# Mewa Lal Bhargav (In Jail) v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 89
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-22
- **Case number:** Criminal Appeal No. 116 of 2021
- **Bench:** Virendra Kumar-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mewa-lal-bhargav-in-jail-v-state-of-u-p-ors-46712
- **Pages:** 36

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973- Sections 156(3), 203-
Dismissal of complaint under section
156(3) of the Cr.P.C at pre-cognizance
stage- Options before the Magistrate- (i)
At the pre-cognizance stage- he may
direct to concerned police station to
register F.I.R. on the basis of facts
narrated in the complaint if commission of
congnizable offence disclosed prima facie
and Investigating officer would conduct
the
investigation.(ii)
At
the
post
cognizance- after taking cognizance, he
may adopt procedure of complaint cases
provided under Section 200 and 202
Cr.P.C. If the Magistrate is not satisfied
with the conclusions arrived at by the
Investigating Officer in report submitted
under
section
173
Cr.P.C.
then
the
Magistrate may take cognizance upon
original complaint sent to S.H.O. at precognizance stage and proceed further to
examine the complaint under section 200
Cr.P.C. and his witnesses under section
202 Cr.P.C.

At the pre-cognizance stage, if the contents
of the Complaint prima facie disclose the
commission of a cognizable offence, the
Magistrate may direct the police to register an
F.I.R and conduct regular investigation. At the
post Cognizance stage the Magistrate may
follow the procedure under sections 200 and
202 of the Cr.P.C and in case where the
Magistrate is not satisfied with the Police
Report submitted under section 173 of the
Cr.P.C then he may take cognizance of the
Complaint and proceed in the matter like a
complaint case.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
Section
203
-
Rejection of a complaint at the precognizance stage under Section 156(3)
Cr.P.C. does not debar institution of
second regular complaint. It would be
post-cognizance stage, if the Magistrate
takes
cognizance
on
the
original
complaint or after rejection at precognizance stage, if second complaint is
filed by the complainant. The Magistrate
may dismiss the complaint under Section
156(3) Cr.P.C. if by way of instituting
complaint, defence version is created to
absolve the complainant from the case
registered earlier or on the basis of
allegations made in the complainant, if
dispute is purely of civil nature or the
Magistrate considers that the complaint
is false and frivolous.

A second complaint is not barred where the
Magistrate dismisses the earlier complaint at
the
pre-cognizance
stage.
However,
a
Magistrate can exercise his discretion and
reject the complaint at the pre-cognizance
stage wherte he finds that either the
averments in the Complaint do not disclose
the commission of a cognizable offence or
where the Complaint is false, frivolous or
vexatious.

Criminal Appeal rejected.(E-2)

Judgements/ Case law relied upon-
90 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,997 of 125,804. This is a partial read: ask again with offset=39997 for what follows._

1 All. Mewa Lal Bhargav Vs. State of U.P. & Ors.
89
time-line of four months is strictly adhered
to.

33. With the aforesaid directions, the
writ petition is disposed of.
----------
(2021)01ILR A89
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.01.2021

BEFORE

THE HON'BLE VIRENDRA KUMAR-II, J.

Criminal Appeal No. 116 of 2021

Mewa Lal Bhargav ...Appellant (In Jail)
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Janendra Kumar Verma

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

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Sections 156(3), 203-
Dismissal of complaint under section
156(3) of the Cr.P.C at pre-cognizance
stage- Options before the Magistrate- (i)
At the pre-cognizance stage- he may
direct to concerned police station to
register F.I.R. on the basis of facts
narrated in the complaint if commission of
congnizable offence disclosed prima facie
and Investigating officer would conduct
the
investigation.(ii)
At
the
post
cognizance- after taking cognizance, he
may adopt procedure of complaint cases
provided under Section 200 and 202
Cr.P.C. If the Magistrate is not satisfied
with the conclusions arrived at by the
Investigating Officer in report submitted
under
section
173
Cr.P.C.
then
the
Magistrate may take cognizance upon
original complaint sent to S.H.O. at precognizance stage and proceed further to
examine the complaint under section 200
Cr.P.C. and his witnesses under section
202 Cr.P.C.

At the pre-cognizance stage, if the contents
of the Complaint prima facie disclose the
commission of a cognizable offence, the
Magistrate may direct the police to register an
F.I.R and conduct regular investigation. At the
post Cognizance stage the Magistrate may
follow the procedure under sections 200 and
202 of the Cr.P.C and in case where the
Magistrate is not satisfied with the Police
Report submitted under section 173 of the
Cr.P.C then he may take cognizance of the
Complaint and proceed in the matter like a
complaint case.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
Section
203
-
Rejection of a complaint at the precognizance stage under Section 156(3)
Cr.P.C. does not debar institution of
second regular complaint. It would be
post-cognizance stage, if the Magistrate
takes
cognizance
on
the
original
complaint or after rejection at precognizance stage, if second complaint is
filed by the complainant. The Magistrate
may dismiss the complaint under Section
156(3) Cr.P.C. if by way of instituting
complaint, defence version is created to
absolve the complainant from the case
registered earlier or on the basis of
allegations made in the complainant, if
dispute is purely of civil nature or the
Magistrate considers that the complaint
is false and frivolous.

A second complaint is not barred where the
Magistrate dismisses the earlier complaint at
the
pre-cognizance
stage.
However,
a
Magistrate can exercise his discretion and
reject the complaint at the pre-cognizance
stage wherte he finds that either the
averments in the Complaint do not disclose
the commission of a cognizable offence or
where the Complaint is false, frivolous or
vexatious.

Criminal Appeal rejected.(E-2)

Judgements/ Case law relied upon-
90 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Tula Ram Vs Kishore Singh, (1977) 4 SCC 459

2. H.S. Bains, Director, Small Saving-cum-Dy.
Secy. Finance Vs State (Union Territory of
Chandigarh), (1980) 4 SCC 631.

3. Mohd. Yusuf Vs Smt. Afaq Jahan & anr.,
2006(54)ACC Page 530.

4. Ramhit & ors. Vs St. of U.P. & ors. 1997 (34)
ACC Page 683 Cri. Misc. Appln. No. 4775/1996
decided on 13th Dec., 1996 :

5. Awadh Bihari Vs IXth A.D.J. Allahabad (Cr.
Misc. W.P. No. 776/1997) 1997 ACC 775

6. Vinai Pandey son of late Takeshwar Pandey
Vs State of U.P. through its Home Secretary
Govt. of U.P. (27.02.2004-All HC) 2005 Cri. L. J.
3225 : Cri. Misc. W.P. No. 7916/2003.

7. Ajay Malviya Vs St. of U.P. & ors.(1997) 4
SCC 459

8. Suresh Chand Jain Vs St. of M.P., (2001) 2
SCC 628

9. Aleeque Padamsee Vs U.O.I., (2007) 6 SCC
171

10. Anju Chaudhary Vs St. of U.P., (2013) 6 SCC
384

11. Lalita Kumari Vs St. of U.P., (2012) 4 SCC 1

12. St. of Har. Vs Bhajan Lal ,1992 SCC(Cri.)
426

13. Ramesh Kumari Vs State (NCT of Delhi),
(2006) 2 SCC 677

14. Parkash Singh Badal Vs St. of Punj. (2007) 1
SCC 1

15. Rajinder Singh Katoch Vs Chandigarh
Admin., (2007) 10 SCC 69

16. St. of U.P Vs Bhagwant Kishore Joshi ,AIR
1964 SC 221

17. P. Sirajuddin Vs St. of Madras reported as
(1970) 1 SCC 595

18. Sevi & anr. Vs St. of T.N, 1981 Supp SCC 43

19. C.B.I .Vs Tapan Kumar Singh, (2003) 6 SCC
175 : 2003 SCC (Cri) 1305

20. Priyanka Srivastava Vs St. of U.P., (2015) 6
SCC 287

21. Anil Kumar Vs M.K. Aiyappa [(2013) 10 SCC
705 : (2014) 1 SCC (Cri) 35]

22. Ram Babu Gupta Vs St. of U.P., 2001 SCC
OnLine All 264

23. Prem Narain Gupta Vs St. of U.P., 1997 SCC
OnLine All 618

24. Bundhu Shah Vs 1st A.D.J. Siddhartha Nagar
& ors, (1997) 35 ACC 580

25. Prem Wati Vs St.of U.P., 1998 SCC OnLine
All 416

26. Gulab Chand Upadhyaya Vs St. of U.P., 2002
SCC OnLine All 1221

27. Chandrika Singh Vs St. of U.P., 2007 SCC
OnLine All 1022

28. Sukhwasi Vs St. of U.P, 2007 SCC OnLine All
1088

29. Gopal Das Vs St. of Assam AIR 1961 SC 986

30. Laxmi Narayan Vs Narayana (1976) Cri.L.J.
1361 SC

(Delivered by Hon'ble Virendra Kumar-II, J.)

1. Heard Shri Janendra Kumar
Verma, learned counsel for appellant and
the learned AGA for the State.

2. This appeal under Section 14-A(2)
of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989
(hereinafter referred to the 'Act, 1989') has
been preferred assailing the impugned
order dated 15.12.2020 passed by learned
Second Additional Sessions Judge/ Special
1 All. Mewa Lal Bhargav Vs. State of U.P. & Ors.
91
Judge, S.C./S.T. Act, District Lakhimpur
Kheri
in
Criminal
Misc.
Case
No.
673/2020, Mewa Lal Bhargav Vs. Ram
Milan Mishra & another, by which the
complaint instituted by the appellant under
Section 156(3) Cr.P.C. has been dismissed
at pre-cognizance stage and discretion has
not
been
exercised
in
favour
of
complainant.

3. I have perused the record made
available by the appellant/ complainant.

4. A primary duty to register First
Information
Report
(F.I.R)
regarding
cognizable offence is of the Station House
Officer of the concerned Police Station, if
the Police Officer/Incharge does not
register the F.I.R. then the Magistrate
having jurisdiction to hear criminal case of
the police station concerned has been
empowered to issue directions under
section 156(3) Cr.P.C to register and
investigate the fact and circumstances
narrated in the complaint. the relevant
provisions defining the complaint and the
procedure adopted by the concerned
Magistrate is provided under the various
provision of the Cr.P.C. At a post
cognizance
stage,
the
Magistrate
is
empowered to take cognizance on the
complaint
and
may
adopt
procedure
provided under section 200, 202 of Cr.P.C.
The relevant provisions are as follows:-

Jurisdiction of the Magistrate
Court u/s 156(3) of Cr.P.C.

Relevant
Provision
of
Cr.P.C.regarding
written
complaint
instituted in the magistrate court.

Provision of Sec. 2(d) of Cr.P.C
defines complaint and Section 154 of
Cr.P.C provides procedure for recording
of First Information Report at Police
Station

Section 2(d) of Cr.P.C.-

"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.

Explanation.--A report made by a
police officer in a case which discloses,
after investigation, the commission of a
non-cognizable offence shall be deemed to
be a complaint; and the police officer by
whom such report is made shall be deemed
to be the complainant;

Section 154 in the Code of
Criminal Procedure, 1973

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 sub-section (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
92 INDIAN LAW REPORTS ALLAHABAD SERIES
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 in the Code of
Criminal Procedure, 1973

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.

Section 190 in the Code of
Criminal Procedure, 1973

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.

5. Following expositions of law of
Hon'ble Supreme Court and this Court
regarding provisions under Section 156(3)
Cr.P.C. are relevant, which are as follows:

Following are the case law
decided by the Hon'ble Supreme Court
on Section 156(3) of Cr.P.C

Hon'ble Supreme Court held in
the case of R. R. Chari Vs. State of U.P.,
reported in AIR 1951 SC 207 as under:

It is clear from the wording of the
section
that
the
initiation
of
the
proceedings against a person commences
on the cognizance of the offence by the
Magistrate
under
one
of
the
three
contingencies mentioned in the section. The
first contingency evidently is in respect of
non-cognizable offences as defined in the
Criminal Procedure Code on the complaint
of an aggrieved person. The second is on a
police report, which evidently is the case of
a cognizable offence when the police have
completed their investigation and come to
the Magistrate for the issue of a process.
The third is when the Magistrate himself
takes notice of an offence and issues the
process. It is important to remember that in
respect of any cognizable offence, the
police, at the initial stage when they are
investigating the matter, can arrest a
person without obtaining an order from the
Magistrate. Under Section 167(b) of the
Criminal Procedure Code the police have
of course to put up the person so arrested
before a Magistrate within 24 hours and
obtain an order of remand to police
custody
for
the
purpose
of
further
investigation, if they so desire. But they
have the power to arrest a person for the
purpose
of
investigation
without
1 All. Mewa Lal Bhargav Vs. State of U.P. & Ors.
93
approaching the Magistrate first. Therefore
in cases of cognizable offence before
proceedings are initiated and while the
matter is under investigation by the police
the suspected person is liable to be arrested
by the police without an order by the
Magistrate. It may also be noticed that the
Magistrate who makes the order of remand
may be one who has no jurisdiction to try
the case.

In our opinion having regard to
the wording of Section 3 of the Act the
assumption that the Magistrate can issue a
warrant only after taking cognizance of an
offence under Section 190 of the Criminal
Procedure Code is unsound. The proviso to
Section 3 of the Act expressly covers the
case of a Magistrate issuing a warrant for
the arrest of a person in the course of
investigation only and on the footing that it
is a cognizable offence.

"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) of the
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 the case of Gopal Das Sindhi
Vs. State of Assam, reported as AIR
1961 SC 986, Hon'ble Supreme Court
observed as under -

When the complaint was received
by Mr Thomas on August 3, 1957, his
order, which we have already quoted,
clearly indicates that he did not take
cognizance of the offences mentioned in the
complaint but had sent the complaint under
Section 156(3) of the Code to the Officer
Incharge of Police Station Gauhati for
investigation. Section 156(3) states "Any
Magistrate empowered under Section 190
may order such investigation as abovementioned". Mr Thomas was certainly a
Magistrate empowered to take cognizance
under Section 190 and he was empowered
to take cognizance of an offence upon
receiving a complaint. He, however,
decided not to take cognizance but to send
the complaint to the police for investigation
as Sections 147, 342 and 448 were
cognizable offences. It was, however, urged
that once a complaint was filed the
Magistrate was bound to take cognizance
and proceed under Chapter XVI of the
Code. It is clear, however, that Chapter
XVI would come into play only if the
Magistrate had taken cognizance of an
offence on the complaint filed before him,
because
Section
200
states
that
a
Magistrate taking cognizance of an offence
on complaint shall at once examine the
complainant and the witnesses present, if
any, upon oath and the substance of the
examination shall be reduced to writing
and shall be signed by the complainant and
the witnesses and also by the Magistrate. If
the Magistrate had not taken cognizance of
the offence on the complaint filed before
him, he was not obliged to examine the
complainant on oath and the witnesses
present at the time of the filing of the
complaint.
94 INDIAN LAW REPORTS ALLAHABAD SERIES

We cannot read the provisions of
Section 190 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. We are unable to construe the
word ''may' in Section 190 to mean ''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
offence 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 XVI of the Code.
Numerous cases were cited before us in
support of the submissions made on behalf of
the appellants. Certain submissions were also
made as to what is meant by "taking
cognizance". It is unnecessary to refer to the
cases cited. The following observations of Mr
Justice
Das
Gupta
in
the
case
of
Superintendent and Remembrancer of Legal
Affairs,
West
Bengal
v.Abani
Kumar
Banerjee [AIR 1950 Cal 437] :

"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 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.
1 All. Mewa Lal Bhargav Vs. State of U.P. & Ors.
95

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

(i) when on a petition of complaint
being filed before him a Magistrate applies
his mind for proceeding under the various
provisions of Chapter 16 of the Code of
Criminal Procedure, he must he 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 Section 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.[(1951) SCR 312] and again in Gopal
Dass v. State of Assam [AIR 1961 SC 986] .
In the present case,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.

Cognizance
having
already
been taken by the Magistrate before he
made the order there was no scope of
cognisance being taken afresh of the
same offence after the police officer's
report was received. There is thus no
escape from the conclusion that the case
was
instituted
on
Bhadai
Sah's
complaint on November 22, 1956, and
not on the police report submitted later
by
the
Police
Sub-Inspector,
Baikunthpur. The contention that the
appeal did not lie under Section 417(3)
of the Code of Criminal Procedure must
therefore be rejected.

(ii) The order of the Magistrate
asking the police to institute a case and
to send a report should properly and
reasonably be read as one made under
Section 202 of the Code of Criminal
Procedure. So, the argument that the
learned
Magistrate
acted
without
jurisdiction cannot be accepted. At most
it might be said that in so far as the
learned Magistrate asked the police to
institute a case he acted irregularly.
There is absolutely no reason, however,
to think that that irregularity has
resulted in any failure of justice.

An
examination
of
these
provisions makes it clear that when a
Magistrate takes cognizance of an
offence upon receiving a complaint of
facts which constitute such offence, a
case is instituted in the Magistrate's
Court and such a case is one instituted
on
a
complaint.
Again,
when
a
Magistrate takes cognizance of any
offence upon a report in writing of such
fact's made by any police officer it is a
case instituted in the Magistrate's Court
on a police report.

It is well settled now that when
on a petition of complaint being filed
before him a Magistrate applies his mind
for
proceeding
under
the
various
provisions of Chapter 16 of the Code of
Criminal Procedure, he must he 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 Section 156(3) or
issues a search warrant for the purpose
of investigation he cannot be said to
have taken cognizance of any offence.
96 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) Tula Ram v. Kishore Singh,
(1977) 4 SCC 459

(ii) H.S. Bains, Director, Small
Saving-cum-Dy. Secy. Finance v. State
(Union Territory of Chandigarh), (1980) 4
SCC 631

(iii) Mohd. yusuf v. Smt. Afaq
Jahan and Anr., 2006(54)ACC Page 530

and also decided by the Hon'ble
Allahabad High Court following cases:

(i). Ramhit and others Vs. State
of U.P. and others 1997 (34) ACC Page 683
: Cri. Misc. Appln. No. 4775/1996 decided
on 13th December, 1996 : Awadh Bihari
Vs. IXth A.D.J. Allahabad (Cr. Misc. W.P.
No. 776/1997) 1997 ACC 775 (decided on :
01/0/1997)

(ii). Vinai Pandey son of late
Takeshwar Pandey vs. State of U.P.
through its Home Secretary Govt. of U.P.
(27.02.2004-All HC)

2005 Cri. L. J. 3225 : Cri. Misc.
W.P. No. 7916/2003

(iii) Ajay Malviya vs. State of
U.P. and others (decided on 06.07.2000
ALL HC) : (1997) 4 SCC 459.

(2) The following legal proposition
emerge on a careful consideration of the facts
and circumstances of this cases:

(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
any 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 enquiry as contemplated by Section 202 of
the Code.

(ii) Where a Magistrate chooses to
take cognizance he can adopt any of the
following alternatives:

(a)
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.

(b)
The
Magistrate
can
postpone the issue of process and direct an
enquiry by himself.

(c)
The
Magistrate
can
postpone the issue of process and direct an
enquiry 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 enquiry
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.

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)
of
the
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
1 All. Mewa Lal Bhargav Vs. State of U.P. & Ors.
97
taking action of some other kind, e.g.
ordering
investigation
under
Section
156(3), or issuing a search warrant"

Section
156(3)
appears
in
Chapter 12 which deals with information to
the police and the powers of the police to
investigate a crime. This section is
therefore placed in a Chapter different
from Chapter 14 which deals with initiation
of proceedings against an accused person.
It is, therefore, clear that Sections 190 and
156(3) are mutually exclusive and work in
totally different spheres. In other words,
the position is that even if a Magistrate
receives a complaint under Section 190 he
can act under Section 156(3) provided that
he does not take cognizance. The position,
therefore, is that while Chapter 14 deals
with post cognizance stage Chapter 12 so
far as the Magistrate is concerned deals
with pre-cognizance stage, that is to say
once a Magistrate starts acting under
Section 190 and the provisions following he
cannot resort to Section 156(3). Mr
Mukherjee vehemently contended before us
that in view of this essential distinction
once the Magistrate chooses to act under
Section 156(3) of the Code it was not open
to him to revive the complaint, take
cognizance and issue process against the
accused.
Counsel
argued
that
the
Magistrate in such a case has two
alternatives and two alternatives only --
either he could direct re-investigation if he
was not satisfied with the final report of the
police or he could straightaway issue
process to the accused under Section 204.
In the instant case the Magistrate has done
neither but has chosen to proceed under
Section 190(1)(a) and Section 200 of the
Code and thereafter issued process against
the accused under Section 204. Attractive
though the argument appears to be we are
however unable to accept the same. In the
first place, the argument is based on a
fallacy that when a Magistrate orders
investigation under Section 156(3) the
complaint disappears and goes out of
existence. The provisions of Section 202 of
the present Code debar a Magistrate from
directing investigation on a complaint
where the offence charged is triable
exclusively by the Court of Session. On the
allegations of the complainant the offence
complained
of
was
clearly
triable
exclusively by the Court of Session and
therefore it is obvious that the Magistrate
was completely debarred from directing the
complaint
filed
before
him
to
be
investigated by the police under Section
202 of the Code.

But
the
Magistrate's
powers
under Section 156(3) of the Code to order
investigation by the police have not been
touched or affected by Section 202 because
these powers are exercised even before
cognizance is taken. In other words.
Section 202 would apply only to cases
where the Magistrate has taken cognizance
and chooses to enquire into the complaint
either himself or through any other agency.
But there may be circumstances as in the
present case where the Magistrate before
taking cognizance of the case himself
chooses to order a pure and simple
investigation under Section 156(3) of the
Code.

The question is, having done so,
is he debarred from proceeding with the
complaint according to the provisions of
Sections 190, 200 and 204 of the Code after
receipt of the final report by the police?

From a combined reading of the
above provisions it is abundantly clear that
when a written complaint disclosing a
cognizable offence is made before a
Magistrate, he may take cognizance upon
the same under Section 190 (1)(a) of the
Code and proceed with the same in
accordance with provisions of Chapter XV.
98 INDIAN LAW REPORTS ALLAHABAD SERIES
The
other
option
available
to
the
Magistrate in such a case is to send the
complaint to the appropriate Police Station
under Section 156 (3) for investigation.
once such a direction is given under Subsection (3) of Section 156 the police is
required to investigate into that complaint
under Sub-section (1) thereof and on
completion of investigation to submit a
'police report' in accordance with Section
173 (2) on which a Magistrate may take
cognizance under Section 190 (1)(b) but
not under section 190 (1)(a). Since a
complaint filed before a Magistrate cannot
be a police report in view of the definition
of complaint referred to earlier and since
the investigation of a 'cognizable case' by
the police under Section 156 (1) has to
culminate in a police report the complaint
as soon as an order under Section 156 (3)
is passed thereon -transforms itself to a
report given in writing within the meaning
of Section 154 of the Code, which is known
as the First Information Report (FIR). As
under Section 156 (1) the police can only
investigate a cognizable 'case', it has to
formally registered a case on that report.

The proper order would be as
follows:-

'to register a case at the police
station treating the complaint as the
First Information Report and investigate
into the same.'

In the case of Suresh Chand
Jain v. State of M.P., reported as (2001)
2 SCC 628 the Apex court observed as
under-

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. Provisions of the
above two chapters deal with two
different facets altogether, though there
could be a common factor i.e. complaint
filed by a person. Section 156, falling
within Chapter XII, deals with powers of
the
police
officers
to
investigate
cognizable offences. True, Section 202
which falls under Chapter XV, also
refers to the power of a Magistrate to
"direct an investigation by a police
officer". But the investigation envisaged
in Section 202 is different from the
investigation contemplated in Section
156 of the Code.

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.

The position is thus clear. 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
1 All. Mewa Lal Bhargav Vs. State of U.P. & Ors.
99
complaint because that police officer could
take further steps contemplated in Chapter
XII of the Code only thereafter.

In the case of Aleeque Padamsee
Vs. Union of India, reported as (2007) 6
SCC 171, Hon'ble Supreme Court after
considering provision of Section 154, 156,
190 and 200 to 203 Cr.P.C, has held that:

The writ petitions are finally
disposed
of
with
the
following
directions:

(1) If any person is aggrieved
by the inaction of the police officials in
registering the FIR, the modalities
contained in Section 190 read with
Section 200 of the Code are to be
adopted and observed.

(2) It is open to any person
aggrieved by the inaction of the police
officials to adopt the remedy in terms of
the aforesaid provisions.

(3) So far as non-grant of
sanction aspect is concerned, it is for
the Government concerned to deal with
the prayer. The Government concerned
would do well to deal with the matter
within three months from the date of
receipt of this order.

(4) We make it clear that we
have not expressed any opinion on the
merits of the case.

In
the
case
of
Anju
Chaudhary v. State of U.P., reported
as (2013) 6 SCC 384, Hon'ble Supreme
Court observed as under-

7. The complaint application
under Section 156 CrPC was filed by
Parvaz
on
16-11-2007,
nearly
10
months after the date of occurrence.
This application, which was heard by
the learned Chief Judicial Magistrate,
was rejected vide order dated 29-72008. The learned Magistrate expressed
the opinion that since Crime Case No.
145
of
2007
had
already
been
registered, as noticed above, there was
no propriety to register an FIR again.

7.11 .........As such, there was
no legal bar in this case to get the first
information report registered on the
basis of the application moved by the
applicant
revisionist
under
Section
156(3) CrPC and its investigation by
the police, because all the allegations
made in the said application and in the
FIR registered at Case Crime No. 145
of 2007 are not the same.

7.14. On the plain construction of
the language and scheme of Sections 154,
156 and 190 of the Code, it cannot be
construed or suggested that there can be
more than one FIR about an occurrence.
However, the opening words of Section 154
suggest that every information relating to
commission of a cognizable offence shall
be reduced into writing by the officer-incharge of a police station. This implies that
there has to be the first information report
about an incident which constitutes a
cognizable
offence.
The
purpose
of
registering an FIR is to set the machinery
of criminal investigation into motion, which
culminates with filing of the police report
in terms of Section 173(2) of the Code. It
will, thus, be appropriate to follow the
settled principle that there cannot be two
FIRs registered for the same offence.

It is further held that however,
where the incident is separate; offences are
similar or different, or even where the
subsequent crime is of such magnitude that
it does not fall within the ambit and scope
of the FIR recorded first, then a second FIR
could be registered. The most important
aspect is to examine the inbuilt safeguards
provided by the legislature in the very
language of Section 154 of the Code. These
safeguards can be safely deduced from the
principle akin to double jeopardy, rule of
fair investigation and further to prevent
100 INDIAN LAW REPORTS ALLAHABAD SERIES
abuse of power by the investigating
authority of the police. Therefore, second
FIR for the same incident cannot be
registered. Of course, the investigating
agency has no determinative right. It is
only a right to investigate in accordance
with the provisions of the Code.

The
filing
of
report
upon
completion of investigation, either for
cancellation or alleging commission of an
offence, is a matter which once filed before
the court of competent jurisdiction attains a
kind of finality as far as police is
concerned, may be in a given case, subject
to the right of further investigation but
wherever
the
investigation
has
been
completed and a person is found to be
prima facie guilty of committing an offence
or
otherwise,
re-examination
by
the
investigating agency on its own should not
be permitted merely by registering another
FIR with regard to the same offence. If
such protection is not given to a suspect,
then possibility of abuse of investigating
powers by the police cannot be ruled out. It
is with this intention in mind that such
interpretation should be given to Section
154 of the Code, as it would not only
further the object of law but even that of
just and fair investigation. More so, in the
backdrop of the settled canons of criminal
jurisprudence, reinvestigation or de novo
investigation is beyond the competence of
not only the investigating agency but even
that of the learned Magistrate.

33. Hon'ble Supreme Court has
futher observed that While examining the
abovestated principles in conjunction with
the scheme of the Code, particularly
Sections 154 and 156(3) of the Code, it is
clear that the law does not contemplate
grant of any personal hearing to a suspect
who attains the status of an accused only
when a case is registered for committing a
particular offence or the report under
Section 173 of the Code is filed terming the
suspect an accused that his rights are
affected in terms of the Code. Absence of
specific provision requiring grant of
hearing to a suspect and the fact that the
very
purpose
and
object
of
fair
investigation is bound to be adversely
affected if hearing is insisted upon at that
stage, clearly supports the view that
hearing is not any right of any suspect at
that stage.

34. Even in the cases where
report under Section 173(2) of the Code is
filed in the court and investigation records
the name of a person in column (2), or even
does not name the person as an accused at
all, the court in exercise of its powers
vested under Section 319 can summon the
person as an accused and even at that
stage of summoning, no hearing is
contemplated under the law.

35. Of course, situation will be
different where the complaint or an
application is directed against a particular
person for specific offence and the court
under Section 156 dismisses such an
application.