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2013 Supreme(Chh) 57
HIGH COURT OF CHHATTISGARH, BILASPUR
T.P. Sharma, J.
SMT. RAKHI PATEL - Petitioner
Vs.
STATE OF C.G. & OTHERS - Respondents
Writ Petition (Cr.) No. 125 of 2012
Decided On : 7-2-2013.
Mr. Prafull Bharat with Mr. H.S. Patel, Advocates, for the Petitioner.
Mr. Pankaj Shrivastava, Panel Lawyer, for the State/respondent No.1.
Mr. Ohani Ram Patel, Advocate, for the Respondent No.2.
Headnote:
Indian Penal Code Sections 409, 420, 467,468 and 471 – Code of Criminal Procedure, 1973 – Section 156 (3) – Petitioner seeks to invoke the supervisory jurisdiction –Learned counsel for the petitioner submits that complaint for the offence punishable has been filed at the instance of respondent herein before the Court of Judicial Magistrate First Class, Sarangarh, the Judicial Magistrate First Class has directed the police concerned for investigation and submission of report – Finally, report was submitted, thereafter, the Judicial Magistrate First Class fixed the case for recording of evidence before registration for several dates, but has not recorded evidence –, an application of the Code was filed by respondent and after hearing respondent, the order impugned has been passed by the Judicial Magistrate First Class –Held, Discerned from the culminating words – "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding – Whether or not there is sufficient ground for proceeding – On a plain reading, it is clear that the Magistrate is empowered to direct the police for investigation under Section 156 (3) of the Code before taking cognizance of the offence or if he has chosen not to take cognizance of the offence, the Magistrate is also empowered to direct for investigation of the Code, if he chooses to take cognizance and after taking cognizance, both are stages of pre and post taking cognizance – Once the Magistrate has taken cognizance and proceeded, then he is not empowered to direct for investigation – As per copies of the order sheets, the Magistrate has directed for investigation not, after receiving report he has proceeded for recording evidence before registration and thereafter, he has passed order – These order sheets reveal that the Magistrate has taken cognizance of the offence and proceeded for enquiry under Chapter XV of the Code – Petition Allowed.
1. Heard.
2. By this petition, the petitioner seeks to invoke the supervisory jurisdiction under Article 227 of the Constitution of India against the order dated 29-4-2011 passed by the Judicial Magistrate First Class, Sarangarh in an unregistered criminal complaint case of the year 2008 (Prem Sagar Patel v. Jailal Sarthi and others), whereby the Judicial Magistrate First Class has directed for registration of the First Information Report (for short 'the FIR') and investigation under Section 156 (3) of the Code of Criminal Procedure, 1973 (for short 'the Code').
3. Learned counsel for the petitioner submits that complaint for the offence punishable under Sections 409, 420, 467,468 and 471 read with Section 34 of the IPC has been filed at the instance of respondent No.2 herein before the Court of Judicial Magistrate First Class, Sarangarh on 17-11-2008. On 1711-2008, the Judicial Magistrate First Class has directed the police concerned for investigation and submission of report. Finally, report was submitted on 1712-2008, thereafter, the Judicial Magistrate First Class fixed the case for recording of evidence before registration for several dates, but has not recorded evidence. On 26-8-2009, an application under Section 156 (3) of the Code was filed by respondent No.2 and after hearing respondent No.2, the order impugned dated 29-4-2011 has been passed by the Judicial Magistrate First Class. Learned counsel further submits that after receiving complaint under Chapter XV of the Code, the Court of Judicial Magistrate First Class has proceeded under Chapter XV of the Code and has directed for investigation to the police under Section 202 of the Code. After receiving investigation report, even the Judicial Magistrate First Class has fixed the case for recording evidence before registration for several dates, thereafter, the Judicial Magistrate First Class has allowed the application filed under Section 156 (3) of the Code and directed the police for registration of FIR and investigation under Section 156 (3) of the Code. Learned counsel also submits that after proceeding under Chapter XV of the Code for enquiry into the complaint by the Magistrate, the Magistrate is not competent to proceed under Chapter XII of the Code. The provisions contained in Sections 156 (3) and 202 of the Code are not one and same. The provisions contained in Section 156 (3) of the Code are related to investigation by police and the provisions contained in Section 202 of the Code are related to investigation after taking cognizance of the offence by the Magistrate on the complaint. Learned counsel contends that by passing the order impugned and by taking cognizance of the offence, the trial Court has committed illegality which requires interference in exercise of supervisory jurisdiction.
4. Learned counsel for the petitioner places reliance in the matter of Mohd. Yousuf Vs. Afaq Jahan (Smt) and another (2006) 1 SCC 627 in which the Supreme Court has held that after taking cognizance of the offence on the basis of complaint, the Magistrate is empowered to proceed under Section 202 (1) of the Code and same is different from investigation under Section 156 (3) of the Code.
5. On the other hand, learned counsel for respondent No.2 opposes the petition and submits that although the trial Court has directed the police for submission of enquiry report, but before sending the complaint to the police under Section 156 (3) of the Code, the Magistrate concerned has not taken cognizance of the offence, therefore, by passing the order impugned, the Magistrate has not committed any illegality warranting any interference in exercise of supervisory jurisdiction.
6. Learned State counsel also formally opposes the petition.
7. As per copies of order sheets, complaint has been filed by respondent No.2 on 17-11-2008. First order sheet reads thus,
^^17&11&2008 ifjoknh }kjk Jh th-ds- mik/;k; vf/koDrk us mifLFkr gksdj ;g ifjokn i= vfHk;qDrx.k ds fo:) /kkjk 409] 420] 467] 468] 471
