Surinder Kumar Singh vs State Nct Of Delhi & Anr.
2013 Latest Caselaw 1628 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CRL.M.C. 1238/2011

      SURINDER KUMAR SINGH               ..... Petitioner
                  Through: Mr.Shivek Trehan, Adv.with Mr.Laksh
                  Khanna,Advs.

                          versus

      STATE NCT OF DELHI & ANR.             ..... Respondent
                    Through: Mr.Naveen Sharma APP for State
                    Mr.Rajesh Kr.Chaurasia, Adv.for R2
      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
                      ORDER

% 10.04.2013

By this petition filed under Section 482 Cr.P.C petitioner seeks to

challenge the order dated 25.9.2009 whereby the Ld. Magistrate directed the

concerned SHO to register an FIR and file the compliance report.

The grievance raised by the petitioner in the present petition is that the

order passed by the Ld.Magistrate is explicitly illegal and perverse as at the

post cognizance stage, the Magistrate could not have reverted to Section

156(3) Cr.P.C. Addressing arguments on the present petition, counsel for

the petitioner submits that the respondent who are the complainant had filed

a complaint case under Section 200 Cr.P.C. for the alleged offence

committed by the petitioners under Section 406, 417, 420, 506 read with Section 120-B IPC and in the said complaint case no separate application

was filed by the complainant under Section 156(3) CPC and nor any such

direction was given by the Magistrate directing the police to carry out the

investigation. Counsel further submits that the Ld. Magistrate instead

proceeded to take cognizance of the said offence and directed the

complainant to lead pre-summoning evidence and in fact pre-summoning

evidence was lead by the complainant on 15.10.2005. Counsel further

submits that after the recording of pre-summoning evidence at the post

cognizance stage the only option left to the Magistrate was either to proceed

under Section 203 or under Section 204 Cr.P.C and not to revert to Section

156(3) Cr.P.C. the course which was adopted by the Magistrate. To support

his arguments counsel for the petitioner has placed reliance on the following

judgments of the Apex Court:

1. Suresh Chand Jain Vs. State of MP and another (2001) 2 SCC

2. Jamuna Singh and others Vs. Bhadai Sah (1964) 5 SCR 37

3. Rameshbhai Pandurao Headau Vs. State of Gujarat (2010) 4 SCC 185.

I have heard learned counsel for the petitioner, counsel for respondent

and Mr.Naveen Sharma APP for the State.

It is a settled legal position that investigation under Section 156(3) Cr.P.C. can be directed at pre-cognizance stage while inquiry or

investigation at the post-cognizance stage can only be directed by the

Magistrate under Section 202 Cr.P.C. The power to direct the investigation

to the police authorities is available to the magistrate both under Section

156(3) and Section 202 of the Code of criminal Procedure. The only

difference is the stage at which the power may be invoked by the Magistrate.

However, in any case at the post-cognizance stage the Magistrate cannot

revert to the stage of Section 156(3) Cr.P.C and direct any investigation by

the police.

Explaining the legal position, the Hon'ble Apex Court in the case of

Suresh Chand Jain (supra) held as under:-

"7. In our opinion, the aforesaid direction given by the learned Single Judge of the Punjab and Haryana High Court in Suresh Kumar vs. State of Haryana (supra) is contrary to law and cannot be approved. Chapter XII of the Code contains provisions relating to information to the police and their powers to investigate, whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether though there could be a common factor i.e. complaint filed by a person. Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences. True, Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to direct an investigation by a police officer. But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code. Section 156 of the Code reads thus: 156. Police officers power to investigate cognizable cases.- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

9. But a magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code would convince that the investigation referred to therein is of a limited nature. The magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. 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. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him."

This position has been reiterated by the Hon'ble Supreme Court in the

case of Rameshbhai Pandurao Hedau (supra) wherein the Hon'ble Apex

Court has very clearly demonstrated the difference in the two provisions and has clarified that an investigation ordered by the Magistrate under chapter

XII is at pre- cognizance stage and inquiry and/ or investigation ordered

under Section 202 cr.P.C is at post cognizance stage. The germane portion

of the judgment is given below:

"13. The settled legal position has been enunciated by this Court in several decisions to which we shall refer presently. The Courts are ad idem on the question that the powers under Section 156(3) can be invoked by a learned Magistrate at a pre- cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint but before issuance of process. Such a view has been expressed in Suresh Chand Jain's case (supra) as well as in Dharmeshbhai Vasudevbhai's case (supra) and the case of Devarapalli Lakshminarayana Reddy's case (supra).

14. The three aforesaid cases have been cited on behalf of the parties. We may also refer to the decision of this Court in Dilawar Singh v. State of Delhi (2007) 12 SCC 641, where the difference in the investigative procedure in Chapters XII and XV of the Code has been recognized and in that case this Court also appears to have taken the view that any Judicial Magistrate, before taking cognizance of an offence, can order investigation under Section 156(3) of the Code and in doing so, he is not required to examine the complainant since he was not taking cognizance of any offence therein for the purpose of enabling the police to start investigation. Reference has been made to the decision of this Court in Suresh Chand Jain's case (supra). In other words, as indicated in the decisions referred to hereinabove, once a Magistrate takes cognizance of the offence, he is, thereafter, precluded from ordering an investigation under Section 156(3) of the Code.

15. It is now well-settled that in ordering an investigation under Section 156(3) of the Code, the Magistrate is not empowered to take cognizance of the offence and such cognizance is taken only on the basis of the complaint of the facts received by him which includes a police report of such facts or information received from any person, other than a police officer, under Section 190 of the Code. Section 200 which falls in Chapter XV, indicates the manner in which the cognizance has to be taken and that the Magistrate may also inquire into the case himself or direct an investigation to be made by a police officer before issuing process.

16. Reference was also made to the decision of this Court in Mohd. Yousuf v. Afaq Jahan (Smt.) and Anr. MANU/SC/0189/2006 : (2006) 1 SCC 627, where it has been held that when a Magistrate orders investigation under Chapter XII of the Code, he does so before he takes cognizance of the offence. Once he takes cognizance of the offence, he has to follow the procedure envisaged in Chapter XV of the Code. The inquiry contemplated under Section 202(1) or investigation by a police officer or by any other person is only to help the Magistrate to decide whether or not there is sufficient ground for him to proceed further on account of the fact that cognizance had already been taken by him of the offence disclosed in the complaint but issuance of process had been postponed.

17. The law is well-settled that an investigation ordered by the Magistrate under Chapter XII is at the pre- cognizance stage and the inquiry and/or investigation ordered under Section 202 is at the post-cognizance stage. What we have to consider is whether the Magistrate committed any error in refusing the appellant's prayer for an investigation by the police under Section 156(3) of the Code and resorting to Section 202 of the Code instead, since both the two courses were available to him."

Applying the aforesaid legal position in the facts of the present case it

would be manifest that the Ld. Magistrate has committed an illegality in

directing the police to carry out the investigation and to register FIR at the

post-cognizance stage. At best the Ld.Magistrate could have directed limited

inquiry through the police as admissible under Section 202 and thereafter it

was for the Magistrate to have taken a view whether to proceed under

Section 203 or 204 of the Code of Criminal procedure. Clearly in the present

case the Ld.Magistrate has gone back to the stage of 156(3) by giving a

direction to the police to register FIR and to carry out the investigation. This

was totally impermissible in law and therefore the Ld.Magistrate has clearly

committed an impropriety in passing the impugned order. The impugned

order dated 25.9.2009 is accordingly set aside. Since the pre-summoning

evidence was recorded by the Ld.Magistrate therefore, the Magistrate may

proceed in the matter from that stage and all subsequent proceedings held in

the present matter also stands quashed.

It is ordered accordingly.

                                                   KAILASH GAMBHIR, J
APRIL      10, 2013
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