TMI Blog1976 (5) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... adly 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 falseho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. (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 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 inci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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