| Citation | Madhu Bala v. Suresh Kumar (1997) 8 SCC 476 |
| Keywords | |
| Facts | Special leave granted. Heard the learned counsel for the parties.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 se tion 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 sameJanuary 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 se tion 156(3)of the Code for registration of a case and investigation |
| Issues | 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)]. |
| Contentions | |
| Law Points | 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 (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.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)] 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 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 the officer in charge of the Police Station is required under. Section 173(2)o 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. |
| Judgement | 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 |
| Ratio Decidendi & Case Authority |
Full Case Details
M. K. MUKHERJEE, J. – On 18-2-1988, the appellant filed a complaint against the three
respondents, who are her husband, father-in-law and mother-in law respectively, before the
Chief Judicial Magistrate, Kurukshetra alleging commission of offences under Sections 498-A
and 406 of the Indian Penal Code (IPC 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 of investigation submitted charge-sheet (police report) against the three respondents
under Sections 498-A and 406 IPC. The learned Magistrate took cognizance of the said chargesheet and thereafter framed charge against the three respondents under Section 406 IPC only
as, according to the learned Magistrate, the offence under Section 498-A IPC 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.
3. Thereafter on 29-1-1994 the appellant filed another complaint against the respondents
under Section 498-A 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 order, 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 498-A IPC. 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.
4. While the above two cases were being tried, the respondents filed petitions under Section
482 of the Code before the Punjab and Haryana High Court for quashing of their proceedings
on the ground that the orders passed by the 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
judgement it quashed the orders of the Chief Judicial Magistrates of Kurukshetra and Karnal
dated 18-2-1988 and 29-1-1994 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 judgements of this Court In Gopal Das Sindhi
v. State of Assam [AIR 1961 SC 986] and Tula Ram v. Kishore Singh [AIR 1977 SC 2401]
and some judgments of the Punjab and Haryana High Court which, according to it, followed
the above two decisions of this Court.
5. 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 and Tula Ram have no relevance whatsoever to the interpretation or
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purport of Section 156(3) of the Code. The earlier judgments of the Punjab and Haryana High
Court, which have been followed in the instant case also suffer from the above two infirmities.
6. 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
a 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 in charge of a 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 a book to be kept by such officer in such form
as the State Government may prescribe in this behalf.
7. 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 in that Chapter 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).
8. 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 subsection (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 a “police report” in view of the definition of
“complaint” referred to earlier and since the investigation of a “cognizable case” by the police
under 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 is known as the first information report (FIR). As
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under Section 156(1), the police can only investigate a cognizable “case”, it has to formally
register a case on that report.
9. 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. The other requirements of
the said Rules need not be detailed as they have no relevance to the point at issue.
10. From the foregoing discussion it is evident that whenever a Magistrate 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 unsustainable. Indeed,
even if a 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, do 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.”
11. 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’ the facts were that on receipt of a complaint
of commission of offences under Sections 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 it 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 1 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 dismissed 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 were 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 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 administrative action,
presumably because Mr. Thomas was the Magistrate before whom ordinarily complaints were
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to be filed. The case of Gopal Das 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.
12. In Tula Ram case, 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
155(3) of the Code and on receipt of the “police report” from the police can issue notice to the
complainant, record his statement and the statements of other witnesses and then issue process
under Section 204 of the Code. From the question itself it is apparent that the said case related
to a stage after the 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 and Haryana High Court referred to by the
learned Judge in the impugned judgement need not be discussed in detail for they only lay down
the proposition 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 FIR. 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.
13. On the conclusions as above we set aside the impugned judgement and orders of the
High Court and direct the Magistrates concerned to proceed with the cases in accordance with
law. The appeals are accordingly allowed.
