Raj Kumar Adalkha And 5 Ors vs State Of U.P. And Another
2014 Latest Caselaw 3515 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 50
 

 
Case :- APPLICATION U/S 482 No. - 20272 of 2014
 

 
Applicant :- Raj Kumar Adalkha And 5 Ors
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- H.C. Mishra,V.P. Srivastava
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Tripathi,J.

Heard Shri V.P.Srivastava, learned senior counsel assisted by Shri H.C.Mishra,learned counsel for the applicants, learned AGA for the State and perused the record.

This Crl. Misc. application under Section 482 Cr.P.C. has been filed with the prayer to quash the proceeding of the Complaint Case No.4206 of 2011 under sections 420, 467, 468, 471, 120B, 323, 504, 506 I.P.C. and further prayer is to stay the proceeding of aforesaid case.

Learned counsel for the applicant submitted that after taking cognizance and recording the statement under section 200/202 Cr.P.C. the Magistrate concerned was required to proceed with the complaint and if prima facie offence was disclosed, then the summon might be issued and if prima facie no offence was disclosed, then the complaint was to be rejected under section 203 Cr.P.C. However, after taking cognizance as complainant case and after inquiry, the Magistrate concerned directed the civil police for investigation of the matter by impugned order dated 15.1.2004. After the complaint is filed either the Magistrate concerned would get the matter enquired or might pass order for investigation by the Police, under section 202 (1) Cr.P.C. but once the inquiry is conducted by recording statement under section 202/200 Cr.P.C. the Magistrate was not empowered to issue direction under section 202(1) Cr.P.C. for investigation hence the impugned order is liable to be quashed. He further contended that applicant no.1 is owner, 2, 3, 4 and 6 are not working at present and applicant no.5 is working as Additional Chief Manager in I.P.L. Sugar Mill Ltd. Unit Rohan Kalan Muzaffar Nagar. Proceeding has been initiated with malafide intention just to harass and blackmail though applicant have not committed any cheating or forgery.

Learned A.G.A. opposed aforesaid prayer and submitted that the Magistrate has power to issue direction for investigation to collect the evidence in exercise of power under section 202(1) Cr.P.C.

Considered the submission. The controversy raised in the present case is whether Magistrate has power to issue direction for inquiry/investigation in exercise of power under section 202 (1) Cr.P.C. to get the matter inquired/investigated by the police or his power is limited in nature. He can exercise the power of inquiry by himself or to get the matter inquired/investigated by the police or any other person and once he conducted inquiry, recording statement of complainant and witnesses then he will have no power to direct for investigation by Police. For considering the aforesaid controversy the relevant provisions are required to be considered, hence section 200 and 202 Cr.P.C. are quoted hereinbelow:-

Sec.200. 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.

Sec.202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2)In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3)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 in charge of a police station except the power to arrest without warrant.

According to provisions of section 200 Cr.P.C. when complaint is filed the Magistrate taking cognizance of offence shall examine the complainant and witnesses present, on oath, if any. The statement has to be reduced in writing and shall be signed by the complainant, witnesses and also by the Magistrate. However, examination of complainant and witnesses on oath is not required to be recorded if complaint is in writing by a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint. In view of the provisions of section 202 Cr.P.C. on receipt of a complaint of an offence of which he is authorised to take cognizance, the Magistrate, concerned, either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit to decide whether or not there is sufficient ground for proceeding. According to proviso of section 202 Cr.P.C. no such direction for investigation shall be made- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. As per proviso of section 202 (a) and (b) itself no direction for investigation has to be issued in case offence is exclusively triable by sessions or complaint has not been made by a court. Hence in both cases direction for investigation can be issued after examining the complainant and witnesses present, if any, on oath under section 200 Cr.P.C. Hence in view of the provisions itself the Magistrate has been empowered to issue direction for inquiry/investigation by the police or by such other person as the Magistrate thinks fit for the purpose of deciding the dispute whether there was sufficient ground to proceed with the complaint or not. Apart from that even otherwise if statement of complainant and witnesses present, if any, are recorded by the Magistrate while conducting inquiry himself and the Magistrate is satisfied that prima facie there is sufficient ground for proceeding then he will issue summon/warrant as the case may be. However, when after recording statement of complainant and witnesses, if any present, it was found that still there was no sufficient material for satisfaction to summon the witnesses he has to outrightly reject the complaint under section 203 cr.p.c. However, if the Magistrate feels it necessary for proper disposal of the case that the inquiry/investigation is required by the civil police to ascertain the correctness of the allegation whether true or false and to further ascertain whether there was reliable evidence in support of the complaint to justify the issuance of process and to commence the proceeding or not against the person concerned then the Magistrate can exercise power under section 202(1) Cr.P.C. to direct the civil police for investigation of the offence and submit the report before him.

In case of Devarapalli Lakshimanaraya Reddy Vs. Narayana Reddy, LAWS (SC) 1976-5-2 : 1976 C.R.L.J. Page 1361 three Judges Bench of the Supreme Court with regard to the power under Section 156(3) and 202 (1) Cr.P.C. held in para 8 "the power to order police investigation under, 156(3) 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 power under section 156(3) Cr.P.C. can be invoked before Magistrate takes cognizance of the offence under section 190 (1) Cr.P.C. However, if he takes once 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 was further observed 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 chargesheet 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. In view of the judgment of the Apex Court in case of Devarapalli Lakshimanaraya Reddy (supra) it is clear that direction in exercise of power under section 202(1) cr.p.c. by Magistrate for inquiry/investigation by the civil police is entirely different from the direction given under section 156(3) cr.p.c. and those direction can be issued by the Magistrate when after some evidence it was found that such evidence was insufficient to take a decision, then in exercise of power under section 202(1) cr.p.c. Magistrate is empowered to issue direction for inquiry/investigation by the civil police and to submit report before him, where proceeding is pending just to assist the Magistrate, concerned to take further decision for passing suitable order to issue summon or warrant, as the case may be. If sufficient evidence was available and prima facie commission of offence was disclosed then the Magistrate will proceed under section 204 Cr.P.C. otherwise will reject the complaint under section 203 Cr.P.C., if it was found by the Magistrate that no sufficient ground was there for proceeding. Hence under section 202 Cr.P.C. the object is to enable the Magistrate to consider and scrutinize, the complaint and evidence adduced before him and apply his mind, carefully, so any innocent person may not be summoned to face unnecessary, any frivolous and merit less complaint and on the other hand to ascertain whether there was any evidence in support of the allegation to justifiy the issuance of process and if Magistrate is satisfied then it is duty of the Magistrate to issue summon against the guilty persons under section 204 Cr.P.C.

At the stage of proceeding under section 202 Cr.P.C. in view of the judgment of the Apex Court in the case of Manharibhai Muljibhai Kakadia Vs. Saileshbhai Mohanbhai Patel LAWS (SC) 2012-10-1, the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.

In case of Tula Ram Vs. Kishore Singh LAWS (SC) 1977-10-19:AIR (SC)1977-0-2401 it was held by the Apex Court in para 7 as follows:-

"In these circumstances we are satisfied that the action taken by the Magistrate was fully supportable in law and he did not commit any error in recording the statement of the complainant and the witnesses and thereafter issuing process against the appellants. The High Court has discussed the points involved thread-bare and has also cited number of decisions and we entirely agree with the view taken by the High Court. Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge

1. That a Magistrate can order investigation under section 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 section 202 of the Code.

2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives :

(a) He can peruse the complaint and if satisfied that

there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of section 200 and record the evidence of the complainant or his witnesses. The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

3.In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.

4. Where a Magistrate orders investigation by the police, before taking cognizance under section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under section 190 as described above.

Hence in view of the judgment of the Apex Court in case of Tula Ram (Supra) if Magistrate decides to take cognizance under the provisions of Chapter XV then he is not entitled in law to order any investigation u/s. 156(3) though in cases not falling within the proviso to section 202, he can order investigation by the police which would be in the nature of any inquiry as contemplated by s. 202 of the Code. The order for investigation under section 156(3) Cr.P.C. can be issued only at the pre- cognizance stage, where Magistrate decide to take cognizance after perusing the complaint if satisfied that there are sufficient ground for proceeding he can straightaway issue process to the accused but before he does so, he has to comply with the requirements of section 200 and record the statement of the complainant and his witnesses present, if any. The other alternative before the Magistrate is to postpone the issue of process and direct an enquiry by himself or investigation by any other person or an investigation by the police. Hence it is clear that if after the statement under section 200 Cr.P.C. of the complainant and witnesses present, if any, the Magistrate finds necessary to get the matter inquired/investigated for proper disposal of the case then in exercise of power under section 202(1) Cr.P.C. the direction can be issued for inquiry/investigation by the civil police to assist the Magistrate for further proceeding with the case to pass order under section 203 or 204 as the case may be either to reject the complaint or to issue the process.

In case of Bhagat Ram Vs. Surinder Kumar 2004(11) SCC page 622, the fact of the case was that a complaint was filed before the Additional Chief Judicial Magistrate, Dehradoon on 22.5.2000 he made an order, after examining the complainant and his witnesses, that the matter needs further probe and, therefore, directed the investigation to be done by the police and referred the matter for investigation/inquiry by the police. On receipt of the police report, the matter was heard afresh by the Magistrate and, thereafter, summons were issued to the respondents before the Supreme Court. The order and action of the Magistrate was challenged before the High Court on the ground like in the present case that once the Magistrate has taken cognizance and proceeded to hold the inquiry further under section 202 Cr.P.C. he could not have referred the matter for inquiry/investigation by the police at all and he should have proceeded in the matter himself. The High Court allowed the petition and set aside the order passed by the Magistrate hence leave to appeal was preferred before the Supreme Court. It was observed by the Apex Court that the Magistrate has not done anything other than to comply with the provisions of section 200 and 202 Cr.P.C. (1) proviso of the Cr.P.C. that after examining the complainant and witnesses he found that it was necessary to probe in the matter and therefore, directed the investigation to be done by the police and if the investigation was done by the police and on report being filed by them, he heard the matter afresh and directed issue of summons.

It was further held that the procedure adopted by the Magistrate was perfectly in order. The order of the High Court was set aside and that of the Magistrate restored and the proceeding before the Magistrate was restored.

The controversy in the present case is identical and in the present case also, after recording statement of complainant and of the witnesses, who were present, the Magistrate found it necessary to get the matter inquired/investigation by police to come to the correct conclusion whether compliant is liable to be rejected under section 203 Cr.P.C. or the process has to be issued under section 204 Cr.P.C.

The paragraph 4 of the judgement of the Apex Court in case of Hari Singh Vs. State of U.P. 2006(5) SCC 733 is quoted hereinbelow:-

"When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg) through its President v. Union of India and Others [(1996) 11 SCC 582]. It was specifically observed that a writ petition in such cases is not to be entertained."

According to observation of the Apex Court in case of Hari Singh (supra) the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report.

In view of the aforesaid discussion it is clear that after recording evidence if the Magistrate finds it necessary for proper decision and to find out the truth that inquiry/investigation is required by the police then Magistrate is empowered under section 202 (1) Cr.P.C. to issue such directions. Further inquiry/investigation by the civil police under section 202 Cr.P.C. is entirely different from the investigation on the direction issued under section 156(3) Cr.P.C. The direction under section 156(3) Cr.P.C. is just to remind the police by issuing the direction to get the matter investigated, in accordance with section 156(1) Cr.P.C. However, inquiry/investigation under section 202 Cr.P.C. is not a fresh case but the report, by the police, has to be submitted after collecting material/evidence, before the Magistrate, concerned where proceeding is pending in compliance of order passed under section 202 Cr.P.C. The purpose of inquiry/investigation in direction of the Magistrate under section 202 Cr.P.C. is only to provide assistance to the Magistrate for satisfaction to proceed with the case hence like the investigation under section 156(1) Cr.P.C. the police is not required to proceed as fresh case and to submit report under section 173 Cr.P.C. but to submit the report before the Magistrate, concerned, in the complaint where the proceeding is pending. Hence in view of the above contention of the learned counsel for the applicant that Magistrate after taking cognizance and recording statement of complainant and witnesses, Magistrate has no power to issue direction to the civil police for inquiry/investigation has no force. However, his further argument is that for enquiry/investigation, under section 202 (1) cr.p.c. the police has not to proceed as a fresh case by registering the case and to arrest and file charge-sheet appears to be correct.

Further since in the present case there is inquiry/investigation on the direction under section 202(1) Cr.P.C. hence, the police, while conducting inquiry/investigation will not proceed as a fresh case and the police is also not expected to arrest applicants and or any other person as accused unless order/process is issued by the Magistrate, concerned before whom complaint is pending. The police is expected to conduct enquiry and submit report before the Magistrate, expeditiously.

In view of the aforesaid discussion, there is no illegality in the order passed by the Magistrate. As far as the disputed question of fact are concerned that has to be considered by the Magistrate, concerned independently whether applicants are involved and prima facie commission of offence is disclosed against them or not before issuing process, if any.

Accordingly present application under section 482 Cr.P.C. is hereby finally disposed off.

Order Date :- 23.7.2014

Pramod