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Section 202 in The Indian Penal Code
Section 156 in The Indian Penal Code
The Indian Penal Code
Section 200 in The Indian Penal Code
Section 190 in The Indian Penal Code
Citedby 1 docs
Nagendra vs Ashok on 6 July, 2011

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Karnataka High Court
U. Shivanna And Another vs L. Anjanappa And Another on 2 August, 2000
Equivalent citations: 2001 (1) ALT Cri 477, ILR 2000 KAR 4239
Bench: H Narayan

ORDER

1. The first respondent filed a private complaint under Section 200 of the Cr. P.C. before the Additional Chief Judicial Magistrate, Bangalore Rural District, Bangalore, alleging offences punishable under Sections 167, 403, 406, etc. The Magistrate before whom the complaint was placed, directed the Counsel for the complainant to produce alt the documents. After taking cognizance of the offences alleged, learned Magistrate recorded the sworn statement and marked certain documents and posted the matter for further orders. The learned Magistrate thereafter found it necessary to order for investigation of the case by the police. Therefore, acting under Section 202 of the Cr. P.C., the jurisdictional Dy. S.P. was directed to investigate the case and file a report.

2. The Dy. S.P. on receipt of the copy of the complaint, without the order of the Court registered a criminal case against the petitioners under Sections 167, 403, 406, etc., in Crime No. 161 of 2000 of the concerned Police Station.

3. Aggrieved by the order of the Magistrate referring the complaint under Section 202 of the Cr. P.C. and a registration of the criminal case by the police against the petitioners, they approached this Court, re-questing this Court to quash the proceedings.

4. Heard the learned Counsel for the petitioners and the learned Advocate for the State. Having regard to the submissions made by the learned Counsel, the order dated 5-7-2000 passed in PCR No. 32 of 2000 is quashed. Consequently, the registration of a criminal case in Crime No. 161 of 2000 of Hebbugodi Police Station, Bangalore, is also quashed.

5. The learned Magistrate is however at a liberty to proceed from the stage of recording the sworn statement.

HNNJ: Cri. P. No. 2253 of 2000

8-8-2000.

ORDER ON BEING SPOKEN To

1. The petition was listed for Admission on 2nd August, 2000. After directing the Government Advocate to take notice for State, the matter was heard at preliminary stage and disposed of by quashing the order of the Magistrate passed in PCR No. 32 of 2000 with liberty to the learned Magistrate to proceed from the stage of recording the sworn statement. Subsequently, this matter having been listed for being spoken to, as some of the legal questions which are canvassed for consideration in this petition, it was taken up for hearing by consent of Sri C.V. Nagesh, the learned Counsel for the petitioners and the Government Advocate, heard and disposed of by this order.

2. The first respondent herein has filed a complaint under Section 200 of the Cr. P.C. which was made over to the Additional Chief Judicial Magistrate, Bangalore Rural District, Bangalore.

3. The complainant has made allegations which are punishable under Sections 167, 403, 406, etc., of the I.P.C. against the petitioners herein. The learned Magistrate, to whom the said complaint had been referred, has taken cognizance of the offences alleged and recorded the sworn statement of the complainant, received certain documents in evidence produced by the complainant, posted the matter for further orders. On perusal of the allegations made in the complaint and on perusal of the sworn statement of the complainant and the documents produced, the learned Magistrate has opined that, there was a necessity to investigate the case further. In that view of the matter, acting under Section 202 of the Cr. P.C. the learned Magistrate directed the jurisdictional Dy. S.P., to investigate the case and file his report. It appears that, a copy of the complaint had been forwarded to the Dy. S.P., for investigation. The said Investigation Officer without verifying whether a complaint is referred under Section 156(3) of the Cr. P.C. or under 202 of the Cr. P.C. registered a criminal case in Crime No. 161 of 2000 of Hebbugodi Police Station for offences punishable under Sections 167, 403, 406, 416, 419, 420, 423, 424, 463, 464, 471, 468, 474, 441 and 120-B of the IPC and submitted the First Information Report to the Court itself.

4. Aggrieved by the registration of a criminal case against them by the Hebbugodi Police and the order passed by the learned Additional Chief Judicial Magistrate, Bangalore Rural District, Bangalore, dated 5-7-2000 in PCR No. 32 of 2000 on his file and consequential act of 2nd respondent-Dy. S.P., Bangalore Rural District, Bangalore, in filing the First Information Report in Crime No. 161 of 2000 of Hebbugodi Police Station, the petitioners sought this Court to quash the order of the Magistrate as well as the First Information Report filed in this case.

5. The quashing of the criminal proceeding pending before the learned Magistrate is sought essentially on three grounds, namely, (a) that under the provisions of Code of Criminal Procedure, the Magistrate has jurisdiction to order the investigation into a complaint presented before him under Section 156(3) or under Section 202 of the Code of Criminal Procedure. This jurisdiction can only be exercised prior to taking of the cognizance of the offence under Section 190 of the Code of Criminal Procedure, (b) that the learned Magistrate who has taken cognizance of the offences and recorded the sworn statement of the complainant, reserved the matter for orders, should have proceeded either under Section 202 or under Section 204 of the Code. Without keeping himself abreast of law on the two pronouncements of law made by this Court in Nagawwa v Veeranna Shivalingappa Koujalgi and Others and in S. Ramaiah v H.K. Lakshmana Gowda, has ordered investigation into the complaint by the police presumably in exercise of the powers conferred upon him under Section 202 of the Code, and that reference under Section 202 of the Code of Criminal Procedure does not enable the police to file First Information Report in the case and (c) cognizance of the offences taken by the learned Magistrate on the complaint filed by the first respondent is made without proper application of mind, in view of the allegations which are civil in nature.

6. Sri C.V. Nagesh, learned Counsel for the petitioners has made further submissions that, once cognizance of the offence is taken by the Magistrate, he could not pass an order for investigation of the complaint by the police. Thus, the petitioners have in fact raised the very scope and ambit of Section 202 of the Code of Criminal Procedure and whether the two pronouncements of judgments of this Court relied upon by the, learned Counsel for the petitioners in Nagawwa's case, supra and S. Ramaiah's case, supra, have laid down the correct law.

7. In order to appreciate these contentions, let me now refer to the provisions of Section 202 of the Cr. P.C., which read as follows:

"202. Postponement of issue of process.--(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue 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 proceeding:

Provided that no such direction for investigation shall be made.-

(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or

(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made by a person not being a Police Officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant".

8. The language used in Section 202(1) of the Cr. P.C. is clear and unambiguous. The decision to postpone the issue of process can only be taken, after the Magistrate takes cognizance of the offence/offences alleged by the complainant and the Magistrate taking cognizance of an offence under Section 190 of the Cr. P.C. shall examine the complainant upon oath and the witnesses present, if any. If the Magistrate taking cognizance of the offence opined that, the material placed before him if he thinks postpone the issue of process against the accused either in-quire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit. Thus, the language does not limit the jurisdiction of the Magistrate to inquire into the complaint filed before him under Section 200 of the Cr. P.C. by himself.

9. Let me now consider, whether the decisions relied upon by the learned Counsel for the petitioners can be relied upon to accept the contention. In Nagawwa's case, supra, the Court held as follows.- "The Magistrate should he held to have taken cognizance of the case, as under Section 202 of the Cr. P.C., the sworn statement of the complainant cannot be recorded unless the condition precedent, namely, taking cognizance was fulfilled. Having taken cognizance and commenced the inquiry himself the Magistrate was debarred under Section 202 of the Cr. P.C. from referring any portion of it to a Police Officer to make an inquiry or investigation and report".

Relying upon the judgment rendered in Nagawwa's case, supra, in S. Ramaiah's case, supra, it is held:

"Having regard to the sworn statement it was improper on the part of the learned Magistrate to refer the case for investigation to police under Section 202 of the Cr. P.C. The law in this regard has been laid by this Court in Nagawwa's case, supra".

In both these cases, the Magistrates have taken cognizance of the offence/offences alleged, referred the complaint for investigation under Section 202 of the Cr. P.C. and therefore, quashed the order of the Magistrate referring the complaint for investigation under Section 202 of the Cr. P.C. However, in S. Ramaiah's case, supra, another contention came up for consideration, namely, "that the learned Magistrate has ordered issue of process to the accused, where the complainant has not produced the list of witnesses and that the issue of process is erroneous, in view of the mandatory provisions of Section 204(2) of the Cr. P.C.

10. This very question came up before this Court in a number of decisions and the Apex Court has specifically laid down the law with following cases. In A. Lakshmanan and Others v State of Karnataka and Another , this Court held as follows:--

"Section 202(1) of the Cr. P.C. empowers the Magistrate to postpone the issue of process against the accused if he thinks fit and to either enquire into the case himself and in the alternative direct an investigation to be made by a Police Officer (as in the instant case) or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding further. The Magistrate did exercise his discretion and thought it fit to postpone the issue of process against the accused and directed an investigation to be made by a Police Officer for the purpose of deciding whether or not there is sufficient ground for proceeding. Therefore, directed the jurisdictional police to investigate and submit a report under Section 202 of the Cr. P.C. Instead of submitting a report, the Basavanagudi police recorded the F.I.R. and registered the offence. Such a procedure is contemplated only for the purpose of investigation of a cognizable offence either under Section 154 or under Section 156(3) of the Cr. P.C. and that was not the purport of the directions issued by the Magistrate. Under the provisions of Section 202 of the Cr. P.C. the Magistrate is required to take cognizance of the offence and issue either to the police or to any other agency a direction to enquire into the complaint and no sooner the Magistrate takes cognizance, then it is impermissible for the police to take cognizance and register the offence. .... The police have done what the Magistrate could not do in violation of statutory provisions. ... It appears that the police are under the impression that the registration of the offence by them is under Section 154 or Section 156(3) of the Cr. P.C. and this is a misconception and misdirection too. The conduct of the police in the circumstances virtually amounts to a negation of the directions issued by the Magistrate. On facts, it is held that: "Not submitting the report of investigation to the Magistrate, the Police Officer has usurped the statutory power conferred on the Magistrate under Section 202(1) of the Cr. P.C. to decide whether or not there is sufficient ground for proceeding against the accused" ". (paras 27, 28, 30 and 31)

In Goutam v State of Karnataka, it is held that:

"A careful perusal of the provisions enumerated under Section 202 would go to show that no direction for investigation shall be made by the Magistrate where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. In the instance case, it is clear that the Magistrate has not followed the mandatory provisions reflected in Section 202 also".

In this case, the usual mistake is committed by the learned Magistrate in referring the complaint under Section 156(3) of the Cr. P.C. for investigation by Police Sub-Inspector, after having taken cognizance of the offences alleged. Relying upon the Apex Court judgment in Devarapalli Lakshminarayana Reddy and Others v V. Narayana Reddy and Others, the Court has set aside the order of the Magistrate. The judgment in Devarapalli Lakshminarayan Reddy's case, supra, will be referred for detailed discussion at later stage.

11. In another case rendered by this Court in Smt. Bharatiben Verma and Another v N.G. Lokanath Singh, it is held at para 8 that:

"The Magistrate has jurisdiction to direct the police to investigate into the matter after taking cognizance and recording the sworn statement of complainant and witnesses under Section 202(1) of the Cr. P.C. However, it is made clear that the Magistrate has no power to direct the investigation after the accused appeared before the Court, on being summoned".

In Venkatesh Narayanappa and Others v Vittal, the law on this question is summarised as follows.-

"Strict scrutiny of Sections 200 and 202 of the Cr. P.C. makes it clear that before ordering issue of summons, the Court can enquire whether sufficient ground has been made out in the complaint to take cognizance. This enquiry can be made either by the Court itself or direct the police or any other person as it thinks fit to make investigation and submit a report. Thus, it cannot be said that it is mandatory on the part of the learned Magistrate to accept such a report submitted by police. It is for the Court either to accept or to reject it by any one of the agencies the Court had directed. The purpose behind directing the police or any other person to enquire into the matter and submit his report is a kind of aid for speedy disposal of the case".

12. The Supreme Court in Devarapalli Lakshminarayana Reddy's case, supra, has dealt at length the investigation under Section 156(3) and the scope of Section 190(1) of the Cr. P.C. It is laid down by the Supreme Court in the said case that: "the expression taking cognizance of an offence by the Magistrate has not been defined in the Code. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1) of the Cr. P.C. Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any taken by the Magistrate. Broadly speaking when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If instead of proceeding under Chapter IX he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation or ordering investigation by the police under Section 156(3) he cannot be said to have taken cognizance of any offence", (para 14)

It is further held that:

"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. That is to say in the case of a complaint regarding the commission of a cognizable offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied 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 that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder of 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 and that is the object of investigation".

13. In A.R. Antulay v Ramdas Sriniwas Nayak and Another, at para 31 the Court has given wider meaning to the question of Court taking cognizance of the offence in the following words: "When it is said that Court issues process, it means the Court has taken cognizance of the offence and has decided to initiate the proceeding and as a visible manifestation of taking cognizance, process is issued which means that the accused is called upon to appear before the Court".

Commenting upon the scope of Section 202 of the Cr. P.C., the Apex Court in the said decision at para 31 has observed as follows:

"When a private complaint is filed, the Court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 of the Cr. P.C. After examining the complainant on oath and examining the witnesses present, if any meaning thereby that the witnesses not present need not be examined, it would be open to the Court to judicially determine whether a case is made out for issuing process".

Elaborating this question, the Apex Court in the said case held that:

"Upon a complaint being received and the Court records the verification, it is open to the Court to apply its mind to the facts disclosed and to judicially determine whether process should or should not be issued. It is not a condition precedent to the issue of process that the Court of necessity must hold the inquiry as envisaged by Section 202 or direct investigation as therein contem- plated. The power to take cognizance without holding inquiry or directing investigation is implicit in Section 202 when it says that the Magistrate may if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a Police Officer. . . .for the purpose of deciding whether or not there is sufficient ground for proceeding. Therefore, the matter is left to the judicial discretion of the Court whether on examining the complainant and the witnesses if any as contemplated by Section 200 to issue process or to postpone the issue of process. This discretion which the Court enjoys cannot be circumscribed or denied by making it mandatory upon the Court either to hold the inquiry or direct investigation. Such an approach would be contrary to the statutory provision".

(emphasis supplied)

In Smt. Nagawwa v Veeranna Shivalingappa Koujalgi and Others, at para 4, the Apex Court held as follows:

"The scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint. . (1) on the material placed by the complainant before the Court, (2) for the limited purpose of finding out whether a prima facie case for issue of process has been made out and (3) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact, in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not".

Elaborating this position at para 5, it is held that:

"It is true that in coming to a decision as to whether a process should be issued, the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations, but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. . . .These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204 of the Code that which may be specially held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are potently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction or absence of a complaint by legally competent authority and the like.

The cases mentioned above are purely illustrative and provide sufficient guidelines for the Court to act in such proceedings".

14. Hence, the first contention canvassed for consideration by the learned Counsel is liable to be rejected. The Magistrate is empowered to proceed under Section 202 of the Cr. P.C. only after taking cognizance of the offences. The jurisdiction exercisable by the Magistrate for investigation purpose during pre-cognizance stage is under Section 156(3) of the Cr. P.C. only. Once he acts upon Section 156(3) of the Cr. P.C. it precludes him from taking cognizance of the offences till the final report is filed by the police under Section 173 of the Cr. P.C. The Magistrate if he thinks fit, direct the concerned police to investigate the case for the limited purpose ascertaining whether there is sufficient ground for proceeding. Section 202(1) empowers the Magistrate to act under Section 202 of the Cr. P.C. at post-cognizance stage and exercise of such power is perfectly justifiable.

15. The pronouncements of this Court in Nagawwa's case, supra, and in Ramaiah's case, supra, are made without reference to the law laid down by the Apex Court stated supra. With great respect, it is difficult for me to follow the law laid down in those two judgments. Therefore, in my opinion, the learned Counsel for the petitioner does not get any mileage or help in relying upon these two decisions rendered by this Court.

16. Insofar as, the third question is concerned regarding the legality of taking cognizance of offences I can recall the observations made by the Apex Court in Smt. Nagawwa's case, supra, at para 5, listing the illustrations wherein Magistrate can refuse to take cognizance of the offences or where the High Court can quash the criminal proceedings against the accused. Therefore, the learned Magistrate is perfectly justified in referring the matter to the police for investigation under Section 202(1) of the Cr. P.C. However, the police have committed an error in treating it as a complaint under Section 156(3) of the Cr. P.C. in registering the case and submitting the First Information Report to the Court itself. It is now made clear that, the police are required only to investigate certain aspects of the complaint referred to them and submit a report, which is not in the nature of charge-sheet or 'B' report under Section 173(3) of the Cr. P.C. To this extent the registration of a criminal case in Crime No. 161 of 2000 of Hebbugodi Police Station, Bangalore Rural District, Bangalore, is liable to be quashed. After receipt of the police report and its contents the learned Magistrate is however at liberty to proceed in accordance with law and to decide whether to issue process or not.