Andhra Pradesh High Court - Amravati
Thadikonda Samuel Christofer vs State Of Ap on 8 July, 2021
Bench: Cheekati Manavendranath Roy
1
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Criminal Petition No.3742 of 2021
ORDER:
This Criminal Petition under Section 482 Cr.P.C. is filed
aggrieved by the docket order, dated 31.05.2021, of the
learned Additional Judicial Magistrate of First Class, Palakol,
West Godavari District, in SR No.749 of 2021, whereby she
has declined to forward the complaint under Section 156(3)
Cr.P.C. to the police for investigation and report.
2) Heard learned counsel for the petitioner and learned
Additional Public Prosecutor for the 1st respondent State.
3) Since the matter is at the pre-cognizance stage,
respondents 2 to 6 are not necessary parties to this Criminal
Petition. Therefore, notice to them is not required to be given.
4) The facts of the case show that the petitioner has filed a
complaint before the trial Court for the offence punishable
under Section 420 of IPC. It appears that the petitioner has
made a request before the trial Court to forward the said
complaint under Section 156(3) Cr.P.C. to the Station House
Officer, Palakol Town Police Station, for investigation and
report, as the matter requires investigation in a case relating
to cheating. The petitioner placed reliance on the judgment of
the Apex Court in Madhao v. State of Maharashtra1.
5) However, the trial Court by the impugned docket order
has declined to forward the said complaint under Section
(2013) 5 SCC 615 = 2013(3) ALT (Cri) 306
156(3) Cr.P.C. to the police and posted the matter for
recording the sworn statement of the complainant.
6) It is well settled law that when a complaint disclosed
commission of a cognizable offence, it is within the
competence of the Magistrate to forward the said complaint to
the police under Section 156(3) Cr.P.C. to investigate and file
report. No doubt, the Magistrate also is empowered to
conduct enquiry under Section 202 Cr.P.C. and record the
sworn statement of the complainant and other witnesses if
any and take cognizance of the case. But, the grievance of
the petitioner is that as the case is relating to the offence of
cheating, punishable under Section 420 of IPC, it would be
conducive to justice if the police investigates the case.
Therefore, when the Court is empowered under Section 156(3)
Cr.P.C. to order for investigation before taking cognizance of
the case, the trial Court ought to have forwarded the said
complaint under Section 156(3) Cr.P.C. to the police to
investigate and submit report. This would also save the time
of the trial Court.
7) In the judgment of the Apex Court relied by the
petitioner before the trial Court, in Madhao v. State of
Maharashtra1, the Apex Court held in para 13 as follows:-
"13. 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). ...."
8) Therefore, the learned Magistrate ought to have
considered the request of the petitioner and ought to have
forwarded the complaint under Section 156(3) Cr.P.C. to the
police to investigate and submit report. No valid reasons are
assigned in the impugned docket order to decline to forward
the complaint to the police under Section 156(3) Cr.P.C.
9) Therefore, the Criminal Petition is allowed. In the said
facts and circumstances of the case, the impugned docket
order, dated 31.05.2021, is hereby set aside. Matter is
remanded to the learned Additional Judicial Magistrate of
First Class, Palakol, West Godavari District, to hear the
petitioner and to consider his request and forward the
complaint to the concerned Police under Section 156(3)
Cr.P.C. for investigation and to submit report. The said
exercise has to be done within two weeks from the date of
receipt of a copy of this order or from the date on which a
copy of this order is produced before the learned Magistrate
by the petitioner, whichever is earlier.
The miscellaneous petitions pending, if any, shall also
stand closed.
________________________________________________
JUSTICE CHEEKATI MANAVENDRANATH ROY
Date:08.07.2021.
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