B.D.Agarwal - (1.) HEARD the learned counsel.
(2.) THE contention of the learned counsel is that in view of the pendency of a civil suit between the parties and taking into consideration the provision contained in section 195 (1) (b) (ii), Criminal Procedure Code, the cognizance of the offence, as referred to in the first information report, may not be taken by the Magistrate except on a complaint made in writing by the civil court and hence investigation in the matter may not be carried on by the police. THE argument urged in support is that there is special provision made in this behalf as appearing from section 340 to 343 in Chapter XXVI of the Code and hence this should be taken to override the normal procedure obtaining in cases where report of cognizable offences is made. Having given careful consideration to the contention advanced, I am unable to agree. From a perusal of the report in this case it would appear that the offences charged against the accused are those under sections 420, 467, 468 and 471, Penal Code. Section 195 (1) (b) (ii) refers to offences described, under sections 463 and 471 besides others not relevant herein. This may be said to cover also offence under section 468 and moreover where they arise out of the same transaction, section 420, Penal Code may also be claimed to be covered thereunder. First Information Report relating to a cognizanble offence is to be investigated by a police officer as provided in section 156 of the Code. In section 156 or any other provision for that matter contained in the Code, we do not find a bar expressly made against investigation being taken up and carried on by a police officer even though the offence is such that the cognizance may not be taken by a Magistrate except upon a Complaint as provided in section 195 (1) (b). In so far as the provisions referred to in sections 340 to 343 are concerned, they are consequential to be observed in a case upon cognizance being taken as contemplated under section 195 (1) (b) (ii). The basic fact, however, remains that the bar contained in section 195 (1) is against the court taking cognizance of any specified offence. The stage of taking cognizance has not yet reached in this case. Investigation by the police is not equated with cognizance taken by a Magistrate which is manifest also from the provision made in section 190 where under cognizance may be taken either upon a police report or a complaint, as the case may be. Even though cognizance by the Magistrate may not be taken for offences referred to in section 195 (1) (b) (ii), except upon a complaint of the civil court, this itself does not preclude the police officer from investigating and collecting evidence or material, if any, during the course of investigation under section 156 of the Code.
(3.) LEARNED counsel contends that where the law requires a thing to be done in a particular manner, it must be done accordingly or not at all. Further, it is submitted that a provision which is special overrides what is ordinary or general but to the extent only the special provision holds the field. There can be no dispute with these principles. On application thereof to the instant question, it will be observed, however, that sections 340 to 343 referred by the learned counsel come in picture only subsequent to cognizance being assumed by the Magistrate. In substance they lay down how the Magistrate is to proceed after taking cognizance in the matter in a complaint made in view of section 195 (1) (b) (ii) but where, as in the present, the stage is of investigation by the police, and not by a Magistrate, proceeding in the matter, sections 340 to 343 are of no avail. Learned counsel drew attention also then to section 342 (2) of the Code and argued that the court, seized of the case, is given the power, inter alia, to direct arrest of the accused. That again is true, no doubt, but that would come in picture when there is a complaint whereon cognizance is taken by the Magistrate. The existence of that provision does not derogate against the power or authority of the police ordinarily to arrest in the course of investigation, if a case for the same is otherwise made out or if that so becomes necessary. The provisions relied upon by the learned counsel do not intermeddle in other words against the powers of the investigating agency. There is no exclusion of the power to investigate in such a case, in my view, even by necessary implication. May be, in a particular case, the investigating agency finds no material existing to proceed against and submits a final report which is accepted by the Magistrate, but, even upon taking cognizance on the basis of the complaint, the statement etc. recorded by the investigating agency can be made use of to the extent and in the manner permitted by law.;