Thursday, 16 May 2013

Only in cognizable offence ,Magistrate can send complaint to police for investigaion u/s 156 of crpc


“22. We have noticed that in number of complaints
filed under Section 190 read with Section 200 of the
Code of Criminal Procedure or petition under Section
156(3) of the Code of Criminal Procedure, the
Magistrates have been passing orders under Section
156(3) without even finding out whether the petition
purporting to be under Section 156(3) Cr.P.C. discloses
cognizable offences. The Magistrate before passing an
order under Section 156(3) Cr.P.C. ought to satisfy
himself/herself that the averments made in the
complaint or petition filed under Section 156(3) disclose
commission of cognizable offence and whether the
prosecution would lie. Only in such an eventuality, it is
permissible for the Magistrate to direct investigation
under section 156(3) Cr.P.C., if he or she deems fit
considering the facts and circumstances of the case. We,
therefore, deem it appropriate to direct the Registrar (J)
to circulate a copy of this Judgment to all the Principal
District and Sessions Judges within the jurisdiction of
Nagpur Bench, who shall, in turn, circulate the
Judgment to all the Magistrates within their
jurisdiction.”


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Application No.1091 of 2013
1) Ajit s/o Ramrao Thete, 

Versus
1) The State of Maharashtra )

 CORAM: NARESH H PATIL &
 A.V. NIRGUDE, JJ. 

Judgment pronounced on : 09th MAY 2013.

JUDGMENT (Per Naresh H Patil, J.):-
1) Rule, returnable forthwith. By consent heard
finally.
2) The applicants pray for setting aside the order
passed under section 156(3) of the Criminal Procedure
Code dated 19-1-2013 by the learned Judicial Magistrate,
First Class, Beed and the First Information Report
No.M.B./02 of 2013 registered with Peth Police Station
Beed, for offence punishable under section 4 of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 and Section 166 of the Indian Penal
Code.3 Cri application 1091 of 2013
3) The applicants state that the respondent No.2
filed a complaint with the Magistrate bearing MCA No.99
of 2013. The learned Magistrate passed an order dated
19th January 2013 and forwarded the complaint to the
Deputy Superintendent of Police Beed for investigating
the matter under section 156(3) of the Code of Criminal
procedure (for short, “the Code”). 
4) Substance of the complaint filed by respondent
No.2 is that the complainant is resident of Officer Colony
Beed and he belongs to Scheduled Caste. The complainant
was appointed on 4-1-1993 in Government Polytechnic as
Carpenter. He is discharging his duties in the said
capacity since January 2006 in Government Polytechnic
Beed. It is alleged that the complainant has become
eligible for getting promotion. However, the accused
deliberately did not carry out the process of promotion
and failed to promote the complainant. This act of the
accused, according to the complainant, is an offence
punishable under section 4 of the Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Act, 1989
(for short, “Act of 1989”). The police registered the4 Cri application 1091 of 2013
offence under section 4 of the Act of 1989 and under
section 166 of the Indian Penal Code on 24th January
2013. 
5) From the record forwarded by the Judicial
Magistrate, First Class, Beed to the Registry of this Court
by communication dated 12th April 2013 we have noticed
that the learned Magistrate had observed in the order that
the offence was cognizable hence matter was sent to the
Deputy Superintendent of Police Beed for investigation
under section 156(3) of the Code. According to the
communication received by the Registrar, High Court, the
original copy of private complaint was sent to the
concerned police for investigation under section 156(3) of
the Code. The First Information Report was registered for
offence punishable under section 4 of the Act of 1989 and
under section 166 of the Indian Penal Code.
6) The learned counsel appearing for the
applicants submitted that from reading of the complaint it
could be ascertained that no offence is disclosed to have
been committed under section 4 of the Act of 1989. The
learned Magistrate has committed error in passing the5 Cri application 1091 of 2013
order under section 156(3) of the Code. The said order is
erroneous and suffers from non application of mind. In the
submission of the counsel under section 4 of the Act of
1989 a person may be sentenced for a term which shall
not be less than six months but which may extend to one
year. Considering the classification made in respect of
offences against other laws in Schedule First of the Code,
it is clear that offence if punishable with imprisonment for
less than 3 years or with fine only would be non
cognizable one. The punishment for offence punishable
under section 166 of the Indian Penal Code is simple
imprisonment for one year or fine or both. The said
offence is also non cognizable one. Therefore, the
complaint lodged for offence under section 4 of the Act of
1989 and under section 166 of the Indian Penal Code
being non cognizable one the police could not have
registered the First Information Report nor the learned
Magistrate could have passed order under section 156(3)
of the Code. 
7) The learned counsel for respondent No.2 has
supported the order passed by the Magistrate. Affidavit in6 Cri application 1091 of 2013
reply is also filed on behalf of respondent No.2.
Reference was made to Section 20 of the Act of 1989
which refers to giving overriding effect of the provisions of
the Act of 1989. Considering the provisions of Section 20
of the Act of 1989 it shall be held that Section 4 of the Act
of 1989 is a cognizable offence. Therefore the police
registered the offence on the order passed by the learned
Magistrate. The learned counsel further submitted that as
the complainant was not promoted by the accused they
have committed offence under section 4 of the Act of
1989.
8) The learned Additional Public Prosecutor has
submitted that as the police received order from the
Magistrate they were bound to register the offence and
accordingly the police registered the offence. 
9) We have perused the complaint and the record
forwarded by the Court of the Judicial Magistrate, First
Class, Beed. The record does not contain original
complaint and the original order passed by the
Magistrate. A copy of the order passed by the Magistrate7 Cri application 1091 of 2013
incorporated below a simple copy of complaint including
copy of Roznama and other miscellaneous documents are
noticed. 
10) The First Schedule under Chapter 37 to the
Code relates to classification of offences. Clause II of the
First Schedule is relating to classification of offences
against other laws which reads as under :
II CLASSIFICATION OF OFFENCES AGAISNT OTHER
LAWS
Offence Cognizable
or noncognizable
Bailable or
non bailable
By what Court
triable.
If punishable with
death,
imprisonment for
life, or
imprisonment for
more than 7
years.
Cognizable Nonbailable.
Court of 
Session.
If punishable with
imprisonment for
3 years, and
upwards but not
more than 7
years.
Ditto Ditto Magistrate of 
the first class.
If punishable with
imprisonment for
less than 3 years
or with fine only.
Noncognizable
Bailable Any 
Magistrate. 8 Cri application 1091 of 2013
11) The order passed by the learned Magistrate as
occurring in the record forwarded by the Magistrate reads
as under :
“Order
Heard. The alleged offence is cognizable,
hence matter be sent to Dy.S.P. Beed to
investigate the matter u/sec. 156(3) of
Cr.P.C. returnable on 25.2.13.
 Sd/-
JMFC
 19.1.13.”
12) Perusal of the above mentioned provisions
demonstrates that offences registered against applicants
were of non-cognizable nature. The complainant and the
police are not remedy-less as in Section 155 in Chapter
XII of the Code, procedure has been prescribed which
reads as under.
“155. Information as to non-cognizable cases and
investigation of such cases.-- (1) When information
is given to an officer in charge of a police station of the
commission within the limits of such station of a noncognizable offence, he shall enter or cause to be entered
the substance of the information in a book to be kept by
such officer in such form as the State Government may
prescribe in this behalf, and refer the information to the
Magistrate.
(2) No police officer shall investigate a non-cognizable
case without the order of a Magistrate having power to
try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise
the same powers in respect of the investigation (except9 Cri application 1091 of 2013
the power to arrest without warrant) as an officer in
charge of a police station may exercise in a cognizable
case.
(4) Where a case relates to two or more offences of
which at least one is cognizable, the case shall be
deemed to be a cognizable case, notwithstanding that
the other offences are non-cognizable.”
13) Considering the substance of the complaint we
are of the view that on allegation of failure to promote the
complainant in service, no offence could be registered
under section 4 of the Act of 1989 and section 166 of the
Indian Penal Code without following proper procedure
enunciated under section 155 of the Code. Even otherwise
on merit of the complaint no offence is disclosed to have
been committed by the applicants under section 4 of the
Act of 1989.
14) The complaint does not disclose prima facie
sufficient material to be considered against the applicants
for registration of offence under section 166 of the Indian
Penal Code.
15) The learned counsel for the applicants in
support of his submissions has placed reliance on the10 Cri application 1091 of 2013
following reported judgments.
(1) Alka A Misra Vs. J.P. Shoke, 2003 ALL MR (Cri) 207.
(2) Arabinda Panda Vs. State of Orissa, Crimes 1996(4)
446.
16) The learned counsel for the respondent No.2
has placed reliance on reported judgment in Dilip Ramrao
Khedekar v. State of Maharashtra, 2012 All MR (Cri)
3095 and referred to the provisions of Section 20 of the Act of
1989.
17) Sections 4 and 20 of the Act of 1989 read
thus :
“4. Punishment for neglect of duties.--
Whoever, being a public servant but not being a
member of a Scheduled Caste or a Scheduled
Tribe, wilfully neglects his duties required to be
performed by him under this Act, shall be
punishable with imprisonment for a term which
shall not be less than six months but which may
extend to one year.”
“20. Act to override other laws.-- Save as
otherwise provided in this Act, the provisions of
this Act shall have effect notwithstanding anything
inconsistent therein contained in any other law for
the time being in force or any custom or usage or
any instrument having effect by virtue of any such
law.”11 Cri application 1091 of 2013
18) We have perused the judgments cited supra. In
a recent judgment delivered by Nagpur Bench of the
Bombay High Court in Criminal Application No.470 of
2011 (Yogiraj Vasantrao Surve Vs. State of Maharashtra)
dated 28th February 2013 it is observed in para 22 of the
judgment thus:
“22. We have noticed that in number of complaints
filed under Section 190 read with Section 200 of the
Code of Criminal Procedure or petition under Section
156(3) of the Code of Criminal Procedure, the
Magistrates have been passing orders under Section
156(3) without even finding out whether the petition
purporting to be under Section 156(3) Cr.P.C. discloses
cognizable offences. The Magistrate before passing an
order under Section 156(3) Cr.P.C. ought to satisfy
himself/herself that the averments made in the
complaint or petition filed under Section 156(3) disclose
commission of cognizable offence and whether the
prosecution would lie. Only in such an eventuality, it is
permissible for the Magistrate to direct investigation
under section 156(3) Cr.P.C., if he or she deems fit
considering the facts and circumstances of the case. We,
therefore, deem it appropriate to direct the Registrar (J)
to circulate a copy of this Judgment to all the Principal
District and Sessions Judges within the jurisdiction of
Nagpur Bench, who shall, in turn, circulate the
Judgment to all the Magistrates within their
jurisdiction.”
19) We have noticed in petitions coming before us
that different practices are being followed by the learned
Magistrates in respect of forwarding the copy of complaint
and the order passed under Section 156(3) of the Code.12 Cri application 1091 of 2013
The question would be as to whether after the Magistrate
passes order under Section 156(3) of the Code, the
original complaint along with original order signed by the
Magistrate, is required to be forwarded to the police
station. We find that forwarding of these original
documents to the police would not be essential and
proper. In the case of Madhu Bala vs Suresh Kumar and
others, AIR 1997 SC 3104, the Apex Court observed that
when the complaint disclosing cognizable offence is made
before the Magistrate, he may take cognizance upon same
under Section 190(1)(a) of the Code and proceed with the
same in accordance with provision of Chapter XV. The
other option available to the Magistrate in such a case
could be to send the complaint to the appropriate police
station under Section 156(3) of the Code for investigation.
Para 8 of the judgment in Madhu Bala’s case reads as
under :-
“8. From a combined reading of the above provisions
it is abundantly clearly 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 provisions of Chapter XV.
The other option available to the Magistrate in such a
case is to send the complaint to the appropriate Police13 Cri application 1091 of 2013
Station under Section 156(3) for investigation. Once
such a direction is given under sub-section (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
under Section 156(1) the police can only investigate as
cognizable ‘case’, it has to formally register a case on
that report.” 
20) In the case of Samaj Parivartan Samudaya v.
State of Karnataka, (2012) 7 SCC 407 The Apex Court
observed in para 26 thus:
“26. Section 154 CrPC places an obligation upon the
authorities to register the FIR of the information
received, relating to commission of a cognizable
offence, whether such information is received orally or
in writing by the officer in charge of a police station. A
police officer is authorised to investigate such cases
without the order of a Magistrate, though, in terms of
Section 156(3) CrPC the Magistrate empowered under
Section 190 may direct the registration of a case and
order the police authorities to conduct investigation, in
accordance with the provisions of CrPC. Such an order
of the Magistrate under Section 156(3) CrPC is in the
nature of a pre-emptory reminder or intimation to the
police, to exercise their plenary power of investigation
under that section. This would result in a police report
under Section 173, whereafter the Magistrate may or
may not take cognizance of the offence and proceed
under Chapter XVI CrPC. The Magistrate has judicial
discretion, upon receipt of a complaint to take
cognizance directly under Section 200 CrPC, or to adopt
the above procedure (Ref. Gopal Das Sindhi v. State of14 Cri application 1091 of 2013
Assam; Mohd. Yousuf v. Afaq Jahan and Mona Panwar v.
High Court of Judicature of Allahabad.)”
21) In case the Magistrate resorts to exercise of
jurisdiction to pass order in terms of Section 156(3) of the
Code then, the Magistrate can forward a true copy or
certified copy of the complaint to the police along with the
communication made by the Registrar or authorized
officer of the Court intimating the order passed by the
Magistrate under Section 156(3) of the Code. This could
facilitate the Magistrate to retain the original record with
the court which could be used for various purposes in
future.
22) In the case at hand, it is informed by the
learned counsel appearing for the applicants that except
certified copy of the Roznama, the applicants could not
get copies of either of the complaint or the order passed
by the Judicial Magistrate, First Class Beed under Section
156(3) of the Code, as both these original documents were
forwarded by the Magistrate to the concerned police
station. It would be appropriate that the original record of
the Court is retained by the Court itself. The same would15 Cri application 1091 of 2013
be useful for exercise of powers by the Magistrate which
are incidental, implied in respect of the subject complaint
for the purposes of issuing further directions and
monitoring the police investigation (Ref: Sakiri Vasu vs.
State of Uttar Pradesh and others, (2008)2 SCC 409).
23) By an order dated 8th April, 2013 we had
directed the Registrar (Judicial) to call for report from the
Judicial Magistrate and accordingly the same is received.
We have perused the same. In the facts of the case and
considering the submissions advanced, we find that this is
a fit case to exercise jurisdiction under Section 482 of the
Code of Criminal Procedure. We are of the opinion that the
learned Magistrate has committed error in passing the
impugned order under Section 156(3) of the Code of
Criminal Procedure. In the facts of the case we are of the
view that, filing of the impugned complaint amounts to
abuse of process of law and the Court. 
ORDER
(A) The order dated 19-1-2013 passed by the learned
Judicial Magistrate, First Class, Beed under section 156(3)
of the Criminal Procedure Code in Misc. Criminal
Application No.99 of 2013 and the First Information16 Cri application 1091 of 2013
Report No.MB 2/2013 registered at Peth Police Station
Beed, under section 4 of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and
section 166 of the Indian Penal Code are quashed and set
aside.
(B) We direct that in case the Magistrate passes order
under Section 156(3) of the Code of Criminal Procedure
then the original complaint and the order passed by the
Magistrate shall be retained with the same Court.
(C) The Magistrate shall forward a true copy or certified
copy of the complaint along with the communication of the
order passed by the Magistrate under Section 156(3) of
the Code of Criminal Procedure, to the concerned police
station.
(D) The Registrar (Judicial) of this Court is directed to
forward copy of this order to all the Principal District &
Sessions Judges in the State of Maharashtra for bringing
to the notice of all the Judicial Magistrates, the view
adopted by this Court.
(E) The Rule is made absolute in the above terms. 
 Sd/- Sd/-
(A.V. NIRGUDE, J.) (NARESH H PATIL, J.)
rsl

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