M ASHOKAN Vs. A RAJESH

JUDGEMENT

(1.) As there was no representation on the earlier date of hearing, this matter stands listed today under the caption for dismissal . This Court directed the listing of the matter under the said caption only with a view to afford one more opportunity to the petitioner to have the case argued on merit and invite an order. But the petitioner seems to have adopted a counter measure by making the learned counsel on record to make a representation that he is not interested in proceeding with the case as he has been instructed by his party not to proceed with the revision and that the petitioner would make his own arrangement for his representation. If at all, such a representation made by the learned counsel shall be true the petitioner ought to have made it a point to be present in person or to arrange for representation on his behalf through another advocate duly authorised. Since the petitioner has not done so, this Court has to infer that the intention of the petitioner is to simply drag on the case as long as possible for the reasons best known to himself. Such a method adopted by the petitioner has to be deprecated.

(2.) Furthermore, the petitioner seems to have submitted a petition under Section 156(3) Cr.P.C. before the learned Judicial Magistrate praying for a direction to the police officials to register a case and investigate the matter. There are two stages in which a Judicial Magistrate can issue orders to the police to conduct investigation based on a complaint. They are pre-cognizance stage, that is under Section 156(3) Cr.P.C. and post-cognizance, that is under Section 202 Cr.P.C. A Magistrate who exercise the power under Section 156(3) Cr.P.C. does not take cognizance of the complaint. On the other hand, without applying his mind, the Magistrate simply transmits the information to the Police Officer whereupon the Police Officer in charge of the Police Station has to consider whether the averments made in the complaint make out a case of cognizable offence in which event, FIR shall be drawn and investigation shall be made. In case, he comes to the conclusion that no cognizable offence is made out, then he has to refer the complainant to the Magistrate having jurisdiction, whereupon the complainant can prefer a complaint under Section 200 Cr.P.C. When such a complaint is made after the Police declines to register FIR on the premise that the complaint does not disclose commission of cognizable offence, the Magistrate has to necessarily follow the procedure contemplated for taking cognizance of the offence on a complaint. Only after taking cognizance in such matters direction for investigation under Section 202 Cr.P.C. can be made. Simply because, the Judicial Magistrate does have the power to pass on the information either in the form of a complaint or in the form of a petition, to the Station House Officer for action, it does not mean that the complainant can compel the Judicial Magistrate to send his complaint, without taking cognizance of the offences to the Police Officer in charge of the Police Station for registration of a case and investigation.

(3.) If any other meaning is given, then even in a case wherein no offence, either cognizable or non cognizable is made out or in a case where non cognizable offences alone have been made out, the complainant shall be indirectly achieving his goal of having the case registered as if such case is a cognizable case and investigation done by the police without there being any order from the Magistrate, which order should have been passed after taking cognizance of the offence. The practice of filing petitions under Section 156(3) should be discouraged. On the other hand what the complainant should do is to file a private complaint leaving the course of action to be taken to the wisdom and discretion of the Magistrate. Considering the petition filed by the revision petitioner before the learned Judicial Magistrate and the order passed by the learned Judicial Magistrate in the light of the foregoing discussion, this Court does not find any defect or infirmity in the impugned order of the learned Judicial Magistrate warranting inference by this Court in exercise of its power of revision.