- (1.) The petitioner has approached this Court for quashing of order dated 12.05.2012 (Annexure P-5) passed by Judicial Magistrate Ist Class, Jalandhar. Prayer of the petitioner is that once the matter was referred to the police for the purpose of investigation at the pre-cognizance stage then the police was bound to register a case for investigation and then submit a report under Section 173 Cr.P.C. The Magistrate, however, had referred the matter to the police to investigate and report. Pursuant to this order, SHO had submitted a report on 10.05.2012. The report of SHO revealed that he was of the view that after registration of case against the above said person, it is necessary to investigate the matter. The Magistrate, at that stage, however, decided to take on the investigation himself which had prompted the petitioner to approach this Court on the ground that this procedure, as adopted, is not in consonance with law.
(2.) This Court had thought it appropriate to obtain certain comments from the trial Magistrate and even had asked the Sessions Judge to examine the file and sent his comments. The comments from the Sessions Judge have been received and are on record.
(3.) Certain observations have also been made by this Court in the case A.C. Jaggi v. State of Punjab, 2007 1 RCR(Cri) 752. This was also a case, where the Magistrate had also sent a complaint to police for investigation and report. The Court has observed that the police was not required to first register an FIR and then to investigate. The Court found that the order of Magistrate fell under 202 Cr.P.C. and not under Section 156 (3) Cr.P.C. The Court has drawn distinction, where the Magistrate takes cognizance of the offence under Section 202 then he can direct the police to register the FIR against investigation. In this regard, reliance is placed on the case of Suresh Chand Jain vs. State of M.P. and another, 2001 2 JT 81. In this case, the Hon'ble Supreme Court has overruled the another judgment of this Court incidentally titled Suresh Kumar vs. State of Haryana, 1996 3 RCR(Cri) 137. While commenting upon the directions issued by this court, the Hon'ble Supreme Court observed as under: " In our opinion, the aforesaid direction given by the learned Single Judge of the Punjab and Haryana High Court in Suresh Kumar vs. State of Haryana is contrary to law and cannot be approved. Chapter XII of the Code contains provisions relating to information to the police and their powers to investigate, whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether though there could be a common factor i.e. complaint filed by a person. Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences. True, Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to direct an investigation by a police officer. But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code. Section 156 of the Code reads thus: 156. Police officers power to investigate cognizable cases.- (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 section 190 may order such an investigation as above-mentioned.";