1 APL.1104-2011 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1104 OF 2011 B.D. Patel & Ors. ..Applicants. Vs. Veena Milind Shah & Anr. ...Respondents. ---- Mr. S.V. Marwadi, for the Applicants. Mr. S.K. Pathare, for the Respondent No.1. Mrs. P.H. Kantharia, A.P.P. for the State. ---- CORAM: V.M. KANADE & M.L. TAHALIYANI, JJ. DATE : NOVEMBER 21, 2011. P.C.:- 1. Heard learned counsel appearing on behalf of the applicants and learned counsel appearing on behalf of respondent no.1 and learned A.P.P. for the State. 2. By consent of the parties, the application is taken up for hearing forthwith. 2 APL.1104-2011 3. By this application, the applicants are challenging the order dated 2.8.2011 passed in Criminal Case No.70/SW/11. By the said order, the learned Magistrate was pleased to receive the report filed by the Police under Section 202 of Cr. P.C. and was pleased to direct the Investigating Officer not only to investigate the complaint bearing No.CC No.70/SW/11 but also to register offence in respect of subsequent complaint bearing CC No.SW/241/2011. 4. The brief facts of the case are as under: The complainant had filed a complaint vide CC No.70/SW/11 against the members of the Managing Committee in which allegations were made with regard to fabrication of various documents. In the said complaint, initially the learned Magistrate was pleased to direct the Police to investigate and submit the report by exercising powers vested in it under Section 202 of Cr. P.C. Thereafter, a second complaint was filed vide Case No. SW/241/11 by the same complainant against the same accused in which further allegations were made. It is submitted by the learned counsel for the applicants that the learned Magistrate had committed an error of law which is apparent on the face of record in passing the impugned order. It is 3 APL.1104-2011 firstly submitted that the first order could not have been passed by the Magistrate after having directed the Police to investigate the first complaint under Section 202 of Cr. P.C. It is secondly submitted that in the second complaint, after having recorded the verification of the complaint and after having taken cognizance of the offence, the learned Magistrate could not have directed the Police to register an offence U/Sec. 156(3) of Cr. P.C. In support of the said submissions, the learned counsel for the applicant has relied on the judgment of the Apex Court in the case of Devarapalli Lakshminarayanan Reddy Vs. Narayana Reddy [AIR 1976 SC 1672]. 5. On the other hand, the learned counsel for the complainant submitted that the complainant had not argued that both the complaints should be registered by the Police. It was submitted the learned Magistrate ought to have taken cognizance of the said offence. 6. In our view, there is much substance in the submissions made by the learned counsel for the applicants. It is settled position in law that the Magistrate while entertaining a private complaint under Section 190 of Cr. P.C. has two options, viz., either he may before taking cognizance of the offence direct the Police to register an offence and to investigate the 4 APL.1104-2011 same by issuing a direction under Section 156(3) of Cr. P.C. or alternatively he may himself take cognizance of the offence and thereafter direct the Police to investigate the complaint and submit a report in which case the report given by the Police is not binding on him, and he may still exercise his discretion to issue process. However, once having taken cognizance of the offence by recording the verification and after holding inquiry under Section 200 of Cr. P.C., it is not open for him to direct the Police to register an offence under Section 156(3) of Cr. P.C. 7. The Apex Court in the case Devarapalli Lakshminarayanan Reddy (Supra) has observed in paragraphs 12 and 13 of the said order as under: 12. 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 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; 5 APL.1104-2011 (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) ... .... ....” (13) 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 156(3) 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.” 8. This position is reiterated by the Apex Court in a recent judgment in the case of Mona Panwar Vs. Hon’ble High Court of Judicature at Allhabad through its Registrar and Ors. [ 2011 CRI L.J. 1619], and in paragraph 9 of the said judgment, the Apex Court has 6 APL.1104-2011 reiterated the position mentioned in earlier judgment. 9. Moreover, the learned Magistrate further should not have passed the impugned order in Criminal Case No.70/SW/11 in respect of registration of an offence in Criminal Case No.241/SW/2011, particularly after recording the verification in that case. The impugned order is, therefore, set aside, and the F.IR. bearing No.248/2011 which is registered by the Police pursuant to the said order is hereby quashed and set aside. Learned Magistrate may pass appropriate orders on the complaint after hearing the complainant. 10. Criminal Application is allowed and disposed of as such. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.)