RAJENDRA NATH MITTAL - (1.) BRIEFLY the case of the petitioner is that he had been working as a Secretary of Nanhera Co -operative Agricultural Service Society for about 20 years. One Banwari son of Kundan Lal Saini, resident of village Nanhera, Tehsil Naraingarh, filed complaint against the petitioner Under Section 408/420, Criminal Procedure Code (hereinafter referred to as the Code), in the Court of Judicial Magistrate Ist Class, Ambala City, on May 24, 1976. The Magistrate, on the same day, passed the following order :complaint presented today. The same be registered. Now the complaint to come up for the statement of the complainant on 29 -5 -1976. On May 29, 1976, the complaint came up before the Magistrate. for hearing. He on that day passed the following order : The case is cognizable. S. H. O, Narairigarh is ordered to make an investigation of the case Under Section 156 (3) of the Criminal Procedure Code. It is stated by the petitioner that the order dated May 24, 1976, shows that the Magistrate had taken cognizance of the complaint on that date and in case he had done, so, he could not direct investigation by the police, Under Section 156 (3) of the Code. He further states that such an investigation could be ordered by the Magistrate only prior to taking cognizance of the offence on a complaint. It is also alleged by him that on the basis of the investigation, the police has recorded first information report No. 49 dated June 21, 1976, in the Police Station, Naraingarh. The petitioner has, therefore, prayed that the above said first information report and the order of the Judicial Magistrate dated May 29, 1976, ordering investigation Under Section 156 (3) be quashed.
(2.) IT is contended by the learned Counsel for the petitioner that a reading of the order dated May 24, 1976, shows that the Magistrate applied his mind and after doing so, he ordered that the complaint be registered and the statement of the complainant be recorded. For that purpose he adjourned the complaint to May 29, 1976. Ac cording to the counsel, if the Magistrate took cognizance of the matter, then he could not direct the police to make an investigation Under Section 156 (3) of the Code. On the other hand, the learned Counsel for the State has vehemently argued that the aforesaid orders do not show that the Magistrate had applied the mind and they do not amount to taking cognizance of the offence. I have heard the learned Counsel for the parties at a considerable length. In order to determine this question, it will be necessary to refer to some of the sections of the Code as the words taking cognizance have not been defined.
(3.) SECTION 156 forms part of Chapter XII, which relates to information to the police and is as follows : 156 (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 proceedings of a police officer in any such case shall at any stage be called 4 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. Chapter XIV is regarding conditions requisite for initiation of proceedings. Section 190 is a part of this chapter. It relates to cog -nizance of offences by Magistrates and reads as under : 190 (1 ). Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub -section (2), may take cognizance of any offence - (a) upon receiving a complaint of facts which constitute such offence ; (b) upon a police report of such facts ; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub -section (1) of such offences as are within his competence to inquire into or try. Chapter XV deals with complaints to Magistrates. Section 200 makes a provision for examination of complainant. The section reads as under : 200. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate : Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint ; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate Under Section 192 : Provided further that if the Magistrate makes over the case to another Magistrate Under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re -examine them. Section 202 deals with postponement of issue of process. It says that a Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him Under Section 192, may postpone the issue of process against the accused and either enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding under the said section. From the scheme of the Act it appears that Section 156 (3) and Section 202 operate in different spheres. A Magistrate passes an order Under Section 156 (3) before taking cognizance of the matter and Under Section 202, after having taken cognizance thereof, ;