CRLP/5066/2010 of N. Goverdhana Babu, Vs Sri Palyam Ramasubrahmanym, on 31 December 2013

ORDER:

This criminal petition is filed under Section 482 Cr.P.C to quash theproceedings in C.C.No.7/2010 on the file of the Court of the JudicialMagistrate of First Class, Pakala, Chittoor District.

2. I have heard Sri V.V.Laxminarayana, learned counsel appearingfor the petitioner/accused, Sri D.Purnachandra Reddy, learned counselappearing for the 1[st] respondent/de facto complainant and the learnedPublic Prosecutor, representing the 2[nd] respondent/State.

3. The short facts necessary for considering the criminal petitionmay be stated as follows:

The petitioner herein is the complainant in C.C.No.164/2004 on thefile of the Court of the Judicial Magistrate of First Class, Pakala. The saidcase was filed against two persons viz., Purushothamnaidu andK.Doraswamy, alleging commission of offence punishable under sections417, 420, 468 and 463 of IPC. In the course of the trial of the said case,the complainant was examined in chief as PW 1 on 10.11.2008 and thereafter he was cross examined on 13.11.2008. On behalf of thecomplainant, one B.Ramasubramanyam was examined in chief as awitness (PW 2) on 19.11.2008. The matter was posted to 25.11.2008 forcross examination of PW 2. On that day, according to the petitioner, hedeveloped chest pain and was admitted in Government Hospital, Chittoorand was kept in observation of the Doctor till 26.11.2008.

4. It is the version of the petitioner that on 25.11.2008 he came toknow that PW 2-Ramasubramanyam gave a representation to the JudicialMagistrate of First Class, Pakala alleging that he threatened him to giveevidence in the said case in a particular way. It seems that the learnedMagistrate recorded the statement of the said Ramasubramanyam andforwarded the same to the Inspector of Police, Pakala for registration of acrime and for investigation into the offence alleged. On receipt of thesame, the Inspector of Police registered a case in Cr.No.151/2008 ofPakala Police Station against the petitioner herein for the offencespunishable under sections 195-A and 506 of IPC.

5. It is the further version of the petitioner herein that he approachedthis Court and filed a criminal petition being Crl.P.No.723/2009 underSection 482 of Cr.P.C seeking to quash the investigation in the aforesaidcrime, whereupon, this Court stayed investigation with regard to theoffence punishable under section 195-A of IPC and directed the police toconduct investigation in respect of the offence punishable under Section506 of IPC. According to the petitioner, he was not aware of filing of thecharge sheet by the police in the aforesaid crime. Subsequently, thepolice, however, on 17.07.2009 filed another charge sheet alleging onlycommission of offence punishable under section 506 of IPC by deletingthe offence punishable under section 195-A of IPC. According to thepetitioner, the police filed second charge sheet basing on the same factsand on the same investigation, basing on which, the learned Magistratetook cognizance of the offence alleged and issued process to thepetitioner. Feeling aggrieved, the petitioner filed the present criminalpetition to quash the proceedings in C.C.No.7/2010 on the file of the Judicial Magistrate of First Class, Pakala, Chittoor District.

6. The allegations mentioned in the statement made by the de factocomplainant to the Magistrate as well as the contents of the charge sheetdisclose that the petitioner abused the de facto complainant in vulgarlanguage and threatened him to give evidence in a particular mannerotherwise he put some Ganja and Sandalwood in his house and would getfalse cases foisted through police and send him to jail. It is also mentionedin the charge sheet that some persons who are present in the Courtpremises, viz., Purushothamnaidu, Doraswamy, Masthan,Ramakrishnamanaidu etc., witnessed the incident.

7. Apart from contending that the allegations made in the FirstInformation Report as well as in the charge sheet are so absurd andinherently improbable, the learned counsel appearing for the petitionercontended that since the learned Magistrate recorded the statement of thede facto complainant, he has either to take cognizance of the offencealleged or to dismiss the complaint, but shall not order investigation by thepolice. Therefore, in the opinion of the learned counsel appearing for thepetitioner, the charge sheet filed in C.C.No.7/2010 on the file of the Courtof the Judicial Magistrate of First Class, Pakala basing on the investigationdirected by the learned Magistrate being illegal is liable to be quashed inexercise of powers under section 482 of Cr.P.C.

8. On the other hand, it is contended by the learned counselappearing for the 1[st] respondent/de facto complainant that the learnedMagistrate did not take cognizance of the offence and he ordered onlyinvestigation under section 156(3) of Cr.P.C. In the alternative, the learnedcounsel appearing for the 1[st] respondent/de facto complainant contendedthat even after taking cognizance of the offence also, the Magistrate isempowered to direct an investigation to the police authorities undersection 202 of Cr.P.C.

9. As regards the first contention advanced by the learned counselappearing for the petitioner that since the de facto complainant gave hisevidence in chief as PW 2, absolutely it was unnecessary for the petitioner

to threaten him to give evidence in a particular way and therefore, theallegation itself is absurd and inherently improbable, I would like to statethat from the facts of the case, the basic allegation appears to be that thepetitioner threatened the de facto complainant to depose in a particularway, the petitioner might not be exactly knowing about the stage of thecase and the consequences of the evidence which was already given bythe de facto complainant. Further, in the charge sheet filed by the policeafter thorough investigation it mentioned that the petitioner threatened thede facto complainant on several occasions earlier not to depose againsthim. Therefore, in my view, this is a question of fact, which can be decidedonly during the trial. The charge sheet discloses that the petitioner abusedand intimidated the de facto complainant and the same was witnessed byseveral witnesses. Therefore, I do not accede to the contention advancedon behalf of the petitioner that the allegations mentioned in the FirstInformation Report as well as charge sheet are absurd and inherentlyimprobable.

10. As regards the other question as to whether the procedureadopted by the learned Magistrate is either irregular or illegal, under theCode, the Magistrate can invoke his powers under Section 156(3) ofCr.P.C at pre-cognizance stage to direct investigation by the police, he canalso by exercising his powers can direct investigation under Section 202 ofCr.P.C.

11. The learned counsel on either side relied on some authorities. The learned counsel appearing for the petitioner relied on two decisions ofthe Supreme Court in Rameshbhai Pandurao Hedau v State ofGujarat[[1]]and Suresh Chand Jain v. State of M.P[[2]], whereas thelearned counsel appearing for the 1[st] respondent/de facto complainantrelied on four decisions of the Supreme Court in Rameshbhai PanduraoHedau v. State of Gujarat[[3]], Mohd.Yousuf v. Smt.Afaq Jahan andAnr.[[4]], Dilawar Singh v. State of Dlhi[[5]]a n d DevarapalliLakshminarayana Reddy v. V.Narayana Reddy[[6]]in support of their respective contentions.

12. Suffice it to extract the legal position enunciated by theSupreme Court in one of those decisions i.e. in Dilawar Singh v. State of Dlhi (5 supra) paragraphs Nos.13 and 15 hereunder.

“13. Chapter-XII of the Cr.P.C contains provisions relatingto “information to the police and their powers to investigate”,whereas Chapter-XV, which contains Section 202, deals withprovisions relating to the steps which a Magistrate has to adoptwhile and after taking cognizance of any offence on acomplaint. Provisions of the above two chapters deal with twodifferent facets altogether, though there could be a commonfactor i.e., complaint filed by a person. Section 156, fallingwithin Chapter-XII deals with powers of the police officers toinvestigate cognizable offences. True, Section 202, which fallsunder Chapter-XV, also refers to the power of a Magistrate to“direct an investigation by a police officer”. But the investigationenvisaged in Section-202 is different from the investigationcontemplated in Section 156 of the Cr.P.C.”

15. But a Magistrate need not order any suchinvestigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow theprocedure envisaged in Chapter-XV of the Cr.P.C. A reading ofSection 202(1) of the Cr.P.C makes the position clear that theinvestigation referred to therein is of a limited nature. TheMagistrate can direct such an investigation to be made either bya police officer or by any other person. Such investigation isonly for helping the Magistrate to decide whether or not there issufficient ground for him to proceed further. This can bediscerned from the culminating words in Section 202(1) i.e., “ordirect an investigation to be made by a police officer or by suchother person as he thinks fit, for the purpose of deciding whetheror not there is sufficient ground for proceeding”.

13. Chapter-XII of Code of Criminal Procedure deals with thepowers of the Police Officer to investigate into cognizable offence withoutthe authorization of the Magistrate. However, the Magistrate also underSection 156(3) of the Code can order such an investigation. Theinvestigation contemplated under Section 156(3) of Cr.P.C is therefore atthe pre-cognizance stage. The investigation contemplated under Section 202 of Cr.P.C is only for a limited purpose enabling the Magistrate to takea decision as to whether there is sufficient ground to proceed furtheragainst the accused person in the case. After receiving the report relatinginvestigation ordered under Section 202 of Cr.P.C, the Magistrate has totake a decision as to whether the cognizance can be taken or not. Basingon the decision so taken, the Magistrate may either dismiss the complaintunder Section 203 of Cr.P.C or may proceed further as required inChapter-XIV of the Code of Criminal Procedure.

14. In the instant case, the contention of the learned counselappearing for the petitioner is that since the Magistrate recorded thestatement of the de facto complainant, he has either to take cognizance ordismiss the complaint, but cannot direct investigation by the police. It istrue that for directing investigation by the police under Section 156(3) ofCr.P.C the Magistrate need not record the statement of the complainant,but at the same time, it is erroneous to presume that when once theMagistrate recorded the statement of the complainant, he made up hismind either to take cognizance of the offence or to dismiss the complaint. “Taking cognizance of offence by the Magistrate” has not been defined inthe Code. Generally speaking “taking cognizance” means applyingjudicial mind by the Magistrate to the facts before him for the purpose ofproceeding under the provisions of the Chapter-XIV of the Code ofCriminal Procedure.

15. In the instant case, the de facto complainant made a complaintto the Magistrate. The Magistrate it seems recorded his statement toascertain about the allegations made in the complaint. In my view, itcannot be said that the Magistrate had made up his mind either to takecognizance or to dismiss the complaint. Though under law the Magistrateis not required to record the sworn statement of the complainant if heintends to direct an investigation to the police under Section 156(3) ofCr.P.C, mere recording the statement of the complainant does not precludethe Magistrate from exercising power under Section 156(3) of Cr.P.C toforward the case for investigation by the police authorities. The expression cognizance of the offence would liberally mean taking notice of the offenceand also proceeding to initiate judicial proceeding when the Magistratehad taken down the narration made by the complainant took note of it anddirected the police to investigate into the offence under section 156(3)Cr.P.C. Obviously therefore the Magistrate had not yet taken a decision toinitiate judicial proceedings against the accused.

16. From the facts of the present case it is clear that the Magistratehas recorded the statement of the complainant to ascertain the allegationslevelled in the complaint, after so ascertaining, the Magistrate used hisdiscretion to forward the complaint to the police for investigation. Thecourse adopted by the Magistrate therefore according to me is neitherirregular nor illegal requiring this Court to quash the charge sheet inexercise of powers under Section 482 of Cr.P.C.

17. In view of the above, there are no valid grounds to quash theproceedings in C.C.No.7/2010 on the file of the Judicial Magistrate of FirstClass, Pakala, Chittoor District in exercise of powers under Section 482 ofCr.P.C. Consequently, the Criminal Petition is dismissed.

Pending miscellaneous petitions, if any, shall stand closed inconsequence.

Date: 31.12.2013Dsr

_____________________

R.KANTHA RAO,J

Note:LR copy to be marked B/o Dsr

[1](2010) 4 SCC 185

[2](2001) 2 SCC 628

[3]AIR 2010 SC 1877

[4]AIR 2006 SC 705

[5]AIR 2007 SC 3234

[6]AIR 1976 SC 1672(1)