DEVARAPALLI LAKSHMINARAYANA REDDY & ORS. versus V. NARAYANA REDDY & ORS.

. DEVARAPALLI LAKSHMINARAYAN~ REDDY & ORS .

V. NARAYANA REDDY & ORS.

May 4, 1976

·B [R. S. SARKAillA, P. N. SHINGIIAL ANI> JASWANT SINGH, JJ.] Code of Criminal Procedure, 1973, Ss. 156(3) anti 20~lnresligati?n.t under-Difference bNWU/1 obj~cts of-Sec. 190(l){a) ''takillg cogni:wnd', meanillf o(. On receiving complaint :1gain;,t the appellants, for allegedly ~:ommiuin~ offences under ss. 147, 148, 307, 395, 448, 378 and 342, J.P.C., the Judicial Mngistiate, F.C. _Dh~rmavaram, forwarded it to the . po!icc. under ~-156(]) Cr.P.C. for investumtton. l11e appellants filed an npphcnlton 111 the Htgh Court under s. 482 Cc.P.C. 1973, R!r..ttDSt the 1\f:lgi.~trnte's order, but the same wa.• dismis!>ed. It was contended befOre this Court that the complaint include.l offence$ triable exclusively by the sessions Court, and under s. 202( l) Proviso l(a), Cr.P.C. 1973, the Magi~trate was prohibited from directing the police to investigate it, that be was bound to proceed with it him~clf before issuing pro· cess to the accused. The liPpeal was; Inter :tlia, cOntC'ltcd on the ground thJt the powers conferred on the Magistr.Jte under ~. 156(3) of the Codo nre inde-:.0 pendent of his pow~r to send the ca ~e for in vc~tig.1tion under s. 202 of tho Code. Section I ~60) can be invoked before the :'-la~:i strn te tt~kt'5 COAnizance o! the case but s. 202 comes into operation only after he ~tart.; dc;1line: with the c:t'm· rl<tint in ueiord~nce with the pro¥i~ions of C:h:lpter XV.

DismC,,iog the appeal of the Court,

HELD: (I l The pov...,r to orJcr police invc,lig:•tion un,kr .~. 156(3) ;, diiTcrcnt from the power to direct invc,tig~t \un conferred by s. ~(12 (I). 1 he two opcrnte in distinct spheres at different s lug.:.~. The fir,t i~ cx~:rci!.llblc at the pre·copnizance stage, the second nt the post-co;:niz.am:e ~tage when the Magi:;trutc deciding is in sei5in w~ethcr of the or case. not there An investigatii~ ~ufficicnt on ground under s. 202 for proceeding". is ''for the 11.:1 pu~e obje.:t i-of / n.ot to inlti:1te fresh c:.'C on rolicc report, but to ns,ist the M~S.i5:ru:e in completing procceJin~, already in,;titutd upon ;t cotnpl:<int before him. The . . , .. ,. , stafo'e ~:~-.e. nt [DOB-H; which 53 \. 202 I Jjj couiJ hl:~utn.; opcn.tivc wu~ !lever rcacheJ in thi, ;: il (2} When on re~civina Nmpbint, tb~ Magi~tratc upplie~ his mind for th~ purpose' of proceedtng under s. 201) o.ud the su~eeding ~cction5 in cbopter XV I'· of lh<! Code or 1973, he is said to have taken cogni:wnce of the otfo:nce within " the me~n in~ of s. ~ 90(1)(~). _lf i!'s<e~d or proceedin~ under Chap:er xv. j:, he ha• 10 the utrctse or h11 <lt•creuon, taken uctlon of ~ome other k.ind, he cnnnot be •:.id to h:~ve taken co~:n.it.ance or any olfc:nce. i'26D-G) Nlrmaliit Sin~lt /loon\'. . 1/1t 1t Stutt: vi H'rll /Jo•IIJ;al •IIJ;al IIJ;al J;al am( llnr. r. [197JJ 3 S.C'.C. S.C'.C. r 753, referred referred erred red to. . .. •· CRIMI.'\AL .'\AL '\AL Al'l'flLATr. 'flLATr. JL'J<rSDlCTI0:-1: 'J<rSDlCTI0:-1: Criminnl No. . 219

Nlrmaliit Sin~lt /loon\'. . 1/1t 1t Stutt: vi H'rll /Jo•IIJ;al •IIJ;al IIJ;al J;al am( llnr. r. [197JJ 3 S.C'.C. S.C'.C. 753, referred referred erred red to. . .. •· CRIMI.'\AL .'\AL '\AL Al'l'flLATr. 'flLATr. JL'J<rSDlCTI0:-1: 'J<rSDlCTI0:-1: Criminnl Ap(Xnl No. . 219 L or 197.5.

_ ( Appc<tl by bpl!cial leave from the judgment nnd orJt·r dalt:d. th.: 20th October, 1975. of the Andhra Pradesh High Court <tt Hydcrahad ll in Criminal Misc. Petition No. 1890 of 197.5).

1'. Ba.1i Reddy, and A. V. V. Na1r, for the appellants .

. OJ. R. K. Clwudlwry and B. Kania R11o, for rc~pond~nt No. l.

joo

P. Ram Reddy, and P. Parameslzwara Rao, for respondent Nos. 2 and 3. 'The Judgment of the Court was delivered by

~. J.-Whether in view of Clause (a) of the first Proviso to s. 202( U of the Code of Criminal Procedure, 1973, Magistrate who receives complaint, disclosing an offence exclusively triable by the Court of Session, is debarred from sending the same to the police for investigation under s. 156(3) of the Code, is the short question that falls to be determined in this appeal by special leave. The queitioo arises in these circumstances :

Reipondent 1 herein made complaint on July 26 .. 1975 before the Judicial Magistrate, First Class, Dharamavaram against the appel-Ian~ herein alleging that on account of factions existing in village Thippapalli the appellants formed themselves into an unlawful assembly, armed with deadly weapons, such as axes, spears and sticks, on the night of June 20, 1975 and entered the houses of several persons belonging to the opposite party, attacked the inmates and forcibly took away jewels, paddy, ground-nuts and other valuables of the total value of two lakhs of rupees. It was furthyr alleged that the miscreants thereafter went to the fields and removed parts of machinery worth ov.:r Rs. 40,000/-, installed at the wells of their enemies. On these facls it was alleged that the accused had committed offences under Si. 147, 148, 149, 307, 395, 448, 378 and 342 of the Penal Code. The otl'ences under ss. 307 and 395 are exclusively triable by the Court of Session. The Magistrate on receiving the complaint for-warded j.~ to the Police for investigation with tbis endorsement :

"Forwarded under s. 156(3), Cr. Procedure Code to the Inspector of Police, Dharmavaram for investigation and report on or before 5-8-197 5."

The appellants moved the High Court of Andhra Pradesh by petition unckr s. 482 of the Code of Criminal Procedure, 1973 (which correip<>nds to s. 561-A of the old Code) praying that the order passed by the Magistrate be quashed inasmuch as "it was illegal, unjust and gravely prejudicial to the petitioners". The learned Judge of the High Court, who heard the petition,. dismissed it by an order dated October 20, 1975.

Hence this appeal.

Mr. Basi Reddy, appearing for the appellants contends that the High Court has failed to appreciate the true effect of the changes brought by the Code of 1973. According to the Counsel, under the new Code. if complaint discloses an offence triable exclusively by court of Session, the Magistrate is bound to proceed with that com-plaint himself before issuing process to the accused. The point pressed into argument is that clause (a) of the first Proviso to s. 202(1), of the new Code peremptorily prohibits the Magistrate ~o direct investi-gation of such complaint by the Police or any other person. The cases. Gopal Das v. State of AssamC); Jamuna Singh v. Bhadai Shah(2), referred to by the High Court are sought to be distinguished

(2) {19641 s s.c.R. 37.

(1) {1961) A.T.R. 1961 S.C. 986.

(1976] SUPPLEMENTARY

[1976] SUPPLEMENTARY

(a) upon receiving complaint of facts which constitute such offence;

(b) upon pollee report o~ such facts;

(c) upon information received from any person other than police officer, or upon his own knowledge, that suck offence has been committed. (2) .. · ·

It is well settled that when Magistrate receives complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the/ commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they occwr cannot be equated with must take cognizance". The word "'may" gives. discretion to the Magistrate in the ·matter. If on reading of the complaint he finds that the allegations therein disclose cognizable offence and the forwarding of the complaint to the police for investigation under s. 156(3) will be conducive to j"ustioe and save the valuable time of the Magistrate from being wasted in enquiring into matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alter-native to takin~ cognizance of the offence, himself.

Thjs raises the incidental question : What is meant by "taking cognizan<:e of an offence'' by Magistrate within the contemplation of s. 190 ? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of s. 190 and the caption of Chapter XIV under which ss. 190 to 199 occur, it is clear that case can be said to be instituted in Court only when the Gourt takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magis-trate has or has not taken cognizance of the offence will depend on the circumstance~. 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 complaint, the Magistrate applies his mind for the purposes of proceeding under s. 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 meaning of s. 190 ( 1 )(a). If, instead of proceed-ing under Chapter XV. he has in the judicial exercise of his discre-tion, taken action of some other kind, such as issuing search warrant for the purpose of investigation, or ordering investigation by the police under s. 156(3), he cannot be said to have taken cognizance of any offence.

This position of law has been explained in several cases by this Court..., the latest being Nirmaljit Singh Hoon v. The State of West Bengal: and anrC).

The position under the Code of 1898 with regard .to th.e pc_>wers of Magistrate having jurisdiction, t? send c?mplatnt d!sclosmg cognizable offence-whether or not tnable excluswely by the Court of

(1) [1973} 3 s.c.c. 753.

36-83~SCI/76

Session-to the Police for inves~igation under s. 156(3}~ rer..~ains un-~hang~d ~nder the Code of 1973. The distinction between police mvesngatron ordered under s. 156(3) and the one directed under s. 202, has also been maintained under the new Code; bU! rider has been clamped by the 1st Proviso to s. 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any directio:t for in-ve&tigation.

Section 156(3) occurs in Chapter XII, under the caption : "Information to the Police and their powers to investigate"; «rhile s. 202 is in Chapter XV which bears the heading "Of complaints to Magistrates". The power ,to order police investigation under s. 156(3) is different from the power to direct investigation conferred by s. 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 complaint regarding the commission of cognizable offence, the power under s. 156(3) can be invoked by the Magistrate before he ttakes cognizance of the offence under s. 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 s. 156(3). It may be noted further that an order made under sub-section (3) of s. 156, is in the nature of peremptory reminder or intimation to the police to exercise their plenary powers of investigation under s. 156(1 )_. Such an investigation embraces the entire continuous pr~ cess which begins wi,th the collection of evidence under s. 156 and ends with report or chargesheet under s. 173. On the other hand s. 202 comes in at stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take decision as to the next step in the pres-cribed procedure. In such situation, the Magistrate is empowered under s. 202 to direct within the limits circumscribed by that section, an investigadon "for the purpose of deciding whether or not here is sufficient ground for proceeding". Thus the obiect of an investi-a,ation under s. 202 is not to initiate freah case on police report but to assist the Magistrate in completing proceedings already ~nstituted upon 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 s. 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complaint or his witnesses under s. 200, Cr.P.C., which is the first step in the procedure prescribed under that Chapter. The question of taking the next step o~ that procedure em-isaged in s. 202 did not arise. Instead of takiJlg cognizance of the offence. he has,, in the exercise of his discretion, sent the complaint f<:"r investi-gation by police under s. 156.

This being the position, s. 202(1), 1st Proviso was not attracted. Indeed, it is not necessary for the decision of this case to express any final opinion on the ambit and scope of the 1st Proviso to s. 202(1) cf the Codei of 1973, Suffice it to say, the stage at which s. 202 -could become~ operative was never reached in this case. We have therefore in keeping with the well-established practice cf the Court, <lecided only that much which was essential for the disposal of this appeal, and no more. t For the foregoing reasons, we answer the question po·sed,, in the negative, and dismiss this appeal.

Ap.peal dismissed.