The availability of a civil remedy does not preclude the existence of a criminal offense.

1. Heard Mr. N.N.B. Choudhury, learned counsel for the petitioners and Mr. A.D. Choudhury, learned counsel for the respondent.

2. By this petition under Section 482 CPC, the petitioners have prayed for quashing the order dated 07.04.2017, whereby the learned Judicial Magistrate, First Class, Kamrup took cognizance and issued process against the petitioners and also the proceeding in Complaint Case No. 476C/2017.

3. The respondent No. 2 herein lodged a complaint before the Magistrate praying for sending the same to police under Section 156 (3) CrPC for registering a case. Learned Judicial Magistrate did not send the complaint to police, rather, took cognizance and issued process. Against the said order of taking cognizance, the petitioners have filed the instant petition.

4. Learned counsel for the petitioner Mr. N.N.B. Choudhury submits that while the complaint was lodged under Section 156 (3) CrPC with a prayer to send the same to police, either learned Judicial Magistrate should to have send the complaint to police or he should have return the complaint. Mr. Choudhury further contends that an FIR was also lodged by the same complainant, alleging the identical facts along with certain other allegations and submits that since there was a police case and investigation was going on, on the same subject, learned Judicial Magistrate ought to have stayed the proceeding under Section 210 CrPC. The third limb of argument advanced by the learned counsel is that the complaint has not made out any offence.

5. Learned counsel Mr. A.D. Choudhury, representing the respondent No. 2 submits that the allegation made in the complaint clearly makes out a prima facie case for the offence alleged, and therefore, there is no question of quashing the complaint, inasmuch as, no roving enquiry as to the merit of the case is called for at this stage.

6. The first two limb of argument advanced by the learned counsel for the petitioners appears to be misplaced. The Apex Court as relied by the learned counsel for the petitioner in Priyanka Srivastava Vs. State of U.P. reported in 2015 (2) JCC 974 laid down that when a complaint is filed before a Magistrate praying for sending it to police, the Magistrate is expected to apply his mind to ascertain whether the complaint deserves to be send to police under Section 156 (3) CrPC for registering a case. Magistrate should not send the complaint to police for registering case as a matter of routine. The Apex Court in Priyanka Srivastava (supra) held that before sending the complaint to police under Section 156 (3), the complainant must comply with Section 154 (1) and 154 (3) CrPC and the complaint should also accompany an affidavit to that effect. Unless these requirements are satisfied, the Magistrate cannot simply send the complaint to police under Section 156 (3) CrPC for registering a case. In the instant case, the impugned order transpires that the pre-conditions required for sending a complaint to police under Section 156 (3) CrPC were not satisfied and therefore, the learned Trial Court did not send the complaint to police and took cognizance himself and thereby learned Magistrate did not commit any irregularity.

7. Mr. Choudhury also submits that when the complaint was not send to police, the learned Magistrate ought to have returned the complaint. I do not find any force in such submission, inasmuch as, Section 156 (3) CrPC is only an enabling provision, which empowers the Magistrate to order an investigation of a case, which the police is otherwise empowered to investigate without permission or without being sent by Magistrate, if the offence are cognizable. The enabling provision under Section 156 (3) CrPC only gives a discretion to the Magistrate. If the Magistrate finds that a complaint does not deserve to be sent to police, he can very well take cognizance.

8. It is to be borne in mind that power under Section 156 (3) can be exercise only when the Magistrate is empowered under Section 19