IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Revision No. 189 of 2010 (O&M) Date of decision: 30.3.2010 Naresh Batra and another ......Petitioners Vs. Union Territory Chandigarh and another ...Respondents CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.R.S.Rai,Sr. Advocate with Mr.A.D.S.Sukhija, Advocate, for the petitioners. Mr.Kulbir Dalel Advocate for Mr.Hemant Bassi, Advocate for U.T.Chandigarh. Mr.J.S.Bedi, Advocate, for respondent No.2. **** ORDER The present revision petition has been filed against the order dated 12.1.2010 passed by Additional Sessions Judge, Chandigarh, vide which the revision petition filed by respondent No.2 has been allowed. A criminal complaint was filed by Vikram Batra son of Dr.Mahesh Batra (respondent No.2 herein) before the Judicial Magistrate Ist Class/Illaqa Magistrate, Chandigarh against the present petitioners namely, N.K.Jain, Advocate and Naresh Batra, who vide his order dated 15.4.2004 passed the following : “ Complaint received. SHO PS, Sector 19, Chandigarh is directed to investigate and report for 18.5.2004 on filing of copy of Crl.Revision No. 189 of 2010 [2] complaint.” During the pendency of the investigation, the complainant moved an application before the Illaqa Magistrate for issuance of direction to SHO PS Sector 19 to register an FIR as per provisions of Section 156(3) Cr.P.C. The trial Court vide order dated 8.6.2004 dismissed the application with the finding that the complaint was sent to the SHO after taking cognizance and not under the provisions of Section 156(3) Cr.P.C. The order of the trial Court dated 8.6.2004 is reproduced as under: “ In the present case the complainant was instituted under Sections 420/406/467/466 IPC and the undersigned directed the investigation to be carried out and to submit the report and the learned counsel for the complainant has moved an application that the police was bound to register FIR and then to carry out the investigation and in support of his contentions he has placed reliance upon pronouncement of our own Punjab and Haryana High Court in case titled Karnail Singh v. State of Haryana (2004)1 RCR (Criminal) 52. I am afraid that the citation relied upon by the learned counsel for the complainant is not applicable to the present case as no specific order was passed for registration of the case under Section 156(3) Cr.P.C., the undersigned took the cognizance of the complaint and thereafter sought the report from the concerned police station. I disagree with the request made by the learned counsel for the complainant that the investigating agency was bound to Crl.Revision No. 189 of 2010 [3] first register the FIR. The request directing the Investigating Agency to first register the FIR and then to carry out the investigation is declined. The Investigation Agency has sought time. As such, adjourned to 18.8.2004 for awaiting report.” Thereafter, a report was submitted by the police that no case was made out and vide order dated 18.8.2004 the Illaqa Magistrate directed the complainant to produce preliminary evidence which is reproduced as under: Report has been received, that no offence is made out. Complainant is present who has stated at bar that IO has not conducted complete and fair investigation. He is advised to approach the concerned head of the department. Complainant is ordered to be registered. Now to come up on 6.12.2004 for preliminary evidence.” The complainant-respondent No.2 challenged the order of trial Court before the revisional Court whereby the application for directing the police to register an FIR was declined. The revisional Court while setting aside the order of the trial Court, directed the trial Court to issue direction to the police under Section 156(3) Cr.P.C. The relevant portion of the directions issued by the revisional Court vide order dated 1.6.2006, are reproduced as under: “ Accordingly the revision petition is allowed and the impugned order passed by the learned Area Magistrate on 8.6.2004 is set aside and it is ordered that the order Crl.Revision No. 189 of 2010 [4] passed by the learned Area Magistrate on 15.4.2004 by referring the complaint to the SHO of Police Station Sector 19, Chandigarh, will be treated as an order under Section 156(3) Cr.P.C. Accordingly the learned Area Magistrate is directed to send the complaint to the SHO Police Station Sector 19, Chandigarh for investigation and report under Section 156(3) Cr.P.C. A copy of the order along with the lower Court record be sent back for necessary action.” The order dated 1.6.2006 passed by Addl. Sessions Judge, Chandigarh was challenged by the petitioners herein in the High Court. The High Court vide order dated 31.7.2009 set aside the order dated 1.6.2006 and remanded the case to the learned Addl. Sessions Judge, Chandigarh for fresh decision in accordance with law after affording opportunity of hearing to both the parties. The relevant directions issued by this Court vide order dated 31.7.2009 are as under: “ The revision petition is accordingly allowed. Impugned order dated 1.6.2006 (Annexure P-1) passed by learned Additional Sessions Judge is set aside and the case is remanded to learned additional Sessions Judge for fresh decision of the revision petition, which was filed before him, in accordance with law, after affording opportunity of hearing to both the parties.” The revisional Court after hearing both the parties, allowed the Crl.Revision No. 189 of 2010 [5] revision petition in favour of respondent No.2-complainant vide order dated 12.1.2010. The relevant portion of the judgment is reproduced as under: “ As a sequel to the above discussion, it is held that the impugned order of the Magistrate is totally against the law and thus not sustainable in the eyes of law and the interpretation of learned lower Court is totally misconceived and thus liable to be set aside. Thus the revision in hand is allowed and the impugned order is set aside. Consequently, the learned lower Court is directed to pass a fresh order from the stage of presentation of the complaint along with the application filed by the complainant for directing the SHO to register FIR, without being influenced by any proceedings done by the police or otherwise and keeping in view the observations made above the legal position discussed above. Let a copy of this order along with records be sent back to lower Court for necessary action with direction to the petitioner complainant to appear there on 20.1.2010.” The present revision petition has been filed by the petitioners i.e. Naresh Batra and N.K.Jain, Advocate on the ground that the trial Court vide order dated 18.8.2004 had already directed the complainant to produce preliminary evidence whereas the revision petition was filed by the Crl.Revision No. 189 of 2010 [6] complainant on 26.8.2004 and the order dated 18.8.2004 was neither challenged by the complainant nor it was brought to the notice of the revisional Court. Mr.R.S.Rai, learned Senior Counsel appearing for the petitioners argues that the directions issued by the revisional Court would tantamount to review of the earlier order passed by the trial Court on 15.4.2004 which is not permissible under the law. Mr. Rai further argues that the petitioners challenged the order of revisional Court before the High Court by way of filing Crl.Revision No. 1502 of 2006, Annexure P-3 with the petition and the order of revisional Court was set aside and the case was remanded to the revisional Court with a direction to decide the matter afresh after affording opportunity to both the parties. Mr. Rai relies upon the judgments reported as Bharat Kishore v. Judhistir Modak AIR 1929 Patna 473 (Full Bench), Rosy v. State of Kerala SC 2000(1) RCR (Criminal) 414, Dharmendra Singh v. State of Orissa 2001 Crl.L.J. 439, Mallappa Sangappa Desai v. Laxmanappa Basappa Whoti 1994(3) R.C.R.(Criminal) 627 and Tula Ram and others v. Kishore Singh AIR 1977 SC 2401 and in support of his contention. Mr.J.S.Bedi, learned counsel for respondent No.2 (complainant) submits that the complaint was sent by the learned Magistrate to the police under Section 156 (3) Cr.P.C. on 15.4.2004 before taking cognizance and not under Section 202 Cr.P.C. as neither cognizance was taken by the Magistrate nor the complainant was examined under Section 200 Cr.P.C. which is mandatory under Section 202 Cr.P.C. The Magistrate proceeded under Chapter XV of the Cr.P.C and it was mandatory for him to proceed in accordance with provisions of Section 200 Crl.Revision No. 189 of 2010 [7] and 202 Cr.P.C and not under Section 156(3) Cr.P.C. Mr.Bedi further submits that as per Section 202 Cr.P.C. the Magistrate has power either to inquire into the case himself or direct an investigation to be made by an officer or by any other person as he thinks fit, for the purpose of directing whether or not there is sufficient ground for proceeding. Learned counsel for respondent No.2 relies upon the judgments reported in A.C.Jaggi and others v. State of Punjab and another 2007(1) R.C.R.(Criminal) 752, Suresh Chand Jain v. State of Madhya Pradesh SC 2001(1)RCR (Criminal 335, Devarapalli Lakshminarayana Reddy and others v. Narayana Reddy and others 1976 SCC (Cri.) 380, Dilawar Singh v. State of Delhi SC 2007 (4) RCR (Cri.) 115, Mohd. Yousuf v. Smt. Afqa Jahan and others SC 2006 (1) RCR (Cri.) 451 Madhu Bala v. Suresh Kumar SC 1997 AIR 3104 and Ravi P.D. v. Jovatte Francis and another 2006 (1) R.C.R. (Cri.) 89 (Kerala High Court) in support of his contention. I have heard the arguments of learned counsel for the parties and have also gone through the impugned judgments of the revisional Court as well as trial Court and other documents available on the file. In the present case, complainant - Vikram Batra filed a complaint under Sections 420/406/467/466 IPC before the Illaqa Magistrate and the Magistrate vide order dated 15.4.2004 directed the SHO PS Sector 19 Chandigarh to investigate and report for 18.5.2004. During the pendency of the investigation, the complainant moved an application before the Illaqa Magistrate for issuance of direction to the police to register FIR considering the order dated 15.4.2004 to be one under Section 156(3) Crl.Revision No. 189 of 2010 [8] Cr.P.C. The said application was dismissed by the Magistrate vide order dated 8.6.2004 by stating that no specific direction for registration of the case under Section 156(3) Cr.P.C. was issued and only direction was for investigation of the case. Therefore, the Illaqa Magistrate declined to issue direction to first register FIR and then to carry out the investigation. Subsequently, the police submitted a report that no case was made out and on the basis of report of the police, the Illaqa Magistrate directed the complainant to produce the preliminary evidence vide order dated 18.8.2004. The said order was passed by the Illaqa Magistrate on submission of investigation report by the police. As per investigation report of the police, no case was made out and the complainant submitted before the Illaqa Magistrate that the investigation by the police was not fair and proper and because of that reason, the learned Magistrate fixed the case for recording preliminary evidence. The complainant thereafter challenged the order dated 8.6.2004 before the revisional Court vide which the application of the complainant was dismissed by the Illaqa Magistrate, where in it was mentioned that no direction was there to register the FIR and only the investigation was to be conducted by the police. The complainant did not challenge the initial order dated 15.4.2004 whereby the direction was issued to investigate the matter and then to report. Meanwhile the petitioners herein filed Crl.Revision No. 1502 of 2006 in this Court against the order passed by Addl. Sessions Judge, Chandigarh, whereby the police was directed to treat the complaint under Section 156(3) Cr.P.C. The High Court vide order dated 27.7.2006 issued notice of motion and and stayed the operation of the impugned order passed Crl.Revision No. 189 of 2010 [9] by Addl. Sessions Judge, Chandigarh. The High Court vide order dated 31.7.2009 allowed the revision petition and impugned order dated 1.6.2006 passed by Additional Sessions Judge, Chandigarh was set aside and the case was remanded to the Court of Additional Sessions Judge for fresh decision of the revision petition after affording an opportunity of hearing to both the parties. The Additional Sessions Judge, Chandigarh vide order dated 12.1.2010, allowed the revision petition filed by the complainant and set aside the order of the Illaqa Magistrate dated 8.6.2004 and ordered that the order passed by the Illaqa Magistrate on 15.4.2004 by referring the complaint to SHO of Police Station Sector 19 Chandigarh will be treated as an order under Section 156(3) Cr.P.C. Now the question arises for consideration before this Court is whether the order passed by the learned Additional Sessions Judge,Chandigarh setting aside the order of the trial Court and treating the complaint at the initial stage is in accordance with law keeping in view the fact when the complaint is fixed for recording of preliminary evidence before the Illaqa Magistrate. Before proceeding to examine, it would be appropriate to examine the relevant statutory provisions and the judicial precedents. Section 156 of the Code reads as follows:- “156. Police Officer's power to investigate cognizable case- (1)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. Crl.Revision No. 189 of 2010 [10] (2)No proceedings 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.” Section 202 of the Code reads as follows: “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 which has been made over to him under Section 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 complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an 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 Crl.Revision No. 189 of 2010 [11] complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) 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 in-charge of a police station except the power to arrest without warrant.” After registration of the report, a police officer proceeds to investigate the matter, as per the provisions of Chapter XII and the investigation is concluded with the presentation of final report before a Magistrate under Section 173 Cr.P.C. The investigation under Chapter XII can be commenced by the police even without an order passed by the Magistrate provided the information received by the police officer discloses the commission of a cognizable offence. The nature of investigation by a police officer can be on his own or in pursuance of an order passed by a Magistrate and in both the situations, the same are to be carried out under the provisions of Chapter XII. A Magistrate is empowered to follow the procedure prescribed under Section 156(3) Cr.P.C. and in case a complaint is received by the Magistrate, it is for him to proceed under Chapter XV and an order is required to be passed under Section 202(1) Cr.P.C. directing investigation by a police officer or any other person. There are two sections under the Code of Criminal Procedure under which a Magistrate can send the complaint for investigation. One is under Section 156(3) Cr.P.C. and the other is under Section 202 Cr.P.C. Crl.Revision No. 189 of 2010 [12] The first is exercisable by the Magistrate at a pre-cognizance stage and the second is at the post cognizance stage. It is for the Magistrate to take cognizance of the complaint himself or send the matter to the police officer for investigation. If the Magistrate is satisfied that there are sufficient grounds for proceeding, he can straightaway issue process to the accused but before he does so, he is to comply with the requirements of Section 200 Cr.P.C. and record evidence of the complainant or his witnesses. If the Magistrate does not take cognizance himself, he can send the complaint to the police under Section 156(3) Cr.P.C. for conducting necessary investigation. In the present case, the Magistrate directed the police to investigate the matter and then to report. Even the Magistrate has clarified himself in its order dated 8.6.2004 that no specific direction was issued for registration of the case under Section 156(3) Cr.P.C. and the direction was only for investigation. Even in the order of the High Court dated 27.7.2006, the operation of the order dated 1.6.2006 passed by Additional Sessions Judge, Chandigarh was stayed and the observation of the Court was that the Magistrate had already directed the complainant to produce preliminary evidence. The order dated 18.8.2004 was not before the revisional Court and the complainant either intentionally concealed the said order while filing the revision petition before the Additional Sessions Judge or has intentionally not stated. Had this order was before the revisional Court, the impugned direction would not have been passed. Virtually, there is no difference as the case is already fixed for recording of preliminary evidence and to remand the case by treating the complaint at the initial stage is contrary to the order passed by the learned Magistrate for recording of Crl.Revision No. 189 of 2010 [13] preliminary evidence. Moreover, there is no justification to remand the case with the direction to start proceedings with the presentation of the complaint when the complaint is pending before the Magistrate for recording of preliminary evidence. The argument of the learned counsel for respondent No.2 that the initial order of Magistrate dated 18.8.2004 was the order passed under Section 202 Cr.P.C. has no merit in view of the fact that the Magistrate has himself clarified when the application filed by the complainant was dismissed and in so many words the Magistrate has stated that the direction was only to investigate the matter and not to register the FIR. Although the authorities cited by the learned counsel for the respondent which have been concluded just to differentiate the powers of the Magistrate at a pre- cognizance stage or post cognizance stage, but in the facts and circumstances of the present case, these judgments are not applicable to the facts of the present case. As the case is hand in at pre-cognizance stage and on the clarification of the Magistrate no ambiguity remains for interpretation by this Court whether that was the direction under Section 156(3) Cr.P.C. or under Section 202 Cr.P.C. Moreover, no injustice would be caused to either of the parties whether the trial is to be started from the stage of presentation of the complaint or at the stage of recording of preliminary evidence. In view of the discussion made above, the impugned order has been passed by the revisional Court without any application of mind and without taking into consideration the stage of the case as the complaint is of the year 2004. The petition is allowed and the order dated 12.1.2010 passed by Additional Sessions Judge, Chandigarh, is set aside and direction Crl.Revision No. 189 of 2010 [14] is issued to the Illaqa Magistrate to record preliminary evidence of the complainant and proceed in the matter in accordance with law. (DAYA CHAUDHARY) JUDGE March 30, 2010. raghav