HIRJI T SANGHAVI Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
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(1.) In this application the challenge is to a very peculiar practice adopted by the Courts of Magistrate when the Magistrate do not take cognizance of the matter but send it to the police for investigation under sec. 156(3) of the Code of Criminal Procedure (Hereinafter referred to as `the Code)
(2.) Sec. 156 of the Code confers upon the Police Officer power to investigate cognizable case. It reads:
"156 (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 sec. 190 may order such an investigation as mentioned above. So the exercise of the power by a Magistrate under sec. 156(3) of the Code is dependent on his having been empowered under sec. 190 of the Code which reads: "190 (1) Subject to the provisions of this Chapter any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf under sub-sec. (2) may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence: (b) upon a police report of such facts; (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committrd. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-sec. (1) of such offences as are within his competence to inquire into to try". So under sec. 190 of the Code the Magistrate is authorised to take direct cognizance upon the three eventualities mentioned in that section But the question is whether when learned Magistrate sends the case for investigation to the Police under sec. 156(3) of the Code can he be said to have taken cognizance?"
(3.) In R. R. Chari v. State of Uttar Pradesh AIR 1951 Supreme Court 207 it has been observed. "Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence". But further the Supreme Court endorsed some observations of Justice Das Gupta in Superintendent & Remembrancer of Legal Affairs v. Abani Kumar Benerjee AIR 1950 Calcutta 437 wherein it has been specifically observed:
" ...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 sec. 156(3) or". In R. R. Charis case (Supra) the Supreme Court has further observed that in a case of a cognizable offence the Magistrate takes cognizance when the Police have completed their investigation and come to the Magistrate for the issue of a process. In such a case before proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested by the police without an order of the Magistrate. So it is very clear that when the matter is sent by the Magistrate for investigation under sec. 156(3) of the Code he has not taken cognizance. Even in spite of that some how or the other the matter is kept on board of the Magistrate requiring the attendance of the complainant or the accused on the dates mentioned in the Rozanamas even though the matter is pending with the police for investigation. This is certainly a practice which entails undue hardship upon the complainant as well as the accused as they have to remain present even though papers are not before the Magistrate. So if the complainant is not present sometimes the Magistrate dismisses the complaint for absence of the complainant and if the accused is not present warrant is issued against him for non-attendance in the Court.;
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