2011(3) Crimes 281 (J&K)
SHORT NOTE
JAMMU AND KASHMIR HIGH COURT
Hasnain Massodi, J.
S. Balbir Singh —Appellant
versus
Ishar Das —Respondent
with
Basant Singh —Appellant
versus
State and Anr. —Respondents
561-A No. 144 of 2006 with 561-A No. 76 of 2009
Decided on 30.4.2010

IMPORTANT POINTS
(1) the Magistrate is expected to go through the complaint, apply his mind to the averments and allegations set out in the complaint and only when on such perusal the Magistrate is satisfied that a direction under Section 156(3) Cr.P.C. is warranted the Magistrate is expected to make an order directing registration of FIR and investigation.
(2) The criminal proceedings cannot be terminated or blocked only because civil proceedings are awaiting disposal, touching the controversy that has something to do with the criminal prosecution.

Headnote:(i) Criminal Procedure Code, 1973—Section 156(3) —Power of Magistrate to order investigation in a complaint—Petitioner accused was alleged to got a Will of father of complainant-respondent forged to grab the properties—Magistrate order registration if case and for investigation by police—Petition to quash order on ground that Magistrate failed to give reasons in support of the order—Magistrate is expected to be discrete enough not to exercise power in a mechanical manner or in a routine and lifeless manner—Magistrate is expected to go through the complaint apply his mind to allegations and only when satisfied that directed was warranted, he was expected to make order directing registration of FIR and investigation—Impugned order was silent of all such aspects and was liable to be set aside and matter needed to be remanded.

       Held: Section 156 Cr.P.C. finds place in Part V Chapter XIV of the Code that deals with information to the Police and their powers to investigate. Section 154 Cr.P.C. provides that every information relating to the commission of cognizable offence if given to Officer-in-charge of a Police Station, shall be entered in the book, maintained in the prescribed format at the Police Station and a copy of the information called First Information Report, provided to the informer. Section 155 Cr.P.C. deals with information in respect of non- cognizable offence. Section 156 deals with investigation into cognizable offence. Section 156(1) empowers Officer-in-charge of a Police Station to investigate any cognizable case even without order of Magistrate, that a Court having jurisdiction over the local limits of such jurisdiction, would have power to enquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial. In other words Officer-in-charge of the police station can only investigate such cognizable offence, that having regard to the place of occurrence falls within his jurisdiction. Section156(3), without repeating whatever is laid down under section 156(1) as regards territorial jurisdiction, empowers the Magistrate, having powers under section 190 of the Code, to order such an investigation. It is pertinent to mention that Section 190 of the Code empowers Magistrate to take cognizance of any offence upon a complaint or police report. It follows that once in terms of Section 154 Cr.P.C. information relating to commission of cognizable offence, is given to the Officer-in-charge of the Police Station and the information registered as provided under Section 154, Officer-in-charge of the Police Station may investigate the case, provided the Court having jurisdiction over the local area within local limits of such police station, would have power to inquire into or try the case relating to the place of inquiry or trial. Independent of power of the Officer-in-charge of the police station to investigate cognizable offence, Section 156(3) Cr.P.C., confers power on a Magistrate to investigate. The power under Section 156(3) Cr.P.C. is limited by the restrictions as are laid down under Section 156(1), that is to say that the Magistrate must have power to take cognizance of the offence under section 156(3) and further Magistrate shall order investigation, by the Officer-in-charge of the Police Station, within the territorial jurisdiction of such Magistrate. The Magistrate, once a complaint as in the present case, alleging commission of cognizable offence is presented before him, has powers to take cognizance in terms of Section 190 Cr.P.C. and thereafter proceed in the matter as laid down in Chapter XVI & XVII of the Code. The other option available to the Magistrate is to direct the investigation under Section 156(3) Cr.P.C. The ambit and scope of inquiry to be made by the Magistrate after receipt of the complaint and before the Magistrate, decides to issue process against the accused, is laid down in Sections 200 to 204 Cr.P.C. and such procedure is not to be followed by the Magistrate when the Magistrate decides not to take cognizance of the offence, direct inquiry to ascertain truthfulness and falsehood of the complaint or issue process against the accused but directs investigation in the matter. The Magistrate, while directing investigation, does not take cognizance of the offence alleged in the complaint but merely asks the Officer-in-charge of the Police Station to investigate the matter, which is otherwise his duty under the Code.

       It is argued by the learned counsel for the petitioners that the Magistrate even when deciding to direct investigation in terms of Section 156(3) Cr.P.C. is expected to apply his mind to the allegations set out in the complaint and in either case—whether the Magistrate decides to take cognizance and proceed in the matter or the Magistrate decides to direct investigation order of the Magistrate must indicate application of mind. Reliance is placed on law laid down in Ram Babu Gupta and Anr. v. State of U.P. & Ors., 2001, Cr. LJ 3363 and S.P. Shenbagamoorthy v. Mu. Ka. Stalin and Anr., 2003 Cr. LJ 271. In later case it has been held that the Magistrate without looking into complaint and ascertaining whether the complaint requires investigation at all cannot in a mechanical manner direct investigation.

       There is no scope for any disagreement with the argument advanced by Ld. Counsel for the respondents/complainant, that the Magistrate in terms of Section 156(3) Cr.P.C. is competent to forward the complaint to Officer-in-charge of Police Station with a direction to register the case and investigate the matter. It is, however, important for the Magistrate not to make use of the power under Section 156(3) Cr.P.C in a mechanical manner. The Magistrate is expected to be discrete enough not to exercise powers under aforesaid provision in a routine and lifeless manner. Though the Magistrate at the pre- cognizance stage is not required to record statements of the witnesses or make a deep and threadbare inquiry, yet having regard to consequences of registration of an FIR and investigation for the person against whom a case is sought to be registered, the Magistrate is expected to go through the complaint, apply his mind to the averments and allegations set out in the complaint and only when on such perusal the Magistrate is satisfied that a direction under Section 156(3) Cr.P.C. is warranted the Magistrate is expected to make an order directing registration of FIR and investigation. The fact that the Magistrate did go through the complaint, made an objective appraisal of the allegation levelled and thereafter found it necessary to pass a direction under Section 156(3) Cr.P.C. must be discernible and apparent from the order.

       In the present case no mention is made in the order in question that the complaint was gone through, let alone that the averments and allegations detailed in the complaint warranted a direction under Section 156(3) Cr.P.C. The CJM has in the circumstances exercised the power under Section 156(3) Cr.P.C. in a mechanical and routine manner and against mandate of law. The case law relied upon by Ld. Counsel for the petitioners/accused extends support to the case set up in the petition.

        (Paras 7 to 10)

       (ii) Criminal Procedure Code,1973—Section 156(3) —Complaint for offences under Sections 465, 467, 471 and 120B IPC directed by Magistrate for investigation by police—Petitioner accused was alleged to have forged Will of father of complainant and obtained succession certificate on basis of that forged Will—Complainant had filed civil suit for declaration of Will as null and void—Criminal proceedings could not be terminated or blocked only because civil proceedings were awaited disposal.

       Held: The ground that in presence of civil proceedings, awaiting disposal before the competent civil Court, touching validity of the Will, alleged to have been forged by the petitioners/accused, the investigation or proceedings emanating therefrom, cannot be allowed, does not sound convincing. If mere pendency of civil proceedings is held to debar criminal prosecution, in every case of alleged, forgery, criminal prosecution can be thwarted by the perpetrator of crime by merely filing civil suit insisting on assailing or questioning genuineness of the document in question. An occurrence may have many dimensions and some of the dimensions may prompt civil litigation and other dimensions call for investigation and trial. The criminal proceedings cannot be terminated or blocked only because civil proceedings are awaiting disposal, touching the controversy that has something to do with the criminal prosecution. (Para 14)