Point of Law : Need for police investigation depends upon nature of allegations.

ORDER :

The challenge in this Crl.M.C. is to the order dated 23.11.2022 in CMP.No.2948 of 2022 passed by the Judicial First Class Magistrate Court-I, Thiruvananthapuram. The petitioner is the complainant in the Court below. She is an entrepreneur in the field of preschool education for children. She is running a kindergarten at Pongumoodu. The kindergarten was established on a property having an extent of 30 cents of land with a building bearing No.BN-52 (SIVA); T.C.5/4372 at Bapuji Nagar, Thiruvananthapuram. The land and building were leased out by one Sivaprakash to the complainant.

2. Sri. Sivaprakash initiated steps to evict the petitioner from the tenanted premises. The petitioner filed a suit before the Munsiff’s Court, Thiruvananthapuram, against Sri. Sivaprakash seeking protection against forcible eviction. An interim order was passed by the Munsiff’s Court in favour of the petitioner. During the pendency of the suit, Sri. Sivaprakash entered into an agreement with one Sri. Ajaya Kumar for the sale of the tenanted premises. Sri. Sivaprakash and his lawyer Sri. Zakeer Husain jointly made an attempt to evict the petitioner. On 11.10.2022, the petitioner found new locks installed on the doors of the building. The petitioner filed a complaint before the Station House Officer, Sreekaryam Police Station. Sri. Sivaprakash and his lawyer committed theft of the valuables that belong to the petitioner between the evening of 28.10.2022 and the morning of 31.10.2022, and thereafter, a suit was instituted as O.S.No.1620/2022 before the Munsiff’s Court claiming that the petitioner had voluntarily vacated the tenanted premises and that she has attempted to trespass upon the building.

3. The petitioner instituted a complaint against Sri. Sivaprakash and Sri. Zakeer Husain alleging offences under Sections 294(b), 341, 380, 447, 448, 451(ii), 509 and 34 of the Indian Penal Code.

4. The petitioner prayed for referring the complaint to the Police under Section 156(3) of Cr.P.C. The learned Magistrate passed the following order:-

“Since the matter is pending consideration before the civil courts, I find that an enquiry u/s.202 of Criminal Procedure Code is suitable and necessary in this case. In the result, the case is posted for recording the sworn statement of the complainant to 05.12.2022.”

This order is under challenge in this Crl.M.C.

5. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

6. The learned counsel for the petitioner contended that the Court below failed to apply sound judicial reasoning while exercising the discretion under Section 156(3) Cr.P.C.

7. Section 156 reads thus:-

“156. Police officer’s power to investigate cognizable case.—(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.”

8. The expression “may” in Section 156(3) Cr.P.C. indicates the discretion of the Magistrate to direct the complainant to examine witnesses under Sections 200 and 202 Cr.P.C. instead of directing an investigation under Section 156(3).

9. In Sakiri Vasu v. State of U.P. [(2008) 2 SCC 409], the Apex Court, while dealing with the scope of Section 156(3) Cr.P.C., held that if an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. It was further held that the Magistrate could also, under the same provisio