TMI Blog2010 (7) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... red till appropriate decision being taken in the civil proceedings. On the other hand, after taking us through the salient features in the complaint, specific allegations with reference to the criminality of the respondents, various terms of the contract and the conduct of the appellant in diverting the entire amount received for a different purpose and in view of the Sections 156(3) and 190 of the Code, the Magistrate is well within his powers to pass the impugned order and the same has been rightly considered and approved by the learned single Judge and Division Bench of the High Court contended that there is no merit in the appeal filed by the appellants. Hence this appeal. HELD THAT:- 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 u/s 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses u/s 200 CrPC, which is the first step in the procedure prescribed under that chapter. The question of taking the next step of that procedure envisaged in Section 202 did not arise. Instead of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vam and Anil R. Dave JUDGMENT P. Sathasivam, J. 1. Leave granted. 2. The appeal arising out of S.L.P. (Crl.) No. 3267 of 2010 is directed against the final judgment dated 01.04.2010 passed by the High Court of Chhattisgarh at Bilaspur in W.A. No. 281 of 2009 whereby the High Court dismissed the appeal filed by the appellants herein and the appeal arising out of S.L.P.(Crl.) No. 5095 of 2010 is preferred against the interim order dated 27.04.2010 passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in Crl. R.C. M.P. No. 1307 of 2010 in Crl. R.C. No. 893 of 2010 staying the order dated 22.04.2010 passed by the Chief Metropolitan Magistrate, Hyderabad rejecting the application for extension of transit bail and also recording of the fact that fraud has been played upon the Court and resultantly, non-bailable warrant was issued against respondent No. 1 in this appeal for his arrest and production before JMFC, Korba, Chhattisgarh. 3. The facts leading to the filing of these two appeals are: a) M/s SEPCO Electric Power Construction Corporation (in short SEPCO ) was engaged in erection of power plant at village Nariyara in Akaltara D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd. filed Writ Petition No. 3647 of 2009 before the High Court of Chhattisgarh praying for quashing and setting aside the order dated 04.07.2009 passed by the Chief Judicial Magistrate, Class I, Korba and the proceedings drawn by the Magistrate on the complaint of SEPCO. They also prayed for issuance of writ of prohibition in order to prohibit further proceedings pending in the Court of Magistrate, Class I, Korba in connection with the complaint lodged by SEPCO and quashing the communication dated 03.07.2009 by the bank relating to freezing of the SSVG's account. c) The learned single Judge, by order dated 03.09.2009, dismissed writ petition No. 3647 of 2009 and held that the Magistrate passed an order under Section 156(3) of the Code after perusing the complaint which discloses commission of cognizable offence and has not committed any illegality by directing the police to register FIR. The learned single Judge further held that since the police authorities are investigating into the matter after registering FIR and final report is yet to be filed, therefore, challenge at this stage by SSVG is premature. d) Questioning the order of the learned single Judge, SSVG pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Andhra Pradesh, on 27.04.2010, passed an interim order staying the order dated 22.04.2010 passed by the CMM Hyderabad. Aggrieved by the said order, SEPCO filed appeal @ S.L.P.(Crl.) 5095 of 2010 before this Court. On 14.05.2010, this Court after issuing notice tagged this S.L.P. along with S.L.P.(Crl.) No. 3267 of 2010. For convenience, we refer the parties as described in SLP (Crl.) 3267 of 2010. 4. Heard Dr. A. M. Singhvi, learned senior counsel for the appellants, Mr. C.A. Sundaram, learned senior counsel for the contesting respondent-SEPCO and Mr. Atul Jha, learned Counsel for the State of Chhattisgarh. 5. Dr. Singhvi, learned senior counsel, at the outset, highlighted that in view of the facts and circumstances, more particularly, suit for recovery of money filed by SEPCO is pending in the civil court and counter claim of the appellants is also pending in the same suit, proper course would be to appoint an arbitrator to resolve the dispute. However, according to him, instead of pursuing the said legal and contractual remedy, the respondent- SEPCO rushed to the Magistrate and the Magistrate committed an error in invoking jurisdiction under Section 156(3) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned. Section 173 - Report of police officer on completion of investigation (1) Every investigation under this Chapter shall be completed without unnecessary delay. (1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170; (h) whether the report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2). Section 200 - Examination of complainant A 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 201 - Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served by the learned single Judge of the High Court, the provisions of the above two Chapters deal with two different facets altogether. 9. Dr. Singhvi, learned senior counsel, relying on a judgment of this Court in Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. (1988) 1 SCC 692 contented that the learned Magistrate is not justified in issuing direction to the Investigation Officer and the same is liable to be interfered with and the High Court ought to have interfered with and quashed the same. We have perused the facts of this case. The High Court, in the said decision, quashed the prosecution against two of the four accused. We have also gone through the factual details as stated in paragraphs 2, 3 and 4 as well as the submissions made by the counsel. After narrating all the events in paragraph 7, Their Lordships have held that: 7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 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 ways 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 Section 200 and the succeeding sections in Chapter XV to the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 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 Section 156(3), h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings 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 Section 202 to direct, within the limits circumscribed by that section an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding . Thus the object of an investigation under Section 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. 18. 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 Section 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses under Section 200 CrPC, which is the first step in the procedure prescribed under that chapter. The question of taking the next step of that procedure envisaged in Section 202 did not arise. Instead of taking cognizance of the offence, he has, in the exercise of his discretion, sent the complaint for inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sepco Electric Power Construction Corporation Vs. Mr. Srinivas Gundluri and Ors. 04.07.2009 Present case was produced before me because Smt. Saroj Nand Das, Judicial Magistrate 1st Class, Korba, is on leave. Complainant present along with his counsel Shri B.K. Shukla, Advocate. Complaint under Section 200 Cr.P.C. has been filed against Respondents-accused praying for taking cognizance against them under Sections 405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of Indian Penal Code. It has been further prayed that case be sent to the concerned Police Officer under Section 156(3) Cr.P.C. Heard on the application. Perused Complaint under Section 200 Cr.P.C. According to this complaint, a prayer has been made to take cognizance against Accused-Mr. Srinivas Gundluri and Smt. Bharati Devi, Director and others under Sections 405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of Indian Penal Code. All these are cognizable offences. Therefore, application filed on behalf of the Complainant under Section 156(3) Cr.P.C. is allowed and original complaint and other documents are sent to concerned Station House Officer and he is directed to register a first information repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of the police report by the Investigating Officer, hence, by directing the police to file chargesheet or final report and to hold investigation with a particular result cannot be construed that the Magistrate has exceeded his power as provided in Sub-section 3 of Section 156. 14. Neither the chargesheet nor the final report has been defined in the Code. The chargesheet or final report whatever may be the nomenclature, it only means a report under Section 173 of the Code which has to be filed by the police officer on completion of his investigation. In view of our discussion, in the case on hand, we are satisfied that the Magistrate in passing the impugned order has not committed any illegality leading to manifest injustice warranting interference by the High Court in exercise of extraordinary jurisdiction conferred under Article 226 of the Constitution of India. We are also satisfied that learned single Judge as well as the Division Bench rightly refused to interfere with the limited order passed by the Magistrate. We also hold that challenge at this stage by the appellants is pre-mature and the High Court rightly rejected their request. 15. It is true that Dr. Singhv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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