The main legal point established in the judgment is that once the Magistrate takes cognizance on a private complaint, he cannot forward the complaint for investigation under section 156(3) Cr.P.C., and the police's registration of the case and the FIR was without jurisdiction.

1. - This misc. petition by the accused has been filed seeking quashment of the F.I.R. No. 186/98 of Police Station Sardar Sahar.

2. Mr. Shah pointing out that Suraj Bhan, respondent no. 2 filed the complaint on 14.5.98 and the Magistrate ordered its listing on 15.5.98 and on that day the complaint was registered and thereafter on 18.5.98 the complainant sought time to produce his witnesses and the witnesses were not examined till 26.5.98 but on that date instead of recording evidence of the complainant and his witnesses the Magistrate forwarded the case to the Police, contends that once the Magistrate had taken cognizance on the private complaint he could not legally send the case for investigation by the police and FIR could not be registered on the order of the Magistrate. He cites the case of Nathu v. State of Rajasthan RLR 1994(1)-39 in support of his contention.

3. Mr. Kumbhat, learned counsel for the complainant as also the learned Public Prosecutor do not dispute this position that after taking cognizance on the private complaint the Magistrate had no power to send the case under Section 156(3) Cr.P.C. for investigation. Their contention is that as a matter of fact the Magistrate had only sent the complaint for investigation by the police in exercise of his power under Section 202 Cr.P.C. but the police registered the case on the complaint.

4. It is now well settled that when the Magistrate decides to proceed on the complaint he decides to examine the complainant and his witnesses it amounts to taking of cognizance of the offence. In the case of Nathu (supra) it has been clearly held that once the Magistrate decides to take cognizance on the private complaint he cannot forward the complaint under section 156(3) Cr.P.C. for investigation. In the instant case what was ordered by the Magistrate was to send the complaint to the SHO, PS Sardar Sahar for necessary action. In the order dated 26.5.98 it is also mentioned that the complainant requested the Court that the case may be sent to the police for investigation. It is obvious that the Magistrate when directed to send the complaint to the police, it was done so under Section 202 Cr.P.C.

5. Under Section 202 Cr.P.C. any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance under Section 190, may if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself 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.

6. In the instant case the Magistrate did not record in the order dated 26.5.98 that he was forwarding the complaint in exercise of power under-section 156(3) Cr.P.C. The wording of the order indicate that the Magistrate did not want the registration of the case by the police, but he had directed the investigation to be made by the police under Section 202 Cr.P.C. The police obviously has committed error in registering the FIR on the basis of the order of the Magistrate. The police ought to have held investigation under section 202 Cr.P.C. as directed by the Magistrate. The registration of the case by the police was without jurisdiction. The FIR is liable to be quashed.

7. Consequently, the petition succeeds. The FIR No. 186/98 Police Station Sardar Sahar is quashed. It is made clear that the police shall hold investigation under Section 202 Cr.P.C. as directed by the Magistrate.Petition Succeeds-F.I.R. Quashed.

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