LIONEL EDMUND Vs. VELMYL NADAR

JUDGEMENT

(1.) PETITIONERS have been shown as accused, in a private complaint preferred by the first respondent, before the Judicial Magistrate, Nanguneri, alleging that they had committed offences punishable under Secs.341 and 397, I.P.C. Learned Magistrate who received the complaint on 29.11.1989 forwarded the same for investigation and report to the Inspector of Police, Nanguneri, under Sec.156(3), Crl.P.C. Even so, within a short period, on 8.12.1989, respondent preferred an application before the same Magistrate to recall the complaint forwarded to the Inspector of Police, Nanguneri, examine him and his witnesses and dispose of the complaint in accordance with law. Learned Magistrate chose to dismiss the petition preferred by the respondent, on the ground that the Inspector of Police was competent to conduct investigation, and had sufficient time, to avoid limitation bar, before filing of the final report. Learned Magistrate has observed that within ten days, the respondent had chosen to plead for recalling of the complaint, without sufficient cause. Aggrieved first respondent preferred CrLR.C.No.16 of 1990 before the III Additional Sessions Judge, Tirunelveli. First revisional court, on an erroneous view, held that the Enquiring Magistrate had. no right to forward the complaint, for investigation under Sec.156(3), Crl.P.C. to the concerned police, since the offences alleged are exclusively triable by a Court of Session and therefore ought to have followed the provisions under Sec.202, Crl.P.C. First revisional court allowed the plea of the first respondent and set aside the order of the trial Magistrate refusing to recall the complaint. Hence, this revision.

(2.) FACTS narrated above speak for themselves. It is apparent that the impugned order passed by the first revisional court cannot be sustained in law. Provisions under Sec.156(3), Crl.P.C. and Sec.200, Crl.P.C. operate in different fields. The identical question involved in this revision was considered by the Supreme Court in D. Lakshminarayana Reddy v. Narayana Reddy, 1976 M.L.J. (Crl.) 610. Supreme Court stated as hereunder: "A Magistrate who receives a complaint disclosing an offence exclusively triable by the court of Session, is not debarred by clause (a) of the first proviso to Sec.202(1) of the Code of Criminal Procedure, 1973 from sending the same to the police for investigation under Sec.156(3). The power to order police investigation under Sec.156(3) is different from the power to direct investigation conferred by Sec.202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage and the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in this case of complaint regarding the commission of a cognizable offence, the power under Sec.156(3) can be invoked by the Magistrate before he takes cognizance of the Offence under Sec.190(1)(a) of the Code. 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 Sec.156(3). Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Sec.200 and the succeeding Sections in Chapter XV, he is said to have taken cognizance of the offence within the meaning of Scc.190(1)(a)'but if, instead of proceeding under Chapter XV, he has in the exercise of his discretion taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Sec.156(3), he cannot be said it have taken cognizance of any offence". On the facts available, it is clear that the learned Magistrate had not applied his mind to the complaint for deciding, whether or not there were sufficient grounds for proceeding under Chapter XV of the Code, but had only ordered investigation under Sec.156(3), Crl.P.C. Obviously, he had not brought into motion the machinery of Chapter XV. Instead of taking cognizance of the offence, he had, in the exercise of his discretion, sent the complaint for investigation by the police under Sec.156(3), Crl.P.C. Law enunciated by the Supreme Court, directly applies to the instant facts. This revision is allowed. The order passed by the Third Additional Sessions Judge, Tirunelveli, shall stand set aside. The order passed by the trial Magistrate shall stand restored. The trial Magistrate shall call upon the Inspector of Police, Nanguneri, to forward his report on the basis of investigation conducted by him.