Madhao & Anr. vs. State of Maharashtra & Anr, Criminal Appeal No. 684 of 2013 (Arising
out of S.L.P. (Crl.) No. 7293 of 2009) (Decided on May 3, 2013)
The
Hon’ble Supreme Court held:
“Chapter XIV of the Code
speaks about conditions requisite for initiation of proceedings. Section 190
deals with cognizance of offences by Magistrates. In terms of subsection (1)
subject to the provisions of the said Chapter, any Magistrate of first class,
and any Magistrate of the second class specially empowered in this behalf under
sub-section (2), may take cognizance of any offence – (a) upon receiving a
complaint of facts which constitute such offence; (b) upon a police report of
such facts; (c) upon information received from any person other than a police officer,
or upon his own knowledge, that such offence has been committed.” [Para 10]
Magistrate
before taking cognizance of the offence can order investigation under Section
156(3)
“Sub-section (3) of
Section 156 of the Code enables any Magistrate empowered under Section 190 may
order such an investigation in terms of sub-section (1) of that section.”
[Para 11]
“It is clear 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.” [Para 12]
When a magistrate
receives a complaint he is not bound to take cognizance if the facts alleged in
the complaint disclose the commission of an offence. The magistrate has discretion
in the matter. If on a reading of the complaint, he finds that the allegations
therein disclose a cognizable offence and the forwarding of the complaint to
the police for investigation under Section 156(3) will be conducive to justice
and save the valuable time of the magistrate from being wasted in enquiring
into a matter which was primarily the duty of the police to investigate, he
will be justified in adopting that course as an alternative to taking cognizance
of the offence itself. As said earlier, in the case of a complaint regarding
the commission of cognizable offence, the power under Section 156(3) can be
invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the
procedure embodied in Chapter XV, he is not competent to revert back
to the precognizance stage and avail of Section 156(3). [Para 13]
“Where a Magistrate
orders investigation by the police before taking cognizance under Section
156(3) of the Code and receives the report thereupon he can act on the report and
discharge the accused or straightaway issue process against the accused or
apply his mind to the complaint filed before him and take action under Section 190 of the Code.” [Para 16]
Alternatives
when a Magistrate chooses to take cognizance:
Where a Magistrate
chooses to take cognizance he can adopt any of the following alternatives:
(a) He can peruse the
complaint and if satisfied that there are sufficient grounds for proceeding he
can straightaway issue process to the accused but before he does so he must
comply with the requirements of Section 200 and record the evidence of the
complainant or his witnesses.
(b) The Magistrate can
postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can
postpone the issue of process and direct an enquiry by any other person or an investigation
by the police. [Para 14]
In case the Magistrate
after considering the statement of the complainant and the witnesses or as a
result of the investigation and the enquiry ordered is not satisfied that there
are sufficient grounds for proceeding he can dismiss the complaint. [Para
15]
On
the facts of the case, the court held:
As rightly observed by
the High Court, the magistrate before taking cognizance of the offence can
order investigation under Section 156(3) of the Code, we are of the view that
the procedure adopted and the power exercised by the magistrate in this case is
acceptable and in accordance with the scheme of the Code. We are also satisfied
that the High Court rightly refused to exercise its power under Section 482 of
the Code.
The
Court noted following case laws:
Devarapalli Lakshminarayana Reddy and Others vs. V. Narayana
Reddy and Others, (1976) 3 SCC 252
Tula Ram and Others vs. Kishore Singh, (1977) 4 SCC 459
CREF Finance Ltd. vs. Shree Shanthi Homes (P) Ltd. and
Another, (2005) 7 SCC 467, where while considering the power of a Magistrate
taking cognizance of the offence, the Court held:
“…. Cognizance is taken at the initial stage when the Magistrate
peruses the complaint with a view to ascertain whether the commission of any
offence is disclosed. The issuance of process is at a later stage when after considering
the material placed before it, the court decides to proceed against the
offenders against whom a prima facie case is made out. It is possible that a complaint
may be filed against several persons, but the Magistrate may choose to issue
process only against some of the accused. It may also be that after taking
cognizance and examining the complainant on oath, the court may come to the
conclusion that no case is made out for issuance of process and it may reject
the complaint. It may also be that having considered the complaint, the court may
consider it appropriate to send the complaint to the police for investigation
under Section 156(3) of the Code of Criminal Procedure….”
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