MADHAO AND ANR.versusSTATE OF MAHARASHTRA AND ANR.

                          [2013) 5 S.C.R. 484


A                        MADHAO AND ANR.
                                    v.
               STATE OF MAHARASHTRA AND ANR.
                 (Criminal Appeal No.684 of 2013)
                              MAY 3, 2013
B
     [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]

          Code of Criminal Procedure, 1973 - ss.156(3) and 190
    - Government of Maharashtra framed scheme as per which
C   land was to be purchased by the Government and made
    available to SCs ~nd neo-Buddhists below the poverty line -
    Appellants while working under the Scheme were involved in
    execution of sale deeds in favour of the Government of
    Maharashtra - Complaint against appellants and others
D   alleging that under the si3id scheme, certain land was
    purchased from a dead person - Direction of Magistrate to
    the Police to investigate the matter u/s.156(3) and to submit
    a detailed report within one month - Challenged - Held:
    Magistrate before taking cognizance of the offence can order
E   investigation u/s. 156(3) - When a Magistrate receives a
    complaint he is not bound to take cognizance - If on a reading
    of the complaint, he finds that the allegations therein disclose
    a cognizable offence and forwarding of the complaint to the
    police for investigation uls. 156(3) will be conducive to justice
F   and save the valuable time of the Magistrate from being
    wasted in enquiring into a matter which was primarily the duty
    of the police to investigate, he will be justified in adopting that
    course as an alternative to taking cognizance of the offence
    itself - Where a Magistrate orders investigation by the police
G   before taking cognizance uls.156(3) and receives the report
    thereupon he can act on the report and discharge the accused
    or straightaway issue process against the accused or apply
    his mind to the complaint filed before him and take action ul
    s. 190- In the instant case, while issuing direction for

H                                  484
 MADHAO AND ANR. v. STATE OF MAHARASHTRA 485
                AND ANR.
investigation u/s. 156(3), the Magistrate did not exceed his· A
power nor violated any of the provisions contained in CrPC -
Procedure adopted and power exercised by the Magis.trate
was acceptable and in accordance with the scheme of CrPC.

    The Government of Maharashtra framed a scheme as 8
per which land was to be purchased by the Government
and made available to Scheduled Castes and neo-
Buddhists below the poverty line. As per the Scheme, a
Committee was constituted in each district and the
Collector of the district was to act as Head of the
Committee. Appellant No.1 while working as Special C
District Welfare Officer and Member Secretary of the
Samiti under the Scheme, did several transactions under
the supervision of the District Collector. Appellant No.2
was working as Assistant of appellant No.1 in the said
Scheme. She was authorized by appellant No.1 to get D
Sale deeds executed in favour of the Government of
Maharashtra under the Scheme.
     A person claiming himself to be a Social Worker, filed
a Criminal Complaint in the court of the Judicial             E
Magistrate, First Class, against the appellants, Sub-
Registrar and few more persons alleging that the
accused persons had purchased certain land from a
dead person, while the appellants were acting in their
official capacity under the said Scheme. The Magistrate       F
directed the Police to investigate the matter under
Section 156(3) CrPC and to submit a detailed report within
one month. The appellants filed application under Section
482 of Cr.P.C. seeking quashing of their prosecution.
High Court dismissed the application.                         G
    The procedure adopted and the power exercised by
the Magistrate ordering investigation under Section 156(3)
of Cr.P.C. was challenged in the instant appeals.

    The question that arose for consideration was             H
     486      SUPREME COURT REPORTS             [2013] 5 S.C.R.

A    whether the Magistrate was justified in directing the
     Police to investigate and submit a detailed report within
     one month under Section 156(3) CrPC.

           Dismissing the appeals, the Court
B      HELD: 1. Sub-section (3) of Section 156 CrPC
  enables any Magistrate empowered under Section 190
  may order such an investigation in terms of sub-section
  (1) of that section. Any judicial magistrate before taking
  cognizance of the offence can order investigation under
C Section 156(3) CrPC. If he does so, he is not to examine
  the complainant on oath. be~ause he. was ·not taking
  cognizance of any oftence therein. [Paras 11, 12] [493-C-
  D; 494-A-,B]

0.        CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. and
     Anr. (2005)7 SCC 467: 2005 (2) Suppl. SCR 873 - relied
     on.

          2.1. When a magistrate receives a complaint he is not
     bound to take cognizance, and has discretion in the
E    matter. If on a reading of the complaint, he finds that the
     allegations therein disclose a cognizable offence and the
     forwarding of the complaint to the police for investigation
     under Section 156(3) will be conducive to justice and save
     the valuable time of the magistrate from being wasted in
F    enquiring into a matter which was primarily the duty of
     the police to investigate, he will be justified in adopting
     that course as an alternative to taking cognizance of the
     offence itself. In the case of a complaint regarding the
     commission of cognizable offence, the power under
G    Section 156(3) can be invoked by the Magistrate before
     he takes cognizance of the offence under Section
     190(1)(a). However, if he once takes such cognizance and
     embarks upon the procedure embodied in Chapter XV, he
     is not competent to revert back to the pre-cognizance
H    stage and avail of Section 156(3). [Para 13] [494-C-F]
 MADHAO AND ANR. v. STATE OF MAHARASHTRA 487
                AND ANR.

     2.2. Where a Magistrate chooses to take cognizance      A
he can adopt any of the following alternatives: (a) He can
peruse the complaint and if satisfied that there ar~
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         B
record the evidence of the complainant or his witnesses;
(b) The Magistrate can postpone the issue of process and
direct an enquiry by himself; (c) The Magistrate can
postpone the issue of process and direct an enquiry by
any ·Other pers~n or an investigation by the police. [Para   C
14) [494-F-H; 495-A-B]

     2.3. In case the Magistrate after considering the
statement of the complainant and the witnesses or as a
result of the investigation and the enquiry ordered is not   D
satisfied that there are sufficient grounds for proceeding
he can dismiss the complaint. [Para 15) [495-8-C]

    2.4. Where a Magistrate orders investigation by the
police before taking cognizance under Section 156(3)
CrPC and receives the report thereupon he can act on         E
the report and discharge the accused or straightaway
issue process against the accused or apply his mind to
the complaint filed before him and take action under
Section 190 CrPC. [Para 16) [495-C-D]
                                                             F
     Devarapalli Lakshminarayana Reddy and Ors. (1976) 3
SCC 252: 1976 (0) Suppl. SCR 524 and Tula Ram and Ors.
v. Kishore Singh (1977) 4 SCC 459: 1978 (1) SCR 615 -
relied on.

    3. In the instant case, while issuing direction for      G
investigation under Section 156(3) CrPC, the magistrate
has not exceeded his power nor violated any of the
provisions contained in the Code of Criminal Procedure.
The magistrate need not order any investigation if he pre-
supposes to take cognizance of the offence and once he       H
    488       SUPREME COURT REPORTS                [2013] 5 S.C.R.


A takes cognizance of the offence, he has to follow the
  procedure provided in Chapter XV of the Code. The
  procedure adopted and the power exercised by the
  magistrate in this case is acceptable and in accordance
  with the scheme of the Code. (Paras 18, 19] (495-E-G; 496-
B A-BJ
                          Case Law Reference:
          2005 (2) Suppl. SCR 873         relied on     Para 12
          1976 (0) Suppl. SCR 524         relied on     Para 17
c
          1978 (1) SCR 615                relied on     Para 17
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 684 of 2013.

D       From the Judgment & Order dated 02.09.2009 of the High
    Court of Judicature at Bombay, Nagpur Bench, Nagpur in
    Criminal Application No. 3112 of 2006.
                                 WITH
E Crl. A. Nos. 685, 686 & 687 of 2013

        Uday U. Lalit, Gaurav Agrawal, Shankar Narayanan,
    Sharmila Upadhyay, Prashant Kumar for the Appellants.

        Shankar Chillarge, AGA, Asha Gopalan Nair, Sudhanshu
F   S. Choudhari, Watsalya Veg, Rajshri Dubey for the
    Respondents.

          The Judgment of the Court was delivered by

      P. SATHASIVAM, J. 1. Leave granted in all the special
G leave petitions.

          CRIMINAL APPEAL NO. OF 2013

          (Arising out of S.L.P. (Crl.) .No. 7293 of 2009)
H         2. This appeal is directed against the final judgment.and
 MADHAO AND ANR. v. STATE OF MAHARASHTRA 489.
        AND ANR. [P. SATHASIVAM, J.]
order dated 02.09.2009 passed by the High Court of                   A
Judicature at Bombay, Nagpur Bench, Nagpur in Crimin.al
Application No. 3112 of 2006 whereby the High Court
dismissed the appeal filed by the appellants herein while
confirming the order dated 27.09.2005, passed by the Court
of Judicial Magistrate, First Class, Ghatanji in Criminal            B
Complaint Case No. 92 of 2005.

     3. Brief facts:

       (a) The Government of Maharashtra has published a
Government Resolution on 02.06.2004 wherein it was informed          C
to the public at large that the percentage of educated un-
employed amongst the Scheduled Caste and neo-Buddhist are
on the higher side and those who are below poverty line are
required to work under different schemes and their standard
of living is consequently adversely affected. For the said reason,   D
it was resolved that land should be made available to such
people to create a source of income for them. For the said
purpose, a scheme was framed by ,name Karamveer
Dadasaheb Gaikwad Sabalikaran and Swaj)himan Yojana
Samiti. As per the Scheme, a Committee was constituted in            E
each district and the Collector of the district was to act as Head
of the Committee. The said Scheme was made applicable with
effect from 01.04.2004. As per the Scheme, land was to be
purchased by the Government and was to be made available
to the persons belonging to the Scheduled Caste and neo-             F
Buddhist who were below poverty line.

    (b) Madhao Rukhmaji Vaidya-Appellant No.1 herein while
working as Special District Welfare Officer and Member
Secretary of the Samiti under the Scheme, did several
transactions under the supervision of District Collector,            G
Yavatmal. Sau. Sadhana Mahukar Yavalkar-appellant No.2, a
Warden at Government Hostel, Ghatanji, District Yavatmal was
working as Assistant of appellant No.1 in the said Scheme. She
was authorized by appellant No.1 to get the Sale deeds
                                                                     H
    490     SUPREME COURT REPORTS                  [2013] 5 S.C.R.

A   executed in favour of the Government of Maharashtra under the
    Scheme.

         (c) On 04.04.2005, the State Government purchased
    agricultural land situated at village Koli-Bujruq. The said land
    was jointly owned by eight persons. The appellants, after
8
    perusing the revenue records of the said land purchased it from
    the Vendors by getting executed a registered sale deed. At the
    time of execution of sale deed, on 07.05.2005, an affidavit was
    sworn by the Vendors that they were residents of Mouza Koli-
c   Buzruq, Tahsil Ghatanji, District Yavatmal and were the owners
    of Gut No. 43 of the said property.

       (d) On 04.06.2005, A newspaper by name "Tarun Bharaf
  published an article in which it was alleged that the petitioners
  have purchased agricultural land showing Ramesh as alive
D while he was dead. It was further alleged that one Ramesh
  Shikaji Rathod had signed the sale deed as Ramesh Shika
  Jadhav.

      (e) On coming to know about the said publication, appellant
E No. 1 on 29.06.2005 made an enquiry and recorded the
  st~tements of the said eight Executants and on 02.07.2005
  lodged a report in Ghatanji P.S. against them for an offence of
  impersonation and cheating ..

         (f) On 07.07.2005, the officials of Ghatanji P.S. registered
F   offences punishable under Sections 420, 419, 468 arid 34 of
    the Indian Penal Code, 1860 (for short 'IPC') for the acts of
    fraud, criminal breach of trust and impersonation against the
    said accused persons vide Crime No. 88 of 2005.

G      (g) On 09.09.2005, one Rajnikant Deluram Borele,
  claiming himself to be a Social Worker, filed a Criminal
  Complaint in the court of the Judicial Magistrate, First Class,
  Ghatanji, which was registered as Case No. 92 of 2005 against
  the appellants-herein, Sub-Registrar and few more persons. In
H the complaint it was alleged that the accused had purchased
 MADHAO AND ANR. v. STATE OF MAHARASHTRA 491
        AND ANR. [P. SATHASIVAM, J.]
the land from a dead person, namely, Ramesh Shikaji Jadhav,             A
while the appellants were acting in their official capacity under
the said Scheme.

     (h) Learned Magistrate, by order dated 27.09.2005,
directed the Police to investigate the matter under Section
                                                                        8
156(3) of the Code of Criminal Procedure Code, 1973 (in short
the "Code") and to submit a detailed report within one month.

    (i) On 15.09.2006, the appellants (Madhao Rukhmaji
Vaidya and Sau. Saudhana Mahukar Yavalkar) filed an
application under Section 482 of Cr.P.C. being Criminal                 C
Application No. 3112 of 2006 before the Bombay High Court
seeking quashing of the prosecution of the applicants
(appellants herein) in Crime No. 92 of 2005.

     0) On 02.09.2009, after hearii:ig·tl'le- parties, the High Court   D
dismissed the Criminal ·Application preferred by the appellants-
herein by holding that the procedure adopted and the power
exercised by the Magistrate ordering investigation under
Section 156(3) of Cr.P.C. is just and proper.

     (k) Being aggrieved, appellants herein filed SLP No. 7293          E
of 2009.

     CRIMINAL APPEAL NO. OF 2013

     (Arising out of S.L.P. (Crl.) No. 7324 of 2009)
                                                                        F
    4. On 27.09.2006, one of the accused, namely,· Akash
Dattatraya Marawar (A-1), business man, also filed Criminal
Application No. 3242 of 2006 before the High Court seeking
quashing of the prosecution in Crime No. 92 of 2005. The High
Court, by order dated 02.09.2009, dismissed the application.            G
Being aggrieved, he filed special leave petition No. 7324 of
2009.

     CRIMINAL APPEAL NO. OF 2013
     (Arising out of S.L.P. (Crl.) No. 7332 of 2009)                    H
    492      SUPREME COURT REPORTS                   [2013] 5 S.C.R.


A      5. On 24.10.2006, another accused, namely, Omprakash
  Hiralal Jaiswal, Sub-Registrar, also filed Criminal Application
  No. 3526 of 2006 before the High Court seeking quashing of
  the prosecution in Crime No. 92 of 2005. The High Court, by
  order dated 02.09.2009, dismissed the application. Being
B aggrieved, he filed special leave petition No. 7332 of 2009.

          CRIMINAL APPEAL NO. OF 2013

          (Arising out of S.L.P. (Crl.) No. 7693 of 2009)

c         6 On 29.10.2006, one of the accused, namely, Aslam
    Shakil Julphikar Khan, employee of Akash Dattatraya Marawar
    (A-1), business man, also filed Criminal Application No. 3240
    of 2006 before the High Court seeking quashing of the
    prosecution in Crime No. 92 of 2005. The High Court, by order
0   dated 02.09.2009, dismissed the application. Being aggrieved,
    he filed special leave petition No 7693 of 2009.

        7. Heard Mr. Uday U. Lalit, learned senior counsel for the
    appellant and Mr. Shankar Chillarge, learned Additional
    Advocate General for the respondent-State of Maharashtra.
E
         8. The only point for consideration in all these appeals is
    whether the learned Magistrate is justified in directing the Police
    to investigate and submit a detailed report within one month
    under Section 156(3) of the Code.
F
       9. The order of the learned Magistrate shows that before
  passing the direction for investigation under Section 156(3),
  heard the counsel for the complainant, perused the allegations
  made against the accused in the complaint and documents
  annexed therewith. It also shows that taking note of the fact that
G some of the accused are public officers and after observing that
  it needs proper investigation prior to the issue of process
  against the accused under Section 156(3) of the Code directed
  the P.S.O. Ghatanji to investigate the matter and submit a
  detailed report within one month.
H
 MADHAO AND ANR. v. STATE OF MAHARASHTRA 493
        AND ANR. [P. SATHASIVAM, J.]
    10. Chapter XIV of the Code speaks about conditions             A
requisite for initiation of proceedings. Section 190 deals with
cognizance of offences by Magistrates. In terms of sub-section
(1} subject to the provisions of the said Chapter, any Magistrate
of first class, and any Magistrate of the second class specially
empowered in this behalf under sub-section (2), may take            B
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.                                         c
     11. Sub-section (3) of Section 156 of the Code enables
any Magistrate empowered under Section 190 may order such
an investigation in terms of sub-section (1} of that section.

     12. In CREF Finance Ltd. vs. Shree Shanthi Homes (P)           D
Ltd. and Another, (2005) 7 sec 467, while considering the
power of a Magistrate taking cognizance of the offence, this
Court held:

    "10..... Cognizance is taken at the initial stage when the      E
    Magistrate peruses the complaint with a view to ascertain
    whether the commission of any offence is disclosed. The
    issuance of process is at a later stage when after
    considering the material placed before it, the court decides
    to proceed against the offenders against whom a prima
                                                                    F
    facie case is made out. It is possible that a complaint may
    be filed against several persons, but the Magistrate may
    choose to issue process only against some of the accused.
    It may also be that after taking cognizance and examining
    the complainant on oath, the court may come to the
    conclusion that no case is made out for issuance of             G
    process and it may reject the complaint. It may also be that
    having considered the complaint, the court may consider
    it appropriate to send the complaint to the police for
    investigation under Section 156(3) of the Code of Criminal
                                                                    H
    494      SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A         Procedure .... "

    It is clear 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
8   on oath because he was not taking cognizance of any offence
    therein.

       13. When a magistrate receives a complaiht he is not
  bound to take cognizance if the facts alleged in the complaint
  disclose the commission of an offence. The magistrate has
C discretion in the matter. If on a reading of the complaint, he finds
  that the allegations therein disclose a cognizable offence and
  the forwarding of the complaint to the police for investigation
  under Section 156(3) will be conducive to justice and save the
  valuable time of the magistrate from being wasted in enquiring
D into a matter which was primarily the duty of the police to
  investigate, he will be justified in adopting that course as an
  alternative to taking cognizance of the offence itself. As said
  earlier, in the case of a complaint regarding the commission
  of cognizable offence, the power under Section 156(3) can be
E invoked by the Magistrate before he takes cognizance of the
  offence under Section 190(1 )(a). However, if he once takes
  such cognizance and embarks upon the procedure embodied
  in Chapter XV, he is not competent to revert back to the pre-
  cognizance stage and avail of Section 156(3).
F
        14. Where a Magistrate chooses to take cognizance he
    can adopt any of the following alternatives:

                 (a) He can peruse the complaint and if satisfied that
                 there are sufficient grounds for proceeding he can
G                straightaway issue process to the accused but
                 before he does so he must comply with the
                 requirements of Section 200 and record the
                 evidence of the complainant or his witnesses.

                 (b) The Magistrate can postpone the issue of
H
 MADHAO AND ANR. v. STATE OF MAHARASHTRA                       495
        AND ANR. [P. SATHASIVAM, J.]
            process and direct an enquiry by himself.                  A .

            (c) The Magistrate can postpone the issue of
            process and direct an enquiry by any other person
            or an investigation by the police.

     15. In case the Magistrate after considering the statement        B
of the complainant and the witnesses or as a result of the
investigation and the enquiry ordered is not satisfied that there
are sufficient grounds for proceeding he can dismiss the
complaint.
                                                                       c
     16. Where a Magistrate orders investigation by the police
before taking cognizance under Section 156(3) of the Code and
receives the report thereupon he can act on the report and
discharge the accused or straightaway issue process against
the accused or apply his mind to the complaint filed before him        D
and take action under Section 190 of the Code.

    17. The above principles have been reiterated in
Devarapalli Lakshminarayana Reddy and Others vs. V.
Narayana Reddy and Others, (1976) 3 SCC 252 and Tula
Ram and Others vs. Kishore Singh, (1977) 4 SCC 459                     E

       18. Keeping the above principles, if we test the same with
·the direction issued by the magistrate for investigation under
 Section 156(3) of the Code and facts of these cases, we are
 satisfied that the magistrate has not exceeded his power nor          F
 violated any of the provisions contained in the Code. As
 observed earlier, the magistrate need not order any
 investigation if he pre-supposes to take cognizance of the
 offence and once he takes cognizance of the offence, he has
 to follow the procedure provided in Chapter XV of the Code. It        G
 is also settled position that any judicial magistrate before taking
 cognizance of the offence can order investigation under Section
 156(3) of the Code.

     19. As rightly observed by the High Court, the magislrate
                                                                       H
    496     SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A before taking cognizance of the offence can order investigation
  under Section 156(3) of the Code, we are of the view that the
  procedure adopted and the power exercised by the magistrate
  in this case is acceptable and in accordance with the scheme
  of the Code. We are also satisfied that the High Court rightly
B refused to exercise its power under Section 482 of the Code.

         20. In the light of the above discussion and conclusion, we
    find no merit in all these appeals, consequently, the same are
    dismissed.

C B.B.B.                                      Appeals dismissed.