IMPORTANT POINT
A Magistrate's direction for police investigation under Section 156(3) does not constitute taking cognizance of an offence, allowing for judicial discretion in pre-cognizance stages.

ORDER :

1. Leave granted.

2. The present Appeal filed by the appellant – complainant is directed against the Judgment and order dated 14-9-2023 passed by the High Court for the State of Telangana at Hyderabad, in Criminal Petition No.8938 of 2023, whereby the High Court has allowed the said petition filed by Respondent No.2 – accused herein under Section 482 of the Code of Criminal Procedure, 1973 and set aside the docket order dated 30-6-2023 passed by the Principal Junior Civil Judge-cum-XI Additional Metropolitan Magistrate, Medchal-Malkajgiri District, Kukapally (hereinafter, referred to as “Trial Court”) in S.R. No.3297/2023.

3. The Trial Court had passed the following docket order on 30-6-2023:-

“Complainant called present. The learned counsel for the complainant is present. Heard the learned counsel for the complainant. Perused the complaint and on scrutiny of the complaint, documents and also the submission made by the learned counsel for the complainant, this court found prima-facie case, hence this complaint is referred to SHO, PS Bachupally U/sec. 156(3) of Cr.P.C. for investigation and report.”

4. The Respondent No.2 – accused, being aggrieved with the same, had preferred the aforesaid Criminal Petition before the High Court, in which the High Court while allowing the same, has held as under:-

“Para 7 Therefore, this court is of the considerable view that the docket order, dated 30.06.2023 is made without any proper reasons and therefore, it is liable to be set aside. Para 8 – In view of the same, the docket order dated 30.06.2023, passed in S.R. No.3297 of 2023 by the Principal Junior Civil Judge-cum-XI Additional Metropolitan Magistrate, Medchal-Malkajgiri District, Kukapally, is hereby set aside and if any FIR has been registered consequential to the docket order, dated 30.06.2023 that FIR shall also stand set aside and the matter is remanded back to the trial Court to follow the procedure as contemplated under the Code of Criminal Procedure, 1973 and pass appropriate orders.”

5. Heard the learned counsels for the parties and perused the material placed on record.

6. At the outset, it may be noted that the law with regard to powers of the Magistrate under Section 156(3) Cr. P.C. is quite well settled.

7. In “Devarapalli Lakshminarayana Reddy and Others Vs V. Narayana Reddy and Others” (1976) 3 SCC 252, this Court while distinguishing the powers of the Magistrate under Sections 156 (3) and 200 of Cr.P.C. held as under:-

“It is well settled that 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. This is clear from the use of the words “may take cognizance” which in the context in which they occur cannot be equated with “must take cognizance”. The word “may” gives a discretion to the Magistrate 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, himself.

This raises the incidental question: What is meant by “taking cognizance of an offence” by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will