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1993 Supreme(All) 1
HIGH COURT OF ALLAHABAD
A.S.Tripathi
RAJENDAR PRASAD MISHRA
Versus
STATE OF U P
Decided On : 03 January 1993
Criminal Revision No. 1367 of 1993,
A Magistrate cannot treat an application under Section 156(3) of the CrPC as a complaint and cannot examine the complainant and witnesses under Section 200 of the CrPC in the absence of a formal complaint.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 156(3) - SECTION 200 - SECTION 2(D) - APPLICATION UNDER SECTION 156(3) TREATED AS COMPLAINT - MAGISTRATE'S POWER TO INVESTIGATE COGNIZABLE OFFENCE - DEFINITION OF COMPLAINT - PROCEDURE FOR TAKING COGNIZANCE OF OFFENCE ON COMPLAINT - DISTINCTION BETWEEN APPLICATION UNDER SECTION 156(3) AND COMPLAINT - MAGISTRATE'S JURISDICTION TO EXAMINE COMPLAINANT AND WITNESSES - VALIDITY OF SUMMONING ORDER ISSUED WITHOUT FORMAL COMPLAINT - QUASHING OF IMPUGNED ORDER AND DIRECTION FOR INVESTIGATION OF CASE.
Fact of the Case:
The applicant alleged that a dacoity had taken place at his house and that the police refused to lodge a report or register a case. He sent a telegram to the Senior Superintendent of Police, Allahabad, but no action was taken. He then filed an application under Section 156(3) of the Code of Criminal Procedure (CrPC), which was treated as a complaint by the Magistrate. The Magistrate examined the complainant under Section 200 of the CrPC and summoned the accused.
Finding of the Court:
The court held that the Magistrate erred in treating the application under Section 156(3) of the CrPC as a complaint and in examining the complainant under Section 200 of the CrPC in the absence of a formal complaint. The court further held that the Magistrate's order summoning the accused was not sustainable in law.
Issues: 1. Whether the Magistrate had the power to treat the application under Section 156(3) of the CrPC as a complaint? 2. Whether the Magistrate could examine the complainant and witnesses under Section 200 of the CrPC in the absence of a formal complaint? 3. Whether the Magistrate's order summoning the accused was valid?
Ratio Decidendi: 1. An application under Section 156(3) of the CrPC is not a formal complaint as defined under Section 2(d) of the CrPC. 2. A Magistrate can take cognizance of an offence only if a complaint is made to him in accordance with Section 200 of the CrPC. 3. The Magistrate's order summoning the accused was not sustainable in law as it was issued in the absence of a formal complaint.
Final Decision: The court quashed the Magistrate's order treating the application under Section 156(3) of the CrPC as a complaint and directed the police to register a case and investigate the matter according to law.
This revision is directed against an order dated 7-9-J993 passed by Vith Addl, Chief Judicial Magistrate, Allahabad in Criminal Case No. 1021 of 1993 directing that application under Section 156 (3), Cr. P. C. , he treated as complaint.
2. I have heard learned Counsel for the revisionist and learned A. G. A. appearing for the State.
3. In this particular case it is alleged that a dacoity had taken place at the house of the applicant on 6-8- 1993. It is alleged that the applicant want to the police station concerned to lodge a report. The police of the Police Station Manda District Allahabad did not lodge the report and also did not register the case. The applicant sent a telegram to the Senior Superintendent of Police, Allahabad same day, which is Annexure No. 1 to the affidavit filed in support of the revision.
4. The police did not investigate the case. Then an application under Section 156 (3), Cr. P. C. , was moved before the Vlth Addl. Chief Judicial Magistrate, Allahabad. On that application the impugned order dated 7-9-1993 was passed wherein the application under Section 156 (3), Cr. P. C. , was treated as complaint. The learned Magistrate directed that the statement of the complainant recorded under Section 200, Cr. P. C. Against this order the present revision has been filed.
5. After hearing learned Counsel for the revisionist and the learned A. G. A. appearing for the State it appears that the learned Magistrate while treating the application under Section 156 (3), Cr. P. C. , as a complaint finally refused the prayer of investigation of the case by the police. This refusal of the said
prayer is final order and it could not be argued that the revision was not maintainable in view of the fact that the impugned order was interlocutory.
6. Reference was made to the case of "chhedi and others v. State of U. P. and another" reported in 1991 U. P. Criminal Rulings page 293. In that case Honble Mr. Justice B. P. Singh held that the Magistrate while treating the application under Section 156 (3), Cr. P. C. as a complaint and directing the examination of the complainant under Section 200, Cr. P. C. was not acting legally. An application under Section 156 (3), Cr. P. C. is not a formal complaint as defined under Section 2 (d) of the Code of Criminal Procedure. In the case of Chhedi and others v. State of U. P. and another, (reported above), this Court had observed that:
"section 156 (3) of the Code deals with the powers the Police Officer to investigate cognizable case. Under Section 156 (3) of the Code any Magistrate empowered under Section 190 may order for investigation in a cognizable offence by the Police Officer concerned. Chapter XV of the Code deals with the complaints to Magistrate and Section 200 specifically provides that a Magistrate taking cognizable of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. Thus, it is quite clear that under Section 200 of the Code a Magistrate can take cognizance only if a complaint in this regard is made to him. Section 2 (d) of the Code defines complaint and provides "that complaint means any allegations made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person whether known or unknown, has committed an offence, but does not include a police report. "
In that case it was further held that:
"where the applicant moves an application before the Magistrate whh the staple prayer that the Police Officer concerned may be directed to register a case under a particular section and prayer for further direction is made that the police officer concerned may also proceed is accordance with law cannot be termed as complaint as denned under Section 2 (d) of the Code. T Magistrate has no power to proceed under Section 200 of the Code
