A company lodged the first information report for offences under Sections 408/420 I.P.C. against ‘X’ its former Divisional Manager. After completing the investigation, a report under Section 173, CrPC was sent to the Magistrate stating that the case was of civil nature… Decide the Objection.

Question: A company lodged the first information report for offences under Sections 408/420 I.P.C. against ‘X’ its former Divisional Manager. After completing the investigation, a report under Section 173, Cr. P.C. was sent to the Magistrate stating that the case was of civil nature.

The Company lodged a protest petition with the Magistrate and sought permission to prove the commission of offences by 'X’. The Magistrate, after perusing the investigation records, came to the conclusion that a prima facie case under Section 408/420 I.P.C. was made out against ‘X’ and consequently issued process against him under Section 204 of the Code of Criminal Procedure.

Then this order is challenged by ‘X’ on the ground that the Magistrate had no power to issue a process against him without first complying with the provisions of Sections 200 and 202 of the Criminal Procedure Code. Decide the Objection. [U.P.H.J.S. 2012, D.J.S. 1990]

Find the answer only on Legal Bites. [A company lodged the first information report for offences under Sections 408/420 I.P.C. against ‘X’ its former Divisional Manager. After completing the investigation, a report under Section 173, CrPC was sent to the Magistrate stating that the case was of civil nature... Decide the Objection.]

Answer

In Ajay Malviya v. State of U.P. and others (1997) 4 SCC 459, the Hon’ble SC has made the following legal proposition:

(i) That a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200, and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order an investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an inquiry as contemplated by Section 202 of the Code.

(ii) Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.

The Magistrate can postpone the issue of process and direct an inquiry by himself. The Magistrate can postpone the issue of process and direct an inquiry by any other person or an investigation by the police.

iii) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the inquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.

(iv) Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190.

In H.S. Bains v. State, 1981 SCR (1) 935, it has been held by Hon’ble the Apex Court-

“Where the magistrate, on receiving a complaint order investigation under Section 156(3) and receives a report under Section 173 to the effect that no offence was disclosed against the accused, the Magistrate might either decide that if there is no sufficient ground for proceeding further and drop action.”

This judgment also does not lay down that in the application under Section 156(3) CrPC the Magistrate is bound to pass an order to register the case and investigation. In this case, the police after investigation submitted a report to the effect that no case is made out. Hon’ble Apex Court held that in such circumstances also the Magistrate can take cognizance and issue process as provided under Chapter XV CrPC.

Thus, it is seen from the provisions that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue a process under Section 204.

The mere fact that he had earlier ordered an investigation under Section 156 (3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204.

Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things [Ram Khelawan v. State Of U.P. & 6 Ors,. Criminal Appeal No. 21 of 2021]:

• he may decide that there is no sufficient ground for proceeding further and drop action;
• he may take cognizance of the offence under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;
• he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200.

If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be. So, applying the aforesaid reasoning of courts in the present case at hand, it is safe to say that the order is not open to challenge on the ground that the Magistrate had no power to issue process against him without first complying with the provisions of Sections 200 and 202 of the Criminal Procedure Code.

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