Shree.
( Advocate.)
07 April 2008
Please go through this case held in supreme court :
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
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
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
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
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
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
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
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
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.
