The High Court of Madhya Pradesh Bench at Gwalior in Keshri Singh and others v State of Madhya Pradesh and another (Misc. Cri. Case No. 5289 of 2014) ruled that a Magistrate possesses full statutory discretion under the Code of Criminal Procedure, 1973, to take direct cognizance of a private complaint under Section 200 without mandatorily referring the matter for police investigation under Section 156(3). Justice S.K. Awasthi held that defence materials produced by accused persons cannot be examined at the stage of taking cognizance or issuing process under Section 204 CrPC, dismissing the Section 482 CrPC quashing petition while affirming the concurrent revisional order of the Sessions Court.
Bench and Representation in Keshri Singh v State of MP
The proceedings were conducted before the Madhya Pradesh High Court Gwalior bench, with Justice S.K. Awasthi presiding, and the final order was pronounced on November 4, 2016. In the matter of Misc. Cri. Case No. 5289 of 2014, the applicants (Keshri Singh and others) were represented by learned advocate Shri Shishir Saxena. The respondent No. 1 / State of Madhya Pradesh was represented by Shri R.D. Agarwal, learned Panel Lawyer. The respondent No. 2 (the private complainant) was represented by learned advocate Shri Deependra Raghuvanshi.
Procedural History and Challenge to Revisional Order
This application under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) was filed by the applicants for assailing the revisional order dated April 28, 2014, passed by the First Additional Sessions Judge, Guna in Criminal Revision No. 97 of 2013. By the said order, the revisional court affirmed the order dated March 20, 2013, passed in Criminal Case No. 501 of 2013 by the Judicial Magistrate First Class (JMFC), Guna, whereby the learned Magistrate took cognizance of the private complaint filed by respondent No. 2 and issued process against the applicants.
The facts relevant for deciding the present application are that respondent No. 2 made an information to the Police Station Cant, District Guna, regarding the alleged commission of offences punishable under Sections 147, 148, 149, 447, 323, 294, and 506-B of the Indian Penal Code, 1860 (IPC). However, the police did not act in furtherance of the complaint, prompting the complainant to take recourse to the statutory remedy of filing a complaint under Section 200 of the Code of Criminal Procedure before the competent court of JMFC, Guna.
The complaint was presented on June 28, 2011, before the Chief Judicial Magistrate, Guna. Thereafter, the statement of the complainant as well as other witnesses called by the complainant were recorded under Sections 200 and 202 CrPC to enable the concerned Magistrate to consider taking cognizance on the complaint. After recording the statements, the Chief Judicial Magistrate, Guna, vide order dated March 20, 2013, issued process against the present applicants upon finding a prima facie case for process issuance for the offences punishable under Sections 147, 148, 294, 323 IPC and in the alternative under Sections 323 read with 149 and Section 506 Part-II of the IPC.
Feeling aggrieved by such cognizance by the Chief Judicial Magistrate, Guna, a revision application was filed before the Court of Additional Sessions Judge, Guna, which was registered as Criminal Revision No. 97 of 2013. The final order dated April 28, 2014, was passed, whereby the revision application was dismissed on the ground that the contentions raised were in the nature of defence pleas to be offered by the applicants, which cannot be considered at this preliminary stage and will remain available to the applicants during the course of regular trial.
The revisional order dated April 28, 2014, was the subject matter of challenge before the High Court in the instant application under Section 482 CrPC.
Contentions of the Applicants on Suppression and Section 156(3) CrPC
The primary contention of the applicants was that respondent No. 2 in his private complaint did not disclose the fact regarding the FIR which had already been registered against the complainant as well as his family members for assaulting the present applicants. In this manner, according to the applicants, there was clear suppression of material facts, which constituted a sufficient ground to set aside the order of the Chief Judicial Magistrate, District Guna, of taking cognizance against the applicants.
Another submission canvassed by the applicants was that the Chief Judicial Magistrate ought to have referred the complaint filed by the complainant to the concerned police station in terms of Section 156(3) of CrPC for a Section 156 3 CrPC investigation. The applicants argued that by not following this procedure before taking cognizance, the Chief Judicial Magistrate committed a grave error in law, and therefore the application deserved to be allowed. While advancing these contentions, learned counsel for the applicants relied upon the judgment of the Supreme Court in State of Haryana and others v. Bhajanlal and others (1992 Supp SCC (Cri) 426) to contend that the instant case fell squarely within the parameters laid down by the Supreme Court for quashing criminal proceedings.
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Submissions of the State and the Private Complainant
Learned Panel Lawyer for the State of Madhya Pradesh contended that the impugned order did not suffer from any illegality, jurisdictional error, or perversity, and therefore should not be interfered with under Section 482 CrPC.
Learned counsel for respondent No. 2 contended that the Chief Judicial Magistrate, Guna, did not commit any error in law in taking cognizance under Section 200 CrPC against the applicants as there existed a clear prima facie case on the basis of the sworn statements recorded during inquiry. Hence, respondent No. 2 prayed that the impugned orders be maintained.
Judicial Consideration: Discretion of the Magistrate under Section 156(3) vs Section 200 CrPC
Having considered the rival contentions of all the parties to the case, Justice S.K. Awasthi first addressed the applicants' attack on the jurisdiction of the Court of CJM, Guna, to bypass proceedings under Section 156(3) of CrPC and directly take cognizance of the complaint under Section 200 CrPC. According to the applicants, the CJM, Guna, could not have directly taken cognizance, and rather ought to have referred the complaint to the police for investigation, and only after receiving the police report could any further proceeding be drawn.
The High Court held that this contention was contrary to the established position of law with respect to the discretion available to the Magistrate while taking cognizance on a complaint submitted under Section 200 CrPC. In this regard, the Court examined the judgment pronounced by the Madhya Pradesh High Court in the case of Shyamlal v. Lau Kush Ram Lakhan Pandey (1999 (1) MPLJ 260). The relevant paragraphs of the Shyamlal judgment read as under:
"3. On a perusal of the order sheet it is noticed that the learned trial Judge upon receipt of the complaint and the application filed under Section 94 of the Code opined that the allegations disclosed a cognizable offence and accordingly directed the matter to be investigated by a responsible officer to be nominated by the S.P. concerned. This order, in effect, amounts to an order under Section 156(3) of the Code. Section 156 of the Code reads as under:
156 (1) Any officer incharge 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 which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.
From the aforesaid provision, it is quite clear that the power of investigation vests with the police in regard to any cognizable offence without the order of a Magistrate. Under sub-section (3) of the Code the Magistrate who has been empowered under Section 190 of the Code may direct the police to investigate a case. Pursuant to the direction given by the competent Magistrate Police investigates and submits a report to the Magistrate who is required to deal with the matter. It is to be noted that the Magistrate under Section 190 of the Code occurring in Chapter XV has also the authority to direct an investigation to be made by the Police Officer. It is to be borne in mind that there is a distinction between the scope of power of the Magistrate while directing investigation under Sections 156(3) and 202 of the Code. Investigation under Section 156(3) is directed at the pre-cognizance stage whereas the direction under Section 202 of the code relates to a stage after taking cognizance but before issuance of process."
The Supreme Court Precedent in Tularam v. Kishore Singh
The High Court recalled that the Supreme Court of India in Tularam and Ors. v. Kishore Singh (AIR 1977 SC 2401) laid down the authoritative law on the options available to a Magistrate on receiving a complaint:
"1. That a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.
2. 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 straightway issue process to the accused but before he does so he must comply with the requirements of Section 202 and record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
3. 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.
4. 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 straightway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above."
The Supreme Court Decision in H.S. Bains v. State (UT of Chandigarh)
The legal controversy regarding the scope of Magistrate powers on receiving a complaint was further expounded by the Supreme Court in H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) ((1980) 4 SCC 631). In paragraph 6 of the judgment, the Supreme Court observed:
"6. It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Sec. 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Sec. 203. If in his opinion there is sufficient ground for proceeding he may issue process under Sec. 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding.
Alternatively, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Sec. 156(3). The police will then investigate and submit a report under Sec. 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Sec. 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Sec. 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further.
The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Sec. 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Sec. 156(3) and received a report under Sec. 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204.
Thus, a Magistrate who on receipt of a complaint, orders an investigation under Sec. 156(3) and receives a police report under Sec. 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Sec. 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Sec. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Sec. 200. If he adopts the third alternative, he may hold or direct an inquiry under Sec. 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be."
Distinction between Section 156(3) and Post-Cognizance Inquiry under Section 202 CrPC
From the authoritative decisions in Shyamlal, Tularam, and H.S. Bains, it is evident that the competent Magistrate Court after receiving a complaint or a police report may either drop the action if no sufficient ground exists, or take cognizance on the basis of the original complaint and examine the complainant and witnesses under Section 200 CrPC.
In the present case, the trial court observed that there was material to proceed against the accused. On a reading of the provisions of Section 203 of CrPC, a complaint can only be dismissed after considering the statements on oath of the complainant and witnesses and the result of inquiry or investigation under Section 202 CrPC. Where the direction by the court below was not one under Section 202 CrPC, the question of dismissal of the complaint under Section 203 does not arise.
The reproduced portion of the judgment rendered in Shyamlal confirms that the Magistrate Court has ample discretion to either refer the case to the police under Section 156(3) CrPC or to take direct cognizance without giving any direction under Section 156(3) CrPC. Therefore, the first contention of the applicants challenging the jurisdiction of the CJM, Guna, was repelled by the High Court.
Evaluation of Suppression of Counter-FIR and Accused Defence at Cognizance Stage
The High Court next adverted to the second contention of the applicants: that respondent No. 2 suppressed material facts before the Chief Judicial Magistrate, Guna, regarding the antecedents of an earlier criminal case registered against respondent No. 2 and his family members, which allegedly warranted setting aside the cognizance order.
Justice S.K. Awasthi held that this contention, though attractive on first impression, has no tenability at the stage of taking cognizance by the Court of CJM, Guna. In this regard, the Madhya Pradesh High Court in Colgate Palmolive India Ltd. v. Satish Rohra (2005 (4) MPLJ 380) laid down the governing principles as follows:
"6. I have heard the learned Counsel of both the parties and carefully perused the evidence and the material on record. Before considering the evidence and the material on record for the limited purpose of finding out whether a prima facie case for issuance of process has been made out or not, it may be mentioned at the very outset that the various documents and the reports filed by the petitioners/Company along with the petition can not be looked into at the stage of taking cognizance or at the stage of framing of the charge. The question whether prima facie case is made out or not has to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. No provision in the Code of Criminal Procedure grants to the accused any right to file any material or document at the stage of taking cognizance or even at the stage of framing of the charge in order to thwart it. That right is granted only at the stage of trial. At this preliminary stage the material produced by the complainant alone is to be considered."
The High Court emphasized that the law in Colgate Palmolive is unambiguous: at the stage of taking cognizance, the complaint and documents filed along with the complaint are to be perused, but material brought on record by the accused cannot be looked into at the stage of cognizance or issuance of process.
The principle in Colgate Palmolive is squarely applicable to the facts of the present case, and the material brought on record against respondent No. 2 cannot be evaluated at this initial stage. The Court of First Additional Sessions Judge, Guna, in its order dated April 28, 2014, correctly reserved the right of the applicants to bring their defence documents at the appropriate stage of trial. This liberty remains fully available to the applicants during trial proceedings, and the outcome of the Section 482 application does not affect that right.
Application of the Bhajanlal Guidelines and Rajiv Thapar Framework
The reliance placed by learned counsel for the applicants on the Supreme Court judgment in State of Haryana v. Bhajanlal was held to be of no assistance to the applicants. Under the ratio of Bhajanlal, indulgence under Section 482 CrPC can be granted where, upon an uncontroverted reading of the FIR or complaint, the ingredients of the offences alleged are not made out, or where the prosecution has been lodged with demonstrable ulterior motives.
In the instant case, the material brought on record by the applicants did not establish beyond doubt any ulterior motive, and the questions raised regarding the complaint of respondent No. 2 involved disputed questions of fact that cannot be resolved while exercising inherent powers under Section 482 CrPC.
The Supreme Court in Rajiv Thapar v. Madan Lal Kapoor ((2013) 3 SCC 330) cautioned High Courts while exercising jurisdiction under Section 482 CrPC in the following terms:
"22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice."
Similar standards of judicial scrutiny regarding criminal antecedents and disclosures are seen in other areas of law, such as the Supreme Court judgment in Avtar Singh vs Union of India, where the legal effect of pending criminal cases is assessed against strict statutory criteria.
Operative Order and Final Disposition
Having carefully examined the law laid down by the Supreme Court in Rajiv Thapar and upon considering the material brought on record by the applicants, the High Court held that interference under Section 482 CrPC was not warranted. Detailed discussion on the factual defence furnished by the applicants would prejudice their defence before the trial court. Accordingly, the Section 482 application was dismissed with the direction to the trial court to give full consideration to the defence material brought on record by the applicants during trial, without being influenced by any observations made in the High Court order.
Consequently, the application was disposed of with these observations, and the Registry was directed to transmit a copy of the order to the trial court for information and record.