# Lalaram Revisionist v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 965
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-18
- **Case number:** Criminal Revision No. 1611 of 2020
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalaram-revisionist-v-state-of-u-p-ors-46145
- **Pages:** 30

## Headnote

A. Criminal Law - Discretion of magistrate
u/s 156(3) CrPC - Code of Criminal
Procedure: Section 156(3), 173(2), 190,
200, 202 (1), 397/401 - It cannot be said
that the Magistrate is bound to order
registration of a First Information Report
in all cases, where a cognizable offence is
disclosed. It is not incumbent upon a
Magistrate to allow an application u/s 156(3)
Cr.P.C. and there is no such legal mandate. The
Magistrate may or may not allow the application
in his discretion. He has a discretion to treat an
application under Section 156(3) Cr.P.C. as a
complaint. (Para 12(i), 27)

Code of Criminal procedure provides for
information to the police and the investigation
by the police, it also provides for the judicial
966 INDIAN LAW REPORTS ALLAHABAD SERIES
surveillance by the Magistrate in cases where
the reports are not registered by the police. The
duties of the police and their power to
investigate are enumerated in Chapter XII of
the Code (Ss. 154, 156 CrPC), under caption
"information to the police and their powers to
investigate." Cognizance and procedure of
complaint case is provided under Chapter XIV
and XV, respectively (Ss. 190, 200, 202 and 203
Cr.P.C.) (Para 14, 15, 16, 40)

If F.I.R. is not being lodged or the investigation
is not being done the alternative course
available to the aggrieved person is to approach
the Court of law, by making an application
giving detail narration of the incident fulfilling
the requirements of a complaint under Section
156(3) Cr.P.C. or a regular complaint. (Para 17,
40)

Where the Magistrate receives a complaint or an
application u/s 156(3) and the facts alleged
therein disclose commission of an offence, he
'may take cognizance' which in the context in
which these words occur in Section 190 of the
Code, cannot be equated with 'must take
cognizance.' The word 'may' gives a discretion
to the Magistrate in the matter. Two, of the
available, courses to the Magistrate u/s 190, are
that he may either take cognizance u/s 190 or
may forward the complaint to the police u/s
156(3) Cr.P.C., for investigation by the police.
Before it can be said that any magistrate has
taken cognizance of any offence under Section
190(1)(a) CrPC, 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 per the
provisions of Cr.P.C. (Para 18, 21, 22, 26)

If the Magistrate takes cognizance, he is
required to embark upon the procedure
embodied
in
Chapter
XV
"Complaints
to
Magistrate", by directing the complainant to get
the statement recorded under Section 200
Cr.P.C. (Para 19, 23)

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 is not taking cognizance of any
offence therein. For the purpose of enabling the
police to start investigation, it is open to the
Magistr

## Text

_Characters 0–39,997 of 105,228. This is a partial read: ask again with offset=39997 for what follows._

1 All. Lalaram Vs. State of U.P. & Ors.
965
cognizance under Section 190(1)(b) Cr.P.C.
and as such there is no illegality or
irregularity
committed
by
learned
Magistrate while passing the order dated
13.1.2014.

18. The next submission of learned
counsel for the revisionists is that the
dispute is of civil nature and civil suit is
still pending for cancellation of sale deed
and as such criminal case can not proceed
and the court below has exceeded its
jurisdiction to summon the revisionists in a
criminal case. It is well settled law settled
by the Hon'ble Apex Court in the case of P.
Swaroopa Rani Vs. M. Hari Narayana
reported in 2008 (5) SCC 765 that civil suit
and
criminal
case
can
proceed
simultaneously. The relevant paragraphs 13
and 19 are quoted herein below.

"13. It is, however, well-settled
that in a given case, civil proceedings and
criminal
proceedings
can
proceed
simultaneously. Whether civil proceedings
or criminal proceedings shall be stayed
depends upon the fact and circumstances of
each case. [See M.S. Sheriff v. State of
Madras AIR 1954 SC 397, Iqbal Singh
Marwah v. Meenakshi Marwah (2005) 4
SCC 370 and Institute of Chartered
Accountants of India v. Assn. of Chartered
Certified Accountants (2005) 12 SCC 226].

19. It goes without saying that the
respondent shall be at liberty to take
recourse to such a remedy which is
available to him in law. We have interfered
with the impugned order only because in
law simultaneous proceedings of a civil and
a criminal case is permissible."

19. In view of aforesaid discussions,
there is no illegality or irregularity in the
order passed by learned Magistrate dated
13.1.2014 by which the final report was
rejected and the revisionists were summoned
to face the trial. The revisionists have thus
failed to point out any infirmity, illegality,
irregularity, impropriety or incorrectness in
the order and the present criminal revision
lacks merits and deserves to be dismissed.

20. Accordingly, the criminal revision is
dismissed. No order as to costs.
----------
(2021)01ILR A965
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Criminal Revision No. 1611 of 2020

Lalaram ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Akansha Verma, Sri Deepak Kumar Verma,
Sri Siya Ram Verma

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

A. Criminal Law - Discretion of magistrate
u/s 156(3) CrPC - Code of Criminal
Procedure: Section 156(3), 173(2), 190,
200, 202 (1), 397/401 - It cannot be said
that the Magistrate is bound to order
registration of a First Information Report
in all cases, where a cognizable offence is
disclosed. It is not incumbent upon a
Magistrate to allow an application u/s 156(3)
Cr.P.C. and there is no such legal mandate. The
Magistrate may or may not allow the application
in his discretion. He has a discretion to treat an
application under Section 156(3) Cr.P.C. as a
complaint. (Para 12(i), 27)

Code of Criminal procedure provides for
information to the police and the investigation
by the police, it also provides for the judicial
966 INDIAN LAW REPORTS ALLAHABAD SERIES
surveillance by the Magistrate in cases where
the reports are not registered by the police. The
duties of the police and their power to
investigate are enumerated in Chapter XII of
the Code (Ss. 154, 156 CrPC), under caption
"information to the police and their powers to
investigate." Cognizance and procedure of
complaint case is provided under Chapter XIV
and XV, respectively (Ss. 190, 200, 202 and 203
Cr.P.C.) (Para 14, 15, 16, 40)

If F.I.R. is not being lodged or the investigation
is not being done the alternative course
available to the aggrieved person is to approach
the Court of law, by making an application
giving detail narration of the incident fulfilling
the requirements of a complaint under Section
156(3) Cr.P.C. or a regular complaint. (Para 17,
40)

Where the Magistrate receives a complaint or an
application u/s 156(3) and the facts alleged
therein disclose commission of an offence, he
'may take cognizance' which in the context in
which these words occur in Section 190 of the
Code, cannot be equated with 'must take
cognizance.' The word 'may' gives a discretion
to the Magistrate in the matter. Two, of the
available, courses to the Magistrate u/s 190, are
that he may either take cognizance u/s 190 or
may forward the complaint to the police u/s
156(3) Cr.P.C., for investigation by the police.
Before it can be said that any magistrate has
taken cognizance of any offence under Section
190(1)(a) CrPC, 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 per the
provisions of Cr.P.C. (Para 18, 21, 22, 26)

If the Magistrate takes cognizance, he is
required to embark upon the procedure
embodied
in
Chapter
XV
"Complaints
to
Magistrate", by directing the complainant to get
the statement recorded under Section 200
Cr.P.C. (Para 19, 23)

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 is 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. A Magistrate need not order any such
investigation if he proposes to take cognizance
of the offence. (Para 24)

B. Where jurisdiction is exercised on a
complaint filed in terms of Section 156(3)
or Section 200 CrPC, the Magistrate is
required to apply his mind and the
application of mind by the Magistrate
should be reflected in the order. The Mere
statement that he had gone through the
complaint,
documents
and
heard
the
complainant, as such, as reflected in the order,
will not be sufficient. After going through the
complaint,
documents
and
hearing
the
complainant, what weighed with the Magistrate
to order investigation under Section 156(3)
CrPC, should be reflected in the order, though a
detailed expression of his views is neither
required nor warranted. (Para 12(ii), 28, 35)

The Magistrate may, where on account of
credibility of information available, or weighing
the
interest
of
justice
it
is
considered
appropriate to straightaway direct investigation,
such a direction is issued, but in cases where
Magistrate takes cognizance and postpones
issuance of process are cases where the
Magistrate has yet to determine "existence of
sufficient ground to proceed". Category of cases
falling under Para 120.6 in Lalita Kumari (infra)
may fall u/s 202. Subject to these broad
guidelines available from the scheme of the
Code, exercise of discretion by the Magistrate is
guided by interest of justice from case to case.
(Para 32, 34)

No decision was cited to throw any light upon
the considerations, which should weight with
the Magistrate to guide his discretion, in
adopting the courses open to him when an
application under Section 156(3) Cr.P.C. is made
to him, held that as per the scheme of the
Cr.P.C.
and
the
prevailing
circumstances
required
that
the
option
to
direct
the
registration of the case and its 'investigation' by
the police should be exercised, where some
'investigation' is required, which is of a nature
that is not possible for a private complainant
and which can only be done by the police upon
whom statute has conferred, the powers
1 All. Lalaram Vs. State of U.P. & Ors.
967
essential for investigation, e.g., where the full
details of the accused are not known to the
complainant and the same can be determined
only as a result of investigation; the recovery of
abducted person or stolen property is required
by raids or searches; where for the purpose of
launching a successful prosecution of the
accused evidence is required to be collected and
preserved etc. (Para 38)

C. Distinction in the power to order police
investigation u/s 156(3) and u/s 202(1)
of the Cr.P.C. The two powers operate in
separate distinct spheres at different stages, the
former being exercisable at the pre-cognizance
stage and the latter at the post-cognizance
stage when the Magistrate is in seisin of the
case. In the case of a complaint regarding the
commission of a cognizable offence, the power
u/s 156(3) could be invoked by the Magistrate
before he takes cognizance of the offence u/s
190(1)(a), but once such cognizance is taken
and he embarks upon the procedure embodied
in Chapter XV, he would not be competent to
revert to the pre-cognizance stage and avail
S.156(3). On the other hand, it was observed
that S.202 would be invocable at a stage when
some evidence has been collected by the
Magistrate in the proceedings under Chapter XV,
but is deemed to be insufficient to take a
decision as to the next step and in such an
event, the Magistrate would be empowered u/s
202 to direct, within the limits circumscribed by
that provision, an investigation for the purpose
of deciding whether or not, there is sufficient
ground for proceeding. It was thus exposited
that the object of an investigation u/s 202 is not
to initiate a fresh case on police report but to
assist
the
Magistrate
in
completing
the
proceedings already instituted upon a complaint
before him. (Para 12(iii), 37, 39)

D. The order passed by the Magistrate in
the present case is not maintainable as
perusal of the order clearly shows that the
learned
Magistrate
has
not
applied
judicious mind to the facts of the case and
the law applicable therein. The order does
not assign any reason, as to why the application
was treated as a complaint case and why the
order for police investigation was not required.
The order does not reflect application of
judicious mind. It does not stand the test of the
law as laid down in the cases of 'Ashok Kumar'
(infra) and Ram Deo Food Products (infra) of
the Hon'ble Supreme Court, and in the case of
'Gulab Chand Upadhyay' (infra) of this Court.
(Para 12(iv), 43)

Criminal Revision/Petition allowed. (E-3)

Precedent followed:

1. Lalita Kumari Vs Govt. of U.P., & ors., (2014)
(2) SCC 1 (Para 7, 29)

2. Jitendra Kumar Vs St. of U.P. & ors., Criminal
Revision No. 1768 of 2018, decided on
29.05.2018 (Para 7)

3. Shiv Mangal Singh Vs St. of U.P. & ors.,
Criminal Revision No. 715 of 2019, decided on
25.02.2019 (Para 7)

4. Sukhwasi Vs St. of U.P. & ors., 2007 (59) ACC
739 (Allahabad) (D.B.) (Para 8)

5. Gopal Das Sindhi Vs St. of Assam, AIR 1961
SC 986 (Para 21)

6. Fakruddin Ahmed Vs St. of Uttar., (2008) 17
Supreme Court 157 (Para 22)

7. Suresh Chand Jain Vs St. of M.P. & anr.,
(2001) 2 SCC 628 (Para 23)

8. Mohd. Yusuf Vs Smt. Afaq Jahan & anr.,
(2006) 1 SCC 627 (Para 24)

9. Hemant Yashwant Dhage Vs St. of Mah.,
(2016) 6 SCC 273 (Para 25)

10. Ram Babu Gupta Vs St. of U.P. & ors., [2001
(43) ACC 50 (FB) (Para 26)

11. Sukhwasi Vs St. of U.P. & ors., [2007 (9)
ADJI (DB) (Para 27)

12. Anil Kumar Vs M.K. Aiyappa & anr., (2013)
10 SCC 705 (Para 28)

13. Jagannath Verma & ors. Vs St. of U.P. &
anr., (2014) 8 ADJ 439 (F.B.) (Para 30)

14. Ram Dev Food Products Vs St. of Guj.,
(2015) 6 SCC 439 (Para 32)
968 INDIAN LAW REPORTS ALLAHABAD SERIES
15.
Amrutbhai
Shambhubhai
Patel
Vs
Sumanbhai Kantibhai Patel & ors., (2017) 4 SCC
177 (Para 37)

16. Gulab Chand Upadhyaya Vs St. of U.P. &
ors., (2002) Criminal Law Journal 2907 (Alld.)
(Para 38)

Present criminal revision assails order
dated 26.08.2020, passed by learned
Judicial Magistrate
u/s 156(3) CrPC,
District Kanpur Dehat.

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Sri Deepak Kumar Verma,
learned counsel for the revisionist/applicant
Sri Pankaj Saxena, learned AGA appearing
for the State and perused the material
brought on record.

2. This Criminal Revision under
Section 397/401 of Criminal Procedure
Code (Cr.P.C.) has been filed challenging
the order dated 26.08.2020, passed by
learned Judicial Magistrate, Ist Kanpur
Dehat, in Misc. Case No.743 of 2020
(Lalaram Vs. Ram Kishan & Others), under
Section 156(3) Cr.P.C., Police Station
Rasoolabad, District kanpur Dehat. Further
prayer is for a direction to the court below
to issue direction to the concerned police
station for registration of first information
report in pursuance of the Misc. Case
No.743 of 2020 (Lalaram Vs. Ram Kishan
& Others), under Section 156(3) Cr.P.C.,
Police Station Rasoolabad, District kanpur
Dehat, under suitable section and submit
report under Section 173(2) Cr.P.C. before
the court concerned.

3. Considering nature of the order
under challenge, as well as the order
proposed to be passed and as purely legal
question is involved and keeping this
revision pending would serve no fruitful
purpose as well as keeping in view that at
this stage, the proposed accused-private
respondents have no right to be heard, the
notice to the private respondents is
dispensed with.

4. Briefly stated facts of the case as
per the revision/petition are that the
opposite party nos.2 to 14 demolished
foundation in front of the door of the
revisionist/applicant on 02.07.2020 at about
10.00 A.M. for constructing path, to which
the revisionist objected in view of the
pendency of a Civil Suit No.279 of 2020 in
the Court of learned Civil Judge (Senior
Division), Kanpur Dehat. On 07.07.2020 at
about 8.00 A.M., the opposite party nos. 2
to 14 entered the house of the revisionist
and mercilessly beaten him with lathidanda & foot. They also snatched Rs.1600/-
from purse in the pocket of the revisionist
and thereafter ran away by extending threat
to face dire consequences. The revisionist
immediately informed the concerned police
station but his case was not registered and
he was told to go for medical examination
firstly. On the next day i.e. on 08.07.2020
the revisionist went to the District Hospital
Akbarpur, Kanpur Dehat for his medical
examination and was referred to the Dentist
for further examination. The revisionist
informed the whole incident to the
Superintendent of Police Kanpur Dehat by
way of an application through registered
post on 16.07.2020, but no action was
taken thereon and consequently he filed an
application under Section 156(3) Cr.P.C.
before the Judicial Magistrate Ist Kanpur
Dehat on 14.08.2020, alongwith the injury
report dated 08.07.2020, X-ray report dated
16.07.2020 and other documents, according
to which the revisionist had sustained
grievous injuries caused by hard and blunt
object. The learned Magistrate by order
dated 26.03.2020 treated the application as
a complaint case.
1 All. Lalaram Vs. State of U.P. & Ors.
969

5. Learned counsel for the revisionist
has
submitted
that
the
order under
challenge does not secure the ends of
justice, in as much as the learned
Magistrate has registered the application
under Section 156 (3) Cr.P.C. as a
complaint case and has directed the
applicant/complainant
to
record
his
statement under Section 200 Cr.P.C. His
submission is that the learned Magistrate
must have directed the police to register the
FIR and make investigation and submit
report under Section 173(2) Cr.P.C., as the
averments in the complaint/application
under Section 156(3) Cr.P.C. disclosed
commission of a cognizable offence, and if
the application disclosed commission of a
cognizable offence, the Magistrate must
have directed for investigation by police
before taking cognizance and must not
have taken upon himself to inquire into the
matter
after
taking
cognizance
by
registering the application as a complaint
case.

6. Learned counsel for the revisionist
has submitted that in view of the nature of
the averments and the offence disclosed in
the
application,
without
any
police
investigation the matter could not be
resolved. He has submitted that the order
passed by the Magistrate suffers from nonapplication of mind to the facts of the case
and the law applicable therein.

7. Learned counsel for the applicant
has placed reliance on the judgment of the
Constitution Bench of the Hon'ble Supreme
Court in ''Lalita Kumari Vs. Government
of U.P. and others', 2014(2) SCC 1, and
the judgments of this Court in ''Jitendra
Kumar Vs. State of U.P. and 2 others',
Criminal Revision No.1768 of 2018,
decided on 29.05.2018; ''Shiv Mangal
Singh Vs. State of U.P. and others',
Criminal Revision No.715 of 2019, decided
on 25.02.2019.

8. Learned AGA has submitted that
the Magistrate has the jurisdiction to direct
the police to register the F.I.R. and make
investigation without taking cognizance.
But, he has also the jurisdiction to take
cognizance and proceed to inquire the
matter
by
himself,
registering
the
application as a complaint case. In such
circumstance
he
has
to
follow
the
procedure prescribed for complaint case.
He has submitted that the Magistrate while
proceeding as a complaint case has still the
power to direct for police investigation, in
view of Section 202(1) Cr.P.C. If the
Magistrate in his discretion has adopted the
option of registering the application as a
complaint case, no illegality has been
committed by the Magistrate. Learned
A.G.A. has placed reliance on the case of
''Sukhwasi Vs. State of U.P. and others'
2007 (59) ACC 739 (Allahabad) (D.B.) in
support of his contention that it is in the
discretion of the Magistrate to direct for
police
investigation
before
taking
cognizance under Section 156(3) Cr.P.C., or
after taking cognizance to proceed with the
application as a complaint case.

9. With respect to the case of ''Lalita
Kumari (Supra)', learned A.G.A. has
submitted that the said case is not on the
powers of the Magistrate under Section
156(3) Cr.P.C.; but it has been laid down
therein that whenever an application
submitted
to
the
police
discloses
commission of a cognizable offence, the
FIR must be registered by the police
authorities and they can not refuse
registration of FIR.

10. In reply the learned counsel for
the applicant has submitted that in the
970 INDIAN LAW REPORTS ALLAHABAD SERIES
course of inquiry by the Magistrate in a
complaint case he has the power to call for
the police report of the investigation under
Section
202(1)
Cr.P.C.,
but
that
investigation by the police would be
different and distinct than the investigation
directed under Section 156(3) Cr.P.C.

11. I have considered the submissions
as advanced by the learned counsel for the
applicant, the learned AGA and perused the
material brought on record.

12. The points which arise for
consideration are:-

i) Whether in each and every
case, where an application under Section
156(3) Cr.P.C. is made to the Magistrate
disclosing commission of a cognizable
offence, the

Magistrate is legally bound to
direct
registration
of
the
FIR
and
investigation by police or the Magistrate
has also the power and jurisdiction to pass
order for registration of the application as
a complaint case.?

ii) On what considerations the
Magistrate
should
take
decision
for
investigation by police or to proceed with
as a complaint case?

iii) What is the nature of an
investigation by the police in pursuance of
the direction of the Magistrate issued under
Section 156(3) Cr.P.C. and the investigation
by the police in pursuance of the direction
of the Magistrate issued under Section
202(1) Cr.P.C. ?

iv) Whether the order passed by
the Magistrate in the present case deserves
to be maintained or not?

13. All the aforesaid points i), ii) and
iii) are interrelated and therefore are being
considered simultaneously. It would be
appropriate to consider the legal provisions
and the law on the subject at this very
stage.

14.

Crime
detection
and
the
adjudication are two inseparable wings of
justice delivery system. While crime
detection is the exclusive function of the
police, judiciary is the final arbiter of the
guilt or otherwise of the persons charged
with the offence. To sustain the faith of the
people in the efficacy of the whole system
investigative
agency
should
work
efficiently, impartially and uninfluenced by
any outside agency, however, powerful it
may be. For an orderly society, importance
of the police cannot be denied. But, many
times there have been serious comments on
their
functioning.
It
is
very
often
complained that when a person having
suffered at the hands of others, goes to the
police to ventilate his grievance and to
bring the offenders to book, his report is
not accepted. The Code of Criminal
Procedure takes care of this position. While
it provides for information to the police and
the investigation by the police, it also
provides for the judicial surveillance by the
Magistrate in cases where the reports are
not registered by the police.

15. The duties of the police and their
power to investigate are enumerated in
Chapter XII of the Code, under caption
"information to the police and their powers
to investigate." It would be appropriate to
reproduce Sections 154 and 156 Cr.P.C. as
under:-

"Section 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
1 All. Lalaram Vs. State of U.P. & Ors.
971
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."

"Section 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
the 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."

16. Cognizance and procedure of
complaint case is provided under Chapter
XIV and XV, respectively of which
Sections 190, 200, 202 and 203 Cr.P.C. are
being reproduced as under:-

"Section 190 cognizance of
offence 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."

"Section 200. Examination of
complainant.

Magistrate taking cognizance of
an offence on complaint shall examine
upon oath the complainant and the
witnesses present, if any, and the substance
of such examination shall be reduced to
writing and shall be signed by the
complainant and the witnesses, and also by
the Magistrate;

Provided
that,
when
the
complaint
is
made
in
writing,
the
Magistrate
need
not
examine
the
complainant and the witnesses,

(a) if a public servant acting or
purporting to act in the discharge of his
official duties or a Court has made the
complaint; or
972 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) if the Magistrate makes over
the case for inquiry or trial to another
Magistrate under section 192;

Provided further that if the
Magistrate makes over the case to another
Magistrate
under
section
192
after
examining
the
complainant
and
the
witnesses, the latter Magistrate need not reexamine them."

"Section 202:- Postponement of
issue of process.-(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 and shall
in a case where the accused is residing at a
place beyond the area in which he exercises
his jurisdiction, 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
Sessions; 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 inquiry under SubSection (1), the Magistrate may, if he thinks
fit, take evidence of witness 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.

(3). If an investigation under SubSection (1) is made by a person not being a
police officer, he shall have for that
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:-
Dismissal
of
complaint.
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 there is no sufficient ground
for proceeding, he shall dismiss the
complaint, and in every such case he shall
briefly record his reasons for so doing,

17. From the bare perusal of the
Scheme of Chapter XII of the Code it is
clear that when a report either on oral or
written is made to the officer-in-charge of
the
police
station
which
discloses
commission of a cognizable offence, it is
obligatory of him to register a case and
proceed with the investigation. In the event,
he refuses to receive the report and shows
indifference to perform statutory duties, the
person aggrieved by such refusal may
approach the Superintendent of Police
giving substance of the information in
writing and by post. The Superintendent of
Police
on
being
satisfied
that
the
information discloses the commission of a
cognizable offence shall investigate the
case
either
himself
or
direct
an
investigation to be made by any police
officer subordinate to him. If F.I.R. is not
being lodged or the investigation is not
being done the alternative course available
to the aggrieved person is to approach the
court of law, by making an application
giving detail narration of the incident
fulfilling the requirements of a complaint
1 All. Lalaram Vs. State of U.P. & Ors.
973
under Section 156(3) Cr.P.C. or a regular
complaint.

18. Where the Magistrate receives a
complaint or an application under Section
156(3) and the facts alleged therein
disclose commission of an offence, he ''may
take cognizance' which in the context in
which these words occur in Section 190 of
the Code, cannot be equated with ''must
take cognizance.' The word ''may' gives a
discretion to the Magistrate in the matter.
Two, of the available, courses to the
Magistrate under Section 190, are that he
may either take cognizance under Section
190 or may forward the complaint to the
police under Section 156(3) Cr.P.C., for
investigation by the police.

19.

If
the
Magistrate
takes
cognizance, he is required to embark upon
the procedure embodied in Chapter XV
"Complaints to Magistrate", by directing
the complainant to get the statement
recorded under Section 200 Cr.P.C. The
Magistrate may make further enquiry as per
Section 202(1) Cr.P.C. Where the accused
is residing at a place beyond the area of
exercise of jurisdiction of the Magistrate
concerned, he has to postpone the issue of
process and make inquiry or he may direct
an investigation to be made by a police
officer or by such other person as he may
think fit. Thereafter, if the Magistrate is of
the opinion that there is no sufficient
ground for proceeding, he shall dismiss the
complaint under Section 203 Cr.P.C. briefly
recording the reasons for such dismissal.
On the other hand, if the Magistrate is of
the opinion that there is sufficient ground
for proceeding, he would issue process by
following Section 204 Cr.P.C.

20. If the Magistrate on a reading of
the complaint finds that the allegations
therein clearly disclose commission of a
cognizable offence and forwarding of the
application/complaint under Section 156(3)
Cr.P.C. to the police for investigation, will
be conducive to justice and valuable time
of the Magistrate will be saved in inquiring
into the matter which is the primary duty of
the police to investigate, he will be justified
in adopting that course as an alternative to
take cognizance of the offence himself. An
order
under
Section
156(3),
Cr.P.C.
directing the police to investigate is in the
nature of a reminder or intimation to the
police to exercise their full powers of
investigation. Such an investigation begins
with the collection of evidence and ends
with a report under Section 173(2) Cr.P.C.

21. In Gopal Das Sindhi versus State
of Assam AIR 1961 SC 986, the Hon'ble
Supreme Court, referring to earlier judgments
held that the provisions of Section 190 cannot
be read to mean that once a complaint is filed,
a Magistrate is bound to take cognizance if
the facts stated in the complaint disclose the
commission of any offence. The word ''may'
in Section 190 cannot mean as ''must'. The
reason is obvious. A complaint disclosing
cognizable offences may well justify a
Magistrate in sending the complaint, under
Section 156(3) to the police for investigation.
There is no reason why the time of the
Magistrate should be wasted when primarily
the duty to investigate in cases involving
cognizable offences is with the police. On the
other hand, there may be occasions when the
Magistrate may exercise his discretion and
take cognizance of a cognizable offence. If he
does so then he would have to proceed in the
manner [provided by Chapter XV of the
Code.

It is relevant to reproduce paragraph
no.7 of Gopal Das Sindhi (supra) as
under:-
974 INDIAN LAW REPORTS ALLAHABAD SERIES

"7. In support of the first
submission it was urged that the Additional
District Magistrate had on August 3, 1957,
transferred under Section 192 of the Cr PC
the complaint to Mr Thomas for disposal.
In these circumstances, it must be assumed
that the Additional District Magistrate had
taken cognizance of the offences mentioned
in the complaint and Mr Thomas had no
authority to refer the case to the police for
investigation. He was bound to have
examined the complainant on oath and then
proceeded
in
accordance
with
the
provisions of the Code of Criminal
Proceedure which applied to disposal of
complaints. Mr Thomas had no authority in
law to send the complaint under Section
156(3) to the police for investigation. It
was urged that Section 190 of the Cr PC
sets out how cognizance may be taken of an
offence. Section 190(1)(a) authorizes a
Presidency Magistrate, District Magistrate
or a Sub-Divisional Magistrate and any
other Magistrate specially empowered in
this behalf, to take cognizance of an offence
upon receiving a complaint stating facts
which constitute such offence. Once a
complaint is filed before a Magistrate
empowered to take cognizance of an
offence he was bound to take cognizance
and the word ''may' in this sub-section must
be
read
as
''shall'.
Thereafter
the
proceedings with reference to the complaint
must be under Chapter XVI and the
procedure stated in the various sections
under that Chapter must be followed.
Consequently, it was not open to Mr
Thomas to direct the police to investigate
the case under Section 156(3) of the Code."

It was further held 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 per the provisions of
Cr.P.C.

22. In Fakruddin Ahmed versus State
of Uttaranchal (2008) 17 SCC 157 it has
been held that on receipt of a complaint the
Magistrate has more than one course open
to him to determine the procedure and the
manner to be adopted for taking cognizance
of the offence. It would be relevant to
reproduce paragraph nos. 9 to 12 as under:-

"9. Before examining the rival
contentions, we may briefly refer to some of
the relevant provisions in the Code.
Chapter XIV of the Code, containing
Sections 190 to 199 deals with the statutory
conditions
requisite
for
initiation
of
criminal proceedings and as to the powers
of cognizance of a Magistrate. Sub-section
(1) of Section 190 of the Code empowers a
Magistrate to take cognizance of an offence
in the manner laid therein. It provides that
a Magistrate may take cognizance of an
offence either (a) upon receiving a
complaint of facts which constitute such
offence; or (b) upon a police report of such
facts; or (c) upon information received
from any person other than a police officer,
or upon his own knowledge that such
offence has been committed.

10.
Chapter
XV
containing
Sections 200 to 203 deals with "Complaints
to Magistrates" and lays down the
procedure which is required to be followed
by the Magistrate taking cognizance of an
offence on complaint. Similarly, Chapter
XVI
deals
with
"Commencement
of
Proceedings before Magistrates". Since
admittedly, in the present case, the
Magistrate has taken cognizance of the
complaint in terms of Section 190 of the
Code, we shall confine our discussion only
1 All. Lalaram Vs. State of U.P. & Ors.
975
to the said provision. We may, however,
note that on receipt of a complaint, the
Magistrate has more than one course open
to him to determine the procedure and the
manner
to
be
adopted
for
taking
cognizance of the offence.

11. One of the courses open to the
Magistrate is that instead of exercising his
discretion and taking cognizance of a
cognizable offence and following the
procedure laid down under Section 200 or
Section 202 of the Code, he may order an
investigation to be made by the police
under Section 156(3) of the Code, which
the learned Magistrate did in the instant
case. When such an order is made, the
police is obliged to investigate the case and
submit a report under Section 173(2) of the
Code. On receiving the police report, if the
Magistrate is satisfied that on the facts
discovered or unearthed by the police there
is sufficient material for him to take
cognizance of the offence, he may take
cognizance of the offence under Section
190(1)(b) of the Code and issue process
straightaway to the accused. However,
Section 190(1)(b) of the Code does not lay
down
that
a
Magistrate
can
take
cognizance of an offence only if the
investigating officer gives an opinion that
the investigation makes out a case against
the accused. Undoubtedly, the Magistrate
can ignore the conclusion(s) arrived at by
the investigating officer.

12. Thus, it is trite that the
Magistrate is not bound by the opinion of
the
investigating
officer
and
he
is
competent to exercise his discretion in this
behalf, irrespective of the view expressed
by the police in their report and decide
whether an offence has been made out or
not. This is because the purpose of the
police report under Section 173(2) of the
Code,
which will
contain
the
facts
discovered or unearthed by the police as
well as the conclusion drawn by the police
therefrom is primarily to enable the
Magistrate to satisfy himself whether on the
basis of the report and the material referred
therein, a case for cognizance is made out
or not."

23. In Suresh Chand Jain & others
versus State of M.P. & another, (2001) 2
SCC 628 the Hon'ble Supreme Court held
that any Magistrate empowered under
Section 190 may order an investigation by
police, 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. It was further held that Chapter
XII of the Code contains provisions
relating to information to the police and
their
powers
to
investigate,
whereas
Chapter XV, which contains Section 202
deals with provisions relating to the steps
which a Magistrate has to adopt while and
after taking cognizance of any offence on a
complaint. The Investigation referred to in
Section 202 is the same investigation and
the various steps to be adopted for it have
been elaborated in Chapter XII of the Code.
Such investigation would start with making
the entry in a book to be kept by the
officer-in-charge of a police station, of the
substance of the information relating to the
commission of a cognizable offence. The
investigation started thereafter can end up
only with the report filed by the police as
indicated in Section 173 of the Code. The
investigation contemplated in that Chapter
can be commenced by the police even
without the order of a Magistrate. But, that
does not mean that when a Magistrate
orders an investigation under Section
156(3) it would be a different kind of
investigation, such investigation must also
end up only with the report contemplated in
976 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 173 of the code. But when a
Magistrate
orders
investigation
under
Chapter XII he does so before he takes
cognizance of the offence. A Magistrate
need not order any such investigation if he
proposes to take cognizance of the offence.
The direction for investigation under
Section 202 (1) is after taking cognizance
of the offence and is only for helping the
Magistrate to decide whether or not there is
sufficient ground for him to proceed
further.
It
is
relevant
to
reproduce
paragraph nos. 8 and 10 of Suresh Chand
Jain (supra) as under:-

"8. The investigation referred to
therein is the same investigation, the
various steps to be adopted for it have been
elaborated in Chapter XII of the Code.
Such investigation would start with making
the entry in a book to be kept by the officer
in charge of a police station, of the
substance of the information relating to the
commission of a cognizable offence. The
investigation started thereafter can end up
only with the report filed by the police as
indicated in Section 173 of the Code. The
investigation contemplated in that chapter
can be commenced by the police even
without the order of a Magistrate.