INDRESH SHARMA Vs. HEERA BAI

JUDGEMENT

(1.) IN this writ petition under Article 226/227 of the Constitution of India preferred by the accused persons, the question arises for consideration is; when a Magistrate is said to have taken cognizance of any offence; and whether once having taken cognizance of the offence, it is open for the Magistrate to proceed under Section 156 (3) of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.'), for directing investigation by the Police and submitting a report.

(2.) COMPLAINANT Smt. Heera Bai has filed a complaint against the petitioners and three accused persons under Section 200 of the Cr.P.C. alleging commission of offence under Sections 420, 467, 468 and 471 read with Section 34 of the Indian Penal Code (for short 'the IPC'). When the complaint was filed on 03.05.2012 the Magistrate, instead of proceeding to examine the complaint, postponed the issue of process and directed the Police to submit a report. The concerned police sought adjournment on further dates of hearing to produce thereport. On 01.05.2013 the complainant moved an application under Section 156 (3) of the Cr.P.C. and the matter was posted for submission of report by the police and for primary evidence. The report was submitted by the police on 27.05.2013. The matter was then posted for examination of the complainant's witnesses on 03.06.2013 and 02.08.2013, however, on this date the Magistrate heard the parties on the complainant's application under Section 156 (3) and the same was allowed by the impugned order dated 19.08.2013, consequently, a direction has been issued to the Station House Officer, Baloda Bazar to investigate the matter and submit the final report.

(3.) IT is contended by Shri Sharma, learned counsel appearing for the petitioner, on the strength of the judgment of this Court rendered in Smt. Rakhi Patel v. State of C.G. and Others, 2013 3 CgLJ 638 that once the Magistrate has taken cognizance, it was not open for him to proceed under Section 156 (3) of the Cr.P.C.