Cucusan Foils Pvt. Ltd. vs State (Delhi Administration)
1990 Latest Caselaw 342 Del

JUDGMENT

Santosh Duggal, J.

(1) This petition filed under Section 482 of the Cede of Criminal Procedure (for short 'the Code') raises a question as to the procedure required to be followed by a Magistrate, on receipt of a complaint, alleging commission of an offence.

(2) A brief narrative of the facts would facilitate having a proper perspective of the issue involved. The petitioner is company incorporated under the Indian Companies Act (for short the Company'). A complaint was filed by the Company's authorised representative under Section 138 cf the Negotiable Instruments Act, 1881 alleging that M/s. Modern Packers, arraigned as accused No. I in the complaint, was a proprietary concern of Ch. Ram Singh, shown as accused No. 2, and that a cheque was issued in the name of accused No. 1 for a sum of Rs-32,666.50 on 15th June 1989 duly signed by accused No. 2 towards payment of the price of goods but on presentment the said cheque was received back with banker's endorsement 'refer to drawer'. It was alleged that the cheque had been dishonoured owing to the fact that the account of the accused in the bank did not contain sufficient amount to meet the same. A registered notice was issued thereafter informing the accused about the cheque having been dishonoured but failing to get any response, and after issuing another notice, which was duly received by the accused, and no payment having been received within tile stipulated period of 15 days, since after the expiry of the receipt of the notice, an offence as contemplated by Section 138 of the Act was alleged to have been made out.

(3) The complaint filed on 25th July, 1989 was received by the contend Magistrate on the same day whereupon he passed the following order :

"25-7-1989. PRESENT: Shri Rajesh Batra, Adv. for the complainant. Fresh complaint received by assignment. Alilmad to check and register the same. Although case pertains to P.S. Chandni Chowk yet Sho of Town Hall is directed to investigate the report on 13-9-89. A copy of this complaint Along with photostat copies of documents filed with the complaint be sent to the Sho for in.vestigation and report. A copy of this order be also sent to the Sho for compliance. Sdi- M.M. Delhi 25-9-1989."

(4) Aggrieved by the order, the petitioner has come to this Court, seeking abashment thereof on the plea that the procedure resorted to by the Magistrate is wholly unwarranted, and in contravention of the provisions of the law. The matter has been heard at length, after notice to the State.

(5) Mr. Batra appearing for the petitioner, has argued that the offence under Section 138 of the Act is a non-cognizable offence by virtue of provisions of Section 142 of the Act which provides, inter alia, that :

"142,.Cognizance of offencs.-Notwithstanding any- thing contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(A)no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing made by the payee or, as the case may be, the holder in due course of the cheque ;

(B)...........................

(0)..........................."

(6) The contention is that by virtue of the non-obstante clause as comprised in Section 142 of the Act, the Magistrate receiving the complaint has to proceed straightway to take cognizance of the offence on a complaint being made to him in writing, and that he cannot send the same for investigation to the police, and that the learned Magistrate has grossly erred in forwarding the complain! to the police at the pre-cognizance stage.

(7) Mr. Batra conceded, in response to a Court query that in a case where the offence alleged is cognizable, the Magistrate may in appropriate cases exercise power under Section 156(3) of the Code, and order investigation to be made by an officer in charge of a police station. He submitted however that in no event such a power, as contemplated by Section 156(3) could be exercised on a complaint being received in its court, involving a non-cognizable offence.

(8) According to the learned counsel, in such cases the Magistrate has to take cognizance, as contemplated by Section 190(1)(a) of the Code and thereafter follow the procedure as laid down by Chapter Xv of the Code, which makes it incumbent upon a Magistrate to examine upon upon the complaint and the witnesses present with him, if any.

(9) On attention being drawn to the provisions of section 202 of the Code wherein a Magistrate has been given power in cases where he is authorised to take cognizance on receipt of a complaint. to either enquire into the case himself or direct an investigation to be made by a police officer or by such other persons, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Mr. Batra contended that this stage shall reach only after the Magistrate has acted under Section 200 of the Code. The learned counsel referred to the provisions of proviso (b) to section 202 of the Code to support his contention.

(10) Mr Batra further placed reliance on a iud.gment of the Supreme Court in the case Devarapalli Lakshminarayana Reddy and others v V. V. Narayana Reddy and others, , where it was laid down, inter alia, that section 202 of the Code comes in at a stage when some evidences has been collected by the Magistrate in proceedings under Chapter Xv of the Code but the same is deemed insufficient to take a decision as to the next step in he prescribed procedure, and that in such a situation the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section, an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding. He also ated two other Supreme Court judgments, namely, H. S. Bains v. The State (Union Territory of Chandigarh), , and M/s. India Carat Pvt. Ltd. v. State of Karnataka and another, .

(11) Mr. R. P. Lao, appearing for the State controverter the contentions raised by the learned counsel for the petitioner by contending that the powers of the Magistrate are not contained only to one procedure, namely, the one contemplated under Section 200 of the Code, and that it was open to him to either take cognizance straightway examine the complainant and his witnesses, and then proceed either to dismiss the complaint under Section 203 of the Code, or issue process against the accused under Section 204, but it is open to a Magistrate to postpone the issue of process, and call for police report. He sought to derive support for the proposition canvassed by him by reading from paragraph 6 in the case of H. S. Bains (supra) and paragraph 13 from the judgment in the case of M/s. India Carat Pvt. Ltd. (supra).

(12) On a comparative as well as comparative consideration of all the relevant provisions as set out in the Code I am of view that the contentions raised by Mr. B?.tra have to be upheld. Even Mi. Lao did not dispute that in a non-cognizable case the provisions of section 156(3) of the Cods shall not be attracted, and thus the Magistrate is precluded from straightway ordering investigation the police If that is so, the the only remaining procedure, as contemplated by law. is the one laid down by Chapter Xv of the Code, which is a Chapter dealing specifically with complaint- cases, as being headed: "COMPLAINTS To MAGISTRATES".

(13) The provisions of Section 200 are unmistakable and enjoin upon the Magistrate after he has taken cognizance of the complaint, which he does only under section 190(l)(a) of the Code. to examine upon oath the complainant and the witnesses, if any, present with him. The stage as contemplated by section 202 arises only thereafter. Provide (b) to section 202 of the Code puts the matter beyond any dispute and lays down that the power under Section 202 cannot be exercised unless the complaint and the witnesses present, if any, have been examined on oath under Section 200 of the Code.

(14) The intention is clear from the wording of section 202 itself which indicates that it is only when the Magistrate feels the necessity for further enquiry into the matter, that he may held the same either himself or direct the investigation to be made by police officer or by such other person as he thinks fit The duty to examine the complainant and the witnesses, as mandated by section 200 of the Code, is not obliterated by the provisions of Section 202 of the Code. The matter has been put beyond the ambit of any doubt by the following observations of the Supreme Court in the case of Devarapalli Lakshminarayana Reddy (supra) : "IN the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under Section 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses under Section 200 Criminal Procedure Code . which is the first step in the procedure prescribed under that Chapter. The question of taking the next step of that procedure envisaged in section 202 did not arise.

(15) Mr Lao's reliance on certain observations in the other two cases referred to above seems to he misplaced. In the case of K. S. Bains (Supra), the offences complained of were cognizable. and in that context it was observed that the Magistrate could orde' investigation under section 356(3) but even in this judgment it was made clear that once this procedure had been adopted then the report which is received from the police is to be treated as under section 173 of the Code. The question that such a procedure can be adopted in non-cognizable offences was- never before the Supreme Court, hut in view of the dictum laid down in this judgment that once resort to Section 156(3) is taken, then the report which a police officer makes is a report as contemplated under Section 173 of the Code: it is apparent that such a procedure cannot he adopted in a case relating to non-cognizable offence, particularly when the Statute lays down that the Magistrate can take cognizance only on a complaint filed before him in writing and in no other manner.

(16) Even this judgment says that once the Magistrate cedes on the basis of the original complaint, then he must first proceed to examine on oath the complainant and his witnesses under Section 200 and thereafter either hold an enquiry himself or direct the enquiry to be held by police officer under Section 202 of the Code, as he thinks fit and then either dismiss the complaint or issue the process, as the case may be.

(17) Likewise in the case of M/s. India Carat Pvt. Ltd. (supra) it is unmistakably made clear that in cases covered by complaints to Magistrate, the only procedure applicable is that of Chapter Xv containing sections 200 to 203 of the Code and in such cases, the Magistrate taking cognizance is required by Section 200 to examine the complainant and the witnesses present, if any. The subsequent observations on which Mr. Lao placed reliance as contained in paragraph 13 are a summing up of the position after taking note of Chapter Xvi which deals with "Commencement of Proceedings before the Magistrate". The embargo placed by proviso (b) to section 200 was not at all put in focus because the issues raised in that case before the Supreme Court were entirely different, namely, as to whether in spite of the fact that the police report did not disclose the commission of any offence against the accused, the Magistrate could take cognizance of an offence under Section 190(l)(b) or not. It was in that context that it was held that when a police report is received, to the effect that no offence is made out, then the Magistrate was not bound to accept the report and can take cognizance of the offence in exercise of the power under section 190(l)(b) of the Code and in that event, he was not bound to follow the procedure laid down in Sections 200 and 202 for taking cognizance of a case under Section 190(l)(a) of the Code. though it is open to him to act under Sections 200 and 202 also.

(18) I am therefore of my considered view that in a complaint case, alleging commission of a non-cognizable offence, made in writing to a Magistrate or received in his Court, under Section 192 of the Code, it is incumbent upon him to immediately take cognizance and proceed to examine upon oath the complainant and his witnesses, if any. and a Magistrate cannot straightway assign the complaint to the police for investigation as such a procedure is not warranted by law. In the present case. therefore, it has to be held that the concerned Magistrate erred In sending the cow of the complaint to the Sho, police station for further investigation or enquiry and in not straightway taking cognizance of the complaint and examining the complainant and his witnesses.

(19) The impugned order thus stands vitiated and is accordingly set aside. The matter is remitted to the concerned Court for proceeding with the complaint in the manner as noticed above, and by following the procedure prescribed by law, and then proceed expeditiously, as no action has so far been taken on the complaint because of an erroneous order having been passed by the concerned Magistrate.

(20) The case shall be placed in the first place before the District & Sessions Judge, Delhi on 28th August, 1990 who shall ensure that the case is sent to the appropriate Court, and also have a copy of the judgment sent to the Magistrate who passed the impugned order, in' case he is no longer presiding over the concerned Court.

(21) The case records be sent back.

(22) No order as to costs.