Beri, J - (1.) THESE four criminal references raise an identical point and are reported by the District Magistrate, Bundi, who recommends that the order of the Munsiff Magistrate, Bundi dated 28th June, 1961, in all the four cases be set aside. I propose to dispose all of them by this order.
(2.) THE circumstances in which these references arise are : THE Assistant Registrar, Co-operative Department of the State of Rajasthan, Bundi, lodged a first information report with Sub-Inspector Police, Keshorai Patan, that in the course of the informants departmental inspection it was discovered that certain sums of money received for Sahkari Samitis were neither credited to the funds of the Sahkari Samitis nor applied for the purposes for which they were received and he therefore requested for appropriate action. After investigation a report was submitted by Police Station Keshorai Patan under secs. 420, 468, 471 and 34 of the Indian Penal Code before the First Class Magistrate, Bundi, which report by transfer travelled to the Munsiff Magistrate, Bundi for trial. An objection was raised before him that the report made by the Police under secs. 468 and 471 of the Indian Penal Code was on the basis of an investigation which the police made of non-cognizable offences without any order from a Magistrate as required by sec. 155 (2) of the Code of Criminal Procedure. It was urged on behalf of the accused that either cognizance only of the offence under sec. 420 I. P. C. be taken or the case be returned to the police after necessary order for a fresh investigation. THE Munsiff-Magistrate observed that want of a prior order from a Magistrate for investigation does not affect the competence and jurisdiction of the court. He took cognizance of the offences under sec. 468 and 471 I. P. C. pursuant to the provisions of sec. 190 (l) (a) Cr. P. C. He, however, held that because the offences under sec. 468 and 471 I. P. C. were graver in nature and because he had taken cognizance of these offences under sec. 190 (1) (a) Cr. P. C. the procedure which he proposed to adopt for the trial was as provided for an ordinary complaint under sec. 252 and onwards of the Code of Criminal Procedure and not under sec. 251a of the Code. Dissatisfied with this order passed by the Magistrate on 28th June, 1961, the prosecution presented a revision application before the District Magistrate, Bundi, who has recommended that the order of the Munsiff-Magistrate be set aside. I have perused the explanation submitted by the Munsiff-Magistrate and heard Mr. B. C. Chatterji, learned Deputy Government Advocate, on all these four references. The principal reason which persuaded the Munsiff-Magistrate to take cognizance of the offences under sec. 468 and 471 of the Indian Penal Code pursuant to the provisions of sec. 190 (l) (a) was that there was no prior order of a Magistrate for an investigation of these offences and, therefore, the report made by the Police was not in accordance with law. All these four cases originated from a report submitted by police under sec. 173 of the Code of Criminal Procedure complaining the commission of offences under sec. 420, 468, 471 and 34 of the Indian Penal Code. The question for consideration is whether these cases were instituted on a proper police report. The approach of the Munsiff Magistrate, in my opinion, is erroneous. Under sec. 155 of the Code of Criminal Procedure if report is only in regard to a non-cognizable offence, a prior order of a Magistrate is necessary. If information is lodged with the Police of allegations some of which constitute a cognizable offence and others a non-cognizable offence no prior order of a Magistrate is necessary for the investigation into such a bundle of allegations. Mr. Chatterji has brought to my notice the decision in Ram Krishna Dalmia vs. State (l) wherein Falshaw, J. , as he then was, has observed : - "that the provisions of sec. 155 (1), Criminal Procedure Code, must be regarded as applicable only in those cases where the information given to the Police relates solely to a non-cognizable offence and that where information is given to the Police of a cognizable offence and the case is registered regarding that offence, the investigating officer, while investigating the cognizable offence cannot possibly be debarred from investigating any subsidiary and non-cognizable offence which may arise out of the facts, and can also include these latter cases in his main report under sec. 173. " In result he held that the challan submitted by the police was a report under sec. 173 notwithstanding the fact that it included therein certain offences which were non-cognizable in nature and the investigation whereof was taken without prior order under sec. 155 (2) of the Code of Criminal Procedure, and, therefore, the procedure to be followed was as applicable to the police report either under sec. 207a or 251a of the Code of Criminal Procedure, as the case may be. In Vadlamudi Kutumba Rao vs. State of Andhra Pradesh (2), a report was made to police of an offence under sec. 409 I. P. C. On investigation it was discovered that offences under sec. 467, 488, 471 and 193 Penal Code appeared to have been committed. A charge-sheet was accordingly submitted. An objection was taken that the trial of the case could not proceed as contemplated by sec. 207a of the Code of Criminal Procedure as the investigation of non-cognizable offences had proceeded without prior order from a Magistrate. Anantanarayana Ayyar, J. of the Andhra Pradesh High Court observed, - "a case can include one offence or more than one offence. It must be either a cognizable case or a non-cognizable case. It would be a non-cognizable case only if every one of the offences is a non-cognizable offence. It would be a cognizable case under sec. 4 (1) (n) Cr. P. C. even if one or more (not necessarily all) of the offences in the case are cognizable offences. The Code does not contemplate any case to be partly non-cognizable. " In this Andhra Pradesh case the police had investigated a case under sec. 409 which was cognizable, and in the course of this investigation certain non-cognizable offences came to light which were also investigated being non-cognizable offences under sec. 467, 468, 471 and 193 I. P. C. without any order from a Magistrate and it was held that the case was to be proceeded with in accordance with the procedure laid down in sec, 207a of the Code of Criminal Procedure. For a variety of reasons the legislature in its wisdom had excluded police interference by way of investigation in non-cognizable offences without a prior order from a Magistrate. But if in the course of an investigation of a cognizable offence other offence or offences of non-cognizable category closely associated with the transaction of cognizable offence under investigation is or are discovered and reported to the Magistrate, it has not the effect of changing the character of the report which the police ultimately presents under sec. 173 of the Code of Criminal Procedure. I am in respectful agreement with the view taken by the Punjab and Andhra Pradesh cases, referred to above, and accept the recommendation of the District Magistrate, Bundi, set aside the Munsiff-Magistrate's order dated 28. 6. 1962 and direct him to adopt the procedure applicable to a case instituted on a police report. .;