Ram Babu Gupta And Another v. State Of U.P And Others

Palok Basu, J. -

The arguments ad­vanced by parties learned Counsel on the import of the provisions contained in Sec­tion 156 (3) read with other relevant provisions certainly touched great heights but luckily the timely ushering of a decision of the Apex Court has perforce reduced the controversies raised to a manageable extent.

2. It is happened that a Division Bench (of two of us, P. Basu and Hon. J.C. Gupta, J.) came across in the petition under Article 226 of the Constitution of India, of Ram Babu Gupta and Pramod Kumar Gupta an order dated 5-6-2000 (Annexure 6) passed in exercise of powers under Section 156 (3) CrPC by the Special Judge Dacoity Affected Area, Mampuri directing Station Officer to register a case and investigate. The prayer was that the said order be quashed and respondents Police Station Alau, Mainpuri and the in­formant Ved Prakash Dubey be restrained from arresting the petitioners in case Crime No. 900 of 2000, under Section 395 registered there in pursuance of the im­pugned order.

3. Shri J.S. Audichya, learned Coun­sel for the petitioner argued that the ap­plication of Ved Prakash Dubey requested the Magistrate to exercise only his powers under Section 156 (3) Cr PC direct the police to register the F.I.R. and investigate it. The argument proceeded that the Spe­cial Judge's order "S.O. ALAU KO NIRDESH DIYA JATA HAI KI MUKAD-DAMA DARJ KAR VIVECHNA KAREN" (Translation by Court: "The SO is directed to register the case and inves­tigate.") does not indicate application of mind, there was no power with the Magistrate to direct the registration of the case ; since there was no complaint within the meaning of section 2 of crpc, the aforesaid order could not have been passed in exerciseof the powers under Section 156 (3) CrPC. Reliance was placed on the decision of a Division Bench in Suraj Mai; 1993(30) ACC 81; 1995(2) JIC 1523 (All).

4. In a couple of days twenty petitions came to be filed with more or less similar prayers and in each matter it was noticed that either the challenge was to the Magistrate exercising powers under Sec­tion 156 (3) Cr. P.C. because there was no proper complaint or because there was nothing in the order which showed ap­plication of mind by the Court before directing police station to register and in­vestigate the case. Every time learned counsel came up with various decisions of this Court as well as other Courts, some of Single Judge and some of Division Bench on the question of existence or non-exist­ence of the power with the Magistrate to direct the police to register an F.I.R. with the police station. Some decisions also were cited indicating necessity of passing some such order as to indicate application of mind rather than only say "Registrar and investigate."

5. All the matters which came before the said Division Bench were clubbed together in a bunch, notices were issued to the respondents, counter-affidavits were called and the proceedings were stayed. Simultaneously, the matter was referred to a Larger Bench. The reason for the refer­ence was that the Division Bench in Suraj Mai (supra) took the view that where an application is moved before a Magistrate requesting only exercise of powers under Section 156 (3) Cr. PC., it could not be termed as a "complaint" within the mean­ing of Section 2 of Cr. P.C. The relevant portion of the judgment in Suraj Mai is quoted below: "A perusal of the application moved by respondent No. 2 clearly shows that his grievance before the learned Magistrate was against the police as on being approached his report was not recorded under section 154 of the code. After stating the injustice caused to him he prayed before the learned Magistrate that police be directed to register his case and investigate the same. The contention of the learned counsel for petitioners that the applica­tion moved by respondent No. 2 was a com­plaint thus is not correct. As it was not a com­plaint, there was no occasion for the learned Magistrate to adopt the procedure provided under Chapter XV of the Code...."

6. The Hon'ble Chief Justice has been pleased to refer the matters before this

Full Bench and this is how all these cases are up for hearing. Affidavits have in the meantime been exchanged between the parties and learned counsel have filed writ­ten arguments also. Yet another Division Bench of Hon. P.K. Jain and Hon. Lakshmi Bihari, JJ. also referred similar questions for consideration by Larger Bench. In a Criminal Revision, Hon. S.K. Agarwal, J. expressed the view that if the Magistrate deems it necessary, he may require af­fidavit of the informant while hearing an application praying for an order under Section 156 (3) Cr. P.C. Both these matters have also been heard by this Court. After a thread-bare discussion on the issues in­volved, judgment was reserved on 27-11-2000 after conclusion of the arguments. But before the matter could be listed for delivery of judgment, the decision of the Hon'ble Supreme Court dated 10-1-2001 in Suresh Chand Jain v. State of Madhya Pradesh and another was pronounced, sinre reported in J.T 2001 (2), page- 81 : 2001(1) JIC 740 (SC). After getting a copy of the said judgment through the Registry, the bunch of cases was fixed for further arguments in view of the decision mSuresh Chand Jain after which the judgment was reserved.

7. On behalf of the petitioners Sarva Sri J.S. Audichya, Nasiruzaman, Rajeev Sisodia, Dharmendra Singhal, Hasan Ahmad, Mohd. Ilyas, Akhileshwar Singh, V.P. Srivastava, Ajay Kumar, Naveen Yadav, M.C. Chaturvedi, S.C. Dwivedi, VK. Jaisawal, Km. Sunita Sharma, Kamal Singh Yadav, Jagdev Singh, Rakesh Prasad, C.K. Parekh, AC. Nigam, S.S. Yadav, Tapan Ghosh, Santosh Tripathi, R.K Srivastava and Akhileshwar Singh have been heard. Sri Dileep Kumar, Sri Viresh Misra, Sri Jagdish Tewari and Sri Gajendra Pratap have appeared and as­sisted the Court as amicus curiae. On be­half of the State of U.P. Sri P.M.N. Singh, learned Addl. Advocate General and Sri R.P. Dubey, Government Advocate, Sri A.K. Dwivedi and Sri Arvind Tripathi, Ad­ditional Government Advocates have been heard. On behalf of some of the in­formants Sri Hari Narain Singh, Shri S.K. Alam, Sri Rajeev Sharma, Sri J.P.S. Chauhan, Sri Virendra Singh, Sri Sunil Kumar and Sri L.M. Singh, Advocates have also been heard. The arguments advanced by the learned Advocates in­dividually may not now be necessarily mentioned for the reasons as will emerge from the discussion to follow. The Court expresses sincere appreciation for the valuable arguments advanced by the learned counsel.

8. It may be stated here that the Supreme Court has in Suresh Chand Jain harmonised sub-sections (1), (2) and (3) of Section 156 of the Cr. P.C. with the provisions contained in Sections 154 and 155 Cr. P.C. Major part of the controversy raised in the instant bunch of petitions has been thus settled in Suresh Chand Jain in that the Magistrate has power to direct registration of the case at the police station in the relevant diary and direct investiga­tion. It stands further laid down that even if the Magistrate does not expressly direct registration of the case but asks investiga­tion to be done by the police, the said order inheres in it the direction to register the case and then investigate. Reference to some of the observations in Suresh Chand Jain will be made a little later, suffice it to say here that now only two points survive for decision in this Full Bench which may be formulated as follows: -

(1) Should the Magistrate while exer­cising powers under Section 156 (3) Cr. P.C. be left to write cryptic orders "register and investigate", or "register and do need­ful" or "he has to investigate", or the like? or the Magistrate's order should prima facie indicate application of mind;

(2) Is the observation of the Division Bench in Suraj Mal (supra) correct when it says that when an applicant before a Magistrate prays only for registration and investigation of a case, such an application will not become "complaint" as defined in Section 2of the Cr. P.C?

9. It may be pointed out that the provisions of Section 156 (3) Cr. P.C. have stood the test of time. While the provisions in the sections or two preceding sub-sec­tions in Chapter XIII of Cr. P.C, 1898, has undergone changes by amendments, the aforesaid sub-section (3) remains as enacted in 1898 except chapter renum­bering. The view of Hon. Aston and Hon. Heaton, JJ. of Bombay High Court in Emperor v. Vishwanath Krishna Satlm, CUR Vol. IV183, which appears to be the earliest reported decision on the powers of a Magistrate under Section 156 (3) Cr. P.C. 1898, has been expressed as under: -

"If it was a cognizable offence, he had power under Clause 3, Section 156, Criminal Procedure Code, and if it was non- cognizable, he had this power because he was aware that I am competent to deal with the charge of kidnap­ping against accused No. 1......"

10. But another Division Bench of Hon. West and Hon. Birdwood, JJ. of Bombay High Court took a some what dif­ferent view In Re Jankidar Guru Sitaram, ILR Bombay Series, Vol. XIL161, which is quoted below: -

"Section 155 is conversant only with the powers of police officers, ..........It is not a proper course for a Magistrate, when a complaint is made before him of an offence of which he has taken cognizance, to refer the complaint to a police officer. He is bound, when the cir­cumstances giving him jurisdiction exist, to receive the complaint, and deal with it according to law. A different course would foster abuses, and defeat the purpose of the law, which is to give to persons, who have been injured, an ac­cess to justice independent of the police. The Magistrate, therefore, will take examination of the complainant, and proceed thereon accord­ing to law."

11. It may be noted here that the expression and the language existing in Section 155 of Cr.P.C. 1882 were the same as in Section 156 (3) Cr. P.C. of 1898, which is again the same as is now found in Section 156 (3) Cr. P.C. of 1973.

12. Except the aforesaid two and a very few more decisions of pre-in dependence era, the criminal digests are silent till 1950 about any Division Bench decision raising the issue of exercising of powers by Magistrate under Section 156 (3) Cr. P.C. It can, therefore, legitimately be presumed that the field of exercising power by requiring registration of a case and investigation by the police on the one hand, and, Magistrate's jurisdiction to enter tain-a complaint even where the police did not register the case for inves­tigation on the other, were well operating independent of each other. The provisions of Section 190 Cr. P.C. for taking cog­nizance of a case as a complaint case were not mixed up with matters/offences of grave implications or complexity of facts requiring exercise of Magistrate's power under Section 155 (3) Cr. P.C. even before taking cognizance on the complaint.

13. Coming now to noticing some decisions of the Apex Court, the first case wherein reference to Section 156 (3) Cr. P.C. exists is R.R. Chari v. State of U.E, AIR 1951 SC 207. The view of Calcutta High Court inAbani Kumar, AIR (37) 1950 Cal 437, has been quoted with approval which paragraph is reproduced below : -

"What is taking cognizance has not been defined in the Cr. P.C. 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), Cr. P.C. he must not only have applied his mind to the contents of the petition but he must have done so far 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 of fence."

14. In Gopal Das Sindhi and others v. State of Assam and another, AIR 1961 SC 986, it has been observed: - 'The provisions of section 190 do not 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. The word 'may' in reason is obvious. A complaint disclosing cognizable offences may well justify the Magistrate in sending the com-plaint.under Sectionl56 (3) to the police for investigation. There is no reason why the time of the Magistrate should be waisted 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.

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."

15. Various observations of the Hon'ble Supreme Court highlighting one or the other aspect inherent in Sections 154, 155 and 190, 200, 202 Cr. P.C. exist in several other cases such as State of Assam v. Abdul Noor, 1970 (7) ACC 299 (SC), Devarpalli Lakshminarayan Reddy, 1976 (13) ACC 230 (SC), Tula Ram \. Kishore Singh, 1977 (14) ACC 364 (SC), Gulam Abbas v. State of U.P., 1982 (1) SCC 71, Madhubala v. Suresh Kumar. 1997 (35) ACC 371 (SC); 1997 JIC 979 (SC). This Court is refraining from referring to those decisions in detail for the reason that in Suresh Chand Jain (supra) the decision in Gopaldas Sindhi (supra) has been quoted with approval. Tula Ram's case (supra) has also been referred to as reiterating the legal position as interpreted in Gopaldas Sindhi. The two paragraphs from Suresh Chand Jain may be usefully quoted now: - "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 a First Information Report. There is nothing illegal in doing so. After all registration of an First Information Report 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 First Informa­tion Report should be registered, it is the duty of the officer-in-charge of the police station to register the First Information Report 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 v. State of Haryana (supra) made refer­ence to two decisions rendered by this Court Gopal Das Sindhi and others v. State of Assam and another, AIR 1961 SC 986, and Tula Ram and others v. Kishore Singh, 1977 (14) ACC 364 (SC), 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 aforecited decisions. In Gopal Das Sindhi v. 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 congnizance 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 of 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." "In Tula Ram v. 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."

16. Having thus noticed the observa­tions aforesaid in Suresh Chand Jain, it may be desirable to revert to the fact in Suresh Chand Jain. The Magistrate in that case received a complaint submitted by the complainant and expressed his opinion that from the allegations therein serious offences were disclosed and the complaint was required to be investigated by the police and thus forwarded it to the police station with the direction to register the First Information Report and initiate in­vestigation and called a copy of the FIR immediately on registration of the case.

17. In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint, the Magistrate has lo apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go the police station for being registered and investigated. The Magistrate's order must indicate applica­tion of mind. If the Magistrate takes cog­nizance he proceeds to follow the proce­dure provided in Chapter XV of CrPC. The first question stands answered thus.

18. Coming to the second question noted above it is to be at once stated that a provision empowering a Court to act in a particular manner and a provision creat­ing a right for an aggrieved persons to approach a Court or authority, must be understood distinctively and should not be mixed up. While Sections 154, 155 sub­section (1) and (2) of 156, Cr PC confer right on an aggrieved person to reach the police, Section 156 (3) empowers a Magistrate to act in a particular manner in a given situation. Therefore, it is not pos­sible to hold that where a bare application is moved before Court only praying for exercise of powers under Section 156 (3) Cr PC, it will remain an application only and would not be in the nature of a com­plaint. It has been noted above that the Magistrate has to always apply his mind on the allegations in the complaint where he may use his powers under Section 156 (3) CrPC. In this connection it may be imme­diately added that wherein an application, a complainant states facts which constitute cognizable offence but makes a defective prayer, such an application will not cease to be a complaint nor can the Magistrate refuse to treat it as a complaint even through there be no prayer seeking trial of the known or unknown accused. The Magistrate has to deal with such facts as constitute cognizable offence and for all practical purposes even such an applica­tion would be a complaint. This Court can do no better than refer to the following observations in Suresh Chand Jain (supra)

"The position is thus clear. Any judicial Magistrate before taking cognizance of the of­fence can order investigation under Section 156 (3) of the Code.....could take further steps con­templated in Chapter XII of the Code only thereafter."

19. In view of the aforesaid discus­sion, the observations in the two para­graphs noted above is Suraj Mai (supra), cannot be said to be laying down correct law, therefore, those observations shall remain confined to the decision in Suraj Mai. The second point formulated above stands also answered thus.

20. Having noticed the relevant pronouncements from oldest to the latest one inSuresh ChandJain (supra), the legal position stands fully explained above and no other point remains to be decided. It is heartening to observe that now the Courts have before them distinct guidelines for proceeding according to law and hopefully there will be no occasion to refer to any supposed legal ambiguity.

21. It will be seen that most of the orders of the Magistrates or Courts as the case may be, are quite in accord with the aforesaid legal principles. Conclusions are backed up by reasons. But the stranger part is that in some of the matter wherein the Magistrates have passed cryptic and wrong orders police has on investigation filed charge-sheets. In some cases where the Magistrate's order was wrong the police on investigation has found that allegations are apparently false or wrong and have filed final reports. Therefore, in the case where the orders may not have been strictly, in accordance with law the police has com­pleted investigation and have filed either charge-sheet or final reports. Consequently, taking note of the settled legal principles all the cases listed together in the Bunch are being decided individually as under : - Criminal Misc. Writ Petition Nos. 3672 of 2000, Ram Babu Gupta and another v. State of U.P. and others.m ,3533 of 2000, Mohd. Ames and others v. State of U. P. and others. ,3610 of 2000, Pavitra and others v. State of U.P. and others. 4109 of 2000, Mahipal Singh @ Megha Singh and another v. State of U.P. and another. 4110 of 2000, Parmeshwar Singh v. State. 4560 of 2000, Ram Chandra Shukla and another v. State of U.P. and another.

22. In these cases charge-sheets have already been filed rendering these infruc-tuous. The stay orders have already been vacated on an earlier date, al these peti­tions are thus dismissed. Criminal Misc. Writ Petition Nos. 3626 of 2000, M.K. Saini v. State of U.P. andothers 4350 of 2000, Virendra Kumar Gupta and others v. State of U.P. and others. 4462 of 2000, Salyendra Kumar and othersv. State of U.P. andothers 4010 of 2000, Ghulam Nabi and others v. Slate of U.P. and others.

23. In these cases final reports have been filed consequently all these petitions have become infructuous and they are ac­cordingly dismissed. Inter in stay order standvacatcd. Criminal Misc. Writ Petition No. 3788 of 2000, ShahidAli Siddiqui v. State of U.P. and others.

24. The informant's application con­tained necessary facts which prima facie disclosed cognizable offences. The order of the Magistrate is a reasoned one. The petition is dismissed and interim stay order is vacated. Criminal Misc. Writ Petition No. 4227 of 2000, Smt. Kiran Devi another v. State of U.P. and others.

25. On the application of the inform­ant, the Magistrate has by a reasoned order dated 24-5-2000, directed investigation to be made by the police after registering the case. There is no error in the order. The accused have gone in revision against the Magistrate's order before the Sessions Judge, Kanpur Nagar and simultaneously have preferred this Writ Petition which is not permissible under the law and ob­tained stay orders in both the remedies. This petition is, therefore, dismissed. The stay order is vacated. The interim stay order passed by the Sessions Judge, Kan-pur Nagar is also vacated. Criminal Misc. Writ Petition No. 4228 of 2000, Arvesh and others v. State of U.P. andothers.

26. There is no error in the order of the Magistrate which is a reasoned one. The writ petition is consequently dis­missed. Stay order is vacated. Criminal Misc. Writ Petition No. 4277 of 2000, Dori Lal v. State of U.P. and others.

27. Before passing the impugned order dated 8-7-2000 the Magistrate called for a report from the police and thereafter directed registration of the case. There is no error in the order. The writ petition is dismissed. Stay order is vacated. Criminal Misc. Writ Petition No. 4387 of 2000, Amar Singh and others v. S.P. and others.

28. The order dated 31-1-2000 passed by the Magistrate indicates application of mind through which registration of the case and investigation was directed. The writ petition is, therefore, dismissed. Stay order is vacated. Criminal Misc. Writ Petition No. 4392 of 2000, Mahesh Kumar Pawar v. State of U.P. and others.

29. The Magistrate called for a report from the police and thereafter directed registration of the case. There is no error in the order. The writ petition is consequent­ly dismissed. Stay order is vacated. Criminal Misc. Writ Petition No. 4393 of 2000, Smt. Saroj and others v. State of U.P. and others.

30. The order dated 22-6-2000 is a detailed and reasoned order. There is no error in the order. The writ petition is therefore, dismissed. Stay order is vacated. Criminal Misc. Writ Petition No. 4402 of 2000, Smt. Saroj Devi and others v. State of U.P. and others.

31. The case was registered as non-cognizable case. Objections were taken to the Court. By the impugned order dated 16-5-2000 the Judicial Magistrate directed registration of the case and investigation. There is no error in the order. The writ petition is dismissed. Stay order is vacated. Criminal Misc. Writ Petition No. 4484 of 2000, Ganga Ram and others v. State of U.P.andothers.

32. The order dated 14-5-2000 is detailed and reasoned order. There is no error in the order. The writ is consequent­ly dismissed. Stay order is vacated. Criminal Misc. Writ Petition No. 4514 of 2000, Abdul Salam v. State of U.P. and others.

33. The Magistrate by order dated 22-3-1999 had prayer of the respondents to direct investigation under Section 156 (3) Cr PC. By the subsequent order dated 15-7-2000 he reviewed his order and directed registration of the case. The al­legations prima facie show long standing civil dispute between the parties. The sub­sequent order is passed on materials. There is no error in the order. The writ petition is, therefore, dismissed. Stay order is vacated. Criminal Misc. Writ Petition No. 4587 of 2000, Jharing Yadav and others v. State uf U.P. and others.

34. Registration of the case was directed after obtaining report from the police station concerned. There is no error in the order. The writ petition is dismissed. Stay order is vacated.

Criminal Misc. -Writ Petition No. 5143 of 2000, Virendra and others v. State of U.P.and others.

35. The order of the Court i| a reasoned one. There is no error in the order. The writ petition is consequently dismissed. Stay order is vacated. Criminal Misc. Writ Petition No. 5442 of 2000, Santosh Kumar Tripathi v. State of U. P. and others.

36. The order of the Chief Judicial Magistrate was based on the report ob­tained from the police station concerned. There is no error in the order.

37. The writ petition is dismissed. Stay order is vacated. Criminal Revision No. 1466 of 2000, Dinesh Chandra & Ors. v. State of U.P. The order dated 2-7-1997 is a reasoned one. There is no error in ths order. The revision is dismissed. Stay order is vacated.

Ratnakar Dash, J. -

I have had the advantage of reading the judgrrcnt oi Hon'ble Palok Basu, J. Since the question raised in this case is of some importance, it may be helpful if I explain the views that I have taken to reach .the conclusion. Though no specific question was formu­lated by the Division Bench while referring the matter to larger Bench, however, in course of hearing I find that the moot question for consideration is about the scope and ambit of power of the Magistrate under Section 156 (3) of the Code of Criminal Procedure (in short 'the Code'). Before start with, I would like to observe that I fully endorse the views and ultimate conclusion arrived at by Hon'ble PalokBasu.

39. Crime detection and the adjudica­tion are two inseparable wings of justice delivery system. While crime detection is exclusive function of the police, judiciary is the final arbiter of the guilt or otherwise, of the person charged with the offence. To sustain the faith of people in the efficacy of the whole system investigative agency should work efficiently, impartially and uninfluenced by any out side agency how­ever, powerful it may be. For an orderly society importance of the police cannot be denied. But there have been serious com­ments on their functioning and their im­partiality has been doubted, as because they are not independent and are under the sur­veillance and control of the Executive. It is very often complained that when a person having suffered at the hands of others goes to the police to ventilate his grievance and to bring the offenders to book he is not treated with human touch and his report is not accepted. Apathy shown by the police leads to distrust and ultimately the person aggrieved looses self-control as a result he adopts retaliatory measure and takes law into his own hand in punishing the culprit. This leads to social chaos.

40. Duties of police and their power to investigate are enumerated in Chapter XII of the Code under caption "Informalion to the police and their powers to investigate". So when a report either on oral or written made to the officer-in-charge of a police station discloses commission of a cognizable offence, it is obligatory on him to register a case and proceed with the investigation. In the event he refuses to receive the report and shows indifference to perform statutory duties, the only alter­native course available to the aggrieved person is to approach the Court of law. He makes a complaint giving detail narration of the incident terming it either a petition under Section 156 (3) of the Code or a regular complaint. On receiving of such complaint, different courses are open to the Magistrate he may with the aid of power conferred by Section 156 (3) direct the police to register a case and investigate in the manner as provided in Chapter XII or he may treat the same as complaint and proceed in the manner contemplated in Chapter XV of the Code. While resorting to the first mode inasmuch as directing the police for investigation he should not pass order in a routine manner. He should apply his judicial mind and on a glimpse of the compliant, if he is prima facie of the view that allegations made therein con­stituted commission of a cognizable of­fence requiring thorough investigation, he may direct the police to perform their statutory duties as envisaged in law. On the other hand if he adopts the second mode in terms of Chapter XV, his decision cannot be faulted with for not acceding to the request of the complaint for an investiga­tion by the police. However, it is always to be kept in mind that it is the primary duty of the police to investigate in cases involv­ing cognizable offences and aggrieved per­son cannot be forced to proceed in the manner provided by Chapter XV and to produce his witnesses at his cost to bring home the charge to the accused. It is the duty of the State to provide safeguards to the life and property of a citizen. If any intrusion is made by an offender, it is for the State to set the law into motion and come to the aid of the person aggrieved.

41. Exercise of power under Section 156 (3) of the Code by the Magistrate may be viewed from another angle. Direction for further investigation can be given even after the investigation culminates in sub­mitting a report under Section 173. To state precisely the Code enjoins a duty upon Officer-in-charge of police station to register an FIR if the report reveals com­mission of a cognizable offence. There­upon, he shall proceed with the investiga­tion in such manner as provided in the Code and on close of investigation submit a report which may either be in the nature of charge-sheet or Final Report. If the investigation ends with final report, dif­ferent courses are open to the Magistrate. He may either accept the final report and close the proceeding or he may take the view that the said report is not based on complete investigation in which case he may in exercise of power conferred by Sec­tion 156 (3), direct the police concerned to make further investigation. The third course open to him is that he is not agree­ing with the views of the investigating of­ficer may on scrutiny of the case diary take cognizance of the offence (See Abhinan-dan Jha and others v. Dinesh Mishra; 1967(4) ACC 306 (SC)). These are in es­sence the scope and ambit of power of the Magistrate under Section 156 (3) of the Code.

J.C. Gupta, J. -

I have had the pleasure of going through the judgments of my learned brothers Hon'ble Palok Basu and Hon'ble Ratnakar Dash, JJ. At the outset I may state that I am in full agreement with the order of Hon'ble Palok Basu, J. disposing of the writ peti­tions referred to this Full Bench. I further concur with the reasoning aptly advanced by brother Palok Basu, J. while dealing with the matter in controversy. I will, how­ever like to add a few words of mine.

43. Section 156 (3) of the Code of Criminal Procedure occurs in Chapter XII under the caption "Information to the Police and their powers to investigation." Section 156 of the Code 1973 reads as under:

156. Police officer's power to investigate cognizable case. - "(1) Any officer in charge of police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area with in the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) 'Na proceedings of'a'police officer in any such1 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 as .investigation as above mentioned."

44. Thus, the provisions is substan­tially the same as Section 156 of the old Code 1898 excepting that in sub-section (1) for the word "Chapter XV" relating to the place of "inquiry or trial" the words "Chapter XIII" have been substituted.

45. Il is clear from the scheme of Chapter XII of the Code that it is obligatory upon the police to investigate cognizable offence and book the offender, if any. Therefore, where the police fails in its duty to register and investigate a cog­nizable offence the aggrieved person may complain to the concerned Magistrate. Where the Magistrate receives a com­pliant or an application which otherwise fulfils the requirements of a complaint - envisaged by Section 2 (d) of Cr PC and the facts alleged therein disclose commission of an offence, he is not always bound to take cognizance. This is clear from the use of the words may take cognizance which in the context in which they occur in section 190 of the code cannot be equated with must take cognizance. The word 'may' gives a discretion to the Magistrate in the matter. Two courses are open to him. He may either take cognizance under Section 190 or may forward the complaint to the police under Section 156 (3) Cr PC for investigation. Once he takes cognizance he is required to embark upon the proce­dure embodied in Chapter XV On the other hand if on a reading of complaint he finds that the allegations therein clearly disclose commission of a cognizable of­fence and forwarding of complaint under Section 156 (3) Cr PC to the police for investigation will be conclusive to justice and valuable time of Magistrate will be saved in inquiring into the matter which was the primary duty of police to inves­tigate, he will be justified in adopting that course as an alternative to take cognizance of the offence himself. An order under Section 156 (3) Cr PC is in the nature of a reminder or intimation to the police to exercise their full powers of investigation under Section 156 (1) Cr PC such an inves­tigation begins with the collection of evidence and ends with a report or charge-sheet under Section 173. It is obvious that powers to order investigation under Sec­tion 156 (3) is different from the power to direct investigation conferred by Section 202(1). The two operate is distinct spheres at different stages. The power under Sec­tion 156 (3) is exercisable at a pre- cog­nizance stage while the other at post-cog­nizance stage. Once the Magistrate has taken cognizance of the offence, it is not within his competence to revert back to pre-cognizance stage and invoke Section 156 (3) CrPC. A great care is therefore, to be taken by the Magistrate while deciding the course to be adopted. That discretion has to be exercised cautiously with applica­tion of judicial mind and not in a routine and mechanical manner.

46. With these added words, I entirely agreed with the judgment of Hon'ble Palok Basu, J. and have no comments to make on the observations made by brother Hon'ble Ratnakar Dash, J. in a separatebut concurring judgment.

W. P. a [lowed.]