KANAI LAL AGARWALLA Vs. STATE

JUDGEMENT

(1.) THIS Rule is directed against an order dated 29 -6 -1973 passed by the learned Additional Chief Presidency Magistrate, Calcutta, by which he recalled his order under Section 156(3) of the Code of Criminal Procedure and discharged the accused persons.

(2.) WHAT happened is as follows : On 1 -5 -1973 the petitioner, Kanai Lal Agarwalla, filed an application under Section 156(3) of the Code of Criminal Procedure before the learned Additional Chief Presidency Magistrate against the accused Nos. 1 to 3 and prayed for a direction for investigation by the police. On the same day the learned Magistrate directed the Deputy Commissioner of Police of the Detective Department, Calcutta, to take cognizance and to investigate. Accordingly the police took cognizance and a case was started on the basis of the petition filed by the petitioner under Sections 380/420/406/120 -B Of the Indian Penal Code. In course of investigation three more persons surrendered in court and they were also shown as accused persons. The learned Additional Chief Presidency Magistrate by his order dated 18 -6 -1973 granted bail to all the six accused persons. In course of the investigation, an application was filed by the accused persons 1 to 3 for a recall of the order to investigate as passed by the learned Magistrate under Section 156(3), Criminal Procedure Code. The learned Magistrate by his impugned order recalled his order dated 9 -5 -1973 by which he directed the police to take cognizance and investigate and also discharged all the accused persons. Being aggrieved by such order, the petitioner moved this Court and obtained the present Rule.

(3.) HAVING heard the learned Advocates of the respective parties we are of the view that the learned Additional Chief Presidency Magistrate was not justified in recalling his order and in discharging the accused persons in a purported exercise of his inherent jurisdiction. Chapter XIV of the Code of Criminal Procedure deals with information to police and investigation. Section 156 of the said Chapter provides for investigation by the police into cognizable cases. Section 156(1) says that an 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 XV relating to the place of inquiry pr trial. Under Sub -section (2) 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. Under Sub -section (3) any Magistrate empowered under Section 190 may order such an investigation as mentioned above. The very words occurring in Sub -section (3) indicate that the investigation which the police makes, pursuant to an order under Sub -section (3), is the same as in Sub -section (1) of Section 156. Once a Magistrate empowered - under Section 190 orders an investigation the police takes cognizance and investigates into the matter as he would have done under Sub -section (1) of Section 156. Sub -section (3) of Section 156 has not been intended to provide an alternative procedure to that laid down in Sections 200 to 203 of the Code of Criminal Procedure. We have already pointed out that Section 156 occurs in Chapter XIV of the Code of Criminal Procedure which primarily deals with in -formation to police and investigation. An order under Sub -section (3) of Section 156 is quite different and distinct from an order of enquiry or investigation by the police which the Magistrate may order in accordance with the provisions of Section 202, Criminal Procedure Code. Such an enquiry or investigation by a Police Officer is pursuant to the taking of cognizance by the Magistrate and also examination of the complainant. On receipt of a report of the enquiry or of the result of the investigation under Section 202 it is open to the Magistrate, before whom a complaint is made or to whom it has been transferred, to dismiss the complaint if there is in his judgment no sufficient ground for proceeding in accordance with the provisions of Section 203, Criminal Procedure Code. It appears that the learned Additional Chief Presidency Magistrate was quite conscious of the above position. But he thought that he had, in the exercise of his inherent power, the right to recall the order made by him under Sub -section (3) to Section 156, Criminal Procedure Code particularly when according to him fraud was practised upon the court at the time of the issue of such order. We will presently take up this aspect of the finding of the learned Magistrate but before we do so we may profitably refer to the well -settled principles of law regarding the role of the police and the Magistrate in the matter at the time of the investigation by the police. In the case of King Emperor x Khwaia Nazir Ahmad reported in (1944) 71 Ind App 203 at P. 212 : (1945) 46 Cri LJ 413 at p. 417 (PC), Lord Porter observed as follows: The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus.