Prem Das vs State Of U.P. And 5 Others
2021 Latest Caselaw 10255 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 84
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1328 of 2021
 

 
Petitioner :- Prem Das
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Ram Jatan Yadav
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Dr. Yogendra Kumar Srivastava,J.

1. Heard Sri Ram Jatan Yadav, learned counsel for the petitioner and Ms. Sushma Soni, learned Additional Government Advocate appearing for the State-Respondents.

2. The present petition under Article 227 of the Constitution of India has been filed principally for the following prayers:

"(i) To set aside the judgment order dated 19.10.2020 passed by Additional District and Sessions Judge, Room No.20, Agra in Criminal Revision No.408 of 2019 (Prem Das Vs. State of U.P. and Others) as well as order dated 31.05.2019 passed by Additional Chief Judicial Magistrate, Room No.6, Agra in Misc. Case No.24928 of 2019 (Prem Das vs. Sandeep Agrawal) under Section 156(3) Cr.P.C., Police Station -Hariparvat, District Agra. (Annexure Nos. 4 and 2 of this Petition).

(ii) To direct the respondent nos. 2 and 3 to register the first information report against the respondent nos. 4 to 6 and investigate the matter and submit the police report before the court concern in accordance with law."

3. The records of the case indicate that upon an application dated 4.2.2019 under section 156(3) of the Code of Criminal Procedure, 19731, the Additional Chief Judicial Magistrate, Court No. 6 Agra by means of an order dated 31.5.2019 has treated the same as a complaint and directed it to be registered as complaint case.

4. Learned Magistrate while passing the aforesaid order has noticed that the entire facts of the case are within the knowledge of the complainant and the necessary material evidence in regard to the same can be placed before the court by the complainant and in view thereof, there was no reason to direct investigation of the case by the police.

5. Aggrieved, against the aforesaid order the applicant preferred a revision being Criminal Revision No. 408/2019 which has also been rejected by order dated 19.10.2020, after recording similar reasons. Both the courts below have relied upon the legal proposition that the Magistrate is not bound to allow the application under section 156(3) of the Code and direct an investigation; in appropriate cases the Magistrate has a discretion to treat the application under section 156(3) of the Code as a complaint.

6. Learned counsel for the applicant has referred to the factual aspects of the case, as stated in the complaint, in order to assail the orders passed by the courts below.

7. Learned Additional Government Advocate has supported the order passed by the learned Magistrate as well as the Revisional Court by contending that a bare reading of the complaint would disclose that the necessary facts are within the knowledge of the applicant and accordingly, the view taken by the courts below that the case does not require any investigation by the police cannot be said to suffer from any illegality so as to call for interference.

8. The scope and parameters for exercise of discretionary powers by a Magistrate in dealing with a complaint on an application under section 156(3) of the Code, are fairly well settled.

9. The Magistrate upon receiving a complaint or an application under Section 156(3) of the Code, with regard to facts disclosing commission of an offence, "may take cognizance", which in the context of Section 190 of the Code, cannot be read as "must take cognizance". The use of the expression "may" under Section 190 of the Code gives a discretion to the Magistrate to either take cognizance or to forward the complaint to the police and order investigation under Section 156(3) of the Code.

10. The question as to whether it is mandatory for the Magistrate to order registration of a criminal case and direct the officer in charge of the concerned police station to hold a proper investigation, is no longer res integra and it has been consistently held that where a Magistrate receives an application under Section 156(3) of the Code, he is not bound to take immediate cognizance even if the alleged facts disclose commission of an offence.

11. In the case of Gopal Das Sindhi and others v State of Assam and another2, while considering the provisions of Section 190 of the Code it was held that once a complaint is filed a Magistrate is not bound to take cognizance as the word "may" cannot be construed so as to be "must" and it would be within the discretion of the Magistrate to send the complaint to the police for investigation under Section 156(3) of the Code or to exercise his discretion and take cognizance and thereafter proceed. It was stated thus:-

"7. ...We cannot read the provisions of S. 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under S. 156 (3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code..."

12. The question whether the Magistrate is bound to pass an order on each and every application under Section 156(3) of the Code containing allegations of commission of a cognizable offence for registration of the F.I.R. and its investigation by the police, even if those allegations, prima facie, do not appear to be genuine and do not appeal to reason, or he can exercise discretion in the matter and can pass an order for treating the same as "complaint" or to reject it in suitable cases, was referred for consideration before a Division Bench in Sukhwasi v State of U.P3, and the Division Bench answered the reference by holding that there is no legal mandate under which the Magistrate is bound to allow an application under Section 156(3) of the Code and he has a discretion to treat an application under Section 156(3) of the Code as a complaint. The observations made by the Division Bench are as follows:-

"23. The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under Section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under Section 156(3) Cr.P.C. as a complaint."

13. The power conferred upon the Magistrate to order investigation under Section 156(3) of the Code again came up for consideration before a Full Bench of this Court in Jagannath Verma and others v State of U.P. and another4, and taking note of the provisions contained under Section 190 of the Code which uses the expression "the Magistrate may take cognizance" and not "the Magistrate must take cognizance", it was held that under Section 190 a Magistrate is not bound, once a complaint is filed, to take cognizance even though the complaint may disclose a cognizable offence and he may well be justified in sending the complaint under Section 156(3) to the police for investigation.

14. The powers of the Magistrate, upon receiving complaint with regard to a cognizable offence again came up for consideration in the case of Madhao and another v State of Maharashtra and another5, and amongst the courses open, it was held that the Magistrate concerned can on the one hand invoke power under Section 156(3) of the Code, direct investigation in such matter and on the other hand he may take cognizance and embark upon the procedure embodied in Chapter XV. The relevant extracts from the judgment are as follows:-

"15. Chapter XIV of the Code speaks about conditions requisite for initiation of proceedings. Section 190 deals with cognizance of offences by Magistrates. In terms of sub-section (1) subject to the provisions of the said Chapter, any Magistrate of first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence:

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

(b) upon a police report of such facts;

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

16. Sub-section (3) of Section 156 of the Code enables any Magistrate empowered under Section 190 to order such an investigation in terms of sub-section (1) of that section.

17. In CREF Finance Ltd. vs. Shree Shanthi Homes (P) Ltd., (2005) 7 SCC 467, while considering the power of a Magistrate taking cognizance of the offence, this Court held: (SCC p.471, para 10)

"10. ...Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure."

It is clear that any judicial magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein.

18. 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. The Magistrate has discretion 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 Section 156(3) will be conducive to justice 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 taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of 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). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3)."

15. It may be apposite to refer to the case of Gulab Chand Upadhyaya v State of U.P. and others6, wherein considering the question whether the Magistrate was justified in directing that an application under Section 156(3) of the Code seeking for registration of an F.I.R. and investigation, be registered as complaint, certain guidelines were formulated for exercise of discretion by the Magistrate in regard to such cases. The relevant observations made in the judgment are as follows:-

"22. The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example

(1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or

(2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or

(3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trail (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of cases property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.

23. But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary cases to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202(1) Cr.P.C. order investigation, even thought of a limited nature..."

16. It is therefore seen that upon an application received under Section 156(3) of the Code disclosing a cognizable offence, the Magistrate may direct the police to register the F.I.R. and investigate or alternatively the Magistrate can take cognizance of the complaint, register it as complaint case and follow the procedure under Chapter XV of the Code. While exercising this discretion and taking either of the courses, it would be incumbent upon the Magistrate to apply judicial mind and the exercise of discretion would have to be guided by interest of justice, depending upon the facts of the case. In a situation where the investigation required is of a nature which can only be made by a police officer upon whom the statute has conferred the powers of investigation, the Magistrate may be well within his discretion to direct the registration of an F.I.R. and its investigation by the police officer. In a case where the complainant is in possession of the complete details of the case and also the material evidence, such that 'investigation' by the police may not be required, the Magistrate may follow the procedure of a complaint case.

17. The aforementioned legal position with regard to the exercise of discretion by the Magistrate upon receiving an application under section 156(3) of the Code has been considered in a recent judgment of this Court in Kailash Nath Dwivedi Vs State of U.P. and Others7.

18. Learned counsel for the petitioner has not been able to dispute the aforesaid settled legal position with regard to the ambit and scope of exercise of discretionary powers by a Magistrate under section 156(3) of the Code with regard to issuing a direction for registration of an F.I.R. and its investigation or in a case where the complainant is in possession of the complete details of the case and also the material evidence, issuing a direction for registration of the case as a complaint case.

19. The courts below having followed the aforestated principles with regard to the exercise of powers under section 156(3) of the Code, the orders, which are sought to be assailed by means of the present petition cannot be said to suffer from any infirmity so as to warrant interference in exercise of jurisdiction under Article 227 of the Constitution of India.

20. The petition stands accordingly, dismissed.

Order Date :- 13.8.2021

Nitendra/Kirti

(Dr. Y.K. Srivastava, J.)