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

- **Citation:** (2020) 2 ILRA 889
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-09
- **Case number:** Criminal Revision No. 4629 of 2019
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishwanath-revisionist-v-state-of-u-p-ors-45323
- **Pages:** 20

## Headnote

Law-Code
of
Criminal
Procedure,1973-Sections
397/401Section 156(3),200 & Indian Penal
Code,1860-Section 376-challenge toapplication
u/s
156(3)-from
the
reading
of
application
cognizable
offence was made out-Court below
instead of issuing direction to lodge
FIR and investigate, illegally treated
as a complaint-application was filed
after two months-nothing could be
traced by medical examination etc.-
Concerned Court has not committed
procedural irregularity in exercise of
its discretionary jurisdiction under
section 156(3)-Hence, dismissed. (Para
61 to 65)

B. In its discretionary power,it is open
for the magistrate to direct the police
to register a criminal case u/s 154
Cr.P.C. and conduct investigation. At
the same time, it is open for the
Magistrate, where the facts of the
case and ends of justice so demand, to
take cognizance of the matter by
treating it as a complaint and proceed
for the "inquiry" u/s 200 and 202
Cr.P.C.(Para 55 to 60)
Criminal Revision dismissed.(E-6)

List of Cases Cited:

## Text

_Characters 0–39,396 of 64,796. This is a partial read: ask again with offset=39396 for what follows._

2 All. Vishwanath Vs. State of U.P. & Ors.
889
(2020)02ILR A889

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2019

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.

Criminal Revision No. 4629 of 2019

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

Counsel for the Revisionist:
Sri Harish Chandra Singh, Sri Anand Pal
Singh

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

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Sections
397/401Section 156(3),200 & Indian Penal
Code,1860-Section 376-challenge toapplication
u/s
156(3)-from
the
reading
of
application
cognizable
offence was made out-Court below
instead of issuing direction to lodge
FIR and investigate, illegally treated
as a complaint-application was filed
after two months-nothing could be
traced by medical examination etc.-
Concerned Court has not committed
procedural irregularity in exercise of
its discretionary jurisdiction under
section 156(3)-Hence, dismissed. (Para
61 to 65)

B. In its discretionary power,it is open
for the magistrate to direct the police
to register a criminal case u/s 154
Cr.P.C. and conduct investigation. At
the same time, it is open for the
Magistrate, where the facts of the
case and ends of justice so demand, to
take cognizance of the matter by
treating it as a complaint and proceed
for the "inquiry" u/s 200 and 202
Cr.P.C.(Para 55 to 60)
Criminal Revision dismissed.(E-6)

List of Cases Cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

15. Ramdev Food Products Pvt. Ltd. Vs. St.
Of Guj., (2015) 6 SCC 439

16. Anil Kumar Vs. M.K. Aiyappa, (2013) 10
SCC 705
890 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Mrs. Sunita
Agarwal, J).)

1. The present criminal revision has
been filed challenging the order dated
06.09.2019 passed in Criminal Misc. No.
203 of 2019 (Vishwanath vs. Santosh &
others) by the Additional Sessions Judge,
Court No.1, Kushinagar on an application
under Section 156(3) Cr.P.C. filed by the
revisionist.

2. The Court below while disposing
of the application under Section 156(3)
Cr.P.C. has treated the same as complaint
and directed it to be registered as
complaint case fixing date for recording
statement
of
the
complainant
under
Section 200 Cr.P.C.

3. Challenging this order, learned
counsel for the revisionist vehemently
submits that from the reading of the
application under Section 156(3) Cr.P.C.
itself, a cognizable offence was made out
and as such it was required for the Court
concerned
to
direct
the
police
to
investigate. The appropriate course of
action for the Court was to issue direction
to the police to lodge a first information
report and submit the report under Section
173(2) Cr.P.C.

4. The allegations are of gang rape
by the accused persons (opposite party
nos. 2 to 5) falling under Section 376
I.P.C., the application seeking for lodging
of the first information report could not
have been treated as a complaint case.

5. Reliance is placed on the judgment
and order dated 07.12.2019 of this Court
passed in an application under Section 482
No. 44699 of 2019 (Maneeta vs. State of
U.P. & Ors.) wherein following the law
laid
down
in
Lalita
Kumari
vs.
Government of U.P. & ors1, it was
observed that once a cognizable offence is
made out, an FIR should be registered and
the summoning order under challenge was
quashed as it did not provide any reason
for not doing so. The matter had been
relegated for fresh decision under Section
156(3) Cr.P.C.

6. Learned counsel for the revisionist
vehemently
submits
that
in
Lalita
Kumari1, the Supreme Court has laid
down guidelines holding that an obligation
is cast on a police officer to register a first
information report under Section 154 of
the Code of Criminal Procedure upon
receiving any information relating to
commission of a cognizable offence. It is
contended that the Supreme Court has
categorically held that the registration of
FIR is mandatory under Section 154 of the
Code,
if
the
information
discloses
commission of a cognizable offence and
no preliminary inquiry is permissible in
such a situation. Only in a case where the
information received does not disclose a
cognizable offence, the necessity for a
preliminary inquiry may arise which may
be conducted only to ascertain whether
cognizable offence is disclosed or not. In
that case also, once the preliminary inquiry
discloses the commission of a cognizable
offence, the FIR must be registered.

7. Submission is that the application
under Section 156(3) Cr.P.C. was filed by
the revisionist/applicant for the direction
to lodge a first information report as police
did not do so. The Court below instead of
issuing necessary direction to the police to
lodge the first information report and
investigate, had illegally treated it as a
complaint and proceeded to record the
statement of the complainant.
2 All. Vishwanath Vs. State of U.P. & Ors.
891

8. Submission is that this act of
the Court/Magistrate was beyond the
powers conferred on it, as the principle
laid down in Lalita Kumari1 would be
attracted even in the matter of filing of an
application under Section 156(3) Cr.P.C.
before the Magistrate. The result would be
that once the application under Section
156(3) Cr.P.C. filed before the Magistrate
or Court discloses commission of a
cognizable offence, it had no option but to
issue direction to the police to register a
case and investigate the matter for
submission of the police report under
Section 173(2) Cr.P.C.

9. Learned AGA, on the other hand,
submits that the power of a Magistrate
under Section 156(3) Cr.P.C. can be
equated to the power conferred on it under
Section 190 Cr.P.C. as it flows from the
said provision. Thus, on the presentation
of an application under Section 156(3)
Cr.P.C. before the Magistrate, it has two
options either to direct the police to
investigate by registration of a first
information report or proceed to treat it as
a complaint case to make an inquiry for
recording statement of the complainant
under Section 200 Cr.P.C. and his
witnesses under Section 202 Cr.P.C.

10. The decision in Lalita Kumari1
is on a reference regarding the power of a
police officer to conduct a preliminary
inquiry in order to test the veracity of the
information received by him relating to
commission of a cognizable offence,
before registering the same under Section
154 Cr.P.C.

11. Submission is that the said
decision has no reflection on the powers of
the Magistrate or curtail his discretion to
make a preliminary inquiry to ascertain
truth or veracity of the information of
commission of a criminal offence by
treating it as a complaint instead of
sending the matter to the police for
investigation.

12. To deal with these submissions
of the learned counsel for the parties, it
would be appropriate to go through the
provisions relating to registration of a
criminal case and "investigation" thereof
by the police under Chapter XII and as
also the power and jurisdiction of the
criminal courts/Magistrates in inquiries
and trials as contained in Chapter XIII;
and Chapter XIV of the Code pertaining to
the requisite conditions for initiation of
judicial proceedings.

13. The definition of "inquiry",
"investigation" and "judicial proceedings"
are also to be taken note of. "Inquiry" as
defined under Section 2(g) means every
inquiry other than a trial, conducted under
the Code by a Magistrate or Court. Section
2(h) defines "investigation" to include all
the proceedings under the Code for the
collection of evidence conducted by a
police officer or any person authorised by
a Magistrate in this behalf, but other than a
Magistrate. The "judicial proceedings"
defined in Section 2(i) includes any
proceeding in the course of which
evidence is or may be legally taken on
oath.

14. Thus, from the careful reading of
the definitions as above, it is evident that
the "inquiry", "investigation" and "judicial
proceedings" are three different stages of a
criminal matter reported to the police or
the
Magistrate/Court,
and
connotes
different meaning under the Code. The
"investigation" is done by the police
officer or any other officer authorised by
892 INDIAN LAW REPORTS ALLAHABAD SERIES
the Magistrate (but not a Magistrate),
whereas "inquiry" means a preliminary
inquiry conducted by the Magistrate or a
Court on receipt of information of
commission of an offence which shall not
include a trial where evidence is to be
taken in a legal manner on oath being the
"judicial proceedings". The "information"
and "investigation" by the police is
contained
in
Chapter
XII
and
is
distinguished from the jurisdiction of the
Magistrate
in
taking
cognizance
of
criminal offence under Chapter XIV of the
Code.

15. In the case of Lalita Kumari1,
the question which arose for consideration
on a reference was "whether a police
officer is bound to register a first
information report (FIR) upon receiving an
information relating to commission of a
cognizable offence under Section 154 of
the Code of Criminal Procedure, 1973 (in
short "Code") or the police officer has the
power to conduct a preliminary inquiry in
order to test the veracity of such
information before registering the same in
the context of the question before it"

16. The five judges Bench in Lalita
Kumari1 taking note of the provisions
contained in Section 154, 156 & 157 in
Chapter XII of the Code of Criminal
Procedure has held in para '120' to '120.8'
as under:-

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

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

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

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

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

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

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

(a) Matrimonial disputes/family
disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

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

The
aforesaid
are
only
illustrations and not exhaustive of all
2 All. Vishwanath Vs. State of U.P. & Ors.
893
conditions which may warrant preliminary
inquiry.

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

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

17. Noticing the above directions
issued by the Apex Court in the case of
Lalita Kumari1 in the context of the
question referred before it, it is evident
that all the directions issued therein apply
in the matter of receipt of information of
commission of a cognizable offence by the
police and the stage of "investigation" as
defined in Section 2(h) of the Code to be
made by the police in exercise of power
conferred upon it under Chapter XII of the
Code.

18. From a careful reading of the
observations and directions issued by the
Apex Court in Lalita Kumari1, it cannot
be said that they relate in any manner or
curtail the power of the Magistrate to
make an "inquiry" as defined in Section
2(g) of the Code.

19. This view is further fortified
from the observations of the Apex Court in
paragraph '87' & '88' in Lalita Kumari1
itself, which reads as under:-

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

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

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

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

20. Further, this Court may also
deal with the relevant Section 156(3)
contained in the same Chapter XII of the
Code which empowers the Magistrate to
order
investigation
on
receipt
of
information of commission of criminal
offence. Section 156(3) states that :-

"(3)
Any
Magistrate
empowered under Section 190 may order
such
an
investigation
as
abovementioned."

21. The words "investigation as
above mentioned", as contained in
Section 156(3) contemplate investigation
894 INDIAN LAW REPORTS ALLAHABAD SERIES
by the officer in charge of a police
station.

22. The question of power of
Magistrate to order investigation under
Section 156(3) Cr.P.C. came up for
consideration before the Apex Court in
Mohammad Yousuf Vs. Smt. Afaq Jahan
& another2. In the said matter, on an
application filed by the appellant therein
alleging commission of offences by the
named accused persons, the Magistrate
directed the police to register and
investigate. The said order of the learned
Magistrate was challenged by means of an
application under Section 482 of the Code
after the police had completed the
investigation and submitted the charge
sheet. The High Court proceeded to quash
the charge sheet on the ground that the
Magistrate had no power to order
registration of the case.

23. It is observed therein that the
"investigation" under the directions of the
Magistrate under Section 156(3) Cr.P.C.
falling within Chapter XII contemplates
"investigation" by the police authorities.
Whether the investigation is started by the
police by the registration of FIR on the
information received by it or under the
order of the Magistrate under Section
156(3) Cr.P.C., it would be same kind of
investigation which would end up only
with
the
report
contemplated
under
Section 173 of the Code. But when a
Magistrate orders "investigation" under
Chapter XII, he does so before he takes
cognizance of the offence under Chapter
XV of the Code.

24. It is observed that Chapter XV of
the Code which confers power on the
Magistrate to order "investigation" under
Section 202 of the Code deals with the
provisions relating to the steps which a
Magistrate
may
adopt
after
taking
cognizance of an offence on a complaint.
Thus, the investigation under Section 202,
which falls under Chapter XV, though
refers to the power of a Magistrate " to
direct an investigation by a police officer",
but is different from the "investigation"
contemplated in Section 156(3) falling
within Chapter XII of the Code.

25. Further, it was observed in
paragraph nos. '9' & '11' of the report
{Mohd. Yousuf2} that it is not necessary
for the Magistrate to order investigation
under Chapter XII if he proposes to take
cognizance of the offence, and once he
takes cognizance he has to follow the
procedure envisaged in Chapter XV of the
Code. The position as clarified therein 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 need not to
examine the complainant on oath because
he was not taking cognizance of any
offence therein.

26. Relevant paragraphs '9', '10' &
'11' of the report are to be quoted herein:-

"9. But a Magistrate need not
order any such investigation if he proposes
to take cognizance of the offence. Once he
takes cognizance of the offence he has to
follow the procedure envisaged in Chapter
XV of the Code. A reading of Section
202(1) of the Code makes the position
clear that the investigation referred to
therein is of a limited nature. The
Magistrate
can
direct
such
an
investigation to be made either by a police
officer or by any other person. Such
investigation is only for helping the
Magistrate to decide whether or not there
2 All. Vishwanath Vs. State of U.P. & Ors.
895
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."

27. Further the position of law as
clarified by the Apex Court in R.R. Chari
vs
The
State
Of
Uttar
Pradesh3;
Narayandas Bhagwandas Madhavdas vs
State Of West Bengal4 and Gopal Das
Sindhi & others Vs. State of Assam &
another5 as also the decision of the
Calcutta High Court in Superintendent
and Remembrancer of Legal Affairs,
West Bengal v. Abani Kumar Banerjee6,
approved in R.R. Chari3, has been cited
with approval in paragraph Nos.'13', '14' of
the report in Mohd. Yousuf2 to fortify the
above view.

28. In Suresh Chand Jain Vs. State
of M.P. & another7, the question before
the
Apex
Court
was
whether
the
Magistrate was empowered to direct the
police to register a case under Section
156(3)
Cr.P.C.
on
a
complaint
of
commission of offences under Section 3 of
the Prized Chits and Money Circulation
Scheme (Prohibition) Act and under
Section 420 of the IPC.

29. The order of the Magistrate under
Section 156(3) to register and investigate
was upheld in the revision before the
Sessions court and application under
Section 482 Cr.P.C. before the High Court.
The Apex Court while dismissing the
appeal before it held in paragraphs Nos.
'7', '8', '9' & '10' as under:-

"7. In our opinion, the aforesaid
direction given by the learned Single
Judge of the Punjab and Haryana High
Court in Suresh Kumar vs. State of
Haryana (supra) is contrary to law and
cannot be approved. 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
896 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
Section 156 of the Code reads thus:

"156. Police officers power to
investigate cognizable cases.- (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.

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.

9.But a magistrate need not
order any such investigation if he proposes
to take cognizance of the offence. Once he
takes cognizance of the offence he has to
follow the procedure envisaged in Chapter
XV of the Code. A reading of Section
202(1) of the Code would convince 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
persons as he thinks fit, for the purpose of
deciding whether or not there is sufficient
ground for proceeding."

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.

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
2 All. Vishwanath Vs. State of U.P. & Ors.
897
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."

30. The decision of the Apex Court
in Tula Ram Vs. Kishore Singh8 has also
been cited with approval to state in Mohd.
Yousuf2
that
the Apex
Court had
reiterated the same legal position after
referring to its earlier decisions.

31. The abovenoted observations of
the Apex Court in Suresh Chand Jain7
were made after taking note of the
observations of the Apex Court in its
earlier decision in Gopal Das Sindhi5.
Relevant extract of para '7' in Gopal Das
Sindhi5 is quoted herein as under:-

7.............Section 156(3) states
"Any Magistrate empowered under Section
190 may order such investigation as
above-mentioned."
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 com-plaint 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. 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
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 XVI
of the Code............"
898 INDIAN LAW REPORTS ALLAHABAD SERIES

32. As to what would mean "by
taking cognizance" has been clarified by
the Apex Court in R.R. Chari3. While
approving the decision of the Calcutta
High Court in Superintendent and
Remembrancer of Legal Affairs, West
Bengal6, paragraph Nos. '8' & '9' of the
report in R.R. Chari3 read as under:-

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

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

" What is taking cognizance has
not
been
defined
in
the
Criminal
Procedure Code and I have no desire to
attempt to define it. It seems to me clear
however that before it can be said that
any magistrate has taken cognizance of
any offence under section 190 (1) (a),
Criminal Procedure Code, he must not
only have applied his mind to the
contents of the petition but he must have
done so for the purpose of proceeding in
a particular way as indicated in the
subse- quent 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 investiga- tion, he cannot
be said to have taken cognizance of the
offence."

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

33. The above view had been noted
with approval by the Apex Court in
Narayandas Bhagwandas Madhavdas4
by observing as under:-

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

34. The above legal position laid
down in Suresh Chand Jain7 was
2 All. Vishwanath Vs. State of U.P. & Ors.
899
considered by the Full Bench of this Court
in Ram Babu Gupta Vs. State of U.P. &
others9 to answer the question referred to
it "as to whether on an application filed
under
Section
156(3)
Cr.P.C.,
the
Magistrate need not to apply his mind and
simply direct the police to register and
investigate." The Full Bench has held that
it is not possible to hold that when an
application is moved before the Court only
for exercise of powers under Section
156(3)
Cr.P.C.,
it
will
remain
an
application only and would not be in the
nature of the complaint. It was held that in
any case, the Magistrate has to apply his
mind on the allegations in the complaint to
use his powers under Section 156(3)
Cr.P.C. It was, thus, held that:-

"on receiving a complaint the
Magistrate has to apply his mind to the
allegations in the complaint upon which he
may not at once proceed to take
cognizance and may order it to go to the
police station for being registered and
investigated.T he order of the Magistrate
must indicate application of mind. If the
Magistrate takes cognizance; he proceeds
to follow the procedure provided in
Chapter XV of Cr.P.C."

35. The questions referred to the Full
Bench was answered, accordingly.

36. In India Carat Pvt. Ltd. vs. State
of
Karnataka10,
considering
the
provisions as contained in Chapter XIV,
Chapter XV and Chapter XVI of the Code,
it was observed in paragraph '13' as
under:-

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

37. The question regarding the power
of Magistrate to order investigation under
Section 156(3) Cr.P.C. further came up for
consideration before the Apex Court in
Sakiri Vasu vs. State of U.P. & Ors.11
wherein it is observed that Section 156(3)
provides for a check by the Magistrate on
the police performing its duties under
Chapter XII of the Code. In case where the
Magistrate finds that the police has not
done its duties of investigating the case at
all or has not done it satisfactorily, he can
issue direction to the police to do the
investigation
properly
and
can
also
monitor the same.

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

39. The above view taken in Sakiri
Vasu11 is supported by the reasoning
therein that even though these powers have
not been expressly mentioned in Section
156(3) Cr.P.C., they are implied in the said
provision as when a power is given to an
authority to do something it includes such
incidental or implied powers which would
ensure the proper doing of that thing.
Relevant paragraph Nos. '18', '19' & '20'
are noted as under:-

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

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

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

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

40. The abovenoted views have been
considered in a recent decision in
Vinubhai Haribhai and Malaviya & Ors.
vs. State of Gujarat & Anr.12 while
dealing with the power of the Magistrate
to
order
further
investigation
under
Section 173(8) of the Code after the
charge sheet is filed and cognizance is
taken. The argument there was that the
Magistrate would have no power to order
further investigation into an offence after
he takes cognizance of the offence on
submission of the charge-sheet on the
2 All. Vishwanath Vs. State of U.P. & Ors.
901
direction issued by it under Section 156(3)
of the Code. Dealing with the said
argument, it was observed that the power
of a Magistrate under Section 156(3) of
the Code is very wide, for it is this judicial
authority that must be satisfied that a
proper investigation by the police takes
place.

41. Relevant paragraph '23' of the
report is quoted as under:-

"23.