KEDARMAL AGARWAL Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) These petitions have come on a reference by a learned single Judge on the question whether without taking cognizance of the offence on the basis of one of the modes provided under clauses (a), (b) and (c) of sub-section (1) of Section 190 of the Code of Criminal Procedure, 1973, a Magistrate can direct for investigation of a cognizable offence under Section 156(3) of the Code of Criminal Procedure, 1973. Learned single judge has precisely stated the question whether the Magistrate can direct the inquiry in terms of Section 156(3), Cr. P.C. without examining complainant and his witnesses on oath, and proceeded to order as follows :-

(2.) It needs to be clarified, however, that Section 156 of the Code of Criminal Procedure, 1973 deals with Police Officer's powers to investigate cognizable case and states that, any officer in charge of a police station may, without the order of a Magistrate investigate 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 provisions of Chapter XIII of the Code and that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate and in sub-section (3) provides as follows :-

(3.) Read as a whole, thus, Section 156 says that a cognizable offence can be investigated by any officer in charge of a police station without the order of a Magistrate who has jurisdiction over the local area within the limits of such station to inquire into or try the case and the Magistrate who has power under Section 190 direct for such investigation. Magistrate's power to inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit after taking cognizance is stipulated under Section 202 of the Code and power is given to him to make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, as contemplated under Section 192(2) of the Code. Section 190 spells out that any Magistrate of the first class, any Magistrate of the second class specially empowered in this behalf may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Above, being the condition requisite for all proceedings by the Magistrate in a Court, speaks of taking of cognizance of any offence whether cognizable or not cognizable. Section 156(3), however, by using the expression "may order such an investigation as abovementioned" has envisaged that any Magistrate who is competent to take cognizance of any offence who has jurisdiction over the local area within the limits of the police station can direct for investigation of a cognizable offence by the officer in charge of a police station. The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 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. Any doubts in this behalf must be held to have been settled by the Supreme Court in D. Lakshminarayana v. V. Narayana, 1976 Cri LJ 1361 : AIR 1976 SC 1672, which was a case arising from a judgment of this Court in Criminal Misc. Petn. No. 1890 of 1975 dated 20-10-1975. The Supreme Court in the said case has pointed out that in the case of complaint regarding the commission of a cognizable offence the power under Section 156(3) can be invoked by the Magistrate before he takes the cognizance of the offence under Section 190(1)(a) but if he wants to take such cognizance and embarks upon the procedure provided in Chapter XV he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further than an order made sub-section (3) of Section 156 is in the nature of a peremptory remainder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 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 prescribed procedure. In such a situation the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section, an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. The Supreme Court in the said case pointed out that since the Magistrate had not applied his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, but ony for ordering an investigation under Section 156(3) he had seen the complaint, he did not bring into motion the machinery of Chapter XV. Since he did not examine the complainant or his witnesses under Section 200, Cr. P.C., which is the first step in the procedure prescribed under that Chapter, the question of taking the next step of that procedure envisaged in Section 202 did not arise. Instead of taking cognizance of the offence, he has, in the exercise of his discretion, sent the complaint for investigation by police under Section 156. The Supreme Court has left no doubt by further saying,