2002 (2) Crimes 488
ALLAHABAD HIGH COURT
Sushil Harkauli, J.
Gulab Chand Upadhyaya -Petitioner
versus
State of U.P. & Ors. - Respondent
Criminal Misc. Writ Petition No. 6448 of 2001
Decided on 20-2-2002

IMPORTANT POINT
Option to direct the registration of the case and its investigation. by police under Section 156(3) Cr.P.C. should be exercised by Magistrate where some investigation is required which is of a nature that is not possible for a private complainant and which can be done by police.

Headnote:(i) Criminal Procedure Code, 1973-Section 156(3)-Application before Magistrate alleging that respondents 4 to 6 had threatened and assaulted applicant, his wife and brother and damaged the property Police had refused to register the case - Magistrate ordered to proceed with application under Section 200 Cr.P.C. - Writ petition for direction to Magistrate to order registration and investigation of complaint by police - Discretion of Magistrate how to be guided - Since applicant was possessed of all the evidence and material to be produced in support of his complaint impugned order declining registration of case and its investigation by police called for no interference.

       Held: The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required which is of a nature that is not possible for the private complainant and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example.

       (1) where the full details of the accused are not known to the complainant and the same can be determined- only as a result of investigation, or

       (2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or

       (3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualized where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.

       But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary cases to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under section 202 (1) Cr.P.C. order investigation, even though of a limited nature (see para 7 of JT 2001 (2) SC 81). (Para 2)

       THE CASE IN HAND

       In the instant case, the incident took place in the house and in the presence of the complainant. All the accused with their names and addresses are known to the complainant. The witnesses of the incident are also known to him. Although it was stated in the application that the brother and wife of the complainant are being restrained but there is no such averment at later stages therefore it is not a case of continuing abduction where recovery was required. There is also no allegation of any property having been taken away by the accused so no recovery of property was needed. Also it is not a case where any other material evidence is required to be collected and kept preserved thus this is not a case where any "investigation" was required by the police for launching a successful prosecution. (Para 23)

       (ii) Criminal Procedure Code, 1973-Sections 156, 157 and 159 - Power of Magistrate to override the investigating agency even during investigation - Though Magistrate is not expected to intervene in day today investigation but he is not completely deprived of his powers till the end of investigation.

       Held: Now, about the powers of Magistrate to override the investigating agency even during pendency of investigation. Firstly, he can release the accused by refusing remand (section 167). Secondly, he can grant bail to accused (section 437). Thirdly, he can release seized property (section 457). Fourthly, during progress of investigation by police, the Magistrate is empowered by Section 164 to record any confessional statement. He is also empowered by the same section to record on oath any statement other than confession, and that statement would form an important part of investigation. Fifthly, if investigation is in progress and in the meantime a criminal complaint is filed the Magistrate can require the 'investigating officer' to submit a "report" under section 210 (1). The proposition that the word "report" in sub-section (1) of section 210 means a "report" under section 173, is supported by some precedents, with exceptions also. But I am of the view that it could only mean a charge-sheet or final report (under section 173). This view is based upon sub-sections (2) of section 210 which expressly refers to section 173; and also upon the fact that sub-section (3) of section 210 can come into play only if the police report called under section 210 (1) is a charge sheet or final report. From all these provisions it is clear that though the Magistrate is not expected to intervene in day to day investigation but he is not completely deprived of his powers till the end of investigation. (Para 16)

       Result: Petition dismissed.