjab and others 2009(1) RCR (Criminal) 3 to contend that registration of second FIR is not a bar. I have heard learned counsel for the parties and have gone through the case file carefully. Under Section 156(3) Cr.P.C. with regard to the power of Magistrate giving direction for registration of FIR or to proceed with the complaint is to be examined. Section 156(3) Cr.P.C. is reproduced as under:- “156(3) – Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.” In the present case one FIR has been registered on account of the incident, which occurred on 03.4.2010 on the information of respondent No.2. The investigation is going on in the said FIR. A complainant was moved under Section 156(3) Cr.P.C. by the petitioner to the Chief Judicial Magistrate, Sirsa for registration of a counter FIR arising out of the incident on 03.4.2010. The Chief Judicial Magistrate, Sirsa vide order dated 04.5.2010 decided to proceed with the complaint and direction to register the second FIR was declined. The Supreme Court had an occasion to examine the registration of two FIRs in T.T. Antony versus State of Kerala and others 2001 Supreme Court Cases (Criminal) 1048 there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. Only information about commission of a cognizable offence which is first entered in station house diary by officer in charge of the police station can be regarded as FIR under Section 154 Cr.P.C. Reference has been made to Ranvir Yadav versus State of Bihar AIR 1995 Supreme Court 1219 and Upkar Singh versus Ved Criminal Misc. No. M-22013 of 2010 -5- Parkash and others 2004 CRL.L.J. 4219 to contend that if concerned police refused to register a counter complaint, it is open to the Magistrate at any stage to direct the police to register the complaint brought to his notice and investigate the same. The separate investigation need not be carried out by registering the second FIR, which emerges from the same incident. It would be in the interest of justice that in the case of second complaint the proceedings are tagged together. The language of Section 156(3) Cr.P.C. is very clear. It gives the power to a Magistrate that he may order such investigation under Section 190 Cr.P.C. The omission of the word “shall” goes to show that there may be clear intention that the Magistrate has discretion in the matter and can in appropriate cases refuse to order registration. In the present case, the Magistrate has chosen to treat the application under Section 156(3) Cr.P.C. as a complaint. The Supreme Court in the case Suresh Chand Jain versus State of Madhya Pradesh 2001(1) RCR (Criminal) 335 has held that if a complaint is sent to police for investigation, it is not necessary to refer every complaint filed under Section 200 Cr.P.C. to the police for investigation under Section 156(3) Cr.P.C. The relevant paragraphs of the judgment are reproduced hereunder for the sake of reference:- “7. The investigation referred to therein is the same investigation the various steps to be adopted for it have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer-in-charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that Chapter can be commenced by the police even without the order of a magistrate. But that does not mean that when a Criminal Misc. No. M-22013 of 2010 -6- magistrate orders as investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence. But a magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he take cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code would convince that the investigation referred to therein is of a limited nature. The magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be dismissed from the culminating words in Section 202(1) i.e. “or direct an investigation to be made by a police officer or by such other persons as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding”. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him. 8. The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does no, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in-charge of the police station as indicated in Section 154 of the Code. Even if a Criminal Misc. No. M-22013 of 2010 -7- magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR regarding the cognisable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. 9. Though the learned Single Judge of the Punjab and Haryana High Court in Suresh Kumar versus State of Haryana (supra) made reference to two decisions rendered by this Court [Gopal Dass Sindhi and others versus State of Assam and another AIR 1961 SC 986 and Talu Ram and others versus Kishore Singh, AIR 1977 SC 2401] learned Single Judge fell into error in formulating a legal position which is quite contrary to the dictum laid down by this Court in the afore cited decisions. In Gopal Das Sindhi versus State of Assam (supra) a three-Judge Bench of this Court considered the validity of the course adopted by a judicial magistrate of the 1st Class in ordering the police “to register a case, investigate and if warranted, submit charge- sheet.” Learned Judges repelled the contention that the magistrate ought to have examined the complainant on oath under Section 200 of the Code. Dealing with the said contention their Lordships stated thus : “if the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complaint on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to 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. We are unable to construe the word 'may' in Section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the 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 Criminal Misc. No. M-22013 of 2010 -8- the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence: 10. In Talu Ram v. Kishore Singh (supra) a two-Judge Bench of this Court, after refering to the earlier decision, reiterated the same legal position. It is unfortunate that when this Court laid down the legal position so explicitly in the above two decisions which reached the notice of the learned Judge of the Punjab and Haryana High Court he had formulated a position contrary to it by stating that 'the Magistrate has no power within the contemplation of Section 156(3) of the Code, to ask for registration of the case.” It appears that the judicial officers under Punjab and Haryana High Court who were, till then, following the correct position, were asked by the learned Judge to follow the erroneous position formulated by him in the aforesaid judgment.” After going through the case law judgments of the Supreme Court this Court is of the view that the order dated 04.5.2010 does not suffer from any illegality as the Magistrate under Section 156(3) Cr.P.C. has the powers to examine the contents of the complaint and has refused to order investigation for registration of second FIR. He has proceeded with the complaint and the parties were directed to lead evidence. This order does not suffer from any illegality. The criminal miscellaneous petitions are hereby dismissed. 10.5.2011 ( RITU BAHRI ) Vijay Asija JUDGE