SUPREME COURT OF INDIA
Before :- Arjit Pasayat and S.H. Kapadia, JJ.
Criminal Appeal No. 2 of 2006 (Arising out of SLP (Crl.) No. 2305 of 2005). D/d. 2.1.2006
For the Appellant :- Mr. Samir Ali Khan, Mr. Amit Kumar, Advocates.
Mohd. Yousuf - Appellant Versus Smt. Afaq Jahan and others - Respondents
For the Respondents :- Mr. Shakil Ahmed Syed, Mr. Ravi Prakash Mehrotra, Mr. Arohi Bhalla, Mr. Garvesh Kabra Advocates.
2. Challenge in this Appeal is to the order passed by a learned Single Judge of the Allahabad High Court, Lucknow Bench. The respondent No. 1 filed a petition under Section 432 of the Code of Criminal Procedure, 1973 (in short the 'Code') to quash the direction given to register F.I.R., charge-sheet filed after investigation as well as the cognizance taken by the learned Chief Judicial Magistrate (in short CJM) Raebareli. By order dated 13.7.1998 learned CJM had directed the police to register and investigate the case. On 19.7.1998 on the basis of the order passed by learned CJM police registered FIR No. 830 of 1998 for alleged commission of offences punishable under Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 (in short the IPC).
3. Background facts as projected by the appellant are as followed :
4. Appellant received a notice dated 18.1.1996 from the Union Bank of India, Raebareli asking him to pay back the loan amount with interest amounting to Rs. 1,25,421/-. Appellant was shown to be a guarantor for the loan taken by respondent No. 1. on 30.12.1994. Appellant was surprised to receive the notice as he had never stood as guarantor for any loan. He made enquiry from the Bank and came to know that the respondent No. 1 had forged some documents in conspiracy with her husband Zahirul Islam. An affidavit purported to have been signed by the appellant was filed with the bank to make him the second guarantor. Appellant had never signed the amount and his signature was forged. A writ petition was filed before the Allahabad High Court to quash the notice issued by the Bank. The writ petition was dismissed giving liberty to the appellant to seek appropriate remedy. On 13.7.1998 an application was filed before learned CJM alleging commission of offences by the named accused persons. Learned CJM directed the police to register and investigate the case. As noted above, on the basis of order of learned CJM the FIR was registered. The essence of the grievance of the appellant was that the accused persons with the help of the bank manager made forged signature of the appellant in the agreement form and an affidavit to show him as a guarantor. After investigation charge-sheet was filed by the police on 13.9.1999. On 24.5.2000 respondent No. 1 filed the application under Section 482 of the Code for quashing the FIR, the charge-sheet and the order of learned magistrate by which he had taken cognizance, and the order directing the police to register the case under Section 156(3) of the Code. By the impugned order the High Court quashed the charge-sheet on the ground that the magistrate had no power to order registration of the case.
5. In support of the appeal learned counsel for the appellant submitted that the order of the High Court is clearly contrary to law and on misreading of the provisions contained in Section 156(3) of the Code. Learned counsel for the respondent No. 1 on the other hand submitted that the true scope and ambit of Section 156(3) of the Code has been kept in view by the High Court and the impugned order does not suffer from any infirmity. Learned counsel for the State supported the stand of the appellant.
6. In order to appreciate rival submissions Section 156 of the Code needs to be quoted; the same reads as follows :
- "156. Police officer's power to investigate cognizable cases. - (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 180 may order such an investigation as above mentioned."
8. 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.
9. The various steps to be adopted for investigation under Section 156 of the Code have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.
10. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e.
- "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding".
12. The clear position therefore is that 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.
13. The above position was highlighted in Suresh Chand Jain v. State of M.P. and another, 2001(1) RCR(Crl.) 335 (SC) : [2001(2) SCC 628].
14. In Gopal Das Sindhi and others v. State of Assam and another, (AIR 1961 SC 966), it was observed as follows :
- "When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the Officer Incharge of Police Station Gauhati for investigation. Section 156(3) states "Any Magistrate empowered under Section 190 may order such investigation as above-mentioned". Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342 and 448 were cognizable offences. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complaintant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code. Numerous cases were cited before us in support of the submissions made on behalf of the appellants. Certain submissions were also made as what is meant by "taking cognizance." It is unnecessary to refer to the cases cited. The following observations of Mr. Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee, AIR 1950 Cal 437 :
- "What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offences under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter-proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent Sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence".
- were approved by this Court in R.R. Chari v. State of Uttar Pradesh, (1951 SCR 312). It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various Sections of Chapter XVI but for taking action of some other kind, e.g., ordering investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. The observations of Mr. Justice Das Gupta above referred to were also approved by this Court in the case of Narayandas Bhagwandas Madhavdas v. State of West Bengal, (AIR 1959 SC 1118). It will be clear, therefore, that in the present case neither the Additional District Magistrate nor Mr. Thomas applied his mind to the complaint filed on August 3, 1957, with a view to taking cognizance of an offence. The Additional District Magistrate passed on the complaint to Mr. Thomas to deal with it. Mr. Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mind to it with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police under Section 156(3) of the Code. The action of Mr. Thomas comes within the observations of Mr. Justice Das Gupta. In these circumstances, we do not think that the first contention on behalf of the appellants has any substance."
- "On 19.9.1952, the appellant appeared before the Additional District Magistrate who recorded the following order :-
- "He is to give bail of Rs. 50,000 with ten sureties of Rs. 5,000 each. Seen Police report. Time allowed till 19th November, 1952, for completing investigation."
- "Seen the complaint filed today against the accused Narayandas Bhagwandas Madhavdas under Section 8(2) of the Foreign Exchange Regulation Act read with Section 23-B thereof read with Section 19 of the Sea Customs Act and Notification No. F.E.R.A. 105/51 dated the 27th February, 1951, as amended, issued by the Reserve Bank of India under Section 8(2) of the Foreign Exchange Regulation Act. Seen the letter of authority. To Sri M.N. Sinha, S.D.M. (Sadar), Magistrate Ist class (spl. empowered) for favour of disposal according to law. Accused to appear before him."
- "Accused present. Petition filed for reduction of bail. Considering all facts, bail granted for Rs. 25,000 with 5 sureties.
- To 26.3.1952 and 27.3.1952 for evidence."
- "What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under Section 190(1)(a) Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent Sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."
- It is, however, argued that in Chari's case this Court was dealing with a matter which came under the Prevention of Corruption Act. It seems to us, however, that that makes no difference. It is the principle which was enunciated by Das Gupta, J., which was approved. As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purposes cannot be themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent Sections of Chapter XVI of the Code of Criminal Procedure or under Section 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance."
- "Complaint' means any allegation 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.
- Explanation :- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant."
18. In view of the aforesaid position in law, order passed by the High Court is clearly unsustainable and is quashed. The appeal is allowed.