Case Note & Summary
The petitioner, Rajesh Chandmal Varma, filed an application before the Chief Judicial Magistrate, Jalgaon, alleging commission of various cognizable offences by respondent nos. 2 and 3, and prayed for an order under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC) directing the police to investigate. On 25.9.2012, the Magistrate passed an order stating that he needed some clarification from the complainant on the point of the alleged offences and directed the complainant to adduce his evidence at the pre-cognizance stage. Pursuant to this order, the complainant was examined on oath by the Magistrate. Thereafter, the Magistrate passed an order purportedly under Section 156(3) CrPC directing the police to investigate. Respondent nos. 2 and 3 challenged this order by filing a Revision Application in the Court of Sessions. The learned Additional Sessions Judge allowed the revision and set aside the Magistrate's order directing investigation under Section 156(3) CrPC. The sole ground for setting aside the order was that after having examined the complainant on oath, the Magistrate could not have passed an order under Section 156(3) CrPC. The petitioner then filed the present criminal writ petition before the High Court. The High Court examined the issue and held that the view taken by the Additional Sessions Judge was erroneous. The Court observed that the Magistrate had not taken cognizance of the offence and was still at the pre-cognizance stage. The power under Section 156(3) CrPC can be exercised at any stage before taking cognizance. The mere fact that the Magistrate recorded the complainant's evidence does not preclude him from ordering investigation under Section 156(3) CrPC. The High Court, therefore, allowed the writ petition, set aside the order of the Additional Sessions Judge, and restored the Magistrate's order directing investigation under Section 156(3) CrPC.
Headnote
A) Criminal Procedure - Power to order investigation under Section 156(3) CrPC - Pre-cognizance stage - The Magistrate, after receiving a complaint alleging cognizable offences, directed the complainant to adduce evidence at the pre-cognizance stage and recorded his examination on oath. Thereafter, the Magistrate passed an order under Section 156(3) CrPC directing police investigation. The Sessions Court set aside the order solely on the ground that after recording evidence, the Magistrate could not order investigation under Section 156(3) CrPC. The High Court held that the Sessions Court's view was erroneous and that the Magistrate's order was valid. The power under Section 156(3) CrPC can be exercised at any stage before taking cognizance, and the mere recording of the complainant's evidence does not bar the Magistrate from ordering investigation. (Paras 3-4)
Issue of Consideration
Whether a Magistrate, after directing the complainant to adduce evidence at the pre-cognizance stage and recording his examination on oath, can still pass an order under Section 156(3) of the Code of Criminal Procedure, 1973 directing the police to investigate.
Final Decision
The High Court allowed the writ petition, set aside the order of the Additional Sessions Judge, and restored the order of the Magistrate directing investigation under Section 156(3) of the Code of Criminal Procedure, 1973.
Law Points
- Section 156(3) CrPC
- Pre-cognizance stage
- Examination of complainant
- Power to order investigation
- Revision against order under Section 156(3) CrPC
