# Anand Kumar Pandey Revisionist v. State of U.P. & Ors

- **Citation:** Criminal Revision No. 544 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-11
- **Case number:** Criminal Revision No. 544 of 2020
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-kumar-pandey-revisionist-v-state-of-u-p-ors-46293
- **Pages:** 18

## Headnote

law-
Code
of
Criminal
Procedure,1973-Sections 397/401-Section
156(3),200-challenge to-application u/s
156(3)-from the reading of application
cognizable offence was made out-Court
below instead of issuing direction to lodge
FIR and investigate, illegally treated as a
complaint-app-Court
below
has
not
committed
procedural
irregularity
in
exercise of its discretionary jurisdiction
under section 156(3)-Hence, dismissed.
(Para 6 to 40)

B. In its discretionary power,it is open for
the magistrate to direct the police to
register a criminal case u/s 154 Cr.P.C.
and conduct investigation. At the same
time, it is open for the Magistrate, where
the facts of the case and ends of justice so
demand, to take cognizance of the matter
by treating it as a complaint and proceed
for the "inquiry" u/s 200 and 202
Cr.P.C.(Para 35)

It is not incumbent upon a Magistrate to allow
an application u/s 156(3) Cr.P.C. for registration
of the case, he can exercise judicial discretion in
the matter and can pass order for treating it as
complaint or to reject it in suitable cases.

The revision is dismissed. (E-6)

List of Cases Cited:

## Text

_Characters 0–39,965 of 58,931. This is a partial read: ask again with offset=39965 for what follows._

3-5 All. Anand Kumar Pandey Vs. State of U.P. & Ors.
1039

33. Accordingly, the criminal revision
is hereby dismissed.
----------
(2020)03-05ILR A1039
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2020

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Revision No. 544 of 2020

Anand Kumar Pandey ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Santosh Kumar Shukla

Counsel for the Opposite Parties:
A.G.A.

A.
Criminal
law-
Code
of
Criminal
Procedure,1973-Sections 397/401-Section
156(3),200-challenge to-application u/s
156(3)-from the reading of application
cognizable offence was made out-Court
below instead of issuing direction to lodge
FIR and investigate, illegally treated as a
complaint-app-Court
below
has
not
committed
procedural
irregularity
in
exercise of its discretionary jurisdiction
under section 156(3)-Hence, dismissed.
(Para 6 to 40)

B. In its discretionary power,it is open for
the magistrate to direct the police to
register a criminal case u/s 154 Cr.P.C.
and conduct investigation. At the same
time, it is open for the Magistrate, where
the facts of the case and ends of justice so
demand, to take cognizance of the matter
by treating it as a complaint and proceed
for the "inquiry" u/s 200 and 202
Cr.P.C.(Para 35)

It is not incumbent upon a Magistrate to allow
an application u/s 156(3) Cr.P.C. for registration
of the case, he can exercise judicial discretion in
the matter and can pass order for treating it as
complaint or to reject it in suitable cases.

The revision is dismissed. (E-6)

List of Cases Cited:

1. Lalita Kumari Vs. Govt. Of U.P. & ors., (2014)
2 SCC 1

2. Mohammad Yousuf Vs. Smt. Afaq Jahan &
anr., (2006 ) 1 SCC 627

3. R.R. Chari Vs. St. Of U.P., (1951) SC 207

4. Narayandas Bhagwandas Madhavdas Vs. St.
Of W.B.,(1959) SC 1118

5. Gopal Das Sindhi & ors. Vs. St. Of Assam &
anr.,AIR (1961) SC 986

6. Superintendent and Remembrancer of Legal
Affairs,W.B.
Vs.Abani
Kumar
Banerjee,AIR
(1950) Calcutta,437

7. Suresh Chand Jain Vs. St. Of M.P. & anr.,
(2001)2 SCC 628

8. Tula Ram Vs. Kishore Singh, (1977) 4 SCC
459

9. Ram Babu Gupta Vs. St. Of U.P. & ors.,(2001)
43 ACC 50

10. India Carat Pvt. Ltd. Vs. St. Of Karnataka
(1989)2 SCC 132

11. Sakiri Vasu Vs. St. Of U.P. & ors., (2008) 2
SCC 409

12. Vinubhai Haribhai & Malaviya & ors. Vs. St.
Of Guj.& anr. (2019) SCC Online SC 1346

13. Devarapalli Laxminarayan Reddy & ors. Vs.
V. Narayana Reddy & ors.,(1976 ) 3 SCC 252

14. Vinay Tyagi Vs. Irshad Ali @ Deepak &
ors.(2013) 5 SCC 762

15. Ramdev Food Products Pvt. Ltd. Vs. St. Of
Guj., (2015) 6 SCC 439
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
16. Anil Kumar Vs. M.K. Aiyappa, (2013) 10 SCC
705

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Santosh Kumar Shukla,
learned counsel for the revisionist, Mr.
Sheetal Prasad Chakarvorty and Mr. P.K.
Shahi, learned counsel for the State and
perused the record.

2. This criminal revision under
section 397/401 Cr.P.C. has been preferred
by the revisionist against the impugned
order dated 20.12.2019 passed by the
learned Chief Judicial Magistrate, Auraiya
in Complaint Case No. 4329 of 2019,
arising out of Misc. Case No. 268 of 2019
(Anand Kumar Pandey vs. Rani Devi and
others), whereby the application moved
under Section 156 (3) Cr.P.C. was treated
as complaint and proceeded to record the
statement under Section 200 Cr.P.C.

3. The brief allegations as alleged in the
present case are that the complainant /
revisionist filed an application under Section
156(3) Cr.P.C. on 11.06.2019 before the
learned Magistrate stating therein that the
complainant had purchased land no.127/1
situated at Mauja Manepur, Phaphund, DistrictAuraiya from the opposite party no.3 and,
thereafter, his name entered in the revenue
record and he was absolute owner of the said
land. Some trees were standing over the said
land, but the accused opposite party no.2 to 4
obtained
permission
from
the
Forest
Department by way of forged affidavit
mentioned situation of trees in between Gata
No.127/1 and 127/2, which was absolutely
wrong. Thereafter, the accused opposite parties
with joint conspiracy cut down the said trees
situated at Gata No.127/1 only and committed
offence of forgery and cheating by way of
misrepresenting the correct situation of trees,
whereas, the opposite party no.2 had already
sold the said land to the complainant in the year
2011. With regard to the same, the complainant
tried to lodge a first information report but no
report was lodged. He had also sent a registered
complaint to the Superintendent of Police,
Auraiya even then no action was taken by the
police though a cognizable offence has been
made out against the accused persons.
Therefore, the application under Section 156(3)
Cr.P.C. was moved by the complainant/
revisionist before the concerned court below for
registration of the first information report.

4. It has been contended by learned
counsel for the revisionist that vide order dated
20.12.2019, the concerned court below while
disposing of the said application under Section
156 (3) Cr.P.C. has treated the same as
complaint and directed it to be registered as
complaint case fixing date for recording
statement of the complainant under Section 200
Cr.P.C.

5. Learned counsel for the revisionist
vehemently submits that from perusal of
the application under Section 156(3)
Cr.P.C. itself, a cognizable offence was
made out and as such, it was required for
the concerned court below to direct the
police to investigate the matter. However,
the learned Magistrate instead of directing
for registration of the first information
report treated the same as complaint,
though cognizable offence is made out
against them, therefore, the order passed by
the court below is unsustainable in the eye
of law.

6. Learned counsel for the revisionist
has relied upon the judgment of the Hon'ble
Apex Court in the case of Lalita Kumari
vs. Government of U.P. and Others
reported in 2014 (2) SCC 1, the Hon'ble
3-5 All. Anand Kumar Pandey Vs. State of U.P. & Ors.
1041
Apex Court has laid down guidelines
holding that an obligation is cast on a
police
officer
to
register
afirstinformationreportunder Section 154 of
the Code of Criminal Procedure upon
receiving
anyinformationrelating
to
commission of a cognizable offence. It is
contended that the Hon'ble Apex Court has
categorically held that the registration of
F.I.R. is mandatory under Section 154 of
the Code, if the information discloses
commission of a cognizable offence and no
preliminary inquiry is permissible in such a
situation.
Only
in
acasewhere
theinformationreceived does not disclose a
cognizable offence, the necessity for a
preliminary inquiry may arise which may
be conducted only to ascertain whether
cognizable offence is disclosed or not. In
thatcasealso, once the preliminary inquiry
discloses the commission of a cognizable
offence, the F.I.R. must be registered.

7. Per contra learned A.G.A. has
contended that the order passed by the court
below suffers from no error. The learned
Magistrate is well within his power to treat the
same as complaint. When an application is
moved under Section 156 (3) Cr.P.C. it is not
necessary to direct in every case to register the
first information report, hence in view of the
decision of this court in Sukhbasi's (supra)
case the court below has treated the same as
complaint.

8. Having heard the learned counsel for the
revisionist and perusing the impugned order as well
as the complaint, this Court does not find substance
in the argument of the learned counsel for the
revisionist. To appreciate the legal position in this
regard, it is appropriate to have reference to
provision of Sections 154 and 156 Cr.P.C before
proceeding further. Provision of Sections 154 and
156 Cr.P.C is reproduced as under:-

"154. Information in cognizable cases.

(1) Every information relating to the
commission of a cognizable offence, if given
orally to an officer in charge of a police station,
shall be reduced to writing by him or under his
direction, and be read Over to the informant;
and every such information, whether given in
writing or reduced to writing as aforesaid, shall
be signed by the person giving it, and the
substance thereof shall be entered in a book to
be kept by such officer in such form as the State
Government may prescribe in this behalf.

(2) A copy of the information as
recorded under sub- section (1) shall be given
forthwith, free of cost, to the informant.

(3) Any person aggrieved by a
refusal on the part of an officer in charge
of a police station to record the information
referred to in subsection (1) may send the
substance of such information, in writing
and by post, to the Superintendent of Police
concerned who, if satisfied that such
information discloses the commission of a
cognizable offence, shall either investigate
the case himself or direct an investigation
to
be made
by any police
officer
subordinate to him, in the manner provided
by this Code, and such officer shall have all
the powers of an officer in charge of the
police station in relation to that offence.

"156. Police officer's power to
investigate cognizable case.-

(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 th
provisions of Chapter XIII.
1042 INDIAN LAW REPORTS ALLAHABAD SERIES

(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."

9. Perusal of the provision of Section
156 (3) Cr.P.C shows that a Magistrate is
empowered to direct the Station House
Officer of the Police Station concerned to
investigate
the
case;
qua
which
a
Magistrate is competent to take cognizance
under Section 190 Cr.P.C. At this stage, it
is also useful to have reference of Section
190 Cr.P.C which is as under:-

"190. Cognizance of offences by
Magistrates.

(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."

10. Perusal of aforesaid Section 190
Cr.P.C shows that a Magistrate has a wide
power to take cognizance of an offence
either on police report or on receipt of the
complaint constituting such an offence, or
upon information received from any person
or even on his own knowledge as well; that
such as offence has been committed.

11. Further, perusal of the aforesaid
provisions, it is evident that the police can
investigate
into
matters
relating
to
commission
of
'cognizable
offences'
brought to its notice under section 154
CrPC. Officer-in-charge of police station
has power to investigate U/s 156(1) Cr.P.C.
in such case. Magistrate has power to take
cognizance U/s 190 Cr.P.C. on receiving
the 'complaint'. Thus the matter relating to
section 156 (3) Cr.P.C. relates to power of
Magistrate to order investigation by police
in matters relating to cognizable offences
brought before it through complaint.
Complaint has been defined in section 2(d)
Cr.P.C. of as follows :-

"complaint' means any allegation
made orally or in writing to a Magistrate,
with a view to his taking action under this
Code, that some person whether known or
unknown, has committed an offence, but
does not include a Police report."

Code of Criminal Procedure has
given different type of powers to deal with
such matters relating to commission of
cognizable offences when brought before
it.

12. In the case of Lalita Kumari vs.
Government of U.P. and Others reported
in 2014 (2) SCC 1, the question which
3-5 All. Anand Kumar Pandey Vs. State of U.P. & Ors.
1043
arose for consideration on a reference was
"whether a police officer is bound to
register a first information report (FIR)
upon receiving aninformationrelating to
commission of a cognizable offence under
Section 154 of the Code of Criminal
Procedure, 1973 (in short "Code") or the
police officer has the power to conduct a
preliminary inquiry in order to test the
veracity
of
such
informationbefore
registering the same in the context of the
question before it.

13. The five judges Bench of Hon'ble
Apex Court in the case of Lalita Kumari
(supra), taking note of the provisions
contained in Section 154, 156 & 157 in
Chapter XII of the Code of Criminal
Procedure has held in paragraph nos. 120 to
120.8 as under:-

"120. In view of the aforesaid
discussion, we hold:-

120.1 The registration of FIR is
mandatory under Section 154 of the Code,
if the information discloses commission of
a cognizable offence and no preliminary
inquiry is permissible in such a situation.

120.2 If the information received
does
not disclose
commission
of
a
cognizable offence but indicates that the
necessity for an inquiry, a preliminary
inquiry may be conducted only to ascertain
whether cognizable offence is disclosed or
not.

120.3 If the inquiry discloses the
commission of a cognizable offence, the
FIR must be registered. In cases where
preliminary inquiry ends in closing the
complaint, a copy of the entry of such
closure must be supplied to the first
informant forthwith (not later than one
week) disclosing reasons in brief for
closing the complaint and not proceeding
further.

120.4 The police officer cannot
avoid his duty of registering an offence
if cognizable is disclosed. Action must
be taken against an erring officer who
do not register the FIR if information
received by him discloses a cognizable
offence.

120.5 The scope of preliminary
inquiry is not to verify the veracity or
otherwise by the information received
but only to ascertain whether the
information reveals any cognizable
offence.

120.6 As to what type and in
which cases the preliminary inquiry is
to be conducted, will depend on the
facts and circumstances of each case.
The
category
of
cases
in
which
preliminary inquiry may be made are
identified as under:-

(a)
Matrimonial
disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e)
Cases
where
there
is
abnormal delay/laches in initiating
criminal prosecution, for example, over
3 months' delay in reporting the matter
without satisfactorily explaining the
reasons for delay.

The
aforesaid
are
only
illustrations and not exhaustive of all
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
conditions
which
may
warrant
preliminary inquiry.

120.7 While ensuring and protecting
the rights of the accused and the complainant, a
preliminary inquiry should be made time-bound
and in any case it should not exceed 7 days. The
fact of such delay and the causes of it must be
reflected in the General Diary entry.

120.8
Since
the
General
Diary/Station Diary/Daily Diary is the record
of all information received in a police station,
we direct that all information relating to
cognizable offences, whether resulting in
registration of FIR or leading to an inquiry,
must be mandatorily and meticulously reflected
in the said diary and the decision to conduct a
preliminary inquiry must also be reflected, as
mentioned above."

14. Acquainting the above directions
issued by the Hon'ble Apex Court in the case of
Lalita Kumari (supra), in the context of the
question referred before it, it is evident that all
the directions issued therein apply in the matter
of receipt of information of commission of a
cognizable offence by the police and the stage
of "investigation" as defined in Section 2(h) of
the Code to be made by the police in exercise of
power conferred upon it under Chapter XII of
the Code.

15. From a careful reading of the
observations and directions issued by the Apex
Court in Lalita Kumari's (supra) case, it cannot
be said that they relate in any manner or curtail
the power of the Magistrate to make an
"inquiry" as defined in Section 2(g) of the
Code. The Hon'ble Apex Court has also
observed as follows:-

"87. The term "inquiry" as per
Section 2(g) of the Code reads as under:

"2.(g) "inquiry" means every inquiry,
other than a trial, conducted under this Code by
a Magistrate or Court."

Hence, it is clear that inquiry under
the Code is relatable to a judicial act and not to
the steps taken by the Police which are either
investigation after the stage of Section 154 of
the Code or termed as "preliminary inquiry"
and which are prior to the registration of FIR,
even though, no entry in the General
Diary/Station Diary/Daily Diary has been
made.

88. Though there is reference to the
term "preliminary inquiry" and "inquiry" under
Sections 159 and Sections 202 and 340 of the
Code, that is a judicial exercise undertaken by
the Court and not by the Police and is not
relevant for the purpose of the present
reference."

16. The question of power of
Magistrate to order investigation under
Section 156(3) Cr.P.C. came up for
consideration before the Hon'ble Apex
Court in the case of Mohammad Yousuf
vs. Smt. Afaq Jahan & another reported in
2006 (1) SCC 627 wherein the Hon'ble
Apex
Court
has
held
that
the
"investigation" under the directions of the
Magistrate under Section 156(3) Cr.P.C.
falling within Chapter XII contemplates
"investigation" by the police authorities.
Whether the investigation is started by the
police by the registration of FIR on the
information received by it or under the
order of the Magistrate under Section
156(3) Cr.P.C., it would be same kind of
investigation which would end up only
with the report contemplated under Section
173 of the Code. But when a Magistrate
orders "investigation" under Chapter XII,
he does so before he takes cognizance of
the offence under Chapter XV of the Code.
3-5 All. Anand Kumar Pandey Vs. State of U.P. & Ors.
1045
It has also held that Chapter XV of the Code
which confers power on the Magistrate to order
"investigation" under Section 202 of the Code
deals with the provisions relating to the steps
which a Magistrate may adopt after taking
cognizance of an offence on a complaint. Thus,
the investigation under Section 202, which falls
under Chapter XV, though refers to the power
of a Magistrate to direct an investigation by a
police officer, but is different from the
"investigation" contemplated in Section 156(3)
falling within Chapter XII of the Code.

17. The relevant paragraphs nos. 9, 10 &
11 of Mohammad Yousuf's (Supra) case are to
be quoted herein:-

"9. But a Magistrate need not order
any such investigation if he proposes to take
cognizance of the offence. Once he takes
cognizance of the offence he has to follow the
procedure envisaged in Chapter XV of the
Code. A reading of Section 202(1) of the Code
makes the position clear that the investigation
referred to therein is of a limited nature. The
Magistrate can direct such an investigation to
be made either by a police officer or by any
other person. Such investigation is only for
helping the Magistrate to decide whether or
not there is sufficient ground for him to
proceed further. This can be discerned from the
culminating words in Section 202(1) i.e. "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".

10. This is because he has already
taken cognizance of the offence disclosed in the
complaint, and the domain of the case would
thereafter vest with him.

11. The clear position therefore is
that any Judicial Magistrate, before taking
cognizance of the offence, can order
investigation under Section 156(3) of the
Code. If he does so, he is not to examine the
complainant on oath because he was not
taking cognizance of any offence therein. For
the purpose of enabling the police to start
investigation it is open to the Magistrate to
direct the police to register an FIR. There is
nothing illegal in doing so. After all
registration of an FIR involves only the process
of entering the substance of the information
relating to the commission of the cognizable
offence in a book kept by the officer in charge of
the police station as indicated in Section 154 of
the Code. Even if a Magistrate does not say in
so many words while directing investigation
under Section 156(3) of the Code that an FIR
should be registered, it is the duty of the officer
in charge of the police station to register the
FIR regarding the cognizable offence disclosed
by the complaint because that police officer
could take further steps contemplated in
Chapter XII of the Code only thereafter."

18. Further it is well settled law as laid
down by the Hon'ble Apex Court in the cases of
R.R. Chari vs the State of Uttar Pradesh
reported in AIR 1951 SC 207, Narayandas
Bhagwandas Madhavdas vs. State of West
Bengal reported in AIR 1959 SC 1118 and
Gopal Das Sindhi & others Vs. State of Assam
& another reported in AIR 1961 SC 986 as
also the decision of the Calcutta High Court in
the
case
of
Superintendent
and
Remembrancer of Legal Affairs, West Bengal
vs. Abani Kumar Banerjee reported in AIR
1950 Calcutta 437.

19. The relevant part of Superintendent
and Remembrancer of Legal Affair's (supra)
case is quoted herein below:-

".........."What
is
taking
cognizance has not been defined in the
Code of Criminal Procedure and I have no
desire to attempt to define it. It seems to
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
me clear, however, that before it can be
said that any Magistrate has taken
cognizance of any offence under Section
190(1)(a) of the Cr PC, he must not only
have applied his mind to the contents of
the petition but he must have done so for
the purpose of proceeding in a particular
way as indicated in the subsequent
provisions of this Chapter --proceeding
under Section 200 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 this
Chapter, but for taking action of some
other kind, e.g., ordering investigation
under Section 156(3), or issuing a search
warrant
for
the
purpose
of
the
investigation, he cannot be said to have
taken cognizance of the offence." were
approved by this Court in R.R. Chari v.
State of Uttar Pradesh[1951 SCR 312] . It
would be clear from the observations of Mr
Justice Das Gupta that when a Magistrate
applies his mind not for the purpose of
proceeding under the various sections of
Chapter XVI but for taking action of some
other kind, e.g. ordering investigation
under Section 156(3) or issuing a search
warrant for the purpose of investigation, he
cannot be said to have taken cognizance of
any offence. The observations of Mr Justice
Das Gupta above-referred to were also
approved by this Court in the case of
Narayandas Bhagwandas Madhavdas v.
State of West Bengal [1960 (I) SCR 93] . It
will be clear, therefore, that in the present
case
neither
the
Additional
District
Magistrate nor Mr Thomas applied his
mind to the complaint filed on August 3,
1957, with a view to taking cognizance of
an
offence.
The
Additional
District
Magistrate passed on the complaint to Mr
Thomas to deal with it. Mr Thomas seeing
that cognizable offences were mentioned in
the complaint did not apply his mind to it
with a view to taking cognizance of any
offence; on the contrary in his opinion it
was a matter to be investigated by the
police under Section 156(3) of the Code.
The action of Mr Thomas comes within the
observations of Mr Justice Das Gupta. In
the circumstances, we do not think that the
first contention on behalf of the appellants
has any substance."

20. Further, in the case of Jamuna
Singh Vs. Bhadai Shah, reported in AIR
1964 SC 1541 wherein the Hon'ble Apex
Court observed as under:-

"............when on a petition of
complaint being filed before him a
Magistrate
applies
his
mind
for
proceeding under the various provisions
of Chapter XVI of the Code of Criminal
Procedure, he must be held to have taken
cognizance of the offences mentioned in
the complaint. When however he applies
his mind not for such purpose but for
purposes of ordering investigation under
s. 156(3) or issues a search warrant for
the purpose of investigation he cannot be
said to have taken cognizance of any
offence. It was so held by this Court in R.R.
Chari v. State of U. P.(1) and again in
Gopal Das v. State of, Assam(2) In the case
before us the Magistrate after receipt of
Bhadai Sah's complaint proceeded to
examine him under s. 200 of the Code of
Criminal Procedure. That section itself
states
that
the
Magistrate
taking
cognizance of an offence on a complaint
shall at once examine the complainant and
the witnesses present, if any, upon oath.
This examination by the Magistrate under
s. 200 of the Code of Criminal Procedure
puts it beyond doubt that the Magistrate did
take cognizance of the offences mentioned
in the complaint. After completing such
3-5 All. Anand Kumar Pandey Vs. State of U.P. & Ors.
1047
examination and recording the substance of
it to writing as required by s. 200 the
Magistrate could have issued process at
once under s. 204 of the Code of Criminal
Procedure or could have dismissed the
complaint under s. 203 of the Code of
Criminal Procedure. It was also open to
him, before taking either of these courses,
to take action under s. 202 of the Code of
Criminal
Procedure.
That
section
empowers the Magistrate to "postpone the
issue of process for compelling the
attendance of persons complained against,
and either enquire into the case himself or
if he is a Magistrate other than a
Magistrate of the third class, direct an
enquiry or investigation to be made by any
Magistrate subordinate to him, or by a
police officer, or by such other person as
he thinks fit, for the purpose of ascertaining
the truth or falsehood of the complaint." If
and when such investigation or inquiry is
ordered the result of the investigation or
inquiry has to be taken into consideration
before the Magistrate takes any action
under s. 203 of the Code of Criminal
Procedure.

We find that in the case before us
the
Magistrate
after
completing
the
examination under s. 200 of the Code of
Criminal Procedure and recording the
substance of it made the order in these
words :--

"Examined the complaint on s.a.
The offence is cognizable one. To S.I.
Bakunthpur for instituting a case and
report by 12.12.56."

 If the learned Magistrate had
used the words "for investigation" instead
of the words "for instituting a case" the
order would clearly be under s. 202 01' the
Code of Criminal Procedure. We do not
think that the fact that he used the words
"for
instituting
a
case"
makes
any
difference. It has to be noticed that the
Magistrate was not bound to take
cognizance of the offences on receipt of
the complaint. He could have, without
taking
cognizance,
directed
an
investigation of the case by the police
under s. 156(3) of the Code of Criminal
Procedure.
Once
however
he
took
cognizance he could order investigation by
the police only under s. 202 of the Code of
Criminal Procedure and not under s.
156(3) of the Code of Criminal Procedure.
As it is clear here from the very fact that he
took action under s. 200 of the Code of
Criminal Procedure, that he had taken
cognizance of the offences mentioned in the
complaint, it was open to him to order
investigation only under s. 202 of the Code
of Criminal Procedure and not under s.
156(3) of the Code. It would be proper in
these circumstances to hold that though the
Magistrate used the words "for instituting a
case" in this order of November 22, 1956
he was actually taking action under s. 202
of the Code of Criminal Procedure, that
being the only section under which he was
in law entitled to act."

21. As to what would mean "by
taking cognizance" has been clarified by
the Apex Court in the case of R.R. Chari
vs. the State of Uttar Pradesh reported in
AIR 1951 SC 207. The relevant paragraph
Nos. 8 & 9 of the said judgment read as
under:-

"8. In Gopal Marwari v. Emperor
(1), it was observed that the word
'cognizance' is used in the Code to
indicate the point when the Magistrate or
a Judge first takes judicial notice of an
offence. it is a different thing from the
initiation of proceedings. It is the condition
precedent to the initiation of proceedings
by the Magistrate. The court noticed that
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
the word 'cognizance' is a word of
somewhat indefinite import and it is
perhaps not always used in exactly the
same sense.

"9.
After
referring
to
the
observations in Emperor v. Sou-rindra
Mohan Chuckerbutty (2), it was stated by
Das Gupta J. in Superintendent and
Remembrancer of Legal Affairs, West
Bengal v. Abani Kumar Banerjee (3) as
follows :-

"What is taking cognizance has
not been defined in the Criminal Procedure
Code and I have no desire to attempt to
define it. It seems to me clear however that
before it can be said that any magistrate
has taken cognizance of any offence under
section 190 (1) (a), Criminal Procedure
Code, he must not only have applied his
mind to the contents of the petition but he
must have done so for the purpose of
proceeding in a particular way as indicated
in the subsequent provisions of this
Chapter-- proceeding under section 200
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 this Chapter, but for
taking action of some other kind, e.g.,
ordering investigation under section 156
(3), or issuing a search warrant for the
purpose of the investigation, he cannot be
said to have taken cognizance of the
offence."

In our opinion that is the correct
approach to the question before the court."

22. Further the aforesaid view had
been noted with approval by the Apex
Court
in
the
case
of
Narayandas
Bhagwandas Madhavdas vs. State of West
Bengal reported in AIR 1959 SC 1118 by
observing as under:-

"............It is, however, argued
that in Chari's case this Court was dealing
with a matter which came under the
Prevention of Corruption Act. It seems to
us, however, that makes no difference. It is
the principle which was enunciated by Das
Gupta, J., which was approved. As to when
cognizance is taken of an offence will
depend upon the facts and circumstances
of each case and it is impossible to attempt
to define what is meant by taking
cognizance. Issuing of a search warrant
for the purpose of an investigation or of a
warrant of arrest for that purpose cannot
by themselves be regarded as acts by
which cognizance was taken of an
offence. Obviously, it is only when a
Magistrate applies his mind for the purpose
of proceeding under s. 200 and subsequent
sections of Chapter XVI of the Code of
Criminal Procedure or under s. 204 of
Chapter XVII of the Code that it can be
positively stated that he had applied his
mind and therefore had taken cognizance."

23. Thereafter, the Full Bench of this
Court in the case of Ram Babu Gupta Vs.
State of U.P. & others reported in 2001
(43) ACC 50 has held that it is not possible
to hold that when an application is moved
before the Court only for exercise of
powers under Section 156(3) Cr.P.C., it
will remain an application only and would
not be in the nature of the complaint. It was
held that in any case, the Magistrate has to
apply his mind on the allegations in the
complaint to use his powers under Section
156(3) Cr.P.C. It was, thus, held that:-

"on receiving a complaint the
Magistrate has to apply his mind to the
allegations in the complaint upon which
he may not at once proceed to take
cognizance and may order it to go to the
3-5 All. Anand Kumar Pandey Vs. State of U.P. & Ors.
1049
police station for being registered and
investigated. The order of the Magistrate
must indicate application of mind. If the
Magistrate takes cognizance; he proceeds
to follow the procedure provided in
Chapter XV of Cr.P.C."

24. In India Carat Pvt. Ltd. vs. State
of Karnataka reported in 1989 (2) SCC
132,
considering
the
provisions
as
contained in Chapter XIV, Chapter XV and
Chapter XVI of the Code, it was observed
in paragraph 13' as under:-

"13. From the provisions referred to
above, it may be seen that on receipt of a
complaint a Magistrate has several courses
open to him................... ....................Yet another
course open to the Magistrate is that instead of
taking cognizance of the offence and following
the procedure laid down under Section 200 or
Section 202, he may order an investigation to
be made by the police under Section 156(3).
When such an order is made, the police will
have to investigate the matter and submit a
report under Section 173(2). On receiving the
police report the Magistrate may take
cognizance of the offence under Section
190(1)(c) and issue process straightaway to the
accused. The Magistrate may exercise his
powers in this behalf irrespective of the view
expressed by the police in their report whether
an offence has been made out or not. This is
because the police report under Section 173(2)
will contain the facts discovered or unearthed
by the police as well as the conclusion drawn
by the police therefrom. If the Magistrate is
satisfied that upon the facts discovered or
unearthed by the police there is sufficient
material for him to take cognizance of the
offence and issue process, the Magistrate may
do so without reference to the conclusion
drawn by the Investigating Officer because the
Magistrate is not bound by the opinion of the
police officer as to whether an offence has
been made out or not. Alternately the
Magistrate, on receiving the police report, may
without issuing process or dropping the
proceeding proceed to act under Section 200
by taking cognizance of the offence on the
basis of the complaint originally submitted to
him and proceed to record the statement upon
oath of the complaint and the witnesses
present and thereafter decide whether the
complaint should be dismissed or process
should be issued."

25. The question regarding the power of
Magistrate to order investigation under Section
156(3)
Cr.P.C.
further
came
up
for
consideration before the Apex Court in the case
of Sakiri Vasu vs. State of U.P. & Ors.
reported in 2008 (2) SCC 409; wherein it is
observed that Section 156(3) provides for a
check by the Magistrate on the police
performing its duties under Chapter XII of the
Code. In case where the Magistrate finds that
the police has not done its duties of
investigating the case at all or has not done it
satisfactorily, he can issue direction to the
police to do the investigation properly and can
also monitor the same.

26. It was held therein that although
Section 156(3) Cr.P.C. is very briefly
worded but there is an implied power with
the Magistrate under Section 156(3)
Cr.P.C. to order registration of a criminal
case and/or to direct the officer in charge of
the police station concerned to hold a
proper investigation and take all such
necessary steps that may be necessary for
ensuring a proper investigation including
monitoring the same.

27. The above view taken in Sakiri
Vasu's (supra) case is supported by the
reasoning therein that even though these
powers have not been expressly mentioned
in Section 156(3) Cr.P.C., they are implied
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
in the said provision as when a power is
given to an authority to do something it
includes such incidental or implied powers
which would ensure the proper doing of
that thing. Relevant paragraph Nos. 18, 19
& 20 of the aforesaid judgement are noted
as under:-

"18. It is well-settled that when a
power is given to an authority to do something
it includes such incidental or implied powers
which would ensure the proper doing of that
thing. In other words, when any power is
expressly granted by the statute, there is
impliedly included in the grant, even without
special mention, every power and every control
the denial of which would render the grant itself
ineffective. Thus where an Act confers
jurisdiction it impliedly also grants the power of
doing all such acts or employ such means as
are essentially necessary to its execution.

19. The reason for the rule (doctrine
of implied power) is quite apparent. Many
matters of minor details are omitted from
legislation. As Crawford observes in his
Statutory Construction (3rd edn. Page 267):-

If these details could not be inserted
by implication, the drafting of legislation would
be an indeterminable process and the
legislative intent would likely be defeated by a
most insignificant omission.

20. In ascertaining a necessary
implication, the Court simply determines the
legislative will and makes it effective. What is
necessarily implied is as much part of the
statute as if it were specifically written therein."

28. The abovenoted views have been
considered in a latest decision judgment of the
Hon'ble Apex Court in the case of Vinubhai
Haribhai and Malaviya & Ors. vs. State of
Gujarat & Anr. Reported in 2019 SCC Online
SC 1346 while dealing with the power of the
Magistrate to order further investigation under
Section 173(8) Cr.P.C. of the Code after the
charge sheet is filed and cognizance is taken.
The argument there was that the Magistrate
would have no power to order further
investigation into an offence after he takes
cognizance of the offence on submission of the
charge-sheet on the direction issued by it under
Section 156(3) of the Code. Dealing with the
said argument, it was observed that the power
of a Magistrate under Section 156(3) of the
Code is very wide, for it is this judicial authority
that must be satisfied that a proper investigation
by the police takes place. Relevant paragraph
nos. 23 and 24 of the aforesaid judgment are
quoted as under:-

23. It is thus clear that the
Magistrate's power under Section 156(3)
of the CrPC is very wide, for it is this
judicial authority that must be satisfied
that a proper investigation by the police
takes place. To ensure that a "proper
investigation" takes place in the sense of a
fair and just investigation by the police -
which such Magistrate is to supervise -
Article 21 of the Constitution of India
mandates that all powers necessary, which
may also be incidental or implied, are
available to the Magistrate to ensure a
proper investigation which, without doubt,
would include the ordering of further
investigation after a report is received by
him under Section 173(2); and which
power would continue to ensure in such
Magistrate at all stages of the criminal
proceedings
until
the
trial
itself
commences. Indeed, even textually, the
"investigation" referred to in Section
156(1) of the CrPC would, as per the
definition of "investigation" under Section
2(h), include all proceedings for collection
of evidence conducted by a police officer;
which
would
undoubtedly
include
3-5 All. Anand Kumar Pandey Vs. State of U.P.