Bombay High Court
Mr.Panchabhai Popotbhai Butani vs The State Of Maharashtra on 10 December, 2009
Bench: A.M. Khanwilkar, R. S. Dalvi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 270 OF 2009
ALONG WITH
CRIMINAL WRIT PETITION NOS.1445 OF 2009,
2031 OF 2009, 2408 OF 2009, 2737 OF 2009
AND 2883 OF 2009
CRMINAL WRIT PETITION NO. 270 OF 2009
1) Mr.Panchabhai Popotbhai Butani )
Age 50 years, Occ. : Business
ig )
2) Bhanubhai Ravjibhai Talaviya )
Age 48 years, Occ. : Business )
3) Jitendra L. Chheda )
Age 42 years, Occ. : Business )
4) M/s Jay Enterprises )
A partnership firm through its partners )
Petitioner Nos.1 to 3, all having address )
at Gouripada, Behind Survodaya Heights )
Building, Near New R.T.O. Office, Birla )
School Road, Kalyan (W), 421 301. )..PETITIONERS
VERSUS
1) The State of Maharashtra )
through Senior Inspector, Mahatma Phule )
Police Station, Kalyan. )
2) M/s Satyam Shelters Pvt. Ltd. )
A Company duly registered under the )
provision of Companies Act, having its )
registered office at BC, 2nd Floor, )
Sudhanshu Chambers, Shivaji Path )
Kalyan (W), through its Director )
Mr. Kundanmal Jiandmal Wadhwa )
::: Downloaded on - 09/06/2013 15:23:47 :::
2
3) Hasmukh Vrajlal Dave )
4) Milind Yashwant Parlikar )
Respondent Nos.3 and 4, Directors of )
Respondent No.2, having the same )
address as that of Respondent No.2 )..RESPONDENTS
WITH
CRMINAL WRIT PETITION NO.1445 OF 2009
1) Enercon GmbH, a company incorporated )
and existing under the laws of Germany )
and having its registered office at
ig )
Dreekamp 5, D26605, Aurich, Germany. )
2) Dr. Aloys Wobeen, German Inhabitant )
having his office at Dreekamp 5, D26605 )
Aurich, Germany. )
3) Hans-Dieter Kettwig, German Inhabitant )
having his office at Dreekamp 5, D26605 )
Aurich, Germany. )
4) Stefan Knottnerus Meyer, German )
Inhabitant, having his office at Dreekamp )
5, D 26605, Aurich Germany. )
5) Wolfgang Juilfs, German Inhabitant )
having his office at Dreekamp 5, D26605 )
Aurich, Germany. )
6) Nicole Fritsch-Nehring, German Inhabitant )
having her office at Dreekamp 5, D26605 )
Aurich, Germany. )
7) Christoph Buttner, German Inhabitant )
having his office at Dreekamp 5, D26605 )
Aurich, Germany. )
::: Downloaded on - 09/06/2013 15:23:47 :::
3
8) Warner Popkes, German Inhabitant )
having his office at 26789 Leer, Germany )
9) Rainer Boehm, German Inhabitant )
having his office at Zippelhaus 5, 20457 )
Hamburg, Germany. )..PETITIONERS
VERSUS
1) The State of Maharashtra (through the )
Sr. Inspector of Police, Economic Offences )
Wing - Unit III, Crime Branch, CID )
Compound of the Office of Commissioner )
of Police, Brihan Mumbai, Annex Building )
III, 2nd Floor, Near Phule Market )
Mumbai 400 001.
ig )
2) Yogesh J Mehra, Indian Inhabitant )
residing at 101, Hare Krishna Residency )
Society, J.V.P.D. Scheme, North South )
Road No.8, Vile Parle (W), Mumbai 400049 )
and having his office at Plot No.9A, )
Veera Desai Road, Andheri (West), )
Mumbai 400 053. )
3) The Senior Inspector of Police )
Oshiwara Police Station, Mumbai. )..RESPONDENTS
WITH
CRMINAL WRIT PETITION NO.2031 OF 2009
George Punnackal Joseph )
Indian Inhabitant of Mumbai, age 60 years, )
Senior Citizen, having his Mumbai office at )
Leo Land, Leo Hill Road, I.I.T., P.O. Powai )
Mumbai 400 076, carrying on business in the )
name and style of M/s.G.F. Builders, as a )
Sole Proprietor thereof and presently residing )
at C.P.1/2, Leo Punnackal, South Chellanam, )
Cochin 682008, Kerala. )..PETITIONER
::: Downloaded on - 09/06/2013 15:23:47 :::
4
VERSUS
1) The State of Maharashtra )
through Senior Inspector of Police )
Bhandup Police Station, Bhandup (W) )
Mumbai 400 078. )
2) Dasharath Patil )
Inspector of Police and Investigation )
Officer, Bhandup Police Station )
Bhandup (W), Mumbai 400 078. )
3) Digamber Rajaram Nakashe )
of Mumbai, Indian Inhabitant residing at
ig )
279/B-26, 1st Floor, Sambhaji Nagar, )
N.M. Joshi Marg, Mumbai 400 013. )..RESPONDENTS
WITH
CRMINAL WRIT PETITION NO.2408 OF 2009
1) Prabodh Artha Sanchay Pvt. Ltd. )
A Company registered under Companies )
Act, 1956 and having its office at Prabodh )
1070, Shukrawar Peth, Subhashnagar )
Lane No.5, Pune 411 002. )
2) Mr. Mohan Chimanlal Gujarati )
3) Mr. Ramchandra Sadashiv Dimble )
both Indian Inhabitants having their )
address at Prabodh, 1070, Shukrawar Peth )
Subhashnagar, Lane No.5, Pune 411002. )..PETITIONERS
VERSUS
::: Downloaded on - 09/06/2013 15:23:47 :::
5
1) M/s. Synthesis Equity Research Foundation )
Pvt. Ltd., a company registered under the )
Companies Act, 1956, and having its office )
at 32 Artek, Yojak Apartment, Madhusudan )
Kalelkar Marg, Bandra (East), )
Mumbai 400 051. )
2) The State of Maharashtra )
through the Public Prosecutor )
High Court, (A.S.), Bombay. )
3) The Senior Inspector of Police )
MRA Marg Police Station, Mumbai. )..RESPONDENTS
WITH
CRMINAL WRIT PETITION NO.2737 OF 2009
Shri D.M. Mehta )
Age 44 years, Occ.: Business )
R/o. 202, Vasant Gandhi Gram Road )
Juhu, Mumbai 400 049. )..PETITIONER
VERSUS
1) Niket Mehta )
Residing at 12th Floor, Lilavati Hospital )
Bandra Reclamation, Bandra (West) )
Mumbai 400 050. )
2) State of Maharashtra )
through the Public Prosecutor )
High Court, Bombay. )..RESPONDENTS
::: Downloaded on - 09/06/2013 15:23:47 :::
6
WITH
CRMINAL WRIT PETITION NO.2883 OF 2009
1) Jignesh Jasvantrai Shah )
2) Aruna Jasvantrai Shah )
3) Kaushik Jasvantrai Shai )
4) Hemal Kaushik Shah )
All Adults, All partners of Crescent )
Builders, a partnership firm regd. Under
ig )
the provisions of Indian Partnership Act, )
1932, having their office at E-1/15, )
Bharat Nagar, 342, Maulana Shaukat )
Road, Mumbai 400 007. )..PETITIONERS
VERSUS
1) Shapoorji Pallonji & Co. Ltd. )
a Company having its registered office )
at 70 Nagindas Master Road, Fort )
Mumbai 400 023 through its )
representative Mrs.Alpa Kapadia having )
her office at S.P. Mistry Building, Ground )
Floor, Shop No.2, R.K. Shirodkar Marg )
Parel, Mumbai 400 012. )
2) Senior Inspector of Police )
Bhoiwada Police Station )
Bhoiwada, Dadar, Mumbai. )
3) State of Maharashtra )..RESPONDENTS
::: Downloaded on - 09/06/2013 15:23:48 :::
7
Mr. D.S. Mhaispurkar for the Petitioner in W.P. No.270/2009.
Mr. Satish Maneshinde, Senior Advocate, a/w Mr. Ashish Chavan
and Mr. Vivek Vashi i/b M/s.Bharucha & Partners for the
Petitioners in W.P. No.1445/2009.
Mr. Shirish Gupte, Senior Advocate, i/b Mr. A.R. Pande for
the Petitioners in W.P. No.2031/2009.
Mr. Shirish Gupte, Senior Advocate, a/w Mr. Gaurav Agrawal
and Ms.Urvashi Tapas i/b M&M Legal Venture for the Petitioners
in W.P. No.2408/2009.
Mr. Ayaz R. Khan a/w Nilofar Sayed for the Petitioners in
W.P. No.2737/2009.
Mr. Shirish Gupte, Senior Advocate, a/w Mr. S.A. Sawant,
Mr.H.V. Kode and Mr. Sachin Kadam for the Petitioners in
W.P. No.2883/2009.
Mr. K.V. Sasta, Additonal Public Prosecutor, for the State in
all the Writ Petitions.
Mr. Sharif Shaikh, Mr. Y.K. Mirza and Mr. Santosh Pal for
Respondent Nos.2 to 4 in W.P. No.270/2009.
Mr. Amit Desai, Senior Advocate, a/w Mr. Samsher Garud,
Mr. Pankaj Sutar and Mr. N. Chaudhary i/b. Khaitan & Jayakar
for Respondent No.2 in W.P. No.1445/2009.
Mr. S.G. Shirsat for Respondent No.3 in W.P. No.2031/2009.
Mr. K.G. Menon, Senior Advocate, a/w Mr. J.L. Phoujdar
for Respondent No.1 in W.P. No.2408/2009.
Mr. A.P. Mundargi i/b Mr. V.V. Purvant for the Respondents
in W.P. No.2883/2009.
CORAM : SWATANTER KUMAR, C.J.,
A.M. KHANWILKAR AND
SMT. R.S. DALVI, JJ.
JUDGMENT RESERVED ON : 25TH NOVEMBER 2009
JUDGMENT PRONOUNCED ON : 10TH DECEMBER 2009
JUDGMENT : (PER SWATANTER KUMAR, C.J.)
Preamble of our Constitution guarantees to a citizen
justice, liberty, equality and fraternity. All these are possible only
when there is rule of law. The rule of law could discernibly be
dissected into two well accepted concepts : (i) governance and (ii)
administration of justice. They are not only the pillars of the
Constitutional mandate, but are linchpin to the growth, development
and independence of any nation or society. Governance obviously
means good governance and it refers to the task of running the
Government in an effective manner. Right to a legitimate and
accountable government under which fundamental rights and human
rights are respected and the Government controlled by the rule of
law are the basic elements of good governance. Rule of law indicates
good governance which requires fair legal framework that enforce
law impartially. Impartial enforcement of laws requires an
independent judiciary and an impartial and incorruptible police
force.
2. Edward W Younkins in "The Purpose of Law and
Constitutions" has noted, "The rule of law requires that people
should be governed by accepted rules, rather than by the arbitrary
decisions of rulers. These rules should be general and abstract,
known and certain, and apply equally to all individuals." Law is the
activity of subjecting human behaviour to the rules of governance.
The rule of law is concerned with regulating the use of power and its
imperative is that this power is not misused. The rule of law ensures
that Judges decide disputes in terms of the existing, known and
general rules and not according to the perceived desirability of
particular outcomes. In a free society, each person has a recognized
private sphere, a protected rule which government authority cannot
infringe upon and the purpose of law is to preserve freedom and
moral agency. (See : www.quebecoislibre.org).
3. Where rule of law is strong, people uphold the law not
out of fear but because they have a stake in its effectiveness.
Virtually any State, after all, can enact laws and maintain respect and
pursue genuine rule of law. Genuine rule of law requires the
cooperation of State and society and is an outcome of complex and
deeply rooted social processes. (Ref.: "Good Governance: Rule of
Law, Transparency and Accountability" by Michael Johnston,
Department of Political Science, Colgate University).
4. The primary purpose of law is to regulate the flow of
human interaction to prevent and check harm not only to the person
and property of an individual but against the society as a whole.
Crime is the main reason people believe that societies have law,
which is true. If one looks at the expression "crime", it normally
could be explained as what society as a whole does not want to be
allowed. The Legislature has created laws to have the security to live
and work in peace and harmony and not having to worry about
concentrating on ways and means to protect themselves against
crime of any kind. (Ref.: http:// cjencyclopedia.com/index.php?
title-Purpose of Law).
5. Within the realm of codified laws, there are generally
two forms of laws with which the Courts are mainly concerned. Civil
laws are rules and regulations which govern transactions and
grievances between individuals, while criminal law is concerned with
action which are dangerous or harmful to a society as a whole in
which prosecution is pursued not by an individual but rather by the
State. The purpose of criminal law is to provide the specific
definition of what constitutes a crime and to prescribe punishments
for it. In absence of any of these factors probably the essentials of
criminal law would not be satisfied. (Ref.: Criminal justice -
Wikipedia, the free encyclopedia - http://en.wikipedia.org.).
6. It is not only the obligation of the State administration
but for that matter even of the Courts to ensure that a fair and
effective criminal justice system is in place and is implemented.
Administration of criminal justice system has two primary facets -
investigation and trial leading to punishing the guilty offender.
7.
In India, the administration of criminal justice system is
controlled under the provisions of the Criminal Procedure Code,
1973 (hereinafter referred to as "the Code"). Like in many other
parts of the world, under the Indian criminal jurisprudence, the
system accepts two procedures for redressing the grievance of a
victim against the offender including that by the State itself. The
Criminal Procedure Code is concerned with "how the law is
enforced". Criminal law involves "what law is enforced".
8. The two accepted methods for enforcing administration
of criminal justice system are a direct access and invocation of the
Courts system, while the other is adopting the channel through the
State agency. (Police/Investigating agency). The option is available
to a complainant or a victim or anybody for that matter and the
provisions of the Code provide a detailed statutory scheme for
invocation, implementation, trial and punishment of a guilty person
under these different methodologies. In the event a person chooses
to approach a police station and makes a report of a cognizable
offence, the police is under an obligation to register First Information
Report (FIR) except in certain exceptional cases where some kind of
preliminary inquiry may be necessary in the facts and circumstances
of that case before registration of an FIR. However, even there, the
officer in charge of a police station is under obligation to make an
entry in the daily diary register as per police rules and thereafter
within the shortest possible time must register an FIR in accordance
with law. (Ref.: Sandeep Rammilan Shukla v State of Maharashtra,
2009 (1) Mh.LJ 97).
9. Where a person has approached the police station under
Section 154 but the police station does not register FIR as
contemplated under law, he has a right to make a complaint to the
higher authorities in terms of Section 154(3) of the Code and such
higher authority exercising the powers of an officer incharge of a
police station would investigate the matter himself or direct the
investigation to be conducted by another police officer subordinate to
him. In the event the information of any kind received by the police
officer incharge of a police station relates to commission of a non-
cognizable offence, he is obliged to proceed in accordance with the
provisions of Section 155 of the Code. The Legislature provides a
specific protection in terms of Section 156(3) of the Code and gives
a right to a person to approach the court of competent jurisdiction
for issuance of a direction to a police officer to investigate the matter
in accordance with law. Once the investigation is completed by the
investigating agency, it is required of the said agency to file
appropriate report in terms of Section 173 of the Code, whereupon
the Court competent to try such an offence would take cognizance
and conduct the trial and punish the offender, if found guilty, in
accordance with law.
10. The other branch of the procedural law under the Code
is where any one may approach the Court of competent jurisdiction
by institution of a complaint in terms of Section 200 of the Code.
Once such a complaint is filed and it is shown to the satisfaction of
the Magistrate taking cognizance of the offence that offence has been
committed, he shall follow the procedure prescribed under Chapter
XV of the Code. Interestingly, even when a complaint is received by
the Magistrate in terms of Section 200 of the Code, he can issue
summons, conduct an inquiry himself or direct an investigation to be
made by a police officer or such other person as he thinks fit.
11. The Magistrate exercising powers under Section 159 is
also expected to proceed with the matter in accordance with the
provisions of the Code upon receipt of the report in terms of
Sections 157 and 158 and either direct an inquiry by a Magistrate
subordinate to him or may direct investigation.
12.
This is the entire gamut of procedure for any one
desirous of putting a criminal justice system into motion. In fact, as
stated by the Supreme Court in the case of A.R. Antulay v Ramdas
Sriniwas Nayak and another, (1984) 2 SCC 500, it was clearly stated
that scheme underlying the Code of Criminal Procedure clearly
reveals that anyone who wants to give information of an offence may
either approach the Magistrate or the officer in charge of a police
station. It also stated that it was open to the Magistrate but not
obligatory upon him to direct investigation by police. Thus, two
agencies have been set up for taking offenders to the Court. These
observations of the Supreme Court, of course, were made where the
Court was not concerned with the ambit, scope and application of
the provisions of Section 154 and for that matter Section 156 of the
Code.
13. The purpose of indicating the above enunciated law is to
demonstrate that a codified law, as accepted by judicial dictums, only
accepts two distinct procedures to be adopted by any one desirous of
invoking the provisions and/or putting the mechanism of criminal
justice system into motion.
14.
A Division Bench of this Court in the case of Jitendra
Chandrakant Mehta v M/s Shamrock Impex Pvt. Ltd. and others, 2006
Cri.L.J. 3131, took the view that absence of any prayer of taking
action against the accused, does not affect the legality and validity of
the complaint. Once the complaint gives the essential ingredients of
the offence, the complaint could not be treated as defective.
Discussing the scope of Section 156(3) of the Code, the Bench held
as under :-
"18. ..... When Vijay Shankar Nigam lodged the
report, police registered an offence and started
investigation. Thereafter, the said Vijay Shankar
Nigam moved the Magistrate having jurisdiction
to take cognizance of the offence that the false
report has been lodged against him and therefore
by invoking the powers under section 159 of the
Code of Criminal Procedure that investigation may
be stopped and the Magistrate may make further
preliminary enquiry. The Magistrate allowed that
prayer. The matter went to the High Court. The
High Court quashed the order of the Magistrate
and held that police were at liberty to conclude
the investigation and submit their report to the
Magistrate. In that background, the matter went
to the Supreme Court. Obviously, the issue before
the Supreme Court was whether the Magistrate
has powers under section 159 of the Criminal
Procedure Code to stop investigation, as prayed.
In view of this background, the aforesaid
observations of the Supreme Court heavily relied
upon by Mr.Chitnis are of no use to him. We do
not agree with his submissions and his contention
that before filing of the complaint before the
Magistrate in respect of cognizable offence
without approaching the police, is required to be
rejected, and is hereby rejected."
15. Another Division Bench of this Court in the case of
Panchabhai Popotbhai Butani and others v The State of Maharashtra
and others, (Writ Petition No. 270 of 2009 dated 14th August
2009) formed the opinion that the Bench was to agree with the
conclusions arrived at by the Division Bench in the case of Jitendra C
Mehta (supra) and directed that the matter may be placed before a
larger Bench vide its order dated 14th August 2009. The order of
reference reads as under :-
"1. This petition raises question about the scope
of Section 156(3) of the Criminal Procedure Code
as to whether in the absence of a complaint to the
police, a complaint can be made directly before a
Magistrate. It also raises a question as to whether
without filing a complaint within the meaning of
Section 2(d) and praying only for an action under
Section 156(3) a complaint before a Magistrate
was maintainable. There is a judgment of this
Court (Jitendra Chandrakant Mehta v
M/s.Shamrock Impex Pvt. Ltd. and others)
reported in 2006 (4) Mh.LO.J. 355. We feel large
number of cases come to this Court which raises
same questions of law and, therefore, this issue
needs to be decided by a Larger Bench as we do
not find ourselves in agreement with some of the
conclusions of the earlier Division Bench. Let the
matter be placed before the Hon'ble the Chief
Justice for transmission before a Full Bench. ......"
16. From the bare reading of the above Order of Reference,
it appears to contain two questions, namely, (i) whether in absence
of a complaint to the police, a complaint can be made directly before
a Magistrate ? and (ii) whether without filing a complaint within the
meaning of Section 2(d) and praying only for an action under
Section 156(3), a complaint before a Magistrate was maintainable ?
17. The first question primarily is a question of law
simplicitor, while the later relates to the procedural aspect of the
same facet of law. The Bench probably was not able to contribute to
the view of the Division Bench in Jitendra Mehta (supra) that before
filing of a complaint before a Magistrate in respect of a cognizable
offence, it was not necessary to approach the police. In other words,
the question raised is as to whether filing of a complaint under
Section 154 is a condition precedent to invocation of powers of the
Magistrate under Section 156(3). The other aspect relates to the
format and contents of a complaint/application filed under Section
156(3) of the Code. The earlier Division Bench in Jitendra Mehta
(supra) had taken the view that the complaint if not containing
detailed facts or where there is absence of any specific prayer would
not affect the legality and validity of the complaint and the
Magistrate competent to take cognizance under Section 190 of the
Code was competent to issue directions for investigation in terms of
Section 156(3) of the Code.
18. Number of matters were directed to be placed before the
Full Bench in view of the Order of Reference made in Writ Petition
No.270 of 2009. We are of the considered view that it would be
appropriate to refer to necessary facts which led to passing of the
Order of Reference. We would be referring only to the limited facts
and that too in Criminal Writ Petition No.270 of 2009 and Criminal
Writ Petition No.2883 of 2009.
19. In Criminal Writ Petition No.270 of 2009, Respondent
No.2 had entered into a registered development agreement on 9 th
July 1997 with one Krishna Hari Tiwari in respect of a land
admeasuring 6309.19 sq.mtrs. of Survey No.38, Hissa No.1/1
situated at Mauje Gauripada, Taluka Kalyan, District Thane.
Respondent No.2 was not able to complete the development
agreement and he further agreed to transfer the development rights
in favour of Petitioner No.2 by means of a Memorandum of
Understanding dated 25th May 2002. Certain rights and obligations
were created by the respective parties by means of these documents.
Petitioners were to give an additional area of 2000 sq.ft. to the
original owner and deposit a sum of Rupees Four lakhs with
Respondent No.2 for due performance of the agreement. To
implement the agreement between the parties effectively,
Respondent No.2 also executed a Power of Attorney dated 24th
February 2003 in favour of the Petitioners. The Petitioners initially
carried out the development of the said property. Certain disputes
arose between the parties. According to the Petitioners, they had
carried out the development in terms of the agreement between the
parties and even handed over the flats to Respondent No.2, while,
according to Respondent No.2, he had disputed the complete and
effective execution of the development agreement which was denied
by the Petitioners who stated that disputes created by Respondent
No.2 were frivolous. Certain demands were raised by the respective
parties against one another. The original owners of the property also
raised a dispute that the flats had not been allotted to them as
agreed. The KDMC issued a completion certificate on 16th October
2007. Certain correspondence was exchanged between the parties
through their Counsel and allegations made by each other were
refuted. Somewhere on 15th April 2008, the Petitioners claimed to
have handed over the area of 7000 sq.ft. and the original owners
executed a writing releasing the Petitioners as well as Respondent
No.2 from any liability. Respondent No.2 proceeded with their
application that Petitioners had committed the breach of directions of
the agreement and not handed over the requisite flat areas to the
original owners and the deed was a forged document. On these
averments, Respondent No.2 filed a criminal case being Case No.
344/2008 before the learned JMFC Court No.1, Kalyan and prayed in
the application that under Section 156(3), the Court should direct
the police station to investigate the matter and take appropriate
action. Upon the application of Respondent No.2, the Magistrate
passed an order directing the concerned police station to investigate
the matter. In furtherance thereto, on 8th October 2008, the
concerned police station registered an FIR being FIR No.1/369 for an
offence under Sections 420 read with 34 IPC. Upon registration of
this FIR, Petitioner Nos.1 to 3 were arrested and subsequently
released on bail. Compelled with these circumstances, the
Petitioners filed the present Petition on 31st January 2009 praying
that CR No.1/369 of 2008 under Section 420 read with 34 IPC
registered at Mahatma Phule Police Station be quashed with an
interim prayers that the proceedings in furtherance thereto be stayed.
The quashing of the FIR was prayed on different grounds including
the one that it was a dispute of a civil nature, the complaint was
mala fide and the offence of forgery was not made out. It may be
noticed that when the matters came up for hearing before the Court,
the objection was taken that the Respondent in the Petition had not
invoked the provisions of Section 154 of the Code before filing an
application under Section 156(3).
20. In other Criminal Writ Petition No. 2883 of 2009, the
dispute relates to the property CS No.1/725 (Part) of Malabar Hill
Division, the land which was acquired by the Municipal Corporation
consisting of 14 structures with nearly 278 tenants who had formed a
society on 9th July 1996 and submitted a proposal under Section
33(7) of the DC Regulations, 1991 to the Competent Authority. This
was approved finally vide resolution of the Corporation No.752 dated
15th October 1996. A Memorandum of Undertaking was executed
between M/s.Crescent Builders and the Society on 17th October 1996
for carrying out the re-development work. Tri-partite agreement was
entered into on 16th July 1998 between the Corporation, Society and
the Petitioners for providing 278 tenements of 225 sq.ft. each and
the Petitioners were permitted to sell 35,392 sq.ft. area in open
market. This claim was modified in view of the amendment of
Regulation 33(7) of the Development Control Regulations in the year
1999. After issuance of the IOD and NOC in 2005/2006,
supplementary agreement was entered into between the Petitioners,
Respondent No.1 for opening an escrow account for depositing
capitalized value. The said agreement became redundant and
another agreement was entered into on 24th August 2007 between
the Petitioner firm and Respondent No.1 for purchase of additional
FSI of approximately 40000 sq.ft. Litigation with the Corporation
was also pending in the Court where after Respondent No.1 filed a
Suit in this Court praying that the agreement dated 8th January 1997,
29th June 1997, 24th August 2007 are valid, subsisting and binding
and that the Petitioners should be compelled to act in terms thereof.
The Petitioners have also filed a Writ Petition No.72 of 2009
challenging the action of the Corporation. The order passed by the
Deputy Municipal Commissioner was upheld by the Court vide its
order dated 13th August 2009. The order is assailed before the
Supreme Court which is stated to be pending. However, in the
meanwhile, on 4th September 2009, Respondent No.1 filed a
complaint under Sections 409, 467, 468, 471, 420 read with 34 and
120B IPC before the Metropolitan Magistrate 29th Court at Dadar,
Mumbai, praying that the matter be referred for investigation under
Section 156(3) and for a report under Section 173(8) of the Code.
On this application, on the same day, the Metropolitan Magistrate
passed an order directing the Bhoiwada Police Station to investigate
the matter in accordance with law, in furtherance to which on 21st
September 2009, FIR No MECR 8/2009 for offences under Sections
409, 467, 468, 471, 420 read with 34 IPC is registered. These
Petitioners have, therefore, filed the present Writ Petition No.2883 of
2009 under Section 482 of the Criminal Procedure Code for setting
aside the order dated 4th September 2009 passed by the Metropolitan
Magistrate and also praying for an interim order for stay of the
proceedings.
21. Somewhat similar are the facts in other Writ Petitions
which had been listed before us. All these matters relate to disputes
which are of commercial nature with regard to the offence of
cheating, forgery, etc. Even in Writ Petition No.2408 of 2009, the
concerned Division Bench dealing with the matter on 17th September
2009 passed an order that the question raised in the Petition was
similar as raised in Writ Petition No.270 of 2009 and, therefore,
directed that the matter be listed before this Bench. In other words,
all these matters have been listed for answering the question of law
as framed by the Bench in Criminal Writ Petition No.270 of 2009.
22. At the very outset, we must notice that none of these
cases appears to be of such nature of urgency that time could be
treated as the essence. These were primarily commercial
transactions and parties themselves have approached the Court by
invoking the provisions of Section 156(3) after more than years from
the date of entering into agreement and alleged breach of the terms
of the agreement or alleged commission of the offence of cheating or
forgery.
23. In order to appropriately answer the questions
formulated by the Bench in the Order of Reference, it will be
desirable to examine the scheme under the Code with particular
reference to the matters in issue before us.
24. The Code of Criminal Procedure was subjected to
amendments of far reaching consequences on the basis of the
recommendations of the Law Commission which were accepted by
the Government. The main considerations were that an accused
person should get a fair trial in accordance with the accepted
principles of natural justice, every effort should be made to avoid
delay in investigation and trial which is harmful not only to the
individuals involved but also to the society and the procedure should
not be complicated and should ensure fair deal to the poorer section
of the community. All these considerations were intended to achieve
expeditious and fair trial obviously including the process of
investigation. We have, at the opening part of the judgment, clearly
stated the two distinct and different procedures which can be
adopted by an intending complainant or any person who wishes to
set into motion the machinery of criminal investigation and trial
under the provisions of the Code. Both these prescribed procedural
methodologies operate in different fields and have no intersecting
fields of conflict, rather they could come to the aid of the
complainant for better enforcement and implementation for fair and
expeditious disposal. The Code of Criminal Procedure is an
exhaustive Code providing for a complete machinery to investigate
and try cases, appeals against the judgments. It has provisions at
each stage to correct errors, failures of justice and abuse of process
under the supervision and superintendence of the High Court. This
aspect was noticed by the Supreme Court in some detail in the case
of Popular Muthiah v State represented by Inspector of Police, (2006) 7
SCC 296. The same reads as under :
"21. The Code of Criminal Procedure is an
exhaustive code providing a complete machinery
to investigate and try cases, appeals against the
judgments. It has provisions at each stage to
correct errors, failures of justice and abuse of
process under the supervision and
superintendence of the High Court as would be
evident from the following :
(i) The Court has the power to direct
investigation in cognizable cases under
Section 156(3) read with Section 190 of the
Code of Criminal Procedure.
(ii) A Magistrate can postpone the issue of
process and inquire into the case himself
under Section 202(1) of the Code of
Criminal Procedure.
(iii) When a charge-sheet is filed, the court
can refuse to accept the same and proceed to
take cognizance of the offence on the basis of
the materials on record. The court can direct
further investigation into the matter.
(iv) The Magistrate may treat a protest
petition as a complaint and proceed to deal
therewith in terms of Chapter XV of the Code
of Criminal Procedure.
(v) Once the case is committed, the
Sessions Judge may refer the matter to the
High Court.
(vi) In the event, without taking any
further evidence, it is found that while
passing the order of commitment, the
Magistrate has committed an error in not
referring the case of an accused or left out an
accused after evidence is adduced, the court
may proceed against a person who was not
an accused provided it appears from the
evidence that he should be tried with the
accused.
(vii) The Revisional Court during pendency
of the trial may exercise its revisional
jurisdiction under Section 397 in which case,
it may direct further inquiry in terms of
Section 398 of the Code of Criminal
Procedure.
(viii) The revisional powers of the High
Court and the Sessions Court are pointed out
in the Code separately from a perusal
whereof it would appear that the High Court
exercises larger power.
(ix) In the event of any conviction by a
Court of Session, an appeal thereagainst
would lie to the High Court. The appellate
court exercises the power laid down under
Section 386 of the Code of Criminal
Procedure in which event it may also take
further evidence or direct it to be taken in
terms of Section 391 thereof.
(x) The High Court has inherent power
under Section 482 of the Code of Criminal
Procedure to correct errors of the courts
below and pass such orders as may be
necessary to do justice to the parties and/or
to prevent the abuse of process of court."
25. Chapter XII of the Code of Criminal Procedure relates to
information to the police and their powers to investigate. The
chapter exclusively deals with the information to the police and the
manner in which the investigation may be conducted and
interestingly provides for the power of the Court to direct
investigation under the provisions of Section 156(3), whereupon the
police officer is expected to submit a report in terms of Section 173
of the Code which then shall be dealt with by the Court in
accordance with the procedure prescribed under Section 190 of the
Code. This chapter primarily relates to the commencement of
investigation by the police officer upon receiving an intimation in
terms of Section 154 in relation to a cognizable offence. Whatever
interjection is permissible by the Court has also been stated under
the provisions of Sections 156, 159 and 173. In relation to
information of claim of non-cognizable cases, the police has to act in
accordance with Section 155. It is expected of every person to give
information to the police of commission of any cognizable offence
and the police is normally bound to register an FIR if a commission
of a cognizable offence is made out or atleast make a daily diary
entry and then register the FIR within a short time as held by a Full
Bench of this Court in the case of Sandeep Rammilan Shukla (supra).
Despite such information having been received by the police officer,
if an FIR is not registered under Section 154(1), the remedy to the
aggrieved person is provided under Section 154(3). If action is not
taken by the superior officer under Section 154(3), then any person
has a right to invoke the power of the Court under Section 156(3).
Section 154 relates to providing of an information to a police officer
incharge of a police station, who then in case of a cognizable offence
has the power to start investigation forthwith in terms of Section
156(1) where he does not need an order of a Magistrate directing
investigation. The investigation by a police officer who may not have
been competent or empowered to investigate would not render the
investigation illegal or unacceptable in terms of Section 156(2) of the
Code. Section 156(3) is a power which could be exercised by the
Magistrate directing the investigation to be conducted in accordance
with the provisions of the Code. Section 156(3) can hardly come
into play if the information of a cognizable offence has been given to
a police officer under Section 154 of the Code and he has already
started his investigation upon registering of an FIR in terms of
Section 156(1) of the Code. The power contemplated under Section
156(3) appears to be the power of the Magistrate which would be
exercised primarily in the event of default committed by a police
officer or who refuses to register an FIR and exercise investigative
powers in terms of Sections 154(1) and 156(1) of the Code. Once
the investigation has commenced in terms of Section 154(1) by the
police or in furtherance to an order passed by the Magistrate under
Section 156(3), then it must culminate in filing of a report under
Section 173 or under Section 169 as the case may be. Therefore,
right from providing of information of a cognizable offence to all
aspects of investigation and the conclusion thereof culminating into
furnishing of a report before the Court in terms of Section 173, all
matters are regulated under Chapter XII of the Code.
26. Then comes Chapter XIII. This is a Chapter which deals
entirely with the jurisdiction of the Court to inquire and try offences
and it primarily provides matters relating to jurisdiction and place of
trial. Chapter XIV again deals primarily with matters relatable to
Court proceedings. Under Section 190, cognizance of an offence can
be taken by a Magistrate of the First Class or such other Magistrate as
empowered. The source of taking cognizance could be (a) on the
basis of the complaint received by him which constitutes an offence;
(b) upon police report of such facts and (c) upon information
received from any person other than a police officer or upon his own
knowledge that such offence has been committed. This Chapter then
deals with other matters relating to inquiry or trial, mainly, with
cognizance of offence by Courts, sanctions, prosecutions of public
servants, etc. These two intervening Chapters, i.e. Chapter XIII and
Chapter XIV then lead us to Chapter XV which is the other
paramount important Chapter under the Criminal Procedure Code.
Under this Chapter, any person can invoke the jurisdiction of the
Court and pray before the Court that the person alleged to be guilty
of an offence should be summoned, tried and, if found guilty, be
punished in accordance with the provisions of the Code. Section 200
gives a right to a complainant to file his complaint before a
Magistrate who may take cognizance thereof and proceed with the
matter in accordance with the provisions of Sections 200 to 203 of
this Chapter and upon taking cognizance he may take the steps and
pass order as contemplated under Section 202 of the Code including
directing an inquiry or investigation by a police officer of the
complaint directly presented to the Magistrate under Section 200 of
the Code.
27. We may notice at this stage that Chapter XII is inclusive
of powers exercisable by the Magistrate at a pre-cognizance stage,
while Chapter XV is a post-cognizable proceedings. Reference to
Section 190 in the provisions of Section 156(3) is primarily to clarify
the jurisdiction of the Court which is competent to pass an order
under Section 156(3). Its reference no way renders the proceedings
under Section 156(3) before the court as post-cognizance stage of
proceedings by the Court of competent jurisdiction.
28. It is for this reason that taking cognizance of an offence
under Section 190 actually requires a judicious application of mind
by the Court with regard to the contents of a complaint and to make
up its mind whether the offence alleged appears to have been
committed prima facie. It is a stage where the Court should exercise
its judicial powers to proceed with the matter further by summoning
the accused or by directing investigation on certain issues by the
police agency or even requiring the complainant to lead evidence at
pre-summons stage.
29. The Supreme Court in the case of State of Karnataka
and another v Pastor P Raju, (2006) 6 SCC 728, explained the word
"cognizance" and termed it as judicious hearing of a matter and held
as under :-
"10. Several provisions in Chapter XIV of the
Code of Criminal Procedure use the word
"cognizance". The very first section in the said
Chapter viz. Section 190 lays down how
cognizance of offences will be taken by a
Magistrate. However, the word "cognizance" has
not been defined in the Code of Criminal
Procedure. The dictionary meaning of the word
"cognizance" is - "judicial hearing of a matter".
The meaning of the word has been explained by
judicial pronouncements and it has acquired a
definite connotation. The earliest decision of this
Court on the point is R.R. Chari v State of U.P.,
AIR 1951 SC 207 wherein it was held :
"... 'taking cognizance does not involve any
formal action or indeed action of any kind
but occurs as soon as a Magistrate as such
applies his mind to be suspected
commission of an offence'".
11. In Darshan Singh Ram Kishan v State of
Maharashtra, AIR 1971 SC 2372 while considering
Section 190 of the Code of 1898, it was observed
that :
"Taking cognizance does not involve any
formal action or indeed action of any kind
but occurs as soon as a Magistrate as such
applies his mind to be suspected
commission of an offence. Cognizance,
therefore, takes place at a point when a
Magistrate first takes judicial notice of an
offence. This is the position whether the
Magistrate takes cognizance of an offence
on a complaint, or on a police report, or
upon information of a person other than a
police officer."
12. In Narayandas Bhagwandas Madhavdas v
State of W.B., AIR 1959 SC 1118, it was held that
before it can be said that any Magistrate has taken
cognizance of any offence under Section 190(1)
(a) of the Criminal Procedure Code, he must not
only have applied his mind to the contents of the
petition but must have done so for the purpose of
proceeding in a particular way as indicated in the
subsequent provisions of the Chapter-proceeding
under Section 200 and thereafter sending it for
inquiry and report under Section 202. It was
observed that there is no special charm or any
magical formula in the expression "taking
cognizance" which merely means judicial
application of the mind of the Magistrate to the
facts mentioned in the complaint with a view to
taking further action. It was also observed that
what Section 190 contemplates is that the
Magistrate takes cognizance once he makes
himself fully conscious and aware of the
allegations made in the complaint and decides to
examine or test the validity of the said allegations.
The Court then referred to the three situations
enumerated in sub-section (1) of Section 190
upon which a Magistrate could take cognizance.
Similar view was expressed in Kishun Singh v
State of Bihar, (1993) 2 SCC 16, that when the
Magistrate takes notice of the accusations and
applies his mind to the allegations made in the
complaint or police report or information and on
being satisfied that the allegations, if proved,
would constitute an offence, decides to initiate
judicial proceedings against the alleged offender,
he is said to have taken cognizance of the offence.
In State of W.B. V Mohd. Khalid, (1995) 1 SCC
684, this Court after taking note of the fact that
the expression had not been defined in the Code
held :
" In its broad and literal sense, it
means taking notice of an offence. This
would include the intention of initiating
judicial proceedings against the offender in
respect of that offence or taking steps to see
whether there is any basis for initiating
judicial proceedings or for other purposes.
The word `cognizance' indicates the point
when a Magistrate or a Judge first takes
judicial notice of an offence. It is entirely a
different thing from initiation of
proceedings; rather it is the condition
precedent to the initiation of proceedings by
the Magistrate or the Judge. Cognizance is
taken of cases and not of persons."
13. It is necessary to mention here that taking
cognizance of an offence is not the same thing as
issuance of process. Cognizance is taken at the
initial stage when the Magistrate applies his
judicial mind to the facts mentioned in a
complaint or to a police report or upon
information received from any other person that
an offence has been committed. The issuance of
process is at a subsequent 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."
30. Similarly, in the case of S.K. Sinha, Chief Enforcement
Officer v Videocon International Ltd. and others, (2008) 2 SCC 492,
the Supreme Court explained that expression "cognizance" has not
been defined in the Code but the word is not found of indefinite
import. It has no esoteric or mystic significance in criminal law. It
merely means "become aware of and when used with reference to a
Court or a Judge, it connotes "to take notice of judicially". Taking
cognizance does not involve any formal action of any kind. It occurs
as soon as a Magistrate applies his mind to the suspected commission
of an offence. Cognizance is taken prior to commencement of
criminal proceedings. Taking of cognizance is thus a sine qua non or
condition precedent for holding a valid trial. It is also settled that
cognizance is taken of an offence and not of an offender.
31. In fact, this aspect was settled beyond ambiguity that an
order under Section 156(3) is at a stage prior to taking of
cognizance. In the case of Tula Ram and others v Kishore Singh,
(1977) 4 SCC 459, the Supreme Court held as under :-
"7. The question as to what is meant by taking
cognizance is no longer res integra as it has been
decided by several decisions of this Court. As far
back as 1951 this Court in the case of R.R. Chari v
State of Uttar Pradesh, AIR 1951 SC 207 observed
as follows :
"Taking cognizance does not involve any
formal action or indeed action of any kind
but occurs as soon as a Magistrate as such
applies his mind to be suspected
commission of an offence'".
While considering the question in greater detail
this Court endorsed the observations of Justice
Das Gupta in the case of Superintendent and
Remembrancer of Legal Affairs, West Bengal v
Abani Kumar Banerjee, AIR 1950 Cal 437 which
was to the following effect :
"It seems to me clear however that before it
can be said that any Magistrate has taken
cognizance of any offence under Section
190(1)(a), Criminal Procedure Code, he
must not only have applied his mind to the
contents of the petition but he must have
done so for the purpose of proceeding in a
particular way as Section 200 and
thereafter sending it for inquiry and report
under Section 202. When the Magistrate
applies his mind not for the purpose of
proceeding under the subsequent sections
of this Chapter, but for taking action of
some other kind, e.g. ordering investigation
under Section 156(3), or issuing a search
warrant for the purpose of the investigation,
he cannot be said to have taken cognizance
of the offence."
8. Section 190 of the Code runs thus :
"Subject to the provisions of this Chapter,
any Magistrate of the 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 offfence has
been committed.
It seems to us that there is no special charm or any
magical formula in the expression "taking
cognizance" which merely means judicial
application of the mind of the Magistrate to the
facts mentioned in the complaint with a view to
taking further action. Thus what Section 190
contemplates is that the Magistrate takes
cognizance once he makes himself fully conscious
and aware of the allegations made in the
complaint and decides to examine or test the
validity of the said allegations. The Court
prescribes several modes in which a complaint can
be disposed of after taking cognizance. In the first
place, cognizance can be taken on the basis of
three circumstances : (1) upon receiving a
complaint of facts which constitute such offence;
(2) upon a police report of such facts; and (3)
upon information received from any person other
than the police officer or upon his own
knowledge, that an offence has been committed.
These are the three grounds on the basis of which
a Magistrate can take cognizance and decide to act
accordingly. It would further appear that this
Court in the case of Narayandas Bhagwandas
Madhavdas v The State of West Bengal, AIR 1959
SC 1118 observed the mode in which a Magistrate
could take cognizance of an offence and observed
as follows :
"It seems to me clear however that before it
can be said that any Magistrate has taken
cognizance of any offence under Section
190(1)(a), Criminal Procedure Code, he
must not only have applied his mind to the
contents of the petition but must have done
so for the purpose of proceeding in a
particular way as indicated in the
subsequent provisions of this Chapter -
proceeding under Section 200 and
thereafter sending it for inquiry and report
under Section 202".
9. It is now well settled by the decision of this
Court in Abhinandan Jha v Dinesh Mishra, AIR
1968 SC 117 that while a Magistrate can order the
police to investigate the complaint he has no
power to compel the police to submit a charge-
sheet on a final report being submitted by the
police. In such cases a Magistrate can either order
re-investigation or dispose of the complaint
according to law.
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 order 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 Section 190 and the provisions following he
cannot resort to Section 156(3). Mr.Mukherjee
vehemently contended before us that in view of
this essential distinction once the Magistrate
chooses to act under Section 156(3) of the Code it
was not open to him to revive the complaint, take
cognizance and issue process against the accused.
Counsel argued that the Magistrate in such a case
has two alternatives and two alternatives only -
either he could direct re-investigation if he was
not satisfied with the final report of the police or
he could straightaway issue process to the accused
under Section 204. In the instant case the
Magistrate has done neither but has chosen to
proceed under Section 190(1)(a) and Section 200
of the Code and thereafter issued process against
the accused under Section 204. Attractive though
the argument appears to be we are however
unable to accept the same. In the first place, the
argument is based on a fallacy that when a
Magistrate orders investigation under Section
156(3) the complaint disappears and goes out of
existence. The provisions of Section 202 of the
present Code debar a Magistrate from directing
investigation on a complaint where the offence
charged is triable exclusively by the Court of
Session. On the allegations of the complainant
the offence complained of was clearly triable
exclusively by the Court of Session and therefore
it is obvious that the Magistrate was completely
debarred from directing the complaint filed before
him to be investigated by the police under Section
202 of the Code. But the Magistrate's power
under Section 156(3) of the Code to order
investigation by the police have not been touched
or affected by Section 202 because these powers
are exercised even before cognizance is taken. In
other words, Section 202 would apply only to
cases where the Magistrate has taken cognizance
and chooses to enquire into the complaint either
himself or through any other agency. But there
may be circumstances as in the present case
where the Magistrate before taking cognizance of
the case himself chooses to order a pure and
simple investigation under Section 156(3) of the
Code. The question is, having done so, is he
debarred from proceeding with the complaint
according to the provisions of Section 190, 200
and 204 of the Code after receipt of the final
report by the police? We see absolutely no bar to
such a course being adopted by the Magistrate. In
the instant case, there is nothing to show that the
Magistrate had taken cognizance of the complaint.
Even though the complaint was filed by (sic
before) the Magistrate, he did not pass any order
indicating that he had applied his judicial mind to
the facts of the case for the purpose of proceeding
with the complaint. What he had tone was to
keep the complaint aside and order investigation
even before deciding to take cognizance on the
basis of the complaint. After the final report was
received the Magistrate decided to take
cognizance of the case on the basis of the
complaint and accordingly issued notice to the
complainant. Thus, it was on April 2, 1975 that
the Magistrate decided for the first time to take
cognizance of the complaint and directed the
complainant to appear. Once cognizance was
taken by the Magistrate under Section 190 of the
Code it was open to him to choose any of the
following alternatives:
(1) Postpone the issue of process and enquire
into the case himself; or
(2) direct an investigation to be made by the
police officer; or
(3) any other person.
In the instant case as the allegations made against
the accused made out a case exclusively triable by
the Court of Session the Magistrate was clearly
debarred from ordering any investigation, but he
was not debarred from making any enquiry
himself into the trust of the complaint. This is
what exactly the Magistrate purported to have
done in the instant case. The Magistrate issued
notice to the complainant to appear before him,
recorded the statement of the complainant and
his witnesses and after perusing the same he
acted under Section 204 of the Code by issuing
process to the accused appellants as he was
satisfied that there was sufficient grounds for
proceeding against the accused.
..... ..... .....
15. 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 a 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 witness.
(b) 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.
ig 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."
32. The law in this regard has been well settled and no
judgment to the contrary has been brought to our notice. In fact,
right from the case of Gopal Das Sindhi and others v State of Assam
and another, AIR 1961 SC 986, the law has been consistent and both
aspects i.e. the matter relating to taking of cognizance by the Court
of competent jurisdiction and the concept of pre and post-cognizance
procedure has been well defined. The Supreme Court in that matter
unambiguously stated the principle that order of a Magistrate under
Section 156(3) is a pre-cognizable order and held as under :-
"7. When the complaint was received by
Mr.Thomas on August 3, 1957, his order, which
we have already quoted, clearly indicates that he
did not take cognizance of the offences mentioned
in the complaint but had sent the complaint under
S. 156(3) of the Code to the Officer Incharge of
Police Station Gauhati for investigation. Section
156(3) states "Any Magistrate empowered under
section 190 may order such investigation as
above-mentioned". Mr.Thomas was certainly a
Magistrate empowered to take cognizance under
S. 190 and he was empowered to take cognizance
of an offence under receiving a complaint. He,
however, decided not to take cognizance but to
send the complaint to the police for investigation
as Ss. 147, 342 and 448 were cognizable offences.
It was, however, urged that once a complaint was
filed the Magistrate was bound to take cognizance
and proceed under Chapter XVI of the Code. It is
clear, however, that Chapter XVI would come into
play only if the Magistrate had taken cognizance
of an offence on the complaint filed before him,
because S. 200 states that a Magistrate taking
cognizance of an offence on complaint shall at
once examine the complainant and the witnesses
present, if any, upon oath and the substance of
the examination shall be reduced to writing and
shall be signed by the complainant and the
witnesses and also by the Magistrate. If the
Magistrate had not taken cognizance of the
offence on the complaint filed before him, he was
not obliged to examine the complainant on oath
and the witnesses present at the time of the filing
of the complaint. 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
an offence. We are unable to construe the word
`may' in section 190 to mean `must'. The reason
is obvious. A complaint disclosing cognizable
offence 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. Numerous
cases were cited before us in support of the
submissions made on behalf of the appellants.
Certain submissions were also made as to what is
meant by "taking cognizance". It is unnecessary
to refer to the cases cited. The following
observations of Mr. Justice Das Gupta in the case
of Superintendent and Remembrancer of Legal
Affairs, West Bengal v Abani Kumar Banerjee, AIR
1950 Cal 437 :
"What is taking cognizance has not been
defined in the Criminal Procedure Code and
I have no desire to attempt to define it. It
seems to me clear however that before it
can be said that any Magistrate has taken
cognizance of any offence under Section
190(1)(a), Criminal Procedure Code, he
must not only have applied his mind to the
contents of the petition but he must have
done so for the purpose of proceeding in a
particular way as Section 200 and
thereafter sending it for inquiry and report
under Section 202. When the Magistrate
applies his mind not for the purpose of
proceeding under the subsequent sections
of this Chapter, but for taking action of
some other kind, e.g. ordering investigation
under Section 156(3), or issuing a search
warrant for the purpose of the investigation,
he cannot be said to have taken cognizance
of the offence"
were approved by this Court in R.R. Chari v State
of Uttar Pradesh, 1951 SCR 312 : (AIR 1951 SC
207). It would be clear from the observations of
Mr.Justice Das Gupta that when a Magistrate
applies his mind not for the purpose of
proceeding under the various sections of Chapter
XVI but for taking action of some other kind, e.g.
ordering investigation under S. 156(3) or issuing
a search warrant for the purpose of investigation,
he cannot be said to have taken cognizance of any
offence. The observations of Mr. Justice Das
Gupta above referred to were also approved by
this Court in the case of Narayandas Bhagwandas
Madhavdas v State of West Bengal, 1960 1 SCR
93. It will be clear, therefore, that in the present
case neither the Additional District Magistrate nor
Mr.Thomas applied his mind to the complaint
filed on August 3, 1957, with a view to taking
cognizance of an offence. The Additional District
Magistrate passed on the complaint to Mr.Thomas
to deal with it. Mr.Thomas seeing that cognizable
offences were mentioned in the complaint did not
apply his mind to it with a view to taking
cognizance of any offence; on the contrary in his
opinion it was a matter to be investigated by the
police under S. 156(3) of the Code. The action of
Mr.Thomas comes within the observations of Mr.
Justice Das Gupta. In these circumstances, we do
not think that the first contention on behalf of the
appellants has any substance."
33. Reference in this regard can also be made to another
judgment of the Supreme Court in the case of Kishun Singh and
others v State of Bihar, (1993) 2 SCC 16 where the Supreme Court
observed that the object of Section 190 is to ensure safety of a
citizen against the vagaries of the police by giving him the right to
approach the Magistrate directly if police does not take action or he
has reason to believe that no such action will be taken by the police.
Even though expression "take cognizance" is not defined, it is well
settled, that it effectuates when Magistrate takes notice of
accusations and applies his mind to the allegations made in the
complaint.
34.
Taking cognizance of an offence is distinguishable from
initiation of proceedings. In fact, as already noticed, it is a step taken
in a proceeding by the Magistrate or the Court of competent
jurisdiction. Taking cognizance is not the same thing as issuance of
process. Taking cognizance is different from initiation of
proceedings. Reference can also be made in this regard to the
judgment of the Supreme Court in the case of State of W.B. and
another v Mohd. Khalid and others, (1995) 1 SCC 684.
35. From this discussion, it is clear that the order under
Section 156(3) is passed at a pre-cognizance stage of a proceeding
before the Court and is limited to the extent of directing an
investigation in accordance with law. Earlier, the settled principle of
law in Indian Courts was that the Magistrate while exercising powers
under Section 156(3) could only direct investigation of a case and
not registration of an FIR. However, with the development and
expansion of principles of criminal jurisprudence, this has under-
gone a definite change. Now, for quite some time the Supreme
Court has taken a consistent view that the Magistrate exercising his
power under Section 156(3) can direct registration of an FIR and his
jurisdiction is not only limited to a direction to investigate the
offence.
36. In the case of Madhu Bala v Suresh Kumar and others,
(1997) 8 SCC 476, the Supreme Court held that the police is duty
bound to register a case and then investigate into it at once and an
order under Section 156(3) is made as the Magistrate has the
jurisdiction to ask the police to register a case and investigate the
same in accordance with law. Interpreting the provisions of Section
156(3), the Supreme Court held as under :-
"10. .... In our opinion, when an order for
investigation under Section 156(3) of the Code is
to be made the proper direction to the police
would be "to register a case at the police station
treating the complaint as the first information
report and investigate into the same."
37. This was subsequently followed in different cases and
finally in the case of Mohd. Yousuf v Afaq Jahan (Smt.) and another,
(2006) 1 SCC 627, the Supreme Court held as under :-
"11. The clear position therefore is 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. For
the purpose of enabling the police to start
investigation it is open to the Magistrate to direct
the police to register an FIR. There is nothing
illegal in doing so. After all registration of an FIR
involves only the process of entering the substance
of the information relating to the commission of
the cognizable offence in a book kept by the office
in charge of the police station as indicated in
Section 154 of the Code. Even if a Magistrate
does not say in so many words while directing
investigation under Section 156(3) of the Code
that an FIR should be registered, it is the duty of
the officer in charge of the police station to
register the FIR regarding the cognizable offence
disclosed by the complainant because that police
officer could take further steps contemplated in
Chapter XII of the Code only thereafter."
38. Therefore, it cannot be questioned any longer that an
order under Section 156(3) by a Magistrate directing registration of
an FIR and investigation thereof in accordance with law is an order
pre-cognizance. Section 156(3) is part of Chapter XII of the Code
which primarily relates to investigation by police of a cognizable
offence. The law casts an abundant statutory duty upon the police
officer in charge of a police station to register the case wherever
commission of a cognizable offence is brought to his notice in any
form. Normally, it will be default of Section 154 which will lead to
invoking the power of the Court under Section 156(3) of the Code as
if the FIR has been registered and the complaint has been
investigated in accordance with law. In other words, the Code takes
complete care of dealing with every situation that may arise in the
course of the investigation or inquiry being conducted under the two
sources to which anybody has an access under the provisions of the
Code.
39. Investigation squarely falls within the domain of the
investigating agency. It is the phase where the State discharges its
obligation through the investigating agency to find out whether the
alleged offence was committed or not and if committed by whom and
how ? After collecting the entire evidence during the course of
investigation, the police officer empowered to investigate is to file a
report under Section 173 of the Code.
40. In case of a default in the performance of its statutory
duty by the police or the investigating agency, the person aggrieved
is not left remediless. He can invoke the provisions of Sections
154(3) and 156(3) as well. This decision is left to the wisdom of the
aggrieved person or the complainant, whether he wishes to approach
the Court under Section 156(3) or to file a complaint under Section
200 of the Code. There are no limitations and restrictions laid down
by the Code for invocation of this power. Section 156(3) in the
scheme of the Code appears to be preceding Chapter XV and is
referable to the default committed by the police officer in terms of
Section 154(1) of the Code.
41. In the case of Devarapalli Lakshminarayana Reddy and
others v V. Narayana Reddy and others, (1976) 3 SCC 252, the
Supreme Court specifically held that the order under Section 156(3)
is in the nature of a peremptory reminder or intimation to the police
to exercise their plenary powers of investigation under Section
156(1) of the Code. 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. In this very case, the Supreme Court also noticed the
distinction between an order under Section 156(3) in contra-
distinction to an order under Section 202 of the Code. When the
Court orders an investigation within the scope of Section 202, it is
not required to initiate a fresh case on a police report but its object is
to primarily assist the Court in completing the proceedings already
instituted before the Court of competent jurisdiction.
42. In fact, this aspect is further put beyond doubt by the
judgment of the Supreme Court in the case of Dharmeshbhai
Vasudevbhai and others v State of Gujarat and others, (2009) 6 SCC
576, where the Court held as under :-
"6. It is well settled that any person may set the
criminal law in motion subject of course to the
statutory interdicts. When an offence is
committed, a first information report can be
lodged under Section 154 of the Code of Criminal
Procedure (for short "the Code"). A complaint
petition may also be filed in terms of Section 200
thereof. However, in the event for some reasons
or the other, the first information report is not
recorded in terms of sub-section (1) of Section
156 of the Code, the Magistrate is empowered
under sub-section (3) of Section 156 thereof to
order an investigation into the allegations
contained in the complaint petition. Thus, power
to direct investigation may arise in two different
situations - (1) when a first information report is
refused to be lodged; or (2) when the statutory
power of investigation for some reason or the
other is not conducted.
7. When an order is passed under sub-section
(3) of Section 156 of the Code, an investigation
must be carried out. Only when the investigating
officer arrives at a finding that the alleged offence
has not been committed by the accused, he may
submit a final form; on the other hand, upon
investigation if it is found that a prima facie case
has been made out, a charge-sheet must be filed."
43. Similar view was taken by the Supreme Court in its
earlier judgment in the case of Sakiri Vasu v Statement of Uttar
Pradesh and others, (2008) 2 SCC 409, where the Court held as
under :-
"23. In Savitri v Govind Singh Rawat, AIR 1986
SC 984, this Court held that the power conferred
on the Magistrate under Section 125 CrPC to
grant maintenance to the wife implies the power
to grant interim maintenance during the
pendency of the proceeding, otherwise she may
starve during this period.
24. In view of the abovementioned legal
position, we are of the view that although Section
156(3) is very briefly worded, there is an implied
power in the Magistrate under Section 156(3)
CrPC to order registration of a criminal offence
and/or to direct the officer in charge of the police
station concerned to hold a proper investigation
and take all such necessary steps that may be
necessary for ensuring a proper investigation
including monitoring the same. Even though
these powers have not been expressly mentioned
in Section 156(3) CrPC, we are of the opinion
that they are implied in the above provision.
25. We have elaborated on the above matter
because we often find that when someone has a
grievance that his FIR has not been registered at
the police station and/or a proper investigation is
not being done by the police, he rushes to the
High Court to file a writ petition or a petition
under Section 482 CrPC. We are of the opinion
that the High Court should not encourage this
practice and should ordinarily refuse to interfere
in such matters and relegate the petitioner to his
alternating remedy, first under Section 154(3)
and Section 36 CrPC before the police officers
concerned, and if that is of no avail, by
approaching the Magistrate concerned under
Section 156(3).
26. If a person has a grievance that his FIR has
not been registered by the police station his first
remedy is to approach the Superintendent of
Police under Section 154(3) CrPC or other police
officer referred to in Section 36 CrPC. If despite
approaching the Superintendent of Police or the
officer referred to in Section 36 his grievance still
persists, then he can approach a Magistrate under
Section 156(3) CrPC instead of rushing to the
High Court by way of a writ petition or a petition
under Section 482 CrPC. Moreover, he has a
further remedy of filing a criminal complaint
under Section 200 CrPC. Why then should writ
petitions or Section 482 petitions be entertained
when there are so many alternative remedies ?
27. As we have already observed above, the
Magistrate has very wide powers to direct
registration of an FIR and to ensure a proper
investigation and for this purpose he can monitor
the investigation to ensure that the investigation
is done properly (though he cannot investigate
himself). The High Court should discourage the
practice of filing a writ petition or petition under
Section 482 CrPC simply because a person has a
grievance that his FIR has not been registered by
the police, or after being registered, proper
investigation has not been done by the police. For
this grievance, the remedy lies under Sections 36
and 154(3) before the police officers concerned,
and if that is of no avail, under Section 156(3)
CrPC before the Magistrate or by filing a criminal
complaint under Section 200 CrPC and not by
filing a writ petition or a petition under Section
482 CrPC."
44. In this very case, the Supreme Court also made an
observation that even the investigation can be monitored by the
Magistrate exercising powers under Section 156(3). To this, some
judgments to the contrary were brought to our notice, but it is not
necessary for us to examine the merit or otherwise of this contention
inasmuch as that is not the question to be answered by this Bench in
light of the Order of Reference.
45. In the case of Divine Retreat Centre v State of Kerala
and others, (2008) 3 SCC 542, the Supreme Court held that power to
investigate an offence is exclusively reserved for the police. This view
has pre-dominantly prevailed in the Indian law now and the
investigation is stated to be exclusively in the domain of the
investigating agency. How such investigation has to be conducted is
primarily stated in Chapter XII of the Code which starts with Section
154.
46. To us it appears to be essential that normally a person
should invoke the provisions of Section 154 of the Code before he
can take recourse to the powers of the Magistrate under Section
156(3). The provisions of Section 156(3) are consequential upon a
default of a police officer failing to comply with the requirements of
Section 154 to the prejudice of the aggrieved person or the
complainant, as the case may be. Once the police officer fulfills his
duty/ obligation and completes investigation in accordance with law,
leading to the filing of the report under Section 173, the provisions
of Section 156(3) would stand exhausted and can hardly be taken
recourse to. Despite this, we find it difficult to lay down any strait-
jacket formula in this regard. It may not be very advisable to state it
as an absolute proposition of law without any exception. There can
be cases where the time lag involved in the commission of the crime,
intimation to the police and its inaction in terms of Section 154,
make it difficult for a complainant or an aggrieved person including a
victim to first take recourse to the provisions of Section 154(3) and
then invoke the jurisdiction of the Court under Section 156(3). Such
cases could be the ones where there is likelihood of the evidence
being destroyed and the delay in investigation may prove fatal to the
case of the prosecution or the complainant. In such exceptional
circumstances, it cannot be said that any person who has approached
the police under Section 154 for registration of information of
commission of an cognizable offence and the police instantly fails to
act, is debarred from approaching the Court directly under Section
156(3). As a normal proposition of law, invocation of the provisions
of Section 154 in its entirety should be treated as a condition
precedent to invocation of the powers of the Court under Section
156(3), but there can be exceptions where the facts and
circumstances of the case justify directly approaching the Court by
the complainant. If a person is desirous of invoking the judicial
process at the very first instance, he can always take recourse to
Section 200 as contained in Chapter XV of the Code, but if he wishes
to invoke the powers of the Court under Section 156(3), normally,
he may exhaust the remedy available to him as is provided by the
Legislature in terms of Section 154 of the Code.
47. Particularly in light of the facts of the cases where the
question has been referred to us, we do not see any reason to say
that it would be unfair, unjust or in any way prejudicial to hold that
the complainants concerned should have invoked the provisions of
Section 154 of the Code before invoking the powers of the Court
under Section 156(3) of the Code. We would certainly hasten to add
that this cannot be laid down as an absolute proposition of law or a
strait-jacket formula applicable to all cases uniformly, without
reference to the facts and circumstances of a given case. This is a
rule which is not free of exception. In other words, there can be
cases where strict compliance to the provisions of Section 154(1) and
(3) in their entirety may not be insisted upon by the Court. This will
be the case where heinous crime is committed and despite intimation
to the police, the police failed to take action forthwith and/or cases
where there is likelihood of crucial material evidence being
destroyed, damaged and/or tampered with to the prejudice of the
complainant. In such cases, the Court may have to entertain an
application under Section 156(3) without compliance of Section
154(3) but still an averment that the police were approached and
have failed to act or why the applicant has chosen to directly
approach the Court for issuance of direction under Section 156(3)
would be somewhat necessary, to be mentioned in the complaint.
48. Now we shall proceed to deal with other aspect of the
order of reference. The word "complaint" has a wide meaning since
it includes even oral allegations. It may therefore be assumed that
no format is prescribed in which the complainant must be made.
There has to be allegation which prima facie discloses commission of
a cognizable offence with necessary facts. Section 2(d) of the Code
of Criminal Procedure, 1973 defines a complaint as under:-
"2(d) "complaint" means any allegation made
orally or in writing to a Magistrate, with a view to
his taking action under this Code, that some
person, whether known or unknown, has
committed an offence, but does not include a
police report."
As already noticed, the complaint could be made orally, or in writing
that some person whether known or unknown has committed an
offence but the most important feature of the complaint is that a
police report has been excluded from the ambit of a complaint. The
police report obviously means a report submitted under Section 173
of the Code. The expression "with a view to his taking action under
the Code" is of some significance. This indicates that the allegations
should be such which would constitute an offence under the
provisions of the Indian Penal Code or under any other law, and
therefore, become actionable under the provisions of the Code. In
such a complaint, Magistrate may take action in accordance with law
keeping in mind the prayer made by the complainant. An
information is a complaint only when it is made to a Magistrate
while any information under Section 154 given to a police officer
orally and/or in writing can be the basis for the police officer in
charge of a police station to proceed with the matter. In fact, in
terms of Section 41 of the Code of Criminal Procedure, any police
officer may arrest any person without an order from a Magistrate and
without a warrant from the Court, a person who is concerned in
cognizable offence. Section 41 contemplates that a person, whom a
police officer can arrest, is a person against whom a reasonable
complaint has been made or credible information has been received
or a reasonable suspicion exists that he is concerned in a cognizable
offence. This indicates that the allegations made in an information
given to a police officer should be a reasonable or credible
information which would show degree of seriousness about
commission of a cognizable offence necessary for curtailing liberty of
the accused.
49. The Supreme Court in the case of Mohd. Yousuf v. Afaq
Jahan (Smt.) & Anr., (2006)1 SCC 627 observed that nomenclature
is also inconsequential and there is no specific format for a complaint
being made to a Magistrate contemplated under the Code and held
as under:-
"15. A faint plea was made by learned counsel
for Respondent 1 that the petition filed by the
appellant was not a complaint in the strict sense of
the term. The plea is clearly untenable. The
nomenclature of a petition is inconsequential.
Section 2(d) of the Code defines "complaint" as
follows :
"2.(d) 'complaint' means any
allegation made orally or in writing to a
Magistrate, with a view to his taking action
under this Code, that some person, whether
known or unknown, has committed an
offence, but does not include a police report.
Explanation.- A report made by a police
officer in a case which discloses, after
investigation, the commission of a non-
cognizable offence shall be deemed to be a
complaint; and the police officer by whom
such report is made shall be deemed to be
the complainant.
16. There is no particular format of a
complaint. A petition addressed to the Magistrate
containing an allegation that an offence has been
committed, and ending with a prayer that the
culprits be suitably dealt with, as suitably dealt
with, as in the instant case, is a complaint."
50. In the case of Rajesh Bajaj v. State NCT of Delhi & Ors.,
(1999)3 SCC 259, the Supreme Court again reiterated the principle
of law that it was not necessary that a complaint should verbatim
reproduce in the body of his complaint all the ingredients of the
offence he is alleging. Nor is it necessary that the complainant
should state in so many words that the intention of the accused was
dishonest or fraudulent. Splitting up of the definition into different
components of the offence to make a meticulous scrutiny, whether all
the ingredients have been precisely spelt out in the complaint, is not
the need at this stage. If factual foundation for the offence has been
laid in the complaint the court should not hasten to quash criminal
proceedings during investigation stage merely on the premise that
one or two ingredients have not been stated with details.
51. "Information" is a wider term than "complaint" and
includes any communication relating to the commission of an
offence. A complaint is a particular kind of information and is more
or less formally made with the definite object that the person to
whom the complaint is made will take action under Code of Criminal
Procedure. "Information" is the genus of of which "complaint" is a
species. (Ref: Aiyar's Judicial Dictionary, eleventh Edition, the Law
Book Company (P) Ltd.)
52. A distinction between the complaint and the information
was explained by a Bench of Allahabad High Court in Sheo Pratap
Singh v. Emperor, AIR 1930 Allahabad 820.:
"That essential difference between a complaint
and information is that a Magistrate acts on a
complaint because the complainant has asked him
to act, but a Magistrate acts on information on his
own initiative. In the case of a complaint the
Magistrate is asked to prosecute the person
named as accused and he has then to decide
whether he will accede to the request or not. If he
does not, then he must record his reasons under
S. 202(1), and may either make an enquiry
himself or direct an inquiry or investigation or
dismiss the complaint under S. 203 after
recording his reasons. But in the case of receiving
information, the Magistrate is not asked by
anyone to issue process and if he does not choose
to act on the information, he need not record any
reason or pass any order. In the case of
information there is no complainant to examine
on oath. On a complaint the complainant is first
examined on oath unless it has been made by a
public servant acting to the discharge of his
official duty."
53.
We have already noticed that the reference to the
provisions of Section 190 in the provisions of Section 156(3) is
merely to determine jurisdiction of Magistrate to whom an
application has to be made by the aggrieved person or a
complainant. It no way controls the power of the Court to direct
registration and/or investigation as contemplated in Section 156(3).
The proceedings under Section 156(3) are pre-cognizance. Once
cognizance is taken by the Magistrate under Section 190 of the Code,
he could proceed in his discretion treating under Section 200 of the
Code of Criminal Procedure. It is not the legislative intent that in
the complaint or application/petition under Section 156(3) detailed
factual allegations containing in detail the happening of events from
beginning to end should be made. It is sufficient for the person to
make averment of facts disclosing cognizable offence further stating
that the police has failed to take action despite intimation under
Section 154 of the Code of Criminal Procedure. Unnecessary
emphasis on the prayer cannot be laid. However, it is a settled
principle that the Court would normally grant relief to a party as per
its prayer.
54. However, keeping in view the principles of criminal
jurisprudence again no stringent format can be provided or is
necessary in relation to a prayer clause. It is for the complainant or
the aggrieved person to decide whether he wishes to refer the matter
to investigation under Section 156(3) of the Code or whether his
application is to be treated as a regular complaint under Section 200
of the Code. We have no hesitation in holding that no particular
format of the application or petition to Magistrate under Section
156(3) is provided or is required to be made. Suffice it for the
complainant or aggrieved person to bring it to the notice of the Court
under Section 156(3) that despite intimation to the police it has
failed to act and investigate a cognizable offence in accordance with
law or that in the fact situation of the case it was necessary to
directly approach the Court. Once such a petition is presented, the
learned Magistrate is free to exercise appropriate jurisdiction in
accordance with law and at the request of complainant. But a
petition cannot be rejected by the Court merely on the ground that it
does not contain a proper prayer clause insofar as it discloses
commission of a cognizable offence.
55. Non prescription of statutory or judge made law as to
the format of a complaint or a petiton clearly indicates that it would
hardly be possible for the Courts to reject a complaint/petition on the
ground of its format alone, insofar as it satisfies ingredients of an
offence and avers inaction of the police or makes out a case justifying
direct intervention of the Court. As already noticed, a crime is an act
deemed by law to be harmful to the society in general even though
its immediate victim is an individual. (Ref.: Salmond on
Jurisprudence, Twelfth Edition by P.J. Fitzgerald). The distinction
between infringement of civil rights and committing a cognizable
offence within the provisions of the Indian Penal Code or any other
law is clear and in the later it is beyond the matter of mere
compensation. Even to criminal jurisprudence, the law of pleading is
applicable to certain extent. Thus where a person files a complaint
under Section 200 of the Code of Criminal Procedure, he is expected
to state the facts giving details and correct versions which would
amount to committing of an offence alleged. It has to satisfy the
basic ingredients of such an offence and it is expected of the
complainant to make a proper complaint as contemplated under
Section 2(d) of the Code with appropriate prayers. In contra-
distinction to this, such strict rule of pleadings cannot be made
applicable to the provisions of Section 156(3) of the Code as it is
result of a default and even intimation in appropriate format may
suffice the purpose in some cases. That certainly does not mean that
under Section 156(3) properly drafted petition cannot be moved.
Rather if a petition with complete facts, stating detailed and definite
events essential to constitute the offence alleged to have been
committed is presented and the prayers have been made, discretion
of the Magistrate would be much wider than merely directing
investigation in terms of Section 156(3) and the Court even could
take cognizance of the offence if the complaint is filed under Section
200 of the Code. If a complaint does not disclose a cognizable
offence with proper facts, it may be liable to be dismissed and/or
rejected by the Magistrate.
56. The American Criminal Jurisprudence requires that the
misdemeanor pleadings are subject to the general requirements for
valid pleadings. In other words, it must contain a plain and concise
factual statement supporting every element of the offence charged
and a separate count addressed to each offence charged, by a
reference to the statute or other provision of law that the defendant
allegedly violated. The name or other identification of the
defendant and the country where the offence took place and the date
on which, or time period during which, the offence took place should
be specifically mentioned. Amendments are liberally applied
nevertheless every pleading must be sufficient to serve the basic
purpose illustrated under that law. ( Ref : NC Defendcer Manual/July
2004/(c) Institute of Government, Ch.8 : Criminal Pleadings )
57.
Criminal Procedure Rules 506 of Commonwealth of
Pennylvania even provides a format of a private complaint which is
filed to a Magisterial District Court after getting approval from
Attorney for the Commonwealth office. . It will be therefore
appropriate to state that rule of pleadings is not strictly applicable to
a petition or an application under Section 156(3) of the Code.
58. The essence of a criminal offence is violation of State
Law and harm to the society at large. It is implicit in the
constitutional obligation of the State to provide safe life to its people
and protect liberty of every subject of the State. Detection of crime,
investigation of crime and to prosecute the offender are some of the
pertinent duties of the State in terms of the provisions of the Code of
Criminal Procedure. Generally it is not expected of an individual to
investigate an offence and collect necessary proof for trial before the
Court. It is an option available to an individual whether to invoke
powers of the State/Investigating Agency under Section 156(3) or
Section 200 of the Code. It is primary duty of the police to
immediately register an FIR and to investigate the matter in
accordance with law and not to push any individual to knock the
doors of the Courts for inquiry, investigation and trial of an offence.
Seeking directions from Magistrate to direct police to investigate are
the events which should take place as a last measure. The Supreme
Court in the case of Lalita Kumari v. Government of Uttar Pradesh &
Ors., (2008)7 SCC 164 gave certain directions regarding registration
of FIR which read as follows :-
"6. In view of the above, we feel that it is high
time to give directions to the Governments of all
the States and Union Territories besides their
Director Generals of Police/Commissioner of
Police as the case may be to the effect that if steps
are not taken for registration of FIRs immediately
and copies thereof are not made over to the
complainants, they may move the Magistrates
concerned by filing complaint petitions to give
direction to the police to register case
immediately upon receipt/production of copy of
the orders and make over copy of the FIRs to the
complainants, within twenty-four hours of
receipt/production of copy of such orders. It may
further give directionn to take immediate steps for
apprehending the accused persons and recovery of
kidnapped/abducted persons and properties
which were the subject-matter of theft or dacoity.
In case FIRs are not registered within the
aforementioned time, and/or aforementioned
steps are not taken by the police, the Magistrate
concerned would be justified in initiating
contempt proceeding against such delinquent
officers and punish them for violation of its orders
if no sufficient cause is shown and awarding
stringent punishment like sentence of
imprisonment against them inasmuch as the
disciplinary authority would be quite justified in
initiating departmental proceeding and
suspending them in contemplation of the same."
59. There is hardly any discretion with the police not to
register an FIR or take entry in Daily Diary Register, as the case may
be. In that behalf, decision of the Full Bench of this Court in
Sandeep Rammilan Shukla v. State of Maharashtra & Ors., (2009)1
Mh.L.J. 97, needs to be referred. The Court observed : -
"70. The provisions of section 154 of the Code
impose an absolute obligation and duty upon the
officer-in-charge of a police station to record
information in the prescribed book of a cognizable
offence (FIR register), but it is difficult for the
Court to construe in absence of any express
language that this provision forbids any kind even
preliminary inquiry prior to registration of the
FIR. We are unable to notice anything in the
language of the section which by necessary
implication debars in law such an inquiry. The
Supreme Court in the case of Bhagwant Kishore
Joshi (supra), a judgment which was delivered by
a three Judge Bench, took the view that such an
inquiry, of course for a very limited purpose and
bona fide object, was not debarred under the
provisions of section 154. Again, a three Judge
Bench of the Supreme Court in the case of Jacob
Mathew (supra), in unambiguous terms declared
that pre-registration inquiry would be permissible,
but again for a class of persons i.e. Medical
Practitioners. The investigating agency was
cautioned in that case not to cause harassment to
the Doctors in furtherance to a private complaint
unless some prima facie evidence of rash and
negligent act on the part of the accused Doctor
was brought on record before the investigating
officer. The principle enunciated in both these
judgments, particularly in the case of Bhagwant
Kishore Joshi (supra), is not subject-matter of a
detailed discussion by any of the subsequent
Benches of the Supreme Court, except in the case
of Rajinder Singh Katoch (supra), a judgment
pronounced by a two Judge Bench of the Supreme
Court after declaration of law in Prakash Singh
Badal's case (supra) which also specifically
noticed Ramesh Kumar's case (supra) and
declared the principle that some kind of
preliminary inquiry would be permissible prior to
registration of the case. It needs to be noticed at
the cost of repetiton that judgments of the
Supreme Court delivered by two Judges Bench
have taken the view that there is no option with
the police officer-in-charge of a police station but
to register the FIR. The view is obviously
relatable to the facts of those cases and in all
those cases the conduct of the investigating
agency had been deprecated and the Court took
the view that reliability, genuineness and
credibility of information are not the condition
precedent for registration of a case under section
154 and provisions of section 154 are mandatory
and officer-in-charge of police station is duty
bound to register the case on receiving the
information disclosing a cognizable offence. [See
Lallan Chaudhary (supra) and Ramesh Kumari
(supra)]. However, in the case of Mohindro
(supra), the Court observed on facts of that case
that for no reason whatsoever the police had not
registered the case and proceeded to pass the
appropriate direction.
71. Thus it is evident that information must
relate to `commission of a cognizable offence'. If
the information given ex facie is so absurd or
lacks essential ingredients of the allegedly
committed cognizable offence, the investigating
officer after making a due entry in the prescribed
books like daily dairy, general diary or station
diary or daily roznamachar, could step into the
limited preliminary inquiry and then within a very
short time and most expeditiously register the FIR
unless the information does not disclose
commission of a congnizable offence. Such
exercise has to be bona fide, fair and must stand
to the test of judicious exercise of power. Such
cases would be by and large very few and rare
cases where the police officer has to conduct
preliminary inquiry pre-registration of a FIR for a
very limited period. Taking an example of such
rare and exceptional cases, an informant by a
telephone makes a call that there has been a blast
at a railway station causing injury and death of
number of persons and names the persons who
has alleged to have effected the bomb blast. A
police officer is obliged to make an entry in the
daily diary register and at least would verify the
same by ringing up the nearest police station or
the railway authority in charge of the railway
station where such an incident is informed to have
been occurred. If no incident has occurred at the
railway station, the question of registering the FIR
would hardly arise and he could proceed in
accordance with law on the basis of the entry
made in the daily diary register/station
diary/roznamachar. In the case of Tapan Kumar
Singh (supra), the Supreme Court has even held
that an entry in the daily diary/station diary or
rozanamachar itself can be a FIR.
xxxxx xxxxx xxxxx
75. The law and particularly the criminal law is
an instrument to protect the interest of the
society. The distinction between a cognizable
offence and non-cognizable offence is to be kept
in mind by the Court for proper appreciation of
the arguments raised before us. The officer-in-
charge of police station has wide powers and
complete freedom in investigating the cognizable
offence without any check or interference
including arresting of the suspect. While in the
case of non-cognizable offence, the investigating
officer is not entitled to even take on investigation
much less arrest the suspect without the leave of
the Court of competent jurisdiction. In order to
prevent abuse of such power it is essential that the
discretion given to the officer-in-charge of a police
station is limited to bare minimum necessary and
the provision is not given undue liberal
construction or meaning. While following the
view expressed by the Supreme Court in three
Judge Bench cases of Bhagwant Kishore Joshi
(supra) and Jacob Mathew (supra), it can safely
be stated that the power to make preliminary
inquiry to pre-registration of a case can be
exceptionally or rarely exercised by the officer-in-
charge of a police station that too after he enters
the information in the relevant books like daily
diary or general diary as known by different
nomenclature at different places, and after
concluding the preliminary inquiry expeditiously,
preferably not exceeding the period of two days
register the FIR in accordance with the law and/or
proceed under other provisions of the Code as is
evident from proviso (b) to section 157(1) of the
Code.
xxxxx xxxxx xxxxx
101. The balanced and practical view in
law necessarily is neither to amplify jurisdiction or
power not to curtail it unnecessarily. The law
commands a person holding a public office to
discharge his duties in accordance with the law
and without delay. In terms of the provisions of
the Code of Criminal Procedure, police officer-in-
charge of a police station cannot avoid the
responsibility to record information as
contemplated by the provisions of section 154
read with the Police Manual and the Standing
Orders issued by the State of Maharashtra
Analysis of the above referred judicial decisions
thus persuade us to hold that the judgment in
Shyam Sundar's case (supra) does not state the
entire law correctly. The statement of law spelt
out in paragraph 57(b) needs to be clarified to
bring it in line with the enunciated law. Intrinsic
command of law requires an officer in charge of a
police station to record the FIR instantaneously.
Further to bring this principle in harmony with
the ground realities, it can safely be stated that in
exceptional and rare cases, the concerned police
officer could penultimately defer instantaneous
recording of FIR in the prescribed register (Form
No.P.M. 37e) but only and only after recording
the information received in the Daily Diary
Register while also mentioning reasons for
adopting such a course and then to proceed to
make preliminary inquiry. Such preliminary
inquiry needs to be concluded in the shortest
possible time and which, in our opinion, should
not exceed two days then the officer should
record the FIR as prescribed in law without fail
and/or to adopt any course of action as
permissible in law. This would satisfy the
requirements of achieving legislative object as
well as would be suiting the ground reality by
adopting a more practical approach. As it may
not be possible for the Court to accept ideologue
view devoid of any flexibility in exceptional or
rare cases. Having deliberated at some length on
various aspects of the legal controversies raised in
the present reference, in our considered view the
following principles can be culled out as correct
exposition of law :
(a) The expression "shall" appearing in
Section 154 of the Code of Criminal
Procedure is mandatory. The Section places
an `absolute duty' on the part of the `officer
in charge of a police station' to record
information and place substance thereof in
the prescribed book, where the information
supplied or brought to his notice shows
commission of a cognizable offence.
(b) As the law does not specifically
prohibit conducting of a limited preliminary
inquiry, pre-registration of FIR in
exceptional and rare cases by the officer in
charge of a police station, he may
penultimately thus enter upon a preliminary
inquiry in relation to information supplied of
commission of a cognizable offence but only
and only upon making due entry in the Daily
Diary/Station Diary/ Roznamachar
instantaneously with reasons as well as the
need for adopting such a course of action.
Such inquiry should be completed
expeditiously and in any case not later than
two days. Thereafter, the FIR should be
recorded in the prescribed register and/or
the officer should take any other recourse
permissible to him strictly in accordance
with the provisions of the Code of Criminal
Procedure under which he is empowered to
investigate. Such cases can be illustrated by
giving an example i.e. when the information
received in regard to commission of a
cognizable offence would patently cause
absurd results or report of happening of
events, authenticity of which ex facie is
extremely doubtful.
(c) The law inescapably requires the
police officer to register the information
(FIR) received by him in relation to
commission of a cognizable offence. Under
the Scheme of the Code, no choice is vested
in the police officer between recording or
not recording the information received. The
concerned officer would aptly take recourse
to clause (a) as a normal rule while could
adopt the course of action as stated in clause
(b) above as an exceptional and rare case."
60. In the backdrop of this settled position of law, the
compliance to Section 154 would be necessary in normal cases which
do not fall within the exceptions stated by us. It being a power of
the Court exercisable in default of action being taken by police. In
this regard we may refer to the Full Bench judgment of this Court in
Laxminarayan Vishwanath Arya v. State of Maharashtra & Ors., 2008
Cri.LJ 1, where the Court has held as under:
"7. ..........It cannot be lost sight of that
normally and in fact in accordance with law
investigation under Section 156(3) of the Code is
preceded by approaching the concerned police
station and then higher authorities under Section
154(3). Thus these are the cases where the
investigating agency - the police - has failed to
act, it pre-supposes that there has been breach of
obligation as contemplated under Section 154(1)
of the Code. To illustratively state these are the
matters where despite complaint, police did not
act or consider it not necessary to act in relation
to the allegations made in the complaint. The
suspected accused was always free and not the
subject matter of investigation or agency. After
such breach of duty or wrongful act on the part of
the investigating agency, the Court on a petition
passes direction under Section 156(3) of the Code
directing the police to conduct investigation.
xxxxx xxxxx xxxxx
24. In view of our above detailed discussion
and settled principles of law, we would proceed to
answer the three questions referred to the larger
bench as under:
(i) Whether the police have to approach
the learned Magistrate and take orders from him
before arresting the accused against whom FIR is
registered pursuant to the orders issued by the
learned Magistrate under Section 156(3) of the
Criminal Procedure Code, 1973 ?
Ans : It is neither obligatory nor mandatory
for a Police Officer to obtain the leave of the Court
before arresting an accused against whom FIR is
registered in pursuance of the order passed by the
learned Magistrate under Section 156(3) of the
Criminal Procedure Code, 1973. Certainly, we
would hasten to add that exercise of discretion by
the arresting officer should be exercised with
greater sensitivity and in accordance with the
settled canon of criminal jurisprudence, while
keeping the facts and circumstances of each case
in mind. It needs to be remembered by the
Investigating agencies that order under Section
156(3) may be passed by the Court as a result of
failure to perform its duty on the part of the
investigating agencies. ..............."
61. The view taken by the Division Bench of this Court in
Jitendra Chandrakant Mehta v. M/s. Shamrock Impex Pvt. Ltd. & Ors.,
2006(4) Mh.L.J. 355 largely states the principles of law correctly. It
is true that absence of a particular format or a particular prayer
would not be fatal to a petition lodged under Section 156(3) of the
Code. But we are unable to persuade ourselves to the reasonings
recorded by the Division Bench that it is not normally essential for a
person to approach the police in terms of Section 154 of the Code
before invoking the powers of the Court under Section 156(3) of the
Code. Reliance made to the case of S.N. Sharma v. Bipen Kumar
Tiwari, AIR 1970 SC 786 by a Division Bench of this Court is correct
to the extent that the Court can direct investigation of a cognizable
offence by the police and can pass an appropriate direction in this
behalf. But in the scheme of the Code, it is difficult for this Court to
hold that even without approaching the police officer incharge of a
police station, a complaint can be made to the Court in terms of
Section 156(3) of the Code. In S.N. Sharma's case (supra), the
Supreme Court observed :
"It may also be further noticed that, even in sub-
section (3) of section 156, the only power given to
the Magistrate, who can take cognizance of an
offence under section 190, is to order an
investigation, there is no mention of any power to
stop an investigation by the police. The scheme of
these sections, thus, clearly is that the power of
the police to investigate any cognizable offence is
uncontrolled by the Magistrate, and it is only in
cases where the police decide not to investigate
the case that the Magistrate can intervene and
either direct an investigation, or, in the
alternative, himself proceed or depute a
Magistrate subordinate to him to proceed to
enquire into the case."
62. Even in the case of Minu Kumari and Anr. v State of
Bihar and Ors., (2006) 4 SCC 359, the Supreme Court held that
when the information is laid with the police but no action is taken,
the complainant is given power under Section 190 read with Section
200 of the Code to make complaint with the Magistrate for taking
cognizance of an offence and the Magistrate himself may proceed
with the same in accordance with law. The Court observed as
under:-
"16. When the information is laid with the
police, but no action in that behalf is taken, the
complainant is given power under Section 190
read with Section 200 of the Code to 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.) v. Union of India,
(1996)11 SCC 582 : 1997 SCC (Cri) 303. It was
specifically observed that a writ petition in such
cases is not to be entertained."
63. In the case of Prakash Singh Badal and Anr. v State of
Punjab and Ors., (2007) 1 SCC 1, the Supreme Court held that
obligation to register a case cannot be confused with the remedy if
the same is not registered and where it is not registered, Section
156(3) of the Code vests discretionary power in a Magistrate, who is
competent to take cognizance of an offence under Section 190 of the
Code, to order an investigation by the police officer in accordance
with law. The Court held as under: -
"68. It is, therefore, manifestly clear that if any
information disclosing a cognizable offence is laid
before an officer incharge of a police station
satisfying the requirements of Section 154(1) of
the Code, the said police officer has no other
option except to enter the substance thereof in the
prescribed form, that is to say, to register a case
on the basis of such information.
69. In this connection, it may be noted that
though a police officer cannot investigate a non-
cognizable offence on his own as in the case of
cognizable offence, he can investigate a non-
cognizable offence under the order of a Magistrate
having power to try such non-cognizable case or
commit the same for trial within the terms under
Section 155(2) of the Code but subject to Section
155(3) of the Code. Further, under sub-section
(4) to Section 155, where a case relates to two
offences to which at least one is cognizable, the
case shall be deemed to be a cognizable case
notwithstanding that the other offences are non-
cognizable and, therefore, under such
circumstances the police officer can investigate
such offences with the same powers as he has
while investigating a cognizable offence.
70. The next key question that arises for
consideration is whether the registration of a
criminal case under Section 154(1) of the Code
ipso facto warrants the setting in motion of an
investigation under Chapter XII of the Code.
71. Section 157(1) requires an Officer Incharge
of a Police Station who 'from information received
or otherwise' has reason to suspect the
commission of an offence-that is a cognizable
offence-which he is empowered to investigate
under Section 156, to forthwith send a report to a
Magistrate empowered to take cognizance of such
offence upon a police report and to either proceed
in person or depute any one of his subordinate
Officers not being below such rank as the State
Government may, by general or special order,
prescribe in this behalf, to proceed to the spot, to
investigate the facts and circumstances of the case
and if necessary, to take measures for the
discovery and arrest of the offender. This
provision is qualified by a proviso which is in two
parts (a) and (b). As per Clause (a) the Officer
Incharge of a Police Station need not proceed in
person or depute a subordinate officer to make an
investigation on the spot if the information as to
the commission of any such offence is given
against any person by name and the case is not of
a serious nature. According to Clause (b), if it
appears to the Officer Incharge of a Police Station
that there is no sufficient ground for entering on
an investigation, he shall not investigate the case.
Sub-section (2) of Section 157 demands that in
each of the cases mentioned in Clauses (a) and
(b) of the proviso to Sub-section (1) of Section
157, the Officer Incharge of the Police Station
must state in his report, required to be forwarded
to the Magistrate his reasons for not fully
complying with the requirements of Sub-section
(1) and when the police officer decides not to
investigate the case for the reasons mentioned in
Clause (b) of the proviso, he in addition to his
report to the Magistrate, must forthwith notify to
the informant, if any, in such manner as may be
prescribed by the State Government, the fact that
he will not investigate the case or cause the case
to be investigated. Section 156(1) which is to be
read in conjunction with Section 157(1) states
that any Officer Incharge of a Police Station may
without an order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction
over the local area within the limits of the
concerned police station would have power to
enquire into or try under provisions of Chapter
XIII. Section 156(3) vests a discretionary power
on a Magistrate empowered under Section 190 to
order an investigation by a police officer as
contemplated in Section 156(1). It is pertinent to
note that this provision does not empower a
Magistrate to stop an investigation undertaken by
the police. (See State of Bihar and Anr. v. J.A.C.
Saldanha and Ors. (1980 (1) SCC 554) In that
case, power of the Magistrate under Section
156(3) to direct further investigation after
submission of a report by the investigating officer
under Section 173(2) of the Code was dealt with.
It was observed as follows:
"The power of the Magistrate under Section
156(3) to direct further investigation is
clearly an independent power and does not
stand in conflict with the power of the State
Government as spelt out hereinbefore. The
power conferred upon the Magistrate under
Section 156(3) can be exercised by the
Magistrate even after submission of a report
by the investigating officer which would
mean that it would be open to the
Magistrate not to accept the conclusion of
the investigating officer and direct further
investigation. This provision does not in any
way affect the power of the investigating
officer to further investigate the case even
after submission of the report as provided in
Section 173(8)."
The above position has been highlighted in
State of Haryana and Ors. v. Bhajan Lal and Ors.
(1992 Supp (1) SCC 335).
72. In State of Punjab and Anr. v Gurdial Singh
and Ors. (1980 (2) SCC 471) it was observed as
follows:
"If the use of the power is for the
fulfilment of a legitimate object the
actuation or catalysation by malice is
not legicidal."
73. At this stage it needs to be clarified that the
obligation to register a case is not to be confused
with the remedy if same is not registered. Issue of
the remedy has been decided by this Court in
several cases. (See Gangadhar Janardan Mhatre v.
State of Maharashtra and Ors. (2004 (7) SCC
768)".
64. In view of our above discussion, we record our answers
to the questions of law posed before us, as follow:-
Question No. (i)
Whether in absence of a complaint to the
police, a complaint can be made directly before
a Magistrate ?
Answer
Normally a person should invoke the provisions
of Section 154 of the Code before he takes
recourse to the power of the Magistrate
competent to take cognizance under Section
190 of the Code, under Section 156(3). Atleast
an intimation to the police of commission of a
cognizable offence under Section 154(1) would
be a condition precedent for invocation of
powers of the Magistrate under Section 156(3)
of the Code. We would hasten to add here that
this dictum of law is not free from exception.
There can be cases where non-compliance to
the provisions of Section 154(3) would not
divest the Magistrate of his jurisdiction in terms
of Section 156(3). There could be cases where
the police fail to act instantly and the facts of
the case show that there is possibility of the
evidence of commission of the offence being
destroyed and/or tampered with or an
applicant could approach the Magistrate under
Section 156(3) of the Code directly by way of
an exception as the Legislature has vested wide
discretion in the Magistrate.
Question No. (ii)
Whether without filing a complaint within the
meaning of Section 2(d) and praying only for
an action under Section 156(3), a complaint
before a Magistrate was maintainable ?
Answer
A Petition under Section 156(3) cannot
be strictly construed as a complaint in terms of
Section 2(d) of the Code and absence of a
specific or improperly worded prayer or lack of
complete and definite details would not prove
fatal to a petition under Section 156(3), in so
far as it states facts constituting ingredients of a
cognizable offence. Such petition would be
maintainable before the Magistrate.
65 We answer the questions of law accordingly. The
matters be listed before a appropriate bench for disposal in
accordance with law.
CHIEF JUSTICE
A.M. KHANWILKAR, J.
ig SMT.R.S. DALVI, J.
uday/judgment/wp270-09fullbench.sxw
