ORDER
M. Sasidharan Nambiar, J.
1. Whether a complainant has a right to demand that Magistrate shall forward the complaint for investigation under Sub-section (3) of Section 156 of the Code of Criminal Procedure? Is it for the Magistrate to decide whether a complaint is to be forwarded for investigation by the Police? Can the Magistrate to take cognizance and conduct an inquiry under Section 202 of Code of Criminal Procedure even if complainant seeks only for forwarding the complaint under Section 156(3) of Code of Criminal Procedure. If the allegations in the complaint with the sworn statement of the complainant makes out a prima facie case can the Magistrate dismiss the complaint under Section 203 of Code of Criminal Procedure?. These are the relevant aspects to be decided in this revision petition.
2. Revision petitioner filed a complaint before Judicial First Class Magistrate, Irattupetta with a prayer to forward the complaint to Sub Inspector of Police, Irattupetta for investigation under Section 156(3) of the Code of Criminal Procedure and to direct Sub Inspector of Police to register a case and submit a report after investigation. First respondent the accused in the complaint is the Principal of St. George College, Aruvithura where husband of the revision petitioner is working as Professor in Malay alam. Their daughter Indulekha was a student of that College and was also the Vice-Chairman of the College Union for the period 2006-2007. Due to publication of a book by the husband of the revision petitioner containing criticism against the religious leadership, relationship between the husband of the revision petitioner had the first respondent got strained. So also the relationship of the first respondent with the daughter of the revision petitioner. Alleging indiscipline Indulekha was dismissed from the College. Challenging the same Writ Petition was filed before this Court. The allegation in the complaint was that on 29-3-2007 along with the order of the High Court permitting Indulekha to appear for the university examination revision petitioner along with Indulekha reached the college office. But hall ticket was not issued on that day. They were directed to come on the next day. The allegation is that on 29-3-2007 by about 9 a.m. revision petitioner and Indulekha came to the college office and when they asked for the hall ticket, first respondent asked revision petitioner whether her daughter has no father as he did not accompany them. It is alleged that accused also asked her whether her husband is not the father of her daughter and why he did not come along with them and is it because he is abusing the daughter, thereby implying that father is sexually illtreating the daughter. It is contended that the said words spoken by first respondent amount to an insult on the modesty of revision petitioner and he thereby committed the offence under Section 509 of IPC. Eventhough revision petitioner preferred a complaint before the Sub Inspector of Police, no action was taken and it is alleged that it was due to the influence of the first respondent. On these allegations revision petitioner sought an order to forward the complaint for investigation.
3. The complaint was received by Judicial First Class Magistrate, Irattupetta on 28-6-2007. On that day the Magistrate passed an order that on going through the facts and in the circumstances of the case, it is not desirable to send the case to the police for investigation and hence sworn statement is to be recorded. It was adjourned to 3-7-2007. On that day the sworn statement of revision petitioner was recorded and the complaint was posted for hearing to 10-7-2007. After two further adjournments, arguments were heard on 1 -8-2007 and on 6-8-2007 the complaint was dismissed under Section 203 of Code of Criminal Procedure by a reasoned order to the effect that over all considerations and the materials available leads to a definite conclusion that case of the complainant, even if taken as proved, will go to show that words spoken by first respondent were against the husband of the revision petitioner and not against the modesty of the revision petitioner and therefore did not amount to an insult on her modesty and hence offence under Section 509 IPC is not attracted and there is no ground to proceed against the accused. Complaint was dismissed under Section 203 of Code of Criminal Procedure. The order is challenged in the revision petition.
4. The argument of the learned Counsel appearing for the revision petitioner is that when the only prayer in the petition filed before the learned Magistrate was to forward the complaint under Section 156(3), learned Magistrate has no power to conduct an inquiry under Section 202 or to dismiss the complaint under Section 203 and the Magistrate should have forwarded the complaint for investigation and based on the final report to be filed after investigation as provided under Section 173 of the Code of Criminal Procedure, question whether cognizance is to be taken or not should have been decided. Relying on the decision of Apex Court in Sakiri Vasu v. State of U.P. 2008 (1) KLT 724 (SC) it was argued that revision petitioner has a right to approach the Magistrate by filing a petition to forward the complaint to the Police for investigation under Section 156(3) of Code of Criminal Procedure and the said power was not exercised by the Magistrate and when Apex Court declared the law, learned Magistrate was not justified in deviating from the procedure and the order is illegal. Learned Counsel also relied on the decision of a single Judge of High Court of Allahabad in Phool Singh v. State of U.P. II 2007 CCR 192 and argued that it is not for the court to decide whether the case is to be investigated by the Police as provided under Section 156(3) or an inquiry is to be conducted under Section 202 of Code of Criminal Procedure and when the only prayer before the Magistrate was to refer the complaint to the Sub Inspector of Police for investigation, order dismissing the complaint under Section 203 of Code of Criminal Procedure is illegal and is to be set aside. Learned Counsel also argued that even if the Magistrate was justified in conducting an inquiry under Section 202, the order dismissing the complaint under Section 203 is illegal. It was argued that on the averments in the complaint with the sworn statement the ingredients of an offence under Section 509 IPC is definitely made out and the sworn statement of the revision petitioner should be read along with the complaint and they establish that first respondent uttered words with the intention to insult the modesty of the revision petitioner, mother of a college going girl and that too in the presence of the grown up daughter and in such circumstance dismissal of the complaint is illegal. Learned Counsel vehemently argued that asking the wife of a respected colleague of the first respondent, who is none other than the Professor in the same College, whether the daughter has no father and whether the husband of the revision petitioner is not the father of the daughter would definitely amount to an insult to the modesty of revision petitioner as it is questioning her chastity. Relying on the definition of modesty in various dictionaries and the decisions of this Court and the Apex Court learned Counsel argued that the words uttered by the first respondent as stated in the complaint and in the sworn statement, if accepted would prove commission of the offence and therefore dismissal of the complaint is illegal.
5. Though an accused has no right to be heard by the Magistrate before issuing process under Section 204 of Code of Criminal Procedure and he could only be a spectator in the enquiry under Section 202 of the Code and first respondent did not participate in the inquiry before the learned Magistrate, when the revision was filed with an application to condone the delay, this Court directed revision petitioner to take notice to first respondent who on receipt of notice appeared through a senior counsel. As the senior counsel appeared, he was also heard, though in strict sense, first respondent has no role except to be a silent spectator at this stage. Learned Senior counsel relying on various decisions of this Court and Apex Court argued that no complainant has a right to dictate to the Magistrate that a complaint is to be forwarded for investigation under Section 156(3) of the Code of Criminal Procedure or that Magistrate cannot conduct an inquiry under Section 202 of Code of Criminal Procedure and the procedure adopted by the learned Magistrate cannot be challenged. It was also argued that when the Magistrate found that the complaint is not be forwarded for investigation and an inquiry is to be conducted by himself, petitioner did not challenge that order and instead participated in the inquiry and at a later stage he is not entitled to contend the procedure adopted is illegal or irregular. Senior counsel also argued that case of the revision petitioner in the sworn statement was different from the allegation raised in the complaint and when the Magistrate on the materials found that even if the statement of the complainant in the sworn statement is accepted, ingredients of an offence is not made out and it is not a case to be proceeded further, Magistrate was justified in dismissing the complaint and the order is perfectly legal.
6. Chapter XII of Code of Criminal Procedure (hereinafter referred to as the Code) relates to information to the Police and their powers to investigate. Chapter XV relates to complaints to Magistrate and Chapter XVI commencement of proceedings before Magistrate. Chapter XII provides the procedure for investigation by the Police. Under Sub-section (1) of Section 154 every information relating to the commission of a cognizable offence, if given orally to an Officer in charge of a Police Station shall be reduced in writing and be read over to the informant and every such information whether given in writing or reduced to writing, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as prescribed and a copy of the information so recorded shall be given to the informant as provided under Sub-section (2). Sub-section (3) of Section 154 enables any aggrieved person by a refusal on the part of an Officer in charge of a police station to record the information as provided under Sub-section (1), to send the substance of such information in writing and post to the Superintendent of Police concerned who in turn if satisfied that such information discloses commission of a cognizance offence, shall investigate the case himself or direct an investigation to be made by any Police Officer subordinate to him. Section 155 of the Code provides that when information is given to an Officer in charge of a Police Station of the commission within the limits of such Police Station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such Officer in such form as prescribed and refer the informant to the Magistrate. Sub-section (2) prohibits investigation of a non-cognizable offence by a Police Officer without the order of a Magistrate. Sub-section (1) of Section 156 empowers any Police Officer in charge of a Police Station to investigate any cognizable case without the order of a Magistrate within the limits of such Police Station. Sub-section (2) of Section 156 provides that no proceeding of a police officer in any such case shall be called in question at any stage on the ground that the case was one which such officer was not empowered under the section to investigate. Sub-section (3) of Section 156 the Magistrate empowered under Section 190, to order art investigation. Sub-section (3) of Section 156 reads:
Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.
Section 190 of the Code which is included in Chapter XIV, which relate to conditions requisite for initiation of proceedings reads:
190. Cognizance of offences by Magistrates: (1) 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 than 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 the competence to inquire into or try.
Under Clause (a) of Sub-section (1) of Section 190 a Magistrate is empowered to take cognizance of any offence upon receiving a complaint of facts which constitute such offence. Chapter XV relates to complaints to Magistrates, Under Section 200, a Magistrate taking cognizance of an offence on a complaint shall examine upon oath the complainant and the witnesses if any present and the substance of such examination shall be reduced to writing and it shall be signed by the complainant and the witnesses and also the Magistrate. The proviso provides that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses if, a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint or the Magistrate makes over the case for inquiry or trial to another Magistrate as provided under Section 192. If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, Section 201 provides that such Magistrate shall return the complaint for presentation to the proper court if it is in writing with an endorsement to that effect and if the complaint is not in writing direct the complainant to the proper court. Section 202 of the Code relates to postponement of issue of process. Under Sub-section (1) of Section 202, any Magistrate if he thinks fit postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. But that investigation is for the purpose of deciding whether or not there is sufficient ground for proceeding. The proviso specifically provides that where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, no such direction for investigation shall be made. So also where the complaint has not been made by a Court, unless the complainant and the witnesses present if any have been examined on oath as provided under Section 200, a direction to investigation shall not be made. Sub-section (2) of Section 202 enables the Magistrate if he thinks fit in an inquiry as provided under Sub-section (1), to take evidence of witnesses on oath. Sub-section (3) provides that if an investigation under Sub-section (1) is made by a person not being a police officer, he shall have, for that investigation, all the powers conferred by the Code on an Officer in charge of a police station except the power to arrest without warrant. If after considering the statements on oath of the complainant and of the witnesses and the result of the inquiry or investigation if any ordered under Section 202, the Magistrate is opinion that there is no sufficient ground for proceeding, the Magistrate shall dismiss the complaint as provided under Section 203. In such a case the Magistrate shall record his reasons briefly for dismissing the complaint.
7. Section 203 reads:
Dismissal of complaint -- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
8. If on the other hand, after considering the statements on oath of the complainant and the witnesses as well as the result of inquiry or investigation if any under Section 202, Magistrate is of opinion that there is sufficient ground for proceeding, he shall issue summons as provided under Section 204.
9. When a Police Officer refuses to receive the complaint or register the case and investigate, a complainant or informant has a right to approach the Magistrate by filing a complaint. When such a complaint is received, it is for the Magistrate to decide whether he shall take cognizance of the complaint or shall forward the complaint to the Station House Officer for investigation as provided under Section 156(3) of the code. If the Magistrate decides to forward the complaint under Section 156(3), it is an order passed at the pre-cognizance stage, before taking cognizance of the complaint. In such a case sworn statement of the complainant and witnesses if any present as provided under Section 200, is not to be taken. The investigation provided under Sub-section (3) of Section 156 is not an investigation as contemplated under Sub-section (3) of Section 202, which is part of an inquiry under Sub-section (2) of Section 202. The investigation provided under Sub-section (3) of Section 156 and the investigation provided under Sub-section (3) of Section 202 are different and distinct. The former is an investigation as directed by the Magistrate at the pre-cognizance stage. Latter is an investigation as directed by the Magistrate on the post cognizance stage which is part of the inquiry under Section 202. After an investigation under Sub-section (3) of Section 156 the Station House Officer is bound to submit a final report as provided under Section 173 of the Code of Criminal Procedure. Once the final report is received it is for the Magistrate to decide whether the final report is to be accepted as such or a further investigation is to be ordered or cognizance of the offence is to be taken. Even if after investigation a refer report is filed by the Police, Magistrate is not bound by the said final report. It is for the Magistrate to decide whether the final report is to be accepted or a further investigation is to be directed or on the materials cognizance of the offence is to be taken. Even when a final report is filed after investigation stating that no offence is made out, before accepting the final report Magistrate is bound to issue notice to the complainant or the first informant and has to consider the final report only thereafter. On receipt of a refer report, the complainant is entitled to appear before the Magistrate and submit that the final report may not be accepted and instead cognizance of the offence may be taken. Even if the final report is accepted by the learned Magistrate, the complainant or the first informant is entitled to file a protest complaint, which shall be enquired by the learned Magistrate as provided under Section 202. In such a case, after an inquiry, it is for the Magistrate to consider whether on the materials including the final report cognizance is to be taken or not. These are the settled legal position.
10. The question is whether a complainant is entitled to insist before the Magistrate that his complaint shall not be inquired into as provided under Section 200 and 202 or shall forward for investigation under Section 156(3) of the Code. The argument of the learned Counsel is that in view of the declaration of law by the Apex Court in Sakiri Vasu 's case (supra) the Magistrate has no option and the complaint shall be forwarded for investigation. The question is whether a law as canvassed by the learned Counsel was laid down in Sakhir Vasu's case.
11. Before considering the submission it is necessary to bear in mind that a decision of the court cannot be read as a statute. Court shall not place reliance on decisions without discussing as to how the factual situation fitted with the situation of the decision on which reliance is placed. Apex Court in CCE v. Alnoori Tobacco Products : 2004(170)ELT135(SC) settled the legal position as follows:
Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark on lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton AC at p. 761. Lord Mac Dermott observed: (All ER p. 14C-D.)
The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge....12. In Home Office v. Dorset Yacht Co. Lord Reid said All ER p. 297 g-h, 'Lord Atkin's speech.... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances'. Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) observed: 'One must not, of course construe even a reserved judgment of Russell, L.J. as if it were an Act of Parliament.' And, in Herrington v. British Railways Board Lord Morris said: All ER p. 761 c.There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.
12. The facts of Sakiri Vasu's case is to be born in mind to appreciate the dictum laid therein. The body of a Major in the Indian Army was found at a Railway Station. After investigation a report was submitted that death was due to either accident or suicide. Army officials at Mathura held two Courts of Inquiry and found that the major committed suicide. Father of the Major alleging that it is not a case of suicide but murder and that there was rampant corruption in the Madurai Unit of Army which was known to the deceased major and he raised complaints against it and for that reason his son was murdered, a complaint was filed. Based on that a second Court of Inquiry was held which also concluded finding it a case of suicide. Father thereafter approached the High Court by filing a Writ Petition, which was dismissed. It was challenged before the Apex Court seeking an investigation by Central Bureau of Investigation. The question considered by the Apex Court was whether a complainant is entitled to seek an investigation by a particular agency by filing the Writ Petition. While considering that prayer their Lordship considered the rights available to an informant or a complainant who is aggrieved by non registration of a crime or non-investigation of a crime of a failure for proper investigation of a crime. It was held that if he has a grievance that Police is not registering his FIR under Section 154 of the Code, he can approach the Superintendent of Police under Section 154(3) by an application in writing and if it does not yield satisfactory result, it is open to the aggrieved person to file an application under Section 156(3) of the Code before the Magistrate and if such an application is filed, Magistrate can direct an FIR to be registered and can also direct a proper investigation to be made in a case where according to the aggrieved person no proper investigation was made. Following the observations in Mohammed Yousuff v. Afaq Jahan 2006 (1) KLT 939 (SC) and in Dilawar Singh v. State of Delhi : 2007CriLJ4709 it was clarified that even if an FIR has been registered and even if the police had made investigation or is actually making the investigation, which aggrieved person feels is not proper, he can approach the Magistrate under Section 156(3) of the Code and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order as he thinks necessary for ensuing a proper investigation. It was declared that Section 156(3) of the Code is wide enough to include all such powers in a Magistrate, which are necessary for ensuing proper investigation and it incudes the power to order registration of an FIR and ordering proper investigation, if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the Police. Their Lordships declared that though briefly worded Section 156(3) of the Code is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. In view of the said legal position it was held that there is an implied power under Section 156(3) to order registration of an F.I.R. and ordering a proper investigation and to take all such necessary steps that may be necessary for ensuring proper investigation including monitoring the same. It was held that even though these powers have not been expressly mentioned, they are implied in the Section. It was also observed that when a person who has grievance that his FIR has not been registered, his remedy is as enumerated, and he is not entitled to file a Writ Petition or a petition under Section 482 of the Code and a Magistrate cannot order investigation by the CBI as settled by the Apex Court in CBI v. State of Rajasthan and Anr. 2001 (1) KLT 563. In that decision, Apex Court only observed the various rights available to the complainant and first informant, the aggrieved person when the FIR is not registered or after registration no proper investigation is made. The decision cannot be understood as canvassed by the learned Counsel and no law is laid that when a complaint is filed seeking a direction to the Police to register a F.I.R. and for investigation the Magistrate is bound to forward the complaint to the police and is not competent to conduct an inquiry by himself as provided under Section 202 of the Code, to decide whether the complaint is to be proceeded further or is to be dismissed as provided under Section 203.
13. What was relied on by the learned Counsel are the following observations in paragraph 15,16 and 17 of the judgment.
15. S.156(3) provides for a check by the Magistrate on the police performing its duties under chapter XII Cr. P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar v. A.C. Saldanna : 1980CriLJ98 .
17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the Police Section 156(3) Cr. P.C. though briefly worded, in our opinion, is very wide and it will include all such incidential powers as are necessary for ensuring a proper investigation.
But the observations cannot be understood as a new law laid down by the Apex Court. It does not provide that when a complaint is filed Magistrate has no other option but to forward the complaint under Section 156(3) of the Code. The legal position is clarified by the three Judge Bench of the Apex Court in Aleque Padamsee v. Union of India 2007 (3) KLT 1028 SC as follows:
5. When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate, after recording evidence, finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and could issue process to the accused.
14. A Constitution Bench of the Apex Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar : [1961]1SCR1 elaborately considered the scope of an inquiry under Section 200, 202 and 203 of the Code. The position is settled in paragraph 9. It reads:
The general scheme of the aforesaid sections is quite clear. Section 200 says inter alia what a Magistrate taking cognizance of an offence on complaint shall do on receipt of such a complaint. Section 202 says that the Magistrate 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 direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint, in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. Section 203, be it noted, consists of two parts : the first part indicates what are the materials which the Magistrate must consider and the second part say s that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. Section 204 says that if in the opinion of the Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process.
When a Magistrate is conducting an inquiry under Section 202 to find whether there is sufficient ground for proceeding to issue summons necessarily the Magistrate must consider the complaint and the sworn statement of the complainant and witnesses if any recorded, and also the report of investigation if any, under Sub-section (3) of Section 202. It is for the Magistrate then to form an opinion. But this does not mean that the Magistrate is bound to accept the result of the investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind, to the materials on which he has to form his judgment. In arriving at his judgment, he is not fettered in any way except by judicial considerations. He is not bound to accept what the Inquiry Officer says. He is not even precluded from accepting a plea, based on an exception, provided there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not.
15. A Magistrate can be invoke the power under Section 156(3), only before taking cognizance of the complaint. Once cognizance of the complaint is taken and sworn statement of the witnesses if any is recorded, he cannot resort to Section 156(3) and forward the complaint for investigation. After taking cognizance, he can direct an investigation only as provided under Sub-section (3) of Section 202 and that investigation is different and distinct from the investigation provided under Section 156(3).
16. Though taking cognizance is not defined in the Code, the question as to what is meant by taking cognizance is no longer res integra. As far back in 1951, Apex Court in R.R. Chari v. State of Uttar Pradesh : 1951CriLJ775 settled the position as follows:
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.
In fact observations of Justice Das Gupta in Superintendent and remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee : AIR1950Cal437 to the effect that before it can be said that any Magistrate has taken cognizance of an offence under Section 190(1)(a) of Criminal Procedure Code, 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 of the Chapter namely proceeding under Section 200 and thereafter sending it for inquiry under Section 202 was accepted his mind not for the purpose of proceeding under the subsequent sections of the Chapter but for taking action of some other kind like order investigation under Section 156(3) or issuing search warrant for the purpose of investigation he cannot be said to have taken cognizance of the offence.
17. Apex Court in Talu Ram v. Kishore Singh : 1978CriLJ8 held:
It seems to us that there is no special charm or any magical formula in the expression 'taking cognizance' which merely means judicial application of mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. Thus what Section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the complaint and decides to examine or test the validity of the said allegations. The court prescribes several modes in which a complaint can be disposed of after taking cognizance. In the first place, cognizance can be taken on the basis of three circumstances: a) upon receiving a complaint of facts which constitute such offence; b) upon a police report of such facts; and c) upon information received from any person other than the police officer or upon his own knowledge, that an offence has been committed. These are the three grounds on the basis of which a Magistrate can take cognizance and decide to act accordingly. It would further appear that this Court in the case of Narayandas Bhagwanda Madhavdas v. The State of West Bengal : 1959CriLJ1368 observed the mode in which a Magistrate could take cognizance of an offence and observed as follows:
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), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but 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.
Holding that Section 156(3) appears in Chapter XII which deals with Information to the Police and Chapter XIV deals with Initiation of proceeding against an accused person it was observed:
It is, therefore, clear that Sections 190 and 156(3) are mutually exclusive and work in totally different spheres. In other words, the position is that even if a Magistrate receives a complaint under Section 190 he can act under Section 156(3) provides that he does not take cognizance. The position, therefore, is that while Chapter 14 deals with post cognizance stage, Chapter 12 so far as the Magistrate is concerned deals with pre-cognizance stage, that is to say once a Magistrate starts acting under Section 190 and the provisions following he cannot resort to Section 156(3).
The difference and the distinction between an investigation under Section 156(3) and an investigation as provided under Sub-section (3) of Section 202 of the Code is settled by the Apex Court in Devarpalli Lakshminarayana Reddy v. V. Narayana Reddy : 1976CriLJ1361 as follows:
The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodies in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3).
Following the observations of Justice Das Gupta in Gopal Das Sindhi v. State of Assam AIR 1961 SC 986 was approved as follows:
It would be clear from the observations of Mr. Justice Das gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI 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 investigation, he cannot be said to have taken cognizance of any offence.
The distinction was explained with clarity in Jamuna Singh v. Bhadai Sah : 1964CriLJ468 as follows:
It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offence mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under Section 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence.
Though Section 156(3) empowers the Magistrate to direct investigation by the Police and the provision enables a person aggrieved by the non-registration of the case to seek investigation, on filing the complaint it is for the Magistrate to decide whether an investigation under Section 156(3) is to be made or an inquiry is to be conducted by the Magistrate himself following the procedure provided under Section 200 and 202. If the Magistrate proposes to forward the complaint for investigation as provided under Section 156(3), it is before taking cognizance of the complaint. Then the Magistrate need not comply with the provisions of Section 200 or 202. But once the Magistrate decides that he has to take cognizance of the complaint, he has to comply with the procedure envisaged in Chapter XV of the Code. He has to record the statement of the complainant and witnesses if any. He is empowered to direct an investigation by a Police Officer or such other person as he thinks fit, as provided under Sub-section (3) of Section 202. But that investigation can only be for the purpose of deciding whether or not there is sufficient ground for proceeding with the complaint. Apex Court in Mohammad Yousuf v. Afaq Jahan : 2006CriLJ788 held:
11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the Officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant, because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
When a final report under Section 173 is placed before the Magistrate, after investigation, concluding either that offence appears to have been committed by a particular person or persons, the Magistrate can either accept the report and take cognizance of the offence and issue process. He may disagree with the report and drop the proceedings. He may direct further investigation under Section 156(3) (and can require the police to make a further report. If the report is to the effect that no offence appears to have been committed, the Magistrate has again three options. He may accept the report and drop the proceedings. He may disagree with the report and take the view that there is sufficient reason for further proceedings. In that case he can take cognizance of the offence and issue process. He can direct further investigation to be made by the police under Section 156(3). The Magistrate while considering the report can ignore the conclusion arrived at by the Investigating Officer and independently applies his mind to the facts emerging from the investigation and take cognizance of the offence, if he thinks fit exercising the power under Section 190(1)(b) and direct proceeds to be issued. If he does so he is not bound to comply with the procedure laid down under Section 200 and 202. Instead of taking cognizance the Magistrate can direct further investigation under Section 156(3). When the procedures are appreciated in the proper perspective, it cannot be said that an aggrieved person has a right to seek an investigation to the police under Section 156(3), in derogation of the powers of the Magistrate to conduct an inquiry under Section 200 and 202 and decide whether cognizance of the offence is to be taken or not and to decide the case does not warrant an investigation under Section 156(3). I cannot agree with the submission that Apex Court in Sakiri Vasu's case (supra) laid down a law that an aggrieved person has a right to seek investigation under Section 156(3) and dictate the Magistrate that he shall not conduct an inquiry under Section 200 or 202. Sakiri Vasu's case does not lay down such a law as canvassed by the learned Counsel. Though reliance was placed on the decision of a learned single Judge of Allahabad High Court in Phool Singh v. State of U.P. and Ors. 11 (2007) CCR 192 where it was held that the right of filing a complaint vests with complainant and it is not for the Magistrate to transform the prayer for registration of a FIR and direction for investigation to a complaint for taking cognizance of the offence, with respect I cannot agree with the proposition.
18. A learned single Judge of this Court in Superintendent of Police, C.B.I. v. State of Kerala : 2005(3)KLT823 had occasion to consider the question whether an aggrieved person has a right to get the complaint forwarded for investigation in derogation of the powers of the Magistrate. I agree with the following observations of the learned single Judge.
14. The fact that the Magistrate has got a discretion to forward a complaint under Section 156(3) does not mean that the complainant has a right or privilege to make a demand to refer the case to the police. The option to refer the complaint to the police for investigation under Section 156(3) before cognizance or under Section 202(1) after cognizance, is to be exercised by the Magistrate.
Another Single Judge (Ramkumar, J.) in Arul v. Nair v. State of Kerala 2007 (4) KLT 921 considering similar argument as raised by the learned Counsel appearing for petitioner herein held:
3. Annexure- I was not really a complaint but only a petition under Section 156(3) Cr. P.C. requesting the Magistrate to forward the application to the police. The Magistrate was virtually converting the same into a complaint falling under Section 2(d) Cr.P.C. which he was forbidden from doing in the light of the decision reported in II (2007) CCR 192 - Phool Singh v. State of U.P. and Ors. (Allahabad High Court). Annexure I is at best a petition falling under Section 190(1)(c) Cr.P.C.
4. I am afraid that I cannot agree with the above submissions. It was for want of any material in support of the complaint that the Magistrate dismissed the complaint. That will not preclude the complainant from filing another complaint. The argument that Annexure-A1 was really not a complaint filed with a view to request the Magistrate to take action under the Code and falling under Section 2(d) Cr.P.C. But only a petition under Section 156(3) Cr.P.C. requesting to forward the matter to the police for investigation, is misconceived. In the first place, Section 156(3) Cr.P.C. does not contemplate any application. Secondly, what the Magistrate can forward to the police under Sub-section (3) of Section 156 read with Sub-section (1) thereof is only a matter on which he is competent to take cognizance under Section 190 Cr. P.C. Even if what is filed before the Magistrate is a petition falling under Section 190(1)(c) Cr. P.C. that again is an information on the basis of which the Magistrate is competent to take cognizance. It is only if the matter before the Magistrate answers the description under Clauses (a) to (c) of Section 190(1) Cr. P.C. can it be forwarded to the police under Section 156(3) Cr. P.C. For that reason also it is doubtful whether a petition for merely forwarding the matter under Section 156(3) Cr. P.C. is maintainable. Whether or not the matter is to be forwarded to the Police under Section 156(3) Cr. P.C. is something within the discretion of the Magistrate and the complainant cannot insist on forwarding the matter to the police (See Sreenivasan v. Nair) : 2005(2)KLT396 . Since the impugned order of dismissal does not preclude the revision petitioner from filing another complaint, the matter need not be delved deeper.
I fully agree with the view.
19. As is clear from the records on 28-6-2000 itself learned Magistrate unambiguously made it clear that he has applied his mind and decided to take cognizance of the complaint holding that it is not desirable to order investigation under Section 156(3) of the Code. It is after the order and granting adjournment, the sworn statement of petitioner was recorded and the Magistrate conducted the inquiry as provided under Section 200 of the Code. Revision Petitioner willingly participated in the inquiry. When the Magistrate acted in accordance with the procedure provided under the Code, I cannot agree with the submission that there was procedural irregularity and therefore the order is illegal. The procedure adopted by the learned Magistrate is definitely legal.
20. The inquiry provided under Section 200 and 202 is limited to the ascertainment of the truth or falsehood of the allegations made in the complaint. The decision of the Magistrate can only be based on the materials placed by the complainant. The inquiry is limited for the purpose of finding out whether a prima facie case for issue of process has been made out. For deciding the question only the complaint, sworn statements of the complainant and witnesses if any and investigation if any can be considered. Accused has absolutely no locus standi at the stage and he is not entitled to be heard on the question whether process should be issued against him or not. Though Magistrate has been given an unfettered discretion in the matter, to decide whether the complaint is to be proceeded or is to be dismissed under Section 203, the discretion has to be exercised judicially. The Apex Court in Debendra Nath v. State of West Bengal : 1972CriLJ1037 held:
It has to be remembered that an order of dismissal of a complaint under Section 203, Criminal Procedure Code has to be made on judicially sound grounds. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction. It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant. But, the object of such consideration of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for proceeding further or not. The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. On the other hand such grounds may indicate the need for proceeding further in order to discover the truth after a full and proper investigation. If, however, a bare perusal of a complaint or the evidence led in support of it show that essential ingredients of the offence alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further the complaint could be properly dismissed under Section 203, Criminal Procedure Code.
If the complaint with the sworn statement of the complainant and the witnesses does not disclose a prima facie case to proceed further, the Magistrate is competent to dismiss the complaint under Section 203. The question is whether the order passed by the Magistrate under Section 203 of the Code is legal?
21. Subsequent to the order dated 28-6-2007, whereunder learned Magistrate made it clear that he is conducting an inquiry by himself without forwarding the complaint for investigation under Section 156(3) of the code revision petitioner filed a witness list. But the order sheet does not show that complainant at any point of time reported to the court that she is not examining the witnesses. Court also did not record that witnesses were not made available. Instead proceedings of 3-7-2007, on which day the sworn statement of the revision petitioner was recorded, shows that after recording the sworn statement learned Magistrate straight away posted the complaint for argument without ascertaining whether the complainant is examining any witness or not. Revision petitioner in the revision petition contended that opportunity to examine witnesses was denied. When proceeding paper does not show that revision petitioner had given up the witnesses shown in the witness list the contention has force. Whatever it be, the question is whether based on the complaint and the sworn statement, finding of the Magistrate that ingredients of an offence under Section 509 of Indian Penal code is not made out and therefore the complaint is liable to be dismissed under Section 203 of the code is sustainable.
22. The offence alleged was under Section 509 of Indian Penal Code. Section 509 of IPC reads:
509. Word, gesture or act intended to insult the modesty of a woman - Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
The ingredients of the offence are intention of the accused to insult the modesty of a woman. The insult must be caused either by uttering any word or making any sound or gesture or exhibiting any object intending that such words or sound shall be heard or that the gesture or object shall be heard by such woman or by intruding upon the privacy of such woman. The crux of the offence is the intention to insult the modesty of a woman. Modesty is not defined in Indian Penal Code.
23. A learned Single Judge of this Court (as His Lordship then was) considered the question in State of Kerala v. Hamsa 1988 (2) KLT 89 and held that the question of infringing the modesty of a woman would of course depend upon the customs and habits of the people and no particular yardstick of universal application can be made for measuring amplitude of modesty of woman as it may vary from country to country and society to society. The following observations in State of Punjab v. Major Singh AIR 1967 SC 63 was quoted:
The test of the outrage of modesty must, therefore, be whether a reasonable man will think that the act of the offender was intended to or was known to be likely to outrage the modesty of the woman. In considering the question, he must imagine the woman to be a reasonable woman and keep in view all circumstances concerning her, such as, her station and way of life and the known notions of modesty of such a woman.
As modesty was not defined in Indian Penal Code Apex Court in Raju Pandurang Mahale v. State of Maharashtra : 2004CriLJ1441 relied on the dictionary meaning of modesty which reads:
14. Webster's Third New International Dictionary of the English language defines modesty as 'freedom from coarseness, indelicacy or indecency: a regard for propriety in dress, speech or conduct'. In the Oxford English Dictionary (1933 Edn) the meaning of the word 'modesty' is given as 'womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.
What constitute an outrage to female modesty was also considered. It was then observed.
What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (3rd Edn) defines the word 'modesty' in relation to a woman as follows:
Decorous in manner and conduct not forward or lewd; Shamefast' Scrupulously chaste.
13. Modesty is defined as the quality of being modest; and in relation to a woman 'womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct''. It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patteson in R.V. James Lloyd?
In Rupan Deol Bajaj v. K.R.S. Gill 1995 (2) KLT 830 Apex Court concluded that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex and from the dictionary meaning of 'modesty' and the interpretation given to that word by the court in State of Punjab v. Major Singh AIR 1967 SC 63 the ultimate test for ascertaining whether modesty has been outraged is, 'is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman.
24. Eventhough learned Magistrate found that there is difference in the version as to what really transpired when revision petitioner and her daughter approached the accused for getting the hall ticket, it is clear from a reading of the complaint and the sworn statement that on the essential allegations, there is no much discrepancy at the stage of inquiry under Section 200 of the Code, Magistrate can only proceed based on the complaint and the sworn statement. If that be so, the specific case was that in the presence of her daughter revision petitioner was asked whether her husband is not the father of her daughter. What is the meaning that could be attributed to the said remark. It is to be born in mind that husband of the revision petitioner is none other than a Professor in the very same Institution. It cannot be a case where accused was unaware as to who is the husband of the revision petitioner or who is the father of Indulekha the daughter of revision petitioner. The idea conveyed by the remark could only be questioning the paternity of the daughter of revision petitioner. Again in the presence of the daughter the mother was allegedly asked whether her husband is misusing the daughter, implying a sexual ill treatment by the father, The question is if these are the remarks of the accused, whether the words spoken amount to an insult on the modesty of the revision petitioner. Learned Magistrate found that the remarks could only be an insult to the father of Indulekha, the husband of the revision petitioner and not an insult to the modesty of the revision petitioner. The modesty contemplated under Section 509 is to be understood as the 'womanly propriety of behaviour'. If that be so when on the very face of that woman and that too in the presence of her daughter, if the mother is asked whether her husband is not the father of the daughter, it is a remark aimed at the conduct and behaviour of that woman. It is definitely a remark on her chastity, one of the most cherished virtues of a woman. It is an insult on her modesty and that too in the very presence of her daughter. If that be so, the finding of the learned Magistrate that ingredients of the offence is not made out is illegal. If the words spoken to by the accused as alleged in the complaint and the sworn statement is correct, it could only be an insult to the modesty of revision petitioner, who is the mother of a grown up lady and the wife of a Professor of the very same College. At the stage of inquiry under Section 200 or 202 of the Code, it is not for the court to decide whether the accused could be convicted or not but only whether there are sufficient grounds to proceed further. If the words are as spoken to by revision petitioner, it is not a case for discharge under Section 203. In the circumstances, learned Magistrate should have proceeded with the complaint by issuing summons ass provided under Section 204 of Code of Criminal Procedure. The dismissal of the complaint under Section 203 of the Code is illegal. It is set aside.
25. The Criminal Revision Petition is allowed. The order passed in C.M.P. 3459/2007 under Section 203 of the Code of Criminal Procedure dated 6-8-2007 by Judicial First Class Magistrate, Erattupetta is set aside. Learned Magistrate is directed to proceed with the complaint in accordance with law, as provided under Section 204 of the Code of Criminal Procedure.