D.H. Waghela, J.
1. Petitioner No. 1, a doctor at Primary Health Centre, along with three other accused persons, have approached this Court under Articles 226 and 227 of the Constitution with the prayer to set aside order dated 17-11-2008 made below application Exh. 7 in Criminal Revision Application No. 77 of 2008 by learned Additional District and Sessions Judge, Anand. By that impugned order in the revision application filed by the original complainant, the order dated 12-3-2008 of learned J.M.F.C. rejecting the prayer for ordering investigation by registering an F.I.R. under Section 156(3) of Cr.P.C. was set aside and straightaway summons were ordered to be issued against all the five persons accused in the original complaint. That order was challenged mainly on the ground that learned Sessions Judge had no jurisdiction and power to straightaway order issuance of summons in a revision application under Section 397 of Cr.P.C.
2. The relevant facts of the case are that the original complaint approached Police Inspector, Borsad on 27-8-2006 with the complaint of offences punishable under Sections 376, 302, 201 and 120-B read with Section 114 of I.P.C. upon death of her daughter, aged 20, working as a volunteer at the Primary Health Centre, but that complaint was never registered. Therefore, she filed a criminal case before learned J.M.F.C. on 25-9-2006, and besides narrating the circumstances surrounding the death of her young daughter and making serious allegations, it was specifically prayed that the alleged offences required investigation by an impartial police officer of a higher rank. That complaint was registered as Inquiry Case No. 57 of 2006 and an inquiry under the provisions of Section 202 of Cr.P.C. was ordered on 6-10-2006. Thereafter, further order dated 30-4-2008 was made to state that further inquiry was necessary before issuing process, and therefore, one Dr. Vijay Thakker was summoned as a witness with original documents of medical examination. After that order dated 30-4-2008, the complainant submitted an application for ordering an investigation by police officer after registering an F.I.R. That application was rejected on 12-3-2008 on the ground that inquiry under Section 202 was already completed after taking cognizance. Thereafter, the whole complaint was also dismissed under Section 203 of Cr.P.C. by order dated 16-5-2008, even after taking note of the marks of physical injury on the body of the victim and recording that the cause of death could not be ascertained even after the post-mortem conducted twice.
3. Being aggrieved by the order dated 16-5-2008 dismissing the complaint, the original complainant preferred the revision application in which, after recording that the trial Court had seriously erred in appreciating the evidence, the impugned order dated 12-3-2008 was set aside (although in fact the order dated 16-5-2008 was under challenge) and summons were ordered to be issued to the accused persons. In view of the fact that the original complainant may not be in a position to undergo third round of litigation only for proper investigation and prosecution of the accused persons, learned senior Counsel and veteran in the field of criminal law, Mr. A.D. Shah, was requested to assist the Court at the admission stage as an amicus curiae; and he readily and kindly consented and assisted the Court.
4. The allegations in brief of the original complainant are that her daughter, aged 20, studying in third year of college, was working as a volunteer in Davol Primary Health Centre. On 23-8-2006, her daughter went to the P.H.C. Centre at 10-30 a.m. in a hale and hearty condition. At around 1-00 p.m., three persons came in a car to inform her that her daughter was taken ill. Therefore, she accompanied them in the car wherein she learnt that the persons in the car, whom she could recognize, were frequently talking to accused No. 1 on mobile phone. She was taken to a private dispensary where accused No. 1 and 2 were present, but she was not permitted to see her daughter for an hour and accused No. 1 offered Rs. 50,000/- to her. Then she was shown the dead body of her daughter lying on a stretcher. The dead body was taken for post-mortem when accused No. 1 Doctor also accompanied the body. When the dead body was brought home, it was found that there were marks of injuries and signs of use of physical force on her. Then the police was requested in writing to conduct post-mortem again, which was done by another Doctor at Vadodara and that had piqued the Doctor at Borsad. The complainant has alleged offences punishable under Sections 376, 302, 201 and 120-B read with Section 114 of I.P.C. accompanied with the allegation that police inspector at Borsad had not registered the complaint, and hence, she was compelled to approach the Court. Learned J.M.F.C., Borsad made an order for inquiry under Section 202 of Cr.P.C. on the same day on the complaint dated 25-2-2006 after recording that the complainant had already submitted her complaint on 27-8-2006 at Borsad Police Station and further proceeding pursuant there to was also required to be inquired. Apparently, the inquiry under Section 202 was not completed till April, 2008 while the complainant had submitted an application for registration of an F.I.R. on 15-2-2008. After rejection of that application, the whole complaint was dismissed mainly on the basis of the statement of the doctor to whom deceased victim was taken by the accused persons. Reversing that order dated 16-5-2008 in revision, directly summons were ordered to be issued by the impugned order dated 17-11-2008.
5. It is clear from the above record that, even as the complainant had requested for investigation by an independent higher police officer, learned Magistrate had directed to hold an inquiry under Section 202(2) of Cr.P.C. even without examining the complainant on oath. The offences mentioned in the complaint being exclusively triable by the Court of Sessions, police investigation under Section 202 could not have been held. During the course of inquiry under Section 202(3), evidence of Dr. Vijay C. Thakker was recorded and that was heavily relied upon to dismiss the complaint. By virtue of the provisions of Section 398, Sessions Court could have directed further inquiry. It was argued for the petitioner that Sessions Court could not have directly ordered issuance of summons to the petitioner by re-appreciating the evidence on record.
6. In the above facts, it is clear that even if the impugned order were set aside and further inquiry were ordered to be held under Section 398 of Cr.P.C, the inquiry and proceeding before learned J.M.F.C. may be highly irregular and inconsistent with the mandatory provisions insofar as statement on oath of the complainant was not recorded at the time of taking cognizance and the complainant's plea for proper investigation by a higher police officer was also not considered. Thus, non-observance of the mandatory provisions of Section 200 rendered the order of inquiry under Section 202(1) of Cr.P.C. illegal. It is held by this Court in Shankerbhai Mathurbhai Patel v. Ramanlal Vrajlal Patel : 1991 (1) GLR 387, that Judicial Magistrate, before directing inquiry, ought to have examined the complainant and his witnesses, if any. Learned Magistrate had no jurisdiction to direct the police to make inquiry under Section 202 of Cr.P.C. and the process issued on receiving report from the police was also without jurisdiction. Therefore, the process issued on the complaint was required to be quashed. It was, under these circumstances, submitted by learned Counsel Mr. A.D. Shah that the proper course of action would be to relegate the complaint to the pre-cognizance stage for deciding afresh whether an order to investigate under Section 156(3) was required to be made or an inquiry by the Court after examination of the complainant on oath was required to be held under Section 202 of Cr.P.C.
7. The above suggestion of learned Senior Counsel Mr. Shah was supported by three-Judge Bench decision of the Supreme Court in Bhagat Ram v. Surinder Kumar and Ors. 2004 (11) SCC 622, wherein, after reference to the decision in Suresh Chand Jain v. State of M.P. 2001 (2) SCC 628, it was observed that it is only when the Magistrate applies his mind for the purpose of proceeding under Section 200 of Cr.P.C. and subsequent Sections that it can positively be stated that he has taken cognizance. In that case, investigation was directed by the police after examining the complainant and his witnesses and then summons were ordered to be issued. And such course of action was upheld by setting aside the order of the High Court which had set aside issuance of summons by learned Magistrate. It was also seen that even if investigation by the police officer were ordered by the Court under Section 202, Investigating Officer would have no power to arrest, as held by this Court in Sankalchand Valjibhai Patel v. J.P. Chavda 1979 GLR 17, with the result that investigation would have been incomplete or insufficient in collecting all the necessary evidence to bring home the charge of serious offences.
8. While conceding that in the facts of the present case the revisional Court could not and ought not to have straightaway ordered issuance of summons to the petitioner-accused persons, it could not be gainsaid that even the initial order by the Magistrate to hold an inquiry under Section 202(2) of Cr.P.C. without complying with the provisions of Section 200 was illegal and unsustainable in law. If the original order by which the Magistrate could have been said to have taken cognizance of the alleged offence on the complaint were illegal and liable to be quashed, the subsequent inquiry under the provisions of Section 202 was also illegal and any subsequent order under Section 203 or Section 204 of Cr.P.C. would also be illegal. It is clear from the record that the initial order dated 25-9-2006 to register complaint and hold an inquiry was based upon the consideration that the complainant had already lodged a complaint with the police station concerned and the proceeding pursuant thereto was also a subject-matter of inquiry. Thus, learned Magistrate was neither clear nor sure about investigation by the police. The fact, however, remained that the mandatory procedure prescribed by Section 200 of Cr.P.C. was not followed or complied. Therefore, the initial act of taking cognizance for further proceedings under Chapter XV of Cr.P.C. was highly irregular. In fact, it was curious and highly improper for learned Magistrate to proceed with the complaint in the aforesaid manner when obviously the complaint required proper and thorough investigation by the police and that was specifically prayed by the complainant. In view of the allegations of offences exclusively triable by the Court of Sessions, the Magistrate could not have ordered investigation by police; And where the complainant could not have furnished or the Court could not have possibly collected all the relevant evidence in the inquiry held by itself, the proper course of action would have been to grant the prayer of investigation by a police officer. Under such circumstances, the order of learned Magistrate of taking cognizance even without examining the complainant on oath to hold inquiry into the case by himself was neither proper nor legal and the subsequent proceedings were vitiated by such basic illegality, and has in fact, resulted into miscarriage of justice.
9. As held by the Supreme Court in Narayandas Bhagwandas Madhavdas v. State of West Bengal : AIR 1959 SC 1118, when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance is taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent Sections of Ch. XVI of the Code of Criminal Procedure or under Section 204 of Ch. XVII of the Code that it can be positively stated that he had applied his mind, and therefore, had taken cognizance.
And as held by the Supreme Court in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy : 1976 (3) SCC 252, Section 202 conies in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that Section, an investigation 'for the purpose of deciding whether or not there is sufficient ground for proceeding'. In that case, the Magistrate had not examined the complainant or his witnesses under Section 200 of Cr.P.C. which was the first step in the procedure prescribed under that Chapter. Therefore, the question of taking the next step of that procedure envisaged under Section 202 was held to be not arising; and the stage at which Section 202 would become operative was held to have been never reached.
As held in Tula Ram v. Kishore Singh : AIR 1977 SC 2401, where a Magistrate chooses to take cognizance, he can peruse the complaint and, if satisfied that there are sufficient grounds for proceeding, he can straightaway issue process to the accused, but before he does so, he must comply with the requirements of Section 200 and record evidence of the complainant or his witnesses.
And as held in Mohd. Yousuf v. Smt. Afaq Jahan : 2006 Cri.LJ 788, 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 F.I.R. There is nothing illegal in doing so.
It is held by this Court (Coram : M.B. Shah, J., as His Lordship then was) in Harshadbhai C. Patel v. Indravadan P. Shah 1986 GLH 102, as under:
6. ...In the case of Kedar Ram v. Ram Bharose AIR 1952 Vindhya Pradesh 49, the Judicial Commissioner has aptly described the cases wherein the Court should refer the cases for investigation of the police or in which cases the Court should proceed with the complaint without referring it to police for investigation under the provisions of Section 156(3). In Paragraph (6), the Court has held as under:
I may also point out here that even in cognizable case the complainant going to the Magistrate direct should not be sent to the police except for special reasons. Our criminal procedure gives the complainant the option of moving the police or filing a complaint. Often the former is more expeditious; and by filing complaint the complainant incurs expenses, suffers delay, risks the disappearance of clues and traces, and allows the witnesses to remain unexamined for sometime. These are important in assessing the evidence. When complainant comes to the Court directly, even in a cognizable case, it is obvious that he does not choose to go to the police and should not be driven back to them unless it is in public interest that the police should inquire or investigate. For example, there may be cases of kidnapping, abduction or violent theft or dacoity calling for immediate arrests and searches, or pursuit of the accused or the property into another jurisdiction or the stopping of a continuing offence involving danger to the public. In such cases, a private party is not capable of adequate and effective action; and they have to be made over to the police. Otherwise, the case should proceed on the complaint.No doubt, it would be 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) as in each case it depends upon facts of the case. Yet in my view also, normally in those cases wherein 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 Section 156(3) of the Criminal Procedure Code. But otherwise when the complainant is in a position to produce evidence on record, then the Court should not shirk its responsibility and refer the matter for investigation to the police.
In a recent decision dated 23-9-2008 of Supreme Court in Ketankumar Babulal Patel v. Kesarben Jesangji 2008 SCCL.Com 1240, in similar circumstances, a complaint was ordered to be registered as an F.I.R. by this Court and since it was not clear from the order of the trial Court as to which course was adopted by the Magistrate, the matter was remitted to the trial Court to expeditiously decide the matter afresh.
10. Therefore, in the peculiar facts and circumstances of the case and in the interest of full and proper investigation as also in the interest of justice, following the guidelines provided by the precedents referred hereinabove, the present petition is allowed, the impugned order dated 17-11-2008 in Criminal Revision Application No. 77 of 2008 is set aside and learned Judicial Magistrate concerned is directed to expeditiously decide afresh whether it would be proper and necessary to order an investigation in terms of the provisions of Section 156(3) after registering an F.I.R., or whether the provisions and procedure prescribed in Chapter XV of Cr.P.C. should be followed. If learned Magistrate decides to order an investigation by the police under Section 156(3) of Cr.P.C, the investigation should be ordered to be completed as expeditiously as practicable in view of the inordinate delay already caused by unnecessary and irregular procedure followed so far. Since, it was the original prayer of respondent No. 2-complainant to order an investigation under Section 156(3) and no prejudice is likely to be caused to her by the present order and learned Senior Counsel Mr. A.D. Shah has assisted the Court as an amicus curiae. Rule is issued, its service is waived by learned A.P.P. and dispensing service upon respondent No. 2. Rule is made absolute with no order as to costs.
The Court places on record appreciation of the invaluable assistance rendered by learned Senior Counsel Mr. A.D. Shah as an amicus curiae. It is such selfless service for the cause of justice that glorifies the noble legal profession of learning and public service.