Important Point-Even if investigation by police is in progress, Magistrate can still taken cognizance and can order inquiry under Section 202 of Cr.P.C.

J.B. Pardiwala, J.

1. By this petition under Article 227 of the Constitution of India, the petitioner the original complainant calls in question the legality and validity of the order dated 26-9-2014 passed by the learned 4th Additional District Judge, Surat in the Criminal Revision Application No. 120 of 2014, by which, the learned Sessions Judge rejected the Revision Application, thereby affirming the order passed by the learned Judicial Magistrate, First Class Mangrol dated 26-6-2014 below Exh. 1 in the Criminal Inquiry Case No. 15 of 2013. The facts giving rise to this petition may be summarized as under:-

"2.1. The petitioner herein is the original complainant. He lodged a private complaint in the Court of the learned Additional Chief Judicial Magistrate, Mangrol and prayed for police investigation under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, the Code). It appears that it came to the notice of the learned Magistrate that the police was also inquiring into the very same complaint. In such circumstances, the learned Magistrate thought fit to pass an order under Section 210 of the Code and called for the report of the status of the inquiry by the police. The Successor-in-Office rejected the prayer of the complainant to forward the complaint for police investigation under Section 156(3) of the Code and while doing so also, directed the complainant to remain present along with his witnesses for the purpose of proceeding further with the complaint according to Chapters 14 and 15 of the Criminal Procedure Code. It appears that while passing the impugned order, referred to above, the learned Magistrate observed that since his Predecessor-in-Office had passed an order under Section 210 of the Code calling for an appropriate report from the police, it can be said that the Predecessor-in-Office had taken cognizance upon the said complaint and once the cognizance is taken, then there is no question, thereafter, to order police investigation under Section 156(3) of the Code which would be a pre-cognizance stage.

2.2. Being dissatisfied with such an order passed by the learned Magistrate, the petitioner herein preferred a Criminal Revision Application which also came to be rejected by the Revisional Court."

2. Mr. Chetan Pandya, the learned Advocate appearing for the petitioner submitted that both the Courts below committed a serious error in passing the impugned orders. He submitted that the learned Magistrate ought to have ordered the police investigation under Section 156(3) of the Code having regard to the peculiar nature of the allegations and facts emerging from the record of the case.

3. He submitted that the view taken by the learned Magistrate as regards the provisions of Section 210 of the Code is absolutely incorrect and not tenable in law.

4. He submitted that in such circumstances, referred to above, this petition may be allowed and the impugned orders be quashed.

5. On the other hand, this petition has been vehemently opposed by Mr. K.L. Pandya, the learned Additional Public Prosecutor appearing for the respondent - the State of Gujarat. He submitted that whether to order police investigation under Section 156(3) of the Code or not is within the discretion of the learned Magistrate. The complainant cannot, as a matter of right, claim that his complaint should be sent for the police investigation under Section 156(3) of the Code. He submitted that it appears that in the present case, the learned Magistrate has thought fit to initiate an appropriate magisterial inquiry or order police inquiry under Section 202 of the Code after taking cognizance upon the complaint. Mr. Pandya submitted that no error, not to speak of any error of law could be said to have been committed by the Courts below, in any manner. He relied on the decision of the Supreme Court in the case of M/s. India Carat Pvt. Ltd. v. State of Karnataka, AIR 1989 SC 885.

6. Having heard the learned Counsel appearing for the parties a