Point in Issue :
Whether after taking cognizance of offence Magistrate can direct investigation under Section 156(3) of the Criminal Procedure Code.

Ms. H.N. Devani, J.—By this petition under Section 482 of the Code of Criminal Procedure, 1973 (the Code), the petitioners seek quashment of the order dated 14th November, 2007 passed by the learned Judicial Magistrate First Class, Jetpur below Exhibit 1 in Criminal Inquiry Case No. 88/07 being Jetpur City M. Case No. 56 of 2007, whereby the learned Judicial Magistrate has directed investigation by the police under the provisions of Section 156(3) of the Code.

2. The facts of the case stated briefly are that the Respondent No. 1 herein had lodged a complaint against the present petitioners before the learned Judicial Magistrate First Class alleging commission of offence punishable under Sections 467, 468, 471, 504, 506(2), 406, 420 and 114 of the Indian Penal Code on 13.11.2007. On the same day, the learned Magistrate has taken cognizance of the offence and examined the complainant on oath and reduced the substance of the examination in writing. Upon taking cognizance, the learned Magistrate directed investigation to be carried out by the concerned Police Sub Inspector and to submit report within the period of 30 days. Subsequently, on the next day i.e. on 14th November, 2007, the learned Magistrate vide the impugned order has directed investigation by the police under the provisions of Section 156(3) of the Code. Being aggrieved, the petitioners have moved the present petition seeking quashment of the said order.

3. Heard Mr. Bhavesh P. Trivedi, learned Advocate for the petitioners, Mr. Pratapray J. Vyas, learned Advocate for the Respondent No. 1 and Mr. L.B. Dabhi, learned Additional Public Prosecutor for the Respondent No. 2.

4. learned Advocate Mr. Trivedi has submitted that once the learned Magistrate has taken cognizance under the provisions of Section 200 of the Code and has after recording the statement on oath of the complainant, directed investigation by the police under Section 202 of the Code, it is not open to the learned Magistrate to revert back to the pre-cognizance stage and direct investigation by the police under the provisions of Section 156(3) of the Code. In support of his submissions the learned Advocate for the applicants has placed reliance upon various decisions of the Supreme Court as well as various High Courts, to which reference is made hereinafter.

5. The learned Advocate for the applicants has also addressed the Court on the merits of the case; however considering the view that this Court is inclined to take in the matter it is not necessary to deal with the other submissions advanced by the learned Advocate for the applicants. However, it is clarified that it would be open for the applicants to raise all the contentions, which are raised in the present petition at an appropriate stage before the trial Court.

6. On the other hand, Mr. Pratapray J. Vyas learned Advocate for the opponent No. 1 has supported the impugned order passed by the learned Judicial Magistrate and has submitted that the same is just, legal and proper and does not call for any intervention at the hands of this Court.

7. The law in this regard is well settled by a catena of decisions of the Supreme Court as well as other High Courts, which have been cited by the learned Advocate for the petitioner in support of his contentions.

8. In the case of Jamuna Singh and others vs. Bhadai Shah, AIR 1964 SC 1541, the Supreme Court held as follows:

“8. xxxxx. It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under Section 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence. It was so held by this Court in R.R. Chari vs. State of U.