V.V. Bedarkar, J.
1. In this application the challenge is to a very peculiar practice adopted by the Courts of Magistrates when the Magistrates do not take cognizance of the matter but send it to the police for investigation under Section 156(3) of the Cr.P.C. (hereinafter referred to as 'the Code').
2. Section 156 of the Code confers upon the Police Officer power to investigate cognizable case. It reads:
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 XIII.
(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 mentioned above.
So, the exercise of the power by a Magistrate under Section 156(3) of the Code is dependent on his having been empowered under Section 190 of the Code, which reads:
190. (l) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other then a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into to try.
So, under Section 190 of the Code, the Magistrate is authorised to take direct cognizance upon the three eventualities mentioned in that section. But the question is whether when the learned Magistrate sends the case for investigation to the Police under Section 156(3) of the Code, can it be said to have taken cognizance?
3. In R.R. Chari v. State of Uttar Pradesh : 1951CriLJ775 it has been observed:
Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence.
But further the Supreme Court endorsed some observations of Justice Das Gupta in Superintendent and Remembrancer of Legal Affairs v. Abani Kumar Banerjee : AIR1950Cal437 , wherein it has been specifically observed:.When the Magistrate applies his mind not for the purpose of proceeding under the sub-sequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or....
In R.R. Chari's case (supra), the Supreme Court has further observed that in a case of a cognizable offence, the Magistrate takes cognizance when the police have completed their investigation and come to the Magistrate for the issue of a process. In such a case before proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested by the police without an order of the Magistrate. So, it is very clear that when the matter is sent by the Magistrate for investigation under Section 156(3) of the Code, he has not taken cognizance. Even in spite of that, some how or the other, the matter is kept on board of the Magistrate requiring the attendance of the complainant or the accused on the dates mentioned in the Roznamas even though the matter is pending with the police for investigation. This is certainly a practice which entails undue hardship upon the complainant as well as the accused as they have to remain present even though papers are not before the Magistrate. So, if the complainant is not present sometimes, the' Magistrate dismisses the complaint for absence of the complainant and if the accused is not present, warrant is issued against him for non-attendance in the Court.
4. A grievance is made before me that this practice is nothing but harassment to the litigants, because the Magistrate is never going to consider the matter unless the police have completed the investigation and submitted the report. Under these circumstances, it will always be better for the Magistrate to keep the matter on a sine die file or keep the case pending and issue notices to the parties on receipt of the report of the investigating officer and then to consider on merits what action should be taken; because it is likely that the investigation of the police may go on for months together and the parties would not be in the know as to when the matter would be finally submitted by the police to the learned Magistrate. For such a long period, for the accused in the Court requiring to attend for no purpose would be a futile exercise and also burdening the record and work of the Court.
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7.The practice of keeping such a case alive on the board in the form of miscellaneous case (as this case has been given Miscellaneous Case No. 10 of 1979) just for the sake of receipt of police report is not proper, because it entails undue hardship to the complainant as well as the accused. There is no inquiry or trial before the learned Magistrate wherein the complainant or the accused have to remain present.
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8. Apart from the consideration of the interpretation of the word 'bailbond', I think, when the Magistrate is not seized of the matter before him and when the report is not sent by the police under Section 156(3) of the Code, it is not proper to force the accused to remain present, in default of which a warrant is to be issued.
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