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CASE NO.: Appeal (crl.)  2 of 2006

PETITIONER: Mohd. Yousuf

RESPONDENT: Smt. Afaq Jahan & Anr

DATE OF JUDGMENT: 02/01/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 2305 of 2004)

ARIJIT PASAYAT, J.  

       Leave granted.

       Challenge in this Appeal is to the order passed by a  learned Single Judge of the Allahabad High Court, Lucknow  Bench.  The respondent No. 1 filed a petition under Section  482 of the Code of Criminal Procedure, 1973 (in short the  ’Code’) to quash the direction given to register F.I.R.,  charge sheet filed after investigation as well as the  cognizance taken by the learned Chief Judicial Magistrate  (in short CJM) Raebareli. By order dated 13.7.1998 learned  CJM had directed the police to register and investigate the  case.  On 19.7.1998 on the basis of the order passed by  learned CJM police registered FIR No. 830 of 1998 for  alleged commission of offences punishable under Sections  420, 467, 468 and 471 of the Indian Penal Code, 1860 (in  short the IPC).  

       Background facts as projected by the appellant are as  follows:

       Appellant received a notice dated 18.1.1996 from the  Union Bank of India, Raebareli asking him to pay back the  loan amount with interest amounting to Rs.1,25,421/-.   Appellant was shown to be a guarantor for the loan taken by  respondent no.1 on 30.12.1994.  Appellant was surprised to  receive the notice as he had never stood as guarantor for  any loan.  He made enquiry from the Bank and came to know  that the respondent No. 1 had forged some documents in  conspiracy with her husband Zahirul Islam. An affidavit  purported to have been signed by the appellant was filed  with the bank to make him the second guarantor. Appellant  had never signed the document and his signature was forged.   A writ petition was filed before the Allahabad High Court to  quash the notice issued by the Bank. The writ petition was  dismissed giving liberty to the appellant to seek  appropriate remedy.  On 13.7.1998 an application was filed  before learned CJM alleging commission of offences by the  named accused persons. Learned CJM directed the police to  register and investigate the case.  As noted above, on the  basis of order of learned CJM the FIR was registered. The  essence of the grievance of the appellant was that the  accused persons with the help of the bank manager made  forged signature of the appellant in the agreement form and  an affidavit to show him as a guarantor. After investigation

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charge sheet was filed by the police on 13.9.1999. On  24.5.2000 respondent no.1 filed the application under  Section 482 of the Code for quashing the FIR, the charge  sheet and the order of learned magistrate by which he had  taken cognizance, and the order directing the police to  register the case under Section 156(3) of the Code.  By the  impugned order the High Court quashed the charge sheet on  the ground that the magistrate had no power to order  registration of the case.

       In support of the appeal learned counsel for the  appellant submitted that the order of the High Court is  clearly contrary to law and on misreading of the provisions  contained in Section 156(3) of the Code. Learned counsel for  the respondent No.1 on the other hand submitted that the  true scope and ambit of Section 156(3) of the Code has been  kept in view by the High Court and the impugned order does  not suffer from any infirmity. Learned counsel for the State  supported the stand of the appellant.

       In order to appreciate rival submissions Section 156 of  the Code needs to be quoted; the same reads as follows: "156. Police officer’s 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."

       Section 156 falling within Chapter XII, deals with  powers of police officers to investigate cognizable  offences. Investigation envisaged in Section 202 contained  in Chapter XV is different from the investigation  contemplated under Section 156 of the Code.          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  envisaged in Section 202 is different from the investigation  contemplated in Section 156 of the Code.          The various steps to be adopted for investigation under  Section 156 of the Code 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

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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  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 makes the position clear 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 person 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 clear position therefore is that 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 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.  

       The above position was highlighted in Suresh Chand Jain  v. State of M.P. and Another [2001(2) SCC 628].

       In Gopal Das Sindhi and Ors. v. State of Assam and Anr.  (AIR 1961 SC 986) it was observed as follows:                          "When the complaint was received by Mr.  Thomas on August 3, 1957, his order, which we  have already quoted, clearly indicates that  he did not take cognizance of the offences  mentioned in the complaint but had sent the  complaint under Section 156(3) of the Code to

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the Officer Incharge of Police Station  Gauhati for investigation.  Section 156(3)  states "Any Magistrate empowered under  section 190 may order such investigation as  above-mentioned". Mr. Thomas was certainly a  Magistrate empowered to take cognizance under  Section 190 and he was empowered to take  cognizance of an offence upon receiving a  complaint.  He, however, decided not to take  cognizance but to send the complaint to the  police for investigation as Sections 147, 342  and 448 were cognizable offences.  It was,  however, urged that once a complaint was  filed the Magistrate was bound to take  cognizance and proceed under Chapter XVI of  the Code. It is clear, however, that Chapter  XVI would come into play only if the  Magistrate had taken cognizance of an offence  on the complaint filed before him, because  Section 200 states that a Magistrate taking  cognizance of an offence on complaint shall  at once examine the complainant and the  witnesses present, if any, upon oath and the  substance of the examination shall be reduced  to writing and shall be signed by the  complainant and the witnesses and also by the  Magistrate. 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 Section 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  Section 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. If he does so then he  would have to proceed in the manner provided  by Chapter XVI of the Code. Numerous cases  were cited before us in support of the  submissions made on behalf of the appellants.  Certain submissions were also made as to what  is meant by "taking cognizance." It is  unnecessary to refer to the cases cited. The  following observations of Mr. Justice Das  Gupta in the case of Superintendent and  Remembrancer of Legal Affairs, West Bengal v.  Abani Kumar Banerjee, AIR 1950 Cal 437

       "What is taking cognizance has  not been defined in the Criminal  Procedure Code and I have no desire

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to attempt to define it. It seems to  me clear however that before it can  be said that any magistrate has  taken cognizance of any offence  under Section 190(1)(a), Criminal  Procedure Code, he must not only  have applied his mind to the  contents of the petition but he must  have done so for the purpose of  proceeding in a particular way as  indicated in the subsequent  provisions of this Chapter-  proceeding under Section 200 and  thereafter sending it for inquiry  and report under Section 202. When  the Magistrate applies his mind not  for the purpose of proceeding under  the subsequent sections of this  Chapter, but for taking action of  some other kind, e.g., ordering  investigation under Section 156(3),  or issuing a search warrant for the  purpose of the investigation, he  cannot be said to have taken  cognizance of the offence".                   

were approved by this Court in R.R. Chari v.  State of Uttar Pradesh (1951 SCR 312). It  would be clear from the observations of Mr.  Justice Das Gupta that when a Magistrate  applies his mind not for the purpose of  proceeding under the various sections of  Chapter XVI but for taking action of some  other kind, e.g., ordering investigation  under Section 156(3) or issuing a search  warrant for the purpose of investigation, he  cannot be said to have taken cognizance of  any offence. The observations of Mr. Justice  Das Gupta above referred to were also  approved by this Court in the case of  Narayandas Bhagwandas Madhavdas v. State of  West Bengal (AIR 1959 SC 1118). It will be  clear, therefore, that in the present case  neither the Additional District Magistrate  nor Mr. Thomas applied his mind to the  complaint filed on August 3, 1957, with a  view to taking cognizance of an offence. The  Additional District Magistrate passed on the  complaint to Mr. Thomas to deal with it. Mr.  Thomas seeing that cognizable offences were  mentioned in the complaint did not apply his  mind to it with a view to taking cognizance  of any offence; on the contrary in his  opinion it was a matter to be investigated by  the police under Section 156(3) of the Code.  The action of Mr. Thomas comes within the  observations of Mr. Justice Das Gupta. In  these circumstances, we do not think that the  first contention on behalf of the appellants  has any substance."  

       In Narayandas Bhagwandas Madhavdas v. The State of West  Bengal (AIR 1959 SC 1118) it was observed as under: "On 19.9.1952, the appellant appeared before  the Additional District Magistrate who

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recorded the following order:-  "He is to give bail of Rs.50,000 with  ten sureties of Rs. 5,000 each. Seen  Police report. Time allowed till 19th  November, 1952, for completing  investigation."  On 19.11.952, on perusal of the police report  the Magistrate allowed further time for  investigation until January 2, 1953, and on  that date time was further extended to  February 2, 1953. In the meantime, on January  27, 1953, Inspector Mitra had been authorized  under s.23(3)(b) of the Foreign Exchange  Regulation Act to file a complaint.  Accordingly, a complaint was filed on  February 2, 1953. The Additional District  Magistrate thereon recorded the following  order:  "Seen the complaint filed to day against  the accused Narayandas Bhagwandas  Madhavdas under section 8(2) of the  Foreign Exchange Regulation Act read  with section 23B thereof read with  Section 19 of the Sea Customs Act and  Notification No. F.E.R.A. 105/51 dated  the 27th February, 1951, as amended,  issued by the Reserve Bank of India  under Section 8(2) of the Foreign  Exchange Regulation Act. Seen the letter  of authority. To Sri M. N. Sinha, S.  D.M. (Sadar), Magistrate 1st class (spl.  empowered) for favour of disposal  according to law. Accused to appear  before him."  Accordingly, on the same date Mr. Sinha then  recorded the following order:-  "Accused present. Petition filed for  reduction of bail. Considering all  facts, bail granted for Rs. 25,000 with  5 sureties.  To 26.3.1952 and 27.3.1952 for  evidence."  It is clear from these orders that on  19.91952, the Additional District Magistrate  had not taken cognizance of the offence  because he had allowed the police time till  November 19, 1952, for completing the  investigation. By his subsequent orders time  for investigation was further extended until  February 2, 1953. On what date the complaint  was filed and the order of the Additional  District Magistrate clearly indicated that he  took cognizance of the offence and sent the  case for trial to Mr. Sinha. It would also  appear from the order of Mr. Sinha that if  the Additional District Magistrate did not  take cognizance, he certainly did because he  considered whether the bail should be reduced  and fixed the 26th and 27th of March, for  evidence. It was, however, argued that when  Mitra applied for a search warrant on  September, 16, 1952, the Additional District  Magistrate had recorded an order thereon,  "Permitted. Issue search warrant." It was on  this date that the Additional District

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Magistrate took cognizance of the offence. We  cannot agree with this submission because the  petition of Inspector Mitra clearly states  that "As this is non-cognizable offence, I  pray that you will kindly permit me to  investigate the case under section 155  Cr.P.C." That is to say, that the Additional  District Magistrate was not being asked to  take cognizance of the offence. He was merely  requested to grant permission to the police  officer to investigate a non-cognizable  offence. The petition requesting the  Additional District Magistrate to issue a  warrant of arrest and his order directing the  issue of such a warrant cannot also be  regarded as orders which indicate that the  Additional District Magistrate thereby took  cognizance of the offence. It was clearly  stated in the petition that for the purposes  of investigation his presence was necessary.  The step taken by Inspector Mitra was merely  a step in the investigation of the case. He  had not himself the power to make an arrest  having regard to the provisions of s. 155(3)  of the Code of Criminal Procedure. In order  to facilitate his investigation it was  necessary for him to arrest the appellant and  that he could not do without a warrant of  arrest from the Additional District  Magistrate. As already stated, the order of  the Additional District Magistrate of  September 19, 1952, makes it quite clear that  he was still regarding the matter as one  under investigation. It could not be said  with any good reason that the Additional  District Magistrate had either on September  16, or at any subsequent date upto February  2, 1953, applied his mind to the case with a  view to issuing a process against the  appellant. The appellant had appeared before  the Magistrate on February 2, 1953, and the  question of issuing summons to him did not  arise. The Additional District Magistrate,  however, must be regarded as having taken  cognizance on this date because he sent the  case to Mr. Sinha for trial. There was no  legal bar to the Additional District  Magistrate taking cognizance of the offence  on February 2, 1953, as on that date  Inspector Mitra’s complaint was one which he  was authorized to make by the Reserve Bank  under s. 23(3)(b) of the Foreign Exchange  Regulation Act. It is thus clear to us that  on a proper reading of the various orders  made by the Additional District Magistrate no  cognizance of the offence was taken until  February 2, 1953. The argument that he took  cognizance of the offence on September 16,  1952, is without foundation. The orders  passed by the Additional District Magistrate  on September 16, 1952, September 19, 1952,  November 19, 1952, and January 2, 1953, were  orders passed while the investigation by the  police into a non-cognizable offence was in  progress. If at the end of the investigation

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no complaint had been filed against the  appellant the police could have under the  provisions of s. 169 of the Code released him  on his executing a bond with or without  sureties to appear if and when so required  before the Additional District Magistrate  empowered to take cognizance of the offence  on a police report and to try the accused or  commit him for trial. The Magistrate would  not be required to pass any further orders in  the matter. If, on the other hand, after  completing the investigation a complaint was  filed, as in this case, it would be the duty  of the Additional District Magistrate then to  enquire whether the complaint had been filed  with the requisite authority of the Reserve  Bank as required by s. 23(3)(b) of the  Foreign Exchange Regulation Act. It is only  at this stage that the Additional District  Magistrate would be called upon to make up  his mind whether he would take cognizance of  the offence. If the complaint was filed with  the authority of the Reserve Bank, as  aforesaid, there would be no legal bar to the  Magistrate taking cognizance. On the other  hand, if there was no proper authorization to  file the complaint as required by s. 23 the  Magistrate concerned would be prohibited from  taking cognizance. In the present case, as  the requisite authority had been granted by  the Reserve Bank on January 27, 1953, to file  a complaint, the complaint filed on February  2, was one which complied with the provisions  of s. 23 of the Foreign Exchange Regulation  Act and the Additional District Magistrate  could take cognizance of the offence which,  indeed, he did on that date. The following  observation by Das Gupta, J., in the case of  Superintendent and Remembrancer of Legal  Affairs, West Bengal v. Abani Kumar Banerji  [A.I.R. (1950) Cal. 437] was approved by this  Court in the case of R. R. Chari v. The State  of Uttar Pradesh [[1951] S.C.R. 312]:-  "What is taking cognizance has not been  defined in the Criminal Procedure Code  and I have no desire to attempt to  define it. It seems to me clear however  that before it can be said that any  magistrate has taken cognizance of any  offence under section 190(1)(a) Criminal  Procedure Code, he must not only have  applied his mind to the contents of the  petition but must have done so for the  purpose of proceeding in a particular  way as indicated in the subsequent  provisions of this Chapter - proceeding  under section 200 and thereafter sending  it for inquiry and report under section  202. When the magistrate applies his  mind not for the purpose of proceeding  under the subsequent sections of this  Chapter, but for taking action of some  other kind, e.g., ordering investigation  under section 156(3), or issuing a  search warrant for the purpose of the

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investigation, he cannot be said to have  taken cognizance of the offence."  It is, however, argued that in Chari’s case  this Court was dealing with a matter which  came under the Prevention of Corruption Act.  It seems to us, however, that that makes no  difference. It is the principle which was  enunciated by Das Gupta, J., which was  approved. As to when cognizance is taken of  an offence will depend upon the facts and  circumstances of each case and it is  impossible to attempt to define what is meant  by taking cognizance. Issuing of a search  warrant for the purpose of an investigation  or of a warrant of arrest for that purposes  cannot by themselves be regarded as acts by  which cognizance was taken of an offence.  Obviously, it is only when a Magistrate  applies his mind for the purpose of  proceeding under s. 200 and subsequent  sections of Chapter XVI of the Code of  Criminal Procedure or under s. 204 of Chapter  XVII of the Code that it can be positively  stated that he had applied his mind and  therefore had taken cognizance."

       A faint plea was made by learned counsel for the  respondent No.1 that the petition filed by the appellant was  not a complaint in strict sense of the term. The plea is  clearly untenable. The nomenclature of a petition is  inconsequential. Section 2(d) of the Code defines  "complaint" as follows:

"’Complaint’ means any allegation orally or  in writing to a Magistrate, with a view to  his taking action under this Code, that some  person, whether known or unknown, has  committed an offence, but does not include a  police report.

Explanation:- A report made by a police  officer in a case which discloses, after  investigation, the commission of a non- cognizable offence shall be deemed to be a  complaint; and the police officer by whom  such report is made shall be deemed to be the  complainant."  

       There is no particular format of a complaint. A  petition addressed to the magistrate containing an  allegation that an offence has been committed, and ending  with a prayer that the culprits be suitably dealt with, as  in the instant case, is a complaint.    

       In view of the aforesaid position in law, order passed  by the High Court is clearly unsustainable and is quashed.  The appeal is allowed.