In the judgment Devarapalli Lakshminarayana Reddy & Ors. Vs. V. Narayana Reddy & Ors. (supra) Apex Court has clearly laid down the law in this regard stated as under:-
'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 Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from, being wasted in inquiring 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.'
8. Thus, unlike SHO the magistrate as empowered in U/s 190 has a discretion U/s 156 (3)Cr.PC to order an investigation or to conduct an inquiry himself U/s 200 Cr.PC. In this case the Learned Magistrate has dismissed the application U/s 156 (3) Cr.PC but has proceeded to record pre-summoning evidence on the complaint of the petitioner U/s 200 Cr.PC holding by that evidence in this case is within the possession and reach of the parties. Thus, in view of the above, there is no jurisdictional error in the order passed by the Learned Magistrate. Moreover, in the judgment Gopal Krishan Dua Vs State CRL Rev. P. No. 571 of 2008 of CRL MA 1229/2008 decided by the Hon'ble Delhi High Court on 25.03.09 it has been observed as follows :
''The learned MM had the discretion to either forward the complaint to the police for registering an FIR or decide to direct the complainant's evidence to be recorded. The decision of the learned MM to opt for the latter course cannot, in the facts of the present case, be held to be erroneous or illegal.
The impugned complaint of the respondent No.2 filed on 12.04.2018 was under Chapter XII, Section 156(3) CrPC and the same was not a complaint under Chapter XV, Section 200 CrPC. As such once the JMFC, Rangia, Kamrup by the order dated 05.05.2018 passed in said CR No. 45/2018 has rejected the impugned complainant of the respondent No. 2 filed under Section 156(3) CrPC, the Magistrate cannot proceed with the same complaint under Section 200 CrPC. The Magistrate, after rejecting a complaint filed under Section 156(3) CrPC, does not possess any such Suo-Moto power under the provisions of the CrPC to convert the same complaint to be a complaint under Section 200 CrPC. At best the Magistrate could have return the said complaint of the respondent No.2 filed under Section 156(3) CrPC enabling her to file an appropriate complaint/ application under Section 200 CrPC.
4. I have heard the submissions of Ld. Counsel for petitioner as well as of Ld. Addl. PP for the State. I have also perused the entire material placed before me including the Ms. Heenu Mahajan Vs. Narender Mahajan & Ors. (CR No.73/11) Page No.7 of pages 10 impugned order, contents of the petition specially the grounds taken therein and I find substance in the submissions of Ld. Counsel for the revisionist that the observations of Ld. MM is erroneous. Although the accused are known to the petitioner but still there are various aspects which need investigation. The complaint depicts commission of the offence of theft by the accused persons. For the purpose of establishing the same, recovery of the stolen articles are must, which can be possible only through police investigation. Moreover, the petitioner is claiming ownership of the shop while the accused persons are also claiming ownership of the shop. In the circumstances, when both of them are claiming title on the basis of ownership documents, it means that one of them is not having the genuine documents. To find out as to whose documents are not genuine and to recover the same, police investigation is necessary. It is well settled that if complaint discloses cognizable offence, then it becomes the duty of police officials to register the case and then investigate the matter and if after investigation, the police find that no offence is made out, it can file the closure report. The basis, reliability, genuineness and credibility of the information disclosing the cognizable offence are not the conditions precedent for registering a case under Sec.154 Cr.P.C.
15. More over Chief Judicial Magistrate, Etah had no power under the aforesaid section to convert an application under Section 156(3) Cr.P.C. into a complaint against the, wishes of victim. Filing: of complaint is right which is vested in the victim or aggrieved person. The Magistrate has got no right to file a complaint. He has also got no right to start litigation on the basis of an application seeking direction from him to get the FIR of cognizable offence registered. If no complaint is filed before him no cognizance of the offence can be taken by the Magistrate under Section 190(1)(a) Cr.P.C. An application with the prayer to get the FIR of cognizable offences registered and offences investigated is certainly not a complaint as is defined under Section 2(d) Cr.P.C. The applicant never wanted the Magistrate to take action self but he wanted the Magistrate to take action of other kind and exercise administrative power under chapter XII Cr.P.C. and direct the police to register the FIR and investigate the offence. In the present case, aggrieved person has not filed the complaint before the Magistrate, for which different procedure is laid down under Chapter XIV of Cr.P.C. Under Section 90(1)(a) Cr.P.C., if complaint is filed, then the Magistrate can take cognizance. In the said section it is not provided that the Magistrate can convert suo motu an application for registration of FIR under Section 156(3) Cr.P.C. as a complaint when no such payer is made by the aggrieved person informing his application as a complaint. More over the procedure of the complaint case as is mentioned in the Code of Criminal Procedure is such that the prosecution of the complaint case is the responsibility of the complainant It is his duty to bring the witnesses, and to lead evidence and bringing all the materials before the court. The statutory procedure prescribed for the complaint case is such that if the complainant is not present, then the complaint filed by him can even be dismissed in default and if the accused appeared then he be either discharged or acquitted as the case may be Thus it is responsibility of complainant to prosecute the complaint and the court cannot compel him to launch such a prosecution. Under the Cr.P.C. courts cannot compel any person to start the litigation. If the aggrieved person does not want to start litigation, the court cannot say that he must litigate.
The guidelines exist but Magistrate do not follow .CONTEMPT TO above orderReplyDelete