ORDER
P.M. Chauhan, J.
1. This Miscellaneous Criminal Application under Section 482, Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') is filed by the petitioners (original accused) challenging the Order dated 9-11-1984 in M. Enquiry Case No. 31 of 1984 by the Chief Judicial Magistrate, Surendranagar, directing Police Sub-Inspector, Wadhwan, to investigate the complaint under Sub-section (3) of Section 156 of the Code and submit the report.
2. It transpires that the learned Magistrate on receiving the complaint had not examined the complainant before him under Section 200 or 202 of the Code and had not taken the cognizance of the offence on the complaint and directed the Police to investigate under Sub-section (3) of Section 156 of the Code.
3. Opponent No, 1 filed the complaint in the Court of the learned Chief Judicial Magistrate, Surendranagar, against the petitioners, contending that petitioner 1, opponent 1, Prabhashanker Manilal Pandya and Sushilakumari Natvarsinh Parmar were the partners of the business carried on in the name and style of Uchem Laboratory for manufacturing medicines, injections, etc. since 5-11-1983, and petitioner 1 Kanaksinh Hathisinh Jadeja was managing partner and was looking after the business of the firm. Petitioners 2, 3 and 4 are the relatives of petitioner 1. Opponent 1 being qualified chemist, was supervising the manufacturing process and was paid salary of Rs. 1,000/- per month. The firm was served notice by the Dena Bank, Surendranagar and. therefore, opponent 1 came to know about the mismanagement of the affairs of the firm and, therefore, the partners requested petitioner 1 to give accounts of the firm, but petitioner 1 hesitated and removed the valuable articles, like refrigerator, distillation plant with heater, steel tank, fans, motorcycle, fiat car, etc., from the premises of the firm and locked the premises and then represented to the Dena Bank authorities that all the pledged and hypothecated articles were inside the premises of the firm, and relying on his representation, the Bank also applied its lock on the premise of the firm. It is also alleged that petitioners 2, 3 and 4 abetted petitioner 1 in removing the said articles and committing illegal acts by petitioner 1. According to opponent 1, the petitioners committed offences punishable under Sections 403, 406, 421, 341, 477, 448 read with Section 34. Indian Penal Code. The learned Magistrate on receiving the complaint passed the order under Sub-section (3) of Section 156 of the Code, directing Police Sub-Inspector, Wadhwan, to investigate and submit his report.
4. Mr. D. D. Vyas, learned Advocate for the petitioners, submitted that the learned Magistrate before directing investigation under Sub-section (3) of Section 156 of the Code should have recorded the reasons. As the learned magistrate has not recorded the reasons for directing investigation by the Police, the order is vitiated. Mr. Vyas, in support of his submission has tried to get support from the judgment of this Court in Ramanlal Chhaganlal Bhavsar v. P. M. Desai (1970) 11 Guj LR 967, in which it is in terms observed that it is imperative for the Magistrate to give some reasons which indicate application of his mind to the facts of the case in respect of which he considers inquiry necessary before issuing process against him, and merely directing a police officer to inquire and report under Section 202 of the Cr.P.C. (1898) is not enough and cannot be said to have complied with Section 202(1) of the Code. In that case the learned single Judge referred the provisions of Section 202 of the Code of Criminal Procedure, 1898, in which specific provisions were that the magistrate directing the inquiry or investigation by a Police Officer should record his reasons in writing for postponing the issue of process. In Section 202 of the Code 1973 the obligations to record the reasons in writing for postponing the issue of process are specifically not included. Under Section 202 of the repealed Code, the Magistrate deciding the postponement of issue of process had to record in writing the reasons for doing so. but that provision is not included in the Code of 1973. That was with a specific reason as it was recommended by the Law Commission that it was difficult for the Magistrate at that particular stage to record reasons. It was also realised that when the Magistrate felt doubtful about the complainant's statement and some witnesses produced before him, it was some time embarrassing for him to state that fact in writing at the initial stage. The Law Commission also felt that no purpose would be served by expression of the judicial opinion at that initial stage. At the recommendation of the Law Commission the words 'for reasons to be recorded in writing' in Sub-section (1) of Section 202 of the repealed Code of 1898 are deleted. The Magistrate under the existing provisions of Sub-section (1) of Section 202 of the Code is, therefore, not required to record the reasons for postponing the issue of the process on the person complained against and holding inquiry by himself or direct inquiry by a Police Officer or such other person. In view of the legislative change, the observations in Ramanlal's case (1970-11 Guj LR 967)(supra) for recording reasons are no more a good law and, therefore, merely because the learned Magistrate in the instant case has not recorded the reasons, the order does not require to be quashed. .
5. Provisions of Section 156 of the Code are applicable at the pre-cognizance stage, while the provisions of Sections 200 and 202 of the Code are applicable at the post-cognizance stage. The Magistrate is not bound to take cognizance of the offence on receiving a complaint and he may, without taking cognizance direct investigation of the case by the Police under Sub-section (3) of Section 156 of the Code (See : Jamna Singh v. Bhadai Shah : 1964CriLJ468 . The very fact that the learned magistrate passed the order for investigation under Sub-section (3) of Section 156 of the Code without examining the complainant by itself is sufficient to hold that the learned Magistrate has not taken cognizance of the offences.
6. Section 190 in Chapter XIV of the Code specifies as to when the Magistrate may take the cognizance of offence. Under that section Magistrate may take cognizance of the offence upon receiving a complaint of facts which constitute the offence; or upon a police report of such facts; or upon information received from any person other than a Police Officer, or upon his own knowledge that such offence has been committed. The expression 'taking cognizance of an offence by the Magistrate' is not defined in the Code. It all depends upon the circumstances of a particular case including the mode in which the case is instituted and the nature of preliminary action taken by the Magistrate. When, on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section 200 and succeeding sections in Chapter XV of the Code, he can be said to have taken cognizance of the offence within the meaning of Clause (a) of Sub-section (1)of Section 190 of the Code. As observed in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy : 1976CriLJ1361 , if the Magistrate instead of proceeding under Chapter XV of the Code, in his judicial exercise of the discretion, takes action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the Police under Sub-section (3) of Section 156 of the Code, he cannot be said to have taken cognizance of any offence. The power to order police investigation under Sub-section (3) of Section 156 of the Code is different from the power to direct the investigation conferred by Sub-section (1) of Section 202 of the Code. Both of them operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, while the other at the post-cognizance stage when the Magistrate is in seisin of the case. The facts of the case of Devarapalli Lakshminarayana Reddy 1976 Cri LJ 1316 (SC) (supra) were practically similar to the facts of the instant case. The Magistrate has not taken Cognizance of the offence and, therefore, also the provisions of Sections 200 and 202 of the Code are not applicable in the instant case.
7. The powers of the Magistrate directing investigation under Sub-section (3) of Section 156 and receiving the police report under Sub-section (1) of Section 173 of the Code are extensively discussed by the Supreme Court in H. S. Bains v. The State : 1980CriLJ1308 , but considering the facts of the present case, that aspect is not of much relevance.
8. Mr. Vyas for the petitioners referred to the decision of this Court in Harshadbhai C. Patel v. Indravadan P. Shah (1986) (1) 27 Guj LR 643, and submitted that the learned Magistrate should not have directed the investigation by the Police and could have passed order issuing process as there was sufficient material on the record for issuing process. The broad proposition canvassed by Mr. Vyas cannot be easily accepted, and the ratio of the case in Harshadbhai also does not lay down any such broad proposition. The facts of that case were entirely different and the complainant of that case stated all facts in the complaint, and practically there was no scope for further investigation by the Police and, therefore, the learned single Judge on served that process should have been issued by the learned Chief Judicial Magistrate. Even the learned single Judge observed that it is difficult to lay down absolute norms in which cases the Court should issue process or hold inquiry under Section 202 or direct investigation of the matter under Section 156(3) of the Code, as each case depends upon its own facts. The learned single Judge, however, expressed the definite views that in those cases in which the immediate arrests and searches or pursuit of the accused or the property is called for, then in a private complaint the Court should refer the matter for investigation under Sub-section (3) of Section 156 of the Code. These observations are against the petitioners and do not support the point tried to be canvassed by Mr. Vyas. In that case grievance was made by the complainant as the process was not issued, while in the instant case grievance is sought to be made by the petitioners-accused. It is clear from the facts of the instant case that clear allegation is that very valuable articles are removed from the factory promises and criminal breach of trust is committed by petitioner 1 with the help of petitioners 2 to 4 and, therefore, it would be necessary to seize such properties and investigate in the offences.
9. As the learned Magistrate has directed the investigation under Sub-section (3) of Section 156 of the Code, the Police should be allowed to exercise the power to investigate the cognizable offences without interference. It is clear from the facts that serious allegations about misappropriation of valuable properties are made and, therefore, it is necessary for the police to investigate into the alleged offences. That being the exclusive field of the executive, it is not desirable to prevent the police from investigating in the offence by the High Court, in exercise of the inherent powers under Section 482 of the Code. In Eastern Spinning Mills Shri Virendra Kumar Sharda v. Shri Rajiv Poddar : 1985CriLJ1858 , the Supreme Court in terms observed that save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at any stage of investigation of the offences. In State of Bihar v. J.A.C. Saldanna : 1980CriLJ98 , it is observed that investigation of a cognizable offence is the field exclusively reserved for the executive through the Police Department, the superintendence over which vests in the State Government and, therefore, the power of the police to investigate into a cognizable offence should ordinarily not be interfered with by the judiciary.
10. Inherent power of the High Court under Section 482 of the Code should normally be exercised if it is necessary to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. Quashing the order of the learned Chief Judicial Magistrate is not necessary either to prevent the abuse of the process of the Court or to secure the ends of justice. On the contrary, if the order is quashed, effect would be otherwise. It is well settled that the inherent powers of the High Court are meant to be exercised sparingly and with circumspection when there is reason to believe that process of law is being misused. It is also well-settled that at the initial stage Court has to consider the allegations made in the complaint and the documents accompanying thereto. Learned Advocate for the petitioners has referred the decision of this Court in Dharamchand v. State of Gujarat (1980) (2) 21 Guj LR 341, in which, while reiterating the above referred principles, it is observed that in case the first information report lodged with the police shows some ulterior motive just to find a short-cut to civil suit, the High Court can interfere under its special jurisdiction. That aspect does not require consideration in view of the facts of the instant case.
11. From the facts discussed above, it cannot be said that even no prima facie case is made out and the complaint is malicious with a view to harass the petitioners. No illegality or even irregularity is pointed out to warrant interference in the order passed by the learned Chief Judicial Magistrate. Petition, therefore, is accordingly dismissed. Interim relief vacated. Rule discharged.