S.K. Agarwal, J.-

This revision has been filed by the applicants challenging the order directing the registration and investigation of the allegations made in the application of the opposite party by Magistrate dated 2-7-97. I have admitted this revision and directed the same to be connected with these 4 writ petitions which were referred to for consideration by a larger bench comprising of 3 or more judges of this Court. The reference was made by Hon'ble Palok Basu and Hon'ble J.C. Gupta, JJ.

2. On an examination on of the refer­ence order what I could gather from the paragraph “In order words if it is possible to hold that Madhu Bala lays down as a matter of Rule that a mere application which will not be or may not be a complaint as envisaged by the provisions of Section 200/190 C.P.C. also has to be registered and investigated just because a Magistrate pas­ses such an order, then only the orders of the Magistrate Courts in these four writ petitions can be sustained. If it is not pos­sible to hold what has been stated above and the emphasised portion from the para­graph quoted above is taken to be the real legal proposition following from the Supreme Court Judgment, then it must be held that unless the Court/Magistrate had before it a complaint filed within the meaning of Sections 200/190 Cr.P.C. he could not have directed registration of the case at the respective police station and investigation therein by the police station concerned.”

3. What could be gathered from the contents of this paragraph is whether a complaint as required by Sections 200/190 Cr.P.C. is a must before any Magistrate could direct the registration of the case for its consequent investigation by the police as required under Section 156(3). Since no straight question has been framed, I am left with no option but to read between the lines the real intention of the referring order from this paragraph alone. No other paragraph furnish any clue towards the mind of the bench otherwise. This par­ticular question was posed by the bench for consideration to a larger bench deriving a portion from the judgment of the apex Court. It is reported in Madhubala v. Suresh Kumar. This decision was reported in various journals.

4. Now what is to be examined is the intent of the apex Court while referring and reiterating the term “complaint” in these quoted lines. As defined in Section 2(d) “complaint” means any allegation made 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”. The ex­planation appended to u has also some relevance. It reads thus” A report made by a police officer in a case which disclosed after investigation the commission of a non cognisable 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”. Thus what does a complaint mean is made abundantly clear by the definition and the explanation ap­pended thereto. It clearly indicates that a complaint is nothing but an application con­taining allegations regarding commission of a cognizable offence made orally or in writ­ing to a Magistrate for initiation of an action against the offenders. These persons maybe known or unknown. It clearly excludes from its purview police report Le. charge-sheet. This provides clearly that a report submitted by a police officer under Section 173(2) of Cr. P.C. cannot be treated a complaint except as provided by the explanation ap­pended to Section 2(d) Cr. P.C.

5. The police normally submits report under Section 173(2) of Cr.P.C. after completing exercise of the collection of evidence and afterwards on an evalua­tion of all evidences so collected when it comes to a conclusion that a cognizable, offence is disclosed from the evidence so collected. This exercise is undertaken only after the registration of a case under Sec­tion 154(1) of Cr. P.C. In this context the meaning of term” investigation” as defined in Section 2(h) also assumes significance. The definition is quoted as under:

“Investigation includes all the proceeding under this code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.”

6. Here reference to Section 2(i) is also necessary which defines judicial proceeding. Accordingly Judicial proceeding-includes any proceeding in the course of which evidence is or may be legally taken on oath”. This definition does not refer to the term cognizance and it does not define what a trial is but it com­prehends them very well. Chapter 14 deals with the procedure in which judicial proceedings may be initiated. section 190 (1) (a) clearly deals with the stage regard­ing initiation of a proceedings when a 'complaint' is received. I am quoting the language of this Section as it is for an easy reception of the meaning of the term com­plaint: 190 (1) (a); upon receiving a com­plaint of facts which constitute such of­fence” Once it is read in consonance with the definition of complaint given under Section 2(d) it does not remain any more latent that a complaint has to contain (a) facts which constitute an offence (b). It is to be made to a Magistrate and (c) 'for initiation of proceedings in a Court of law against the offenders in accordance with generally the provisions of Code of Criminal Procedure. Chapter IVX thus empowers a Magistrate to take cognizance of such offence or offences reported orally or in writing with a view of take suitable action on it. Chapter 15 deals with the procedure to be adhered to in such com­plaints by Magistrates, Sections 200, 201, 202 and 203 deal with the preliminary stage after cognisance is taken in accord­ance with Section-190(1) (a) Cr. P.C. on any complaint. It culminates under Sec­tion 203 with the dismissal of that com­plaint in which cognizance was taken and evidence was recorded under Sections 200 and 202. The proceeding effectively com­mences before the Magistrates when the question of issue of process crops up under Section 204(1).

7. According to this sub-section the cognizance as envisaged under Chapter 15 was already taken under Chapter VIX and evidence collected. On scrutiny of such an evidence if the Magistrate finds sufficient ground for proceeding then only he has to decide whether the case is to be tried as a summon case under sub- clause (a) or a warrant case under sub-clause (b). Sub­section 2 lays down a bar to issuing of summons or warrant against any accused till a list of the prosecution witnesses is submitted by the complainant. It further prescribes under sub-section (3) that any proceeding instituted by the Court on a complaint made in writing, summons or warrant issued under Section 204 (1) shall be accompanied by a copy of such com­plaint. Thus from the provisions of these two Chapters (15 and 16) no room for any doubt remain that the complaint as con­templated by Section 2(d) and Section 190 (1) (a) is an application containing facts which constitute an offence and brought before a Magistrate with an intention to initiate proceeding against the offenders for such offence as is disclosed from the facts it contains. It, thus obtains its nomenclature 'complaint' from the occur­rence of above facts and situations i.e. prin­cipally intention to initiate prosecution.

8. Section 2 (d) clearly further also includes a report made by a police officer in a case which discloses after investigation an non cognisable offence. Thus the report submitted by a police officer for a non cognisable offence is also to be admitted, as a complaint and such police officer to be called the complainant.

9. Thus the scope of the 'complaint' is much wider and enlarged than an applica­tion moved before a Magistrate for direct­ing an investigation on the facts alleged therein. In the nutshell this is a clear dis­tinction to be drawn between an applica­tion under Section 156(3) Cr.P.C and a complaint. It is also required to contain the allegations constituting a cognizable offence if it is made to a Magistrate and the Magistrate has the authority to apply its mind only to this extent before command­ing the police to register and investigate. So far as a complaint before the Court is concerned it may disclose a cognizable or a non cognizable offence.

10. Here let us pause and consider the heading of Chapter XII and caption to Section 154 (1) Cr.P.C. Section 154(1) is quoted for ready reference as under:

= “154. Information in cognizable cases.-(1) Every information relating to the commission of a cognizable offence if given oral­ly to an officer in charge of a police station, shall be reduced to writing by him or under his direc­tion, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, 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.”

11. Let us also examine the title of Chapter XII- It reads, “information to police and their power to investigate.”

12. Let us examine for ourselves whether this Section prescribes any format at all for communicating such information regarding the commission of a cognizable offence to a police officer. Plainly speaking it does not. It comprehends both oral in­formation as well as written information. What in essence is necessary under this Section is that such information must dis­close the commission of a cognizable of­fence. This constitutes the basic ingredient to roll the law into motion. In other words a direction for the registration of the case by the police and pursuance of the inves­tigation. One thing more is there in com­plete contrast to the maker of a complaint, the person passing such an information on to a police officer is called 'Informant' and not 'complainant'. Rest of this Section deals with procedure. He still remain an informant and will not become com­plainant simply by communicating such an information either orally or in writing to a Magistrate for a command to police to investigate these allegations. For this pur­pose the procedure shall remain the same i.e. 154 (1) Cr. PC. It stands exactly in the footsteps of an order passed by a Superin­tendent of Police under Section 154(3) Cr. P. C. This order is more or less in the nature of an executive (administrative) exercise by a Judicial Magistrate empowered to take cognizance of such cognizable cases as contemplated by Section 156(1) Cr. PC.

13. Now coming to Section 156 (3) which also is a part of Chapter XII like Section 154. We find certain similarity in these two sections. For enumerating them let us examine Section 156(1) and compare it with Section 154(1). It is necessary to quote this Section for realising its import;

156. Police officer's power to investigate cognizable case.-(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 (1), thus, does not call for any logic. What it wants to convey is loud and clear. It clearly imparts following factors:

(i) Power to investigate any cognizable case is vested unfettered in the incharge of a police station once he has the information of such a case (offence).

(ii) No order of any Magistrate is required by him to do so.

(iii) The case should be one of a police station the local area of which is under the juris­diction of a Judicial Magistrate who can inquire into or try the same under the provisions of Chapter XIII.

(iv) It thus recognises the authority of a judicial Magistrate and none else.

14. So far as Section 156 (3) is con­cerned it has to be read alongwith Section 154(1) and Section 156 (1) Cr. P.C. In does not vest in a police officer anything a-new. It clearly proceeds to declare that it is a cognizable case that is registered and in­vestigated under Section 154(1). It further clarifies that the power to investigate is inherent in the incharge of a police station and it is not servient to any order from a Court of law.

15. It is, therefore, abundantly clear from the above analysis that the applica­tion given under Section 156(3) has only a limited purpose i.e. to seek the inter­ference of the Court concerned Judicial Magistrate for an order to the police to register and investigate the cognizable case, facts of which are disclosed in such an application. Such an application is never meant for cognizance under Section 190' Cr. P.C. or for drawing of proceedings under Chapter XV and XVI. The moment application discloses such an intention both the courses shall be open for the Magistrate either to proceed under Sec­tion 190 (l)(a) CrPC or to order investiga­tion under Section 156 (3) Cr. P.C. In this situation the Magistrate has freedom to choose meaning thereby he has to apply himself before deciding to adhere to anyone of the two courses otherwise if only prayer is to order investigation, the Magistrate has very little left for himself. He will only examine from the facts con­tained in that application whether it dis­closes a cognizable case or not. If it fulfills this requirement he is to issue such an order, beyond this there is no scope for any application of mind for any other purpose.

16. Suppose the Magistrate comes across, 'an application which only dis­closes 'that' a dead body is lying at X-place with injuries on its person. The concerned police refuses to take any notice of it'. What the Magistrate is required to do? The Magistrate has no option but to for­ward this application with an order to 'register and investigate to the police sta­tion concerned wherein the dead body is lying.

17. Therefore the similarly between an application under Section 156(3) and a complaint is that both comprise the allega­tions constituting a cognizable offence. A complaint means disclosure of a cog­nizable offence or offences with a request to the Magistrate for taking cognisance and proceeding further to take that cog­nizance to its logical end i.e. discharge, conviction or acquittal. An application under Section 156(3) Cr. P.C. just desires an order for police to investigate and nothing more. It falls short of a complaint here.

18. The intention of the apex Court in paragraph 11 as quoted by the bench making the impugned reference compris­ing of Hon'ble Palok Basu and Hon'ble J.C. Gupta, JJ. was never to give any dif­ferent meaning to the term 'complaint' so as to encompass not only Section 190/200 but also Section 156 (3) Cf. P.C. As a matter of fact the Apex Court was right in using this term 'complaint' in its judgment. It was actually dealing with the ap­plicability of two judgments, Gopal Das Sindhi v. State of Assam (AIR 1961SC988) and Tula Ram v. Kishore Singh (AIR 1977 SC 2406 as it has found that these two judgments (supra) have no relevance to the facts of the case i.e. Madhubala v. Suresh Kumar and others, AIR 1997 SC 3104. Moreover in the above cases, Gopal Das and Tula Ram, there were complaints before the Court for cognizance under Section 190(1) and the Magistrates in­stead of initiating proceedings under Sec­tion 190 (1) (a) directed investigation under Section 156(3) Cr. P.C. In Madhubala's case also there were two complaints, one before C.J.M., Kurukshetra and another before C.J.M., Karnal. In both the complaints orders under Sec­tion 156(3) Cr. P.C. were passed i.e. at pre-cognizance stage itself. In this context the Apex Court was dealing with the ques­tion whether under Section 156(3) Cr. P.C. a Magistrate can only direct investigation by the police and has no power to direct a registration of the case, as decided by Pun­jab and Haryana High Court. The finding of the Apex Court is that registration of a case is a duty of the police before it can take up the case for investigation. Since the Apex Court was dealing with cases where complaints as recognised by section 190(1) (a) were brought before the Magistrates and at the precognizance stage the Magistrates ordered them to be investigated. The Apex Court in this man­ner and sense used in its judgment the word 'complaint'. No word can be shorn of out of context from any decision to come td a positive conclusion so as to change com­pletely the intent of the legislature for restricting or curtailing the right of the people. The legislature has not con­templated this inference in any simple manner and therefore has not provided any format for the same. How can any Court in its over zealousness envisage to give such a meaning to the application under Section 156(3) Cr. P.C. especially when these Chapters are enacted to give effect to two different obligations. Chap­ter XII simply deals with information of cognizable cases and power to investigate of a police officer. It does not intend to traverse beyond it.

19. The power under Section 156(3) is in essence different from the power to be exercised by the Magistrate under Chapter 15 or Chapter 16. Once this power is exer­cised as contemplated by above two chap­ters, the Magistrate has no option but to proceed with the case and either dismiss that complaint if he finds that the allega­tions have no substance under Section 203 or issue process under Section 204 (1) Cr. P.C. against the accused if there is suffi­cient ground to proceed. He cannot revert back to the provisions under Section 156 (3) Cr. P.C. once he has adhered to first of the above two courses. This is abundantly clear from the decision of the Apex Court in “Veerapalli's case.” What is most impor­tant is that whether it is an application or a complaint, it must contain the facts that give rise to a cognizable case (offence), only then a Magistrate is competent to either take cognizance or to order the matter for inves­tigation to the police as the situation may be and the police in such a situation has to register and investigate it treating that ap­plication or complaint as an F.I.R. under Section 154(1). The powers under Section 156(3) are entirely different and distinct from the powers conferred upon a Magistrate by Section 190 or Section 200 Cr. P. C. They cannot be read conjointly.

20. In view of the foregoing discus­sions what is essential for the exercise of the power under Section 156(3) is that the application must disclose the commission of a cognizable ease and the facts given therein relate to commission of a cog­nizable offence. If that is there the Magistrate has to order investigation.

21. The Magistrate even in the case of a complaint, requesting him to take action against the offender, may also exercise this option. There is no bar to his doing this but it can be done at a precognizance stage and not after cognizance is taken by him. We cannot take the sheen of the word com­plaint the Apex Court has used in its decision to elaborate and discuss a par­ticular situation so as to give a completely different texture to a particular provision viz. 156 (3) Cr. P.C. no straight jacket for­mat or terminology is desired by legisla­tion because it has no bearing upon the order to be passed under Section 156(3) Cr. P.C. After such an order is passed the police has to follow the course prescribed under Section 156(1) before it takes on its investigation.

22. The Apex Court has definitely not used the term complaint to thwart or defeat the purpose behind the enactment of Section 156(3) itself. The term was never used with any intention that the refer­ence order appears to channelise. Thus in my view it should be an application and not a complaint. This application must dis­close a cognizable case. As a matter of abundant precaution we may require such an application to be accompanied by an affidavit of the applicant.