Paragraph numbers below are the court’s original numbering, recovered from the source text.
7. Heard Mr. Uday U. Lalit, learned senior counsel for the appellant and Mr. Shankar Chillarge, learned Additional Advocate General for the respondent-State of Maharashtra.
8. The only point for consideration in all these appeals is whether the learned Magistrate is justified in directing the Police to investigate and submit a detailed report within one month under Section 156(3) of the Code.
9. The order of the learned Magistrate shows that before passing the direction for investigation under Section 156(3), heard the counsel for the complainant, perused the allegations made against the accused in the complaint and documents annexed therewith. It also shows that taking note of the fact that G some of the accused are public officers and after observing that it needs proper investigation prior to the issue of process against the accused under Section 156(3) of the Code directed the P.S.O. Ghatanji to investigate the matter and submit a detailed report within one month. MADHAO AND ANR. v. STATE OF MAHARASHTRA 493 AND ANR. [P. SATHASIVAM, J.]
10. Chapter XIV of the Code speaks about conditions requisite for initiation of proceedings. Section 190 deals with cognizance of offences by Magistrates. In terms of sub-section (1} subject to the provisions of the said Chapter, any Magistrate of 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. c
11. Sub-section (3) of Section 156 of the Code enables any Magistrate empowered under Section 190 may order such an investigation in terms of sub-section (1} of that section.
12. In CREF Finance Ltd. vs. Shree Shanthi Homes (P) Ltd. and Another, (2005) 7 sec 467, while considering the power of a Magistrate taking cognizance of the offence, this Court held: "10 ….. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of G process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure …. " It is clear 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 8 on oath because he was not taking cognizance of any offence therein.
13. When a magistrate receives a complaiht he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has C discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring D 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 itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be E invoked by the Magistrate before he takes cognizance of the offence under Section 190(1 )(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre- cognizance stage and avail of Section 156(3).
14. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of MADHAO AND ANR. v. STATE OF MAHARASHTRA 495 AND ANR. [P. SATHASIVAM, J.] process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
15. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
16. Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against c the accused or apply his mind to the complaint filed before him and take action under Section 190 of the Code.
17. The above principles have been reiterated in Devarapalli Lakshminarayana Reddy and Others vs. V. Narayana Reddy and Others, (1976) 3 SCC 252 and Tula Ram and Others vs. Kishore Singh, (1977) 4 SCC 459
18. Keeping the above principles, if we test the same with ·the direction issued by the magistrate for investigation under Section 156(3) of the Code and facts of these cases, we are satisfied that the magistrate has not exceeded his power nor violated any of the provisions contained in the Code. As observed earlier, the magistrate need not order any investigation if he pre-supposes to take cognizance of the offence and once he takes cognizance of the offence, he has to follow the procedure provided in Chapter XV of the Code. It is also settled position that any judicial magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code.
19. As rightly observed by the High Court, the magislrate A before taking cognizance of the offence can order investigation under Section 156(3) of the Code, we are of the view that the procedure adopted and the power exercised by the magistrate in this case is acceptable and in accordance with the scheme of the Code. We are also satisfied that the High Court rightly B refused to exercise its power under Section 482 of the Code.
20. In the light of the above discussion and conclusion, we find no merit in all these appeals, consequently, the same are dismissed. C B.B.B. Appeals dismissed.