Rajive Bhalla, J.@mdashThis order shall dispose of Crl. Misc. Nos. 69710-M of 2005 and 42960-M of 2005, as these petitions arise from the same impugned proceedings.
2. A brief narrative of the present controversy, would be appropriate.
3. The petitioners, in both petitions, are retired and serving employees of the New India Assurance Company Ltd. and policy holders of the aforementioned Company. Respondent No. 2, Ujjagar Singh, was working as Branch Incharge, Rayya Branch, District Amritsar. On 23.11.1993, he was directed to furnish an explanation as his office was locked. After a perusal of his reply, respondent No. 2 was issued a warning letter dated 21.9.1994, whereupon, respondent No. 2, filed a writ petition, which was disposed of, with a direction to the company, to reconsider its decision. Respondent No. 2, thereafter, filed a contempt petition, whereupon the company withdrew the warning letter and respondent No. 2, the contempt petition.
4. While working as Branch Manager, Rayya, District Amritsar, a complaint was received against respondent No. 2, with respect to irregularities in the settlement of a claim. After a thorough investigation, the allegations were found to be prima facie correct and disciplinary proceedings were initiated against respondent No. 2. A charge-sheet was served and an enquiry ensued. An enquiry report dated 12.6.2001 was submitted. The company circulated a list of officers with doubtful integrity. Respondent No. 2''s name figured at Sr. No. 4. In the meanwhile, FIR No. 49 dated 30.9.2001 was registered against respondent No. 2, under Sections 411, 295-A IPC at Police Station, Nurpur Bedi, Distt. Ropar. Respondent No. 2 was arrested and eventually released on bail. As a result of his arrest, he was placed under suspension. Disciplinary proceedings concluded with the stoppage of one increment, a minor punishment. Respondent No. 2''s appeal against punishment was dismissed. He filed a complaint u/s 156(3) Cr.P.C. dated 23.8.2004 before the Illaqa Magistrate, Ludhiana. In the complaint, respondent No. 2 prayed for directions to be issued to Police Station, Model Town, Ludhiana, to register a criminal case against the accused named in the complaint. The Judicial Magistrate, Ist Class, Ludhiana, vide order dated 23.8.2004 ordered the Deputy Superintendent of Police, Police Station, Model Town, Ludhiana, to conduct investigation and submit a report within two months. The police presented an enquiry report dated 16.11.2004. Vide order dated 11.4.2005, the Magistrate directed respondent No. 2, to lead preliminary evidence. Aggrieved by the aforementioned order, respondent No. 2 preferred a revision, before the Additional Sessions Judge, Ludhiana.
5. Vide order dated 19.7.2005, the Additional Sessions Judge, Ludhiana, held that the Judicial Magistrate, committed an error, by ignoring the order dated 23.8.2004, passed by his predecessor. It was held that the order dated 23.8.2004, was an order passed u/s 156(3) of the Cr.P.C. and upon receipt of an enquiry report dated 16.11.2004, the Magistrate should have directed the police, to register an FIR and investigate the matter. It was further held that the Magistrate had erred in passing an order, directing respondent No. 2, to produce pre-summoning evidence. Consequently, the learned Additional Sessions Judge, allowed the revision petition, set aside the order directing respondent No. 2, to lead preliminary evidence and issued a direction to the Judicial Magistrate, Ist Class, Ludhiana, to reconsider the matter, pass necessary directions to the police, to comply with the order dated 23.8.2004. He also directed that after registration of the case by the police, they would submit a report or in case, there is no substance in the complaint, submit a cancellation report.
6. Counsel for the petitioner contends that the Additional Sessions Judge, Ludhiana, erred in fact and in jurisdiction, while passing, the impugned order dated 19.7.2005. The conclusion drawn by the revisional Court, that the order of the trial Court dated 23.8.2004 was an order passed u/s 156(3) of the Code, is incorrect. It is contended that a Magistrate, while considering an application/complaint, filed u/s 156(3) of the Code, is empowered to direct the police to investigate the case, in which eventuality, the police is obliged to register an FIR, investigate the facts disclosed and thereafter, submit a report, in terms of Section 173 of the Cr.P.C. If, however, the trial Court, directs investigation and calls for a report, the order will be deemed to be an order, in terms of Section 202 of the Cr.P.C., namely; an order under Chapter XV of the Code, where a trial Court proceeds to take cognizance and treats the application, received as a private complaint, otherwise than on a police report.
7. It is further argued that the Magistrate, adopted the procedure prescribed by Chapter XV of the Code and, therefore, on receipt of the report from the police, rightly directed respondent No. 2, to produce preliminary evidence. The revisional Court had no jurisdiction, while exercising powers u/s 397 of the Cr.P.C., to direct the Magistrate, to treat the order dated 23.8.2004, as an order directing registration of the FIR and, thus, an order passed u/s 156(3) Cr.P.C. It is contended that the order passed by the revisional Court is without jurisdiction and should, therefore, be set aside.
8. Counsel for the respondent, however, contends that the revisional Court did not commit any illegality or any error of jurisdiction, as would warrant rectification or interference in the discharge of jurisdiction u/s 482 Cr.P.C. It is contended that the order dated 23.8.2004, was an order passed u/s 156(3) Cr.P.C., and, therefore, the Magistrate, erred in directing the respondent to lead preliminary evidence. It is contended that as the Magistrate had adopted the procedure prescribed by Section 156(3) Cr.P.C., he was required to ensure that police register an FIR, and, thereafter proceed to investigate and submit a report u/s 173 Cr.P.C. It is contended that once a direction is issued u/s 156(3) of the Cr.P.C., police are obliged to register an FIR and thereafter investigate the allegations disclosed. As the Magistrate directed investigation, police were obliged to register an FIR. By choosing to submit a report, without registration of an FIR, the police violated the mandate of the Magistrate''s order as also of the provisions of Section 156(3) of the Code. The Revisional Court, merely clarified this ambiguity and directed the Magistrate, to rectify this error by directing the police to investigate the case, after registration of an FIR. It is contended that without registration of an FIR, police have no power to investigate and, therefore, as the revisional Court merely corrected an error of law, the impugned order does not call for interference. It is further argued that while passing the order dated 23.8.2004, the trial Court did not take cognizance, under Chapter XV, namely; Sections 200 to 203. The said order does not reveal an intention to treat the application, filed u/s 156(3) Cr.P.C., as a private complaint, under Chapter XV of the Code. The Magistrate, while passing the order dated 23.8.2004, did not take cognizance or proceed in terms of Chapter XV of the Code and, therefore, the learned revisional Court was justified and legally correct in directing the Magistrate, to treat the order dated 23.8.2004, as an order directing the registration of an FIR.
9. I have heard learned counsel for the parties and perused the paper book.
10. The points that merit consideration are nature of the order dated 23.8.2004, namely, whether the aforementioned order was an order passed u/s 156(3) Cr.P.C. or an order passed u/s 202 thereof. An ancillary point that merits adjudication is, whether the learned Sessions Judge had jurisdiction to direct the Magistrate, to treat the order dated 23.8.2004, as an order directing registration of an FIR and investigation thereunder, in terms of Chapter XII of the Code.
11. Before proceeding to examine the nature of the order dated 23.8.2004, it would be appropriate to examine the relevant statutory provisions and the judicial precedents. Section 156 of the Code reads as follows :-
156. Police Officer''s power to investigate cognizable case -
(1) Any 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 XIII.
(2) No proceedings 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.
(3) Any Magistrate empowered u/s 190 may order such an investigation as above mentioned.
Section 202 of the Code reads as follows :-
202. Postponement of issue of process. - (1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him u/s 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 Session; 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 u/s 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, 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.
A perusal of the Code reveals that Section 156 of the Code, falls in Chapter XII titled as "Information to the police and their powers to investigate." This chapter deals with the power of police officers to investigate cognizable offences. Section 156(3) of the Code enables a Magistrate, to pass an order directing investigation, in terms set down in Section 156(1) and (2) of the Code i.e. direct the police to investigate, as per the statutory powers conferred upon them in Chapter XII. An order passed u/s 156(3) Cr.P.C. is carried into effect, with the police, registering a report, u/s 154 of the Cr.P.C., referred to in common parlance, as a First Information Report.
12. After registration of the report, a police officer proceeds to investigate the matter, as per the provisions of Chapter XII. Investigation concludes with the presentation of a final report before a Magistrate, u/s 173 of the Code. Investigation under Chapter XII, can be commenced by the police, without an order being passed by a Magistrate, provided the information received by a police officer discloses the commission of a cognizable offence. The nature of investigations, by a police officer, whether of his own or pursuant to an order passed by a Magistrate, are similar and are to be carried out under the provisions of Chapter XII.
13. A Magistrate, however, upon receipt of an application, is empowered to follow the procedure prescribed u/s 156(3) of the Code or follow the procedure as set out in Chapter XV, a chapter titled as "Complaints to Magistrates". If a Magistrate deems appropriate to proceed under Chapter XV, an order is required to be passed u/s 202(1) of the Code, directing investigation by a police officer or any other person and the submission of a report. This investigation, is different from the one envisaged u/s 156(3) Cr.P.C. and does not require the registration of an FIR. It merely assists the Magistrate, in his endeavour to arrive at a conclusion whether further proceedings are warranted and is in no manner akin to a final report to be filed u/s 173 of the Cr.P.C. It would also be necessary to mention here that powers exercised u/s 156(3) of the Code, are exercised before a Magistrate takes cognizance of an offence, whereas powers u/s 202(1) are exercised post cognizance. Once a Magistrate, proceeds to take cognizance and passes an order u/s 202(1) of the Cr.P.C., he cannot thereafter, revert to a procedure prescribed u/s 156(3) of the Cr.P.C. The legal position, as noticed herein above, finds support from the judgments of Hon''ble the Supreme Court, referred to hereinafter, namely :
(i) Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others, AIR 1976 SC 1672;
(ii) Tula Ram and others v. Kishore Singh, AIR 1977 SC 2401;
(iii)
14. In Devarapalli Lakshminarayana Reddy and others (supra), their Lordships held as follows :
Section 156(3) occurs in Chapter XII, under the caption : "Information to the Police and their powers to investigate", while Section 202 is in Chapter XV which bears the heading "Of complaints to Magistrate". The power to order police investigation u/s 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, the power u/s 156(3) can be invoked by the Magistrate before he takes cognizance of the offence u/s 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 or intimation to the police to exercise their plenary powers of investigation u/s 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence u/s 156 and ends with a report or charge-sheet u/s 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 u/s 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 u/s 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.
15. While considering a similar question in Tula Ram and others (supra), it was held as follows :-
In these circumstances, we are satisfied that the action taken by the Magistrate was fully supportable in law and he did not commit any error in recording the statement of the complainant and the witnesses and thereafter issuing process against the appellants. The High Court has discussed the points involved threadbare and has also cited number of decisions and we entirely agree with the view taken by the High Court. Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge :
1. That a Magistrate can order investigation u/s 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation u/s 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.
2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives :
(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
4. Where a Magistrate orders investigation by the police before taking cognizance u/s 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action u/s 190 as described above.
16. A judgment, namely : Suresh Chand Jain (supra), would also require reference. While considering the controversy, as to the powers of a Magistrate u/s 156(3) Cr.P.C. and Section 202 of the Code and the nature of the enquiries prescribed thereunder, it was held as follows :-
The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation u/s 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the office-in-charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation u/s 156(3) of the Code that an FIR should be registered, it is the duty of the officer-in-charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
17. It is, thus, apparent that powers of a Magistrate under Chapter XII and XV are entirely different, the enquiries contemplated under these Chapters are for difference purposes. A resort to the powers under Chapter XV rules out a subsequent resort to the powers of a Magistrate under Chapter XII.
18. In the present case, the Magistrate, after receipt of a complaint, allegedly filed u/s 156(3) Cr.P.C., passed the following order on 23.8.2004 :-
The instant complaint presented today. Heard. It be sent to the Deputy Superintendent of Police pertaining to Police Station, Model Town, Ludhiana for investigation and report within two months.
19. On 11.12.2004, the police officials submitted their enquiry report before the Magistrate. Upon receipt of the enquiry report, the Judicial Magistrate, Ist Class, Ludhiana, vide his order dated 11.4.2005, held that further preliminary evidence is required and, therefore, directed the complaint to be registered and the case adjourned to 29.4.2005, for preliminary evidence.
20-21. As noticed herein above, the respondent impugned the order dated 11.4.2005, by way of a revision, filed before the Additional Sessions Judge, Ludhiana. The revisional Court, after placing reliance upon judgments of this Court, reported as Dalip Kaur v. State of Punjab, 1998 (1) RCR (Cri) 686 (P&H); Gurmej Kaur v. State of Punjab, 2002 (1) RCR (Cri.) 385 (P&H); Jagtar Singh v. State of Punjab, 1992 (2) RCR (Cri.) 134 (P&H) and Gurdeep Singh v. State of Haryana, 1998 (3) RCR Cri.) 466 (P&H), held that the order dated 23.8.2004, was an order passed u/s 156(3) Cr.P.C. and, therefore, the Magistrate fell in error and misconstrued the aforementioned order and, thus, contradicted the order of his predecessor. It was also held that in this view of the matter, the police, could not have conducted investigation, without registration of the FIR. Consequently, the revision was allowed and the Judicial Magistrate, Ist Class, Ludhiana, was directed to reconsider the matter. The directions read as follows :-
So, in these circumstances, ld. Judicial Magistrate, Ist Class, Ludhiana, who rendered the impugned order must reconsider the matter and pass the necessary direction to the police for compliance of order dated 23.8.2004 and after registration of the case, the police may submit the police report or if there is no substance in the complaint, in that case, cancellation report may be sent to the ld. Illaqa Magistrate for approval.
22. A bare perusal of the orders dated 23.8.2004 and 11.4.2005, leave no manner of doubt that the Magistrate intended to exercise jurisdiction under Chapter XV of the Code, namely; u/s 202 thereof and not u/s 156(3) of the Code i.e. Chapter XII. The use of the words "investigate and submit a report" are words that appear in Section 202 of the Cr.P.C. and not in Section 156(3) Cr.P.C. Thus, it is apparent that the revisional Court, misconstrued the aforementioned orders and directed the Magistrate, to proceed u/s 156(3) Cr.P.C. As the orders dated 23.8.2004 and 11.4.2005, are clear and unambiguous and were passed in accordance with the provisions of Section 202 Cr.P.C., the revisional Court had no jurisdiction to set aside the order dated 11.4.2005 and direct the Magistrate, to proceed in accordance with the provisions of Section 156(3) Cr.P.C. The Magistrate, while passing the order dated 23.8.2004, called for a report, so as to enable him to arrive at a conclusion, whether the complaint revealed any material that would enable him to proceed further in accordance with the provisions of Chapter XV. Upon receipt of the report and a perusal thereof, the Magistrate arrived at a conclusion that the complaint, be registered and consequently directed the petitioner, to lead preliminary evidence. The learned Magistrate, thus, embarked upon a course prescribed by Chapter XV of the Cr.P.C., namely; u/s 200 Cr.P.C. Once the Magistrate proceeded to adopt such a course, the revisional Court had no jurisdiction, to direct the Magistrate to revert to the process prescribed u/s 156(3) Cr.P.C. A resort to powers under Sections 200 and 202 of the Code, does not permit a Magistrate to revert to the procedure prescribed u/s 156(3) Cr.P.C. Furthermore, the revisional Court had no jurisdiction to direct the Magistrate to order the police to register an FIR and thereafter submit a final report u/s 173 of the Cr.P.C. The revisional Court, if the circumstances so warranted could have only set aside the order dated 11.4.2005 and thereafter directed the Magistrate to consider the matter afresh. The revisional Court, in my considered opinion, was not vested with powers, to issue directions to the Magistrate to order registration of an FIR as also to direct a Magistrate, to order the police to submit a report u/s 174 Cr.P.C.. In
23. In view of what has been stated above, the present petition is accepted. The order dated 19.7.2005 passed in revision is set aside and the Magistrate is directed to proceed in accordance with law from the stage obtaining after the order dated 11.4.2005.
