G B GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD the learned counsel.

(2.) THE contention of the learned counsel is that in view of the pendency of a civil suit between the parties and taking into consideration the provision contained in section 195 (1) (b) (ii), Criminal Procedure Code, the cognizance of the offence, as referred to in the first information report, may not be taken by the Magistrate except on a complaint made in writing by the civil court and hence investigation in the matter may not be carried on by the police. THE argument urged in support is that there is special provision made in this behalf as appearing from section 340 to 343 in Chapter XXVI of the Code and hence this should be taken to override the normal procedure obtaining in cases where report of cognizable offences is made. Having given careful consideration to the contention advanced, I am unable to agree.

(3.) LEARNED counsel contends that where the law requires a thing to be done in a particular manner, it must be done accordingly or not at all. Further, it is submitted that a provision which is special overrides what is ordinary or general but to the extent only the special provision holds the field. There can be no dispute with these principles. On application thereof to the instant question, it will be observed, however, that sections 340 to 343 referred by the learned counsel come in picture only subsequent to cognizance being assumed by the Magistrate. In substance they lay down how the Magistrate is to proceed after taking cognizance in the matter in a complaint made in view of section 195 (1) (b) (ii) but where, as in the present, the stage is of investigation by the police, and not by a Magistrate, proceeding in the matter, sections 340 to 343 are of no avail.