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Bombay High CourtIndian Cases

Kunwarjee Jivraj Lodhaya And Ors. vs Bhagchand Motilal Raka And Anr. on 15 November 1991

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Bombay High Court
Kunwarjee Jivraj Lodhaya And Ors. vs Bhagchand Motilal Raka And Anr. on 15 November, 1991
Equivalent citations: 1992(2)BOMCR110, (1992)94BOMLR900

N.P. Chapalgaonker, J.

1. When a Magistrate, dealing with a criminal complaint, takes cognizance thereof, postpones issuance of the process and directs a Police Officer to investigate and submit a report under section 202(1) of the Code of Criminal Procedure, 1973, whether it is proper on his part to issue process at a later date on the same material before receipt of the report called for? This is precisely the question raised in this Criminal Application.

2. Bhagchand Motilal Raka filed a complaint in the Court of Judicial Magistrate, First Class at Pachora bearing Criminal Case No. 185 of 1990 alleging that the Chairman and 4 other Directors and a former servant of the Peoples Co-operative Bank Limited, Pachora have committed offence punishable under sections 406 and 408 read with section 34 of the Indian Penal Code. It is the allegation of the complainant that some cheques, which did not contain any signature of the account holders, totally worth Rs. 11,39,632/- were encashed by the bank officials and thus, have misappropriated by committing offence of criminal breach of trust. It is alleged by the complainant that this sum was withdrawn by the bank officials without the consent of the concerned account holder. This complaint came to be filed on 1-11-1990. The learned Magistrate thereupon proceeded to examine the complainant and the complainant’s testimony was recorded and thereafter he passed the following order —–

“Call report under section 202 of Cr.P.C. from P.S.O. Pachora and Jamner.
J.M.F.C., Pachora”.
It is not in dispute that the report so called was not received by the learned Magistrate and in its absence, on 16-11-1990 learned Magistrate was pleased to pass a further order to the following effect –

“Read complaint and Verification of the complainant. Heard Shri Yeole, advocate for the complainant. There is prima facie case against the accused persons. Issue process against accused No. 1 to 6 under section 406, 408 r/w. section 34 of I.P.C.
J.M.F.C., Pachora.
3. This Criminal Application challenges the issue of process and prays for quashing of the said order dated 16-11-90 in Cri. Case No. 185 of 90.

4. I have heard Shri S.N. Loya, learned Counsel for the petitioner and Shri S.C. Bora, learned Counsel for the respondent No. 1. Shri V.G. Gangapurwala, learned Additional Public Prosecutor has assisted the Court by representing the respondent No. 2.

5. When a Magistrate receives a complaint and he chooses to take cognizance thereof, alternative available to him are —-

1. He can peruse complaint and if satisfied that there are sufficient grounds for proceedings, he can straight way issue process to the accused. But before he does so, he must comply with the requirements of section 200 and record evidence of the complainant or his witnesses.

2. If sufficient grounds are not there, he may dismiss the complaint.

3. The Magistrate can postpone the issue of the process and direct enquiry by himself or by any other person or investigation by the police.

The object of investigation under section 202 is to assist the Magistrate in arriving at a decision whether there are reasonable grounds to issue process against the accused. The investigation is designed to confirm or remove hesitation of the Magistrate in issuing the process. If the Magistrate thinks that the material which is supplied by the complainant in the form of allegations in the complaint and oral testimony recorded by the learned Magistrate are sufficient to issue the process, then there is no purpose of order of investigation by the police under section 202. The very fact that the learned Magistrate thought it fit that such a report is necessary speaks that be concluded that the material brought him by the complainant is not sufficient to issue the process. Therefore, unless the report of this investigation by the Police Officer as directed by the learned magistrate is received, there is no occasion for the Magistrate to pass further order to issue process in the absence of any further material before him. An order made under section 202(1) of the Code of Criminal Procedure is a judicial order to be made after due application of mind. There is no occasion for reviewing its order and there is no justification for it.

6. Division Bench of Calcutta High Court in Krishna Bala Dasi v. Niroda Bala Dasi , was pleased to set aside the order of issue of summons to the accused noticing that an investigation under section 202 was directed but without waiting for the report thereof, learned Magistrate was pleased to issue summons by another order. Same view was taken by the learned Single Judge of the Patna High Court in the case of Mangal Das and others v. Mst. Rabia, Opposite Party . Learned Judge was pleased to observe —-

“It is incontrovertible that where the Magistrate after the perusal of the complaint and the solemn affirmation postpones the issue of processes for compelling the attendance of the persons complained against and directs an enquiry or investigation to be made by another Magistrate subordinate to him or by a Police officer or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint, he should not summon the accused persons unless he has considered the report of the enquiring officer, for the simple reason that there is no material before him to dispel the doubt in his mind which initially prompted him to order enquiry before summoning them”.
7. Shri S.C. Bora, learned Counsel for the respondent – complainant relied on a judgment of the Supreme Court in the case of M/s. India Carat Pvt. Ltd. v. State of Karnataka and another, , to substantiate his submission that the report of the Police Officer cannot circumscribe discretion of the learned Magistrate. Learned Magistrate is to be guided by his own judgment on the existence of the facts as are brought before him. Learned Judges of the Supreme Court have observed thus—

“On receiving the police report the Magistrate may take cognizance of the offence under section 190(1)(b) and issue process straight way to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police there from. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the Police Officer as to whether an offence has been made out or not”.
It is true that the conclusion reached by the Investigating Officer in investigation direct under section 202 will not be binding on the Judicial Magistrate and the Judicial Magistrate trying the offence may, in his discretion, issue process by passing the conclusion drawn by the Investigation Officer if he feels that some facts disclosed in the investigation supports the prosecution case. But, in any way, if a report is called for, the magistrate has to wait for the report and then exercise his jurisdiction under section 204.

8. Order dated 16-11-1990 passed by the learned Judicial Magistrate, First Class, Pachora in Criminal Case No. 185 of 1990, Bhagchand Motialal Raka v. The Peoples Co-op. Bank Ltd., therefore, will have to be quashed and the matter will have to be remitted back to the learned Magistrate for considering the question of issue of process afresh after the report of the Police Officer under section 202 of the Code of Criminal Procedure is received. Police Station Officer, Pachora and Jamner is directed to submit report forthwith within a period of four weeks from today in case report is not already submitted and the learned Magistrate shall thereafter consider the question afresh. It is made clear that no opinion about the merits of the case has been expressed by this Court in this judgement.

9. Criminal Application is allowed. Rule is made absolute in the above terms.