A Magistrate cannot send a case for police investigation under S.156 (3) of the Code after taking cognizance of the matter.

1. Briefly the case of the petitioner is that he had been working as a Secretary of Nanhera Co-operative Agricultural Service Society for about 20 years. One Banwari son of Kundan Lal Saini, resident of village Nanhera, Tehsil Naraingarh, filed complaint against the petitioner under S.408/420, Criminal Procedure Code (hereinafter referred to as the Code), in the Court of Judicial Magistrate Ist Class, Ambala City, on May 24, 1976. The Magistrate, on the same day, passed the following order:-

"Complaint presented today. The same be registered. Now the complaint to come up for the statement of the complainant on 29-5-1976."

On May 29, 1976, the complaint came up before the Magistrate for hearing. He on that day passed the following order:-

"The case is cognizable. S.H.O. Naraingarh is ordered to make an investigation of the case under S.156 (3) of the Criminal Procedure Code."

It is stated by the petitioner that the order dated May 24, 1976, shows that the Magistrate had taken cognizance of the complaint on that date and in case he had done so, he could not direct investigation by the police, under S.156 (3) of the Code. He further states that such an investigation could be ordered by the Magistrate only prior to taking cognizance of the offence on a complaint. It is also alleged by him that on the basis of the investigation, the police has recorded first information report No.49 dated June 21, 1976, in the Police Station, Naraingarh. The petitioner has, therefore, prayed that the above said first information report and the order of the Judicial Magistrate dated May 29, 1976, ordering investigation under S.156 (3) be quashed.

2. It is contended by the learned counsel for the petitioner that a reading of the order dated May 24, 1976, shows that the Magistrate applied his mind and after doing so, he ordered that the complaint be registered and the statement of the complainant be recorded. For that purpose he adjourned the complaint to May 29, 1976. According to the counsel, if the Magistrate took cognizance of the matter, then he could not direct the police to make an investigation under S.156 (3) of the Code. On the other hand, the learned counsel for the State has vehemently argued that the aforesaid orders do not show that the Magistrate had applied the mind and they do not amount to taking cognizance of the offence.

3. I have heard the learned counsel for the parties at a considerable length. In order to determine this question, it will be necessary to refer to some of the sections of the Code as the words taking cognizance have not been defined.

4. Section 156 forms part of Chapter XII, which relates to information to the police and is as follows:-

"156 (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 proceedings 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 S.190 may order such an investigation as above mentioned."

Chapter XIV is regarding conditions requisite for initiation of proceedings. S.190 is a part of this chapter. It relates to cognizance of offences by Magistrates and reads as under:-

"190 (1). Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-s (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magist