Cr.Misc. 54913 M of 2007 - 1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Cr.Misc. 54913-M of 2007 DATE OF DECISION: July 14 ,2008 Gurlal Singh Grewal ......PETITIONER VERSUS State of Punjab and others. ......RESPONDENTS PRESENT: Mr. R.S.Rai,Sr. Advocate with Mr.Gauttam Dutt, Advocate for petitioner. Mr. KD Sachdeva, DAG, Punjab. Mr.Vikram Chaudhary, Advocate M.M.S.BEDI,J. The extent of powers and scope of authority under Section 202 Cr.P.C. of a Magistrate after recording preliminary evidence but before issuing process to the accused directing the police to investigate and submit a report, is required to be determined in the present case. The petitioner has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. challenging the order dated 20.11.2007 (Annexure P-7) passed by the learned Additional Chief Judicial Magistrate, Ludhiana, which reads as follows:- “ Consideration is heard today. This Court is of the opinion that before arriving on any conclusion, that whether the accused are to be summoned or not to be Cr.Misc. 54913 M of 2007 - 2- summoned, in the present case, the inquiry is required to be conducted, as such, the present complaint in original is forwarded to SHO,P.S. Divn.No.5 Ludhiana, for conducting inquiry in the present complaint, on the facts complainant alleges. The Ahlmad will retain the photostat copy of the file and will keep the original statement with him and send the photostat to the police of P.S. Divn.No.5, Ludhiana. SHO shall summon the complainant and his witnesses and record their statements and then conduct an inquiry and give his report on or before 19.2.2008.” Pursuant to the above said order, SHO, S.I. Jarnail Singh, P.S Division No.5, Ludhiana, as per the reply filed on behalf of the State, called both the parties on 24.12.2007 for inquiry but since this Court had vide order dated 21.12.2007stayed the operation of the order, he had sent the complaint back to the Magistrate, as is apparent from Annexure R-2/T. Learned counsel for the petitioner Shri R.S.Rai, Senior Advocate had contended that the Magistrate after having taken cognizance of the offence by recording the evidence of the complainant and his witnesses, CW 1 to CW4, ought to have, on the basis of the appreciation of the preliminary evidence, issued summons to the respondents as the petitioner had been able to prima facie establish the offence alleged against respondents 2 to 4. The impugned order, referring the matter to the concerned SHO for conducting an inquiry tantamounts to an abuse of the process of the Court, which would result in manifest injustice to the petitioner as the inquiry , which was initiated by the police was contrary to all cannons of criminal justice as the accused party, which does not have Cr.Misc. 54913 M of 2007 - 3- any locus standi stood summoned prejudicing the rights of the complainant. The order of the trial Court is without jurisdiction and is thus liable to be set aside. On the other hand, appearance was put in by respondents 2 to 4 and a serious objection was raised by filing a reply contending that the petitioner has indulged in a blatant misrepresentation of facts and on the misconstruction of the provisions of Section 202 Cr.P.C. Referring to the provisions of Sections 200 to 202 Cr.P.C., it was argued that the Magistrate has acted perfectly in consonance with the provisions of Section 202(1)(b) Cr.P.C. as the Magistrate, after examining the complainant and his witnesses had found that it was necessary to further probe into the matter, therefore, a direction of investigation by police was an appropriate step in the interest of justice. Although this petition does not involve the determination of question whether the private respondents are required to be summoned on the basis of the averments in the complaint and preliminary evidence produced but since the Magistrate vide impugned order dated20.11.2007 (Annexure P-7) has expressed an opinion that an inquiry is required to be conducted for forming an opinion before arriving at a conclusion whether accused are to be summoned or not to be summoned on the facts, as alleged by the complainant, a brief cercory reference will have to be made to the allegations in complaint for proper appreciation of the impugned order, as reasons for subjective or objective satisfaction are not mentioned in the impugned order. Even the scope and extent of inquiry , which is to be conducted by the police is also not mentioned. A copy of the complaint, filed by the petitioner before the trial Court, has been produced on the record as Annexure P-5. In the said complaint under Sections 406/418/34 Cr.Misc. 54913 M of 2007 - 4- IPC, the complainant- petitioner has alleged that his father Joginder Singh Grewal had constituted in 1973 Gurdev Dharamarath trust and he is the member of the Governing Body of Gurdev Hospital run by the trust as well as by the trustee of Sardar Joginder Singh Charitable Trust, which is a major donor of the abovesaid Trust, namely, Sri Gurdev Dharamarath Trust. The accused persons had stopped calling the complainant- petitioner in the meeting of the said Trust and dishonestly and with malafide intention in connivance with each other have taken over the management/ administration of the said Trust. The accused persons have also taken a lot of investments in the form of donations as well as other reliefs from the Government in the daily administration of the Trust including the hospital, which was built and being run by the Turst on the land, which is jointly owned by the Sri Gurdev Dharamarath Trust with other three Tursts,namely, Gurparsad Trust, Mata Gurmail Kaur Charitable Trust and Gurkartar Dharamarth Trust. All the above said Trusts have undivided property/ land measuring 8 ½ acres in village Sunet District and Tehsil Ludhiana. The complainant has also alleged that all the trustees in connivance with each other in order to achieve wrongful benefits and personal gains have sold some land measuring 2175 sq. yds vide sale deed executed on 22.3.2006 at a price of Rs.5000/- per square yard, whereas the actual market value is more than Rs.50,000/- per square yard. On the basis of the said allegations, the complainant- petitioner had filed a complaint u/s 406/418/34 IPC. After examining four witnesses i.e. CW1 Gurlal Singh, CW 2 Parmod Gupta, Ahlmad of Civil Judge (Jr.Division), CW3 Rajan Sharma Clerk, Sub Registrar Office, Ludhiana and CW4 Krishan Anand Estimater/ Valuer, District Court, Ludhiana, the complainant closed the evidence on 2.10.2007. The complaint was adjourned to Cr.Misc. 54913 M of 2007 - 5- 20.11.2007 for consideration vide order dated 19.11.2007. On 20.11.2007, the trial Court passed the impugned order, which has been reproduced herein above. A perusal of the order dated 20.11.2007 (Annexure P-7) indicates that the evidence produced by the petitioner was considered by the Learned Judicial Magistrate but he formed an opinion that before arriving at any conclusion whether the accused are to be summoned or not to be summoned, an inquiry is required to be conducted, as such the complaint in original was forwarded to SHO, P.S. Division No.5, Ludhiana for conducting an inquiry in the complaint on the facts, alleged by the complainant in the complaint. The Ahlmad was directed to retain the photostat copy of the file and keep the original statements of the witnesses with him and send only the photostat copies of the said statements to the Police. The SHO was required to summon the complainant and his witnesses; record their statements; conduct an inquiry and give his report on or before 29.2.2008. So far as the authority of the Magistrate, after summoning the complainant and his witnesses and sending the matter requiring further probe by the police, is concerned, it would be relevant to refer to the enabling provisions of Cr.P.C. regarding the taking of cognizance by a Magistrate on a private complaint. Chapter XV of Cr.P.C. dealing with the complaint to the Magistrate reads as follows:- 200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint 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 Cr.Misc. 54913 M of 2007 - 6- the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or (b) If the Magistrate makes over the case for inquiry, or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 201. Procedure by Magistrate not competent to take cognizance of the case. If the complaint is made to a Magistrate who is not competent to take cognizance of the offence he shall, - (a) If the complaint is in writing, return it for presentation to the proper court with an endorsement to that effect; (b) If the complaint is not in writing, direct the complainant to the proper court. 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, (and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction) postpone the issue of process against the accused, and either inquire into the case himself or direct an Cr.Misc. 54913 M of 2007 - 7- 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 Sessions 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 witness on oath: Provided that if it appears to the Magistrate that the offence 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 Court on an officer in charge of a police station except the power to arrest without warrant. 203. Dismissal of complaint. If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall Cr.Misc. 54913 M of 2007 - 8- dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. The provisions regarding issue of process are contained in a separate chapter i.e. Chapter XVI regarding commencement of proceedings before a Magistrate. The abovesaid provisions came up for consideration before the Supreme Court in Devarapalli Lakshminarayana Reddy vs V. Narayana Reddy AIR 1976 SC 1672. In the said judgment the question to be determined by the Supreme Court was whether in view of Clause (a) of the first provisio of Section 202(1) Cr.P.C. a Magistrate, who receives a complaint discloses an offence exclusively triable by the Court of Sessions, was debarred from sending the same to the police for investigation u/s 156 (3) Cr.P.C. The Criminal Procedure Code had been amended in the year 1974. The Hon'ble Supreme Court had considered the provisions of Section 202 Cr.P.C. and held that the power to order the police investigation u/s 156(3) Cr.P.C. is different from the power to direct investigation conferred by 202(1) Cr.P.C. The relevant observations are reproduced as follows: “ The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202 (1) 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 when the Magistrate is in seisin of the cases. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Cr.Misc. 54913 M of 2007 - 9- Magistrate before he takes cognizance of the offence under Section 190(1) (a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back t the pre-cognizance stage and avail of Sect. 156 (3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, 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 202 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 202 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.” From a perusal of the above observations of Hon'ble the Apex Cr.Misc. 54913 M of 2007 - 10- Court, it is clear that the provisions of Section 202 Cr.P.C. regarding postponement of issue of process against the accused under Chapter XV can be adopted when the evidence collected is deemed insufficient to take a decision as to the next step in the prescribed procedure. The investigation, which can be entrusted to the police would be solely for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. The observations of the Hon'ble Mr. Justice M.B.Shah in Rosy and another vs State of Kerala and others (2000) 2 SCC 230, regarding the scope of Section 202 Cr.P.C. are as follows:- “ Under Section 200 read with Section 202 CrPC, it is only at the discretion of the Magistrate to decide whether to hold an inquiry or not before issue of process to the accused. In view of the provisions of Sections 200,203 and 204, the question of complying with the proviso to Section 202(2) would arise only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry and further decides to take evidence of witnesses on oath. But the object and purpose of holding inquiry or investigation under Section 202 is to find out whether there is sufficient ground for proceeding against the accused or not and that holding of inquiry or investigation is not an in dispensable course before the issue of process against the accused or dismissal of the complaint. It is an enabling provision to form an opinion as to whether or not process should be issued and to remove from the Magistrate's mind any hesitation that he Cr.Misc. 54913 M of 2007 - 11- may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath.” In the said judgment, the Hon'ble Judge relying upon judgments in Chandra Deo Singh v. Parkash Chandra Bose, AIR 1963 SC 1430: (1963) 2 Cri LJ 397: (1964) 1 SCR 639; Vadilal Panchal vs. Dattatraya Dulaji Ghadigaonkar, AIR 1960 SC 1113: 1960 Cri LJ 1499: (1961) 1 SCR: Pramatha Nath Talukdar vs Saroj Ranjan Sarkar, AIR 1962 SC 876: (1962) 1 Cri LJ 770: 1962 Supp (2) SCR 297; Nirmaljit Singh Hoon vs State of W.B., (1973) 3 SCC 753: 1973 SCC (Cri) 521; Mohinder Singh v. Gulwant Singh, (1992) 2 SCC 213: 1992 SCC (Cri) 361; Kewal Krishan vs. Suraj Bhan, 1980 Supp. SCC 499: 1981 SCC (Cri)438, held as follows:- “Further, the inquiry under Section 202 is of a limited nature. Firstly, to find out whether there is a prima facie case for issuing process against the person accused of the offence in the complaint and secondly, to prevent the issue of process in the complaint which is either false or vexatious or intended only to harass such a person. At that stage, the evidence is not to be meticulously appreciated, as the limited purpose is to find out “whether or not there is sufficient ground for proceeding against the accused”. The standard to be adopted by the Magistrate in scrutinising the evidence is also not the same as the one which is to be kept in view at the stage of framing charges. At the stage of inquiry under Section 202 CrPC the accused has no right to intervene and it is the duty of the Magistrate while making an inquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made.” In Tula Ram and others v. Kishore Singh Air 1977 Supreme Cr.Misc. 54913 M of 2007 - 12- Court 2401, considering the power of a Magistrate to take cognizance under Sections 190,200 to 204 in context to the provisions of Section 156 (3) Cr.P.C and Section 202 Cr.P.C. to order investigation, the Hon'ble Supreme Court on interpretation of the provisions laid down the following legal proposition:- “1. That a Magistrate can order investigation under S.156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190.200 to 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Sec.202 of the Code. 2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives; (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. ( c ) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. 3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. 4. Where a Magistrate orders investigation by the police before taking cognizance under S/ 156(3) of the Code receives the report thereupon he can act on the report Cr.Misc. 54913 M of 2007 - 13- and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above.” In Bhagat Ram vs Surinder Kumar and others (2004) 11 Supreme Court Cases 622, the Chief Judicial Magistrate after examining the complainant and his witnesses directed the investigation to be done by the police as he felt that the matter needed further probe. After receipt of the police report, matter was heard afresh. Thereafter, process was issued against the respondents therein. The order of the Magistrate was challenged on the ground that having once taken cognizance and proceeded to hold the inquiry under Section 202 Cr.P.C., the Magistrate could not have referred the matter for inquiry/ investigation by the police at all and he should have proceeded in the matter himself. The Hon'ble Supreme Court held that the procedure adopted by the Magistrate was perfectly in order in view of the provisions of Section 202(1) proviso (b) Cr.P.C. The relevant portion is reproduced as under:- “ It is clear from a perusal of the order made by the learned Magistrate that he has not done anything other than to comply with the provisions of Section 202(1) proviso (b) of the Code of Criminal Procedure, that after examining the complainant and his witnesses he found that it was necessary to further probe into the matter and, therefore, directed investigation to be done by the police and after the investigation was done by the police and on report being filed by them, he heard the matter afresh and directed issue of summons. We find that the procedure adopted by the learned Magistrate is perfectly Cr.Misc. 54913 M of 2007 - 14- in order.” A similar view has been taken by this Court in Sukhwinder Kaur vs Kulwinder Singh and others 2004(1) PLR 93, wherein the power of the Magistrate to postpone the issuance of process against the accused and direct the investigation to be made by the police officer with an object to reach a conclusion that there exists sufficient ground for issuance of a process. Following the ratio of the judgment in Devarapalli Lakshminarayana Reddy vs V. Narayana Reddy AIR 1976 SC 1672, it was held that such an order of the Magistrate will not suffer from the lack of jurisdiction on the ground that the Magistrate had already taken cognizance by recording preliminary evidence prior to the issuance of the process. In this context, the judgment of the Hon'ble Supreme Court in Jamuna Singh vs. Bhadai Shah, AIR 1964 SC 1541, needs to be referred to, where the order passed by a Magistrate after recording preliminary evidence of the complainant u/s 200 Cr.P.C. was considered in context to the power to order investigation u/s 156(3) Cr.P.C. and Section 202 Cr.P.C. and it was observed as follows:- “ As a last resort the learned counsel for the appellants argued that the Magistrate had acted without jurisdiction in asking the police to institute a case and so the proceedings subsequent to that order were all void. As we have already pointed out, the order of the Magistrate asking the police to institute a case and to send a report should properly and reasonably be read as one made under S.202 of the Code of Criminal Procedure. So, the argument that the learned Magistrate acted without Cr.Misc. 54913 M of 2007 - 15- jurisdiction cannot be accepted. At most it might be said that in so far as the learned Magistrate asked the police to institute a case he acted irregularly. There is absolutely no reason, however, to think that that irregularity has resulted in any failure of justice. The order of conviction and sentence passed by the High Court cannot be reversed or altered on account of that irregularity.” On the basis of the abovesaid judgments, the impugned order cannot be set aside on the ground that a Magistrate did not have any jurisdiction to order investigation after having recorded the preliminary evidence. It is, thus, held that the impugned order