Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors.

"156(1). Any officer in charge of a police station may, without the order of a Magistrate, investiga~e any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the ~revisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be caUed in question on the ground that the case was one which such o!lker was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."

D. L REDDY V. V. N. REDDY (Sarkaria, ].) 527 This provision is substantially the same as s. 156 of the Code of 1898, excepting that in sub-s. (1) for the words "Chapter xur· XV relat-ing to the place of inquiry or trial," the words "Chapter have been substituted.

Sections 200 and 202 of the 1898 Code and the 1973 Code,. placed in juxtaposition, read as follows :

1898 Code 1973 Code s. 200 : A Magistrate taking cognizance s. 200 : A Magistrate taking cognizance

of an offence on complaint shall at of an offence on complaint shall ex-once examine the complaint and the mine upon oath the complainant witnesses present, if any, upon and the witnesses present, if any, oath and the substance of the exa-and the substance of such examina-mination shill! be reduced to writing tion shall be reduced to \\>riting and shall be signed by the complai-and shall be signed by the c~mplai­ nant and the witnesses, and also nant and the witness~, and also by the Magistrate ; by the Magistrate.

Provided as follows :- Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a} when the complaint is made in wri- (a) if a public servant acting or purpor-

ting, nothing herein contained shall ting to act in the discharge of his of-b~ deemed to require a Magistrate to ficial dutie~ or a Court has made the examine the complainant before complaint; or transferring the case under section 192; (b) if the Magistrate makes over the (aa) when the cpmphint is made in wri-case for enquiry or trial to another

ting, nothing herein contained shall Magistrate under section 192 ; be deemed to require the examina-Providej further that if the Magistrate tion of a complainant in any case in over the case to another which the complaint has been made make~ by a Court or by a public servant Magistrate under section 192 after acting or purporting to act in the examining the complainant and the discharge of his official duties; witnesses, the latter Magistrate need not re-:!xamine them.

(b) where the Magistrate is a Presidency

Magistrate, such examination may be on oath or not as the Magistrate in each case thinks fit, and where the complaint is made in writing need not be reduced to writing; but the Magistrate may, if he thinks fit, before the matter of the complaint is brought before him, require it to be reduced to. writing ;

(c) when the case has been transferred

under section 192 and the Magistrate so transferring it has already exa-mined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the com-plainant.

Stc. 202 Sec. 202 Postponement of issue of Process :~ Postponement of Issue of process :- (l) Any Magistrate, on receipt of a com- (1) Any Magistrate, on receipt of a com-

plaint of an offence of which he is plaint of a:n offence which he is au-authorised to take cognizance, or thorised to take cognizance or

528 SUPREi\iE COURT REPORTS [1976] SUPPLEMENTARY

which has been transferred to him which bas been made over to him under section 192, may, if he thinks under sec. 192, may if he thinks fit, fit, for reasons to be recorded in postpone the issue of process against writing, postpone the issue of process the accused, and either inquire into for compelling the attendance ofthe the case himself or direct an inleSti-person complained against, and ei-gation to be made by a police office£ ther inquire into the case himself or, or by such other person as he thinks if he is a Magistrate other than a fit, for the purpose of decidinl Magistrate of the third class, direct whether or not there is 11ufficient an inquiry or investigation to be made ground for proceeding :

by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit.

for the purpose of ascertaining the truth or falsehood of the complaint;

Provided that, save where the complaint Provided that no such.direction for in-

has been made by a Court, no such vestigation shall be made :- direction shall be made unless the (a) where it appears to the Magistrate complainant has been examined on that the offence complained of is oath under the provisions of section triable exclusively by the Court of 200. Session; or (b) where the complaint has not beC1l made by a Court, unless the comp-laint and the witnesses present (if any) have been examined on oatil under Section 200.

(2) If any inquiry or investigation under (2) H any inquiry under sub-section (1),

this section is made by a person not the Magistrate may, if he thinkii fit, being a Magistrate or a Police officer. take evidence ofwitnesse~. on oath : such person shall exercise all the po-wers conferred by this Code on an officer in-charge of a Police-station.

except that be shall not have tbe po-wer to arrest without warrant.

(2A) Any Magistrate inquiring into a Provided that if it appears 'to the Magis-

Case under this section may, if he trate that the offence complained of thinks fit, take evidence of witnesses is triable exclusively by the Court of on oath. Session, he shall call upon the COIIl-plainants to produce all his wit-nesses and examine them on oath. (3) This section applies also to the police (3) If an investigation under sub-section

in the towns of Calcutta and (1) is made by a person not being a Bombay. police officer, he shall have for that investigation all the powers confer-red by this Code on an officer in-charge of a police station e~Ccept the power to arrest without warrant. Before proceeding further, we may have a look at s. 190 of the new Code. This section is· captioned "Cognizance of offences by Magistrates". This section so far as it is material for our purpose, provides:

"Subject to the provisions of this Chapter, any Magis-trate of the First Class and any Magistrate of the second class specially empowered in tp'i~ behalf may take cogni-zance of any offence-

(a) upon receiving a complaint of facts which constitute

such offence;

(b) upon a pollee report o~ such facts;

(c) upon information received from any person other

than a police officer, or upon his own knowledge, that suck offence has been committed.

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

Thjs raises the incidental question : What is meant by "taking cognizan<:e of an offence'' by a Magistrate within the contemplation of s. 190 ? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of s. 190 and the caption of Chapter XIV under which ss. 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Gourt takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magis-trate has or has not taken cognizance of the offence will depend on the circumstance~. of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under s. 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of s. 190 ( 1 )(a). If, instead of proceed-ing under Chapter XV. he has in the judicial exercise of his discre-tion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under s. 156(3), he cannot be said to have taken cognizance of any offence.

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

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

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

53() SUPRE:\1E COURT REPORTS [1976] SUPPLE:1IENTARY

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

Section 156(3) occurs in Chapter XII, under the caption : "Information to the Police and their powers to investigate"; «rhile s. 202 is in Chapter XV which bears the heading "Of complaints to Magistrates". The power ,to order police investigation under s. 156(3) is different from the power to direct investigation conferred by s. 202(1). The two operate in distinct spheres at different stages. The first is exercisable at ,the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under s. 156(3) can be invoked by the Magistrate before he ttakes cognizance of the offence under s. 190(1) (a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of s. 156(3). It may be noted further that an order made under sub-section (3) of s. 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under s. 156(1 )_. Such an investigation embraces the entire continuous pr~ cess which begins wi,th the collection of evidence under s. 156 and ends with a report or chargesheet under s. 173. On the other hand s. 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the pres-cribed procedure. In such a situation, the Magistrate is empowered under s. 202 to direct within the limits circumscribed by that section, an investigadon "for the purpose of deciding whether or not here is sufficient ground for proceeding". Thus the obiect of an investi-a,ation under s. 202 is not to initiate a freah case on police report but to assist the Magistrate in completing proceedings already ~nstituted upon a complaint before him.

In the instant case the Magistrate did not apply his. mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under s. 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complaint or his witnesses under s. 200, Cr.P.C., which is the first step in the procedure prescribed under that Chapter. The question of taking the next step o~ that procedure em-isaged in s. 202 did not arise. Instead of takiJlg cognizance of the offence. he has,, in the exercise of his discretion, sent the complaint f<:"r investi-gation by police under s. 156.

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

t For the foregoing reasons, we answer the question po·sed,, in the

negative, and dismiss this appeal.