BHUSHAN PRAKASH ALIAS PRASAD Vs. STATE

JUDGEMENT

(1.) THE complainant-petitioner has challenged the order dated 26. 8. 2005 passed by the Judicial Magistrate, First Class, Bassi, District Jaipur wherein after recording the statement of the complainant, the learned Magistrate has sent the case for further investigation under Section 156 (3) of the Cr. P. C. , to the Station House Officer, Police Station Kanota instead of taking cognizance for offence under Section 395, 420, 467, 468, 471 and 120b IPC.

(2.) THE brief facts of the case are that the complainant is a driver by profession. He purchased a Tata 407, 21 Seater Mini-Bus having Registration No. RJ- 12p 0485, 1996 Model bearing, Chassis No. 357012 JTQ 835792, Engine No. 497 SP 21 JTQ 806310 from the accused Shamshuddin vide agreement to sale dated 28. 2. 2004. THE accused Shamshuddin and his agent, the accused Kailash Chandra Sharma, assured him that they would get the vehicle financed. For this purpose the complainant gave Rs. 36,000/- to Shamshuddin and Rs. 5,000/- to Kailash Sharma as brokerage. THEy were also given Rs. 5,000/- to wards expenses for preparing documents. Thus, in total, Shamshuddin and Kailash received Rs. 51,000/- from the petitioner on 28. 2. 2004. THE petitioner also claimed that he gave a further sum of Rs. 20,000/- to these accused persons for changing the battery, wiring, barring, wheel cylinder, breaks, leather repairing and for changing of oil and head lights etc. He further claimed that the other co-accused persons received various other amounts from him. Thus, the accused persons received a total of Rs. 2,11,000/-, and nothing remained due from the petitioner. According to the petitioner, he plied the bus for 15-20 days. THEreafter, on 6. 5. 2004 the accused persons took the bus away from him, on the pretext of getting the bus insured. But, they never returned the said bus. When he demanded the return of the bus, they threatened to kill him. In this manner, they have cheated the petitioner on 27. 10. 2004. THE petitioner sent a notice to the accused Vijendra Sharma through his counsel. In October 2004, the petitioner saw the bus at the house of Shri Kalu Lala Ram Meena. He asked Shri Meena that as to how come he has the possession of the bus? Shri Meena informed the complainant that the accused persons have sold the bus to him. THE petitioner further claimed that he went to the police station for lodging a report. But, the police refused to register the case. Thus, on 4. 1. 2004 he filed the complaint before the concerned Court. THE statements of the complainant were recorded under Section 200, and that of his witnesses under Section 202 Cr. P. C. But instead of taking cognizance on the basis of the statements, vide Order dated 26. 8. 2005, the learned Magistrate sent the case for further investigation under Section 156 (3) of the Cr. P. C. Hence, this miscellaneous Petition before this Court.

(3.) A conjoint reading of these provisions clearly reveal that once a complaint is made to a Magistrate, who is authorized to take cognizance, the Magistrate may postpone the issuance of process against the accused, and either 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, for the purpose of deciding whether or not there is sufficient ground for proceedings. However, once the learned Magistrate has recorded the statement of the complainant under Section 200 of the Cr. P. C. and that of his witnesses under Section 202 of the Cr. P. C. , thereby having inquired into the complaint, the Magistrate cannot direct further investigation by the police. For the options given to the Magistrate are exclusive of each other. In the case of Sankar Chandra Ghose vs. Roopraj S. Bhansally (1981 Cr. L. J. 1002), their Lordships of the Calcultta High Court had held, "if a Magistrate postpones the issue of summons then two courses are open to him. He can either make an enquiry into the case himself or direct that an investigation be made. The Magistrate can direct an investigation to be made either by police officer or by such other person as he thinks fit. If he makes an enquiry himself, he cannot direct investigation. Again, when he directs an investigation, he cannot inquire into the matter himself. " Thus, both the situations of holding an inquiry and directing an investigation are mutually exclusively of each other. In case, the Magistrate has chosen the option of holding inquiry himself, he cannot direct further investigation by the police. For it would lead to redundancy of procedure to first inquire into the complaint, to record the statement of the complainant and witnesses, if any, and then to send the complaint for further investigation by the police. Therefore, the impugned Order dated 26. 8. 2005 is illegal.