Back
2008 Supreme(MP) 872
HIGH COURT OF MADHYA PRADESH
A.P. Shrivastava, J.
NANJIRAM
Versus
STATE OF M P
Decided On : Aug 18,2008
S.K.TIWARI, V.S.Chaturvedi,
Headnote:(i) Criminal Procedure Code, 1973—Section 156(3) and 202 (2) proviso—Whether Magistrate had power to direct investigation under Section 156(3) Cr.P.C. in case of complaint in which allegations were for offence triable by Sessions Court? No.
Held: In the case of Laxmidhar Das etc, and others v. State of Orissa and another reported in 2004 Cri. L. J. 2816, it is held that in case the offence is triable exclusively by the Court of Session, the Magistrate has no jurisdiction to direct investigation by police officer in exercise of powers under Section 156(3) Cr.P.C. He has to make inquiry himself as provided under Section 202 of Cr.P.C.
Sub-Section (2) of Section 202 of Cr. P.C. serves the purpose of preliminary inquiry as regards private complaint triable exclusively by a Court of Session. It is evident that the legislature intended two different types of enquiries, a discretionary enquiry in ordinary complaint case and a mandatory enquiry in complaint case under Section 202 of Cr.P.C. In a discretionary enquiry the Magistrate can either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit. In a mandatory enquiry in a complaint case that discretion is taken away by proviso (a) to Section 202(1) of Cr.P.C. The Magistrate will have to conduct the enquiry himself and he cannot order investigation. The scheme of the provisions and the language employed in the proviso show that conducting of enquiry in complaint case is not left to the discretion of the Magistrate concerned. The Magistrate has no discretion except to call upon the complainant to produce all his witnesses and examine them on oath. The provisions of Section 202(2) are mandatory. In this regard, reliance can be placed in the case of Moideenkutty Haji v. Kunhikoya, AIR 1987 Ker. 184 and in the case of Rosy (supra). (Paras 9 & 10)
The next question is what would be the impact if all the witnesses were examined under Section 202 of Cr.P.C. In this regard, the Hon’ble Apex Court in the case of Rosy (supra) held that when the offence, sought to be taken cognizance of by the Magistrate, is exclusively triable by the Court of Session, the statute does not expressly provide for nullification of the committal order as a consequence of non-compliance of proviso to sub-section (2) of Section 202 Cr.P.C, but provides that unless prejudice is caused, the order is not to be set aside. This would mean that during inquiry under Section 202 when Magistrate examines the witnesses on oath, as far as possible proviso is to be complied with but the mandate is not absolute. Further where objection as to how prejudice was caused, was not raised at earliest stage, fresh inquiry into Section 202 is unnecessary. (Para 11)
(ii) Criminal Procedure Code, 1973—Section 397—Revision—In a private complaint for offences under Sections 147, 148, 323, 395 r/w 149 IPC Magistrate ordered investigation under Section 156(3) Cr.P.C. by Police and on submission of report by police took cognizance of offence under section 147, 323 r/w 149 IPC and summoned accused persons—Complainant filed revision and Sessions Court set aside the whole order of trial Court—Whether Court was justified in setting aside whole order in absence of accused persons challenging the order? No.
Held: In this regard, as the order on the part of those accused is also set aside against whom the learned trial Court took cognizance partly and after setting aside the order directed to examine all the witnesses as per provisions laid down under Section 202(2) of Cr.P.C. It may cause prejudice to the accused persons who have not filed revision petition against the said order as the learned Court already took cognizance against the concerned persons and order is passed against them, which may cause prejudice to the concerning party. Therefore, the order of the revisional Court is set aside and case is remanded back with a direction to issue notice to the aggrieved persons against whom the learned trial Court has registered the complaint and after hearing the complainant and the accused persons, may pass order. (Para 14)
Result: Misc. Cri C. disposed of.
( 1. ) BEING aggrieved by the order dated 19. 9. 2003, passed by the judicial Magistrate First Class, Raghogarh, district Guna (M. P.) in Criminal Case No. 356/2003, which has been set aside by the ii Additional Sessions Judge, Guna in criminal Revision No. 223/03, vide order dated 24. 8. 2004, this petition under Section 482 of the Code of Criminal Procedure Code has been filed by the petitioner.
( 2. ) THE facts giving rise to this petition in short, are that the petitioner filed a private complaint in the Court of Judicial Magistrate First Class, raghogarh under Sections 147, 148, 323, 395 read with Section 149 of ipc against 28 accused persons, in which about 18 accused persons were Police Officers. Prior to the date of incident, a murder case was got registered against 15 family members belonging to the complainant. The learned trial Court sent the complaint under section 156 (3) of Cr. P. C. to the police for investigation and after receiving the report from the police, dismissed the complaint against all the accused persons under Sections 148 and 395 of IPC and took cognizance against accused Vijay Singh, lekhraj, Komal, Lal Singh, Ram Singh, prabhulal, Bahadur Singh, Kamal Singh, chhatar Singh and Kalyan Singh under sections 147 and 323 read with Section 149 of IPC and they were summoned on 19. 9. 2003. ( 3. ) LEARNED counsel for the petitioner submits that as per allegation of the complainant, the offence is triable exclusively by the court of Session. Therefore, the learned trial Court has committed illegality by calling report under Section 156 (3) of Cr. P. C. It is the duty of the Magistrate to consider the case as per provision of Section 202 of cr. P. C. to examine all the witnesses and thereafter he shall take cognizance of the offence. But in this case the Court with the aid of Section 156 (3) of Cr. P. C. registered the case against few accused persons under sections 147, 323 read with, Section 149 of ipc and not registered the complaint for the offence under Section 395 read with Section 149 of IPC. Further, it is also submitted at the revision petition was filed by the complainant against the order of the learned trial Court partly registered the criminal complaint.
( 4. ) BEING aggrieved by the order of the learned trial Court the complainant filed a revision petition but the Sessions Court committed error by setting aside the complete order dated 19. 9. 2003 of the learned trial Court when there was no revision filed by the accused persons against whom the case was registered under Sections 147,323 read with 149 of IPC. As there was no revision filed by the aggrieved persons, the Sessions Court ought not to have set aside the whole order of the learned trial Court. It is also submitted that the Sessions Court by passing the impugned order, mis-construed the facts and law against the cognizance of offences which are exclusively triable by the court of Session. The revision was filed only for direction to the learned trial Court for taking cognizance against the remaining accused persons by complying the provisions of Section 202 (2) of Cr. P. C. In this regard, learned counsel for the petitioner relied on rosy and another v. State of Kerala and others.
( 5. ) ON behalf of the respondent, the impugned order has been supported by learned public Prosecutor.
( 6. ) TWO points are involved in this case, whether the learned trial court has power to direct investigation under Section 156 (3)of Cr. P. C. in case of complaint in which the allegations are that it is triable by the Court of Session and second is that when accused persons who are aggrieved persons, have not filed any revision against the cognizance of offence taken by the learned trial Court, whether the Sessions Court has power to set aside the whole order instead which was challenged by the petitioner in the revision petition?
( 7. ) SECTION 156 (1) of Cr. P. C. lays down that any officer in charge of a police station may, without the order of a
