http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 8

Vs.

RESPONDENT:
V.NARAYANA REDDY & ORS.

DATE OF JUDGMENT04/05/1976

BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
SHINGAL, P.N.
SINGH, JASWANT

CITATION:
1976 AIR 1672 1976 SCR 524
1976 SCC (3) 252
CITATOR INFO :
RF 1977 SC2401 (10)

ACT:
Code of Criminal Procedure 1973, Ss. 156(3) and 202-
Investigations under-Difference between objects of Sec,
190(l)(a) "taking cognizance", meaning of.

HEADNOTE:
On receiving a complaint against the appellants, for
allegedly Committing offences under ss. 147, 148, 307, 395,
448, 378 and 342, I.P.C., the Judicial Magistrate, F.C.
Dharmavaram., forwarded it to the police under s. 156(3)
Cr.P.C. for investigation The appellants filed an
application in the High Court under s. 482 Cr.P.C. 1973,
against the Magistrate’s order, hut the same was dismissed.
it was contended before this Court that the complaint
included offences triable exclusively by the Sessions Court,
and under s. 202(1) Proviso l(a), 1973, the Magistrate was
prohibited from directing the police to investigate it, that
he was bound to proceed with it himself before issuing
process to the accused. The appeal was, inter alia,
contested on the ground that . the powers conferred on the
Magistrate under s. 156(3) of the Code are independent of
his power to send the case for investigation under s. 2021
af the Code. Section 156(3) can be invoked before the
Magistrate takes congnizace of the case but s. 202 comes
into operation only after he start; dealing with the com
Plaint in accordance with the provisions of Chapter XV.
Dismissing the appeal of the Court,
^ HELD: (1) The power to order police investigation under
, 156(3) different from the power to direct investigation
conferred by s. ’202(1). ’The.‘ two operate in distinct
spheres at different stages. The first is exercisable at the
re-cognizance stage, the second at the post-cognizance stage
when the Magistrate is in seisin of the case. An
investigation under s. 202 is "for the purpose or deciding
whether or not there is sufficient ground for proceeding".
its not to initiate a fresh case on police report, but to
assist the Magistrate in completing proceedings already
instituted upon a complaint before him. The stage at which
s. 202 could become operative was never reached in this
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case. [530-H; 531B]
(2) When on receiving a complaint, the Magistrate
applies his mind for the purposes of proceeding under s. 200
and the succeeding sections in chapter XV of the Code of
1973 he is said to have taken cognizance of the offence
within the meaning of s. 190(l)(a). If instead of’
proceeding under Chapter XV. he has in the exercise of his
discretion, taken action of some other kind, he cannot be
said to have taken cognizance of any offence. [526D-G]
Nirmaljit Singh Hoon . The State West Bengal ond Anr.
[1973] 3 S. ,53, referred to.

JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No 219
of 1975
(Appeal by special leave from the judgment and order
dated the 20th October, of the Andhra Pradesh High Court at
Hyderabad in Criminal Misc. Petition No 1890 of 1975)
P B Basi Reddy, and AV V Nair for the appellants.
M R K Chaudhary and B K Kanta Rao for respondent No 1
525
P. Ram Reddy, and P Parameshwara Rao, for respondent Nos. 2
and 3
The Judgment of the Court was delivered by
SARKARIA, J.-Whether in view of Clause (a) of the First
Proviso to s, 22(1) of the Code of Criminal Procedure, 1973,
a Magistrate who receives a complaint, disclosing an offence
exclusively triable by the Court of Session, is debarred
from sending the same to the police for investigation under
s. 156(3) of the Code, is the short question is that falls
to be determined in this appeal by special leave. The
question arises in these circumstances:
Respondent 1 herein made a complaint on July 26" 1975
before the Judicial Magistrate, First Class, Dharamavaram
against the appellants herein alleging that. On account of
factions existing village Thippapalli the appellants formed
themselves into an unlawful assembly, armed with deadly
weapon, such as axes, spears and sticks, on the night of
June 20" 1975 and entered the houses of several persons
belonging to the opposite party, attacked the inmates and
forcibly took way jewels, paddy, ground-nuts and other
valuables of the total value of two lakhs of rupees. It was
further alleged that the miscreants thereafter went to the
fields and removed parts of machinery worth over Rs.
40,000/-, installed at the wells of their enemies. On these
facts it was alleged that the accused had committed
offences under ss. 147, 148, 149, 307, 395, 448, 378 and 342
of the Penal Code. The offences under ss. 307 and 395 are
exclusively triable by the Court of Session. The Magistrate
on receiving the complaint forwarded ii to the Police for
investigation with this endorsement:
"Forwarded under s. 156(3), Cr. Procedure Code to
the Inspector of Police, Dharmavaram for investigation
and report on or before 5-8-1975."
The appellants moved the High Court of Andhra Pradesh
by petition under s. 482 of the Code of Criminal Procedure,
1973 (which corresponds to s. 561-A of the old Code) praying
that the order passed by the Magistrate be quashed inasmuch
as "it was illegal, unjust and gravely prejudicial to the
petitioners". The learned Judge of the High Court. who heard
the petition., dismissed it by an order dated October 20,
1975.
Hence this appeal.
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Mr. Basi Reddy appearing for the appellants contends
that the High Court has afield to appreciate the true effect
of the changes brought by the Code of 1973. According to the
Counsel, under the new Code, is a complaint discloses an
offence triable exclusively be court of Session, the
Magistrate is bound to proceed with that complaint himself
before issuing process to the accused. The point pressed
into argument is that clause (a) of the first Proviso to s.
202(1), the new Code peremptorily prohibits the Magistrate,
to direct investigation of such a complaint by the Police or
any other person. The cases, Gopal Da v. State of Assam(l),.
Jamuna Singh v. Bhadai She (2), referred to by the High
Court are sought to be distinguished
(1) (1961) A.I.R. 19(;1 S. C. 986 (2) [1964] 5 S S.C.R. 37.
526
on the ground that they were decided under the old Code, s.
21)2 of which did not provide for any such ban as has been
expressly enacted in the 1st Proviso to s. 202 of the new
Code.
As against this, Mr. Ram Reddy, whose arguments have
been adopted by Mr. Chaudahry, submits that the powers
conferred on the Magistrate under s. 156(3) of the Code are
independent of his power to send the case for investigation
under. s. 22 of the Code; that the power under s. 156 (3)
can be invoked at a stage when the Magistrate has not taken
cognizance of the case while s. 202 comes into operation
after the Magistrate starts dealing with the complaint in
accordance with the Provisions of Chapter XV. It is urged
that since in the instant case, the Magistrate had sent the
complaint for police investigation without taking such
cognizance s. 202 including the ar enacted therein, was not
attracted. In the alternative, it is submitted that the ban
in the 1st Proviso to s. 202, becomes operative only when
the Magistrate after applying his mind to the allegations in
the com plaint and the other material" including the
statement of the complainant and his witnesses, if any,
recorded under s. 200,, is prima facie satisfied that the
offence complained of is triable exclusively by the Court of
Session. The point sough to be made out is that a mere
allegation in the complaint that the offence committed is
one exclusively triable by the Court of Session, does not
oust the jurisdiction of the Magistrate to get the case
investigated by the police or other person. The word
"appears" according to Counsel, imports a prerequisite or
condition precedent, the existence of which must be
objectively and judicially established before the
prohibition in the 1st Proviso to s. 202 becomes operative.
It is added that in the instant case,, the existance of this
condition precedent was not, and indeed could not he
established.
It appears to us that this appeal can be disposed of on
the first ground canvassed by Mr. Ram Reddy.
Before dealing with the contention raised before us, it
will be appropriate to notice the relevant provisions of the
old and the new Code.
Section 156 of the Code of 1973 reads thus:
"156(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
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empowered under this section to investigate,
(3) Any Magistrate empowered under section 190 may
order such an investigation as above-mentioned."
527
This provision is substantially the same as s. 156 of
the Code of A 1898, excepting that in sub-s. (1) for the
words "Chapter XV relating to the place of inquiry or
trial," the words "Chapter XIII" have been substituted.
Sections 200 and 202 of the 1898 Code and the 1973
Code, placed in juxtaposition, read as follows:
1898 Code
s. 200: A Magistrate taking cognizance
of an offence on complaint shall at
once examine the complaint 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:
Provided as follows:-
(a) when the complaint is made in
writing, nothing herein contained shall
be deemed to require a Magistrate to .
examine the complainant before
transferring the case under section 192;
(aa) when the complaint is made in
writing, nothing herein contained shall
be deemed to require the examination of
a complainant in any case in which the
complaint has been made by a Court or by
a public servant acting or purporting to
act in the discharge of his official
duties:
(b) where the Magistrate is a
Presidency Magistrate, such examination
may be on oath or not as the Magistrate
in each case thinks fit, and where the
complaint is made in writing need not be
reduced to writing. but the Magistrate
may, if he thinks fit, before the matter
of the complaint is brought before him,
require it to be reduced to writing;
(c) when the case has been
transferred under section 192 and the
Magistrate so transferring it has
already examined the complainant, the
Magistrate to whom it is so transferred
shall not be bound to re-examine the
complainant.
Sec. 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
1973 Code
s. 200: A Magistrate taking cognizance
of an offence on complaint shall
ex. mine 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
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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 enquiry 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.
Sec. 202
Postponement of Issue of process:-
(1) Any Magistrate, on receipt of a
complaint of an offence which he is
authorised to take cognizance or
528
which has been transferred to him
under section 192, may, if he
thinks fit, for reasons to be
recorded in writing, postpone the
issue of process for compelling the
attendance of the person complained
against, and either inquire into
the case himself or, if he is a
Magistrate other than a Magistrate
of the third class, direct an
inquiry or investigation to be made
by any Magistrate subordinate to
him, or by a police officer, or by
such other person as he thinks fit
for the purpose of ascertaining the
truth or falsehood of the
complaint;
Provided that, save where the complaint
has been made by a Court, no such
direction shall be made unless the
complainant has been examined on
oath under the provisions of
section 200.
(2) If any inquiry or investigation
under this section is made by a
person not being a Magistrate or a
Police officer. such person shall
exercise all the powers conferred
by this Code on an officer in-
charge of a Police-station. except
that he shall not have the power to
arrest without warrant.
(2A) Any Magistrate inquiring into a
Case under this section may, if he
thinks fit, take evidence of
witnesses on oath.
(3) This section applies also to the
police in the towns of Calcutta and
Bombay.
which has been made over to him
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under sec. 192, may if he thinks
fit, 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
Session; or
(b) where the complaint has not been
made by a Court, unless the
complaint and the witnesses present
(if any) have been examined on oath
under Section 200. ‘
(2) If any inquiry under sub-section
(1), the Magistrate may, if he
thinks fit, take evidence of
witnesses 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
complainants to produce all his
witnesses and examine them on oath.
(3) If an investigation under sub-
section (I) 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 incharge of a police
station except the power to arrest
without warrant.
Before proceeding further, we may have a look at s. 190
of the new Code. This section is captioned "Cognizance of
offences by Magistrates". This section so far as it is
material for our purpose, n provides:
"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 may
take cognizance of any offence-
(a) upon receiving a complaint of facts which
constitute such offence;
529
(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) ..........................
It is well settled that when a Magistrate receives a
complaint, he is not bound to take cognizance if the facts
alleged in the complaint, disclose the commission of an
offence. This is clear from the use of the words "may take
cognizance" which in the context in which they occur cannot
be equated with must take cognizance". The word "may" gives
a discretion to the Magistrate in the matter. If on a
reading of the complaint he finds that the allegations
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therein disclose a cognizable offence and the forwarding of
the complaint to the police for investigation under s.
156(3) will be conducive to justice and save the valuable
time of the Magistrate from being wasted in enquiring into a
matter which was primarily the duty of the police to
investigate, he will be justified in adopting that course as
an alternative to taking cognizance of the offence, himself.
This raises the incidental question: What is meant by
"taking cognizance of an offence‘’ by a Magistrate within
the contemplation of s. 190? This expression has not been
defined in the Code. But from the scheme of the Code, the
content and marginal heading of s. 190 and the caption of
Chapter XIV under which ss. 190 to 199 occur, it is clear
that a case can be said to be instituted in a Court only
when the Court takes cognizance of the offence alleged
therein. The was in which such cognizance can be taken are
set out in clauses (a), (b) and (c) of Section 190(1).
Whether the Magistrate has or has not taken cognizance of
the offence will depend on the circumstances of the
particular case including the mode in which the case is
sought to be instituted and the nature of the preliminary
action, if any, taken by the Magistrate. Broadly speaking,
when on receiving a complaint, the Magistrate applies his
mind for the purposes of proceeding under s. 200 and the
succeeding sections in Chapter XV of the Code of 1973, he is
said to have taken cognizance of the offence within the
meaning of s. 190(l)(a). If, instead of proceeding under
Chapter XV, he has in the judicial exercise of his
discretion, taken action of some other kind, such as issuing
a search warrant for the purpose of investigation, or
ordering investigation by the police under s. 156(3), he
cannot be said to have taken cognizance of any offence.
This position of law has been explained in several
cases by this Court. the latest being Nirmaljit Singh Hoon
v. The State of West Bengal and anr(1).
The position under the Code of 1898 with regard to the
powers of a Magistrate having jurisdiction, to send a
complaint disclosing a cognizable offence-whether or not
triable exclusively by the Court of
(1) [1973] 3 S.C.C. 753.
36-833SCI/76
530
Session-to the Police for investigation under s. 156(3)"
remains unchanged under the Code of 1973. The distinction
between a police investigation ordered under s. 156(3) and
the one directed under s. 202, has also been maintained
under the new Code; but a rider has been clamped by the 1st
Proviso to s. 202(1) that if it appears to the Magistrate
that an offence triable exclusively by the Court of Session
has been committed, he shall not make any direction for in
vestigation.
Section 156(3) occurs in Chapter XII, under the
caption: "Information to the Police and their powers to
investigate"; while s. 202 is in Chapter XV which bears the
heading "Of complaints to Magistrates". The power It order
police investigation under s. 156(3) is different from the
power to direct investigation conferred by s. 202(1). The
two operate in distinct spheres at different stages. The
first is exercisable at the pre cognizance stage, the second
at the post-cognizance stage when the Magistrate is in
seisin of the case. ’That is to say in the case of a
complaint regarding the commission of a cognizable offence,
the power under s. 156(3) can be invoked by the Magistrate
before he takes cognizance of the offence under s.
190(1)(a). But if he once takes such cognizance and embarks
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upon the procedure embodied in Chapter XV, he is not
competent to switch back to the pre-cognizance stage and
avail of s. 156(3). It may be noted further that an order
made under sub-section (3) of s. 156, is in the nature of a
peremptory reminder or intimation to the police to exercise
their plenary powers of investigation under s. 156(1). Such
an investigation embraces the entire continuous process
which begins with the collection of evidence under s. 156
and ends with a report or chargesheet under s. 173. On the
other hand s. 202 comes in at a stage when some evidence has
been collected by the Magistrate in proceedings under
Chapter XV, but the same is deemed insufficient to take a
decision as to the next step in the prescribed procedure. In
such a situation, the Magistrate is empowered under s. 202
to direct within the limits circumscribed by that section,
an investigation "for the purpose of deciding whether or not
here is sufficient ground for proceeding ". Thus the object
of an investigation under s. 202 is not to initiate a fresh
case on police report but to assist the Magistrate in
completing proceedings already instituted upon a complaint
before him.
In the instant case the Magistrate did not apply his
mind to the complaint for deciding whether or not there is
sufficient ground for proceeding; but only for ordering an
investigation under s. 156(3). He did not bring into motion
the machinery of Chapter XV. He did not examine the
complaint or his witnesses under s. 200, Cr.P.C., which is
the first step in the procedure prescribed under that
Chapter. The question of taking the next step of that
procedure envisaged in s. 202 did not arise. Instead of
taking cognizance of the offence he has., in the exercise of
his discretion, sent the complaint for investigation by
police under s. 156.
531
This being the position, s. 202(1), 1st Proviso was not
attracted. A Indeed, it is not necessary for the decision of
this case to express any final opinion on the ambit and
scope of the 1st Proviso to s. 202(1) of the Code of 1973.
Suffice it to say, the stage at which s. 202 could become
operative was never reached in this case. We have therefore
in keeping with the well-established practice of the Court,
decided only that much which was essential for the disposal
of this appeal, and no more.
For the foregoing reasons, we answer the question
posed" in the negative, and dismiss this appeal.
M.R. Appeal dismissed.
532