J.M.L.Sinha - (1.) THIS is an application under section 482, CrPC filed by Harbir Singh, Katar Singh and Mahabir Singh (hereinafter called the petitioners) praying that the order dated 31st October, 1980 passed by the Magistrate directing reinvestigation and the order dated 13th August, 1981 passed by the Second Additional Sessions Judge, Moradabad, be quashed. A relief was also asked for in the petition for staying the execution of the warrant of attachment and arrest passed by the Magistrate.
(2.) THE facts giving rise to this petition briefly be stated as follows : Harbir Singh petitioner is son-in-law of Chatar Singh, opposite party no. 1. On 12th of February 1980, Chatar Singh lodged a report under section 406, IPC at P. S. Chaprauli, district Meerut, against the petitioners. It is alleged in the report that tractor no. 2615067 had been purchased by him, but it was in the custody of his son Rajendra Singh for purposes of cultivation : that Rajendra Singh died after a protracted illness and the tractor remained with Harbir Singh, petitioner no. 1, that after the death of his daughter, who was married to Harbir Singh, he went to the village of Harbir Singh to ask for the tractor, but the petitioners refused to return the same and thereby misappropriated it. THE police of P. S. Chaprauli made investigation into the report lodged by Chatar Singh, opposite party no. 1 ;and submitted a final report on 4-8-1980. By his order dated 16th of September, 1980, the Judicial Magistrate, Meerut, accepted this final report. THEreafter on 16th of October, 1980, opposite party no. 1 filed an application praying that the order passed by the Judicial . Magistrate Meerut, on 16th of September, 1980 accepting the final report be recalled and the case may be got reinvestigated. On 31st October, 1980 the Magistrate passed an order on that application directing reinvestigation. Aggrieved against the order, the petitioners filed a revision in the court; of sessions. THE learned Second Additional Sessions Judge, Meerut, who heard the revision, dismissed it as deviod of substance. Aggrieved against that order the petitioners have filed the present application under section 482, CrPC. I have heard learned counsel on either side and have also perused the record. Learned counsel for the petitioners urged before me that while passing the order accepting the final report the; Magistrate acted as a Court and, consequently, it was not open to the Magistrate to order reinvestigation thereunder as it amounted to recalling the order accepting the final report. According to the learned counsel for the petitioners, while it was open to the Magistrate to take cognisance of the same offence on a complaint, no provision of the Code permitted him to recall the order. As opposed to the above, the stand taken by the learned counsel for the opposite party no. 1 is that the Magistrate treated the protest petition dated 16-10-1980 as a complaint and that a Magistrate On receipt of a complaint can direct investigation under sub-section (3) of section 156. According to the learned counsel for the opposite party this power of the Magistrate is subject to only one restriction, namely, that the direction for investigation under sub-section (3) of section 156, if at all, should be passed before taking cognisance of the complaint. Learned counsel for the opposite party urged that there is nothing on the record to show that in the instant case the Magistrate had taken cognisance before directing reinvestigation and, consequently, the order passed by the Magistrate directing reinvestigation should be upheld as an order under sub-section (3) of section 156, CrPC.
(3.) A copy of the application dated 16-10-1980 is Annexure 'III' to the petition and a perusal thereof shows that it is nothing but a protest petition. It is well settled that a protest petition can be treated as a complaint by the Magistrate and he can act on it even after accepting the final report. It is also well settled that when a complaint is filed before a Magistrate empowered to take coganizance under Sec. 190 of the Code of Criminal Procedure, he has the following courses open to him : (i) He may direct investigation by the police under sub-section (3) of Sec. 156, CrPC without taking cognizance of the complaint. (ii) He may take cognizance of the case, record the statement of the complainant and his witnesses, and may then either issue process against the accused or may postpone the issue of process and direct investigation to be made by a police officer or such other person as he may think fit, before deciding whether or not there was sufficient ground to proceed on the complaint. Even in case where a Magistrate, on receipt of a complaint, directs investigation under sub-section (3) of Sec. 156, CrPC the complaint pending before him is not totally effaced. The police after making the investigation has to submit a report as provided in Sec. 173, CrPC. Where the police submits a report that a case is made out during investigation the Magistrate can take cognizance under Sec. 190 (b)Even where the police be of opinion that no case was made out during investigation, it is open to the Magistrate to disagree with the opinion of the police and to take cognisance under Sec. 190 (b) In the latter case it is also open to the Magistrate to leave aside the report submitted by the police under Sec. 173 (saying that no offence was made out during investigation) and take cognisance of the complaint under Sec. 202, CrPC, record the statement of the complainant and his witnesses and then decide whether cognisance should be taken or not. While doing so the Magistrate takes cognisance under Sec. 190(a) and not under Sec. 190(b). Support for this proposition can be had form the case of H. S. Bains v. State, 1980 AWC 619 (SC).;