; "vs' :":SI-fti •h> % ^' •iT "-> "i ^ ,if "rf^ a-®:ii,, ur^ ^^ HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Misc. Petition No.247 of 2009 PETITIONERS/: (Applicants) 1. Chagan Lal Mundra, S/o Shri Kedarnath Mundra, aged about 49 years 2. Rajiv Mundra, S/o Kailash Mundra, aged about 27 years Both R/o E-8 Ashoka Tower, Shanker Nagar Chowk, Raipur (C.G.) 3. Rajiv Agrawal, S/o Rajendra Swaroop Agrawal, aged about 53 years, R/o Ashoka Park, Khamhardih Road, Raipur Versus 1. State of Chhattisgarh, Through District Magistrate, Raipur (C.G.) 2. Vimal Agrawal, S/o Shri Omkarmal Agrawal, aged about 52 years, R/o In front of Circuit House, Civil Lines, Raipur {Miscellaneous petition under Section 482 ofthe Code of Criminal Procedure, 1973} RESPONDENTS: (Non-applicants) Present: No.2. Mr. Prafull Bharat, counsel for the petitioners. Mr. Akhil Mishra, Deputy Govt. Advocate forthe State/respondent No.1. Mr. Anil Khare, Advocate, appears and takes notice on behalf of respondent Single Bench: Hon'ble Mr. T.P. Sharma, J ORAL ORDER (14-5-2009) 1. This is a petition under Section 482 ofthe Cr.P.C. challenging the order dated 17-3-2009 passed by the Sessions Judge, Raipur in Criminal Revision No.34/2009, directing the Judicial MagiStrate First Class, Raipurto registerthe case against the petitioners for the offence punishable under Sections 177, 191, 192, 193, 403,406, 420, 467, 468, 471 & 201 of the I.P.C. and taking cognizance against them. 2. The order is challenged on the ground that the revisional Court is not competent to pass the said direction. 3, I have heard learned counsel for the parties, perused the order impugned and copy of the -order dated 23-1-2009 passed by the Judicial Magistrate First Class, Raipur in Criminal Case No.1223/2008. '?';. ^;: S3 'S^s'Sf- 4. Case of the petitioners in nutshell is that respondent No.2 has filed a complaint before the Judicial Magistrate First Class, Raipur, against the petitioners for the offence punishable under Sections 177, 191,192,193,403,406, 420,467, 468 & 471 of the I.P.C. Instead of making enquiry under Chapter XV of the Cr.P.C., learned Judicial Magistrate First Class has directed the Police for investigation under Section 156 (3) of the Cr.P.C. The Police has filed report in terms of Section 156 (3) of the Cr.P.C. and submitted that no offence has been made out against the petitioners. After receiving report of the Police, the complainant/respondent No.2 has filed an application under Section 190 (1) (b) of the Cr.P.C. for taking cognizance on the basis of the material submitted on behalf of the Polige, but instead of taking cognizance on the basis of such material, the Judicial Magistrate First Class has proceeded for enquiry under .Chapter XV of the Cr.P.C. vide the order dated 23-1-2009 which was challenged in revision by respondent No.2 and the revisional Court has set aside the order passed by the Judicial Magistrate First Class, Raipur, and directed to register the case and issue process against the petitioners. 5. Learned counsel for the petitioners submits that the Judicial Magistrate First Class has not dismissed the application filed on behalf of respondent No.2 and has also not refused to take cognizance on the basis of the material collected and filed on behalf of the Police, but has proceeded under Chapter XV of the Cr.P.C. for which the Judicial Magistrate First Class is competent to do. Learned revisional Court has exceeded its jurisdiction by directing the Judicial Magistrate First Class for registration of case and taking cognizance of the offence against the petitioners for which the revisional Court is not competent in accordance with Section 398 of the Cr.P.C. 6. The petition is opposed on behalf of the State/respondent No.1. 7. Learned counsel appearing on behalfof respondent No.2 submits that he has 1-eceived notice on the stay application and the copy of the petition was not supplied to him. Learned counsel further submits that when the Police has collectedsubstantial material sufficient for taking cognizance.then the option is ?•& i:.._. , -'.:•-•• -s^Sfe; left to the Judicial Magistrate First Class to take cognizance on the basis of such material, but the Court has not taken cognizance and has not considered the material and has proceeded under ChapterXV ofthe Cr.P.C. and thereby the Court has committed illegality which has been rectified by the revisional Court and the revisional Court has not committed any illegality. 8. Admittedly, in the first instance, the Judicial Magistrate First Class, Raipur has not proceeded for enquiry in terms of Chapter XV of the Code on the basis of the complaint filed before it and directed for investigation under Section 156(3) of the Cr.P.C. But the order reveals that the report is not positive, therefore, the Judicial Magistrate First Class has proceeded for investigation under Section 156 (3) ofthe CrP.C. In this case, the Judicial Magistrate First Class, Raipur has not refused to take cognizance, but has proceeded in accordance with Chapter XV of the Cr.P.C. for which he is competent, especially in the light of negative police report. 9. Procedure for enquiry on the basis of complaints made to Magistrates is provided in Chapter XV of the Code and the Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the Magistrate is required to proceed for inquiry in accordance with Chapter XV of the Code, but if the Magistrate is not taking cognizance under Chapter XV of the Code, he is empowered to order for investigation of any cognizable offence to the police authority under sub- section (3) of Section 156 of the Code. After receiving the report of investigation as ordered under Section 156 (3) of the Code, if the report is positive, the Magistrate is required to take cognizance on the basis of the report, but if the report is negative, the Magistrate may take cognizance on the basis of the material collected on behalf of the Police without considering the report of conclusion. The Magistrate is also empowered to take cognizance on the basis of the complaint and proceed to examine the complainant & his . witnesses in accordance with the provisions of Chapter XV of the Code. \ 10. In the present case, after receiving negative report from the Police, the Judicial Magistrate First Class has opted to proceed under Chapter XV of the Code for which he was empowered. The Judicial Magistrate First Class has not committed any illegality or irregularity and has chosen the best option available to him. Learned Judicial Magistrate First Class has not refused to consider the materjal collected on behalf of the Police, but he has proceeded for inquiry under Chapter XV of the Code. 11. The revisional Court after examining the material collected by the Police during the course of investigation under Section 156 (3) of the Code has directed the Magistrate for taking cognizance of the offence and for issuing process. In this . ft^ case, the Judicial Magistrate First Class has not refused to consider the material or has not refused to take cognizance, but has chosen the best option for examining the complainant & his witnesses. In absence of any refusal or denial to consider the material collected by the Police, the order of the revisional Court is premature and the revisional Court has exceeded the jurisdiction vested on it. Therefore, the order impugned is not sustainable. 12. Consequently, the petition is allowed and the order impugned is set aside. The order dated 23-1-2009 passed by the Judicial Magistrate First Class, Raipur in Criminal Case No. 1223/2008 for initiation of enquiry in terms of Chapter XV of the Cr.P.C. is hereby restored. 13.1.A.Nos.1 & 2 stand disposed of. Soma Sd/- T.P. Sharma Judge