• • - TULA RAM v . KISHORE SINGH October 5 & Ors. v. Abani Kumar Banerjee AIR 1950 Cal. 437, referred to. ( & Ors.

A Criminal case was registered by the Police Officer, Police Station . Guru Har Sahai on the basis of F.I.R. filed by A vinash Chandra against Mohd. Sadiq and others for having caused the murder of one Balbir Singh. This case was committed to the Court of Sessions by the Com mitting Magistrate. A cross complaint appears to have been filed before in the Court of Judicial Magistrate, First-Class, Ferozepore on ~O-~e.mber,. 1.974 by Kishore Si!lgh tlte brother of the d~eased Bal- , .-111111,mta1mn~ a counter version of occurrence mentioned in the H • •• 618 SUPREME COURT REPORTS [1978) 1 s.c.R. A B c case registered by the police. On receipt of the complaint the Magis trate ordered the police to investigate the case under section 156(3) of \the Code by his order dated 1.1.1975. The police submitted a final report on 8.3.1975 indicating that no case was made out against the accused. The Court after considering the report on 2nd April, 1975 ordered that notice may be issued to the complainant t.o ap~ before him. Consequently, the complainant appeared along with his witnesses before the Magistrate and his statement was recorded on 22nd May, 1975. On 23rd May, 1975 i.e. the nex.t day the Magistrate issued pro cess against the accused by directing a non-bailable warrant against the accused and summoned them under section 304/ 149 and 148 of the I.P.C. The accused appellants moved the High Court for quashing the order of the Magistrate on the ground that the Magistrate having once ordered investigation under section 156(3)of the Code was not competent to revive the complaint and issue process against the accused. The High Court held that no case for quashing the order of the Magis trate was made out inasmuch as the Magistrate had issued process · against the accused after taking due cognizance of the case and apply ing his mind and recording the statement of the complainant. There after the appellants prayed for a certificate for leave to appeal to this Court which was granted. D E We may mention at the out set that we are not at all coD.cerncd v.ith the merits of the case and the learned counsel Mr. D . Ivlukhcrjee appearing for the appellants has argued only a pure point of Jaw before us. He lias contended that the Magistrate after having referred the mall er for investigatbn to the police was not at all in law entitled revive the complaint when the report was in favour of the accused. The Magistrate could at the most order re-investigation but could not have acted on the complaint which merged in the investigation by poJice and lost its complete identity. -~· Mr. Harbans Singh, counsel for the respondent however submit ted that the Magistrate had directed investigation under section 156 (3) of the Code obviously before taking cognizance and after receiving the report he was .not debarred from taking cognizance and proceeding with the complaint filed by Kishorc Singh in accordance with law. The question as to what is me.a.nt by taking cognizance is no Jonger res integra as it has been decided by several decisions of this Court. As far back as 1951 this Court in the case of R . R. Chari v. State of Uttar Pradesh(!) observed as follows:- "T aking cognizance docs not involve any form.al action or indeed action of any kind but occurs as soon as a Magis trate as such applies his mind to the suspected commission of an offence". w ... / ': While considering the question in greater detail this Court endorsed the observations of Justice Das Gupta in the case of Superintendent and Remembrancer of Legal A1Jairs, West Bengal v. Aba12i K11mnr Banerjee(2 ) which was to the following effect F G H (1) [1951) S.C.R. 312. (2) A.I.R. 1950 Cal. 347. (I) [1960] I S.C.R. 93, 106. 3-951SCI/77 620 SUPREME COURT REPORTS [1978] l s.c.R. A B must not only have applied his mind to the contents of the petition but must have done so for the purpose ol proceeding in a particular way as indicated in the subsequent provisions of this Chapter-proceding under section 200 and there after sending it for inquiry and report under section 202". , It is now well se1tled by the decision of this Court in Abhinandan Iha & Ors. Dinesh Mishra(') that while a Magistrate can order police to investigate the complaint it has no power to compel police to submit a charge-sheet on a final report being submitted by In such cases a Magistrate· can either order re-investiga the police. tio_n or dispose of the complaint according to law. Analysing the scheme of the Code on the subject in question C would appear that section 156(3) which runs thus: "Any Magistrate empowered under section 190 may order such an investigation as above-mentioned." the police appears in Chapter 12 which deals with information th:: Police investigate a crime. This the powers of in a Chapter different from Chap section is therefore placed initiation of proceedings against an ter 14 which deals with accused person. It is, therefore, clear that sections 190 and 156(3) In other are mutually exclusive and work in totally different spheres. words, the position is that even if a Magistrate receives a complaint under section 190 he can act under section 156 ( 3) provided that he does not take cognizance. The position, therefore, is that while Chapter 14 deals with post cognizance stage Chapter 12 so far as the Magistrate is concerned deals with pre-cognizance stage, that is to say once a Magistrate starts acting under section 190 and the provi sions following he cannot resort to section 156(3). Mr. Mukherjee vehemently contended before us that in view of this essential distinc tion once the Magistrate chooses to act under section 156 ( 3) ol. the Code it was not open to him to revive the complaint, take cognisance and issue process against the accused. Counsel argued that Magistrate in such a cas.e has two alternatives and two alternatives only either he could direct re-investigation if he was not satisfied with the final report of the police or he could straightaway issue pro cess to the accused under section 204. Magistrate has,.done neither but has chosen to proceed under section 190 ( 1) (a) and section 200 of the Code and thereafter issued process against the accused under section 204. Attractive though the argu ment appears to be we are however unable to accept the same. In the first place, the argument is based on a fallacy that when a Magis trate orders investigation under section 156(3) the complaint dis appears and goes out of existence. The provisions of section 202 of the present Code debar a Magistrate from directing investigation on a complaint where the offence charged is triable exclusively by Court of Sessions. On the allegations of the complainant the offence complained of was clearly triable exclusively by the Court of Sessions instant case In the D E F G H (2) [1967] 3 S.C.R. 668. - • ' +. ' + • ; - TULA RAM V. KISHORE SINGH (Fazal Ali,!.)

#621. :and therefore it is obvious that the Magistrate was completely de barred from directing the complaint filed before him to be investigat ed by the police under section 202 of the Code. But the Magistrate's powers under section 156(3) of the Code to order investigation by the police have not been touched or affected by section 202 because these powers are exercised even before cognizance is taken. In other words, section 202 would apply only to cases where Magistrate has taken cognizance and chooses to enquire complaint either himself or through any other agency. But may be circumstances as in the present case where the Magistrate before taking cognizance of the case himself chooses to order a pure :and simple investigation under section 156 (3) of the Code. The <1uestion is, having done, so is he debarred from proceeding with the rnmplaint according to the provisions of sections 190, 200 and 204 <>f the Code after receipt of the final report by the police? We see :absolutely no bar to such a course being adopted by the Magistrate. In the instant case, there is nothing to show that the Magistrate had taken cognizance of the complaint. Even though the complaint was filed by the Magistrate, .he did not pass any order indicating that he bad applied his judicial mind to the facts of the case for the purpose of proceeding with the .complaint. What he had done was to keep the complaint aside and order investigation even before deciding to take cognizance on the basis of the complaint. After the. final report was received· the Magistrate decided to take cognizance of the case on the basis of the complaint and accordingly issued notice to the complainant. Thus, it was Gn 2nd April, 1975 that the Magistrate <lecided for the first time to take cognizance of the complaint and <lirected the complainant to appear. Once cognizance was taken by the Magistrate under section 190 of the Code it was open to him to choose any of the following alternatives : ' ( l ) Postpone the issue of process and enquire into case himself; or (2) direct an investigation to be made by the Police Offtcer; A B c D E (3) any other pers9n. In the instant case '1.s the allegations made against the accus.ed made -out a case exclusively triable by the Court of Sessions the Magistrate was clearly debarred from ordering any investigation, but he was not odebarred from making any enquiry himself into the truth of the com plaint. This is what exactly the Magistrate purported to have done in the instant case. The Magistrate issued notice to the complainant to appear before him, recorded the statement of the complainant ana his witnesses and after perusing the same he acted under section 204 .. -of the Code by issuing process ,to the accused appellants as he was · -satisfied that there were sufftcient grounds for proceeding against the ,,,i ~ccuseq. " Mr. Mukherjee however submitted that the moment the Magistrate directed investigation he must be deemed to have taken cognizance, :and, therefore, he could not have taken any of the steps excepting F G H ' + ~, ... • - A B c D E 622 SUPREME COURT REPORTS [1978] 1 s.c.R. summoning the accused straight-away or directing re-investigation. We· have already pointed out that Chapter 12 and Chapter 14 subserve two different purposes : One pre-cognizance action and the other post cognizance action. That fact was recognised by a recent decision of this Court in the case of Devarpalli Lakshminaryana Reddy & Ors. v. V. Narayana Reddy & Ors.(') where the Court observed as follows : - the second at "The power to order police investigation under section 156(3) is different from the power to direct investigation conferred' by section 202 (1). The two operates in a distinCt spheres at different exercisable stages. The the post at the pre-cognizance stage, cognizance stage when the Magistrate is in seisin of the case. Tha! is to say in the case of a complaint regarding the com mission of a cognizance offence, the power under section 156(3) can be invoked by the Magistrate before he cognizance of the offence under section 190(1)(a). But if he once takes such cognizance and embarks upon the pro cedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of section 156(3)". Iii""the case of Gopal Das Sindhi and Ors. v. State of Assam & this Court while approving the obseryations of Justice Das Anr. (2 ) Gupta in the case referred to above observed as follows : - "It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the pur pose of proceeding under the various sections of Chapter XVI but for taking action of some other kind,, e.g. ordering investi gation under section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence." To the same effect is the decision of this Court in J amuna Singh & F Ors. v. Bhadai Sah( 3 ). "It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for procee ding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cogni zance of the offence mentioned in the complaint. When however he applies his mind not for snch purpose but for pur poses of ordering investigation under section 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence." In these circumstances the inescapable conclusion is that in the pre sent case the Magistrate had not taken cognizance of the case and ordered investigation by the police under section 156(3) before applying his (!) [i976] Supp. S.C.R. 524. (2) A.LR. 1961 S.C. 986. (3) [1964] 5 S.C.R. 37,.41. G H TULA RAM v. KISHORE SINGH_ (Fazal Ali !.) 623 In view of the facts in the present case mind to the complaint. This being the position it was always open to A the Magistrate to take cognizance of the complaint and dispose it of according to law, that is to say according to the provisions of sections he was 190, 200 and 202. prohibited from directing any investigation but he could take other steps. Even in the case of Abhinandan !ha & Ors. v. Dinesh Mishra (supra) this Court while holding that the Magistrate has supervisory power over the police and it was not open to him direct the police to file a charge- sheet observes that the Court was not powerless to dispose of the com plaint according to law. In this connection, this Court observed as follows B "We are not inclined to agree with the further view that from these considerations alone it can be said that when the police submii a report that no case has been made out for, sending up an accused for trial, it is open to the Magistra'e to direct the police to file a charge-sheet. But, we may make it clear that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him to take cognizance of an offence and proceed, according to law." C In these circumstances we are satisfied that the action taken by the D Magistrate was fully supportable in law and he did not commit ·error in recording the statement of the complainant and the witnesses and thereafter issuing process against the appellants. The High Court has discussed the points involved thread-bare and has also cited number of decisions and we entirely agree with the view taken by the High Court. Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge '.

#1. That a Magistrate can order investigation under section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under section 156(3) though in cases not falling within the proviso to section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by section 202 of the Code. .

#2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives. : (a) He can pursue that complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of section 200 and complainant or his witnesses. the evidence of record (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. E ·F H A B c D 624 SUPREME COURT REPORTS (1978] 1 S.C.R. ( c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an inves tigation by the police.

#3. In case the Magistrate after considering the statement of the cemplainant and the witnesses or as a result of invesitgation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dis miss the complaint. /

#4. Where a Magistrate orders investigation by the police be fore taking cognizance under section 156(3) of the Code and receives the report thereupon he can act on the port and discharge the accused or straightaway issue pro cess against the accused or apply his mind to the comp laint filed before him and take action under section 190 as described above. The present case is clearly covered by proposition No. 4 formulated, above. For these reasons, we find no merit in this appeal which is according ly dismissed. S. R. Appeal dismissed. ..