Mrs. Rashmi Malhotra vs Sho And Anr.
2002 Latest Caselaw 774 Del

JUDGMENT

S.K. Agarwal, J.

1. The petitioner initially filed a writ petition under Section 226 & 227 of Constitution of India read with Section 482 Cr.P.C. for issuance of a writ of mandamus etc. and by orders dated 8th February, 2002 passed by the Division Bench, the Registry was directed to register the same as a Criminal Revision Petition. Thereafter the matter has been listed before this court.

2. I have heard the leaned counsel for the parties and have been taken through the record.

3. Facts in brief are that petitioner filed a complaint under Sections 190/156(3) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") on 20th September, 2001 praying therein:

"In view of the facts disclosed above and in the circumstances, it is therefore, most respectfully prayed that this Hon'ble and conscientious court may kindly and graciously be pleased to take cognizance of the offence under Section 406/498A/34 of the Indian Penal Code and direct the S.H.O. Police Station Vikas Puri, to register and criminal case by way of First Information Report and to investigate it in accordance with law."

When the above complaint came up for hearing before the trial court, the court wanted to hold an enquiry under Section 202 Cr.P.C. but the petitioner insisted for an order under Section 156(3) Cr.P.C. for registration of the FIR. Trial court declined the same and dismissed the complaint holding as under:-

"On mere perusal of the Section 202 Cr.P.C. it is clear that the Magistrate competent to take cognizance of the offence may either postpone the issue of process against the accused or direct the investigation to be made by police officer or by such other person as he thinks fit. Ld. Counsel has already argued before this court in which he has specifically stated that he does not wish to treat the present application as a complaint within the purview of Chapter XV of the Cr.P.C. and simple wants to get it treated as application under Section 156(3) Cr.P.C. As already said Section 156(3) Cr.P.C. simply specifies power of the police officer to investigate the cognizable case when the matter is referred to him by a Magistrate. The preposition as to when a Magistrate can send the matter for investigation on filing of a complaint has been specified in Chapter XV of the Cr.P.C. The powers of the Magistrate have been laid down in the said chapter. The words "a Magistrate who is authorised to take cognizance" in Section 202 Cr.P.C. itself clarifies that whenever a complaint is filed there remains two options before the magistrate either to postpone issues of process or to direct investigation by a police officer."

The above order is under challenge. The complaint is defined under Sub-clause (d) of Section 2 Cr.P.C. It 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." No particular form of the complaint is prescribed. The allegations contained in the complaint and the prayer noticed above fulfillled the basic requirements of the complaint. The discretion under Section 202 Cr.P.C. rests with the Magistrate to either take cognizance without any enquiry into the complaint or to direct investigations under Section 156(3) Cr.P.C. or to postpone the same after preliminary enquiry. The complainant cannot insist for following any particular mode for taking cognizance. In view of the stand taken by the petitioner before the trial court, I find nothing wrong with the order under challenge.

Learned counsel for the petitioner, in the alternative, argued that the complainant may be permitted to lead preliminary evidence in support of the complaint, to prima facie prove that there is enough material for summoning the accused persons. Learned APP for State does not contest the same.

In view of the above, the petition is partly allowed. Impugned order dated 20th November, 2001 is set aside. The Magistrate is directed to make further enquiry into the complaint in accordance with law.

Trial court record be sent back.

Petition stands disposed of.

dusty.