KANTA BHATNAGAR, J. -
(1.)IN this application under Sec. 482, Cr. P. C. , petitioner, Narpat Karan has challenged the legality of the order dated 17/9/83 passed by the Chief Judicial Magistrate, Jodhpur and also the order of the Sessions Judge, Jodhpur dated 6th July, 1984, affirming the aforesaid order of the Chief Judicial Magistrate.
(2.)ON 6/12/79, petitioner, Narpatkaran, Land Acquisition Officer filed a report against Ram Chander non-petitioner No. 1 with the allegation that during his tenure as Cashier in the Department, he embezzled Government money. After investigation, police filed charge-sheet against Ramchander in the Court of Chief Judicial Magistrate, Jodhpur. The learned Magistrate took cognizance against Ramchander for the offence under Sec. 409, LP. C. Subsequent thereto, an application under Sec. 190 (c) Cr. P. C, was filed on behalf of Ramchander with the prayer that for the reasons mentioned in the application, cognizance, against Narpat Karan Land Acquisition Officer, Jodhpur may be taken and he (applicant Ramchander) being innocent, be discharged. The learned Magistrate, on examination of the police papers, was of the opinion that proper investigation was not made by the police in the case and for the reasons given in his impugned order, he directed re-investigation of the matter by the police. The order for directing re-investigation was challenged by the State Government by filing revision petition in the Court of Sessions Judge, Jodhpur. The learned Sessions Judge, as stated earlier, rejected the application on 6th July, 1984, The findings of the two courts below have been assailed and inherent jurisdiction of this Court invoked by the petitioner Narpat Karan.
The legal point raised in the matter by the learned counsel for the petitioner is that after taking cognizance of the case, the learned Magistrate could not have legally directed the police to re-investigate the matter. According to learned counsel, powers of the Magistrate directing the police for investigation into a matter provided in Sec. 156 (3), Cr. P. C, can be exercised before taking cognizance under Sec. 190, Cr P. C. The learned counsel urged that once cognizance is taken in a case, the Magistrate, if he so desires, may enquire into the matter himself, but cannot direct the police to make further investigation. According to learned counsel, asking the police to do so would amount to issuing direction to the police to file a charge-sheet against the concerned person which is not permissible under the law.
Learned counsel for non-petitioner No. 1, Ramchander, controverted these contentions and submitted that powers under Sec. 173 (4), Cr. P. C, are wide enough to include the power of the Magistrate to direct further investigation in a case when in view of the facts coming to his notice some illegality or infirmity is found in the previous investigation. Both the learned counsel cited a number of authorities to substantiate their respective contentions, which I would presently discuss.
In order to understand the arguments of both the sides it would be profitable to understand the scheme underlying certain Chapters relevant for the present purpose. Chapter XII deals with information to the police and its powers to investigate. Section 156 deals with the powers of the police officer to investigate into cognizable cases. Sub-sec. (3) of that Section, relevants for the present purpose, provides that any Magistrate empowered under Sec. 190 may order such an investigation, as mentioned in sub-cls. 1) and (2) of Sec. 156. Chapter XII lays down pre-cognizance stage. Chapter XIV lays down conditions requisite for initiation of proceedings. Section 190 deals with the powers vested in the Magistrate for taking cognizance of offences. Chapter XV deals with the procedure to be adopted by the Magistrate taking cognizance under Sec. 190 (3) upon the complaints. The important question emerging for determination in the case is whether the Magistrate after taking cognizance in the case was justified in directing the police to re-investigate the matter. According to the learned counsel for the petitioner, he could not have done so, because Sec. 156 (3) refers to pre-cognizance stage. According to learned counsel, if the Magistrate after taking cognizance wants to have further information in the matter, the only way open is to make an enquiry under the provisions of Chapter XV. On the other hand, the submission of the learned counsel for non-petitioner No. 1, Ramchander, is, that, the Magistrate could have done so under the provisions of Sec. 173 (4), Cr. P. C.
The case of Devarapali Lakshminarayana V. Narayan (1), referred to by Mr. Singhvi has no application in the present case because the point for decision in that case was, whether the power to order police investigation under Sec. 156 (3) is in conflict with the first proviso to Sec. 202 (1), Cr. P. C. Their lordships were pleased to opine that the power of the Magistrate to order police investigation under Sec. 156 (3) is different from the power to direct investigation conferred by Sec. 202 (1 ). The two operate in distinct sphares at different stages. The first is exercisable at the pre-cognizance stage and the second at the post-cognizance stage when the Magistrate is in seisin of the case. It has been further mentioned that the power under Sec. 156 (3) can be invoked by the Magistrate before he takes cognizance of the offence under Sec. 190 (1) (a ). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cogni-ance stage and avail of Sec. 156 (3 ).
(3.)THE case of Tula Ram v. Kishore Singh (2) relied upon by Mr. Singhvi. Mr. Singhvi also relates to the provisions of Secs. 156, 202 and 204, Cr. P. C. THEir Lordships enumerated the various ways open to the Magistrate on receiving a report from the police and were pleased to hold that where a Magistrate orders for investigation under S. 156 (3) of the Code by the police before taking cognizance and receives the report thereupon, he can act on the report and discharge the accused or straight-away issue process against the accused or apply his mind to the complaint filed before him and take action under Sec. 190. THE above two authorities are of no help to the petitioner for the reason that the provisions of Sec. 173 (4), Cr. P. C, were not under consideration before their Lordships while dealing with those cases.
In the case of State of Bihar v. J. A. C. Saldanha (3), question about the power to re-investigate under Sec. 173 (4) came for consideration and their Lordships were pleased to hold that power under Sec. 173 (4) was not affected by Magistrate's power to order investigation under Sec. 156 (3 ). Their Lordships were pleased to enunciate the principle that State Government's power to superintendence under Sec. 3 of the Police Act, 1961 includes giving directions to such a superior officer for further investigation under Sec. 173 (4) even after submission of report by the previous investigating agency under Sec. 173 (2 ). Learned counsel for the petitioner sought help from those observations in the way, that, the power envisaged vide Sec. 173 (4) was meant for the police and the State Government is authorised to make direction for re-investigation into a matter, but that section in no way extends the power of the Magistrate so as to bring the provisions in conflict under Sec. 156 (3) of the Code. The question of the exercise of the power of the Magistrate under Sec. 173 (4) was not the subject-matter of discussion before their Lordships. To agree with the learned counsel for the petitioner would be seeking an interpretation on the point not finding place in the judgment.
Mr. Singhvi has also placed reliance on the case of Sohan Singh v. State of Rajasthan (4 ). In that case, his Lordship dealt with the principle enunciated in Devarapali Lakshminarayan's case and was pleased to observe that the power to order police investigation under Sec. 156 (3) and the power to direct investigation conferred under Sec, 202 (1) are entirely different. The question of the power of the Magistrate to direct re-investigation was not the subject-matter of discussion in that case also.