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PETITIONER: MADHU BALA

       Vs.

RESPONDENT: SURESH KUMAR

DATE OF JUDGMENT:       23/07/1997

BENCH: M.K. MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      Special leave  granted. Heard  the learned  counsel for the parties.      On February  18, 1988  the appellant  filed a complaint against the  three respondents, who are her husband, father- in-law and  mother-in-law  respectively,  before  the  Chief Magistrate,  Kurukshetra  alleging  commission  of  offences under Sections  498A and 406 of the Indian Penal Code [I P C for  short]   by  them.   On  that  complaint,  the  learned Magistrate passed  an order under Section 156(3) of the Code of Criminal  Procedure (code for short) directing the police to register  a case  and investigate into the same. Pursuant to the  said direction Thaneswar Police Station registered a case  being   FIR  No.  61  of  1988  and  on  completion  f investigation submitted charge sheet (police report) against the three  respondents under Section 198A and 406 I P C. The learned Magistrate  took cognizance  upon the  said  charge- sheet  and   thereafter  framed  charge  against  the  three respondents under  Section 406  I P  C only as, according to the learned Magistrate, the offence under Section 198A I P C was allegedly  committed in  the district of Karnal. Against the framing of the charge the respondents moved the Sessions Judge in revision, but without success.      Thereafter on  January 29,  1994  the  appellant  filed another   complaint against  the respondents  under  Section 498A IPC before the Chief Judicial Magistrate, Karnal and on this complaint the learned magistrate passed a similar order under Section  156(3) of the Code for registration of a case and investigation. In compliance with the orders FIR No. 111 of 1994  was registered  by the Karnal Police Station and on completion  of   investigation  charge-sheet  was  submitted against the  three respondents under Section 498A I.P.C.; On that charge  sheet the learned Magistrate took cognizance of the above  offence   and later on framed charge against them in accordance with Section 240 of the Code.      While  the   above  two  cases  were  being  tried  the respondents filed  petitions under  Section 482  of the Code before the Punjab & Haryana High Court for quashing of their proceedings on  the ground  that the  orders passed  by  the

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Chief  Judicial   Magistrates  of   Kurukshetra  and  Karnal directing registration  of cases  in purported  exercise  of their power  under Section 156 (3) of the Code were patently wrong and  consequently all  actions taken  pursuant thereto were illegal. The contention so raised found favour with the High Court;  and by  the impugned  judgment it  quashed  the orders of  the Chief Judicial Magistrates of Kurukshetra and karnal  dated   February  18,  1988  and  January  29,  1994 respectively, pursuant to which cases were registered by the police on  the complaints  of the  appellant, and the entire proceedings of the two cases arising therefrom. According to the High  Court,  under  Section  156(3)    of  the  Code  a Magistrate can  only direct  investigation by the police but he has  no power  to direct  registration  of  a  case’.  in drawing the  above conclusion,  it relied upon the judgments of this  Court In Gopal Das Sindhi & Ors. vs. State of Assam (AIR 1961 SC 986) and Tula Ram & Ors. vs. Koshore Singh (AIR 1977 SC  2401) and  some judgments of the Punjab and Haryana High Court  which according  to it,  followed the  above tow decisions of this court.      In our considered view, the impugned judgment is wholly unsustainable as  it has  not only  failed to  consider  the basic provisions  of the Code but also failed to notice that the judgments  in Gopal   Das  (supra) and  Tula Ram (supra) have no  relevance   whatsoever  to  the  interpretation  or purport of Section 156(3) of the Code. The earlier judgments of the  Punjab &  Haryana    High  Court,  which  have  been followed in  the instant case also suffer from the above two infirmities.      Coming first  to the  relevant provisions  of the Code, Section 2  (d) defines  ’complaint’ to  mean any  allegation made orally  or in  writing to  a Magistrate, with a view to his taking  action under  the Code that some person, whether known or  unknown has  committed an  offence, but  does  not include a  police report.  Under Section  2  (c)  cognizable offence means  an offence  for which,  and  cognizable  case means a  case in  which a  police officer  may in accordance with the First Schedule (of the Code) or under any other law for the  time being  in force, arrest without warrant. Under Section 2(r)  police report  means a  report forwarded  by a police officer  to a  Magistrate under  sub-section  (2)  of Section 173  of the Code. Chapter XII of the Code comprising Sections 154 to 176 relates to information to the police and their powers  to investigate.  Section 154  provides,  inter alia that  the officer  uncharge  of  police  station  shall reduce  into  writing  every  information  relating  to  the commission of  a cognizable  offence given to him orally and every such  information if  given in writing shall be signed by the  person giving  it and the substance thereof shall be entered in  book to  be kept by such officer in such form as the State  Government may  prescribe in this behalf. Section 156 of  the Code  with which  we are  primarily concerned in these appeals reads as under:      "(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   proceeding  of  a  police      officer in  any such  case shall at      any stage  be called in question on

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    the ground  that the  case was  one      which   such    officer   was   not      empowered  under  this  section  to      investigate.      (3) Any  Magistrate empowered under      Section  190   may  order  such  an      investigation as above mentioned."      On completion of investigation undertaken under section 156(1) the  officer in  charge  of  the  Police  Station  is required under  Section 173(2)  to forward  to a  Magistrate empowered to  take cognizance  of the  offence on  a  police report  a  report  in  the  form  prescribed  by  the  State Government containing all the particulars mentioned therein. Chapter XIV  of the  Code lays down the conditions requisite for initiation  of proceedings by the Magistrate. Under sub- section (1)  of  Section  190  appearing  that  Chapter  any Magistrate of  the first  class and  any Magistrate  of  the second class  specially empowered may take cognizance of any Magistrate of  the first  class and  any Magistrate  of  the second class specially empowered may take cognizance of any offence (a)  upon  receiving  a  complaint  of  facts  which constitutes such  offence; (b)  upon a police report of such facts; or  (c) upon  information received  from  any  person other than  a police officer, or upon his own knowledge that such offence  has been  committed. Chapter XV prescribes the procedure the Magistrate has to initially follow if it takes cognizance of  an  offence  on  a  complaint  under  section 190(1)(a).      From a  combined reading  of the above provisions it is abundantly clear  that when a written complaint disclosing a cognizable offence  is made before a Magistrate, he may take cognizance upon the same under Section 190(1)(a) of the Code and proceed  with the same in accordance with the provisions of Chapter  XV. The other option available to the Magistrate in such  a case  is to send the complaint to the appropriate Police Station  under Section 156(3) for investigation. Once such a  direction is  given under sub section (3) of Section 156  the   police  is  required  to  investigate  into  that complaint under sub-section (1) thereof and on completion of investigation to  submit a  police report in accordance with Section 173(2)  on which  a Magistrate  may take  cognizance under Section  190(1)(b) but  not under  190(1)(a). Since  a complaint filed  before a Magistrate cannot be police report in view  of the  definition of complaint referred to earlier and since Section 156(1) has to culminate in a police report the complaint - as soon as an order under Section 156 (3) is passed thereon  - transforms  itself to  a report  given  in writing within the meaning of Section 154 of the Code, which id known  as the  First information Report (F I R). As under Section 156 (1) the police can only investigate a cognizable case it has to formally register a case on that report.      The mode  and manner  of registration of such cases are laid down  in  the  Rules  framed  by  the  different  State Governments under  the Indian  Police Act,  1861. As  in the instant case we are concerned with Punjab Police Rules, 1934 (Which are  applicable to  Punjab, Haryana, Himachal Pradesh and Delhi) framed under the said Act we may now refer to the relevant provisions of those Rules.      Chapter XXIV  of the said Rules lays down the procedure an officer-in-charge  of a  Police Station  has to follow on receipt of  information of  commission of crime. Under Rules 24.1 appearing  in the  Chapter every information covered by Section 154  of the  Code  must  be  entered  in  the  First information Report  Register and  substance thereof  in  the daily diary.  Rule 24.5  says  that  the  First  information

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Report Register  shall be  a printer  book in  Form  24.5(1) consisting of  200 pages  and  shall  be  completely  filled before a  new one is commenced. It further requires that the cases shall  bear an  annual serial  number in  each  police station for  each calender  year. The  other requirements of the said  Rules  need  not  be  detailed  as  they  have  no relevance to the point at issue.      From  the  foregoing  discussion  it  is  evident  that whenever  a   magistrates  directs  an  investigation  on  a ’complaint’ the  police has to register a cognizable case on that complaint  treating the same as the FIR and comply with the requirements  of the  above Rules. It, therefore, passes our comprehension  as to  how the  direction of a Magistrate asking the  police to  ’register a  case’ makes  an order of investigation under  Section 156(3)  legally  unsusteinable. Indeed, eve  if   Magistrate does  not pass  a direction  to register a  case, still in view of the provisions of Section 156(1) of  the Code which empowers the Police to Investigate into a  cognizable ’case’  and the  Rules framed  under  the Indian Police  Act, 1861  it (  the Police) is duty bound to formally register a case and then investigate into the same. The provisions  of the  Code, therefore, does not in any way stand in  the way  of a  Magistrate to  direct the police to register a  case at  the police station and then investigate into  the   same.  In   our  opinion   when  an   order  for investigation under Section 156(3) of the Code is to be made the proper  direction to  the Police  would be to register a case at  the police  station treating  the complaint  as the First Information Report and investigate into the same.      Adverting now  to the  two cases of this Court on which reliance has  been placed  by the High Court we find that in the case of Gopal Das (supra) the facts were that on receipt of a  complaint of  commission  of  offences  under  Section 147,323,342 and 448 of the Indian Penal Code, the Additional District Magistrate  made the  following endorsement:  "  To Shri C.  Thomas, Magistrate  1st class,  for  disposal."  On receiving the  complaint Mr. Thomas directed the officer In- charge of  the Gauhati  Police Station  to register  a case, investigate and  if warranted  submit a  charge sheet. After investigation police  submitted a charge sheet under Section 448 of  the Indian  Penal Code  and on  receipt thereof  the Additional District Magistrate forwarded to Shri R. Goswami, Magistrate for  disposal. Shri Goswami framed a charge under Section 448  of the  Indian Penal  Code against  the accused therein and  aggrieved thereby  the accused first approached the revisional  Court and,  having failed  there,  the  High Court under  Article 227 of the Constitution of India. Since the petition  before the High Court was also displeased they moved this Court. The contention that was raised before this Court was  that Mr.  Thomas acted  without  Jurisdiction  in directing the  police to  register a  case to investigate it and thereafter  to submit  a charge sheet, if warranted. The steps of  reasoning for  the above contention was that since the Additional  District Magistrate had transferred the case to Mr.  Thomas for disposal under Section 192 of the Code it must be  said that  the former  had already taken cognizance thereupon under Section 190(1)(a) of the Code. Therefore, he (Mr. Thomas)  could not  pass any order under Section 156(3) of the  Code as it related to a pre-cognizance stage; and he could deal  with the  same only  in accordance  with Chapter XVI. In  negativing this contention this Court held that the order of the Additional District Magistrate transferring the a case to Mr. Thomas on the face of it did not show that the former had taken cognizance of any offence in the complaint. According  to  this  Court  the  order  was  by  way  of  an

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administrative action, presumably because Mr. Thomas was the Magistrate before  whom ordinarlly  complaints  were  to  be filed. The  case of  Gopal Dass  (supra) has,  therefore, no manner of  application in  the facts of the instant case. It is interesting  to note that the order that was passed under Section 156(3)  therein also  contained a  direction to  the Police to register a case.      In Tula Ram’s (supra) the only question that was raised before this  Court was  whether or  not a  Magistrate  after receiving a  complaint  and  after  directing  investigation under Section  156(3) of  the Code  and on  receipt  of  the ’Police report’  from the  police can  issue notice  to  the complainant, records  his statement  the statements of other witnesses and  then issue  process under  Section 204 of the Code. From the question it self it is apparent that the said case related  to a  stage after  police report under Section 173(2) of  the Code was submitted pursuant to an order under Section 156(3)  of the  Code and  not to  the nature  of the order that  can be  passed thereunder [ Section 156(3)]. The cases of  the Punjab & Haryana High Court referred to by the learned  Judge   in  the  impugned  judgement  need  not  be discussed in  details for they only lay down the preposition that   under Section  156(3) a  Magistrate can  only  direct investigation but  cannot direct  registration of a case for no such  power is given to him under that section. We repeat and reiterate  that such  a power inheres in Section 156(3), for investigation  directed thereunder  can only  be in  the complaint filed  before the  Magistrate on which  a case has to be formally registered in the Police Station treating the same as the F.I.R If the reasoning of the Punjab and Haryana High Court  is taken to its logical conclusion it would mean that if  a Magistrate  issues a direction to submit a report under  Section  173(2)  of  the  Code  after  completion  of investigation while passing an order under Section 156(3) it would be  equally bad  for the  said Section  only  ’directs investigation’ and  nothing more.  Needless to  say, such  a conclusion  would   be  fallacious,   for  while   with  the registration of  a case  by the police on the complaint, the investigation directed  under Section 156(3) commences, with the submission  of the  ’Police report’ under Section 173(2) it culminates.      On the  conclusions as  above we set aside the impugned judgment and  orders  of  the  High  Court  and  direct  the concerned  Magistrates   to  proceed   with  the   cases  in accordance of law. The appeals are accordingly allowed.