VERY IMPORTANT POINT
Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) Cr.P.C.; in such case he is not to examine complainant on oath.

Headnote:Code of Criminal Procedure, 1973-Section 156(3) r/w Section 200-Private complaint-Magistrate s jurisdiction to direct police to investigate-Before taking cognizance of offence-Magistrate can order police to register FIR and conduct investigation-In such a case he is not bound to examine complainant on oath.
       Chapter XII of the Code contains provisions relating to "information to the police and their powers to investigate", whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether though there could be a common factor i.e. complaint filed by a person. Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences. True, Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to "direct an investigation by a police officer". But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code. (Para 7)
       Any judicial magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in-charge of the police station as indicated in Section 154 of the Code. Even if a magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer-in-charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. (Para 10)

JUDGMENT

Thomas, J.-Leave granted.

2. A complaint was forwarded by a magistrate to the police for registering an FIR and for conducting investigation. One of the persons arrayed in the complaint as accused questioned the legality of the above order first in revision before the Sessions Court and then by invoking the inherent powers of the High Court. Both did not succeed. This appeal is by the same person contending that the order of the magistrate should have been upset in the interest of justice.

3. The complaint was filed by the second respondent (Mahesh Patidar) before the Chief Judicial Magistrate, Neemuch (M.P.) on 12.8.1999 alleging that the appellant and his wife Geeta Devi have committed offence under Section 3 of the Prized Chits and Money Circulation Scheme (Prohibition) Act and under Section 420 of the Indian Penal Code. The Chief Judicial Magistrate passed an order on 18.8.1999 which is extracted below :

"The complaint submitted by the complainant has been perused. This complaint has been submitted by the complainant for initiating action against the accused under Section 3 of the Prizes, Chits and Money Circulation Scheme (Prohibition) Act and Section 420 of the IPC. Both the offences are serious, therefore, the case is required to be investigated by the police station, Nemuch Cantt. under Section 156(3) Cr.P.C., therefore, the complaint submitted by the complainant be sent to the In-charge, Police Station Neemuch Cantt. with the direction to register F.I.R. and initiate investigation. The copy of the F.I.R. and initiate investigation. The copy of the F.I.R. be sent for this court immediately."

4. Appellant challenged the said order in a revision before the Sessions Court and when the revision was dismissed he moved the High Court under Section 482 of the Code of Criminal Procedure (for short the Code ). Learned Single Judge of the High Court of Madhya Pradesh took the view that "in a private complaint case under Section 156(3) of the Code the magistrate is empowered to order investigation; the allegation made in the complaint needs to be investigated in public interest."

5. Shri R.K. Jain, learned senior counsel contended first that a magistrate on receipt of a complaint should have examined the complainant on oath before proceeding to any other step. Learned senior counsel adopted the alternative contention that the magistrate has no power to direct the police to register an FIR. In support of the said contention learned counsel cited two decisions. One is Ram Narain v. Lokuram1 and the other was rendered by the Punjab and Haryana High Court in Suresh Kumar v. State of Haryana2.

6. The former decision of the Rajasthan High Court need not vex our mind as the consideration focussed therein was on the scope of Section 202(1) of the Code and the learned Single Judge observed therein that a magistrate cannot make any order regarding police investigation without examining the complainant on oath. If the facts in that case remained one under Section 202(1) of the Code then the observation cannot be faulted with. That apart, as the point involved in this case is different we do not think it necessary to examine the said decision. But the other decision rendered by a Single Judge of the Punjab and Haryana High Court (Suresh Kumar v. State of Haryana) has gone a step further as he held that "the magistrate has no power within the contemplation of Section 156(3) of the Code to ask for registration of the case, but could only refer the complaint to the police for investigation at the pre-cognizance stage to make the enquiry in the matter enabling the magistrate to apply his mind with regard to the correctness of the complaint." In that decision learned Single Judge, at the end of the judgment, made a direction as follows:

"Before parting with the judgment, it is observed that often it is found that the Judicial Magistrates working under the control of this Court many a time upon the complaints prefer

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2001 Supreme(SC) 43

VERY IMPORTANT POINTAny Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) Cr.P.C.; in such case he is not to examine complainant on oath.

Cases Referred (2)

VERY IMPORTANT POINT
Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) Cr.P.C.; in such case he is not to examine complainant on oath.