The Magistrate can order investigation under Section 156(3) of Cr.P.C. at the pre-cognizance stage, even for offences exclusively triable by the Sessions Court.

This petition has been filed by the petitioner/accused under Section 482 of Cr.P.C. for quashing the FIR registered at crime No. 42/2016 on 18.01.2016 by respondent No. 1 at Police Station Panna.

2. The petitioner has stated that, a written complaint has been lodged by the respondents against the petitioner before the Court of Judicial Magistrate First Class, Panna for committing offence punishable under Sections 409, 420, 468 and 471 of the IPC. The offences alleged in the complaint are exclusively triable by the Sessions Court but the Judicial Magistrate First Class under Section 156(3) of Cr.P.C. directed the respondent No.1 to inquire the matter. Police registered FIR vide order dated 12.01.2016 against the petitioner.

3. The petitioner prays to quash the FIR registered at Crime No.42/2016 on the grounds that the cognizance of the offence is taken by an incompetent Court. For the offences exclusively triable by the Sessions Court, the Magistrate cannot direct the police under Section 156(3) of Cr.P.C. for investigation.

4. The learned counsel for the petitioner has place reliance on the case of Nanjiram S/o Mohan Lal Lodha Vs. State of MP, 2008 (4) MPLJ 581, a Coordinate Bench of this Court has held that if the offence is exclusively triable by the Court of Session, Magistrate has no jurisdiction to direct investigation by police officers in exercise of powers under Section 156 (3) of the Code, Magistrate has to make enquiry himself under Section 202.

5. Learned counsel for the respondents vehemently opposed the contentions of the learned counsel for the petitioner.

6. Arguments of both the learned counsel for the parties heard. Perused the record.

7. Before reaching to any conclusion it is pertinent to look into the provisions of Section 156 of Cr.P.C :

(I) Police officer' s power to investigate cognizable case.

(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 proceeding 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 section 190 may order such an investigation as above- mentioned.

8. In view of the above, it is apparently clear that it was obligatory on the part of the Magistrate to summon witness who have been cited by the complainant under Section 202 of Cr.P.C. On the other hand, the Magistrate can order for investigation under Section 156(3) of Cr.P.C. at the pre-cognizance stage even when the complainant lodges offence of the session triable case. Further, the question arise in the present case is that “whether the learned Magistrate can take cognizance of the instant matter”. In paragraph ‘E’ of the petition, the petitioner himself narrated that “since the genesis of the FIR itself is contrary and no further proceeding has been done, neither the investigation is concluded nor any charge-sheet is filed but under the garb of institution of the criminal prosecution, petitioner is harassed by the police which shows that case is at pre-cognizance stage.

9. The standard required by the Magistrate while taking cognizance is well settled by the Supreme Court in catena of judgement. In case of Subramanian Swamy Vs. Manmohan Singh, (2012) 3 SCC 64, the Hon’ble Supreme Court has explained the meaning of the word ‘cognizance’ holding that :

“In legal parlance cognizance is taking judicial notice by the Court of law, possession jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause of matter judicially.”

10. The Hon’ble Supreme Court in case of Rajendra Rajoria Vs. Jagat Narayan Thapak & Ors., (2018) SCC Online SC 159 further he