ORDER G, Mehrotra, J.
2. The accused petitioners are alleged to be tenants of Rameshwar Lal Bazaz opposite party No. 2 in respect of the ground floor and first floor premises of holding No. 56 of Ward No. 6 of the Gauhati Municipal Board where they are running a Lozens factory and are also residing. Some dispute arose between the landlord and the petitioner-tenant. The landlord filed an ejectment suit against the petitioners Nos. 1 and 3 being Title Suit No. 21 of 1958.
According to the petitioners, opposite party got the first floor constructed with brick walls and corrugated iron sheets in pursuance of compromise) in proceedings under Section 145, Criminal Procedure Code, and executed a Hath-chitha in favour of the petitioners on 24th May, 1957 fixing a monthly rent of Rs. 125/- for the first floor. The opposite party No. 2 started criminal cases against the petitioners one being C. R. Case No. 1403 of 1957 started on the 3rd of August, 1957 under Sections 147/323/342/448, Indian Penal Code on the allegation that the petitioners had forcibly trespassed into the first floor premises.
Another case being Miscellaneous Case No. 232 of 1957 was also started under Section 145, Criminal P. C. The petitioners have also filed Title Suit No. 78 of 1957 for specific performance of the contract and for executing a formal deed of tenancy. The case under Section 145, Cr. P. C. was disposed of on the 9th of April, 1958. On the 3rd August, 1957, as indicated above, a formal complaint was filed by the opposite party No. 2 under Sections 147, 323, 342 and 448, Indian Penal Code before the Additional District Magistrate, Kamrup, who on the same date transferred the case to Sri Charles Thomas, Magistrate, First Class, Gauhati for disposal.
Sri Thomas did not examine the complaint on oath and took no steps under Chapter XVI of the Cr. P. C. and sent the complaint to the police with a direction to investigate and submit a charge-sheet, if warranted, by 23rd of August, 1957 under Section 156(3), Criminal Procedure Code. On the 23rd August, 1957, no charge-sheet was submitted, but on the 10th October, 1957 the police submitted a charge-sheet under Section 448, Indian Penal Code. On the 25th November, 1957 the Magistrate framed charge against the petitioner under Section 448, Indian Penal Code on perusal of police papers.
After the charge had been framed the petitioners applied before the Magistrate for quashing the proceedings on the ground that he had no jurisdiction to proceed in the manner he did in the case. The trial Magistrate rejected the petition. Thereupon the Additional District Magistrate was moved in revision who rejected the revision petition on the 8th of December, 1958. Thereupon the present petition was filed in this Court on the 27th February, 1959.
3. The counsel for the petitioner has challenged the validity of the proceedings on four grounds. Firstly he has urged that the complaint having been filed by the opposite party in the court of the Additional District Magistrate when he transferred the case to Sri Thomas, he acted under Section 192 of the Criminal Procedure Code, and as such, he had taken cognizance of the case and thereafter the transferee Magistrate had no jurisdiction to refer the matter under Section 356(3), Cr. P. C., to the police for investigation and submitting a charge-sheet.
The only manner in which the complaint could be disposed of was by following the procedure laid down under Chapter XVI of the Cr. P. C. and not by following what the petitioner characterises as a hybrid procedure of requiring the police to investigate the complaint under Section 156(3), Cr. P. C. The proceedings thus initiated on the charge-sheet so submitted by the police was without jurisdiction. Secondly it is contended that the case having been started on a private complaint and being a summons case, Section 251A, Criminal Procedure Code was not attracted and the trial Magistrate was not justified in framing charge without taking any evidence. Thirdly it was contended that Section 156(3), Cr. P. C. is an excessive delegation and is consequently ultra vires. Lastly it was urged that the proceedings being of a civil nature it should be quashed, and it will be an abuse of the process of the court if it is to go on, and it should be quashed under Section 561A of the Cr. P. C.
4. In support of the first contention the learned counsel for the petitioners argued that when the Additional District Magistrate transferred the complaint to Mr. Thomas, he had taken cognizance of the case and thereafter Mr. Thomas could only act under Section 202 of the Criminal Procedure Code and postpone the issue of process and refer the matter to the police officer for investigation and report, Re could not, while purporting to act under Section 202, Cr. P. C., act under Section 156(3) and send the complaint to the police to treat it as a first information report and submit a charge-sheet. In the present case the argument is that this hybrid procedure was adopted by the Magistrate and consequently the subsequent proceedings were illegal.
Section 190, Criminal Procedure Code provides for taking cognizance of the offence and Clause (a) of the said section deals with cognizance being taken on receipt of a complaint of facts which constitute such offence. Section 192 gives power to the District Magistrate to transfer any case of which he has taken cognizance for inquiry or trial to any Magistrate subordinate to him. Section 200 provides that a Magistrate taking cognizance of an offence on complaint shall at once examine the complaint upon oath. Proviso (a) to Section 200, however, lays down that when the complaint is made in writing, a Magistrate is not required to examine the complaint before transferring the case under Section 192. Section 202(1) then provides that "any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under Section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any 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."
On receipt of the investigation report the complaint can either be dismissed or process issued. Section 156 which falls under Chapter XIV provides as follows:
"156(1) Any officer in charge of a police-station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.
(2) No proceeding of a police-officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate, (3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned."
5. Reliance has been placed on the case of In re Arula Kotiah, reported in 12 Cri LJ 463 (Mad). In this case on the presentation of a criminal complaint the Magistrate recorded the statement of the complainant and thereafter referred it to the police and on the receipt of the police report dismissed the case. The order was challenged and it was set aside on the ground that the dismissal was not proper under Section 203, Cr. P. C. It was held by the Madras High Court that it was the duty of a Magistrate, on presentation of a complaint of any offence, to immediately proceed in the manner laid down in Chapter XVI of the Criminal Procedure Code (sections 200 et seq).
The third clause of Section 156 is not intended to provide an alternative procedure to that laid down in section 200 et seq. The case was sent back for disposal according to law. The next case referred to is A. C. Samaddar v. Suresh Ch. Jana, reported in AIR 1949 Cal 197. In this case the complaint was filed against two persons under Section 420, Indian Penal Code. The Magistrate without examining the complainant passed an order purporting to be one under Section 156(3) directing the police to treat the complaint as first information report and start investigation.
The police made a report to the Sub-Divisional Magistrate. The case was then transferred to another Sub-Deputy Magistrate by the Additional District Magistrate and it was argued before the Magistrate that the entire proceeding was illegal as the Magistrate had not examined the complainant to accordance with the provisions of Section 200, Cr. P. C. It was further urged that there could not be an order under Section 156(3), Cr. P. C., where cognizance had been taken on the complaint. The Magistrate held that the order referring the matter to the police for investigation was invalid and therefore all the subsequent proceedings became void. He accordingly discharged the petitioners.
A revision was filed before the Additional District Magistrate who held that on receipt of a complaint the Magistrate, may act either under Section 200 and examine the complainant on oath or he may act under Section 156(3) and direct the police to investigate. He set aside the order of discharge and directed further enquiry by some Magistrate. A revision was filed in the High Court against this order and it was held that on a complaint being filed, the Magistrate was bound to take cognizance of the offence disclosed by the complainant and the Magistrate was thus bound to act under Section 200, Cr. P. C.
The failure to examine the complainant on oath in accordance with Section 200, Cr. P. C. rendered the subsequent proceedings invalid. The Magistrate upon taking cognizance of an offence upon a complaint cannot refer the matter to the police for investigation and submission of a report under Section 156(3). Section 156(3) is not intended to provide an alternate procedure to that laid down in Section 200. The High Court thus held that the proceedings were illegal, but the order of discharge passed by the Magistrate was not upheld and a direction was issued to the Magistrate to examine the complainant on oath and follow the provisions of Section 200.
The next case relied upon is Emperor v. Bikha Moti, reported in AIR 1938 Sind 113 (FB). The point which was canvassed in that case was whether the police has power to investigate and act under Section 156, in cases where complaint has been filed. It was held by a Full Bench of the Sind High Court that "there is nothing in Section 202 which debars the police from exercising their powers under Section 54 and arresting the accused, merely because the Magistrate had referred a case for investigation by them under Section. 202. But when a Magistrate has referred a complaint of an offence to the police for investigation under Section 202, it is not competent to the police to investigate the offense complained of independently of the Magistrate's directions and to send up the accused for trial for the offence complained of upon a charge sheet."
6. The view taken by the Full Bench was that the independent power of the police to arrest an individual was not taken away by a proceeding under Section 202. But where the matter has been sent to the police for investigation under Section 202, the police has to proceed in accordance with the provisions of the said section and send its report to the Magistrate who has to act in accordance with law. But the police does not get any power under Section 156(3) to send a challan to the Magistrate.
7. The next case referred to is Akshok Kumar v. Jogesh Chandra, reported in AIR 1956 Cal 76. In that case the complaint had been filed against the accused under Sections 147, 354, 323 and 380, Indian Penal Code. Without examining the complainant, the complaint was directed to police for investigation and report. On investigation the police reported the case to be false. Thereupon the complainant filed a 'naraji' petition and the Magistrate ordered a judicial enquiry without, examining the complainant. Against that order the matter came up before the High Court and it was observed that "when a petition of complaint is filed before a Magistrate, he has two alternative courses open to him and can follow either of them at his option. He may examine the complainant on oath and proceed under Chapter 16 or he may simply direct an investigation by the police under Section 156(3) and proceed under Chapter 14. The order directing the complaint to police for investigation under Section 156(3) was thus valid."
Referring to the case of Pulin Behari Ghosh v. The King, reported in 53 Cal WN 653, it was observed in the above case that in that case the order passed by the Magistrate was called hybrid order because the Magistrate had, before directing investigation by the police, actually examined the complainant on oath. Therefore, on the facts of that case he had already proceeded under Chapter 16 before resorting to Chapter 14. Reliance was however, placed by the counsel for the applicant on the following passage in the above judgment at page 77 of the report:--
"I am free to confess, however, with the greatest respect to the learned Judges who have held to the contrary, that the view taken in the first of the cases cited, namely AIR 1949 Cal 197 (A) appears to me to be more in conformity with the provisions of the Code and more readily adjustable to the scheme of the procedure there prescribed. Section 156 (3) refers to "any Magistrate empowered under Section 190 and Magistrates empowered under Section 190 are Magistrates empowered to take cognizance of offences.
Such cognizance can be taken in one or other of three ways specified in the section. The first is upon receiving a complaint, the second is upon a report in writing made by a Police Officer and the third is upon information received from any person other than a Police Officer or upon the Magistrate's own knowledge or suspicion.
It is true that the language of Section 156(3) is general and speaks of "any Magistrate empowered under Section 190", but it seems to me that when the sub-section says that any such Magistrate may order an investigation of the kind provided for by the section, it can have reference only to Clause (c) of Section 190 that is to say, to cases where the Magistrates may take cognizance upon information received from persons other than police officers or upon his own knowledge or suspicion.
How a Magistrate will proceed, if there is a petition of complaint before him, has been specifically provided for in the Code and I must take the liberty of doubting whether it is at all intended that even when a petition of complaint is filed before a Magistrate, he can disregard the procedure when the Code enjoins for cases where there is a petition of complaint and proceed in another way."
8. The decision, however, in this case did not rest on that point, and it cannot be said that this case is an authority for the proposition that in no case where a complaint has been filed the Magistrate cannot direct an investigation by the police under Section 156(3).
9. The learned counsel for the State has relied on the case--Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee, reported in AIR 1950 Cal 437. It was held in this case that when a petition of complaint is filed before a Magistrate, the Magistrate may take cognizance under Section 190(1)(a) and proceed to examine the complainant under Section 200, and thereafter proceed according to the subsequent sections of the Code, or in the alternative, may not take cognizance and may instead send it to the police for investigation under the provisions of Section 156(3). It was held in this case that when a complaint has been filed the Magistrate is not bound to take cognizance and proceed under Chapter 16.
The learned Judge in deciding this case preferred to agree with the two earlier decisions of the same Court, Dr. Robiul Hussain Molla v. K.K. Ram, reported in 82 Cal LJ 222 and Pulin Behari Ghosh v. The King, reported in 53 Cal WN 653. What is the meaning of the words "taking cognizance" has also been laid down in this case and the observations were approved in a later decision of the Supreme Court, R.R. Chari v. State of Uttar Pradesh, reported in AIR 1951 SC 207. I will have to refer however to this case later when dealing with the question of taking cognizance in the present case. Reliance was also placed on the case of Rashid Ahmad v. Emperor, reported in AIR 1932 Lah 579. This case is an authority for the proposition that the powers given to the police by Section 156(1) are not affected when an order to investigate under Section 202 is made.
It is, however, observed in this case that though it is not open to the Magistrate when a complaint has been made to him, to direct the police to submit a charge-sheet in the same case, it is open to the police to do so, if they think proper. Reference was then made to the case of King-Emperor v. Bhola Bhagat, reported in AIR 1923 Pat 547. In this case a complaint was filed on which the Sub-Divisional Magistrate passed the following order:--
"Police to take cognizance under Section 379, I. P. C. make quick enquiry and report by 8-2-1922."
10. The Sub-Inspector of Araria Thana went to the place of occurrence and after enquiry arrested some of the accused and while he was bringing these accused to the Police Station, a mob of persons forcibly rescued the prisoners and assaulted two constables who attempted to resist. The accused persons were then arrested and put up on trial under Sections 352, 426 and 379, Indian Penal Code and they were found guilty and sentenced. A case under Section 224, Indian Penal Code was, however, later on started against the persons who had rescued the accused. One of the points taken in the case on behalf of the defence was that the arrest of the accused was illegal inasmuch as there being a complaint the police could not exercise its powers under Section 156, Cr. P. C. and arrest the accused.
This contention was repelled. Reference was made to the case of Asha Das v. The State, reported in AIR 1953 Assam 1. In this case a complaint was filed under Section 307, Indian Penal Code. The Magistrate after examining the complainant passed an order directing the Officer-in-charge of the Police Station for registering a case under appropriate section and to submit report after investigation. The investigation was held and a charge-sheet was submitted in Court. The accused were then produced and after recording the evidence charges were framed and some of the accused were found guilty under Section 323, Indian Penal Code. A recommendation was made by the Sessions Judge to this Court for quashing the conviction.
The contention raised by the accused before this Court was that as cognizance had been taken in the case, the Magistrate could not direct the police to make an inquiry and submit a charge-sheet. The proceedings, therefore, subsequent to the charge-sheet were illegal and the conviction was liable to be set aside. Two questions were considered by the Bench; firstly whether cognizance could be said to have been taken in that case, and secondly even if cognizance had been taken whether the entire proceedings were illegal or were only irregular, and the irregularity committed could be cured under Section 529, Cr. P. C.
Mr. Justice Ram Labhaya held that the cognizance had been taken in that case and the procedure adopted by the Magistrate was illegal, but he held that the irregularities were cured under Section 529 of the Code of Criminal Procedure and the recommendation was not accepted. Mr. Justice Deka held that no cognizance had been taken in that case and concurred in the order proposed.
11. Mr. Justice Ram Labhaya further held that there was nothing in Section 202, Cr. P. C., requiring the Police to investigate a cognizable case, which deprives the Police Officer concerned of his independent powers of investigation under Section 156(3) of the Code. The Magistrate, however, after having taken cognizance of the offence and even after taking action under Section 200, Cr. P. C., cannot order or direct the Police to submit a charge-sheet after investigation under Section 156(3), Cr. P. C.
The Magistrate may order an investigation by the Police under Section 156(3) before taking cognizance of the offence on a complaint under Chapter XVI of the Code. Once he has taken cognizance he can take only such action as he is permitted to take under Section 200 of the Code. On taking cognizance, he must examine the complainant at once and under Section 202 he may issue a process for the attendance of the accused or may postpone the issue of the process and may himself make an enquiry or if he is a Magistrate of the first or second class, may order a subordinate Magistrate or a Police Officer or any other person to make an enquiry or investigation into the allegations made in the complaint.
At this stage he cannot direct the Police to proceed under Section 156(3) of the Code. On the fact5 of that case, he however was of opinion that the Magistrate having examined the complainant had taken cognizance of the offence and thus had no jurisdiction to refer the matter to the Police for investigation under Section 156(3) of the Code. The subsequent proceedings, according to him, were illegal. He, however, held that the trial was not vitiated on account of this irregularity and, relying upon Section 529 (e), Cr. P. C., he held that the trial was valid. Mr. Justice Deka, however, was of the opinion that by merely examining the complainant, the Magistrate had not taken cognizance of the case. Dealing with the Calcutta cases, he observes- as follows:--
"If we take the Calcutta view as such, it comes to this that the Magistrate would be perfectly justified in sending the case to the Police for investigation and report if he did not examine the complainant. Let us see if the examination of the complainant under Section 200 makes any perceptible difference and involves a breach of procedure which is likely to result in the failure of justice, or whether it is such an irregularity as is likely to cause prejudice to either of the parties. In my view, it is not. There is nothing in the Code of Criminal Procedure itself which debars a Magistrate from sending a complaint case relating to a cognizable offence to the Police for investigation and report under Section 156(3), Cr. P. C. It is only a question of interpretation.
If we take it that the recording of the statement of the complainant under Section 200, Criminal P. C., amounts to a cognizance of the offence, the Magistrate might be said to have deprived himself of the jurisdiction of trying the case himself if he sends the matter to the Police for submission of a charge-sheet."
In his view, the proceeding had not commenced before the Magistrate when he sent the complaint to the Police for investigation. The proceeding commenced only when action was taken under Section 204, Cr. P. C., against the accused persons on receipt of the charge-sheet, and consequently the question of surrendering of jurisdiction did not arise. From this judgment, it is clear that Mr. Justice Deka was- definitely of opinion that the mere fact that a complaint has been filed does not take away the jurisdiction of the Magistrate to act under Section 156(3) of the Code and send for the Police report. Mere examination of the complainant does not amount to taking cognizance of a case.
Mr. Justice Ram Labhaya, however, was of the contrary opinion on this part of the case; but when cognizance had been taken, the trial was not held to be invalid by him also. The present case is sought to be distinguished from that case by Mr. Nath on the ground that in the present case the complaint was transferred by the Additional District Magistrate under Section 192, Cr. P. C., which presupposes taking of cognizance by the Magistrate, and once cognizance had been taken, according to the opinion of this Court in the case referred to above, no action could be taken under Section 156(3) of the Code.
There are two answers to this contention. Firstly, Mr. Justice Ram Labhaya's view in the earlier case was based on the fact that the complainant had been examined by the Magistrate. In the present case, on the same day the complaint was filed it was transferred by the Additional District Magistrate for disposal to Charles Thomas. There was no examination of the complainant. It may be that under some order of the District Magistrate or rules of procedure, complaints of a particular type, when filed before the Additional District Magistrate, were transferred to the other Magistrate. But that by itself does not necessarily mean that cognizance had been taken by the Additional District Magistrate, and that the transfer was- necessarily under Section 192, Cr. P. C.
Although the words 'taking cognizance' have not been defined in the Code of Criminal Procedure, the following passage in the judgment of Das Gupta L, reported in AIR 1950 Cal 437 was approved of by the Supreme Court in the case in AIR 1951 SC 207, at page 210:--
"What is taking cognizance has not been defined in the Crl. P. C., and I have no desire to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under section 190(1)(a), Crl. P. C., he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chapter proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies, his mind not for the purpose of proceeding under the subsequent sections of this Chapter but for taking action of some other kind, e. g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."
l n the present case, there is no indication that the Additional District Magistrate, when he transferred the complaint to Mr. Charles Thomas for necessary action, did even apply his mind to the contents of the petition, much less with a view to take action under Chapter XVI of the Code of Criminal Procedure. It cannot, therefore, be said that cognizance had been taken in the present case so as to deprive the Magistrate of his jurisdiction to act under Section 156(3) of the Code.
Even apart from this position, it cannot be said that the Magistrate, when he acted under Section 251(A), Cr. P. C., and framed charge on the Police challan being sent to him, his action was illegal such as to justify quashing of the proceedings by this Court. No particular prejudice has been caused to the petitioners by merely framing of the charge. According to the petitioners, it was a summons case, and if that is so, no charge need be framed in such a case. If the Magistrate, in these circumstances, frames a charge, it cannot be said that the order is illegal and should be quashed.
Processes have been issued against the petitioners; charges have been framed and they will have full opportunity to defend their case. If a trial held in those circumstances has been held by this Court not to be invalid a fortiori, that reasoning applies with greater force to the present case where only a charge has been framed. The other contention is that assuming that the Magistrate has an independent jurisdiction to ask for Police report under Section 156(3), none-the-less when a complaint has been filed, that could only be dealt with under the provisions of Chapter XVI, and as no such action has been taken, the trial cannot proceed.
The petitioners have challenged the order of the Magistrate framing a charge, and unless it can be said that the charge-sheet submitted by the Police was without jurisdiction, the order framing the charge cannot be set aside even though the complaint may still be pending. Appropriate action may be taken by the Magistrate on the request of the petitioners on that complaint, but that will be no ground for setting aside the order of the Magistrate framing charges against the petitioners. I am of opinion that as no cognizance in the present case had been taken by the Magistrate, even though there was a complaint against the petitioners, the Magistrate had jurisdiction to ask for investigation by the Police under Section 156(3), Cr. P. C., and the trial on the basis of the charge-sheet submitted by the Police, cannot be held to be illegal. Before taking action under Chapter XVI of the Code, the Magistrate had preferred to act under Section 156(3), for which there was no inhibition in the Criminal Procedure Code.
12. The second point urged is that the charge was framed without examining evidence and only on the records before the Magistrate and, as such, it is invalid. There is no substance in it. Section 251A, Cr. P. C., gives ample power to the Magistrate to frame charges on a perusal of the papers and without examining the witnesses. The 'argument, in fact, was based on the assumption that Section 251A did not apply inasmuch as the case was started on a complaint, and not on the Police challan. But, as I have already held, the case was rightly started on the Police challan, and the provisions of Section 251A, Cr. P. C., were thus attracted.
13. The third line of argument that Section 156(3) of the Code is discriminatory, was not seriously argued before me, and I do not see any substance in it either. Section 156(3) cannot be said to be violative of Article 14 of the Constitution. The last argument that the case is of civil nature, is available to the petitioners before the Magistrate and at this stage the proceedings cannot be quashed on that ground.
14. In the result, therefore, there is no force in this petition and it is accordingly rejected. The Rule is discharged.