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CASE NO.: Appeal (crl.) 43 of  2001 {Arising out of Special Leave Petition (crl.)   2225    of 2000 }

PETITIONER: SURESH CHAND JAIN

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH & ANOTHER

DATE OF JUDGMENT:       10/01/2001

BENCH: K.T.Thomas, R.P.Sethi

JUDGMENT:

   THOMAS,  J.  Leave granted.  A complaint was forwarded by a magistrate to the police for registering an FIR and for conducting investigation.  One of the persons arrayed in the complaint  as  accused questioned the legality of the  above order  first in revision before the Sessions Court and  then by invoking the inherent powers of the High Court.  Both did not  succeed.  This appeal is by the same person  contending that  the order of the magistrate should have been upset  in the interest of justice.

     The  complaint  was  filed by  the  second  respondent (Mahesh  Patidar)  before  the  Chief  Judicial  Magistrate, Neemuch  (M.P.) on 12.8.1999 alleging that the appellant and his  wife Geeta Devi have committed offence under Section  3 of   the   Prized  Chits   and  Money   Circulation   Scheme (Prohibition)  Act and under Section 420 of the Indian Penal Code.   The  Chief  Judicial Magistrate passed an  order  on 18.8.1999   which  is  extracted   below:   The   complaint submitted  by  the  complainant   has  been  perused.   This complaint   has  been  submitted  by  the  complainant   for initiating action against the accused under Section 3 of the Prizes, Chits and Money Circulation Scheme (Prohibition) Act and  Section 420 of the IPC.  Both the offences are serious, therefore,  the  case is required to be investigated by  the police station, Nemuch Cantt.  under Section 156(3) Cr.P.C., therefore,  the  complaint submitted by the  complainant  be sent  to the In-charge, Police Station Neemuch Cantt.   with the   direction   to    register    F.I.R.    and   initiate investigation.   The  copy  of   the  F.I.R.   and  initiate investigation.   The  copy  of the F.I.R.  be sent  to  this court immediately.

     Appellant  challenged  the  said order in  a  revision before  the  Sessions  Court  and   when  the  revision  was dismissed  he moved the High Court under Section 482 of  the Code  of Criminal Procedure (for short the Code).  Learned Single  Judge  of the High Court of Madhya Pradesh took  the view  that in a private complaint case under Section 156(3) of   the  Code  the  magistrate   is  empowered   to   order investigation;   the allegation made in the complaint  needs to be investigated in public interest.

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     Shri  R.K.   Jain,  learned senior  counsel  contended first  that  a magistrate on receipt of a  complaint  should@@        JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ have  examined the complainant on oath before proceeding  to@@ JJJJ any   other  step.   Learned   senior  counsel  adopted  the alternative  contention that the magistrate has no power  to direct  the  police to register an FIR.  In support  of  the said contention learned counsel cited two decisions.  One is Ram  Narain vs.  Lokuram {1986(37) Rajasthan Law Weekly 143} and  the  other was rendered by the Punjab and Haryana  High Court in Suresh Kumar vs.  State of Haryana {1996 (3) Recent Criminal Reports 137}.

     The  former decision of the Rajasthan High Court  need not  vex our mind as the consideration focussed therein  was on  the scope of Section 202(1) of the Code and the  learned Single  Judge observed therein that a magistrate cannot make any  order regarding police investigation without  examining the complainant on oath.  If the facts in that case remained one  under  Section 202(1) of the Code then the  observation cannot  be faulted with.  That apart, as the point  involved in  this  case is different we do not think it necessary  to examine  the said decision.  But the other decision rendered by  a  Single  Judge of the Punjab and  Haryana  High  Court (Suresh Kumar vs.  State of Haryana) has gone a step further as  he  held  that the magistrate has no power  within  the contemplation  of  Section  156(3) of the Code  to  ask  for registration of the case, but could only refer the complaint to  the police for investigation at the pre-cognizance stage to make the enquiry in the matter enabling the magistrate to apply  his  mind  with  regard to  the  correctness  of  the complaint.  In  that decision learned Single Judge, at  the end  of the judgment, made a direction as follows:   Before parting  with the judgment, it is observed that often it  is found  that  the  Judicial  Magistrates  working  under  the control  of  this  Court  many a time  upon  the  complaints preferred  before them, allegedly showing that a  cognizable offence has been committed by the accused, direct the police to  register  and  conduct the investigation in  such  cases under  Section 156(3) of the Cr.P.C.  After the reports  are received  from  the police the Magistrates deal  with  those cases  as police challans and conduct the proceedings in the matters  against  the provisions of law as discussed  above. Hence  the  Registry  is  directed to send a  copy  of  this judgment  to  all the Judicial Magistrates in the States  of Punjab,  Haryana  and  Union   Territory,  Chandigarh,   for information and guidance.

     In  our opinion, the aforesaid direction given by  the learned Single Judge of the Punjab and Haryana High Court in Suresh  Kumar  vs.  State of Haryana (supra) is contrary  to law  and  cannot  be  approved.  Chapter  XII  of  the  Code contains  provisions relating to information to the  police and  their powers to investigate, whereas Chapter XV, which contains  Section 202, deals with provisions relating to the steps which a magistrate has to adopt while and after taking cognizance of any offence on a complaint.  Provisions of the above two chapters deal with two different facets altogether though  there could be a common factor i.e.  complaint filed by a person.  Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences.   True, Section 202 which falls under Chapter  XV, also  refers  to  the power of a Magistrate  to  direct  an investigation  by a police officer.  But the  investigation

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envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code.  Section 156 of the Code   reads  thus:   156.    Police  officers  power   to investigate  cognizable cases.- (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  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.

     The  investigation  referred  to therein is  the  same investigation  the  various steps to be adopted for it  have been   elaborated  in  Chapter  XII   of  the  Code.    Such investigation would start with making the entry in a book to be kept by the officer-in-charge of a police station, of the substance of the information relating to the commission of a cognizable  offence.   The investigation started  thereafter can  end  up  only with the report filed by  the  police  as indicated  in  Section 173 of the Code.   The  investigation contemplated  in that Chapter can be commenced by the police even  without the order of a magistrate.  But that does  not mean  that  when a magistrate orders an investigation  under Section   156(3)   it  would  be   a   different   kind   of investigation.   Such  investigation must also end  up  only with  the  report contemplated in Section 173 of  the  Code. But  the  significant  point  to  be  noticed  is,  when   a magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.

     But a magistrate need not order any such investigation if  he proposes to take cognizance of the offence.  Once  he@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ takes  cognizance  of  the  offence he  has  to  follow  the procedure envisaged in Chapter XV of the Code.  A reading of Section  202(1)  of  the  Code   would  convince  that   the investigation  referred  to therein is of a limited  nature. The  magistrate can direct such an investigation to be  made either  by  a police officer or by any other  person.   Such investigation  is only for helping the magistrate to  decide whether or not there is sufficient ground for him to proceed further.   This can be discerned from the culminating  words in  Section  202(1) i.e.  or direct an investigation to  be made  by  a  police officer or by such other persons  as  he thinks fit, for the purpose of deciding whether or not there is  sufficient  ground for proceeding.  This is because  he has already taken cognizance of the offence disclosed in the complaint,  and the domain of the case would thereafter vest with him.

     The  position is thus clear.  Any judicial magistrate, before   taking  cognizance  of   the  offence,  can   order investigation  under Section 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

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of  the cognizable offence in a book kept by the officer-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 under Section 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.

     Though  the  learned  Single Judge of the  Punjab  and Haryana  High  Court in Suresh Kumar vs.  State  of  Haryana (supra)  made  reference to two decisions rendered  by  this Court  [Gopal  Das Sindhi and ors.  vs.  State of Assam  and anr.   (AIR 1961 SC 986) and Tula Ram and ors.  vs.  Kishore Singh  (AIR  1977 SC 2401)] learned Single Judge  fell  into error  in  formulating  a  legal  position  which  is  quite contrary  to  the  dictum  laid down by this  Court  in  the afore-cited  decisions.   In Gopal Das Sindhi vs.  State  of Assam  (supra) a three Judge Bench of this Court  considered the  validity of the course adopted by a judicial magistrate of the 1st class in ordering the police to register a case, investigate and if warranted, submit charge-sheet.  Learned Judges  repelled the contention that the magistrate ought to have  examined the complainant on oath under Section 200  of the  Code.  Dealing with the said contention their Lordships stated thus:  If the Magistrate had not taken cognizance of the  offence  on the complaint filed before him, he was  not obliged to examine the complainant on oath and the witnesses present  at  the  time of the filing of the  complaint.   We cannot  read  the  provisions of S.190 to mean that  once  a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence.  We are unable to construe the word may in section  190  to  mean must.  The reason  is  obvious.   A complaint  disclosing cognizable offences may well justify a Magistrate  in sending the complaint, under S.156(3) to  the police  for investigation.  There is no reason why the  time of  the Magistrate should be wasted when primarily the  duty to  investigate  in cases involving cognizable  offences  is with  the police.  On the other hand, there may be occasions when  the  Magistrate may exercise his discretion  and  take cognizance of a cognizable offence.

     In  Tula  Ram vs.  Kishore Singh (supra) a  two  Judge Bench  of  this  Court,  after   referring  to  the  earlier decision,  reiterated  the  same   legal  position.   It  is unfortunate  that  when  this  Court  laid  down  the  legal position  so  explicitly  in the above two  decisions  which reached  the  notice of the learned Judge of the Punjab  and Haryana  High Court he had formulated a position contrary to it  by stating that the Magistrate has no power within  the contemplation  of  Section  156(3) of the Code, to  ask  for registration  of  the  case. It appears that  the  judicial officers  under Punjab and Haryana High Court who were, till then,  following  the  correct position, were asked  by  the learned Judge to follow the erroneous position formulated by him in the aforesaid judgment.

     In  the present case the High Court of Madhya  Pradesh had  rightly  upheld the course adopted by  the  magistrate. Hence we dismiss this appeal.