Point of Law: distinction between the investigation by the police officer under Section 156(3) and under Section 202(1) Cr.P.C. is that the former is at the pre-cognizance stage and the latter is at post cognizance stage, when the Magistrate is seisin of the case. The investigation under Section 202(1) Cr.P.C. is for the purpose of ascertaining the truth or false hood of the complaint for helping the Magistrate to decide, whether or not there is sufficient ground, for him to proceed further against the accused by issuing process, whereas, the inquiry report under Section 173(2) Cr.P.C. of the investigation made by the police of its own or under the directions of the Magistrate under Section 156(3) Cr.P.C. is for the purpose of enabling the Magistrate to take cognizance of an offence under Section 190(1)(a) Cr.P.C.

Headnote:
Code of Criminal Procedure, 1973 – Sections 482, 156, 157, 200, 202, 173 – Quash - Reconsideration of Application – Application/petition under Section 482 Code of Criminal Procedure (Cr.P.C.) has been filed challenging the order dated 28.08.2020, passed by learned Additional Civil Judge (Senior Division), Meeerut, in Case and for a direction to the court below to reconsider the application of the applicant under Section 156(3) Cr.P.C. and register the FIR against the opposite party nos. 2 to 6. –
Finding of the Court:
Order under challenge the learned Magistrate while passing the impugned order has considered and placed reliance on the cases of 'Suresh Chand Jain Vs. State of M.P.', reported in AIR 2001 SC 571 and 'Sukhwasi Vs. State of U.P.', 2007(6) ALJ 424 – Magistrate has recorded that all the facts and circumstances of the case are in the knowledge of the applicant – The applicant is well acquainted with the accused persons and all the evidence that can be led is in control of the applicant – Neither any fact is required to be investigated by police nor any recovery is needed, and in this regard the applicant/complainant is competent to adduce evidence, so there is no need of investigation of the case by the police. – Counsel for the applicant could not demonstrate any legal infirmity in the order under challenge – The order is speaking one and has been passed on judicious application of mind to the facts of the case and the law applicable thereto. – Court do not find any illegality in the order passed by the learned magistrate. – It is clarified that if on the course of proceedings of the complaint case the learned Magistrate finds it a fit case for investigation by the police or such other person as he thinks fit under Section 202(1) Cr.P.C. for the limited purpose of satisfying himself for proceeding further against the accused persons for their summoning, the dismissal of this petition or the order under challenge herein, would not come in the way of exercise of such power under Section 202(1) Cr.P.C. by the learned Magistrate. –
Result: Petition Dismissed

JUDGMENT :

1. Heard Sri Sunil Kumar Tiwari, learned counsel for the applicant and learned AGA appearing for the State and perused the material brought on record.

2. This application/petition under Section 482 Code of Criminal Procedure (Cr.P.C.) has been filed challenging the order dated 28.08.2020, passed by learned Additional Civil Judge (Senior Division), Meeerut, in Case No.43/11 of 2020 (Rajkumar Vs. Ashok Kapoor and others), and for a direction to the court below to reconsider the application of the applicant under Section 156(3) Cr.P.C. and register the FIR against the opposite party nos. 2 to 6.

3. Briefly stated facts of the case as per the application/petition are that there is some property dispute between the applicant and opposite party nos. 2 to 8. According to the applicant the opposite party nos. 2 to 6 have made forged sale deed of the property in question. In this respect the applicant has moved an application before the concerned police station as well as the SSP concerned, to lodge the FIR against the opposite party nos.2 to 6, but when they did nothing, then the applicant moved an application under Section 156(3) Cr.P.C. in the court of learned Additional Civil Judge (Senior Division), Meerut, which was treated as complaint case, with direction to the applicant for recording of his statement under Section 200 Cr.P.C., by order dated 28.08.2020, which is under challenge in the present application under Section 482 Cr.P.C.

4. Learned counsel for the applicant has submitted that the order under challenge does not secure the ends of justice, in as much as the learned Magistrate has registered the application under Section 156 (3) Cr.P.C. as a complaint case and has directed the applicant/complainant to record his statement under Section 200 Cr.P.C. His submission is that the learned Magistrate must have directed the police to register the FIR and make investigation and submit report under Section 173(2) Cr.P.C., as the averments in the complaint/application under Section 156(3) Cr.P.C. disclosed commission of a cognizable offence, and if the application disclosed commission of a cognizable offence, the Magistrate must have directed for investigation by police before taking cognizance and must not have taken upon himself to inquire into the matter after taking cognizance by registering the application as a complaint case.

5. Learned counsel for the applicant has submitted that in view of the nature of the averments and the offence disclosed in the application, without any police investigation the matter could not be resolved. He has submitted that the order passed by the Magistrate suffers from non-application of mind to the facts of the case and the law applicable therein.

6. Learned counsel for the applicant has placed reliance on the judgment of the Constitution Bench of the Hon’ble Supreme Court in ‘Lalita Kumari Vs. Government of U.P. and others’, 2014 (2) SCC 1, and the judgments of this Court in ‘Jitendra Kumar Vs. State of U.P. and others’, Criminal Revision No.1768 of 2018, decided on 29.05.2018; ‘Shiv Mangal Singh Vs. State of U.P. and others’, Criminal Revision No.715 of 2019, decided on 25.02.2019.

7. Learned AGA has submitted that the Magistrate has the jurisdiction to direct the police to register the F.I.R. and make investigation without taking cognizance. But, he has also the jurisdiction to take cognizance and proceed to inquire the matter by himself, registering the application as a complaint case. In such circumstance he has to follow the procedure prescribed for complaint case. He has submitted that the Magistrate while proceeding as a complaint case has still the power to direct for police investigation, in view of Section 202(1) Cr.P.C. If the Magistrate in his discretion has adopted the option of registering the application as a complaint case, no illegality has been committed by the Magistrate. Learned A.G.A. has placed reliance on the case of ‘Sukhwasi Vs. State of U.P. and others’ 2007 (59) A

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2020 Supreme(All) 768

IN THE HIGH COURT OF ALLAHABADRavi Nath Tilhari, J.Rajkumar Kapoor – ApplicantVersusState Of U.P. And Others - Opposite PartiesApplication U/S 482 No. - 14434 of 2020Decided On : 18-12-2020

Cases Referred (18)

IN THE HIGH COURT OF ALLAHABAD
Ravi Nath Tilhari, J.
Rajkumar Kapoor – Applicant
Versus
State Of U.P. And Others - Opposite Parties
Application U/S 482 No. - 14434 of 2020
Decided On : 18-12-2020