P.S.Pattar, J. - (1.) THIS is a petition filed under Section 482, Criminal Procedure Code, by Jug Lal son of Hem Raj, resident of village Bhada Khera, Tehsil Hansi, District Hissar, to quash the order dated 18th January, 19/5 passed by the Judicial Magistrate 1st Class, Hansi, under Section 156(3), Criminal Procedure Code, whereby the complaint filed against him by Sammant Singh, Respondent No. 2, was sent to the Police Station Narnaund for necessary action.
(2.) BRIEFLY stated the facts of this case are that Saumant Singh, Respondent No. 2, Sarpanch Gram Panchayat Bhada Khera, Tehsil Hansi, District Hissar, filed a complaint dated 9th August, 1974 against Jug Lal Petitioner under Sections 405,409, 465 and 468, Indian Penal Code, in the Court of the Judicial Magistrate 1st Class, Hansi, on the ground that in the year 1970 -71. when he (Jug Lal) was the Sarpanch of Gram Panchayat, be misappropriated Rs. 4,500/ - out of the Panchayat funds by snowing that this amount was spent on certain items although no such expenses were incurred by him. On 7th September, 1974 he adjourned the case for preliminary evidence to 27th September, 1974. On 27th September, 1974, he passed the following order: The complaint is sent to Police Station, Narnaund, for report under Section 202, Criminal Procedure Code, at an early date. On 9th January 1975, the following order was passed: Report received. For consideration and arguments on 18th January, 1975. The following order, which is impugned in the petition, was passed on 18th January, 1975 by the Judicial Magistrate: The complaint is seat to Police Station. Narnaund, under Section 156(3), Criminal Procedure Code, for necessary action. After the receipt of this complaint in pursuance of the above order, the police of Police Station, Narnaund, registered first information report No. 11 dated 9th April, 1975 under Section 409, Indian Penal Code, against Jug Lal Petitioner in Police Station Narnaund, District Hissar, and started investigation. Feeling aggrieved. Jug Lal Petitioner filed this application under Section 482, Criminal Procedure Code, to quash the order dated 18th January, 1975 of the Judicial Magistrate as being illegal and invalid and also to quash the first information report recorded by the police in pursuance of this order. Notice of this petition was issued to the Respondents and they contested the same. Before discussing the arguments of the counsel for the parties I may set out -below the relevant provisions of the Code of Criminal Procedure: Section 202 (1) Any 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, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an 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: Provided that no such direction for investigation shall be made: (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an enquiry under Sub -section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (1) If an investigation under Sub -section (1) is made by a person not being a police officer he shall have for the investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. Section 203 If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that their is no sufficient ground for proceeding, he shall discuss the complaint, and in every such case he shall briefly record his reasons for so doing. "Section 204. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be - (a) a summon -case, he shall issue his summons for the attendance of the accused, or (b) a warrant -case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction, (2) No summons or warrant shall be issued against the accused under Sub -section (I) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under Sub -section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process -fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to effect the provisions of Section 87. Section 156. (1) any officer in charge of a police station my, 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 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.
(3.) IT is well settled law that before it can be said that any Magistrate has taken cognizance of any offence under Section 190 he must have applied his mind to the offence for the purpose of proceeding in a particular way as indicated in the subsequent provisions of Chapter proceeding under Section 100 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of the Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 153(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence vide R.R. Chari v. The State of Uttar Pradesh : AIR 1951 SC 207, and Jamuna Singh v. Budai Shah : AIR 1964 SC 1541. In State of Assam v. Abdul Noor, : AIR 1970 SC 1365 it was held as under: "The Magistrate can under Section 190 before taking cognizance, ask for investigation by the police under Section 156(3). The Magistrate can else issue warrant for production before taking cognizance. If after cognizance has been taken, the Magistrate wants any investigation, it will be under Section 202 of the Code." In Nirmaljit Singh Boon v. The State of West Bengal : AIR 1972 SC 2639 it was held as under: "Section 156 Sub -section (3) expressly states that an investigation ordered by a Magistrate would be an investigation as above, mentioned i.e. an investigation made by a police officer in his statutory right under Sub -sections (1) and (2). That being so, once an investigation by the police is ordered by a Magistrate, the Magis trate cannot place any limitations, on or direct the officer conducting it as to how to conduct it, Where a Magistrate has applied his mind only for ordering an investigation under Section 156(3) or issuing a warrant for purposes of investigation, be cannot be said to have taken, cognizance of the offence.";