KAILASH VIJAYVARGIYA versus RAJLAKSHMI CHAUDHURI AND OTHERS

[2023] 6 S.C.R. 135

KAILASH VIJAYVARGIYA

RAJLAKSHMI CHAUDHURI AND OTHERS

(Criminal Appeal No. 1581 of 2021 Etc.)

MAY 04, 2023

[M. R. SHAH AND SANJIV KHANNA, JJ.]

Code of Criminal Procedure, 1973 :

s. 156(3) – Police officer’s power to investigate cognizablecase – Application u/s. 156(3) by the victim-complainant allegingrape by the appellants; and sought direction to police to investigatethe matter treating the complaint as an FIR – Prior to filing of thesaid application, the victim filed several complaints before the policeauthorities, who conducted an enquiry and found that there wasdelay of two years in filing the complaint and refused to register thesame – Dismissal of the application u/s. 156(3) by the Magistrate –Revision application thereagainst, allowed by the High Court, settingaside the order of the Magistrate holding that the Magistrate atthat stage could not verify the veracity of allegations – Issuance ofdirection to the Magistrate to re-consider the application u/s. 156(3)– On remand, the Magistrate passed an order u/s. 156(3) directingregistration of the FIR – On appeal, held: It is impermissible andcontrary to law to adjudicate on merits the allegations and determinethe facts as baseless, without further scrutiny and examination –Thus, the High Court was correct in remitting the matter to theMagistrate for further examination – Magistrate, while passing asubsequent order u/s. 156(3) directing registration of the FIR, misreadthe order and directions given by the High Court – Magistrate wasrequired to examine, apply his judicious mind and then exercisediscretion whether or not to issue directions u/s. 156(3) or whetherhe should take cognizance and follow the procedure u/s. 202 – Hecould also direct preliminary inquiry by the Police – In view thereof,the order passed by the High Court remanding the matter back tothe Magistrate is upheld – The subsequent order passed by theMagistrate on remand, directing registration of FIR is remitted backto the Magistrate to apply his judicial mind and exercise thediscretion u/s. 156(3) or to take cognizance u/s. 202 of the Code.

Ass. 156 (3) and 202 – Power of the Magistrate to directinvestigation at pre-cognizance u/s. 156(3) and post-cognizancestages u/ss. 200-210 – Distinction between – Held: Power u/s.156(3)is to be exercised before the Magistrate takes cognizance u/s. 190– Once the Magistrate takes cognizance, the Magistrate hasdiscretion to take recourse to his powers u/s. 202 – MagistrateBexercises very limited power u/s.156(3) whereas, u/s. 202, theMagistrate can analyse the veracity of the complaint made andappreciate whether there are grounds to proceed further.

Disposing of the appeals, the Court

CHELD: 1.1 The invocation of power under Section 156(3)CrPC is wider as held in Priyanka Srivastava’s case , yet thereare limits within which the Magistrate must act. When theMagistrate is satisfied that the allegations made disclosecommission of cognizable offence, he must stay his hands, directregistration of an FIR and leave it to the investigative agency toDunearth the facts and ascertain the truth of the allegations. TheMagistrate in terms of the ratio in Lalita Kumari’s case can forgood reasons direct preliminary enquiry. [Para 22][164-F-H]1.2. The operandi for registration of information in acognizable offence and eventual investigation is not limited toEPolice, and sub-section (3) to Section 156, subject to legalstipulations, gives the ameliorating power to Magistrateempowered under Section 190 to order an investigation in acognizable offence. Two different powers vested with two distinctauthorities, namely the Police and the Magistrate, who dischargedistinct functions and roles under the Code as indicated aboveFare not entirely imbricating. The power of Magistrate to directinvestigation falls under two limbs of the Code: one is pre-cognizance stage under Section 156(3), and another on cognizanceunder Chapter XIV (‘Conditions Requisite for Initiation ofProceedings’; Sections 190-199) read with Chapter XVG(‘Complaints to Magistrates’; Sections 200-210). These twopowers are different and there also lies procedural distinctionbetween the two. [Para 23, 24][165-B-D]

1.3. The direction for registration of an FIR should not beissued in routine manner. The Magistrate is required to applyhis mind and exercise his discretion in judicious manner. If theMagistrate finds that the allegations made before him disclosecommission of cognizable offence, he can forward the complaintto the Police for investigation under Section 156 and therebysave valuable time of the Magistrate from being wasted in inquiryas it is primarily the duty of the Police to investigate. However,the Magistrate also has the power to take cognizance and takerecourse to procedure under Section 202 of the Code andpostpone the issue of process where the Magistrate is yet todetermine existence of sufficient ground to proceed. In thirdcategory of cases, the Court may not take cognizance or directregistration of an FIR, but direct preliminary inquiry in terms ofthe dictum in Lalita Kumari’s case. [Para 27][167-D-F]

1.4 In the instant case, the preliminary inquiries concludethat in the communications made to the police between 2018 to2020, there is no allegation that rape took place on 29[th] November2018. As per the report the complainant had failed to give anylogical and satisfactory account for the delay in lodging thecomplaint. The accused assert that the complaint is an abuse ofthe process of law and has been filed to put pressure on theaccused in view of the rape case filed by her against the thirdperson. At the same time, it is noticeable that the complainant/informant has made several allegations of rape, sexual harassment,etc. against persons with whom she had been acquainted andworking. The complainant/informant has pleaded threat andharassment at the hands of the persons named as perpetrators,who are people of influence and power as the ground and reasonfor delay. She pleads that period of limitation prescribed in section468 of the Code does not apply to an offence punishable withimprisonment exceeding three years. While examining thequestion of delay in making the complaint, the courts must remainalive to the fact that it is difficult for woman to come forwardand make statement alleging rape or sexual assault. [Paras 33and 34][171-B-F]

138SUPREME COURT REPORTS

A1.5 Every criminal case, it is stated, is voyage of discoveryin which truth is the quest. Right from the inception of the judicialsystem, it has been accepted that discovery, vindication andestablishment of truth are the primary purposes underlying theexistence of the courts of justice. However, the supremacy oftruth is easier to assert than to define. Often this task becomesBdifficult when contradictory factual positions are asserted dulysupported and affirmed on oath. In adversarial systems, theprocess of ascertaining truth requires compliance of proceduresand rules of evidence, and limit the role of the adjudicator, inacting as an investigator to verify veracity of the allegations andCcounter-allegations till evidence and material is laid and examinedas per codified procedural law. Yet it is believed that clash ofadversaries is best calculated to getting out the facts. In well-designed system, judicial findings of formal legal truth shouldcoincide with the substantive truth. This can happen when thefacts as asserted by the contestants are skilfully explored inDaccordance with the procedure prescribed by law. Abuse of lawmust be checked, if possible, at the very threshold, albeit when itis possible and also as per the procedure prescribed by law. [Para35][171-F-H; 172-A-B]

1.6. When complaint is presented before Magistrate,Ehe has two options. One is to pass an order contemplated bySection 156(3). The second one is to direct examination of thecomplainant on oath and the witness present, and proceed furtherin the manner provided by Section 202. An order under Section156(3) is in the nature of peremptory reminder or intimation toFthe police to exercise its plenary power of investigation underSection 156(1). However, once the Magistrate has takencognizance under Section 190 of the Code, he cannot ask for aninvestigation by the Police. After cognizance has been taken, ifthe Magistrate wants any investigation, it will be under Section

202, whose purpose is to ascertain whether there is prima facieGcase against the person accused of the offence and to preventissue of process in false or vexatious complaint intended toharass the person named. Such examination is provided,therefore, to find out whether there is or not sufficient groundfor proceeding further. [Para 36][173-B-D]H

1.7 The question of the merits of the allegations, and whatprocedure the Magistrate should follow is not gone into as this isan aspect which the Magistrate must first consider and decidejudiciously and as per the law. What is impermissible and contraryto law is an adjudication on merits of the allegations anddetermination of the facts as baseless, without further scrutinyand examination. Therefore, the High Court was correct inremitting the matter to the judicial magistrate for furtherexamination. [Para 37][173-E-F]

1.8 The Magistrate, on remand, has passed an order underSection 156(3) directing registration of the FIR. He has misreadthe order and directions given by the High Court. The Magistrateis required to examine, apply his judicious mind and then exercisediscretion whether or not to issue directions under Section 156(3)or whether he should take cognizance and follow the procedureunder Section 202. He can also direct preliminary inquiry bythe Police in terms of the law laid down by this Court in LalitaKumari’s case. [Para 38][173-G]1.9 The accused do not have any right to appear before theMagistrate before summons are issued. However, the law givesthem right to appear before the revisionary court in proceedings,when the complainant challenges the order rejecting an applicationunder section 156(3) of the Code. The appellants, therefore, hadappeared before the High Court and contested the proceedings.They have filed several papers and documents before the HighCourt and this Court. To be fair to them, the copies of the papersand documents filed before the High Court and this Court wouldalso be forwarded and kept on record of the Magistrate who would,thereupon, examine and consider the matter. However, thecomplainant/informant would be entitled to question thegenuineness and the contents of the said documents. [Para39][174-A-C]

1.10. In view thereof, while affirming the impugned judgmentand order passed by the High Court remanding the matter backto the Magistrate, the subsequent order passed by the Magistrateon remand, pursuant to the impugned judgment and order passedby the High Court is set aside and the matter is remitted back to

Athe Magistrate to examine and apply his judicial mind and thenexercise discretion whether or not to issue directions undersection 156(3) or whether he can take cognizance and follow theprocedure under section 202. He can also direct the preliminaryenquiry by the police in terms of the law laid down by this Courtin the case of Lalita Kumari. [Para 40][174-D-E]B

Lalita Kumari v. Government of Uttar Pradesh andOthers (2014) 2 SCC 1 : [2013] 14 SCR 713 – followed.

Priyanka Srivastava v. State of Uttar Pradesh (2015) 6SCC 287 : [2015] 4 SCR 108 – relied on.

Mukul Roy v. The State of West Bengal 2018 SCCOnline Cal. 4861; Maksud Saiyed v. State of Gujarat(2008) 5 SCC 668 : [2007] 9 SCR 1113; Anil Kumar v.M.K. Aiyappa (2013) 10 SCC 705 : [2013] 9 SCR 869;Ramdev Food Products Private Limited v. State ofGujarat (2015) 6 SCC 439 : [2015] 5 SCR 283; SureshKankra v. State of U.P. & Another (Criminal AppealNo. 52/2022, decided on 07.01.2022); SrinivasGundluri and Others v. SEPCO Electric PowerConstruction Corporation (2010) 8 SCC 206; AnjuChaudhary v. State of U.P. (2013) 6 SCC 384 : [2012]13 SCR 901; Assistant Collector of Customs, Bombayv. L.R. Melwani AIR 1970 SC 962 : [1969] SCR 438;Krishna Lal Chawla v. State of Uttar Pradesh (2021) 5SCC 435; Abhinandan Jha v. Dinesh Mishra AIR 1968SC 117 : [1967] SCR 668; State of Haryana and Othersv. Bhajan Lal and Others, (1992) 1 Supp SCC 335 :[1990] 3 Suppl. SCR 259; Mohd. Yusuf v. Afaq Jahan(Smt) and Another (2006) 1 SCC 627 : [2006] 1 SCR1; HDFC Securities Ltd. v. State of Maharashtra (2017)1 SCC 640 : [2016] 8 SCR 968; Chandra Deo Singh v.Prokash Chandra Bose Alias Chabi Bose and AnotherAIR 1963 SC 1430 : [1964] SCR 639; Jasraj InderSingh v. Hemraj Multanchand (1977) 2 SCC 155 :[1977] 2 SCR 973; Gopal Das Sindhi and Others v.State of Assam and Another AIR 1961 SC 986; SureshChand Jain v. State of M.P. and Another (2001) 2 SCC

KAILASH VIJAYVARGIYA v. RAJLAKSHMI CHAUDHURIAND OTHERS

628 : [2001] 1 SCR 257; Mona Panwar v. High Courtof Judicature of Allahabad through its Registrar andOthers (2011) 3 SCC 496 : [2011] 2 SCR 413 – referredto.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1581 of 2021.

From the Judgment and Order dated 01.10.2021 of the High Courtat Calcutta in CRR No. 92 of 2021.

With

Criminal Appeal Nos. 1582 and 1583 of 2021.

Mahesh Jethmalani, Maninder Singh, P. S. Patwalia, Sr. Advs.,Kabir Shankar Bose, Amit Mishra, Amit Tiwari, Kanika Singhal,Ms. Mughda Pandey, Surjendu Sankar Das, Ms. Annie Mittal,Ms. Swarupama Chaturvedi, Ms. Kanika Singhal, Dheeraj Trivedi, Debu

AChowdhury, Arvind Gupta, Ms. Saumya Kapoor, Siddhant Yadav,Nachiketa Joshi, Amit Tiwai, Santosh Kumar, Praneet Pranav, VedanshAnand, Ayush Anand, Advs. for the Appellant.

R. Basant, Bikash Ranjan Bhattacharya, Sr. Advs., SuhaanMukerji, Vishal Prasad, Akshay Sahay, Sayandeep Paharii, M/s. PlrChambers and Co., Rauf Rahim, Ali Asghar Rahim, Arvind C., Advs.Bfor the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentCand order dated 01.10.2021 passed by the High Court of Calcutta inCriminal Revision Application No. 92/2021, by which the High Courthas allowed the said revision application preferred by respondent no.1herein – original complainant (victim) and has quashed and set asideorder dated 12.11.2020 passed by the learned Chief Judicial Magistrate,Alipore (for short, ‘learned CJM’) rejecting the petition filed by respondentDno.1 herein – original complainant under Section 156(3) of the Code ofCriminal Procedure,1973 (Code/Cr.PC) original respondent nos. 2 to 4(alleged accused) have preferred the present appeals.

2. The facts leading the present appeals in nutshell are as under:

That respondent no.1 herein – original complainant lodged aEcomplaint under Section 156(3) Cr.P.C. in the Court of learned CJM,making allegations against the appellants herein alleging that she wasraped by all the three appellants on 29.11.2018 at about 5:00 p.m. at theresidence of original accused no.3 – Kailash Vijayvargiya, when shewas invited to discuss another Crime No. 1 of 2018 registered againstFtheir colleagues filed by her. That it was prayed to direct the Officer inCharge of Bhowanipore Police Station to start investigation into the matterafter treating the complaint as an FIR.

2.1 It was the case on behalf of the complainant in the complaintbefore the learned CJM that she was member of the State CommitteeGof the Bhartiya Janata Party in the State of West Bengal. As personinvolved in active politics, she has acquaintance with the leaders of theState at national level. On the allegation of rape, she filed writtencomplaint before the Officer in Charge, Behala (Woman) Police Stationagainst one Amalendu Chattopadhyay. The said complaint was registeredas Case No. 01/2018 dated 31/08/2018 under Sections 417/376/406/313/H

120B IPC. The investigation of the said case resulted in filing of thecharge sheet against the above-named Amalendu Chattopadhyay. It wasfurther alleged that since the filing of the charge sheet, she waspressurised by the appellants, namely, Pradeep Joshi, Jishnu Basu andKailash Vijayvargiya, national level leaders of the said party to withdrawthe case against Amalendu Chattopadhyay. On the pretext of having adiscussion over the said matter, the appellants asked her to come at theresidential apartment of accused – Kailash Vijayvargiya. It was furtheralleged in the complaint that she tried to inform the matter to the Officerin Charge of the Bhowanipore Police Station but the police suggestedher to meet them in response to such call.That she went to the residential apartment of the accused – KailashVijayvargiya on 29.11.2018 at about 5:00 p.m. The other accused werepresent in the said apartment from before. It was further alleged thatthe appellants committed rape upon her against her will one by one.Therefore, it was alleged that she became the victim of libido of theleaders of the said political party occupying position at national level. Itwas further alleged in the complaint that after the incident she wasthreatened with dire consequences. She was threatened by the appellantsthat in the event she takes any legal steps against them, her son wouldalso be killed. It was further alleged that subsequently also she wassubjected to physical assault and mental torture and she lodged complaintsagainst the accused before different police stations, such as, SarsunaP.S. Case No. 131/2019 under Sections 341/506(ii)/34 IPC and BolpurP.S. Case No. 89/2020 under Sections 341/323/325/506/34 IPC. It wasfurther alleged and so stated in the complaint that over the incident dated29.11.2018, she tried to make the complaint with the local police stationbut police refused to accept such complaint from her. She also informedthe matter to the higher authorities of the police but they also failed totake any action against the accused by registering an FIR. It appearsthat the respondent informed the Officer in Charge of Behala PoliceStation on 14.08.2020 about the alleged rape by the accused personsallegedly on 9.8.2018.

2.2 She filed complaint before the DCP (South Division), 34,Park Street, Kolkata on 5.10.2020. According to her, she filed writtencomplaint before the concerned police station, i.e., P.S. Bhowanipore on27.10.2020. She filed another complaint to the Deputy Commissioner ofPolice on 04.11.2020. According to the complainant, despite the aforesaid

Acomplaints to the various authorities making specific allegations againstthe accused persons having committed rape upon her on 29.11.2018,FIR has not been lodged and no investigation has been carried out andtherefore she filed an application in the Court of the learned CJM, Aliporeunder Section 156(3) Cr.P.C. on 12.11.2020 and requested to direct theconcerned police officer to register an FIR and investigate into the matter.B2.3 That the learned CJM, by detailed order dated 12.11.2020and after giving cogent reasons, dismissed the said application underSection 156(3) Cr.P.C.

2.4 Feeling aggrieved and dissatisfied with the order passed byCthe learned CJM, dismissing the application under Section 156(3) Cr.P.C.filed by the complainant, the complainant preferred Revision Applicationbefore the High Court being Criminal Revision Application No. 92/2021.By the impugned judgment and order, the High Court has allowed thesaid revision application and has quashed and set aside order dated12.11.2020 passed by the learned CJM, dismissing the application underDSection 156(3) Cr.P.C., mainly relying upon the decision of this Court inthe case of Lalita Kumari v. Government of Uttar Pradesh and others,reported in (2014) 2 SCC 1 and holding that as held by this Court in thecase of Lalita Kumari (supra), the police authority in case of preliminaryinquiry prior to the registration of case concerning cognizable offence,Ehas no jurisdiction to verify the veracity of the allegations and thereforea Magistrate cannot verify the truth and veracity of the allegationscontained in the application under Section 156(3) Cr.P.C. and thereforethe learned CJM acted contrary to the law laid down by this Court in thecase of Lalita Kumari (supra), while entering into the truth and veracityof the allegations. It has been further held that the learned CJM oughtFnot to have dismissed the application under Section 156(3) Cr.P.C. onthe ground that there was delay of two years in lodging the complaint,which aspect can be considered only at the time of trial.2.5 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, quashing and setting aside the orderGpassed by the learned CJM dated 12.11.2020 dismissing the applicationunder Section 156(3) Cr.P.C. and remanding the matter to the learnedCJM to reconsider the application filed by the complainant under Section156(3) Cr.P.C. in light of the observations made in the impugned judgmentand order and pass reasoned order, the original respondents – allegedHaccused have preferred the present appeals.

3. S/Shri Mahesh Jethmalani, Maninder Singh and P.S. Patwalia,learned Senior Advocates have appeared on behalf of the respectiveappellants. Shri R. Basant, learned Senior Advocate has appeared onbehalf of the State of West Bengal and Shri Bikash Ranjan Bhattacharya,learned Senior Advocate has appeared on behalf of the originalcomplainant.

3.1 Learned Senior Advocate Shri Mahesh Jethmalani appearingon behalf of one of the appellants-accused has vehemently submittedthat in the facts and circumstances of the case, the High Court hascommitted grave error in quashing and setting aside the well-reasonedorder passed by the learned CJM dismissing the complaint under Section156(3) Cr.P.C.

3.2 It is submitted that the High Court ought to have appreciatedthat the learned CJM dismissed the application under section 156(3)Cr.P.C. upon verifying the truth and veracity of the allegations made inthe application, more particularly considering the fact that there was adelay of almost two years after the date of the alleged incident whichhas not been explained. It is submitted that therefore the learned CJMwas well within its jurisdiction to verify the truth and veracity of theallegations made in the application when such serious allegations weremade after period of almost two years after the date of the allegedincident and that in between though number of other complaints werefiled against the accused and others, at no point of time, any allegation ofrape on 29.11.2018 was made.

3.3 It is submitted that while passing the impugned judgment andorder and quashing and setting aside the order passed by the learnedCJM, the High Court has wrongly relied upon and/or considered and/orapplied the decision of this Court in the case of Lalita Kumari (supra).

3.4 It is submitted that the High Court has materially erred inobserving that while considering the application under Section 156(3)Cr.P.C., Magistrate has no jurisdiction at all to verify the truth and veracityof the allegations.

3.5 It is submitted that the observations made by the High Courtin the impugned judgment and order that while considering the applicationunder Section 156(3) Cr.P.C., Magistrate has no jurisdiction to even primafacie verify the truth and veracity of the allegations made in the applicationare just contrary to the law laid down by this Court in the case of Priyanka

ASrivastava v. State of Uttar Pradesh, reported in (2015) 6 SCC 287.It is submitted that the same is also contrary to the decision of the co-ordinate Bench of the Calcutta High Court in the case of Mukul Roy v.The State of West Bengal, 2018 SCC Online Cal. 4861, expresslyfollowing the judgment in Priyanka Srivastava (supra).

B3.6 Learned Senior Advocate appearing on behalf of the appellantshave also heavily relied upon the decisions of this Court in the cases ofMaksud Saiyed v. State of Gujarat, reported in (2008) 5 SCC 668;Anil Kumar v. M.K. Aiyappa, reported in (2013) 10 SCC 705; andRamdev Food Products Private Limited v. State of Gujarat, reportedin (2015) 6 SCC 439 and decision of this Court in the case of SureshCKankra v. State of U.P. & another (Criminal Appeal No. 52/2022,decided on 07.01.2022), in support of their submission that theMagistrate was well within its jurisdiction to verify the truth and veracityof the allegations made in the application, more particularly when such aserious allegation of rape was made after period of two years after theDdate of the alleged incident.3.7 It is further submitted that the learned Single Judge of theHigh Court is not right and/or justified in taking contrary view than theview taken by the co-ordinate Bench in the case of Mukul Roy (supra).It is submitted that if the learned Single Judge of the High Court was ofEthe opinion that the view taken in the case of Mukul Roy (supra) is nota correct law, in that case, propriety demands that the learned SingleJudge ought to have referred the matter to the larger Bench, rather thantaking contrary view.

3.8 It is submitted that even otherwise the learned Single JudgeFought to have appreciated that the decision of the High Court in the caseof Mukul Roy (supra) was expressly following the judgment of thisHon’ble Court in the case of Priyanka Srivastava (supra). It issubmitted that therefore also, the learned Single Judge ought not to havetaken contrary view.

G3.9 It is further submitted by the learned Senior Advocatesappearing on behalf of the appellants that in the present case even theSHO after receiving the complaint in the month of October, 2020 conducteda preliminary enquiry as per the law laid down by this Court in the caseof Lalita Kumari (supra) and thereafter refused to register the FIR.

3.10 Learned Senior Advocates appearing on behalf of therespective appellants have taken us to the number of emails and messagessent to one of the appellants – Kailash Vijayvargiya from 30.11.2018,i.e., the next day after the alleged incident up till March, 2020. It issubmitted that if he had committed the rape on 29.11.2018, as alleged, inthat case, subsequently there was no reason for her to send emails andmessages to the appellant – Kailash Vijayvargiya.

3.11 It is further submitted that in between 29.11.2018 and October,2020, the complainant filed various complaints before various policestations against the very accused. The first complaint was filed on12.12.2019 (Sarsuna case). The said complaint categorically mentionsthat she met the appellant, however, complaint does not make any mentionof the alleged incident of rape. It is submitted that in the said FIR, theonly allegations were that she was called by the top-level leaders for 4times in the last year, November 2018 and each time they locked her for4 to 5 hours and pressurised her to withdraw the case. It is submittedthat the said FIR was registered as FIR No. 131/2019. It is submittedthat the said case has been closed now, as closure report dated16.06.2020 was filed in the aforesaid case.

3.12 It is submitted that thereafter one another complaint dated6.2.2020 was filed, however, there was no mention of any particulardate of the alleged rape incident. It is submitted that thereafter one anothercomplaint was filed on 12.03.2020 wherein she did not mention aboutthe alleged rape incident at all. It is submitted that after period of twoyears of alleged incident of rape, the complainant filed complaint dated27.10.2020 in which for the first time she stated that in order to pressuriseher to withdraw the 2018 case against Amalendu Chattopadhyay, theappellants called her at the apartment of appellant no.1 – KailashVijayvargiya and raped her on 29.11.2018. It is submitted that thereforethe learned CJM rightly observed that as there was an unexplained andinordinate delay of two years in making the complaint against the allegedoffence, it casts doubt regarding the truth and veracity of the allegationscontained in the application under Section 156(3) Cr.P.C.

3.13 It is further submitted by the learned Senior Advocatesappearing for the respective appellants that while passing order dated12.11.2020, the learned CJM made some pertinent observations tohighlight that there was an inordinate delay in making the first policecomplaint against the alleged offence and that there existed sufficient

Ainconsistencies to raise doubts regarding the truth and veracity of theallegations contained in the application under Section 156(3). It is submittedthat firstly, the learned CJM observed that according to the complainantthe alleged offence took place on 29.11.2018, however, attempt to initiatecriminal proceedings was made for the first time only on 27.10.2020 –the date when complaint was lodged at the Bhowanipore Police Station.BThis was after gap of about two years from the date of the allegedoffence.

3.14 It is submitted that thereafter the learned CJM further notedthat the complainant in her application under Section 156(3) has statedthat she made several complaints before various police stations againstCthe accused persons and their men for the physical attacks carried outon her, however, no such complaint finds mention of the alleged offenceof rape. Therefore, the learned CJM noted that possibility of falseimplication cannot be ruled out, especially when the same complainantmade several other complaints against the same accused in that periodDin which no allegation of rape on 29.11.2018 was made.

3.15 It is further submitted that the learned CJM also furtherobserved that the complainant in her complaint to Behala Police Stationdated 14.08.2020 had accused one of the appellants – KailashVijayvargiya of raping her at Hotel Peerless Inn on 09.08.2018, however,Ethe learned CJM did not find any mention of such incident in her applicationunder Section 156(3) Cr.P.C.. The learned CJM further observed thatBehala Police Station Case No. 01/2018 against Amalendu Chattopadhyayand others was filed on 31.08.2018, that was much after the allegedrape by Kailash Vijayvargiya at Hotel Peerless Inn, however, even thatcomplaint made to the Behala Police Station finds no mention of suchFincident. Therefore, considering the unexplained delay of about two yearsin making the complaint along with several inconsistencies in theallegations, the learned CJM concluded that allegations appear to beunbelievable and therefore rightly rejected Section 156(3) application ofthe complainant.G

3.16 It is further submitted by the learned Senior Advocatesappearing on behalf of the appellants that in the instant case, the learnedCJM found the explanation for delay by the complainant whollyunsatisfactory. It is submitted that it is no doubt true that delay is notalways fatal in the case of rape, particularly if adequately explained,Hhowever, there must be at least some credibility in the explanation for

delay. It is submitted that in the first information report for rape, delayof almost 2 years after the date of the alleged incident is factor that ofnecessity would itself put any judicial mind on guard regarding the veracityof the complainant’s allegations. It is submitted that the learned CJMhowever did not dismiss the application under Section 156(3) Cr.P.C.solely on the ground of delay, but examined her conduct since the dateof the alleged rape till the filing of Section 156(3) application and foundthat her conduct contradicted her explanation for delay. That she wasnot timid victim inasmuch as she was an experienced social/politicalworker; had history of filing FIRs including for rape; had earlier filedFIRs against the accused in the instant case for other offences andindeed had invoked police powers against several powerful people. It issubmitted that therefore complainant is not person who could be easilyintimidated or silenced into inaction for an act of rape committed on her.It is submitted that therefore the learned CJM committed no error indismissing the application under Section 156(3) which ought not to haveset aside by the High Court on wrong application of law holding that atthe stage of considering the application under Section 156(3) Cr.P.C.,the Magistrate has no jurisdiction at all to consider the truth and veracityof the allegations in the complaint/application. It is submitted that theHigh Court has wrongly applied the ratio in Lalita Kumari (supra),which lays down the guidelines for the police and the investigating officerand not applicable to Magistrate exercising the jurisdiction under Section156(3) Cr.P.C.

3.17 It is submitted that the High Court has observed that as heldby this Court in the case of Lalita Kumari (supra), when the policeofficer at the stage of registering the FIR has no jurisdiction to verify theveracity and truth of the allegations, how Magistrate in exercise ofpowers under Section 156(3) can verify the veracity of the allegations inthe complaint. It is submitted that the directions issued by this Court inthe case of Lalita Kumari (supra) shall be confined to the police andshall not be applicable to Magistrate exercising the jurisdiction underSection 156(3) Cr.P.C.

3.18 It is further submitted that even the subsequent conduct onthe part of the complainant creates serious doubts about her credibility.It is submitted that the complainant having realised the serious doubtthat her delayed complaint casts upon the veracity of her allegationscompletely, before this Court in the counter affidavit, she has stated on

ABC

Aoath and has come out with case now that she had in fact lodged acomplaint with the police against the alleged rape incident on 29.11.2018by lodging complaint on the very next day at 11:00 a.m.at the BehalaPolice Station. It is submitted that that was not her case even in theapplication under Section 156(3) and/or even in the complaints beforethe concerned police officers. It is submitted that even the learned SeniorBAdvocate for the State of West Bengal has informed the Court thatthere was no such record of the complaint being filed. It is submittedthat thus the complainant has made false statement before this Courton oath only to get out of delay and to get out the fact that till October,2020, no complaint was given by her in respect of the alleged incident ofCrape on 29.11.2018.3.19 Making above submissions, it is submitted that the presentcase is glaring example of abuse of process and abuse of law. It issubmitted that accusation of rape is prima facie false and manufacturedwith an intent to extort or blackmail the accused on the pretext of theseDfalse allegations. It is submitted that such serious allegation of rapeafter period of about two years from the date of alleged incident havebeen made to tarnish the image of the appellants and to take politicalrevenge and to finish the political career of the appellants. Therefore, itis prayed to allow the present appeals and quash and set aside theimpugned judgment and order passed by the High Court. It is submittedEthat during the pendency of the present proceedings, despite the factthat the present appeals were pending before this Court, the learnedCJM has passed an order dated 08.10.2021 directing the Officer inCharge of Bhowanipore Police Station for treating the application as anFIR and pursuant to the order of the learned CJM, FIR No. 221/2021

Fhas been registered against the appellants. It is submitted that the saidFIR is lodged consequent to the impugned judgment and order passedby the High Court. It is submitted that therefore if the impugned judgmentand order passed by the High Court is set aside, in that case, all subsequentconsequential orders and subsequent registration of the FIR also deserveto be quashed and set aside.G

4. Shri R. Basant, learned Senior Advocate appearing on behalfof the State of West Bengal has vehemently submitted that theMagistrate is not authorised to inquire into the credibility of the complainantand the acceptability of the allegations at the stage of application underSection 156(3) Cr.P.C.H

4.1 It is submitted that the Constitution Bench judgment in thecase of Lalita Kumari (supra)holds that police officer cannot refuseto register an FIR if it discloses commission of cognizable offence. Itis submitted that the preliminary enquiry contemplated in Lalita Kumari(supra) by police officer is only to ascertain whether cognizableoffence is revealed or not. It is submitted that if the police officer wronglyor incorrectly refuses to register an FIR, the complainant has no optionin law but to file complaint under Section 156(3) Cr.P.C.

4.2 It is submitted that though the judgment in Priyanka Srivastava(supra) empowers the Magistrate to consider the credibility of thecomplainant and the acceptability of the allegations also at the stage ofapplication under Section 156(3) Cr.P.C., in view of the prior decisionsof this Court in the cases of Srinivas Gundluri and others v. SEPCOElectric Power Construction Corporation, reported in (2010) 8 SCC206; and Anju Chaudhary v. State of U.P., reported in (2013) 6SCC 384, the plea that the veracity and/or credibility of the complainantand the acceptability of the allegations raised can be gone into by theMagistrate at Section 156(3) stage does not appear to be correct.

4.3 It is submitted that the Magistrate is approached by thecomplainant alleging that the police officer has not registered the FIR.Hence, there cannot be mismatch between the duty of the police officerunder section 154(1) and the contours of the jurisdiction of the Magistrateunder Section 156(3) at the pre-cognizance stage. It is submitted that ifso understood, the test of veracity enabled in Priyanka Srivastava(supra) can only be to ascertain whether cognizable offence is in factmade out or not. It cannot receive an interpretation, divorced of thecontext and the dictum in Lalita Kumari (supra). If so, there will be amismatch between Section 154(1) and Section 156(3) Cr.P.C. It issubmitted that the decision of this Court in the case of PriyankaSrivastava (supra)cannot lead to conclusion that the Magistrate candelve into the credibility of the complainant/witnesses and the acceptabilityof the allegations made by her. It is submitted that PriyankaSrivastava(supra) was not intended to confer such jurisdiction.4.4 It is further submitted that if the Magistrates were givenpowers to dismiss the complaint as soon as he chooses not to make areference under Section 156(3), it would virtually be quashing thecomplaint by arriving at premature conclusion without any evidenceon record that the complainant cannot be believed. It is submitted that

Athis would in effect amount to the Magistrate arrogating to himself theinherent powers conferred on the High Court under Section 482 Cr.P.C.It is submitted that at the stage of Section 156(3), the Magistrate will nothave any material which would enable him to take decision on thecredibility of the complainant or the acceptability of the allegations in thecomplaint.B

4.5 It is further submitted that firstly the learned CJM could haveexercised the discretion to direct the concerned police officer to registeran FIR as the complaint reveals the commission of cognizable offence.It is submitted that the police officer having not chosen to register anFIR, the Magistrate if he is satisfied certainly has to refer the complaintCto the police station under Section 156(3) to register an FIR. It is submittedthat alternatively if the learned Magistrate chooses not to refer thecomplaint to the police under Section 156(3), in any case, he could nothave dismissed the complaint and must have proceeded to the stage ofSection 200/202 Cr.P.C. and take an appropriate decision under SectionD203 or 204 Cr.P.C. It is submitted that the petition made by the complainantdated 27.10.2020 inter alia praying for action by the Magistrate to directinvestigation, amounts to “complaint” under Section 2(d) Cr.P.C. It issubmitted that therefore the Magistrate has the discretion to decidewhatever action needs to be taken in the given facts of the case, underSection 156(3) or Section 200/202 Cr.P.C.

4.6 It is submitted that therefore, resort to Section 156(3) is also“taking action under the Code” and therefore the complaint does notcease to be complaint because the complainant has inter alia requestedfor action under Section 156(3) also. It is submitted that the jurisdictionof the Magistrate under Section 156(3) and Sections 200/202 Cr.P.CFdoes not depend upon the prayer/choice/preference of the complainant.Formal requirements of filing list of witnesses and documents underSection 204 Cr.P.C. relate to post-cognizance stage and the filing ornon-filing of such list cannot affect the status of the petition as complaintunder Section 2(d) Cr.P.C. It is submitted that when presented withGsuch complaint, the Magistrate certainly has discretion to make apre-cognizance reference under Section 156(3) or alternatively take apost-cognizance action under Sections 200/202 Cr.P.C. If petitionanswers the definition of complaint under Section 2(d), all these coursesare open and available to the Magistrate. It is submitted that thereforewhen the Magistrate does not choose to proceed under Section 156(3),

the Magistrate cannot dismiss the complaint merely because he findsthe resort to Section 156(3) not advisable. It is submitted that theMagistrate must still continue under Sections 200/202 Cr.P.C. and passorders dismissing the complaint under Section 203 Cr.P.C. or issue aprocess under Section 204 Cr.P.C.

5. While opposing the present appeals, Shri Bikash RanjanBhattacharya, learned Senior Advocate appearing on behalf of the originalcomplainant has vehemently submitted that in the present case thecomplaint filed by the complainant discloses commission of cognizableoffence. It is submitted that therefore it was the duty of the concernedpolice officer to register an FIR and investigate into the matter. It issubmitted that however as the concerned police officer failed to registeran FIR and investigate into the matter, the Magistrate in exercise ofpowers under Section 156(3) has to direct registration of an FIR anddirect the concerned police officer to investigate into the allegations madein the FIR.5.1 It is submitted that at the stage of registering an FIR, neitherthe police officer nor even the Magistrate at the stage of 156(3) haveany jurisdiction and/or authority to hold detailed enquiry/preliminaryenquiry. It is submitted that the failure of the police to comply with Sections156(1) and 156(2) Cr.P.C. requires the Magistrate to pass an orderdirecting such an investigation. It is submitted that the purpose and objectis to prima facie ensure that the ingredients of any cognizable offenceare satisfied.

5.2 It is submitted that as mandated by the Constitution Benchjudgment of this Court in the case of Lalita Kumari (supra), the momenta complaint discloses the ingredients of any cognizable offence, theregistration of an FIR becomes mandatory and any investigationconsequent thereto is to prima facie satisfy that an offence so alleged isapparently cognizable. It is submitted that at that stage, the onlyrequirement is to satisfy whether the allegations made in the FIR disclosecommission of cognizable offence or not and not beyond that.

5.3 It is further submitted by the learned Senior Counsel appearingon behalf of the original complainant that as held by this Court in thecase of Lalita Kumari (supra), reasonableness or credibility ofinformation is not condition precedent for registration of an FIR. It isfurther observed and held that use of word “shall” in Section 154 Cr.P.C.

Ais mandate to register the FIR and the rule of literal construction wouldapply. It is submitted that as per the decision of this Court in the case ofLalita Kumari (supra), only in exceptional cases, before registeringthe FIR, the preliminary enquiry by the concerned police officer is heldto be permissible. It is submitted that, however, when the offence allegedis against the woman and when there are serious allegations of rapeBmade, there is no question of holding any further preliminary enquiry atthe stage of Section 156(3) application.

5.4 It is submitted that in the case of Priyanka Srivastava (supra),in paragraphs 29 & 30, it was observed that Magistrates were issuingprocess directing lodging of FIR in stereotype and routine manner andCtherefore this Court observed and held that “to curb litigants from filingfrivolous petitions, there should be prior applications under Sections 154(1)and 154(3) and that the petition under Section 156(3) should be supportedby an affidavit”. It is submitted that the observations in paragraph 30,viz, in appropriate cases, the Magistrate could verify the truth and alsoDverify the veracity of the allegations has to be read with the observationsin earlier paragraphs wherein it was held that Magistrate should takenote of the allegations in entirety; the date of the incident and whetherany cognizable case is remotely made out. It is submitted that thereforereliance placed by the learned Senior Advocates on behalf of theappellants on Priyanka Srivastava(supra) to contend that the judgmentEis an authority for the proposition that Magistrate may verify the veracityof the allegations and thereby conduct mini trial is wholly misplaced. Itis submitted that at that stage the preliminary judicial act is to ensurewhether any cognizable offence is remotely made out/disclosed. It issubmitted that therefore decisions of this Court in the cases of Lalita

FKumari (supra) and Priyanka Srivastava (supra) have to beharmoniously construed and read.

5.5 It is further submitted that noting the rise of crime againstwomen, the Criminal Amendment Act (13 of 2013) was promulgatedamending Section 154(1) Cr.P.C, Section 173(1A) Cr.P.C and SectionG166A, IPC. It is submitted that the procedural requirement to compulsorilyregister an FIR was already existing in Section 154 Cr.P.C. but requiredthe judicial interpretation in Lalita Kumari (supra) to be mandate.The insertion of section 166A to the IPC has made the non-registrationof complaint as FIR containing cognizable offence, liable to penalconsequences against the public servant (police). It is submitted thatHtherefore it is the duty of the police to register the FIR on the basis of thecomplaint disclosing commission of cognizable offence and non-registration of complaint as FIR is now offence.

5.6 It is submitted that even in complaint cases, it is only the primafacie satisfaction which is to be recorded and the scope of enquiry underSection 202 Cr.P.C. is restricted only to finding out the truth of theallegations in order to determine whether process should be issued ornot and the inquiry even at that stage does not partake the character ofa full-dress trial which can take place only after process is issued. Relianceis placed on paragraphs 40 & 41 of the decision of this Court in the caseof Anju Chaudhary (supra).

5.7 It is further submitted by the learned Senior Counsel appearingon behalf of the complainant that in the present case the primary reasonfor not entertaining the petition under Section 156(3) was delay. It issubmitted that as held by this Court in the case of Assistant Collector ofCustoms, Bombay v. L.R. Melwani, reported in AIR 1970 SC 962,the Court before which the complaint was filed could not have thrownout the same on the sole ground that there has been delay in filing it. It isobserved that the question of delay in filing complaint may be acircumstance to be taken into consideration in arriving at the final verdict.But by itself it affords no ground for dismissing the complaint. It issubmitted that in the present case the complainant had given cogent andspecific reasons for the delay giving open threats to her. It is submittedthat further, section 468 Cr.P.C. does not law down the period of limitationfor offences punishable with imprisonment exceeding three years. It issubmitted that therefore on the ground of delay, the application of thecomplainant could not have been dismissed.

5.8 It is submitted that in the present case, the learned CJM alsoought not to have opined at the stage of 156(3) Cr.P.C. that the allegationsappear to be unbelievable. It is submitted that the application of judicialmind at this stage is limited only to the extent of causing investigation tofind out whether the offence alleged is cognizable or not and theingredients prima facie satisfied.

5.9 Summing up the submissions, learned Senior Counsel appearingon behalf of the original complainant has submitted that on reading thedecisions of this Court in the cases of Lalita Kumari (supra) andPriyanka Srivastava (Supra) harmoniously and the limited scope of

Aenquiry at the stage of Section 156(3) application, the learned CJM erredin rejecting the application under Section 156(3) and therefore the HighCourt has rightly directed to register the complaint as FIR and investigateinto the matter.

5.10 Making above submissions, it is prayed to dismiss the presentBappeals.

6. We have heard learned counsel appearing on behalf of therespective parties at length.

6.1 The present proceedings arise out of complaint filed by theoriginal complainant under Section 156(3) Cr.P.C. The learned CJM, byCa detailed order and giving cogent reasons, dismissed the said application/complaint under Section 156(3) Cr.P.C and refused to direct the policeto register an FIR. It is not even disputed by the State that prior to filingof the application/complaint by the complainant under Section 156(3)Cr.P.C., complaints were made to the police authorities, namely, OfficerDin Charge of Bahela Police Station, DCP (South Division) and the SHO.The SHO conducted preliminary enquiry as mandated by ConstitutionBench of this Court in the case of Lalita Kumari (supra) and uponfinding that there was delay of about two years in filing the complaint,refused to register the FIR. That thereafter, the original complainantfiled complaint/application before the learned CJM under Section 156(3)ECr.P.C. and on careful consideration of the allegations in the complaint/application under Section 156(3) Cr.P.C., by detailed reasoned order,the learned CJM dismissed the said application under Section 156(3)Cr.P.C.6.2 That while dismissing the application/complaint, the learnedFCJM verified the truth and veracity of the allegations, regard being hadto the nature of the allegations of the case, considering the binding decisionof the High Court of Calcutta in the case of Mukul Roy (supra). Thelearned CJM also considered the decision of this Court in the case ofPriyanka Srivastava (supra). The order passed by the learned CJMGwas challenged before the High Court and by the impugned judgmentand order, not agreeing with the view taken by the co-ordinate Bench ofthe High Court in the case of Mukul Roy (supra) and even not followingthe decision of this Court in the case of Priyanka Srivastava (supra),and following the decision of Constitution Bench of this Court in thecase of Lalita Kumari (supra), the High Court has quashed and setH

aside the order passed by the learned CJM and has directed to re-considerthe application under Section 156(3) Cr.P.C., in light of the observationsmade in the impugned judgment and order. While quashing and settingaside the order passed by the learned CJM, the High Court was of theopinion that at the stage of considering the application under Section156(3) Cr.P.C., it was not open for the learned CJM to verify the truthand veracity of the allegations. The High Court was of the opinion thatin view of the decision of this Court in the case of Lalita Kumari (supra),what was required to be considered was, whether the allegations in thecomplaint/application disclose prima facie commission of cognizableoffence or not and if so, the Magistrate has to pass an order directingthe concerned police officer to register an FIR. That thereafter, pursuantto the impugned judgment and order passed by the High Court and onremand, the learned CJM has straightway directed to register theapplication/complaint as an FIR. Therefore, as such, the subsequent orderpassed by the learned CJM is consequential order passed by the HighCourt on quashing and setting aside the order passed by the learnedCJM dismissing the application/complaint.

7. It is the contention on behalf of the appellants – original accusedthat at the stage of deciding the application under Section 156(3) Cr.P.C.,it is open for the Magistrate to verify the truth and veracity of theallegations, regard being had to the nature of the allegations of the case,and at that stage, the Magistrate has to apply the judicial mind. Relianceis placed on the decisions of this Court in the case of PriyankaSrivastava (supra); Maksud Saiyed (supra); Anil Kumar (supra);and Krishna Lal Chawla v. State of Uttar Pradesh, reported in (2021)5 SCC 435, as also, on the decision of the Calcutta High Court in thecase of Mukul Roy (supra). It is the case on behalf of the appellantsthat the High Court has materially erred in relying upon and/or followingthe decision of this Court in the case of Lalita Kumari (supra), whileholding that at the stage of considering the application under Section156(3) Cr.P.C., the Magistrate has no jurisdiction to verify the truth andveracity of the allegations. It is submitted that however the said decisionshall not be applicable in case where the Magistrate exercises thepowers under Section 156(3) Cr.P.C. It is submitted that in the case ofLalita Kumari (supra), this Court was considering the powers of thepolice officer under Section 154 Cr.P.C. and to register the FIR. It issubmitted that the powers exercised by the Magistrate at the stage of

ASection 156(3) Cr.P.C shall not be and/or cannot be equated with thepowers to be exercised by the police officer under Section 154 Cr.P.C.

8. On the other hand, it is the case on behalf of the originalcomplainant as well as the State that as mandated by this Court in thecase of Lalita Kumari (supra), at the stage of registering the FIR,Bneither the Magistrate nor the police officer has any jurisdiction to verifythe truth and veracity of the allegations and/or consider the truthfulnessof the allegations. According to the respondents, what is required to beconsidered at that stage is, whether the allegations in the complaint/application disclose commission of any cognizable offence or not.Therefore, the main issue posed for the consideration of this Court is,Cwhether in the facts and circumstances of the case, the learned CJMwas justified in verifying the truth and veracity of the allegations at thestage of deciding the application under Section 156(3) Cr.P.C. andwhether at that stage the Magistrate is required to apply judicial mind ornot?D

9. Article 21 of the Constitution protects lives and personal libertiesof both the victim and those accused of having committed an offence.For this reason, the procedure established by law should be construed inthe manner that the text of the statute ensures right to seek investigationto redress injustice and uncover crime by recourse to expeditious, fairEand impartial procedure. Concomitantly, the law in application shouldprotect blameless against those informants who levels false allegationsand abuse the law causing distress, humiliation and damage to reputation.

Relevant legal provisions of Chapter XII of the Code ofCriminal Procedure, 1973.

10. The Code vide Chapter XII, ranging from Section 154 to Section176, deals with information to the Police and their power to investigate.Section 154 deals with the information relating to the commission of acognizable offence and fiats the procedure to be adopted when primafacie commission of cognizable offence is made out. Section 156Gauthorises police officer in-charge of Policestation to investigate anycognizable offence without the order of Magistrate. Sub-section (3) ofSection 156 provides for any Magistrate empowered under Section 190to order an investigation as mentioned in Section 156(1). In cases wherea cognizable offence is suspected to have been committed, the officerin-charge of the Policestation, after sending report to theHMagistrateempowered to take cognizance of such offence, is entitled

under Section 157 to investigate the facts and circumstances of the caseand also to take steps for discovery and arrest of the offender. Clauses(a) and (b) of the proviso to sub-section (1) to Section 157 give discretionto the officer in-charge not to investigate case, when information ofsuch offence is given against any person by name and the case is not ofserious nature; or when it appears to the officer in-charge of thePolicestation that there is no sufficient ground for entering theinvestigation. In each of the cases mentioned in clauses (a) and (b) tothe proviso to sub-section (1) to Section 157, the officerin-charge of thePolicestation has to file report giving reasons for not complying withthe requirements of sub-section (1) and in case covered by clause (b)to the proviso, also notify the informant that he will not investigate thecase or cause it to be investigated. Section 159 gives power to aMagistrate, on receiving such report of the officer in-charge, to eitherdirect an investigation or if he thinks fit, proceed to hold preliminaryinquiry himself or through Magistrate subordinate to him, or otherwisedispose of the case in the manner provided by the Code.11. Sections 160 to 164 deal with the power of the Police to requireattendance of witnesses, examination of witnesses, use of suchstatements in evidence, inducement for recording statement and recordingof statements. Section 165 deals with the power of Police officer toconduct search during investigation in the circumstances mentionedtherein.

12. The power under the Code to investigate generally consists offollowing steps: (a) proceeding to the spot; (b) ascertainment of factsand circumstances of the case; (c) discovery and arrest of the suspectedoffender; (d) collection of evidence relating to commission of offence,which may consist of examination of various persons, including the personaccused, and reduction of the statement into writing if the officer thinksfit; (e) the search of places of seizure of things considered necessaryfor investigation and to be produced for trial; and (f) formation of opinionas to whether on the material collected there is case to place theaccused before the Magistrate for trial and if so, taking the necessarysteps by filing chargesheet under Section 173.

13. Section 173 provides that the investigation is to be completedwithout unnecessary delay and makes it obligatory on the officer in-charge of the Policestation to send report to the Magistrate concernedcontaining the necessary particulars in the manner provided therein.

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AMandatory nature of Section 154(1) of the Code.

14. The question, whether the Police is bound to register FirstInformation Report (FIR) for cognizable offence under Section 154 onreceiving the information as such or has some latitude for conductingpreliminary inquiry before registration of FIR, had led to the decision ofBthe Constitutional Bench in Lalita Kumari (supra). In this case, one ofthe arguments raised was that when an innocent person is falselyimplicated, he suffers mental tension, loss of reputation and his personalliberty is seriously impaired and, therefore, Section 154 of the Code shouldbe read and interpreted in conformity with the mandate of Article 21 ofthe Constitution. Harmonizing the delicate balance to be maintainedCbetween the rights of the victim and the accused, it was opined, thereare sufficient safeguards provided in the Code itself to protect liberty ofan individual against registration of false case. However, as Section154 has been drafted keeping in mind the interest of the victim, and theirright to have access to fair and independent investigation, the mandatoryDregistration of FIRs under Section 154 will not contravene Article 21 ofthe Constitution. Drawing on several earlier judgments and the languageof Section 154 of the Code, it was held that the Police is bound to proceedto conduct investigation, even without receiving information aboutcommission of cognizable offence if the officer in-charge otherwisesuspects the commission of such an offence. The legislative intent is toEensure that no information of commission of cognizable offence isignored and not acted upon, which would otherwise result in unjustifiedprotection of the alleged offender/accused. Every cognizable offencemust be promptly investigated in accordance with the law. This beingthe legal position, there is no reason that there should be any discretion

For option left with the Police to register or not to register an FIR wheninformation is given about commission of cognizable offence. Thisinterpretation in way keeps check on the power of the Police, whichis required to protect the liberty of individuals and society rights inherentin democracy. It is the first step which provides access for justice to avictim and upholds the rule of law, facilitates swift investigation andGsometimes even prevents commission of crime and checks manipulationin criminal cases.

15. To strike balance, distinction is drawn between power ofarrest of an accused person under Section 41 and registration of an FIRunder Section 154 of the Code. While registration of an FIR is mandatory,H

the arrest of the accused on registration of the FIR is not. FIR is registeredon the basis of information without any qualification like credible,reasonable or true information. Reasonableness or credibility ofinformation is not condition precedent for registration of the FIR.However, for making arrest in terms of Section 41(1)(b) or (g), the legalrequirements and mandate is reflected in the expression ‘reasonablecomplaint’ or ‘credible information’.

16. Further there is distinction between Section 154 and 157 asthe latter provision postulates higher requirement than under Section154 of the Code. Under Section 157(1) of the Code, Police officer canforeclose the investigation if it appears to him that there is no sufficientground to investigate. The requirement of Section 157(1) for the Policeofficer to start investigation is that he has “reason to suspect thecommission of an offence”. Therefore, the Police officer is not liableto launch investigation in every FIR which is mandatorily registered onreceiving information relating to commission of cognizable offence.When the Police officer forecloses investigation in terms of clauses (a)and (b) of the proviso to Section 157(1), he must submit report to theMagistrate. Here, the Magistrate can direct the Police to investigate, orif he thinks fit, hold an inquiry. Where Police officer, in given case,proceeds to investigate the matter, then he files the final report underSection 173 of the Code. The noticeable feature of the scheme is thatthe Magistrate is kept in the picture at all stages of investigation, but heis not authorised to interfere with the actual investigation or to direct thePolice how the investigation should be conducted.

17. Having said so, the Constitutional Bench in Lalita Kumari(supra), nevertheless, felt it was necessary by judicial interpretation tocarve out another layer of protection vide preliminary inquiry by police.In certain instances, preliminary inquiry may be justified owing to thegenesis and novelty of crimes. The category of cases in which preliminaryinquiry may be made, purely as illustration were indicated as mattersrelating to: (a) matrimonial/family disputes; (b) commercial offences;(c) medical negligence cases; (d) corruption cases; or (e) cases wherethere is abnormal delay/laches in initiating criminal prosecution, forexample, over three months delay in reporting the matter withoutsatisfactorily explaining the reasons for the delay. The categorisationindicated being illustrative is not exhaustive of the cases that may warrantpreliminary inquiry. Preliminary inquiry, when held, should be conducted

Awithout causing delay and in time bound manner. Reasons leading tothe inquiry, causes and delay are to be mandatorily and meticulouslyrecorded in the General Dairy entry. Lalita Kumari (supra)initially heldthat the preliminary inquiry must be completed within 7 days, whichperiod was felt to be unrealistic in some cases and accordingly clause(vii) of the judgment dated 12[th] November, 2012 was modified vide orderBdated 05[th] March 2014 in the following terms:-

“……we modify clause (vii) of paragraph 111 of our judgmentdated 12th November, 2013, in the following manner:

“(vii) While ensuring and protecting the rights of the accusedCand the complainant, preliminary inquiry should be made timebound and in any case it should not exceed fifteen daysgenerally and in exceptional cases, by giving adequate reasons,six weeks’ time is provided. The fact of such delay and thecauses of it must be reflected in the General Diary entry.”

D18. Referring to the distinction between the power of the Policeto investigate and the judicial powers given to the Magistrate underChapter XII of the Code, this Court in Abhinandan Jha v. DineshMishra, AIR 1968 SC 117 has observed that although the Magistratemay have certain supervisory powers, nevertheless, from theseconsiderations alone he cannot impinge upon the jurisdiction of the PoliceEto investigate. The power of the Magistrate is conferred once report interms of Section 157 or report under Section 173(3) is submitted bythe Police before the Magistrate. Thus, the Magistrate, who has little orno scope to interfere with the investigation, is not absolutely powerlessin view of the powers conferred in terms of Sections 159 and 173, andFinfra, Section 202 of the Code.Inherent power of the High Court under the Code to quashthe FIR.

19. At this stage, it is important to refer to judgments of this Courton exercise of inherent power of the High Court in quashing the FIR.GThis power is normally exercised when the allegations in the FIR or thecomplaint, even if they are taken at their face value and accepted inentirety, do not constitute the offence alleged. Thus, in these cases, noquestion of appreciating evidence arises and it would be manifestly unjustto allow the process of criminal court to be issued against the accusedpersons.H

20. Once an offence is disclosed, an investigation into the offencemust necessarily follow in the interest of justice. Investigation is requiredfor the purpose of gathering necessary materials for establishing or provingan offence which is disclosed. Absence of proper investigation wherean offence is disclosed, the offender may succeed in escaping from theconsequences which would be detrimental to the cause of justice andsociety at large. Whether an offence is disclosed or not must necessarilydepend on the facts and circumstances of each case. It depends uponconsideration of the relevant material. In other words, when an offenceis disclosed, the court will not normally interfere into an investigation,however, if the materials do not disclose an offence, no investigation canbe permitted.

21. Referring to the legal position, this Court in State of Haryanaand others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, whileclarifying that it is not laying down any precise formula or an exhaustivelist, highlighted the cases in which the power to quash an FIR can beexercised as:

“102. In the backdrop of the interpretation of the various relevantprovisions of the Code under Chapter XIV and of the principlesof law enunciated by this Court in series of decisions relating tothe exercise of the extraordinary power under Article 226 or theinherent powers under Section 482 of the Code which we haveextracted and reproduced above, we give the following categoriesof cases by way of illustration wherein such power could beexercised either to prevent abuse of the process of any court orotherwise to secure the ends of justice, though it may not be possibleto lay down any precise, clearly defined and sufficientlychannelised and inflexible guidelines or rigid formulae and to givean exhaustive list of myriad kinds of cases wherein such powershould be exercised.

(1) Where the allegations made in the first information reportor the complaint, even if they are taken at their face value andaccepted in their entirety do not prima facie constitute anyoffence or make out case against the accused.

(2) Where the allegations in the first information report andother materials, if any, accompanying the FIR do not disclosea cognizable offence, justifying an investigation by Police

officers under Section 156(1) of the Code except under anorder of Magistrate within the purview of Section 155(2) ofthe Code.

(3) Where the uncontroverted allegations made in the FIR orcomplaint and the evidence collected in support of the samedo not disclose the commission of any offence and make out acase against the accused.

(4) Where, the allegations in the FIR do not constitute acognizable offence but constitute only non-cognizable offence,no investigation is permitted by Police officer without anorder of Magistrate as contemplated under Section 155(2)of the Code.

(5) Where the allegations made in the FIR or complaint are soabsurd and inherently improbable on the basis of which noprudent person can ever reach just conclusion that there issufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of theprovisions of the Code or the concerned Act (under which acriminal proceeding is instituted) to the institution andcontinuance of the proceedings and/or where there is specificprovision in the Code or the concerned Act, providing efficaciousredress for the grievance of the aggrieved party.

(7) Where criminal proceeding is manifestly attended withmala fide and/or where the proceeding is maliciously institutedwith an ulterior motive for wreaking vengeance on the accusedand with view to spite him due to private and personal grudge.”

22. One would grant that the jurisdiction of the Court when askedto invoke power under Section 156(3) is wider as held in PriyankaSrivastava (supra), yet there are limits within which the Magistratemust act. When the Magistrate is satisfied that the allegations madedisclose commission of cognizable offence, he must stay his hands,Gdirect registration of an FIR and leave it to the investigative agency tounearth the facts and ascertain the truth of the allegations. Magistrate interms of the ratio in Lalita Kumari (supra) can for good reasons directpreliminary enquiry. We would now refer to the power of the Magistrateto take cognizance, postpone issue of process and follow the procedureHunder Section 202 of the Code.

Difference in the power of Police to register and investigatean FIR under Section 154(1) read with 157 of the Code, and theMagistrate’s direction to register an FIR under Section 156(3) ofthe Code.Power of the Magistrate to direct registration of an FIRunder Section 156(3) in contrast with post-cognizance stage powerunder Section 202 of the Code.

23. The operandi for registration of information in cognizableoffence and eventual investigation is not limited to Police, and as observedabove, sub-section (3) to Section 156, subject to legal stipulations, givesthe ameliorating power to Magistrate empowered under Section 190to order an investigation in cognizable offence. Two different powersvested with two distinct authorities, namely the Police and the Magistrate,who discharge distinct functions and roles under the Code as indicatedabove are not entirely imbricating.

24. The power of Magistrate to direct investigation falls undertwo limbs of the Code: one is pre-cognizance stage under Section 156(3),and another on cognizance under Chapter XIV (‘Conditions Requisitefor Initiation of Proceedings’; Sections 190-199) read with Chapter XV(‘Complaints to Magistrates’; Sections 200-210). These two powers aredifferent and there also lies procedural distinction between the two.

25. three Judge Bench decision of this Court in Ramdev FoodProducts Private Limited (supra) had examined the distinction betweenpowers of the Magistrate to direct registration of an FIR under Section156(3) and power of the Magistrate to proceed under Section 202 of theCode. It was observed that the power under the former Section is to beexercised, on receiving complaint or Police report or informationfrom any person other than the Police officer or upon his own knowledge,before he takes cognizance under Section 190. Once the Magistratetakes cognizance, the Magistrate has discretion to take recourse to hispowers under Section 202, which provides for postponement of the issueof process and inquire into the case himself or direct investigation to bemade by Police officer or by such other person as he thinks fit for thepurpose of deciding whether or not there are sufficient grounds forproceedings. The proviso to Section 202 states that no direction forinvestigation shall be made where complaint has not been made by aCourt, unless the complainant and the witnesses present (if any) areexamined on oath under Section 200. When it appears to the Magistratethat the offence complained of is triable exclusively by the Court of

ASessions, he shall call upon the complainant to produce all his witnessesand examine them on oath. However, in such cases, the Magistratecannot issue direction for investigation of an offence. Thus, the Magistratehas the power, when written complaint is made, to issue directionunder Section 156(3), but this power is to be exercised before theMagistrate takes cognizance of the offence under Section 190. However,Bin both cases, whether under Section 156(3) or under Section 202 of theCode, the person accused as the perpetrator, when the proceedings arepending before the Magistrate, remains unrepresented. Under Section203, the Magistrate, after considering the statement of the complainantand witnesses (if any) on oath and the result of an inquiry (if any) underCSection 202, can dismiss the complaint if he is of the opinion that there isno sufficient ground for proceeding and in every such case briefly recordhis reasons. If the Magistrate after taking cognizance of the offence, isof the opinion that there are sufficient grounds for proceeding he willissue the process to the accused for appearance as per the procedureand mode specified under Section 204 of the Code. Process to the accusedDunder Section 204 falls under Chapter XVI of the Code and is issuedpost the cognizance and inquiry/investigation/evidence recorded in aprivate complaint in terms of Section 202 of the Code.

26. In Ramdev Food Products Private Limited (supra),examining whether discretion of the Magistrate to call for report underESection 202 instead of directing investigation under Section 156(3) iscontrolled by any defined parameters,it was held thus:

“22. Thus, we answer the first question by holding that:

22.1. The direction under Section 156(3) is to be issued, only afterFapplication of mind by the Magistrate. When the Magistrate doesnot take cognizance and does not find it necessary to postponethe issuance of process and finds case made out to proceedforthwith, direction under the said provision is issued. In otherwords, where on account of credibility of information available,or weighing the interest of justice it is considered appropriate toGstraightaway direct investigation, such direction is issued.22.2. The cases where Magistrate takes cognizance and postponesissuance of process are cases where the Magistrate has yet todetermine “existence of sufficient ground to proceed”. Categoryof cases falling under para 120.6 in Lalita Kumari [Lalita

Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri)524] may fall under Section 202.

22.3. Subject to these broad guidelines available from the schemeof the Code, exercise of discretion by the Magistrate is guided byinterest of justice from case to case.”

Explaining the nature of cases to be dealt with under Section 202of the Code, the judgment observes, are those cases where the materialavailable is not clear to proceed further. The Magistrate, though in seisinof the matter having taken cognizance, has to decide whether there isany ground to proceed further. Further, Section 202 not only refers to aninquiry but also to an investigation. Thus, in such cases, the Police cannoton its own exercise the power of arrest in course of making its report inpursuance of the direction under Section 202 of the Code.

27. In this Court in Priyanka Srivastava(supra)referred to thenature of power exercised by the Magistrate under Section 156(3) ofthe Code and after referring to several earlier judgments held that thedirection for registration of an FIR should not be issued in routinemanner. The Magistrate is required to apply his mind and exercise hisdiscretion in judicious manner. If the Magistrate finds that the allegationsmade before him disclose commission of cognizable offence, he canforward the complaint to the Police for investigation under Section 156and thereby save valuable time of the Magistrate from being wasted ininquiry as it is primarily the duty of the Police to investigate. However,the Magistrate also has the power to take cognizance and take recourseto procedure under Section 202 of the Code and postpone the issue ofprocess where the Magistrate is yet to determine existence of sufficientground to proceed. In third category of cases, the Court may not takecognizance or direct registration of an FIR, but direct preliminary inquiryin terms of the dictum in Lalita Kumari’s case (supra).

28. In Priyanka Srivastava(supra), this Court highlighted abuseof the criminal process by the unprincipled and deviant litigants who doknock at the door of the criminal court for malevolent reasons. In thesaid case criminal action wasinitiated by those against whom the financialinstitutions had proceeded under the Securitisation and Reconstructionof Financial Assets and Enforcement of Security Interest Act, 2002.This was notwithstanding the protection given to the officers under Section32 of the aforesaid Act against action taken in good faith. ReiteratingLalita Kumari(supra), it was observed that an action under Section

A156(3) should not be entertained without the complainant taking recourseto sub-section (1) and (3) of Section 154 and compliances of these twoSections should be clearly spelt out in the application and necessarydocuments filed. To check malevolence and false assertions, the Courtdirected that every petition/application under Section 156(3) should besupported by an affidavit so that the person making an application shouldBbe conscious of it and to see that no false allegation is made. If theaffidavit is found to be false, the complainant will be liable for prosecutionin accordance with the law. Vigilance is specially required in casespertaining to fiscal sphere, matrimonial/family disputes, commercialoffences, medical negligence cases, corruption cases, or cases whereCthere is abnormal delay/laches. Thus, the Magistrate must be attentiveand proceed with perspicacity to examine the allegation made and thenature of those allegations. He should not issue directions without properapplication of mind which would be contrary to the object and purposeof the statute.

D29. As to the scope of power of the Magistrate to direct an FIRunder Section 156(3), this court in Mohd. Yusuf v. Afaq Jahan (Smt)and another, (2006) 1 SCC 627 opined that:

“11. The clear position therefore is that any Judicial Magistrate,before taking cognizance of the offence, can order investigationEunder Section 156(3) of the Code. If he does so, he is not toexamine the complainant on oath because he was not takingcognizance of any offence therein. For the purpose of enablingthe Police to start investigation it is open to the Magistrate todirect the Police to register an FIR. There is nothing illegal indoing so. After all registration of an FIR involves only the processFof entering the substance of the information relating to thecommission of the cognizable offence in book kept by the officerin charge of the Police station as indicated in Section 154 of theCode. Even if Magistrate does not say in so many words whiledirecting investigation under Section 156(3) of the Code that anGFIR should be registered, it is the duty of the officer in charge ofthe Police station to register the FIR regarding the cognizableoffence disclosed by the complainant because that Police officercould take further steps contemplated in Chapter XII of the Codeonly thereafter.”

30. In Anju Chaudhary (supra), this court analysing the powerof the Magistrate under Section 156(3) observed:

“41. Thus, the Magistrate exercises very limited power underSection 156(3) and so is its discretion. It does not travel into thearena of merit of the case if such case was fit to proceed further.This distinction has to be kept in mind by the court in differentkinds of cases….”

31. In HDFC Securities Ltd. v. State of Maharashtra,(2017) 1SCC 640, this court while interpreting the words “may take cognizance”and Section 156(3), held:

“24. Per contra, the learned counsel for Respondent 2 submittedthat the complaint has disclosed the commission of an offencewhich is cognizable in nature and in the light of Lalita Kumaricase [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1SCC (Cri) 524] , registration of FIR becomes mandatory. Weobserve that it is clear from the use of the words “may takecognizance” in the context in which they occur, that the samecannot be equated with “must take cognizance”. The word “may”give discretion to the Magistrate in the matter. If on reading ofthe complaint he finds that the allegations therein disclose acognizable offence and that the forwarding of the complaint tothe police for investigation under Section 156(3) will be conduciveto justice and save the valuable time of the Magistrate from beingwasted in enquiring into matter, which was primarily the duty ofthe police to investigate, he will be justified in adopting that courseas an alternative to taking cognizance of the offence, himself. It issettled that when Magistrate receives complaint, he is notbound to take cognizance if the facts alleged in the complaint, donot disclose the commission of an offence.”

32. However, the position is different at the post-cognizance stage.Under Section 202, the Magistrate can analyse the veracity of thecomplaint made and appreciate whether there are grounds to proceedfurther. In Chandra Deo Singh v. Prokash Chandra Bose alias ChabiBose and Another, AIR 1963 SC 1430, this Court referred to theobjective of Section 202, to observe:

“8. ……to enable the Magistrate to form an opinion as towhether process should be issued or not and to remove from

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Ahis mind any hesitation that he may have felt upon the mereperusal of the complaint and the consideration of thecomplainant’s evidence on oath. The courts have also pointedout in these cases that what the Magistrate has to see iswhether there is evidence in support of the allegations of thecomplainant and not whether the evidence is sufficient toBwarrant conviction. The learned Judges in some of thesecases have been at pains to observe that an enquiry underSection 202 is not to be likened to trial which can only takeplace after process is issued, and that there can be only onetrial. No doubt, as stated in sub-section (1) of Section 202Citself, the object of the enquiry is to ascertain the truth orfalsehood of the complaint, but the Magistrate making theenquiry has to do this only with reference to the intrinsicquality of the statements made before him at the enquiry whichwould naturally mean the complaint itself, the statement onoath made by the complainant and the statements made beforeDhim by persons examined at the instance of the complainant.”33. Counsel for the accused, on the other hand, have highlightedthe complainant’s conduct, which it is submitted, is contradictory to herexplanation for the delay. She was/is not timid person and an experiencedsocial and political worker of standing. She has been continuously filingEFIRs. In an FIR filed on 31[st] August 2018, she had made allegations ofrape against third person who is political worker in the sameorganisation. In complaint filed on 12[th] December 2019, she had allegedthat the accused had met her on four occasions in the last year and eachtime they had locked “me for 4 to 5 hours and pressurized me forFwithdrawing the case”. The police after investigation on this complaintdated 12[th] December 2019 had filed an FIR No. 131 of 2019 dated 20[th]December 2019 and filed closure report dated 16[th] June 2020. As amatter of fact, the case has been closed. The complainant subsequentlyfiled another complaint dated 6[th] February 2020, wherein there is no

mention of that particular case of the alleged rape incident. Even in theGcomplaint filed on 12[th]March 2020 by the complainant, there was againno mention of the alleged rape. The complainant’s assertion in the counteraffidavit that she had filed police complaint in respect of the rapeincident on 29[th] November 2018 by lodging complaint the very nextday at 11:00 a.m. at Behala (Women) Police Station has been denied byHthe State of West Bengal, who have informed this Court that there is no

such record of the complaint being filed. The accused filed an applicationon 4[th] October 2021 under the Right to Information Act, 2005 and havereceived on 22[nd] October 2021 copies of preliminary inquiries done byPolice Station Bhawanipore dated 30[th] October 2020 and 5[th] November2020. The preliminary inquiries conclude that in the communications madeto the police between 2018 to 2020, there is no allegation that rape tookplace on 29[th] November 2018. As per the report the complainant hadfailed to give any logical and satisfactory account for the delay in lodgingthe complaint. The accused assert that the complaint is an abuse of theprocess of law and has been filed to put pressure on the accused in viewof the rape case filed by her against the third person.34. At the same time, it is noticeable that the complainant/informanthas made several allegations of rape, sexual harassment, etc. againstpersons with whom she had been acquainted and working. Thecomplainant/ informant has pleaded threat and harassment at the handsof the persons named as perpetrators, who are people of influence andpower as the ground and reason for delay. She pleads that period oflimitation prescribed in section 468 of the Code does not apply to anoffence punishable with imprisonment exceeding three years. On thequestion of delay, reliance is placed on the constitutional bench decisionof this Court in the L.R. Melwani (supra). It is submitted that this Courton several occasions has sustained conviction relying solely upon thetestimony of the prosecution/victim, when there is no doubt about hercredibility and trustworthiness. While examining the question of delay inmaking the complaint, the courts must remain alive to the fact that it isdifficult for woman to come forward and make statement allegingrape or sexual assault.

35. Every criminal case, it is stated, is voyage of discovery inwhich truth is the quest. Right from the inception of the judicial system,it has been accepted that discovery, vindication and establishment oftruth are the primary purposes underlying the existence of the courts ofjustice. However, the supremacy of truth is easier to assert than to define.Often this task becomes difficult when contradictory factual positionsare asserted duly supported and affirmed on oath. In adversarial systems,the process of ascertaining truth requires compliance of procedures andrules of evidence, and limit the role of the adjudicator, in acting as aninvestigator to verify veracity of the allegations and counter-allegationstill evidence and material is laid and examined as per codified procedural

Alaw. Yet it is believed that clash of adversaries is best calculated togetting out the facts. In well-designed system, judicial findings of formallegal truth should coincide with the substantive truth. This can happenwhen the facts as asserted by the contestants are skilfully explored inaccordance with the procedure prescribed by law. Abuse of law mustbe checked, if possible, at the very threshold, albeit when it is possibleBand also as per the procedure prescribed by law. V.R. Krishna Iyer, J.aptly summarize the procedure on the quest for truth and justice in JasrajInder Singh v. Hemraj Multanchand, (1977) 2 SCC 155:

“8. To pick out single true item which had been inextricably gotenmeshed in the skein of entries and cross-entries was to tear upCthe fabric of the whole truth. In finer sense, harmony is thebeautiful totality of whole sequence of notes and the concord ofsweet sounds is ill-tuned into disjointed discord if note or two isunmusically cut and played. Truth, like song, is whole and half-truth can be noise; Justice is truth, is beauty and the strategy ofDhealing injustice is discovery of the whole truth and harmonisinghuman relations. Law’s finest hour is not in meditating onabstractions but in being the delivery agent of full fairness. Thisdivagation is justified by the need to remind ourselves that thegrammar of justice according to law is not little litigative solutionof isolated problems but resolving the conflict in its wider bearings.”E36. The State of West Bengal has drawn our attention to thejudgment of this Court in Gopal Das Sindhi and Others v. State ofAssam and Another, AIR 1961 SC 986 to the effect that even when aprivate complaint is filed, the Magistrate is not bound to take cognizanceunder Section 190 as the word used therein is ‘may’, which should notFbe construed as ‘must’ for obvious reasons. The Magistrate may wellexercise discretion in sending such complaint under Section 156(3) tothe police for investigation. However, when Magistrate chooses not toproceed under Section 156(3), he cannot simply dismiss the complaint ifhe finds that resorting to Section 156(3) is not advisable. Reference inGthis regard can also be made to Suresh Chand Jain v. State of M.P.and another, (2001) 2 SCC 628 which distinguishes between the powerof the police to investigate under Section 156, the direction of theMagistrate for investigation under Section 156(3) and post-summoninginquiry and investigation after cognizance under Section 190 and Section202 of the Code. When Magistrate orders investigation under SectionH

156(3), he does so before cognizance of the offence. If he takescognizance, he needs to follow the procedure envisaged in Chapter XV(see Afaq Jahan (supra).

The decision in Mona Panwar v. High Court of Judicature ofAllahabad through its Registrar and Others, (2011) 3 SCC 496 israther succinct. This Court held that when complaint is presentedbefore Magistrate, he has two options. One is to pass an ordercontemplated by Section 156(3). The second one is to direct examinationof the complainant on oath and the witness present, and proceed furtherin the manner provided by Section 202. An order under Section 156(3) isin the nature of peremptory reminder or intimation to the police toexercise its plenary power of investigation under Section 156(1).However, once the Magistrate has taken cognizance under Section 190of the Code, he cannot ask for an investigation by the Police. Aftercognizance has been taken, if the Magistrate wants any investigation, itwill be under Section 202, whose purpose is to ascertain whether thereis prima facie case against the person accused of the offence and toprevent issue of process in false or vexatious complaint intended toharass the person named. Such examination is provided, therefore, tofind out whether there is or not sufficient ground for proceeding further.

37. We do not intend to go into the question of the merits of theallegations, and what procedure the Magistrate should follow as this isan aspect which the Magistrate must first consider and decide judiciouslyand as per the law. What is impermissible and contrary to law is anadjudication on merits of the allegations and determination of the factsas baseless, without further scrutiny and examination. Therefore, theHigh Court was correct in remitting the matter to the judicial magistratefor further examination.

38. We were informed that the Magistrate, on remand, has passedan order under Section 156(3) directing registration of the FIR. He hasmisread the order and directions given by the High Court. In terms ofthe judgments of this Court, the Magistrate is required to examine, applyhis judicious mind and then exercise discretion whether or not to issuedirections under Section 156(3) or whether he should take cognizanceand follow the procedure under Section 202. He can also direct apreliminary inquiry by the Police in terms of the law laid down by thisCourt in Lalita Kumari (supra).

A39. We would refrain and not comment on the allegations madeas this may affect the case put up by either side. The accused do nothave any right to appear before the Magistrate before summons areissued. However, the law gives them right to appear before therevisionary court in proceedings, when the complainant challenges theorder rejecting an application under Section 156(3) of the Code. TheBappellants, therefore, had appeared before the High Court and contestedthe proceedings. They have filed several papers and documents beforethe High Court and this Court. To be fair to them, the copies of thepapers and documents filed before the High Court and this Court wouldalso be forwarded and kept on record of the Magistrate who would,Cthereupon, examine and consider the matter. However, the complainant/informant would be entitled to question the genuineness and the contentsof the said documents.

40. In view of the above and for the reasons stated above, whileaffirming the impugned judgment and order passed by the High CourtDremanding the matter back to the learned Magistrate, we set aside thesubsequent order passed by the Magistrate on remand, pursuant to theimpugned judgment and order passed by the High Court and remit thematter back to the learned Magistrate to examine and apply his judicialmind and then exercise discretion whether or not to issue directionsunder section 156(3) or whether he can take cognizance and follow theEprocedure under section 202. He can also direct the preliminary enquiryby the police in terms of the law laid down by this Court in the case ofLalita Kumari (supra). Copies of the papers and documents filed beforethe High Court and this Court could also be forwarded and brought onrecord of the Magistrate, who would thereupon examine and consider

Fthe matter. As observed hereinabove, the complainant/informant wouldbe entitled to question the genuineness of the contents of the saiddocuments.

41. The present appeals stand disposed of in terms of the above.

GNidhi Jain(Assisted by : Tamana, LCRA)

Appeals disposed of.