HIGH COURT OF CHHATT!SGARH A BASPUR [SB: Hon’ble Mr.T.P.Sharma,J.] Petitioner Cr. M.P. N0. 34112008 A.E. Demerum Respondent ORDER BE POSTED FOR PRONOUNCEMENT ON H 8-2008 \ Sdl- Versus Hardik Kakkad. T. P. Sharma f Judge T IL \ HIGH COURT OF CHHATTISGARH AT BILASPUR [SBz Honible Mr.T.P.Sham1a,J.1 Cr. NLP. No. 341 of 2008 FETlTiTONER AE‘ Damerum S/o CA. Damerum aged NON APPLICANT about 60 years, Rio Krishna Vihar Apanment, Vidya Nagar Bilaspur, Tahsil & District Bilaspur (CG) VERSUS RESPONDENT Hardik Kakkad aged about 30 years Slo APPLICANT Jamundas Kakkad, R/o Ganesh Bhawan, Near Gujrati Samajx Tikrapara, Bilaspur, Tahsi! & District Bilaspur, CG. Shri Manindra Shrivastava learned S Counsel with Shri Manoj Paranape fer the petitioner. Shri PS. Koshy learned counsel ith Shrl Anand Kumar Shukla for the respondent. PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE (o R n E R (”82005) This petition is directed against the order dated'5.7i2008 psed by the learne Sessions ude, Bilaspur, in Criminal Revision No. 9122008 setting side the order dated 3.5.2008 passed y the Chief Judicial Magistrate, Biiaspur by which learned Magistrate had rejected the application filed by the respondent under section 156( of the Code of Crminal Procedure (for short th "Code") for seeking a direction to the police for investigation. By the order impugned learned S ud Bi or essions Jge, iaspur has set aside the der passed by the trial Court and directed for isuing a direction to the concerned Station House fficer to register the offence; make investigation and submit the final report. 2. The order is challenged on the ground tha after taking conizance o the offence, learne Magistrate is not compeen to order fo investigation under section 156 (3) of the Code. The Sessions Judge was also not competent to put an impediment in the judicial discretion to be exercised by the Chief Judicial Magistrate and to secure the ends ofjustice the order impugned is laibte to be set aside. 3. Shri Manindra Shrivastava learned Sr. counsel with Shri Manoj Paranjape L \ for the petitioner and Shri P.S. Koshy learned counsel with Shri Anand Kumar Shukla for the respondent are heard and order impugned, order of the Chief Judicial Magistrate and copy of the complaint perused. r‘ j w as d Jg a b 3) i e s O t g f d tt r -2_ 4. It is argued on behalf of thg petitioner’that after filing of the complaint learned Chief Judiciai Magistrate has proceeded to investigate into the compiaint and thus took cognizance of the matter After taking cognizance under sections 200 and 202 of the Code, iearned Magistrate is not competent to order for investigation under section 156 (3) of the Code. Compiainant is not entitied to seek parallel remedy of inquiry into the mplaint and t order for investigation under section 156 (3) of the Code. if the compiaint is filed by the complainant, then he is preoludedfrom seeking ay direction to the police icer under section 156 (3 of the code inter aiia if the pa choses to proceed under section 156 (3) then he is precluded from making any complaint after ivestiaton of the ase. ln the present case when he Chief Judicial Magistrate has proceeded for inquiry on the basis of complaint filed before him means he has taken th cogizance of the offence nd he as not cpetent t direct the pice authories for investigation under section 156 (3) of the Code. He has rightly rejected the application med by the respondent. However, the order ofhrejection passed by the Magistrate has been set aside by the Revisional Court which is illa and without jurisdiction Reliance has been paced on the decision of the Apex Court in the tter of Aiit 1 in which it has been held that taking conizance of a ofence means taking judicial notice of the oence by the Judge, Relevant portion reads as under: “The provisions of , 190 (1) being bviously, and on i own terms inapplicable. the next question ro considered is whether it is the requirement of any prinCijo/e of general jurispdence that there should be some additiona/ material to entitle e Court to take cognizance of the ottence. The word “cognizance” has no e myst e soteric or ic significance in crimina/ law or procedur. It mere/y means ~ become aware of and whe used with reference to a Court or Judge; to take notice ofjudiciaily. It wa stated in opa/ Marwari V, mperor, AIR 1943 Pat 245 (SB) by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in RR. Cheri V. State f r redesh, 1951 SCR 312 at p. 320 .' (AIR) 1951 207 at p, 10) that the word e dic ot d t p pe a 4 k cognizance? was used in the Code to indicate the point when th Magistrate or Judge takes juial nice of an offence an that it was a word of indefinite import, and is no erhaps always used in exact/y the same sense As obsen/ed in Emror V, Sourindr Mohan, ILR 37 Cal 412 at pt 16, “taing cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such applies his mind to the suspected commission of an offence” Where the statute prescribes the materials on which alone the judicial mind shall 1 AIR 1963 SC 765 co he n off ) rty ngi c t e n a w om o ol it egl l ma Kumar Palit V. State of West Benqai and another g n f ff S o ts be ru th n s G E o Utte P SC 2 73, operate before any step is faker), obviously the statufory requirement exercise thaf must originai be jurisdiction fuifmed. Thus, which a. magistrates sessions judge specified cannot in Section his commitment, judiciai 190 mind (1) But can, statutory and bu proceed provision under apart, the there Code is is no an set order materiai of tine material on which alone he can apply which must exist before the judiciat mind can operate. it appears to us therefore that as soon as a special judge receives the orders of allotment of the case passed by the State Goverirment it becomes vested with jurisdiction to try the case and when it receives and issue the notice reco to the accused and thus start the trial of the on the decision of the Allahabad High Court in the Further reliance is placed V. sue of U.P. and others 2 in which \lt has been ‘ t held as under: “Cogitating over the matter, there is much force in the contention of the learned counsel for the applicant. Section 154 read with section 156 (3) falls under Chapter Xlt of the Code of Criminal Procedure, which is titled as “WFORMATION TO THE rd from the Government it can apply its mind proceedings assigned to it by the State Government. " matter of gavindra Sinuh POLICE AND THEIR POWERS TO lNVESTlGATE". Under Section 154 CrP.Ct it is provided that the police officer will register, as an FIR all information of offences, which are izabie in nature. There is no scope for any police officer to cognizable offence. The phraseoiogy of the section 156 ('l) Cr.P.C. clearly indicates that the police officer n order can passed investigate by the the legislation in respect of cognizable offence sub section (3) there of cogn refuse registration of any information as an FIR which discioses a FIR of cognizabie offence without a Magistrate Concerned, This feet indicates provides that if any cognizabie offence has been may direct the police to register the FIR and order for investigation the intention of the committed and to register the FIR then the Magistrate the police have refused into such offences. By not following the mandate of law not only the Magistrate, in the present case, has committed miscarriage of ‘ustice but at the same time he has given a blow to the is daughter who was tortured at the hands of the police, for h pie of miscarriage of accused. This is nothing but a glaring exam i who is seeking justice from him, for inaction on the part person of the l iustice and fiouting of the mandate of law.” Z 2906 cam. 3325 l 5‘ !t is also argued by the counsel for the petitioner that the non applicant had made the applicant party before the revisional Court but no notice has been issued to him at the time of passing the order impugned 6r On the other hand the order impugned is supported by the counsel for the respondent and it is submitted that direction of the revisional Court has been complied with by the trial Court and also by the Police authorities and even the FIR has been registered. ln the present complaint detailed investigation was necessary but earlier the complainant had lodged the report to the police However, since the police had not investigated the matter, the complainant chose to tile the complaint under section 156 (3) of the Code for thorough investigation for commission of the cognizable offence. The trial Coutt rejected the applicatioin in a casual and cryptic manner. Revisional Court was competent to pass appropriate order and by passing the order impugned it has not committed any illegality resulting in the miscarriage of justice. lt is submitted that when a remedy of revision is available the petitioner should not have invoked the inherent jurisdiction under section 482 of the Code. Reliance is placed the decision of the Supeme Court in the matter of Arun Shankar Shukla Vs. State of U.P. 3 in which it has been held as under: "....lt is well neigh settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. in the present case, the High Court overlooked the procedural law which empowered the convicted’accused to prefer statutory appeal against conviction of the offence. High Court has intervened at an uncailed for stage and soft pedal/ed the course of justice at a very crucial stage of the trial. " 7. This is a petition filed under section 482.of the Code. Interference in exercise of the inherent jurisdiction under section 4§2 of the Code can be made in rarest of rare cases only with a View to give effect to the order under the Code to prevent abuse of process of the Court and to otherwise secure the ends of justice. 8. ln the instant case the complainant had tiled the complainant before the CJM for the offences punishable under sections 420, 464, 466, 467, 468, and 471"IPC and also for seeking direction to the police to register and investigate it the offence under section 156 (3) of the Code. 9. Perusal of the order of the trial Court shows that the non applicant had tiled the complaint as well as an application under section 156 (3) of the Code 3 1999 011m. 3964 simultaneously and requested for initiating the proceedings but it was denied on the ground that it does not appear to be reasonable to proceed with the preliminary inquiry Learned Sessions Judge after taking into consideration the l fact that in appropriate oases Magistrate should direct the Police for investigation as observed in the case of Ravindra Singh (supra). 10‘ Admittedly after passing of the order by the Magistrate notice has not been issded against the appiicant. It was not even listed for issuance of notice. Trial Court has simply rejected the application of the non applicant. Therefore in the present case affording of opportunity of hearing to the present applicant was not necessary. Substantially the teamed sessions judge has allowed the application under section 156(3) of the Code. section 156(3) envisages that the Magistrate empowered under section 190 may order such an investigation as above—mentioned. Police officer is empowered to take cognizance of a cognizable offence but the Magistrate is also empowered to order for investigation, Revisional Court has not committed any iilegality by not affording an opportunity of hearing to the applicant From the conjoint reading of section 200 and section 156 (3) of the Code it is abundantly'ciear that the Magistrate may take cognizance of the offence complained of and he may instead of taking cognizance of such offence may order the police officer for investigation under section 156(3) of the Code relating to a cognizable offence. ln case of Madhu Bala V suresh Kumar and others 4 it has been held that the Magistrate may direct the police to investigate the cognizable offence under section 156 (3) and even to register a case and investigate into the same. Relevant portion reads thus: “From a combined reading of the above provisions it is abundant/y, clear that when a wn'tten comp/amt disclosing a cognizabfe offence is made before a Magistrate, he may take cognizance upon the same under Section 190(1){a) of the Code and proceed with the same in accordance with the provisions of Chapter XV. The other option available to the Magistrate in such a case is to send the compiaint to the appropriate po7iCe station under Section 1 56(3) for investigation. Once such a direction is given under sub section (3) of section 156 the police is required to investigate into that complaint under sub section (1) thereof and on completion of investigation to submit a "police report” in accordance with Section 173(2) on which a Magistrate may take cognizance under Section 190 (1) (b) —— but not under 190(1)(a). Since a complaint filed before a Magistrate cannot be a ”police report” in view of the definition of “complaint” referred to earlier and since the investigation of a “cognizable case” by the police under Section I156(1) has to culminate in a “police report” the “complaint” ~ as 4 (1997) 8 scc 475 ‘ _6~ soon as an order under section 156 (1), fhe police can only investigafe é cognizable “case”, [it has to formala/ register a case cm that repont " 11. In the case of Ajit Kumar Palit (supra) the Apex Court hasheld that when the Magistrate becomes aware of taking judicial notice of the complaint it can be- said that the Magistrate has taken cognizance. Merely niing the compiaint before i the Magistrate, cannot be termed that the Magistrate has taken cognizance or? V. J v decided to proceed for investigation of the complaint. 12. in the instant case the Chief Judicial Magistrate has refused to direct the police officer in terms of section 156(3) of the Code and no reason has been assigned. When it was specifically prayed that the offence is of serious nature x and require investigation by the Police learned‘Sessions Judge after taking into consideration the same set aside the order of the Magistrate and directed the Magistrate to issue direction to the police for registration, investigation and submissionkof the nnal report, on the compiaint 13. As regards the word “tiling of final report“ does not necessarily include that final report of prosecuition against the accused but it includes the result of investigation may be for proceeding against some person or for closing of the investigation. 1 4. Thus in View of the aforesaid discussion and in the fight of the decision of the Supreme Court in the matter of Madhu Bala (supra), the Magistrate'is competent to pass the order directing the police officer to investigate'into the , complaint. 15. l do not find any illegality or irreguarlity in the order impugned warranting interference in exercise of the inherent jurisdiction under section 482 of the Code. AcCordingly, the petition is without substance and the same is liable to be dismissed. it is dismissed as such. Sdl— n