# Rajkumar Kapoor v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 547
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-18
- **Case number:** Application U/S 482 Cr.P.C. No. 14434 of 2020
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajkumar-kapoor-v-state-of-u-p-ors-46158
- **Pages:** 28

## Headnote

(A) Criminal Law - Code of criminal
procedure,
1973

-
Section
154
-
Information in cognizable cases , Section
156 - Police officer' s power to investigate
cognizable case, Section 156(3) - Any
magistrate empowered under section 190
may order such an investigation, Section
190
-
cognizance
of
offence
by
Magistrates, Section 200 - Examination of
complainant, Section 202 - Postponement
of
issue
of
process,
Section
203
-
Dismissal of complaint, Section 204 -
Issue of process - case where the
Magistrate
declined
for
police
investigation under Section 156(3) Cr.P.C.
and had taken cognizance treating the
application as a complaint case - that
would not come in the way of the
Magistrate in passing the order for police
investigation under Section 202(1) Cr.P.C.
- Any observation in the order of the
Magistrate while taking cognizance of
application under Section 156(3) Cr.P.C.
as a complaint case - that there is no need
of police investigation and directing the
complainant
to
get
the
statement
recorded under Section 200 Cr.P.C. - shall
only mean that no police investigation
was needed for the purpose of taking
cognizance.(Para - 38 )

Some property dispute between the applicant
and opposite party nos. 2 to 8 - forged sale
deed of the property in question - applicant
moved an application before the concerned
police station as well as the SSP concerned, to
lodge the FIR against the opposite party nos.2
to 6 - did nothing - applicant moved an
548 INDIAN LAW REPORTS ALLAHABAD SERIES
application under Section 156(3) Cr.P.C. in the
court - treated as complaint case - with
direction to the applicant for recording of his
statement under Section 200 Cr.P.C. - which is
under
challenge
in
the
present
application.(Para - 3)

(B) Criminal Law - Code of criminal
procedure, 1973 - magistrate recorded -
all the facts and circumstances of the case
are in the knowledge of the applicant -
applicant is well acquainted with the
accused persons - all the evidence that
can be led is in control of the applicant -
Neither
any
fact
is
required
to
be
investigated by police nor any recovery is
needed
-
applicant/complainant
is
competent to adduce evidence - no need
of investigation of the case by the police.
(Para - 42)

HELD:- No legal infirmity in the order under
challenge. The order is speaking one and has
been passed on judicious application of mind to
the facts of the case and the law applicable
thereto.(Para - 43)

Application u/s 482 Cr.P.C. dismissed. (E-6)

List of Cases cited:-

## Text

_Characters 0–39,915 of 96,264. This is a partial read: ask again with offset=39915 for what follows._

2 All. Rajkumar Kapoor Vs. State of U.P. & Ors.
547

(f) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the Act concerned (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the Act concerned,
providing efficacious redress for the
grievance of the aggrieved party.

(g) Where a criminal proceeding
is manifestly attended with mala fides
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge.

11. In view of above, the case in hand
squarely
falls
within
the
guidelines
indicated in category nos. (e) & (g) of
Bhajan Lal's Case (Supra). The factual
scenario set forth herein above clearly
shows that the proceedings were initiated
as a counter blast to the proceedings
initiated by the applicant, hence the same
are liable to be quashed.

12. The application is allowed. The
proceedings of Complaint Case No.6297 of
2018 (Lt. Colonel Devendra Singh Multani
Vs. Vivek Sood), under Sections 323, 504,
506, 354 I.P.C., Police Station Lalkurti,
District Meerut, pending in the Court of
learned
Additional
Chief
Judicial
Magistrate, Court No.5, Meerut as well as
the summoning order dated 2.12.2019
passed by learned Additional Chief Judicial
Magistrate, Court No.5, Meerut, are hereby
quashed.
----------
(2021)02ILR A547
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2020

BEFORE
THE HON'BLE RAVI NATH TILHARI, J.

Application U/S 482 Cr.P.C. No. 14434 of 2020

Rajkumar Kapoor ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Sunil Kumar Tiwari

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

(A) Criminal Law - Code of criminal
procedure,
1973

-
Section
154
-
Information in cognizable cases , Section
156 - Police officer' s power to investigate
cognizable case, Section 156(3) - Any
magistrate empowered under section 190
may order such an investigation, Section
190
-
cognizance
of
offence
by
Magistrates, Section 200 - Examination of
complainant, Section 202 - Postponement
of
issue
of
process,
Section
203
-
Dismissal of complaint, Section 204 -
Issue of process - case where the
Magistrate
declined
for
police
investigation under Section 156(3) Cr.P.C.
and had taken cognizance treating the
application as a complaint case - that
would not come in the way of the
Magistrate in passing the order for police
investigation under Section 202(1) Cr.P.C.
- Any observation in the order of the
Magistrate while taking cognizance of
application under Section 156(3) Cr.P.C.
as a complaint case - that there is no need
of police investigation and directing the
complainant
to
get
the
statement
recorded under Section 200 Cr.P.C. - shall
only mean that no police investigation
was needed for the purpose of taking
cognizance.(Para - 38 )

Some property dispute between the applicant
and opposite party nos. 2 to 8 - forged sale
deed of the property in question - applicant
moved an application before the concerned
police station as well as the SSP concerned, to
lodge the FIR against the opposite party nos.2
to 6 - did nothing - applicant moved an
548 INDIAN LAW REPORTS ALLAHABAD SERIES
application under Section 156(3) Cr.P.C. in the
court - treated as complaint case - with
direction to the applicant for recording of his
statement under Section 200 Cr.P.C. - which is
under
challenge
in
the
present
application.(Para - 3)

(B) Criminal Law - Code of criminal
procedure, 1973 - magistrate recorded -
all the facts and circumstances of the case
are in the knowledge of the applicant -
applicant is well acquainted with the
accused persons - all the evidence that
can be led is in control of the applicant -
Neither
any
fact
is
required
to
be
investigated by police nor any recovery is
needed
-
applicant/complainant
is
competent to adduce evidence - no need
of investigation of the case by the police.
(Para - 42)

HELD:- No legal infirmity in the order under
challenge. The order is speaking one and has
been passed on judicious application of mind to
the facts of the case and the law applicable
thereto.(Para - 43)

Application u/s 482 Cr.P.C. dismissed. (E-6)

List of Cases cited:-

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

2. Jitendra Kumar Vs St. of U.P. & 2 ors.,
Criminal Revision No.1768 of 2018

3. Shiv Mangal Singh Vs St. of U.P. & ors.,
Cril.Rev. No.715 of 2019

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

5. Gopal Das Sindhi Vs St. of Assam , AIR 1961
SC 986

6. Fakruddin Ahmed Vs St.of Uttaranchal,
(2008) 17 SCC 157

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

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

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

10. Sukhwasi Vs St. of U.P. & ors. , 2007 (9)
ADJ 1 (DB)

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

12. Lalita Kumari Vs Govt. of U.P. , (2014) 2
SCC 1

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

14. Madhu Bala Vs Suresh Kumar , (1997) 8
SCC 476.

15. Sakiri Vasu Vs St. of U.P. , (2008) 2 SCC 409

16. Samaj Parivartan Samudaya Vs St. of Karn.,
(2012) 7 SCC 407

17. Anil Kumar Vs M K Aiyappa , (2013) 10 SCC
705

18. Ram Dev Food Products Pvt. Ltd. Vs St.of
Guj. , (2015) 6 SCC 439

19.
Amrutbhai
Shambhubhai
Patel
Vs
Sumanbhai Kantibhai Patel & ors. , (2017) 4
SCC 177

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

21. Sukhwasi Vs St. of U.P. , 2007(6) ALJ 424

22. Suresh Chand Jain Vs St. of M.P. , reported
in AIR 2001 SC 571

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

1. Heard Sri Sunil Kumar Tiwari,
learned counsel for the applicant and
learned AGA appearing for the State and
perused the material brought on record.
2 All. Rajkumar Kapoor Vs. State of U.P. & Ors.
549

2. This application/petition under
Section 482 Code of Criminal Procedure
(Cr.P.C.) has been filed challenging the
order dated 28.08.2020, passed by learned
Additional Civil Judge (Senior Division),
Meeerut,
in
Case
No.43/11
of
2020(Rajkumar Vs. Ashok Kapoor and
others), and for a direction to the court
below to reconsider the application of the
applicant under Section 156(3) Cr.P.C. and
register the FIR against the opposite party
nos. 2 to 6.

3. Briefly stated facts of the case as
per the application/petition are that there is
some
property
dispute
between
the
applicant and opposite party nos. 2 to 8.
According to the applicant the opposite
party nos. 2 to 6 have made forged sale
deed of the property in question. In this
respect the applicant has moved an
application before the concerned police
station as well as the SSP concerned, to
lodge the FIR against the opposite party
nos.2 to 6, but when they did nothing, then
the applicant moved an application under
Section 156(3) Cr.P.C. in the court of
learned Additional Civil Judge (Senior
Division), Meerut, which was treated as
complaint case, with direction to the
applicant for recording of his statement
under Section 200 Cr.P.C., by order dated
28.08.2020, which is under challenge in the
present application under Section 482
Cr.P.C.

4. Learned counsel for the applicant
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.

5. Learned counsel for the applicant
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.

6. 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.

7. 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
550 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

8. 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.

9. In reply the learned counsel for the
applicant has submitted that in the 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.

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

11. 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?

12. 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.

13.

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
2 All. Rajkumar Kapoor Vs. State of U.P. & Ors.
551
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.

14. 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 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."

15. 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
552 INDIAN LAW REPORTS ALLAHABAD SERIES
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

(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 re-examine 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
2 All. Rajkumar Kapoor Vs. State of U.P. & Ors.
553
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,

16. 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
under Section 156(3) Cr.P.C. or a regular
complaint.

17. 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.

18.

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.

19. 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
554 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

20. 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:-

"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.

21. 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
2 All. Rajkumar Kapoor Vs. State of U.P. & Ors.
555
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
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."

22. In Suresh Chand Jain & others
versus State of M.P. & another, (2001) 2
556 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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. 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
Section 173 of the Code. But the significant
point to be noticed is, when a Magistrate
orders investigation under Chapter XII he
does so before he takes cognizance of the
offence.

10.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
2 All. Rajkumar Kapoor Vs. State of U.P. & Ors.
557
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."

23. In Mohd. Yousuf Vs. Smt. Afaq
Jahan and another, (2006) 1 SCC 627 the
Hon'ble Supreme Court reiterated that the
clear
position
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 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. There is nothing
illegal in doing so. 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 would be appropriate to
reproduce paragraph nos. 6 to 11 of
"Mohd. Yousuf (supra)" as under:-

"6. Section 156 falling within
Chapter XII, deals with powers of police
officers to investigate cognizable offences.
Investigation envisaged in Section 202
contained in Chapter XV is different from
the
investigation
contemplated
under
Section 156 of the Code.

7.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.

8. The various steps to be
adopted for investigation under Section 156
of the Code 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 Section 173 of the
Code. But the significant point to be
noticed is, when a Magistrate orders
investigation under Chapter XII he does so
before he takes cognizance of the offence.

9.But a Magistrate need not order
any such investigation if he proposes to
558 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

24. The law laid down in Mohd
Yousuf (supra) was reaffirmed in Hemant
Yashwant
Dhage
versus
State
of
Maharashtra (2016) 6 SCC 273. It was held
by Hon'ble the Apex Court that registration
of an F.I.R. involves only the process of
recording the substance of information
relating to commission of any cognizable
offence in a book kept by the officer in
charge of the police station concerned. It is
open to the Magistrate to direct the police
to register an FIR and even where a
Magistrate does not do so in explicit words
but directs for investigation under Section
156(3) Cr.P.C.