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DEVARAPALLI LAKSHMINARAYAN~ REDDY & ORS .

V. NARAYANA REDDY & ORS.

May 4, 1976

[R. S. SARKAillA, P. N. SHINGIIAL ANI> JASWANT SINGH, JJ.]

Code of Criminal Procedure, 1973, Ss. 156(3) anti 20lnresligati?n.t under-Difference bNWU/1 objcts of-Sec. 190(l){a) ''takillg cogni:wnd', meanillf o(.

On receiving a complaint :1gain;, t the appellants, for allegedly ~:ommiuin~ offences under ss. 147, 148, 307, 395, 448, 378 and 342, J.P.C., the Judicial Mngistiate, F.C. _Dhrmavaram, forwarded it to the . po!icc. under ~- 156(]) Cr.P.C. for investumtton. l11e appellants filed an npphcnlton 111 the Htgh Court under s. 482 Cc.P.C. 1973, R!r..ttDSt the 1\f:lgi.trnte's order, but the same wa.• dismis!>ed.

It was contended befOre this Court that the complaint include.l offence$ triable exclusively by the sessions Court, and under s. 202( l) Proviso

l(a), Cr.P.C. 1973, the Magitrate was prohibited from directing the police to investigate it, that be was bound to proceed with it himclf before issuing pro cess to the accused. The liPpeal was; Inter :tlia, cOntC'ltcd on the ground thJt the powers conferred on the Magistr.Jte under ~. 156(3) of the Codo nre independent of his powr to send the ca e for in vctig.1tion under s. 202 of tho Code.

Section I ~60) can be invoked before the :'-la~:i strn te ttkt'5 COAnizance o! the case but s. 202 comes into operation only after he tart.; dc;1line: with the c:t'm rl<tint in ueiordnce with the pro¥iions of C:h:lpter XV.

DismC,, iog the appeal of the Court,

HELD: (I l The pov..., r to orJcr police invc, lig:•tion un, kr .~. 156(3) ;, diiTcrcnt from the power to direct invc, tigt \un conferred by s. ~(12 (I). 1 he two opcrnte in distinct spheres at different s lug.:.~.

The fir, t i~ cx~:rci!.llblc at the precopnizance stage, the second nt the post-co;:niz.am:e tage when the Magi:; trutc is in sei5in of the case. An investigation under s. 202 is ''for the pue of deciding wethcr or not there i~ ufficicnt ground for proceeding". 11.:1 obje.:t in.ot to inlti:1te a fresh c:.'C on rolicc report, but to ns, ist the M~S.i5:ru:e in completing procceJin~, already in,; titutd upon ; t cotnpl:<int before him. The stafo'e nt which \. 202 couiJ hl:utn.; opcn.tivc wu~ !lever rcacheJ in thi,

~:~-.e. [DOB-H; 53 I Jjj

(2} When on recivina a Nmpbint, tb~ Magitratc upplie~ his mind for th~ purpose' of proceedtng under s. 201) o.ud the sueeding cction5 in cbopter XV of lh<! Code or 1973, he is said to have taken cogni:wnce of the otfo:nce within the men in~ of s. 90(1)(~). _lf i!'s<ed or proceedin~ under Chap:er xv. he ha• 10 the utrctse or h11 <lt•creuon, taken uctlon of ome other k.ind, he cnnnot be •:.id to h:ve taken co~:n.it.ance or any olfc:nce. i'26D-G)

G Nlrmaliit Sinlt /loon\'. 1/1t Stutt: vi H'rll /Jo•IIJ; al am( llnr. [197JJ 3 S.C'.C. 753, referred to.

CRIMI.'\AL Al'l'flLATr. JL'J<rSDlCTI0:-1: Criminnl Ap(Xnl No. 219 or 197.5.

_ ( Appc<tl by bpl!cial leave from the judgment nnd orJtr dalt:d. th.: 20th October, 1975. of the Andhra Pradesh High Court <tt Hydcrahad

in Criminal Misc. Petition No. 1890 of 197.5).

1'. Ba.1i Reddy, and A. V. V. Na1r, for the appellants .

. OJ. R. K. Clwudlwry and B. Kania R11o, for rcpondnt No. l.

P. Ram Reddy, and P. Parameslzwara Rao, for respondent Nos. 2 and 3.

A ,. 'The Judgment of the Court was delivered by

J.-Whether in view of Clause (a) of the first Proviso to s. 202( U of the Code of Criminal Procedure, 1973, a Magistrate ' who receives a complaint, disclosing an offence exclusively triable by =<

the Court of Session, is debarred from sending the same to the police for investigation under s. 156(3) of the Code, is the short question B:

~ that falls to be determined in this appeal by special leave.

The queitioo arises in these circumstances : !- Reipondent 1 herein made a complaint on July 26 .. 1975 before -( •

... the Judicial Magistrate, First Class, Dharamavaram against the appel-

Ian~ herein alleging that on account of factions existing in village Thippapalli the appellants formed themselves into an unlawful assembly, c armed with deadly weapons, such as axes, spears and sticks, on the night of June 20, 1975 and entered the houses of several persons ....._ belonging to the opposite party, attacked the inmates and forcibly took

away jewels, paddy, ground-nuts and other valuables of the total value of two lakhs of rupees. It was furthyr alleged that the miscreants thereafter went to the fields and removed parts of machinery worth

- ov.:r Rs. 40,000/-, installed at the wells of their enemies. On these D -~ facls it was alleged that the accused had committed offences under Si. 147, 148, 149, 307, 395, 448, 378 and 342 of the Penal Code.

The otl'ences under ss. 307 and 395 are exclusively triable by the Court of Session.

The Magistrate on receiving the complaint for- " warded j.~ to the Police for investigation with tbis endorsement :

~ "Forwarded under s. 156(3), Cr. Procedure Code to the Inspector of Police, Dharmavaram for investigation and E .. report on or before 5-8-197 5." '

The appellants moved the High Court of Andhra Pradesh by a petition unckr s. 482 of the Code of Criminal Procedure, 1973 (which correip<>nds to s. 561-A of the old Code) praying that the order passed by the Magistrate be quashed inasmuch as "it was illegal, unjust and gravely prejudicial to the petitioners". The learned Judge F

r of the High Court, who heard the petition,. dismissed it by an order dated October 20, 1975.

Hence this appeal. ; Mr. Basi Reddy, appearing for the appellants contends that the

joo High Court has failed to appreciate the true effect of the changes brought by the Code of 1973. According to the Counsel, under the G

1 new Code. if a complaint discloses an offence triable exclusively by a court of Session, the Magistrate is bound to proceed with that complaint himself before issuing process to the accused. The point pressed into argument is that clause (a) of the first Proviso to s. 202(1), of the new Code peremptorily prohibits the Magistrate o direct investigation of such a complaint by the Police or any other person. The - cases. Gopal Das v. State of AssamC); Jamuna Singh v. Bhadai u Shah(2), referred to by the High Court are sought to be distinguished

(1) {1961) A.T.R. 1961 S.C. 986.

(2) {19641 s s.c.R. 37.

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on the ground that they were decided under the old Code, s. 202 of which did not provide for any such ban as has been expressly enacted in the 1st Proviso to s. 202 of the new Code.

As against this, Mr. Ram Reddy, whose arguments have been adopted by Mr. Chaudahry, submits that the powers conferred on the Magistrate under s. 156(3) of the Cod~ are independent of his power to send the case for investigation under s. 202 of the Code; that the power under s. 156 (3) can be invoked at a stage when the Magistrate has no: taken cognizance of the case while s. 202 comes into operation after the Magistrate starts dealing with •the complaint in accordance with the Provisions of Chapter XV. It is urged that since in the instant case, the Magisrate had sent the complaint for police investigation withou.~ taking such cognizance s. 202 including the bar enacted therein, was not attracted. In the alternative, it is submitted that the ban in the 1st Proviso to s. 202, becomes operative only when the Magistrate after applying his mind to th~ allegations in the complaint and the other material,, including the statement of the complainant and his witnesses, if any, recorded under s. 200, is prima facie satisfied that the offence complained of ls triable exclusively by the Court of Session.

The point sough! to be made out is that a mere allegation in the complaint that the offence committed is one exclusively triable by the Court of Session, does not oust the jurisdiction of he Magistrate to get the case investigated by the police or other person.

The word "appears" according to Counsel, imports a prereauisite or condition precedent, the existence of which must be objectively and judicially established before the prohibition in the 1st Proviso to s. 202 becomes operative. It is added that in the instant case,, the existance of this condition precedent was not, and indeed could not be established.

It appears to us that this appeal can be disposed of on the firs-t ground canvassed by Mr. Ram Reddy.

Before dealing with the contention raised before us, it will be F appropriate to notice the relevant provisions of the old and the new Code.

Section 156 of the Code of 1973 reads thus :

"156(1). Any officer in charge of a police station may, without the order of a Magistrate, investigae any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the revisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be caUed in question on the ground that the case was one which such o!lker was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."

- ...

This provision is substantially the same as s. 156 of the Code of A 1898, excepting that in sub-s. (1) for the words "Chapter XV relating to the place of inquiry or trial," the words "Chapter xur have been substituted.

Sections 200 and 202 of the 1898 Code and the 1973 Code,. placed in juxtaposition, read as follows :

1898 Code s. 200 : A Magistrate taking cognizance of an offence on complaint shall at once examine the complaint and the witnesses present, if any, upon

oath and the substance of the examination shill! be reduced to writing and shall be signed by the complainant and the witnesses, and also

by the Magistrate ;

Provided as follows :-

(a} when the complaint is made in writing, nothing herein contained shall

b~ deemed to require a Magistrate to examine the complainant before transferring the case under section 192;

(aa) when the cpmphint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made

by a Court or by a public servant acting or purporting to act in the discharge of his official duties;

(b) where the Magistrate is a Presidency Magistrate, such examination may be on oath or not as the Magistrate in each case thinks fit, and where the complaint is made in writing need not be reduced to writing; but the Magistrate may, if he thinks fit,

before the matter of the complaint is brought before him, require it to be reduced to. writing ;

1973 Code s. 200 : A Magistrate taking cognizance of an offence on complaint shall exmine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to \\>riting and shall be signed by the cmplai nant and the witness~, 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 dutie~ or a Court has made the complaint; or

(b) if the Magistrate makes over the

case for enquiry or trial to another

Magistrate under section 192 ;

Providej further that if the Magistrate

make~ over the case to another Magistrate under section 192 after examining the complainant and the

witnesses, the latter Magistrate need not re-:!xamine them.

(c) when the case has been transferred

under section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.

Stc. 202

Postponement of issue of Process :~

(l) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or

Sec. 202

Postponement of Issue of process :-

(1) Any Magistrate, on receipt of a complaint of a:n offence which he is authorised to take cognizance or

528 SUPREi\iE COURT REPORTS

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which bas been made over to him under sec. 192, may if he thinks fit, which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance ofthe person complained against, and either inquire into the case himself or, if he is a Magistrate other than a

Magistrate of the third class, direct an inquiry 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;

postpone the issue of process against • the accused, and either inquire into the case himself or direct an inleStigation to be made by a police office£ or by such other person as he thinks fit, for the purpose of decidinl

whether or not there is 11ufficient ground for proceeding :

Provided that, save where the complaint Provided that no such.direction for investigation shall be made :- has been made by a Court, no such direction shall be made unless the (a) complainant has been examined on oath under the provisions of section

where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or 200.

(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a Police officer. such person shall exercise all the powers conferred by this Code on an officer in-charge of a Police-station. except that be shall not have tbe power to arrest without warrant.

(b) where the complaint has not beC1l

made by a Court, unless the complaint and the witnesses present (if any) have been examined on oatil under Section 200.

(2) H any inquiry under sub-section (1), the Magistrate may, if he thinkii fit, take evidence ofwitnesse~. on oath :

(2A) Any Magistrate inquiring into a Provided that if it appears 'to the Magis- Case under this section may, if he trate that the offence complained of thinks fit, take evidence of witnesses is triable exclusively by the Court of on oath.

Session, he shall call upon the COIIlplainants to produce all his witnesses and examine them on oath.

(3) This section applies also to the police (3) in the towns of Calcutta and Bombay.

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 Code on an officer incharge of a police station e~Ccept the power to arrest without warrant.

Before proceeding further, we may have a look at s. 190 of the new Code. This section is captioned "Cognizance of offences by Magistrates".

This section so far as it is material for our purpose, provides:

"Subject to the provisions of this Chapter, any Magistrate of the First Class and any Magistrate of the second class specially empowered in tp'i~ behalf may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(2)

(b) upon a pollee report o~ such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that suck offence has been committed. .. ·

It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the/ commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they

occwr cannot be equated with must take cognizance".

The word "'may" gives. a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under s. 156(3) will be conducive to j"ustioe

and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to takin~ cognizance of the offence, himself.

Thjs raises the incidental question : What is meant by "taking cognizan<:e of an offence'' by a Magistrate within the contemplation of s. 190 ?

This expression has not been defined in the Code.

But from the scheme of the Code, the content and marginal heading of s. 190 and the caption of Chapter XIV under which ss. 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Gourt takes cognizance of the offence alleged therein.

The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstance~. 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 s. 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of s. 190 ( 1 )(a). If, instead of proceeding under Chapter XV. 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 s. 156(3), he cannot be said to have taken cognizance of any offence.

" This position of law has been explained in several cases by this Court..., the latest being Nirmaljit Singh Hoon v. The State of West Bengal: and anrC).

- t

The position under the Code of 1898 with regard .to th.e pc_>wers of a Magistrate having jurisdiction, t? send a c?mplatnt d!sclosmg a H cognizable offence-whether or not tnable excluswely by the Court of

(1) [1973} 3 s.c.c. 753.

36-83~SCI/76

53()

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Session-to the Police for invesigation under s. 156(3}~ rer..ains unhangd nder the Code of 1973. The distinction between a police

mvesngatron ordered under s. 156(3) and the one directed under s. 202, has also been maintained under the new Code; bU! a rider has been clamped by the 1st Proviso to s. 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of

Session has been committed, he shall not make any directio:t for inve&tigation.

Section 156(3) occurs in Chapter XII, under the caption : "Information to the Police and their powers to investigate"; "rhile s. 202 is in Chapter XV which bears the heading "Of complaints to Magistrates".

The power , to order police investigation under s. 156(3) is different from the power to direct investigation conferred by s. 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 case.

That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under s. 156(3) can be invoked by

the Magistrate before he ttakes cognizance of the offence under s. 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 s. 156(3). It may be noted further that an order made under sub-section (3) of s. 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under s. 156(1 )_.

Such an investigation embraces the entire continuous pr~ cess which begins wi, th the collection of evidence under s. 156 and ends with a report or chargesheet under s. 173.

On the other hand s. 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 s. 202 to direct within the limits circumscribed by that section,

an investigadon "for the purpose of deciding whether or not here is sufficient ground for proceeding".

Thus the obiect of an investia, ation under s. 202 is not to initiate a freah case on police report but to assist the Magistrate in completing proceedings already nstituted upon a complaint before him.

In the instant case the Magistrate did not apply his. mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under s. 156(3).

He did not bring into motion the machinery of Chapter XV. He did not examine the complaint or his witnesses under s. 200, Cr.P.C., which is the first step in the procedure prescribed under that Chapter.

H The question of taking the next step o~ that procedure em-isaged in s. 202 did not arise. Instead of takiJlg cognizance of the offence. he has,, in the exercise of his discretion, sent the complaint f<:"r investigation by police under s. 156.

+ -

This being the position, s. 202(1), 1st Proviso was not attracted.

A Indeed, it is not necessary for the decision of this case to express any final opinion on the ambit and scope of the 1st Proviso to s. 202(1) cf the Codei of 1973, Suffice it to say, the stage at which s. 202 -could become~ operative was never reached in this case. We have therefore in keeping with the well-established practice cf the Court, <lecided only that much which was essential for the disposal of this appeal, and no more.

B For the foregoing reasons, we answer the question posed,, in the negative, and dismiss this appeal.

M.R.

Ap.peal dismissed.