2011 Supreme(Bom) 686

2011 ALLMR (Cri) 2648
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A. P. BHANGALE, J.
Bhavrabai w/o. Parashramji Atal – Appellant
Vs.
Sanjay Ramchandra Gandhewar & Anr. – Respondent
Criminal Application No. 1547/2010 With Criminal Application Nos. 1546/2010; 1548/2010; 1549/2010; 1550/2010; 1552/2010; 1553/2010; 1555/2010 and 1556/2010.
Decided on: 22nd June, 2011.

Headnote:Criminal Procedure Code, 1973-Sections 154(3), 156(3) and 190-Scope and applicability of-Provisions of Section 154 of Code can be invoked before taking recourse to power to take cognizance under Section 190 of Code-However said dictum at law not free from exception-Petition under Section 156(3) of Code cannot be strictly construed as a complaint in terms of Section 2(d) of Code-In absence of specific prayer or improperly worded prayer or lack of complete and definite details not prove fatal to petition under Section 156(3) in so far as it states facts constituting ingredients of cognizable offence-Such petition maintainable before Magistrate.-Whether in absence of a complaint to the police, a complaint can be made directly before the Magistrate. While answering this question, it is stated that normally a person should invoke the provisions of Section 154 of the Code before he takes recourse to the power to take cognizance under Section 190 of the Code. Under Section 154(3) at least an intimation to the Police of commission of offence of cognizable offence would be a condition precedent for invocation of powers of the Magistrate under Section 156(3) of the Code. However, the Full Bench made it clear that this dictum of law is not free from exception because there can be cases when non-compliance of the provisions of Section 154(3) would not divest the Magistrate of his jurisdiction in terms of Section 156(3) and there can be cases where incidentally and in the facts of the case, however, there is possibility of the evidence of commission of offence being destroyed and/or tampered with, then an applicant could approach the Magistrate under Section 156(3) of the Code directly by way of exception as the Legislature has vested wide discretion in the Magistrate. The second question which was posed is, whether without filing the complaint within the meaning of Section 2(d) and praying only for an action under Section 156(3) complaint before the Magistrate was maintainable, which was answered thus : the petition under Section 156(3) cannot be strictly construed as a complaint in terms of Section 2(d) of the Code and in the absence of a specific prayer or improperly worded prayer or lack of complete and definite details would not prove fatal to the petition under Section 156(3) insofar as it states facts, constituting ingredients of cognizable offences, such petition would be maintainable before the Magistrate.

       Criminal Procedure Code, 1973-Sections 156(3), 190 and 202-Cognizance of offence-Taking of by Magistrate-Perusing of complaint by Magistrate not amounts that Magistrate taking cognizance of offence-Term "taking cognizance" means judicial action by application of judicial mind with a view to proceed further-Question, as to whether Magistrate taken cognizance of offence or not is a question of fact to be determined in each case.-Section 156(3) of the Code operates at precognizance stage of the complaint which clarify that any Magistrate who is empowered to take cognizance of offence under Section 190 may order investigation into any cognizable case. The investigation into a case of cognizable offence is domain of the police. Section 156(3) empowers the Magistrate to order a police enquiry in any case where the Magistrate has not issued process at once. Once the Magistrate has acted under Chapter XV then he cannot go backwards at precognizance stage so as to order the investigation of an offence by the police. On receiving the complaint, the Magistrate is required to apply his mind to the allegations made in the complaint. The Magistrate has discretion either at once to take cognizance or he may order police to register the offence and investigate. If the Magistrate decides to enquire himself he may record substance of statement made by the complainant and witnesses present, if any, with a view to issue process against the accused or if there is no sufficient ground to proceed further, he may dismiss the complaint. Thus, the power to direct investigation by police under Section 156(3) is to be exercised before taking cognizance of the offence disclosed in the complaint. Once the Magistrate has taken cognizance by examining the complainant and witnesses present, if any, then he cannot revert back at precognizance stage so as to order investigation under Section 156(3) Code; but at post-cognizance stage, he has power to direct investigation by police under Section 202 of Code. These two powers operate in distinct spheres at different stages. The first under Section 156(3) is exercisable at the precognizance stage and the second power under Section 202 of the Code is exercisable at the post-cognizance stage when the Magistrate has already taken cognizance of the offence. The term "taking cognizance" is not defined in the Code but it means taking cognizance of an offence. Once the Magistrate has taken cognizance of an offence by conscious application of mind; it is his duty to find out who the offenders really are. Thus, the Magistrate is required to apply his judicial mind to the averments in the complaint so as to take cognizance of offences. The Magistrate is required to satisfy himself prima facie as to whether there is sufficient ground for to proceed further to issue process or not. Merely because the Magistrate has perused the complaint, it cannot be said that he has taken cognizance of offences because the term "taking cognizance" means judicial action contemplated under the Code by application of judicial mind with a view to proceed further under Chapter XV of the Code. Thus, the question as to whether the Magistrate had taken cognizance of offences or not is a question of fact to be determined in each case. In a given case when the Magistrate has applied his mind only for ordering investigation under Section 156(3) of the Code, then it cannot be said that he has taken cognizance of an offence. The Magistrate may apply his mind merely with a view to order investigation by police at precognizance stage. The order under Section 156(3) of the Code is in the nature of administrative order directing the police to exercise their powers to investigate cognizable offence, if any, the accused at such pre-cognizance stage has no right to object registration of FIR as against him nor the accused can claim right of hearing at the stage of preregistration of FIR. In other words, the accused cannot be allowed to thwart investigation at its threshold. Thus, the term "taking cognizance" would indicate judicial application of mind to facts stated in the complaint with a view to take further action i.e. to proceed under Section 200 and subsequent sections in Chapter XV of the Code to find out whether there is sufficient ground to proceed further to issue process. Hence, the stage of taking cognizance of offences indicate a stage when Magistrate has applied his conscious judicious mind to the contents of the complaint for to satisfy himself regarding commission of offences.