TMI Blog2006 (1) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... ice registered FIR No. 830 of 1998 for alleged commission of offences punishable under Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 (in short the IPC). Background facts as projected by the appellant are as follows: Appellant received a notice dated 18.1.1996 from the Union Bank of India, Raebareli asking him to pay back the loan amount with interest amounting to ₹ 1,25,421/-. Appellant was shown to be a guarantor for the loan taken by respondent no.1 on 30.12.1994. Appellant was surprised to receive the notice as he had never stood as guarantor for any loan. He made enquiry from the Bank and came to know that the respondent No. 1 had forged some documents in conspiracy with her husband Zahirul Islam. An affidavit purported to have been signed by the appellant was filed with the bank to make him the second guarantor. Appellant had never signed the document and his signature was forged. A writ petition was filed before the Allahabad High Court to quash the notice issued by the Bank. The writ petition was dismissed giving liberty to the appellant to seek appropriate remedy. On 13.7.1998 an application was filed before learned CJM alleging commission of off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 156 of the Code. Chapter XII of the Code contains provisions relating to information to the police and their powers to investigate , whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e. complaint filed by a person. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences. True, Section 202, which falls under Chapter XV, also refers to the power of a Magistrate to direct an investigation by a police officer . But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code. The various steps to be adopted for investigation under Section 156 of the Code have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. The above position was highlighted in Suresh Chand Jain v. State of M.P. and Another [2001(2) SCC 628]. In Gopal Das Sindhi and Ors. v. State of Assam and Anr. (AIR 1961 SC 986) it was observed as follows: When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the Officer Incharge of Police Station Gauhati for investigation. Section 156(3) states Any Magistrate empowered under section 190 may order such investigation as above-mentioned . Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore it can be said that any magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter- proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence . were approved by this Court in R.R. Chari v. State of Uttar Pradesh (1951 SCR 312). It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind, e.g., ordering investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to law. Accused to appear before him. Accordingly, on the same date Mr. Sinha then recorded the following order:- Accused present. Petition filed for reduction of bail. Considering all facts, bail granted for ₹ 25,000 with 5 sureties. To 26.3.1952 and 27.3.1952 for evidence. It is clear from these orders that on 19.91952, the Additional District Magistrate had not taken cognizance of the offence because he had allowed the police time till November 19, 1952, for completing the investigation. By his subsequent orders time for investigation was further extended until February 2, 1953. On what date the complaint was filed and the order of the Additional District Magistrate clearly indicated that he took cognizance of the offence and sent the case for trial to Mr. Sinha. It would also appear from the order of Mr. Sinha that if the Additional District Magistrate did not take cognizance, he certainly did because he considered whether the bail should be reduced and fixed the 26th and 27th of March, for evidence. It was, however, argued that when Mitra applied for a search warrant on September, 16, 1952, the Additional District Magistrate had recorded an order the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Additional District Magistrate no cognizance of the offence was taken until February 2, 1953. The argument that he took cognizance of the offence on September 16, 1952, is without foundation. The orders passed by the Additional District Magistrate on September 16, 1952, September 19, 1952, November 19, 1952, and January 2, 1953, were orders passed while the investigation by the police into a non-cognizable offence was in progress. If at the end of the investigation no complaint had been filed against the appellant the police could have under the provisions of s. 169 of the Code released him on his executing a bond with or without sureties to appear if and when so required before the Additional District Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. The Magistrate would not be required to pass any further orders in the matter. If, on the other hand, after completing the investigation a complaint was filed, as in this case, it would be the duty of the Additional District Magistrate then to enquire whether the complaint had been filed with the requisite authority of the Reserve Bank as required by s. 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purposes cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under s. 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure or under s. 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance. A faint plea was made by learned counsel for the respondent No.1 that the petition filed by the appellant was not a complaint in strict sense of the term. The plea is clearly untenable. The nomenclature of a petition is inconsequential. Section 2(d) of the Code defines complaint as follows: 'Complaint' means any allegation orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation:- A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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