RAJKISHORE MATHUR Vs. MANGATRAM AGRAWAL

JUDGEMENT

(1.) All the three cases between the same parties raise common question of law and fact and are disposed of by one common order.

(2.) The complainant is the petitioner in each of the cases. He had filed three separate complaint cases against the very same accused persons alleging commission of offence under Section 138 of the Negotiable Instruments Act. The Magistrate in each case had directed to police to investigate into the matter under Section 156(3) of the Code of Criminal Procedure. Subsequently, however, without waiting for the report of the police, the Magistrate proceeded with the case and took cognizance in the matter and issued process. The accused persons against whom process had been issued had filed applications before the Magistrate for recalling the order relating to taking of cognizance, which were rejected by the Magistrate. Thereafter three separate revisions bearing Criminal Revision Nos. 17/95, 18/95 and 19/95 were filed before the Sessions Judge, which were disposed of by a common - order by the Sessions Judge. The Sessions Judge, which allowing the revisions passed the following order: 4.In the result all the above three revisions are allowed. The impugned orders passed by the learned court below in I.C.C. 12/94. I.C.C. 13/94 and I.C.C. 15/94 in taking cognizance of the offence against the present petitioners are set aside. It is open to the court below to again direct the local police to submit its report after investigation and may proceed according to law after receipt of the police report. With this observation the revision petitions are disposed of. After the cases came back to the court of the Magistrate, he passed the following order in each of the complaint cases: It is seen that the copy of the complaint petition of this case sent u/s 156(3) of the Cr.P.C. has already been returned back by the police with an intimation that the fact of this case relates to one transaction with that of the fact of G.R. Case No. 292/94. In view of the same and in view of the order passed by the Honble Court of the District & Sessions Judge, Kalahandi Nuapada at Bhawanipatna no further section need be taken in this case. The legality of the aforesaid order passed in each of the complaint cases is in question.

(3.) It is apparent that the Magistrate thought fit to pass the aforesaid order because the police had registered G.R. Case No. 292/94 after receiving direction from the Magistrate to investigate into the matter under, Section 156(3) of the Code of Criminal Procedure. Though the allegations in each of the complaint cases were same, the complaint cases related to different cheques. After receiving the direction from the Magistrate regarding investigation under Section 156(3), the police for convenience registered one case numbered as G.R. Case No. 292/94. Registration of police case did not have the effect of effacement of the different complaint cases and their separate identity was not lost. The report, if any, to be submitted by the police is to be considered in each of the complaint cases and thereafter action as envisaged in law is to be taken by the Magistrate. In this connection, the scope of Section 156(3) as enunciated by the Supreme Court in the decision reported in MS. Baina v. The State (Union Territory of Chandigarh), is to be kept in mind. In paragraph 6 of the said decision, it was observed: On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn, by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommended that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proced to record the statements upon oath of the complainant and the witnesses present under Section 200, Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore, the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1) may, thereafter, do one of three things: (1 he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(l)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Sec. 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be. In view of the observations made by the Supreme Court, it is clear that the mere fact that the Magistrate had directed for an investigation under Section 156(3) of the Code of Criminal Procedure, did not have the effect of total effacement of the complaint and the Magistrate has committed an illegality in passing an order treating the complaint case to be closed. It is directed that the Magistrate should now proceed to deal with the matter in each of the complaint cases in accordance with law keeping in view the observations of the Supreme Court.