- (1.) C. A. Kahim, J. Heard learned counsel. It has been submitted that Crime Case No. 7-A/96 was started on the basis of an order of the Magistrate under Section 156 (3), Cr. P. C. but the learned Magistrate has got no power to proceed under that section. Since a complaint when filed under Section 200, Cr. P. C. , the Magistrate is to adopt the procedure of that Chapter and he is to examine the complainant and witnesses in their favour. If he desires that the matter should be investigated he can send it to the police station under Section 202, Cr. P. C. There is no provision of law to file an application under Section 156 (3), Cr. P. C. It has also been submitted that under that section a Magistrate can direct for investigation but cannot ask for registration of the case. The later part of the submission is covered by Surajmal's case reported in 1993 ACC 81. A Division Bench of this Court has decided the issue stating that "objection of the learned counsel that registration of a case in the police station could not be directed by the learned Magistrate, is not correct. " This rests with the matter relating to the power of the Magistrate to issue a direction for registration of a case. But with regard to the first part of the submission of the learned counsel that the complaint must be filed under Section 200, Cr. P. C. is not borne out with the spirit of the provi sions in Criminal Procedure Code in regard to the lodging of a case. The complaint as per section 2 (d), Cr. P. C. means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code. So it is not confined that a Magistrate should take action under Section 200, Cr. P. C. only. Under that section the Magistrate may take action when he wants to take cognizance of an offence and if he does not take cognizance, Sections 200 and 202, Cr. P. C. do not come to play.
(2.) UNDER Section 156 (3), Cr. P. C. what the Magistrate is empowered to do is to see whether any cognizable offence has been disclosed. Scrutiny of the complaint is limited to that extent only and if he is convinced that such a condition has been fulfilled he will send the complaint to the police station with a direction for registration and for investigation. In this regard the contention of the learned counsel is not correct that the Magis trate is powerless in this respect. So this part of the contention is there fore, rejected. The learned counsel has submitted that the occurrence took place on 5-3-1996 in which one Kanhaiya was murdered and as many as three persons received fire-arm injuries. The case was started being crime No. 71-A/96 under Sections 147, 148, 149 and 302, 307, 501, I. P. C. against nine accused persons. All of them, besides one Subhash have been arrested and lodged in judicial custody. The allegation is that said Subhash got an application filed through one Bharat Pal under Section 156 (3), Cr. P. C. which was directed to the Police Station for registration and for starting a case being case Crime No. 71-A/96 under Sections 147, 148, 383, 149, 323, 307 and 504, I. P. C. The learned Counsel has submitted that the date of the occurrence is the same but the story has been manufactured in a different way. According to him the said case has been engineer ed as a counter blast with mala fide intention in collusion with the police. The learned counsel has referred the case of Mohd. Habibur Rahman Faizi and others v. State and another, reported in 1995 JIC 672. In that case the celebrated case of Ch. Bhajan Lal reported in AIR 1992 SC 604: 1990 (2) JIC 997, has been referred wherein it has been decided that under Section 482, Cr. P. C. or under Article 226 of the Constitution, the High Court may interfere where criminal proceeding is manifestly attended with mala fide. It may be that the instant proceeding is counter blast of the murder case, probably to put a defence of right of private defence during the trial or it may be that out of sheer malice the instant case was started after about 8 days. The fact which has been impressed before me does not lead to an irresistible conclusion that it was instituted maliciously or with ulterior motive for taking vengeance or the proceeding is manifestly attended with mala fide. To unearth the allegation of the learned counsel it is necessary to investigate. In the case of Janta Dal v. H. C. Chaudhary, reported in the case of 1992 (4) SCC 305, it has been held that: "the High Court should normally refrain from giving a pre mature decision in a case where entire facts are extremely incomplete and hazy, more so when evidence has not been collected and produced before the court and issues involved whether factual or legal, all of great magnitude and cannot be seen in their true perspective without seeing the material. " It would be, therefore, pre-mature to hold at this stage that there was mala fide intention in lodging the instant case for which I feel that full fledged investigation is necessary. So the contention of the learned counsel fails and prayer for quashing the first information report, at this juncture, is refused.
(3.) A question has been raised whether this Court, while enjoying inherent power under Section 482, Cr. P. C. can quash the First Information Report and stay the arrest. In Ram Lal Yadav case [1989 ACC 1981 (FB)] it was held that power of the police to investigate into a report which discloses commission of a congnizable offence is unfettered and cannot be interfered by the High Court in the exercise of its inherent power under Section 482, Cr. P. C. Thereafter in 1990 in the case of reported in 1991 (28) ACC 399 a Single Bench of this Court on the basis of two decisions of the Supreme Court, namely, the cases of Pavithran's (1990) 2 JT 43 and the case of R. K. Srivastava (1989) 4 SCC 59 referred the question whether in view of those two decisions of the Supreme Court the Full Bench decision in Ram Lal Yadav's case is a good law, to a larger bench which is yet to be constituted. In the case of Union of India v. B. R. Bajaj, reported in 1994 JIC 238, it has been held that the High Court may interfere at the stage of the First Information Report, may look into whether it has disclosed any cognizable offence. In that case the Supreme Court has gone into the fact and stated that while considering that aspect of the matter it should not take into consideration the other records, including affidavits produced by accused persons while interfering at the stage of the First Information Report under Section 482, Cr. P. C. It was not an issue in that case whether an First Information Report can be quashed by the High Court while considering it in the jurisdiction enshrined under Section 482, Cr. P. C. But it has not been stated that the High Court cannot do so. It has also been held that in exercising the inherent power at the stage of the First Information Report when the same discloses commission of cognizable offence, which is still to be investigated by the police, it should not enjoy the power of the appellate court.;