This revision has been directed against the order dated 30.5.2011 passed by learned Chief Judicial Magistrate, Sonbhadra in Case No. 2647 of 2005 ( Brij Bihari Vs. Gauri Shankar Sawhney ) under Section 364/302/201 I.P.C., Police Station Robertsganj, District Sonbhadra by which the learned Magistrate summoned the revisionist in the abovementioned case.
This revision was put up before this Court on 31.1.2012 as an unlisted case. Even in the revised call no one was present for opposite party no. 2. Learned counsel for the revisionist and the learned A.G.A. were present and they were heard in detail.
The facts of the case are that opposite party no. 2 Brij Bihari Singh moved an application before learned Chief Judicial Magistrate, Sonbhadra under Section 156(3) Cr.P.C. on 4.6.2005 with certain allegations against the revisionist which were under Section 343/346 I.P.C. The said application was disposed of by the learned Magistrate vide his order dated 16.6.2005. He disposed of the said application by an order whereby he treated the same a complaint and directed opposite party no. 2 to depose before him under Section 200 Cr.P.C. and also for further proceedings. Thereafter, on 1.7.2005, opposite party no. 2 Brij Bihari Singh moved another application before the learned Chief Judicial Magistrate under Section 156(3) Cr.P.C. against five persons including the revisionist in respect of the same incident. In this application allegations were under Sections 364, 302/201 I.P.C. The learned Chief Judicial Magistrate called for a report from the police station who vide its report dated 4.7.2005 informed the court that opposite party no. 2 was trying to lodge an F.I.R. on false and frivolous grounds by stating false facts in it. It also indicated that a case against the opposite party no. 2 was registered at P.S. Saiyadraja, District Chandauli. A perusal of the report of the P.S. dated 4.7.2005 indicates that nothing has been mentioned in it whether any case in this regard was registered on the said police station or not ? Thereafter on 11.7.2005 the learned Chief Judicial Magistrate passed an order in respect of the application under Section 156(3) Cr.P.C. dated 1.7.2005. He treated this application as a complaint and registered it as a complaint case and connected it with the previous complaint which was initiated on the application of opposite party no. 2 under Section 156(3) Cr.P.C. dated 4.6.2005. The learned Magistrate further ordered for examination of the complainant, i.e., opposite party no. 2 herein under Section 200 Cr.P.C. On 18.10.2005 the opposite party no. 2 was examined under Section 200 Cr.P.C. On 14.11.2005 P.W. 1 Ram Narayan and P.W. 2 Santosh were examined under Section 202 Cr.P.C. Thereafter, as it appears, some application was moved before the learned Chief Judicial Magistrate by opposite party no. 2 . That application was disposed of on 4.1.2006 and the learned Chief Judicial Magistrate passed an order that further inquiry in the mater shall be conducted by the police of P.S. Robertsganj, apparently under the provisions as contained in Section 202 (1) Cr.P.C. When the order reached the Police Station Robertsganj, the police of the said police station, instead of investigating the matter under Section 202 (1) Cr.P.C., lodged an F.I.R. under Section 154 Cr.P.C. on the basis of the papers sent to it by the learned Chief Judicial Magistrate and started investigation as provided in Chapter XII of Criminal Procedure Code (for short 'the Code'). After completing the investigation, the I.O. of the case submitted a final report under Section 173 Cr.P.C. The learned Magistrate registered the said final report treating the same a police report submitted under Section 173 Cr.P.C. and issued notice to opposite party no. 2, the complainant of the case. The opposite party no. 2 appeared and lodged a protest against the final report. The learned Magistrate after hearing the parties rejected the final report and passed the impugned order whereby he summoned the revisionist alongwith another person namely Satya Narayan Kushwaha and directed them to appear before him in the case under Section 364/302/201 I.P.C. Feeling aggrieved by the said order the present revision has been filed.
In the instant case the learned Magistrate has connected with each other the two complaints, one under Section 343/346 I.P.C. and the other under Section 364/302/201 I.P.C. reference whereof has been given above in this judgement. As mentioned above, thereafter he decided to examine the complainant under Section 200 Cr.P.C. He proceeded further to record two witnesses under Section 202 Cr.P.C. Thereafter he decided to send the matter for further inquiry to the police station. By that time, the two tagged complaints contained allegations under Section 302/364 I.P.C. also. A case, under these two sections, is tribal by the court of sessions only. Therefore, sending the matter for further inquiry to the police was erroneous because the proviso (a) attached to sub-section 1 of Section 202 Cr.P.C. states that no direction for investigation shall be made to a police officer or any other person where it appears to the Magistrate that the offence of the complaint is triable exclusively by the court of sessions. Therefore, this direction was erroneous and illegal.
The learned Magistrate in his order dated 4.1.2006 has referred the case law Bhagat Ram Vs. Surinder Kumar and others 2005 (2) CC SC 951SC The said case has also been reported in the journal having its reference as (2004) 11 SCC 622 ( Bhagat Ram Vs. Surinder Kumar and others). It is a Full Bench ruling given by the Apex Court. I have perused this ruling. It appears that learned Magistrate has misread this case law. This case law does not deal with the proviso attached to sub-section 1 of Section 202 Cr.P.C. The Bhagat Ram's case (supra) lays down the general law of inquiry as given in Section 202 of the Code. The proviso as mentioned above is a specific proviso enacted for those cases which are exclusively triable by a court of sessions. It is an exception to the general rule of inquiry as contained in Chapter XV of the Code. The Bhagat Ram's ruling does not say that if the complaint discloses commission of an offence triable by a court of sessions, even then a Magistrate can send the case for investigation to a police officer or any other person under the provisions of sub-section 1 of Section 202 of the Code. In the instant case, as stated earlier, the complaint was under Section 364/302 I.P.C., therefore, it was not permissible for the Magistrate to send the same for investigation to the police as the same was barred by proviso (a) of sub-section (1) of Section 202 of the Code.
In Section 202 of the Code, two words are occurring which have relevance here. The first one is "inquiry" and the second is "investigation". The word "Inquiry" has been defined in Section 2(g) and "investigation" under Section 2(h) of the Code which are as follows :
"2(g) -"inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;
2(h) - "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;"
The word "inquiry" must be distinguished from an "investigation" under Chaper 12. The word "inquiry" must be read in the same sense as defined in Section 2(g). An inquiry is conducted by a Magistrate or the court whereas the investigation is by a police officer or any person other than a Magistrate or court. The object of an inquiry is to determine the truth or falsity of certain facts in order to take further action thereon, while the object of an investigation is to collect evidence. An inquiry does not merely mean an inquiry into an offence but extends to matters which are not offences, for example the proceedings under Section 116 of the Code. A few more examples of inquiry may include an inquiry under Section 133 Cr.P.C., 144 Cr.P.C., 145 Cr.P.C. and 446 Cr.P.C. Further the word inquiry includes an inquiry under Section 202 Cr.P.C. with a view to find out the truth or falsity of a complaint before issuing process against the accused. The definition of inquiry would be wide enough to include an inquiry by a court seized by a complaint under Chapter XV.
The definition of term investigation is not exhaustive. In para 115 of the case law reported in AIR 1994 SC 1775 (Directorate of Enforcement Vs. Deepak Mahajan and another), the Apex Court has said that the word "investigation" cannot be limited only to police investigation but on the other hand, the said word is with wider connotation and flexible so as to include the investigation carried on by any agency whether he be a police officer or empowered or authorised officer or a person not being a police officer under the direction of a Magistrate to make an investigation vested with the power of investigation.
The investigation in its ambit and sweep includes entry, search and seizure and investigation by police officer is permissible under various special Acts also. The word should be read and understood in the light, not only of powers but also of restrictions placed on police officer in the use and exercise of such power. In fact, the investigation includes all the proceedings for collection of evidence conducted by police officer or any other person other than a Magistrate. A Magistrate submitting an inquiry report under Section 202 Cr.P.C. could not be said to have investigated into the case but that part is of inquiry as mentioned above. The Full Bench of this Court in 1976 Crl. L. J. 274 ( State Vs. Sant Prakash and others) has said that "the main purpose of investigation is collection of evidence conducted by a police officer or the person enjoying the powers of police officer or by any person authorised by a Magistrate in his behalf or the person in authority. It does not make any difference if the designation or the nomenclature of the officer or the authority authorising such officer is different. What is material is that the person must be taking proceedings for the collection of evidence."
Thus while distinguishing between the inquiry and investigation it may be borne in mind that the object of an inquiry is to determine the truth or falsity of certain facts in order to take further action thereon, while the object of an investigation is to collect evidence.
In AIR 2006 SC 705 (Mohd. Yousuf Vs. Smt. Afaq Jahan and another) the Apex Court in paragraphs 6, 7, 8, 9 and 10 has said the following :
"6. Section 156 falling within Chapter XII, deals with powers of police officers to investigate cognizable offences. Investigation envisaged in Section 202 contained in Chapter XV is different from the investigation contemplated under Section 156 of the Code.
7. Chapter XII of the Code contains provisions relating to "information to the police and their powers to investigate", whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e. complaint filed by a person. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences. True, Section 202, which falls under Chapter XV, also refers to the power of a Magistrate to "direct an investigation by a police officer". But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code.
8. The various steps to be adopted for investigation under Section 156 of the Code have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.
9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding".
10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him."
An illegality has also been committed on the part of the police of Police Station Robertsganj. The matter was sent to the police for its investigation under Section 202 (1) Cr.P.C. and it was not sent to it for registration of an F.I.R. under Section 154 Cr.P.C. Instead of investigating the matter, as directed by the learned Chief Judicial Magistrate , the police of the said police station, due to reasons best known to it, registered an F.I.R. and after investigating the same a final report was submitted to the learned Magistrate apparently under Section 173 Cr.P.C.
After receiving the said final report, the Magistrate committed another illegality. He forgot that he had referred the matter to the police for further inquiry under Section 202 Cr.P.C. and he treated that illegal investigation report submitted by the police as a report under Section 173 Cr.P.C. and issued notice to opposite party no. 2, the complainant of the two cases. At that stage the learned Chief Judicial Magistrate should have sent back the matter to the police indicating it that the police has over-stepped its powers and failed to discharge its legal duties because the police was directed to further investigate the matter under Section 202(1) Cr.P.C. and not to lodge an F.I.R. and investigate the same.
The last illegality committed by the learned Magistrate is that after hearing the protest petition he passed the summoning order on the basis of certain facts which had come before him from various sources including the facts contained in the case diary of an illegal investigation and not on the basis of the matter came before him under Sections 200 and 202 Cr.P.C.
From perusal of the entire record, I am of the view that the learned Magistrate has created a hotchpotch situation in a confusing manner and passed the impugned order which is totally illegal and cannot be sustained and should be set aside. From perusal of the entire matter it appears that there may be a possibility of involvement of some police personnel of the concerned police station in disappearance of the father of opposite party no. 2. Therefore, it appears necessary that the matter should be remanded back to the learned Chief Judicial Magistrate to proceed with the matter afresh keeping in view the various provisions as contained in the Code including those under Section 200 and 202 Cr.P.C. He will not refer the matter to the police for further investigation under Section 202(1) Cr.P.C.
As a consequence the revision is allowed. The order impugned dated 30.5.2011 is set aside. The matter is remanded back to the learned Chief Judicial Magistrate, Sonbhadra who will proceed further in accordance with law. All the witnesses may be produced by the complainant/opposite party no. 2 before him under Section 202 Cr.P.C. He may also take into consideration the relevant papers and documents and thereafter he can pass order afresh in accordance with law.
Order Date :- 24.2.2012 S.B.