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1996 Supreme(P&H) 1043
PUNJAB & HARYANA HIGH COURT
M.L.Koul, J.
Suresh Kumar
Versus
State Of Haryana
Criminal Miscellaneous No. 15613 of 1995,
Decided On : JULY 18, 1996
A Magistrate cannot order the registration of a case under Section 156(3) of the CrPC but can only refer the complaint to the police for investigation.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 156(3) - SECTION 190 - MAGISTRATE'S POWER TO ORDER INVESTIGATION - DISTINCTION - MAGISTRATE CANNOT DIRECT REGISTRATION OF CASE UNDER SECTION 156(3) - CAN ONLY REFER COMPLAINT TO POLICE FOR INVESTIGATION - POLICE REPORT NOT FINAL - MAGISTRATE CAN DISCHARGE ACCUSED, ISSUE PROCESS, OR TAKE ACTION UNDER SECTION 190.
Fact of the Case:
The petitioners were accused of dowry harassment and cruelty towards the complainant, who was married to the first petitioner. Two FIRs were registered against them, one under Section 406/498A of the Indian Penal Code (IPC) and the other under Section 498A/34 IPC. The petitioners challenged the registration of these FIRs, arguing that the Magistrate had no power to order the registration of cases under Section 156(3) of the CrPC and could only refer the matter to the police for investigation.
Finding of the Court:
The court held that the Magistrate had no power to order the registration of cases under Section 156(3) of the CrPC and could only refer the complaint to the police for investigation at the pre-cognizance stage. The report submitted by the police was not final, and the Magistrate could discharge the accused, issue process against them, or take action under Section 190 of the CrPC upon receipt of the report.
Issues: Whether the Magistrate had the power to order the registration of cases under Section 156(3) of the CrPC.
Ratio Decidendi: The court relied on several Supreme Court and Division Bench judgments to hold that the Magistrate's power under Section 156(3) of the CrPC was limited to referring the complaint to the police for investigation and did not extend to ordering the registration of cases. The court also noted that the police report was not final and that the Magistrate could take appropriate action upon receipt of the report.
Final Decision: The court quashed the orders of the Chief Judicial Magistrates directing the registration of the FIRs and held that the Magistrates could proceed with the cases afresh in accordance with law.
M.L.Koul, J.
1. This order shall dispose of Crl. Misc. No. 15613-M of 1995 and Cri.M. No. 15402-M of 1995 relating to quashing of F.I.R. No. 61 dated 21.2.1989 under Sections 406/498A, I.P.C. Police Station, Thanesar and F.LR. No. Ill dated 1.2.1994 under Sections 498A/34, I.P.C. Police city, Karnal respectively. Since identical questions of law and facts are involved in both these cases, therefore, these are bracketed together for the purposes of disposal.
2. Respondent No. 2 (hereinafter referred to as the complainant) was married to petitioner No. 1 Suresh Kumar at Thanesar, on 19.2.1987 according to Hindu custom and rites. The other two petitioners Piara Lal and Darshana Devi are her father-in-law and mother-in-law. It is alleged in the complaint that soon after the marriage took place the petitioner (hereinafter referred to as the accused) who were showing idealism and moral value proved otherwise and tortured the complainant and made many demands for the dowry as a result of which the first complaint was filed by her in the year 1988. The same was formulated as F.I.R. No. 61 dated 22.1.1988 by the police on the order of the Chief Judicial Magistrate, Kurukshetra, who sent the complaint to the police for registration and investigation of the case under Section 156(3), Cr.P.C. After the report was submitted by the police the accused faced trial for an offence under Section 406 of the Indian Penal Code before the said Chief Judicial Magistrate.
3. On the similar facts of the case the complainant filed another complaint in the year 1994 with the Chief Judicial Magistrate, Karnal who sent it down to the police for registration and investigation of the case. It was registered as F.I.R No. Ill dated 8.2.1994 and on completion of the investigation the report was made and the accused are facing trial before the said Chief Judicial Magistrate under Sections 498-A/34 of the Indian Penal Code.
4. In the earlier case although report under Section 173 of the Cr.P.C. was filed under Sections 406/498-A of the Indian Penal Code but the Trial Court charge-sheeted the accused for an offence under Section 406 of the Indian Penal Code only and refused to frame charge under Section 498-A of the Indian Penal Code for want of jurisdiction.
5. This order of the Magistrate was upheld by the Revisional Court i.e. the learned Additional Sessions Judge, Kurukshetra and by this Court as well vide its order dated 15.10.1993 holding that the revision was decided by the 1st Revisional Court by a speaking order and therefore, no interference by this Court under Section 482, Cr.P.C. was called for.
6. In the other case the accused have been charge-sheeted for an offence under Sections 498-A/34 of the Indian Penal Code.
7. Heard learned Counsel for the parties and also had a thoughtful consideration over the record on file.
8. It is vehemently argued by the learned Counsel for the accused that the Magistrate had no power to ask for the registration of the cases and they could simply refer the matter to the police investigation contemplated under Section 156(3) of the Cr.P.C.
9. Chapter XII of the Cr.P.C. deals with information to the police and the powers of the police to investigate a crime. Section 156(3) of the Cr.P.C. runs as under:
"Any Magistrate empowered under Section 190 may order such an investigation as above mentioned."
This section is placed under Chapter XII of the Cr.P.C. and not under Chapter XIV where Section 190 is placed. It is, therefore, clear that both these Sections 190 and 156(3) are mutually exclusive and work in totally different spheres. Suppose if a Magistrate receives a complaint under Section 190 he can act under Section 156(3) provided that he does not take cognizance. Once the Magistrate takes the cognizance under Section 190 he cannot resort to Section 156(3) of the Cr.P.C. In the instant case the Chief Judicial Magistrates at the pre-cognizance stage have referred the complaints to the police for investigation unde
