Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.460 OF 2008
1. Narayandas s/o Hiralalji Sarda,
Aged about 67 years,
Occupation – Business,
R/o. 139, Wardhman Nagar,
Nagpur, Tahsil & District :
Nagpur.
2. Harikishan s/o Ratanlalji Sarda,
Aged about 57 years,
Occupation – Business,
R/o. 84, “Sardakunj”
Central Avenue, Nagpur
Tahsil & District : Nagpur.
3. Kamal Kishore s/o Narayandasji Sarda,
Aged about 44 years,
Occupation – Business,
R/o. Agneya Apartment, Tikekar Road,
Dhantoli, Nagpur, Tahsil & District -
Nagpur. .. Petitioners
.. Versus ..
1. The State of Maharashtra,
through Police Station Officer,
Ganeshpeth, Nagpur,
Tahsil & District : Nagpur.
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2. Shri Govindlal s/o Bansilalji Sarda,
Aged about 69 years,
Occupation – Business,
R/o. 84, “Sardakunj”
Central Avenue, Nagpur
Tahsil & District : Nagpur. .. Respondents
..........
Mr. R.M. Daga, Advocate with Mr. M.P. Khajanchi, Advocate
for the Petitioners,
Mr. D.M. Kale, APP for Respondent no.1/State,
Mr. Shyam Dewani, Advocate for Respondent no.2.
..........
CORAM : K.J. ROHEE & A.P. BHANGALE, JJ
DATED : AUGUST 14, 2008
ORAL JUDGMENT : (PER : K. J. ROHEE, J)
1. Rule. Returnable forthwith. Heard finally by
consent of parties.
2. By this petition under Articles 226 and 227 of the
Constitution of India, the petitioners seek to quash order dated
25.7.2008 passed by Judicial Magistrate, First Class, Court
No.1, Nagpur in Regular Criminal Complaint Case No.2462 of
2008, Govindlal s/o Bansilal Sarda .vrs. Narayandas s/o
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Hiralalji Sarda and others.
3. The facts which give rise to the present petition are
as under :
The petitioners and respondent no.2 are close
relatives. It is alleged that Plot No.84 situated at Central
Avenue, Nagpur was allotted by Nagpur Improvement Trust to
respondent no.2 in the year 1959 on lease for a period of 30
years. Besides respondent no.2 nobody had any right to the
said plot. On 21.2.2008 respondent no.2 lodged a written
report at Police Station, Ganeshpeth (Nagpur) against
petitioner nos.1 and 2 alleging therein that they executed
Release Deed on 11.3.1985 by forging the signature of
respondent no.2. They also moved application before Nagpur
Improvement Trust by forging the signature of respondent
no.2. They mislead Nagpur Improvement Trust by cheating
with intent to deprive respondent no.2 of his valuable
immovable property. Respondent no.2 claimed in the report
that he came to know about the illegalities committed by
petitioner nos.1 and 2 through a public notice published in the
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newspaper on 18.1.2008, whereby petitioner nos.1 and 2
claimed right in the property of respondent no.2.
4. On 24.2.2008 the Duty Officer of Police Station,
Ganeshpeth (Nagpur) informed the son of respondent no.2
that the matter is of civil nature; that NC No.64/2008 was
entered and that respondent no.2 may approach the Court.
5. On 21/22.7.2008 respondent no.2 filed a complaint
before Judicial Magistrate, First Class, Court No.1, Nagpur
against the petitioners. It was registered as Regular Criminal
Complaint Case No.2462/2008. Respondent no.2 prayed for a
direction to Police Station Officer, Police Station, Ganeshpeth
(Nagpur) to investigate the matter by registering crime and in
the alternative to take cognizance of the offences punishable
under Sections 406, 420, 468, 506-B r/w 34 of the Indian
Penal Code and to punish the petitioners.
6. On 25.7.2008 Judicial Magistrate, First Class, Court
No.1, Nagpur passed an order directing that the complaint be
sent to Ganeshpeth Police Station for investigation. He
directed the Investigating Officer to register offence and to
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submit report accordingly. The present writ petition is filed on
1.8.2008 challenging the said order. On the same day the said
order was stayed only to the extent it directed to register
offence.
7. Preliminary submissions were filed on behalf of
respondent no.2. According to respondent no.2 the petition
itself is not tenable; that the impugned order is revisable;
that an alternate remedy is available to the petitioners and
that the extraordinary jurisdiction of this Court under Articles
226 and 227 of the Constitution of India cannot be invoked.
It was also pointed out that the impugned order has already
been given effect to inasmuch as the police authorities
registered Crime No. M-02/2008 punishable under Sections
406, 420, 468, 506(B) r/w 34 of the Indian Penal Code on
31.7.2008. Thus, the interim order granted by this Court on
1.8.2008 became infructuous and as such the petition is liable
to be dismissed.
8. We have heard Mr. R.M. Daga, Advocate with
Mr. M.P. Khajanchi, Advocate for the petitioners, Mr. D.M.
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Kale, APP for respondent no.1/State and Mr. Shyam Dewani,
Advocate for respondent no.2.
9. At the outset, Mr. Daga, the learned counsel for the
petitioners, invited our attention to the impugned order, which
reads as under :
“Perused complaint and documents.
Heard learned Advocate for complainant.
Having regard to facts and circumstances of
case it reveals that the complaint required
detail investigation by police machinery to take
cognizance of offence. Hence, complaint be
sent to Ganeshpeth Police Station for
investigation. Concern I.O. is directed to
register offence and file/submit report
accordingly.”
Issue letter accordingly.
R/on 20.08.2008.
Sd/-
(S.N. Tiwari)
J.M.F.C .
Court No.1, Nagpur
25/07/2008
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10. Mr. Daga vehemently urged that a perusal of the
order itself would show that the learned Magistrate perused
the complaint and documents and also heard counsel for the
complainant (R-2). Having regard to the facts and
circumstances of the case, the learned Magistrate thought that
detail investigation was required. He, therefore, sent the
complaint for investigation to the Police. Mr. Daga submitted
that this shows that the Magistrate applied his mind and took
cognizance of the offence. In such circumstances, the only
course which was open to the Magistrate was under Section
202 of the Code of Criminal Procedure, either to inquire into
the case himself or direct an investigation to be made by the
Police Officer for the purpose of decide whether or not there is
sufficient ground for proceeding. Instead of doing that, the
learned Magistrate directed the Investigating Officer to register
offence and to submit his report. According to Mr. Daga this
was not permissible for the learned Magistrate. The impugned
order is, therefore, illegal and requires to be quashed and set
aside.
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11. In support of his submission, Mr. Daga relied on the
following cases :
(i) In Kishun Singh and others .vrs. State of Bihar,
(1993) 2 SCC 16 , it is held that :
“Even though the expression 'take cognizance' is
not defined, it is well settled by a catena of
decisions of this Court 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 .....
Mere application of mind does not
amount to taking cognizance unless the
Magistrate does so for proceeding under
Sections 200/204 of the Code.”
In the above case, the only question which was dealt
with by the Apex Court was whether a writ can be issued to
the police authority to register FIR. This question does not
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arise in the present writ. As such the said case would not be
applicable to the facts of the present case.
(ii) In Aleque Padamsee and others .vrs. Union of
India and others, (2007) 6 SCC 171 , it is held that :
“The correct position of law, therefore, is that
the police officials ought to register the FIR
whenever facts brought to their notice show
that cognizable offence has been made out. In
case the police officials fail to do so, the
modalities to be adopted are as set out in
Section 190 read with Section 200 of the
Code.”
(iii) Maksud Saiyed .vrs. State of Gujarat and others,
(2008) 5 SCC 668 ,
“Wherein the investigation as per order under
Section 156(3) of the Code of Criminal
Procedure/JMFC and the complaint was
quashed under Section 482 of the Code of
Criminal Procedure by the High Court and it
was confirmed by the Apex Court. In para
no.15 of the said judgment, the observations
made in para no.28 of Pepsi Foods Ltd. .vrs.
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Special Judicial Magistrate (1998) 5 SCC 749
were referred to :
“Summoning of an accused in a
criminal case is a serious matter. Criminal law
cannot be set into motion as a matter of
course. It is not that the complainant has to
bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the
case and the law applicable thereto. He has to
examine the nature of allegations made in the
complaint and the evidence both oral and
documentary in support thereof and would
that be sufficient for the complainant to
succeed in bringing charge home to the
accused.”
12. According to Mr. Daga, the learned Magistrate
should have proceeded under Section 202 of the Code of
Criminal Procedure and not under Section 156(3) of the Code
of Criminal Procedure. The impugned order is, therefore,
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illegal and needs to be quashed.
13. Mr. Dewani, the learned counsel for respondent
no.2, on the other hand, submitted that the perusal of the
impugned order does not show that the learned Magistrate
took cognizance of the offence merely because he perused the
complaint and the documents and heard counsel for the
complainant/R-2. Mr. Dewani, submitted that the learned
Magistrate did not examine the complainant/R-2 on oath
which indicates that the learned Magistrate did not take
cognizance of the offence. It is thus a pre-cognizance stage
wherein the Magistrate has got power to order an
investigation under Section 156(3) of the Code of Criminal
Procedure. Mr. Dewani further submitted that there is nothing
wrong in the Magistrate directing the investigating officer to
register offence and to submit report. In support of these
submissions, he relied on the following cases :
(i) In D.L. Reddy and others .vrs. V.N. Reddy and
others, AIR 1976 SC 1672 , it is held that :
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“This raises the incidental question :
What is meant by “taking cognizance of an
offence” by the Magistrate within the
contemplation of Section 190 ? This expression
has not been defined in the Code. But from the
scheme of the Code, the content and marginal
heading of Section 190 and the caption of
Chapter XIV under which Sections 190 to 199
occur, it is clear that a case can be said to be
instituted in a Court only when the Court takes
cognizance of the offence alleged therein. The
ways in which such cognizance can be taken
are set out in clauses (a), (b) and © of Section
190(1). Whether the Magistrate has or has not
taken cognizance of the offence will depend on
the circumstances of the particular case
including the mode in which the case is sought
to be instituted, and the nature of the
preliminary action, if any, taken by the
Magistrate. Broadly speaking, when on
receiving a complaint, the Magistrate applies
his mind for the purposes of proceeding under
Section 200 and the succeeding sections in
Chapter XV of the Code of 1973, he is said to
have taken cognizance of the offence within the
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meaning of section 190(1)(a). If, instead of
proceeding under Chapter XV, he, has in the
judicial exercise of his discretion, taken action
of some other kind, such as issuing a search
warrant for the purpose of investigation, or
ordering investigation by the police under
Section 156(3), he cannot be said to have
taken cognizance of any offence.
Section 156(3) occurs in Chapter
XII, under the caption : “Information to the
Police and their powers to investigate”, while
Section 202 is in Chapter XV which bears the
heading. “Of complaints to Magistrate”. The
power to order police investigation under
Section 156(3) is different from the power to
direct investigation conferred by Section 202
(1). The two operate in distinct spheres at
different stages. The first is exercisable at the
pre-cognizance stage, the second at the post-
cognizance stage when the Magistrate is in
seisin of the case. That is to say in the case of a
complaint regarding the commission of a
cognizable offence, the power under Section
156(3) can be invoked by the Magistrate
before he takes cognizance of the offence under
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Section 190(1)(a). But if he once takes such
cognizance and embarks upon the procedure
embodied in Chapter XV, he is not competent
to switch back to the pre-cognizance stage and
avail of Section 156(3). It may be noted
further that an order made under sub-section
(3) of Section 156, is in the nature of a
peremptory reminder or intimation to the
police to exercise their plenary powers of
investigation under Section 156(1). Such an
investigation embraces the entire continuous
process which begins with the collection of
evidence under Section 156 and ends with a
report or chargesheet under Section 173. On
the other hand, Section 202 comes in at a
stage when some evidence has been collected by
the Magistrate in proceedings under Chapter
XV, but the same is deemed insufficient to take
a decision as to the next step in the prescribed
procedure. 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.” Thus the object of an
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investigation under Section 202 is not to
initiate a fresh case on police report but to
assist the Magistrate in completing proceedings
already instituted upon a complaint before him.
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, Cr. P. C. 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. In stead of taking cognizance of
the offence, he has, in the exercise of his
discretion, sent the complaint for investigation
by police under Section 156.”
(ii) In Suresh Chand Jain .vrs. State of M.P. And
another, (2001) 2 SCC 628 and Mohd. Yousuf .vrs. Afaq
Jahan (Smt) and another, (2006) 1 SCC 627 , it is held that :
“Any judicial Magistrate, before taking
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cognizance of the offence, can order
investigation under Section 156(3) CrPC. 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.”
(iii) In Laxminarayan Vishwanath Arya .vrs. State of
Maharashtra and others, 2008 Cri.L.J . 1 , it is held that :
“Section 154 of the Code requires a police
officer in charge of police station to reduce in
writing every information relating to the
communication of cognizable offence. In his
default to act, the aggrieved party normally
should approach the Superintendent of
Police of the concerned area, who, if satisfied
that the complaint discloses commission of
cognizable offence may direct the police officer,
subordinate to him, to investigate the same in
accordance with law. This is the administrative
remedy to an aggrieved complainant, while he
could take recourse to the procedure of
requesting the Magistrate empowered to take
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cognizance under Section 190 of the said
offence and pray that a direction be issued for
investigation of the complaint as contemplated
under Section 156(3) of the Act.
The limited scope of powers
available to a learned Magistrate under Section
156(3) of the Code do not admit any
ambiguity. Their scope is limited and is
restricted to the extent that wherever a
Magistrate is satisfied without taking
cognizance ensuring compliance of Section
154(3) the police should investigate the
matter, it could pass directions or order in
terms of Section 156(3). Further control of
investigation or methodology to be adopted
during the investigation is beyond the
jurisdiction or empowerment of a learned
Magistrate under the scheme of these
provisions.”
14. If the above legal principles are applied to the
present case, it would be revealed that in the present case, the
learned Magistrate did not proceed to take cognizance of the
offence inasmuch as he only perused the complaint and
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documents and heard complainant/R-2 and did not examine
the complainant on oath. The learned Magistrate was of the
opinion that it was necessary to have detailed investigation by
the police into the allegations made in the complaint. The
learned Magistrate, therefore, directed the police to register
offence and to submit report. Thus the impugned order is
under Section 156(3) of the Code of Criminal Procedure and
the order cannot be said to be illegal.
15. As regards tenability of the writ petition challenging
the direction of the learned Magistrate to investigate under
Section 156(3) of the Code of Criminal Procedure, it was
submitted by Mr. Dewani that such a writ petition cannot be
entertained in exercise of the extraordinary jurisdiction of the
High Court under Articles 226 and 227 of the Constitution of
India. Mr. Dewani pointed out that the said order is revisable
and thus effective alternate remedy is available. As such filing
of writ petition is not appropriate remedy. In support of this
submission, Mr. Dewani relied on B.S. Khatri .vrs. State of
Maharashtra and another, 2004 (1) Mh.L.J . 747 (Bombay),
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wherein the Court dealt with the Writ Petition challenging the
order passed by the learned Magistrate directing the
investigation under Section 156(3) of the Code of Criminal
Procedure. In the said case, it was held by the Division Bench
as under :
“We have also noted above that several
efficacious alternate statutory remedies under
the Criminal Procedure Code are available to
the petitioners to challenge the order under
section 156(3). Without availing them the
petitioners have rushed before this Court,
claiming exercise of its extraordinary
jurisdiction under Article 226. In our opinion,
therefore, there is no need to exercise this
jurisdiction to quash merely the complaint and
order under section 156, Criminal Procedure
Code requiring investigation into complaint by
the police. The petitions are therefore liable to
be dismissed”.
In our view, the above case directly hits the tenability of the
present writ petition.
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16. It was also pointed out by Mr. Dewani that it was
wrong on the part of the police to say that the matter relates to
civil dispute so as to avoid taking cognizance by police. In
this respect, Mr. Dewani pointed out that there are specific
allegations in the complaint which make out the offences
punishable under Sections 420, 406, 468 & 506-B of the
Indian Penal Code. We refrain from making any comment on
this submission since the learned Magistrate has directed the
police to investigate into the matter.
17. Mr. Daga, the learned counsel for the petitioners,
submitted that the petitioners would surrender before the
Magistrate on 21.8.2008 and prays that till then protection
from arrest may be extended to them. In view of the fact that
the allegations about fraud, forgery and cheating have arisen
out of private complaint, we think it expedient to grant
protection to the petitioners from arrest till 21.8.2008 as
prayed for.
18. In the result, we are of the considered view that the
writ is not tenable and on merits also it is liable to be
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dismissed. We, therefore, pass the following order :
O R D E R
The petition is dismissed. Protection to the
petitioners from arrest is granted till 21.8.2008. Rule
discharged.
(A.P. BHANGALE) (K.J. ROHEE)
JUDGE JUDGE
....................
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.460 OF 2008
1. Narayandas s/o Hiralalji Sarda,
Aged about 67 years,
Occupation – Business,
R/o. 139, Wardhman Nagar,
Nagpur, Tahsil & District :
Nagpur.
2. Harikishan s/o Ratanlalji Sarda,
Aged about 57 years,
Occupation – Business,
R/o. 84, “Sardakunj”
Central Avenue, Nagpur
Tahsil & District : Nagpur.
3. Kamal Kishore s/o Narayandasji Sarda,
Aged about 44 years,
Occupation – Business,
R/o. Agneya Apartment, Tikekar Road,
Dhantoli, Nagpur, Tahsil & District -
Nagpur. .. Petitioners
.. Versus ..
1. The State of Maharashtra,
through Police Station Officer,
Ganeshpeth, Nagpur,
Tahsil & District : Nagpur.
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2. Shri Govindlal s/o Bansilalji Sarda,
Aged about 69 years,
Occupation – Business,
R/o. 84, “Sardakunj”
Central Avenue, Nagpur
Tahsil & District : Nagpur. .. Respondents
..........
Mr. R.M. Daga, Advocate with Mr. M.P. Khajanchi, Advocate
for the Petitioners,
Mr. D.M. Kale, APP for Respondent no.1/State,
Mr. Shyam Dewani, Advocate for Respondent no.2.
..........
CORAM : K.J. ROHEE & A.P. BHANGALE, JJ
DATED : AUGUST 14, 2008
ORAL JUDGMENT : (PER : K. J. ROHEE, J)
1. Rule. Returnable forthwith. Heard finally by
consent of parties.
2. By this petition under Articles 226 and 227 of the
Constitution of India, the petitioners seek to quash order dated
25.7.2008 passed by Judicial Magistrate, First Class, Court
No.1, Nagpur in Regular Criminal Complaint Case No.2462 of
2008, Govindlal s/o Bansilal Sarda .vrs. Narayandas s/o
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Hiralalji Sarda and others.
3. The facts which give rise to the present petition are
as under :
The petitioners and respondent no.2 are close
relatives. It is alleged that Plot No.84 situated at Central
Avenue, Nagpur was allotted by Nagpur Improvement Trust to
respondent no.2 in the year 1959 on lease for a period of 30
years. Besides respondent no.2 nobody had any right to the
said plot. On 21.2.2008 respondent no.2 lodged a written
report at Police Station, Ganeshpeth (Nagpur) against
petitioner nos.1 and 2 alleging therein that they executed
Release Deed on 11.3.1985 by forging the signature of
respondent no.2. They also moved application before Nagpur
Improvement Trust by forging the signature of respondent
no.2. They mislead Nagpur Improvement Trust by cheating
with intent to deprive respondent no.2 of his valuable
immovable property. Respondent no.2 claimed in the report
that he came to know about the illegalities committed by
petitioner nos.1 and 2 through a public notice published in the
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newspaper on 18.1.2008, whereby petitioner nos.1 and 2
claimed right in the property of respondent no.2.
4. On 24.2.2008 the Duty Officer of Police Station,
Ganeshpeth (Nagpur) informed the son of respondent no.2
that the matter is of civil nature; that NC No.64/2008 was
entered and that respondent no.2 may approach the Court.
5. On 21/22.7.2008 respondent no.2 filed a complaint
before Judicial Magistrate, First Class, Court No.1, Nagpur
against the petitioners. It was registered as Regular Criminal
Complaint Case No.2462/2008. Respondent no.2 prayed for a
direction to Police Station Officer, Police Station, Ganeshpeth
(Nagpur) to investigate the matter by registering crime and in
the alternative to take cognizance of the offences punishable
under Sections 406, 420, 468, 506-B r/w 34 of the Indian
Penal Code and to punish the petitioners.
6. On 25.7.2008 Judicial Magistrate, First Class, Court
No.1, Nagpur passed an order directing that the complaint be
sent to Ganeshpeth Police Station for investigation. He
directed the Investigating Officer to register offence and to
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submit report accordingly. The present writ petition is filed on
1.8.2008 challenging the said order. On the same day the said
order was stayed only to the extent it directed to register
offence.
7. Preliminary submissions were filed on behalf of
respondent no.2. According to respondent no.2 the petition
itself is not tenable; that the impugned order is revisable;
that an alternate remedy is available to the petitioners and
that the extraordinary jurisdiction of this Court under Articles
226 and 227 of the Constitution of India cannot be invoked.
It was also pointed out that the impugned order has already
been given effect to inasmuch as the police authorities
registered Crime No. M-02/2008 punishable under Sections
406, 420, 468, 506(B) r/w 34 of the Indian Penal Code on
31.7.2008. Thus, the interim order granted by this Court on
1.8.2008 became infructuous and as such the petition is liable
to be dismissed.
8. We have heard Mr. R.M. Daga, Advocate with
Mr. M.P. Khajanchi, Advocate for the petitioners, Mr. D.M.
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Kale, APP for respondent no.1/State and Mr. Shyam Dewani,
Advocate for respondent no.2.
9. At the outset, Mr. Daga, the learned counsel for the
petitioners, invited our attention to the impugned order, which
reads as under :
“Perused complaint and documents.
Heard learned Advocate for complainant.
Having regard to facts and circumstances of
case it reveals that the complaint required
detail investigation by police machinery to take
cognizance of offence. Hence, complaint be
sent to Ganeshpeth Police Station for
investigation. Concern I.O. is directed to
register offence and file/submit report
accordingly.”
Issue letter accordingly.
R/on 20.08.2008.
Sd/-
(S.N. Tiwari)
J.M.F.C .
Court No.1, Nagpur
25/07/2008
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10. Mr. Daga vehemently urged that a perusal of the
order itself would show that the learned Magistrate perused
the complaint and documents and also heard counsel for the
complainant (R-2). Having regard to the facts and
circumstances of the case, the learned Magistrate thought that
detail investigation was required. He, therefore, sent the
complaint for investigation to the Police. Mr. Daga submitted
that this shows that the Magistrate applied his mind and took
cognizance of the offence. In such circumstances, the only
course which was open to the Magistrate was under Section
202 of the Code of Criminal Procedure, either to inquire into
the case himself or direct an investigation to be made by the
Police Officer for the purpose of decide whether or not there is
sufficient ground for proceeding. Instead of doing that, the
learned Magistrate directed the Investigating Officer to register
offence and to submit his report. According to Mr. Daga this
was not permissible for the learned Magistrate. The impugned
order is, therefore, illegal and requires to be quashed and set
aside.
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11. In support of his submission, Mr. Daga relied on the
following cases :
(i) In Kishun Singh and others .vrs. State of Bihar,
(1993) 2 SCC 16 , it is held that :
“Even though the expression 'take cognizance' is
not defined, it is well settled by a catena of
decisions of this Court 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 .....
Mere application of mind does not
amount to taking cognizance unless the
Magistrate does so for proceeding under
Sections 200/204 of the Code.”
In the above case, the only question which was dealt
with by the Apex Court was whether a writ can be issued to
the police authority to register FIR. This question does not
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arise in the present writ. As such the said case would not be
applicable to the facts of the present case.
(ii) In Aleque Padamsee and others .vrs. Union of
India and others, (2007) 6 SCC 171 , it is held that :
“The correct position of law, therefore, is that
the police officials ought to register the FIR
whenever facts brought to their notice show
that cognizable offence has been made out. In
case the police officials fail to do so, the
modalities to be adopted are as set out in
Section 190 read with Section 200 of the
Code.”
(iii) Maksud Saiyed .vrs. State of Gujarat and others,
(2008) 5 SCC 668 ,
“Wherein the investigation as per order under
Section 156(3) of the Code of Criminal
Procedure/JMFC and the complaint was
quashed under Section 482 of the Code of
Criminal Procedure by the High Court and it
was confirmed by the Apex Court. In para
no.15 of the said judgment, the observations
made in para no.28 of Pepsi Foods Ltd. .vrs.
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10
Special Judicial Magistrate (1998) 5 SCC 749
were referred to :
“Summoning of an accused in a
criminal case is a serious matter. Criminal law
cannot be set into motion as a matter of
course. It is not that the complainant has to
bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the
case and the law applicable thereto. He has to
examine the nature of allegations made in the
complaint and the evidence both oral and
documentary in support thereof and would
that be sufficient for the complainant to
succeed in bringing charge home to the
accused.”
12. According to Mr. Daga, the learned Magistrate
should have proceeded under Section 202 of the Code of
Criminal Procedure and not under Section 156(3) of the Code
of Criminal Procedure. The impugned order is, therefore,
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11
illegal and needs to be quashed.
13. Mr. Dewani, the learned counsel for respondent
no.2, on the other hand, submitted that the perusal of the
impugned order does not show that the learned Magistrate
took cognizance of the offence merely because he perused the
complaint and the documents and heard counsel for the
complainant/R-2. Mr. Dewani, submitted that the learned
Magistrate did not examine the complainant/R-2 on oath
which indicates that the learned Magistrate did not take
cognizance of the offence. It is thus a pre-cognizance stage
wherein the Magistrate has got power to order an
investigation under Section 156(3) of the Code of Criminal
Procedure. Mr. Dewani further submitted that there is nothing
wrong in the Magistrate directing the investigating officer to
register offence and to submit report. In support of these
submissions, he relied on the following cases :
(i) In D.L. Reddy and others .vrs. V.N. Reddy and
others, AIR 1976 SC 1672 , it is held that :
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12
“This raises the incidental question :
What is meant by “taking cognizance of an
offence” by the Magistrate within the
contemplation of Section 190 ? This expression
has not been defined in the Code. But from the
scheme of the Code, the content and marginal
heading of Section 190 and the caption of
Chapter XIV under which Sections 190 to 199
occur, it is clear that a case can be said to be
instituted in a Court only when the Court takes
cognizance of the offence alleged therein. The
ways in which such cognizance can be taken
are set out in clauses (a), (b) and © of Section
190(1). Whether the Magistrate has or has not
taken cognizance of the offence will depend on
the circumstances of the particular case
including the mode in which the case is sought
to be instituted, and the nature of the
preliminary action, if any, taken by the
Magistrate. Broadly speaking, when on
receiving a complaint, the Magistrate applies
his mind for the purposes of proceeding under
Section 200 and the succeeding sections in
Chapter XV of the Code of 1973, he is said to
have taken cognizance of the offence within the
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meaning of section 190(1)(a). If, instead of
proceeding under Chapter XV, he, has in the
judicial exercise of his discretion, taken action
of some other kind, such as issuing a search
warrant for the purpose of investigation, or
ordering investigation by the police under
Section 156(3), he cannot be said to have
taken cognizance of any offence.
Section 156(3) occurs in Chapter
XII, under the caption : “Information to the
Police and their powers to investigate”, while
Section 202 is in Chapter XV which bears the
heading. “Of complaints to Magistrate”. The
power to order police investigation under
Section 156(3) is different from the power to
direct investigation conferred by Section 202
(1). The two operate in distinct spheres at
different stages. The first is exercisable at the
pre-cognizance stage, the second at the post-
cognizance stage when the Magistrate is in
seisin of the case. That is to say in the case of a
complaint regarding the commission of a
cognizable offence, the power under Section
156(3) can be invoked by the Magistrate
before he takes cognizance of the offence under
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Section 190(1)(a). But if he once takes such
cognizance and embarks upon the procedure
embodied in Chapter XV, he is not competent
to switch back to the pre-cognizance stage and
avail of Section 156(3). It may be noted
further that an order made under sub-section
(3) of Section 156, is in the nature of a
peremptory reminder or intimation to the
police to exercise their plenary powers of
investigation under Section 156(1). Such an
investigation embraces the entire continuous
process which begins with the collection of
evidence under Section 156 and ends with a
report or chargesheet under Section 173. On
the other hand, Section 202 comes in at a
stage when some evidence has been collected by
the Magistrate in proceedings under Chapter
XV, but the same is deemed insufficient to take
a decision as to the next step in the prescribed
procedure. 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.” Thus the object of an
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investigation under Section 202 is not to
initiate a fresh case on police report but to
assist the Magistrate in completing proceedings
already instituted upon a complaint before him.
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, Cr. P. C. 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. In stead of taking cognizance of
the offence, he has, in the exercise of his
discretion, sent the complaint for investigation
by police under Section 156.”
(ii) In Suresh Chand Jain .vrs. State of M.P. And
another, (2001) 2 SCC 628 and Mohd. Yousuf .vrs. Afaq
Jahan (Smt) and another, (2006) 1 SCC 627 , it is held that :
“Any judicial Magistrate, before taking
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cognizance of the offence, can order
investigation under Section 156(3) CrPC. 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.”
(iii) In Laxminarayan Vishwanath Arya .vrs. State of
Maharashtra and others, 2008 Cri.L.J . 1 , it is held that :
“Section 154 of the Code requires a police
officer in charge of police station to reduce in
writing every information relating to the
communication of cognizable offence. In his
default to act, the aggrieved party normally
should approach the Superintendent of
Police of the concerned area, who, if satisfied
that the complaint discloses commission of
cognizable offence may direct the police officer,
subordinate to him, to investigate the same in
accordance with law. This is the administrative
remedy to an aggrieved complainant, while he
could take recourse to the procedure of
requesting the Magistrate empowered to take
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cognizance under Section 190 of the said
offence and pray that a direction be issued for
investigation of the complaint as contemplated
under Section 156(3) of the Act.
The limited scope of powers
available to a learned Magistrate under Section
156(3) of the Code do not admit any
ambiguity. Their scope is limited and is
restricted to the extent that wherever a
Magistrate is satisfied without taking
cognizance ensuring compliance of Section
154(3) the police should investigate the
matter, it could pass directions or order in
terms of Section 156(3). Further control of
investigation or methodology to be adopted
during the investigation is beyond the
jurisdiction or empowerment of a learned
Magistrate under the scheme of these
provisions.”
14. If the above legal principles are applied to the
present case, it would be revealed that in the present case, the
learned Magistrate did not proceed to take cognizance of the
offence inasmuch as he only perused the complaint and
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documents and heard complainant/R-2 and did not examine
the complainant on oath. The learned Magistrate was of the
opinion that it was necessary to have detailed investigation by
the police into the allegations made in the complaint. The
learned Magistrate, therefore, directed the police to register
offence and to submit report. Thus the impugned order is
under Section 156(3) of the Code of Criminal Procedure and
the order cannot be said to be illegal.
15. As regards tenability of the writ petition challenging
the direction of the learned Magistrate to investigate under
Section 156(3) of the Code of Criminal Procedure, it was
submitted by Mr. Dewani that such a writ petition cannot be
entertained in exercise of the extraordinary jurisdiction of the
High Court under Articles 226 and 227 of the Constitution of
India. Mr. Dewani pointed out that the said order is revisable
and thus effective alternate remedy is available. As such filing
of writ petition is not appropriate remedy. In support of this
submission, Mr. Dewani relied on B.S. Khatri .vrs. State of
Maharashtra and another, 2004 (1) Mh.L.J . 747 (Bombay),
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wherein the Court dealt with the Writ Petition challenging the
order passed by the learned Magistrate directing the
investigation under Section 156(3) of the Code of Criminal
Procedure. In the said case, it was held by the Division Bench
as under :
“We have also noted above that several
efficacious alternate statutory remedies under
the Criminal Procedure Code are available to
the petitioners to challenge the order under
section 156(3). Without availing them the
petitioners have rushed before this Court,
claiming exercise of its extraordinary
jurisdiction under Article 226. In our opinion,
therefore, there is no need to exercise this
jurisdiction to quash merely the complaint and
order under section 156, Criminal Procedure
Code requiring investigation into complaint by
the police. The petitions are therefore liable to
be dismissed”.
In our view, the above case directly hits the tenability of the
present writ petition.
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16. It was also pointed out by Mr. Dewani that it was
wrong on the part of the police to say that the matter relates to
civil dispute so as to avoid taking cognizance by police. In
this respect, Mr. Dewani pointed out that there are specific
allegations in the complaint which make out the offences
punishable under Sections 420, 406, 468 & 506-B of the
Indian Penal Code. We refrain from making any comment on
this submission since the learned Magistrate has directed the
police to investigate into the matter.
17. Mr. Daga, the learned counsel for the petitioners,
submitted that the petitioners would surrender before the
Magistrate on 21.8.2008 and prays that till then protection
from arrest may be extended to them. In view of the fact that
the allegations about fraud, forgery and cheating have arisen
out of private complaint, we think it expedient to grant
protection to the petitioners from arrest till 21.8.2008 as
prayed for.
18. In the result, we are of the considered view that the
writ is not tenable and on merits also it is liable to be
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dismissed. We, therefore, pass the following order :
O R D E R
The petition is dismissed. Protection to the
petitioners from arrest is granted till 21.8.2008. Rule
discharged.
(A.P. BHANGALE) (K.J. ROHEE)
JUDGE JUDGE
....................
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