1 Criminal Application No.2297 of 2004 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2297 OF 2004 1. Blue Dart Express Ltd., Branch at Hotel Aurangabad Ashoka Campus Adalat Road, Aurangabad Through its authorized officer, Shri.Sk.Javed Ahmed S/o.Sk.Ahmed, Age-34 years, Occu-Service, R/o.As above. 2.Prasanna S/o.Vijay Pathak, Age-Major, Occu-Service, R/o.C/o.Blue Dart Express Ltd., Hotel Aurangabad, Ashoka Campus, Adalat Road, Aurangabad. APPLICANTS VERSUS 1. The State of Maharashtra 2. Mrs.Babita W/o.Anilkumar Lila, Age-31 years, Occu-Household, R/o.”Lila-Dham”, Govind Nagar, Bansilal Nagar, Aurangaba RESPONDENTS Mr.S.G.Ladda , learned counsel for the applicants. Mrs.R.K.Ladda, learned A.P.P. for respondent State. Mr.Rajshree Gudgilla h/f. Mr.Vijay Sharma, learned counsel for respondent no.2. (CORAM : A.V.POTDAR, J.) DATE : 07/03/2011 2 Criminal Application No.2297 of 2004 ORAL JUDGMENT : 1. By the present application u/s. 482 of The Cr.P.C., the applicants have questioned the correctness of the order passed by the Learned Chief Judicial Magistrate, Aurangabad, asking Kranti Chowk Police Station to carry out the investigation u/s. 156(3) of The Cr.P.C. in the complaint filed by the respondent no.2 before the learned Chief Judicial Magistrate, Aurangabad bearing complaint no.1625/2002 and this order was confirmed by the learned Additional Sessions Judge, Aurangabad in Criminal Revision No.95/2004 vide judgment and order dated 22/09/2004. 2. Rule was issued in this application on 15/12/2004 with interim relief in terms of prayer clause ‘C’. 3. Heard learned counsels for the parties. 4. Facts in brief are : Applicant no.1 is the company registered under the Companies Act and applicant no.2 is the territorial service representative of applicant no.1. On 24/09/2002, a parcel was collected by the representative of applicant no.1 from the office of Lilasons Industries Ltd., Walunj, to deliver the docket/parcel to one Mahesh Kumar Lila at Bhopal, who are the regular customers of the applicants. While accepting the docket/parcel for deliverey, consignee at Bhopal, a declaration firm was signed that no valuable securities were in the said parcel. As per the record, the said parcel 3 Criminal Application No.2297 of 2004 was delivered to the consignee on 26/09/2002 at 13.20 hours. Documents produced as well as not under dispute that the consignment received by the consignee was in-tact position, in courier language, the delivery was not received as open delivery and delivery was not received in damaged condition. It is further contended that a communication was received by the applicant no.2 that one cheque was in the sum of Rs.45,000/-, which was presented in the Dena Bank, Bhopal and was en-cashed. It is further informed that one more cheque was presented at Aurangabad for en-cashment for an amount in the sum of Rs.2,60,000/- But as in time instructions were given to the bank, en-cahsment of that cheque was stopped. It appears that complaint was lodged with the police at Bhopal to that effect. Local Police from Aurangabad approached the applicant for inquiry. Due to repeated visits of local police of Aurangabad to the office of applicants, applicant no.2 moved an application for anticipatory bail before the Additional Sessions Judge, Aurangabad. It is not under dispute that initially interim protection was granted to applicant no.2. When the application was came for final hearing on 26/11/2002, the police officials made a statement/submitted the report before the Court of Additional Sessions Judge, Aurangabad that no any offence was registered against these applicants. In view of this report, the application was disposed of as no offence was registered against the applicant there shall not be any apprehension of arrest of the applicants at the hands of local police from Aurahgabad. It appears that on 4 Criminal Application No.2297 of 2004 11/12/2002, respondent no.2 herein lodged the complaint before learned Chief Judicial Magistrate Aurangabad. It further appears that on the very day, learned Chief Judicial Magistrate passed the order “put up” to record verification and the complaint was adjourned to 26/03/2003. It appears that on 26/03/2003, verification statement of the respondent no.2 was recorded and thereafter, order came to be passed calling for the report u/s.156(3) of The Cr.P.C. from P.I.Kranti Chowk Police Station . Somehow, present applicants came to know about the said order passed by the learned Chief Judicial Magistrate. The said order was challenged before the Court of Sessions Judge, Aurangabad by preferring revision application, which is numbered as Criminal Revision No.95/2004. Vide order dated 22/09/2004, learned Additional Session Judge, Aurangabad pleased to dismiss the said revision by confirming the order passed by the learned Chief Judicial Magistrate directing P.I. Kranti Chowk Police Station to carry out the investigation u/s. 156(3) of The Cr.P.C. by relying on the judgment reported in 2001(1) Mh.L.J. 328 and observed that in the said judgment it is observed by this Court that even during the inquiry u/s. 200 of Cr.P.C., Court can call police report u/s. 156(3) of Cr.P.C. to assist the Court in the process of inquiry. This judgment is impugned in the present application. 5. In this backdrop, heard respective counsels for the parties. 6. Chapter XV of the Cr.P.C. deals with the complaint to 5 Criminal Application No.2297 of 2004 Magistrate. Section 200 of The Cr.P.C. deals with examination of the complainant. For clarity, it is necessary to reproduce Section 200 of The Cr.P.C., which read as follows : 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 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. 7. At this juncture, it is useful to give the reference of the observation of the Apex Court in the matter of Devarapalli Lakshminarayana Reddy and others Versus Narayana Reddy and others, AIR 1976 Supreme Court 1672, wherein it is observed that 6 Criminal Application No.2297 of 2004 the expression, “Taking cognizance of an offence” by the Magistrate has not been defined in the Code. The ways in which such cognizance can be taken are set out in clauses (1), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter SV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If instead of proceedings under Chapter IX he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation or ordering investigation by the police under Section 156(3), he can not be said to have taken cognizance of any offence. Reference is given about the observations of the Apex Court in the matter of AIR 1972 SC 2639. It is observed by the Supreme Court in the matter of Nirmal Jeet versus State of West Bengal, 1973(3) SCC 753 = AIR 1972 SC 2639 that, “The position under the Code of 1898 with regard to 7 Criminal Application No.2297 of 2004 the powers of a Magistrate having jurisdiction to send a complaint disclosing a cognizable offence – whether or not triable exclusively by the Court of Sessions – to the Police for investigation under Section 156(3), remains unchanged under the Code of 1973. The distinction between a police investigation ordered under section 156(3) and the one directed under section 202, has also been maintained under the new Code; Section 156(3) occurs in Chapter XII, under the caption : “Information to the Police and their powers to investigate”; while section 202 is in Chapter XV which bears the hearing “Of complaints to Magistrate”. 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, the second at the post-cognizance stage when the Magistrate is in seisin of the case. 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 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 embodies in Chapter XV, he is not competent to switch back to the pre- cognizance stage and avail of section 156(3). It may be 8 Criminal Application No.2297 of 2004 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 of 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. 8. It is observed in the matter of Suhas Balkrushna Desai and others versus Chandrakant Ramchandra Parab and others, 2001(1) Mh.L.J. 328, wherein on facts the case is different as described in the opening paragraph of the Head-note A. It is observed by the Single Judge of this Court that, “the Judicial 9 Criminal Application No.2297 of 2004 Magistrate First Class initially order the investigation u/s. 156(3) of The Cr.P.C., but on receipt of the report from the police that no offence was made out, disagreed with the conclusions of the police and took cognizance of the offence u/s. 190(1)(b) of The Criminal Procedure Code and issued process against the accused, which is under challenge.” 9. It is observed by the Additional Sessions Judge, Aurangabad in Criminal Revision No.95/2004, that the Court can call police report u/s. 156(3) of Cr.P.C. to assist the Court in the proceeding even during the inquiry u/s. 200 of The Cr.P.C.,is an erroneous observation and finding as on clear reading of the observations of the Single Judge of this Court in the matter of Suhas (cited supra), on facts are totally different from the facts of the present case, and it is nowhere observed by the Single Judge of this Court that once cognizance is taken by the learned Magistrate under the provisions of Chapter XV of The Cr.P.C. as contemplated u/s. 200, even thereafter the learned Magistrate can refer the matter for investigation u/s. 156(3) of The Cr.P.C. 10. Once the legal position is clear, in view of the observations of the Supreme Court in the matters referred in paragraph supra, that once the Court has taken cognizance of the complaint lodged to the Magistrate u/s. 200 of The Cr.P.C. 1973, then the Court can not direct the investigation u/s. 156(3) of The Cr.P.C., but after recording the evidence of the complainant and the witnesses during the inquiry 10 Criminal Application No.2297 of 2004 u/s. 200 of The Cr.P.C., the Magistrate can direct further inquiry u/s. 202 before issuance of process, but can not take the resort of investigation u/s. 156(3) of The Cr.P.C. Thus the fact is clear that the order impugned, passed by the Additional Sessions Judge in Criminal Revision No.95/2004 dated 22/09/2004 confirming the order passed by the Chief Judicial Magistrate, is not sustainable in Law. 11. During the course of submissions, learned A.P.P. has not supported the impugned order and left the matter to the discretion of Court as per the legal position. The pathetic attempts were made by the learned counsel for respondent no.2 that in the order passed by the learned Chief Judicial Magistrate, inadvertently, the matter was referred for inquiry u/s. 156(3) of The C.P.C. and it is confirmed by the Additional Sessions Judge in its revisional jurisdiction. According to her, it was not the intention neither of the learned Chief Judicial Magistrate nor of the Additional Sessions Judge to direct the investigation under section 156(3), but only to direct further investigation. I am not in agreement with these submissions as the order passed by the learned Chief Judicial Magistrate is very clear as the learned Chief Judicial Magistrate has given directions to P.I. Kranti Chowk Police Station to submit the report after investigation u/s. 156(3) of The Cr.P.C. In an uncertain words, learned Additional Sessions Judge also upheld the order as permissible in law which observations are not sustainable in law. 11 Criminal Application No.2297 of 2004 12. In the result, the application succeeds. The order passed by the learned Chief Judicial Magistrate dated 26/03/2003 as well as order passed by the Additional Sessions Judge, Aurangabad in Criminal Revision No.95/2004, dated 22/09/2004 are hereby quashed and set aside. 13. Rule is thus made absolute as indicated above with no order as to costs. Complainant/respondent no.2 to appear before the Trial Court on 22/03/2011. Then the learned Magistrate, before whom the complaint is pending, to decide it in accordance with Law. (A.V.POTDAR, J.) khs/MAR. 2011/cri.appl.2297-04