CR.MA/15487/2007 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 15487 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ===================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================== PARSHOTTAMBHAI KARSHANBHAI SURANI & OTHERS Versus CHANDRIKABEN KARSHANBHAI SURANI & ANOTHER ===================================== Appearance : MR BHAVESH P TRIVEDI for the Applicants MR PRATAPRAY J VYAS for Respondent No.1 MR LB DABHI, APP for Respondent No.2 ===================================== CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 14/02/2008 ORAL JUDGMENT CR.MA/15487/2007 2/11 JUDGMENT 1. By this petition under section 482 of the Code of Criminal Procedure, 1973 (the Code), the petitioners seek quashment of the order dated 14th November, 2007 passed by the learned Judicial Magistrate First Class, Jetpur below Exhibit 1 in Criminal Inquiry Case No.88/07 being Jetpur City M.Case No.56 of 2007, whereby the learned Judicial Magistrate has directed investigation by the police under the provisions of section 156(3) of the Code. 2. The facts of the case stated briefly are that the respondent No.1 herein had lodged a complaint against the present petitioners before the learned Judicial Magistrate First Class alleging commission of offence punishable under sections 467, 468, 471, 504, 506(2), 406, 420 and 114 of the Indian Penal Code on 13th November, 2007. On the same day, the learned Magistrate has taken cognizance of the offence and examined the complainant on oath and reduced the substance of the examination in writing. Upon taking cognizance, the learned Magistrate directed inquiry to be carried out by the concerned Police Sub Inspector and to submit report within the period of 30 days. Subsequently, on the next day i.e. on 14th November, 2007, the learned Magistrate vide the impugned order has directed investigation by the police under the provisions of section 156(3) of the Code. Being aggrieved, the petitioners have moved the present petition seeking quashment of the said order. 3. Heard Mr. Bhavesh P. Trivedi, learned advocate for the CR.MA/15487/2007 3/11 JUDGMENT petitioners, Mr. Pratapray J. Vyas, learned advocate for the respondent No.1 and Mr. L.B. Dabhi, learned Additional Public Prosecutor for the respondent No.2. 4. Learned advocate Mr. Trivedi has submitted that once the learned Magistrate has taken cognizance under the provisions of section 200 of the Code and has after recording the statement on oath of the complainant, directed investigation by the police under section 202 of the Code, it is not open to the learned Magistrate to revert back to the pre- cognizance stage and direct investigation by the police under the provisions of section 156(3) of the Code. In support of his submissions the learned Advocate for the applicants has placed reliance upon various decisions of the Supreme Court as well as various High Courts, to which reference is made hereinafter. 5. The learned Advocate for the applicants has also addressed the Court on the merits of the case; however considering the view that this Court is inclined to take in the matter it is not necessary to deal with the other submissions advanced by the learned Advocate for the applicants. However, it is clarified that it would be open for the applicants to raise all the contentions, which are raised in the present petition at an appropriate stage before the trial Court. 6. On the other hand, Mr. Pratapray J. Vyas learned Advocate for the opponent No.1 has supported the impugned order passed by the learned Judicial Magistrate and has submitted CR.MA/15487/2007 4/11 JUDGMENT that the same is just, legal and proper and does not call for any intervention at the hands of this Court. 7. The law in this regard is well settled by a catena of decisions of the Supreme Court as well as other High Courts, which have been cited by the learned Advocate for the petitioner in support of his contentions. 8. In the case of Jamuna Singh and others v. Bhadai Shah, AIR 1964 SC 1541, the Supreme Court held as follows: “8.xxxxx. It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under S. 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence. It was so held by this Court in R. R. Chari v. State of U.P., 1951 SCR 312: (AIR 1951 SC 207) and again in Gopal Das v. State of Assam, AIR 1961 SC 986. 9. In the case before us the Magistrate after receipt of Bhadai Shah's complaint proceeded to examine him under S. 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under S. 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by S. 200 the Magistrate could have issued process at once under S. 204 of the Code of Criminal Procedure or could have dismissed the complaint under S. 203 of the Code of Criminal Procedure. It was also open to CR.MA/15487/2007 5/11 JUDGMENT him, before taking either of these courses, to take action under S. 202 of the Code of Criminal Procedure. That section empowers the Magistrate to "postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint". If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under S. 203 of the Code of Criminal Procedure. 10. We find that in the case before us the Magistrate after completing the examination under S. 200 of the Code of Criminal Procedure and recording the substance of it made the order in these words : "Examined the complaint on s.a. The offence is cognizable one. To S.I. Baikunthpur for instituting a case and report by 12-12-56." If the learned Magistrate had used the words "for investigation" instead of the words "for instituting a case" the order would clearly be under S. 202 of the Code of Criminal Procedure. We do not think that the fact that he used the words "for instituting a case" makes any difference. It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under S. 156(3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under S. 202 of the Code of Criminal Procedure and not under S. 156(3) of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under S. 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under S. 202 of the Code of Criminal Procedure and not under S. 156(3) of the Code. It would be CR.MA/15487/2007 6/11 JUDGMENT proper in these circumstances to hold that though the Magistrate used the words "for instituting a case" in this order of November 22, 1956 he was actually taking action under S. 202 of the Code of Criminal Procedure, that being the only section under which he was in law entitled to act.” 9. In the case of Devarapalli Lakshminarayana Reddy and others v. Narayan Reddy and others, AIR 1976 SC 1672, the Supreme Court held as follows: 17. 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 heading "Of complaints to Magistrate". The power to order police investigation under Section 156 (3) is different from the power to direct investigation conferred by Sec. 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 Sec. 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 embodied in Chapter XV, he is not competent to switch back to the pre- cognizance stage and avail of Section 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 CR.MA/15487/2007 7/11 JUDGMENT 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. 10. In the case of Tula Ram v. Kishore Singh, (1977) 4 SCC 459, the Supreme Court held as follows: “10. Analysing the scheme of the Code on the subject in question it would appear that Section 156 (3) which runs thus: Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned. appears in Chapter 12 which deals with information to the Police and the powers of the police to investigate a crime. This section is therefore placed in a Chapter different from Chapter 14 which deals with initiation of proceedings against an accused person. It is, therefore, clear that Sections 190 and 156 (3) are mutually exclusive and work in totally different spheres. In other words, the position is that even if a Magistrate receives a complaint under Section 190 he can act under Section 156 (3) provided that he does not take cognizance. The position, therefore, is that while Chapter 14 deals with post cognizance stage Chapter 12 so far as the Magistrate is concerned deals with pre-cognizance stage, that is to say once a Magistrate starts acting under Sec. 190 and the provisions following he cannot resort to Section 156 (3).” The Court interalia laid down the following principle: “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 and 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. “ 11 In the case of Suresh Chand Jain v. State of M.P. and another (2001) 2 SCC 628, the Supreme Court held that any CR.MA/15487/2007 8/11 JUDGMENT Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code of Criminal Procedure. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. 12. This Court in the case of Harshadbhai C. Patel v. Indravadan P. Shah and another 1986 (1) GLR 643 has held that on a complaint filed under section 190(1)(a) of the Code, the Magistrate may refer the complaint to the police officer for investigation under section 156(3) of the Criminal Procedure Code. This is a pre-cognizance stage i.e. before taking cognizance of the matter under sections 190, 200 and 204 of the Code. If he has followed the procedure under sections 200 or 202 of the Criminal Procedure Code, he has no jurisdiction to order any investigation under section 156(3) of the Criminal Procedure Code. Even the inquiry which; he directs under section 202 by a police officer would not be in the nature of an inquiry under section 156(3) of the Criminal Procedure Code but would be only under section 202 of the Code. 13. In the case of Mr. Rajaram Venkatesh and others v. The State of A.P. and others 1993 CRI. L. J. 707, a learned Single Judge of the Andhra Pradesh High Court after discussing various Supreme Court decisions on the issue held as follows: CR.MA/15487/2007 9/11 JUDGMENT “14. In view of the clear pronouncements of the Supreme Court in the above referred decisions, there cannot be any doubt whatsoever that there cannot be any reference of the case to the police under section 156(3) of the Cr.P.C. for investigation after taking cognizance of the offence under Section 190(1)(a) and recording the statements of the complainant and the witnesses present under Section 200 Cr.P.C.- after taking cognizance the Magistrate could order investigation by the police only under Section 202, Cr.P.C. and not under Section 156(3) of the Cr.P.C. The Supreme Court graphically demarcated the two investigations in D. Lakshminarayana’s case, AIR 1976 SC 1672, by stating that the two investigations operate in distinct spheres at different stages and that police investigation under Section 156(3) is at the pre-cognizance stage and the investigation directed under Section 202(1) is at the post-cognizance stage when the Magistrate is already in seisin of the case.” 14. Similar view is taken by the Rajasthan High Court in the case of Nathu v. State of Rajasthan 1996 CRI.L.J. 919, the Andhra Pradesh High Court in the case of T.K. Konandaram v. The State of A.P. and others 1993 CRI.L.J. 1926, the Punjab & Haryana High Court in the case of Sarup Ram v. State of Haryana 1977 CRI.L.J. 1420, the Calcutta High Court in the case of Joy Krishna Chakraborty and others v. The State and another 1980 CRI.L.J. 482, and the Karnataka High Court in the case of Goutam and others v. State of Karnataka 1992 CRI.L.J. 2897. 15. In the facts of the present case the learned Judicial Magistrate has examined the complainant on oath and has reduced the same in writing and has directed the concerned police officer to investigate into the matter and submit a report within 30 days. The fact that the learned Judicial Magistrate has examined the complainant on oath CR.MA/15487/2007 10/11 JUDGMENT makes it evident that the learned Judicial Magistrate has taken cognizance of the case. Therefore presumably the direction to the concerned police officer to investigate the case is passed under section 202 (1) of the Code. Thereafter by the impugned order dated 14th November, 2007 the learned Judicial Magistrate has directed investigation by the police under the provisions of section 156(3) of the Code. A perusal of the certified copies of the complaint and the orders passed thereon does not indicate any further application having been moved before the learned Judicial Magistrate so as to necessitate the passing of another order on the complaint. Hence, it is not clear as to what prompted the learned Judicial Magistrate to pass the subsequent order directing investigation under section 156(3) of the Code. However without delving into that aspect of the matter, the main issue which this Court is called upon to determine is as to whether after having taken cognizance of the offence by examining the complainant on oath, the learned Judicial Magistrate was justified in directing investigation by the police under the provisions of section 156(3) of the Code? 16. In the light of the decisions cited hereinabove, the only answer to the said issue can be that once having taken cognizance of the offence by examining the complainant on oath and directing the police to investigate the case under section 202 of the Code, it was not legally permissible to the learned Judicial Magistrate to switch back to the pre- cognizance stage and direct investigation under section 156(3) of the Code. Though the order dated 13th November, CR.MA/15487/2007 11/11 JUDGMENT 2007 does not clearly specify the provision under which it is made, considering the fact that the said direction has been given after examining the complainant on oath, the same can be construed to be an order under section 202(1) alone, as that is the only provision under which such direction could have been issued post-cognizance. In the circumstances, the impugned order dated 14th November, 2007 suffers from the legal infirmity of being contrary to the statutory provisions and as such cannot be sustained. 17. For the forgoing reasons the application succeeds and is, accordingly, allowed. The impugned order dated 14th November, 2007 passed by the learned Judicial Magistrate of the First Class, Jetpur, in Criminal Inquiry Case No.88 of 2007 whereby the learned Judicial Magistrate has directed investigation under section 156(3) of the Code is hereby quashed. Rule is made absolute accordingly. (H.N.DEVANI, J.) shekhar/-