KAUSHIK ROY CHOWDHURY Vs. STATEL

JUDGEMENT

(1.) Invoking Section 156 (3) of the Code of Criminal Procedure, the present petitioner made a complaint before the Learned Additional Chief Judicial Magistrate, Sealdah alleging commission of offences punishable under Sections 384/386/504/506 of the Indian Penal Code against the opposite parties, praying that the said complaint be sent to the Officer-in-Charge, Beniapukur Police Station directing him to treat the same as First Information Report and to cause investigating thereupon. However, the Learned Magistrate refused to invoke the power conferred under Section 156 (3) of the Code of Criminal Procedure and took cognizance of the alleged offences on such complaint. Hence, this criminal revision.

(2.) Heard the Learned Counsels appearing on behalf of the parties. Perused the materials on record as well as the petition of complaint. In spite of repeated calls none appears on behalf of the private opposite parties. The affidavit of service showing service has been effected filed in Court be kept with the records.

(3.) A plain reading of the provisions of Section 156 (3) of the Code of Criminal Procedure makes it abundantly clear that such provisions enables a Magistrate to refer a complaint disclosing commission of cognizable offences to the police for investigation of such offences of which he may have taken cognizance under Section 190 of the Code, if the Court after prima facie consideration of materials on record comes to a conclusion that the case in question requires an investigation by the police. Therefore, in order to exercise power under Section 156 (3) of the Code two things are essential, firstly, the allegations contained in the complaint must prima facie disclose commission of cognizable offences and, secondly, the Court satisfies from the materials on record that for collecting of evidence relating to the commission of offence and for discovery of the offenders and the offending articles and to unearth the truth behind the allegations made in the complaint, police investigation is necessary. Even where on the allegations contained in the complaint discloses commission of prima facie offence, the Court is not bound to refer the matter to the police invoking its power conferred under Section 156 (3) of the Code, unless Court finds that such investigation by the police is necessary and without referring the matter to the police, the Court after taking cognizance, may proceed with the case according to the provisions of Chapter XV of the Code. The complainant has no choice in this regard nor can insist a Court to take recourse to any particular procedure. The nomenclature under which the complaint is made nor the prayer of the complainant has any relevancy. The Magistrate should not necessarily pass any order for police investigation in a routine way, merely because the complainant made a prayer for the same. Where in a case on the materials already on record, no further investigation by the police is required for launching a successful prosecution, the Court would be fully justified to take cognizance under Section 190 of the Code and to proceed with the same in accordance with the provisions of Chapter XV of the Code.