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WHEN THERE IS NO PROPER INVESTIGATION BY POLICE - A MAGISTRATE SHALL REFER THE MATTER TO SOME SENIOR OFFICER FOR PROPER INVESTIGATION 2012 SC

FULL JUDGMENT
JUSTICE Ashok Kumar Ganguly, & JUSTICE T.S. Thakur in the case of Azija Begum vs State Of Maharashtra & Anr Reported in 2012 (3 ) SCC 126 = 2012 (1 ) JT 167 = 2012 (1 ) SCALE 328 It was expected of the High Court to look into the matter with greater care and caution as a very serious offence had taken place followed by an investigation in respect of which the Magistrate himself had expressed serious reservations but failed to give proper direction. …………… Every citizen of this country has a right to get his or her complaint properly investigated. The legal framework of investigation provided under our laws cannot be made selectively available only to some persons and denied to others. This is a question of equal protection of laws and is covered by the guarantee under Article 14 of the Constitution. The issue is akin to ensuring an equal access to justice. A fair and proper investigation is always conducive to the ends of justice and for establishing rule of law and maintaining proper balance in law and order. These are very vital issues in a democratic set up which must be taken care of by the Courts. …….

MAGISTRATE MAY PERUSE THE COMPLAINT WITHOUT EXAMINING MERITS OF THE CLAIM DIRECT INVESTIGATION UNDER 156-3 CRPC

FULL JUDGMENT
JUSTICE SATHASIVAM & JUSTICE ANIL R DAVE IN THE CASE OF SRINIVAS GUNDLURI & ORS. .Vs. SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION & ORS. REPORTED IN 2010 (9 ) SCR 278 = 2010 (8 ) SCC 206 = 2010 (7 ) JT 534 = 2010 (7 ) SCALE 665

From the order of the Magistrate dated 04.07.2009 it is clear that the Magistrate only ordered investigation under section 156 (3) of the
Code of Criminal Procedure, 1973. It also shows that the Magistrate perused the complaint without examining the merits of the claim that there is sufficient ground for proceeding or not, directed the police officer concerned for investigation under section 156 (3) of the Code. The Single Judge of the High Court rightly observed that the Magistrate did not bring into motion the machinery of Chapter XV of the Code. He did not examine the complainant or his witnesses under section 200 of the Code which is the first step in the procedure prescribed under the said Chapter. The question of taking next step of the procedure envisaged in section 202 did not arise. Instead of taking cognizance of the offence, the Magistrate merely allowed the application filed by the complainant/SEPCO under section 156(3) of the Code and sent the same along with its annexure for investigation by the police officer concerned under section 156 (3) of the Code. To proceed under section 156 (3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. In the instant case, the Single Judge and Division Bench of the High Court rightly pointed out that the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding and, therefore, the Magistrate has not committed any illegality in directing the police to register FIR and conduct investigation.

As a matter of fact, even after receipt of such report, the Magistrate
under section 190 (1) (b) may or may not take cognizance of offence. In other words, he is not bound to take cognizance upon submission of the police report by the Investigating Officer, hence, by directing the police to file charge sheet 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. Neither the charge sheet nor the final report has been defined in the Code. The charge sheet 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.

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. The Single Judge as well as the Division Bench rightly refused to interfere with the limited order passed by the Magistrate. The challenge at this stage by the appellants is pre- mature and the High Court rightly rejected their request.




WHETHER AN IO CAN RAISE JURISDICTION POINT AND REFUSE INVESTIGATION REFERRED UNDER 156(3)

FULL JUDGMENT
RASIKLAL DALPATRAM THAKKAR .Vs. STATE OF GUJARAT & ORS. 2010 AIR 715 = 2009 (15 ) SCR 722 = 2010 (1 ) SCC 1 = 2009 (13 ) SCALE 628

The question which arose for consideration in the present appeal was
whether in regard to the order passed under Section 156(3) Cr.P.C., the police authorities empowered under Sub-Section (1) of Section 156 can unilaterally decide not to conduct an investigation on the ground that they had no territorial jurisdiction to do so. Investigating agency cannot decide not to investigate a complaint forwarded to it under s.156(3) on the ground that offence complained of was allegedly committed outside its territorial jurisdiction.

FACTS OF THE CASE:- In the instant case, the stage contemplated under Section 181(4) Cr.P.C. has not yet been reached. Prior to taking cognizance on the complaint filed by the Bank, the Chief Judicial Metropolitan Magistrate, Ahmedabad, had directed an inquiry under Section 156(3) Cr.P.C. A final report was submitted by the Investigating Agency entrusted with the investigation stating that since the alleged transactions had taken place within the territorial limits of the city of Mumbai, no cause of action had arisen in the State of Gujarat and, therefore, the investigation should be transferred to the police agency in Mumbai. Both the trial Court as well as the Bombay High Court correctly interpreted the provisions of Section 156 Cr.P.C. to hold that it was not within the jurisdiction of the Investigating Agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction. A glance at the material before the Magistrate would indicate that the major part of the loan transaction, in fact, took place in the State of Gujarat and that having regard to the provisions of Sub-section (2) of Section 156 Cr.P.C., the proceedings of the investigation could not be questioned on the ground of jurisdiction of the officer to conduct such investigation. It was open to the learned Magistrate to direct an investigation under Section 156(3) Cr.P.C. without taking cognizance on the complaint and where an investigation is undertaken at the instance of the Magistrate a Police Officer empowered under Sub-section (1) of Section 156 is bound, except in
specific and specially exceptional cases, to conduct such an investigation even if he was of the view that he did not have jurisdiction to investigate the matter.


It is the settled law that the complaint made in a criminal case follows the place where the cause arises, but the distinguishing feature in the instant case is that the stage of taking cognizance was yet to arrive. The Investigating Agency was required to place the facts elicited during the investigation before the Court in order to enable the Court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not. Without conducting such an investigation, it was improper on the part of the Investigating Agency to forward its report with the observation that
since the entire cause of action for the alleged offence purportedly arose in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the concerned Police Station in Mumbai. Section 156(3) Cr.P.C. contemplates a stage where the Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of action. In this case, there are materials to show that the appellant had filed his application for loan with the Head Office of the Bank at Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedabad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad. It was not, therefore, desirable on the part of the Investigating Agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the Police Station having jurisdiction to do so.

The Magistrate was fully justified in rejecting the Final Report submitted by the Economic Offences Wing, State CID (Crime) and to order a fresh investigation into the allegations made on behalf of the Bank. The High Court, therefore, did not commit any error in upholding the views expressed by the Trial Court. Section 181(4) Cr.P.C. deals with the Court's powers to inquire or try an offence of criminal misappropriation or of a criminal breach of trust if the same has been committed or any part of the property, which is the subject of the offence, is received or retained within the local jurisdiction of the said Court.

The powers vested in the Investigating Authorities under Sections 156(1) Cr.P.C., did not restrict the jurisdiction of the Investigating Agency to investigate into a complaint even if it did not have territorial jurisdiction to do so. Unlike as in other cases, it was for the Court to decide whether it had jurisdiction to entertain the complaint as and when the entire facts were placed before it.

A police officer in charge of a police station can, without the order of a Magistrate, investigate any cognizable offence which a Court having jurisdiction over such police station can inquire into or try under Chapter III of the Code of Criminal Procedure. Sub-section (2) of Section 156 ensures that once an investigation is commenced under Sub-section (1), the same is not interrupted on the ground that the police officer was not empowered under the Section to investigate. It is in the nature of a "savings clause" in respect of investigations undertaken in respect of cognizable offences. In addition to the powers vested in a Magistrate empowered under Section 190 Cr.P.C. to order an investigation under Sub- section (1) of section 202 Cr.P.C., Sub-section (3) of Section 156 also empowers such Magistrate to order an investigation on a complaint filed before him. Sub-section (4) only indicates that an inquiry or trial of an offence of criminal misappropriation or criminal breach of trust can be conducted by a Court within whose jurisdiction the offence had been committed or any part of the property forming the subject matter of the offence is received or retained or was required to be returned or accounted for by the accused person. The said provisions do not account for a stage contemplated on account of an order made under Section 156(3) Cr.P.C.


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