1. This criminal miscellaneous, petition arises out of the following circumstances. One Deivasigamani filed a complaint against eleven accused persons in the court of the sub-divisional magistrate Villupuram, alleging that they committed offences punishable under. Sections 506 (2), 392, 647 (evidently a mistake for 447) Indian Penal Code. This list included offences which are cognisable by the police, and thereupon the learned sub-divisional magistrate made an endorsement
The offences complained, of are cognisable. Forwarded to the inspector of police, Tindivanara Town, for investigation and report Under Section 156(3) CrIPC
The police investigated the case and filed a charge-sheet in the court of the sub-magistrate, Tindivanam, for offences Under Section 447 IPC for criminal trespass and 379 IPC for theft.
2. The accused raised a preliminary objection before the sub-magistrate, Tindivanam, alleging that the sub-divisional magistrate acted illegally in forwarding the complaint to the police Under Section 156 (3) CrIPC that if he wanted a preliminary inquiry by the police he should have acted Under Section 202 CrIPC that consequently the further action by the police was illegal, and that therefore the accused should be discharged Under Section 251-A (2) CrIPC The Sub-magistrate held that the procedure was legal and dismissed the preliminary objection. The Accused filed a revision petition Under Section 435 and 436 CrIPC before the District Magistrate, South Arcot at Cuddalore, who declined to interfere with the above order. Hence this criminal miscellaneous petition is filed in this Court.
3. Mr. C. K. Venkatanarasimhan, the learned advocate appearing for the petitioners before me, and who were accused in the lower court, urged that in the circumstances of the complaint made before the sub-divisional Magistrate the sub-divisional Magistrate acted illegally in forwarding the complaint for investigation to the inspector of police Under Section 156 (3) of the Criminal. Procedure Code. In the alternative he contended, that in any event it was not a proper course to adopt in the circumstances of the case.
4. Taking the first point the learned Counsel for the petitioners relied upon a decision of the court in In re : Arula Kotiah, 10 Mad LT 120, which lays down the view :
That on the presentation of a criminal complaint a Magistrate has no option but to take cognizance of it in the manner provided by Chapter XVI CrIPC He cannot refer it to the police for investigation tinder Section 156 (3) CrIPC
5. This view of the law cannot prevail any longer in view of the decision of the Supreme Court in Gopaldas Sindhi v. State of Assam 1961 Mad WN Cr. 39 : A.I.R. 1961 SC 9S6 , which the learned Counsel for the petitioners was fair enough to refer before me. That decision followed an earlier decision of the Supreme Court in R. R. Chari v. State of Uttar Pradesh : 1951CriLJ775 , which in turn approved the decision of the Calcutta High Court in Superintendent and Remembrancer of legal affairs, West Bengal v. Abani Kumar Banerji : AIR1950Cal437 . The gist of the latest decision of the Supreme Court can be put down as follows :
When a Magistrate applies his mind not for the purpose of proceeding under various Sections of Chapter XVI but for taking action of some other kind, e.g., ordering investigation Under Section 156 (3) CrIPC or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognisance of any offence.
Adverting to the facts of the particular case which came up before their Lordships, they observed.
The Additional District Magistrate passed on the complaint to Mr. Thomas (Magistrate, first class), to deal with it. Mr. Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mind to it with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police Under Section 156 (3) CrIPC
6. As pointed out by the learned Public Prosecutor before me, the facts of the present case are closely analogous to the facts in the above mentioned case. The Sub-Divisional Magistrate did not apply his mind to them with a view to taking cognizance of any offence himself. Instead of proceeding under Chapter XVI of the Criminal Procedure Code he decided that the case should be investigated by the police Under Section 156 (3) CrIPC Under that Section he had powers to order police investigation. Bearing in mind the clear decision of the Supreme Court, the action of the Sub-divisional Magistrate cannot be considered to be illegal.
7. The learned Counsel for the petitioners sought to make a distinction between the facts of this case and the facts in the Supreme Court decision. The learned Sub-divisional Magistrate in his reference to the police in this case, used the word 'Report'. The learned Counsel claimed that 'A report' would be required only in n reference Under Section 202 CrIPC and therefore this was really a reference Under Section 203 CrIPC and not Under Section 156 CrIPC But the Magistrate has preceded his endorsement with the observation that the offences were cognizable; this is clear index to show that his intention was to forward the case to the police for the purpose of investigation Under Section 156 (3) CrIPC He has also quoted Section 156 (3) CrIPC Therefore, the 'report' apparently meant nothing more than that the police should keep the Magistrate informed of what they did in pursuance of the investigation. The use of the word 'report' could not be extended to have the meaning which the learned Counsel wants to give it.
8. There was a final point urged before me that the reference should not have been made to the police for investigation in the circumstances of the case because the complainant had alleged that he had gone to the police in the first instance and that they had referred him to the court. But this would not lead to an inference that the complainant apprehended unfair treatment at the hands of the police, and that in the above circumstances it was not proper for the Magistrate to refer the case to the police. Even if the complainant had any apprehension as to whether the police were justified is their conclusion at the end of their investigation, that the offences were offences triable only by a second class Magistrate, before whom the charge sheet was filed, still the second class Magistrate could, exercise his power Under Section 346 CrIPC if on the evidence he came to the conclusion that the case must be tried by a higher court. Therefore no prejudice would have been really caused to either party, because the police on investigation held the view that the offences were only triable by a second class Magistrate. In view of the above, this petition is dismissed.