Criminal Procedure; Keshri Singh Vs. State [Madhya Pradesh High Court, 04-11-2016]

Criminal Procedure Code, 1973At the stage of taking cognizance the complaint and documents filed along with the complaint are to be perused but the material brought on record by the accused cannot be looked into at the stage of cognizance.

Criminal Procedure Code, 1973 –¬†Magistrate Court has ample discretion to either first refer the case to police under Section 156(3) CrPC or to take cognizance without giving any direction under Section 156(3) CrPC. The competent court after receipt of the report may drop the action by holding that there is no sufficient ground for proceeding further or he may take cognizance on the basis of original complaint and proceed to examine the complainant and his witnesses¬†under Section 200, CrPC.

Magistrate

HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR

BEFORE JUSTICE S.K.AWASTHI

04.11.2016

Misc. Cri. Case No.5289/2014

Keshri Singh and others

Versus

State of Madhya Pradesh and another

Shri Shishir Saxena, learned counsel for the applicants; Shri R.D.Agarwal, learned Panel Lawyer, for the respondent
No.1/State. Shri Deependra Raghuvanshi, learned counsel for the respondent No.2.

ORDER

This application under

Section 482 of the Code of Criminal Procedure, 1973

(for brevity, the ‘CrPC’), has been filed by the applicants for assailing the order dated 28.4.2014, passed by the First Sessions Judge, Guna in Criminal Revision No. 97/2013, whereby the order dated 20.3.2013 passed in Criminal Case No.501/2013 by Judicial Magistrate First Class (JMFC) Guna for taking cognizance on the private complaint filed by the respondent No.2 has been affirmed.

2. The facts of the case which are relevant for deciding the present application are that the respondent No.2 made an information to the Police Station Cant, District Guna regarding the alleging commission of offence punishable under

Sections 147, 148, 149, 447, 323, 294, 506-B of Indian Penal Code, 1860

(for brevity, the ‘IPC’), however the police did not act in furtherance to the complaint prompting the present applicants to take recourse to the remedy of filing complaint under

Section 200 of the Code of Criminal Procedure, 1973

(for brevity, the ‘CrPC’) before the competent court of JMFC, Guna.

3. The complaint was presented on 28.6.2011 before the Chief Judicial Magistrate, Guna. Thereafter the statement of the complainant as well as other witnesses called by the complainant were recorded to enable the concerned Magistrate to consider taking cognizance on the complaint. After recording the statement, Chief Judicial Magistrate Guna vide its order dated 20.3.2013 issued process against the present applicants upon finding prima facie case for the offence punishable under Sections 147, 148, 294, 323 IPC and in alternative Sections 323/149 and Section 506 Part-II of IPC.

4. Feeling aggrieved by such cognizance by Chief Judicial Magistrate, Guna, a revision application was filed before the Court of Additional Sessions Judge, Guna which was registered as Criminal Revision No.97/2013 and the final order dated 28.4.2014 was passed, whereby the revision application has been dismissed on the ground that the contentions raised are in nature of defence to be offered by the present applicants, which cannot be considered at this stage and will be available to the present applicants during the course of trial.

5. The order dated 28.4.2014 is subject matter of challenge before this Court in the instant application.

6. The contention of the present applicants is that the respondent No.2 in his complaint did not disclose the fact regarding the FIR, which was already registered against the complainant as well as his family members for assaulting the present applicants. In this manner there is clear suppression of material fact which is ground enough to set aside the order of Chief Judicial Magistrate, District Guna of taking cognizance against the present applicants. Another submission which has been canvassed by the applicants is that the Chief Judicial Magistrate ought to have referred the complaint filed by the complainant to the concerned police station in terms of Section 156 (3) of CrPC and by not following this procedure before taking cognizance the Chief Judicial Magistrate has committed grave error in law and, therefore, the present application deserves to be allowed. While canvassing these contentions, learned counsel for the applicants has relied on the judgment of Apex Court in the case of

State of Haryana and others v. Bhajanlal and others, 1992 Supp SCC (Cri) 426

to contend that the instant case falls within the parameters laid down by the Hon’ble Apex Court for quashing of the criminal proceedings.

7. Learned Panel Lawyer for the State contends that the impugned order does not suffer from any illegality and, therefore, may not be interfered.

8. Learned counsel for the respondent No.2 contended that the Chief Judicial Magistrate Guna has not committed any error in law in taking cognizance against the present applicants as there exists prima facie case against them. Hence, the impugned orders be maintained.

9. Having considered the rival contentions of all the parties to the case, it is appropriate to first deal with the contentions of learned counsel for the applicants. The first attack of the applicant is on the jurisdiction of the Court of CJM, Guna to bye-pass the proceedings under Section 156(3) of CrPC and directly take cognizance of the complaint. According to the applicants, the CJM Guna could not have directly taken the cognizance and, rather it ought to have referred the complaint to the police for investigation and only after receiving the report from the police any further proceeding could have been drawn.

10. The contention is contrary to the established position of law with respect to the discretion available to the Magistrate while taking cognizance on the complaint submitted under Section 200 CrPC. In this regard, the reference to the judgment pronounced by this Court in the case of

Shyamlal v. Lau Kush Ram Lakhan Pandey, 1999 (1) MPLJ 260

is necessary. The relevant para reads as under:-

“3. On a perusal of the order sheet it is noticed that the learned trial Judge upon receipt of the complaint and the application filed under Section 94 of the Code opined that the allegations disclosed a cognizable offence and accordingly directed the matter to be investigated by a responsible officer to be nominated by the S.P. concerned. This order, in effect, amounts to an order under Section 156(3) of the Code. Section 156 of the Code reads as under :-

“156 (1) Any officer incharge 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.” From the aforesaid provision, it is quite clear that the power of investigation vests with the police in regard to any cognizable offence without the order of a Magistrate. Under sub- section (3) of the Code the Magistrate who has been empowered under under Section 190 of the Code may direct the police to investigate a case. Pursuant to the direction given by the competent Magistrate Police investigates and submits a report to the Magistrate who is required to deal with the matter. It is to be noted here that the Magistrate under Section 190 of the Code occurring in Chapter XV has also the authority to direct an investigation to be made by the Police Officer. It is to be borne in mind that there is a distinction between the scope of power of the Magistrate while directing investigation under Sections 156 (3) and 202 of the Code. Investigation under Section 156(3) is directed at the pre- cognizance stage whereas the direction under Section 202 of the code relates to a stage after taking cognizance but before issuance of process. The Apex Court in the case of

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