The Magistrate has the discretion to decide whether to refer a matter to the police for investigation under section 156(3) of the Code, and the allegations in the complaint must constitute an offence for the Magistrate to pass an order of investigation.

1) This writ petition is filed to challenge the order made by the learned Judicial Magistrate, First Class, Ardhapur in Misc. Criminal Application No.63 of 2013. The petitioner had filed an application before the Judicial Magistrate First Class and he had requested the learned Judicial Magistrate First Class to send the matter to police under section 156(3) of the Code of Criminal Procedure, 1973 (“the Code") for registering crime and for making investigation. After hearing the counsel of the petitioner and after going through the documents, the learned Judicial Magistrate First Class held that it would not be proper to direct investigation under section 156(3) of the Code. Learned Judicial Magistrate has kept the matter for recording verification and thus has indicated that he will take cognizance of the matter. The petitioner has a grievance that the matter is not sent for investigation under section 156(3) of the Code. Both the sides are heard.

2) Before the Judicial Magistrate, present petitioner, who is an Advocate, has made allegation against as many as 11 persons, who include the officers of the Pollution Board of the State. Respondent No.1 Shri. Garg owns a stone crusher and he is also doing mining activity after taking necessary permission from the Collector and the Pollution Board. Allegations are made that the said permission is given in respect of Gut No.85 but the activity is being done in Gut No.86. It is contended that the authority has committed mistake in giving permission to original respondent No.1 for aforesaid activities. It appears that the petitioner has grievance that due to the activity of said Garg, his house is damaged and cracks are developed in the walls and roof of the house. The petitioner has requested for registering crime for offence punishable under sections 166, 167, 168, 177, 182, 188, 192, 197, 221, 268, 278, 336, 406, 408, 409, 420, 436, 464, 465, 466, 468, 471, 474, 120-B and 34 of the Indian Penal Code.

3) In support of the contention that when a petition is filed with request to direct the police to make investigation under section 156(3) of the Code, the Magistrate must make the order as prayed for and the Magistrate should not take cognizance of the matter, learned counsel for the petitioner has placed reliance on the following reported cases.

2010(1) Mh.L.J. 421 (Panchabhai Vs. State of Maharashtra). This case is decided by Full Bench of this Court. Two questions were framed by the Full Bench and they are answered and they are as under:-

“64. In view of our above discussion, we record our answers to the questions of law posed before us, as follow:

Question No.(i) :

Whether in absence of a complaint to the police, a complaint can be made directly before a Magistrate?

Answer:

Normally a person should invoke the provisions of section 154 of the Code before he takes recourse to the power of the Magistrate competent to take cognizance under section 190 of the Code, under section 156(3). At least an intimation to the police of commission of a cognizable offence under section 154(1) would be a condition precedent for invocation of powers of the Magistrate under section 156(3) of the Code. We would hasten to add here that this dictum of law is not free from exception. There can be cases where non-compliance to the provisions of section 154(3) would not divest the Magistrate of his jurisdiction in terms of section 156(3). There could be cases where the police fail to act instantly and the facts of the case show that there is possibility of the evidence of commission of the offence being destroyed and/or tampered with or an applicant could approach the Magistrate under section 156(3) of the Code directly by way of an exception as the Legislature has vested wide discretion in the Magistrate.

Question No.(ii)

Whether without filing a complaint within the meaning of section 2(d) and praying only for an action under section 156(3), a complaint before a Magistrate was maintainable?

Answer:

A Petition