Criminal

The distinction between investigation directed under section 156(3) vis-a-vis section 202.

CODE OF CRIMINAL PROCEDURE

Magistrate’s power to direct ‘investigation’ under section 156(3) vis-a-vis his power to direct ‘investigation’ under section 202.

This, in turn, brings us to the question as to what taking of ‘cognizance’, within the scheme of the Code, means, when a Magistrate can take ‘cognizance’ of an offence, or, when can a Magistrate be said to have taken ‘cognizance’ of an offence? While considering these aspects of law, it is necessary to bear in mind that ‘cognizance’ has not been defined under the Code. The word ‘cognizance’ really indicates the point, when a Magistrate or a Judge first takes judicial notice of an offence. It also deserves to be borne in mind that ‘cognizance’ is taken of offence(s) and not of person(s) accused of such offences.

A patient reading of sub-section (1) of section 190 of the code clearly shows, as already indicated above, that a Magistrate can take ‘cognizance’ of an offence in three different modes, namely, (a) upon receipt of a ‘complaint’ of facts, which constitute such offence, (b) upon a ‘police report’ of such facts and (c) upon ‘information’ received from any person other than a police officer or, upon his own ‘knowledge’ that such offence has been committed.

A careful reading of section 200 of the code makes it clear that a Magistrate, taking ‘cognizance’ of an offence on a 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. Such examination can be dispensed with under two contingencies, namely, (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.

A careful analysis of the provisions of section 190 of the code read with section 200 thereof clearly reveals that what section 200 of the code really lays down is the procedure as to what a Magistrate shall do, when he takes ‘cognizance’ of an offence on receiving a complaint of the facts, which constitute such offence. This, in turn, clearly reveals that taking of ‘cognizance’ must precede examination of the complainant under section 200 of the code [See Pradyut Kr. Das v. Ajit Borah, 2006 (2) GLT 574].

Broadly speaking, when, on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under section 200 and the succeeding sections in Chapter XV of the Code, he is said to have taken ‘cognizance’ of the offence within the meaning of section 190(1)(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, issued a search warrant for the purpose of ‘investigation’, or ordered ‘investigation’ by the police under section 156 3), he cannot be said to have taken ‘cognizance’ of any offence (See Devarapalli Lakshminarayana Reddy and Others v. Narayana Reddy and Others, AIR 1976 SC 1672].

Thus, whether the Magistrate has or has not taken ‘cognizance’ of an 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.

 In short, in the light of the decision in Superintendentand Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji, AIR 1950Cal. 437 approved in R.R. R.R Chari v. State Of Uttar Pradesh., (1951) SCR 312. and in view of what Devarapalli Lakshminarayana Reddy (supra) lays down, it is abundantly clear that when a Magistrate applies his mind to the contents of a complaint for the purpose of proceeding in accordance with the subsequent provisions of the code, particularly. section 200 thereof, he can be said to have taken ‘cognizance’. When, however, the Magistrate applies his mind not for the purpose of proceeding under Chapter XV of the Code, but for taking action of some other kind, such as, ordering ‘investigation’ under section 156 (3) or directing issuance of search warrant, he cannot be said to have taken ‘cognizance’ of the offence.

What surfaces from the discussions held above is that the scheme of the Code is that when a complaint is presented before a Magistrate, he can either direct an ‘investigation’, in terms of sub-section (3) of section 156 of the code, or he may decide to proceed with the complaint. If he decides to proceed with the complaint by taking ‘cognizance’ of the offence(s), which the complaint discloses, he shall, for this purpose, take steps in terms of section 200 of the code by examining the complainant. If the Magistrate, on receipt of the complaint, takes no steps to indicate that the Magistrate wanted to proceed in terms of section 200 of the code and sends the complaint to the police for ‘investigation’, it will be indicative of the fact that the Magistrate has not taken ‘cognizance’. Thus, in the later case, there will be no impediment, on the part of the Magistrate, to take ‘cognizance’ of the offence if and when the police, on ‘investigation’ carried out, submit a report, in this regard, in terms of section 190(b). The act of sending of the ‘complaint’ to police for ‘investigation’ is really at a ‘pre-cognizance’ stage.

 When, however, a Magistrate, instead of sending the ‘complaint’ for ‘investigation’ to the police, decides to proceed or proceeds under section 200 of the code, the Magistrate shall be deemed to have, unless shown otherwise, taken ‘cognizance’ of the offence, for, the Magistrate cannot proceed to record the complainant’s statement under section 200 without taking ‘cognizance’. The act of proceeding with the examination of the complainant under section 200 will, thus, be indicative of the fact that the Magistrate has taken ‘cognizance’ of the offence and has decided to proceed accordingly. It is for this reason that when the Magistrate, after recording statement of the complainant and his witnesses, if any, present, decides to hold inquiry under section 202 of the code, he cannot, thereafter, send, for ‘investigation’, a complaint, which discloses commission of offence, which is exclusively triable by court of Session. The act of sending the complaint for ‘investigation’ after recording of statement of the complainant and/or the witness and/or after holding inquiry under section 202 of the code is a stage, which may be called the ‘post-cognizance’ stage. If the distinction between ‘pre-cognizance’ stage and ‘post-cognizance’ stage is borne in mind, there will be no difficulty in appreciating that when a Magistrate, instead of sending the complaint for ‘investigation’, decides to proceed under section 200 and records the statement of the complainant and his witnesses, the Magistrate shall be treated to have taken ‘cognizance’ of the offence disclosed by the complaint, for, as already indicated above, he cannot proceed to record the statement of the complainant under section 200 without taking ‘cognizance’.

What may, thus, be summarized is that when a Magistrate applies his mind to the contents of the complaint and decides to proceed in the manner as indicated in the subsequent provisions of the Code, namely, Chapter XV and, particularly, section 200 of the code, he can be said to have taken ‘cognizance’. In other words, it is only upon taking of ‘cognizance’ of an offence that it is open to Magistrate to examine the complainant on oath under sub-section (1) of section 200 and also complainant’s witnesses present, it any. The proviso to section 200 makes it abundantly clear that the examination of the complainant and his witnesses is not necessary, when the complaint is made, in writing, by a public servant or the Magistrate makes over the case for inquiry and trial by another Magistrate under section 192 of the code. If a Magistrate takes ‘cognizance’ of an offence, he must (i) examine, on oath, the complainant, though the complaint may be in writing, and the witnesses present, if any, and (ii) reduce the substance of such examination to writing. By examining the complainant and the witnesses present, if any, what the Magistrate essentially does is to determine as to whether there are sufficient grounds for proceeding against the accused. If the Magistrate is of the opinion, on examining the complainant and his witnesses under section 200, that there are sufficient grounds for proceeding against the accused, he can issue process in terms of section 204 of the code. If, on examining the complainant and his witnesses under section 200, the Magistrate is of the view that the allegations made against the accused need to be inquired into or investigated, he may, in terms of section 202, either inquire into the case himself or direct an ‘investigation’ to be made by a police officer or by such other persons as he thinks fit.

What is, now, important to note is that the ‘inquiry’ or ‘investigation’, which a Magistrate directs, in exercise of power under section 200, is really for the purpose of determining as to whether there is sufficient grounds for proceeding or not. If the Magistrate chooses to hold the inquiry himself under section 202 of the code, this inquiry may result either, as already mentioned above, issuance of processes against the accused under section 204 or dismissal thereof under section 203, for, section 203 makes it clear that if, upon considering the statements on oath, if any, of the complainant and his witnesses and the result of the inquiry or ‘investigation’, if any, under section 202, the Magistrate is of the opinion that sufficient grounds do not exist for proceeding further, it is obligatory on him to dismiss the complaint, though while dismissing the complaint, the Magistrate is duty bound to record reasons for so doing.

One may reiterate that when, after examining the complainant and the witnesses, if present, in terms of section 200, the Magistrate finds that there exists some materials against the accused, but the same are insufficient for issuance of process, the appropriate statutory mechanism is engrafted under section 202, which empowers the Magistrate to either direct ‘investigation’ or inquire into the case himself to decide if the process deserves to be issued against the accused.

Imperative it is to point out that the power conferred on a Magistrate to direct ‘investigation’ under section 156 (3) is quite different from the power given to him to direct ‘investigation’ under section 202 (1). The power, so conferred, is resorted to in two distinct and different spheres at two different stages envisaged under the Code. The Code, it is pertinent to reiterate, has mode distinction between ‘pre-cognizance’ and ‘post-cognizance’ stage. While section 156 (3) deals with Magistrate’s powers to direct ‘investigation’ at ‘pre-cognizance’ stage. Section 202 empowers the Magistrate to direct ‘investigation’ by police at ‘post-cognizance’ stage.

What is, now, necessary to note is that an ‘investigation’, which is directed, under section 202(1), is really aimed at helping a Magistrate, determine if process needs to be issued or not. The ‘investigation’, which section 202(1) conceives, is, therefore, materially different from the ‘investigation’, which is ordered under section 156(3). Thus, it is clear that when an order is passed under section 156(3), a police officer has all the powers of ‘investigation’, which he, otherwise, has in a cognizable case and the report, which he submits on completion of such an ‘investigation’, is a ‘police report’ within the meaning of the provisions of section 173(2)(i) if read with section 2(r); but when an ‘investigation’ is directed under section 202(1), the report of the ‘investigation’, which the police officer may submit, is merely to enable the Magistrate to make up his mind whether the complaint needs to be dismissed or process needs to be issued. If the Magistrate dismisses the complaint, it is in exercise of his powers under section 203. If he issues process, it is in exercise of his powers under section 204.

The proviso to sub-section (1) of section 202 contemplates, again, two situations, where a Magistrate cannot direct ‘investigation’, even for the limited purpose of enabling him to make up his mind if the complaint needs to be dismissed or process needs to be issued. These two exceptions are: (i) when the Magistrate, on taking ‘cognizance’ of an offence and having examined the complainant and the witnesses, if any, present, finds that the offence, complained of, is in respect of an offence, which is triable exclusively by a court of Session or (ii) where the complainant and the witnesses, if any, have not been examined unless the complaint is one, which has been made by a court. I may also point out that by virtue of the Act of 25 of 2005, which has introduced some amendments to section 202, an inquiry, under section 202 (1), is, with effect from 23-6-2006, necessary if the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction. This amendment has been made in order to enable the Magistrate determine if the complaint against a person, who resides outside the territorial jurisdiction of the Magistrate, is not one, which is frivolous.

Having clarified the nature of ‘investigation’, which a Magistrate may direct, in exercise of his power under section 156 (3) vis-a-vis section 202 (1), it is also imperative to point out that the report, which a police officer, on completion of ‘investigation’, submits in terms of the provisions of section 173(2) and which is defined by section 2(r) as the police report, the Magistrate may, in terms of clause (b) of section 190(1) of the code, take ‘cognizance’ if the police report discloses commission of an offence. The Magistrate, in such a case, may also, instead of taking ‘cognizance’, direct, in the light of what has been held in Bhagwant Singh (supra), ‘further investigation’. To put it a little differently, it is within the powers of the Magistrate not to accept a police report furnished to him in terms of section 173(2) and it is open to him to direct the police to carry out ‘further investigation’ in the matter. ‘Further investigation’ can, therefore, be directed not necessarily after the police report has been accepted and ‘cognizance’ taken, but even before ‘cognizance’ is taken, it is permissible in law for the Magistrate to direct ‘further investigation’ if he, for reasons to be recorded, in writing, does not accept the police report, which, on completion of ‘investigation’, is submitted by the police to the Magistrate.

Notwithstanding the fact that we have already indicated above that it is possible for a Magistrate to accept a police report submitted to him on completion of ‘investigation’ by police in terms of the provisions of section 173(2) and direct, in the light of the decision in Bhagwant Singh (supra), further ‘investigation’, we may, now, turn to examine the other situations or circumstances, when the Code recognizes the Magistrate’s power to direct further ‘investigation’. In other words, apart from having power to direct ‘further investigation’ under section 156 (3), i.e., at pre-cognizance stage, we are, now, required to determine as to whether a Magistrate has the power to direct ‘further investigation’ after he has accepted the police report given to him under section 173(2) and if it is so, what may be the circumstances, whereunder such ‘further investigation’ may be directed.