Full Judgment Text
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PETITIONER:
H. S. BAINS DIRECTOR SMALL SAVING-CUM-DEPUTY SECRETARY,FINAN
Vs.
RESPONDENT:
THE STATE (UNION TERRITORY OF CHANDIGARH)
DATE OF JUDGMENT10/10/1980
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SARKARIA, RANJIT SINGH
CITATION:
1980 AIR 1883 1981 SCR (1) 935
1980 SCC (4) 631
CITATOR INFO :
RF 1981 SC 877 (20)
E&F 1989 SC 885 (14)
ACT:
Code of Criminal Procedure 1898-Section 190(1)(b) and
(c)-Scope of-Magistrate ordered investigation under section
156(3)-Police submitted report under section 173-Disagreeing
with police report Magistrate directed issue of process-
Magistrate if competent to take cognizance of complaint
under section 190(1)(b).
HEADNOTE:
On a complaint by the complainant that the appellant,
armed with a revolver and accompanied by two persons,
trespassed into his house and threatened to kill him, the
Magistrate ordered investigation by the police under section
156(3) of the Code of Criminal Procedure. In their report
under section 173 the police stated that the complaint was
false in that on the date and time mentioned therein, the
appellant was at a different place far away from the place
where the complainant alleged that the appellant had
threatened to kill him. Disagreeing with the conclusion of
the police the Magistrate took cognizance of the case under
sections 448, 451 and 506 I.P.C. and directed the issue of
process to the appellant. The appellant’s petition seeking
to quash the proceedings before the Magistrate was dismissed
by the High Court.
In appeal to this Court, it was contended on behalf of
the appellant that the Magistrate was not competent to take
cognizance of the case as if it was upon a police report
since the report under section 173 by the police did not
disclose any offence having been committed by the appellant.
Dismissing the appeal
^
HELD: Where the Magistrate, on receiving a complaint
orders investigation under section 156(3) and receives a
report under section 173 to the effect that no offence was
disclosed against the accused, the Magistrate might either
(i) decide that there is no sufficient ground for proceeding
further and drop action or (ii) he may take cognizance of
the offence under section 190(1)(b) and issue process
without being bound in any manner by the conclusion of the
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police or (iii) he may take cognizance of the offence under
section 190(1)(a) on the basis of the original complaint and
proceed to examine upon oath the complainant and his
witnesses under section 200. If he adopts the third
alternative, he may hold or direct an enquiry under section
202 if he thinks fit. Thereafter he may dismiss the
complaint or issue process as the case may be. [940E-G]
In any event, it is impossible to say that the
Magistrate, who takes cognizance of an offence on the basis
of the facts disclosed in the police report,
936
must be said to have taken cognizance of the offence "on
suspicion" and not upon police report, merely because he and
the police arrived at different conclusions from the facts.
The Magistrate is not bound by the conclusions of the
police: if he ignores their conclusions and takes cognizance
of the offence himself, he does so upon the facts disclosed
by the police report though not on the conclusions arrived
at by them. In such a case, it cannot be said that he was
taking cognizance "on suspicion". [942E-H]
In Abhinandan Jha & ors. v. Dinesh Mishra [1967] 3 SCR
668, where this Court stated that the Magistrate could take
cognizance of the offence under section 190(1)(c)
notwithstanding the contrary opinion of the police, the
reference to sub-clause (c) therein was a mistake for sub-
clause (b). The argument of the appellant that the Court, in
this case, had apparently taken the view that the Magistrate
could take cognizance of the offence not under section 190
(1)(b) as if it was a police report but under section
190(1)(c) as if it was "on suspicion" is not sustainable,
because section 190(1)(c) was never intended to apply to
cases where there was a police report under section 173(1).
[942C-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
687 of 1980.
Appeal by Special Leave from the Judgment and Order
dated 18-4-1980 of the Punjab and Haryana High Court in Crl.
Misc. No. 26-M/1980.
Mrs. Urmila Sirur for the Appellant.
Mrs. Shobha Dixit and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J.-On August 13, 1979, Gurnam Singh a
resident of Chandigarh submitted a complaint to the Judicial
Magistrate 1st Class Chandigarh, alleging that the appellant
H. S. Bains accompanied by two persons had come to his house
in a car on the morning of August 11, 1979, at about 8 a.m.,
tress-passed into the house and threatened to kill him and
his natural son if he did not take away his natural son Aman
Deep Singh from the house of his sister Bakshish Kaur, who
had taken the boy in adoption as she was issueless. Bakshish
Kaur was the widow of the brother of the appellant and the
adoption made by Bakshish Kaur was not to the liking of the
appellant. It was alleged in the complaint that the
appellant was armed with a revolver which he pointed at the
complainant. The complainant raised a hue and cry. The
accused and his companions fled away in their car. As August
11, 1979 and August 12, 1979 were holidays, he was able to
file the complaint only on 13th August, 1979. The learned
Magistrate to whom the complaint was submitted ordered an
investigation by the police under Sec. 156(3) of the Code of
Criminal Procedure. The police after completing the
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investigation,
937
submitted a report to the Magistrate under Sec. 173 of the
Code of Criminal Procedure stating that the case against the
appellant was not true and that it might be dropped. The
police arrived at the conclusion that the case against the
appellant was not true as their investigation revealed,
according to them, that the appellant was at Amritsar with
Shri Jai Singh, District Magistrate of Amritsar at 9 a.m. on
August 11, 1979 and it was, therefore, impossible for him to
have been at Chandigarh at 8 a.m. on August 11, 1979. The
learned Magistrate after perusing the report submitted by
the police disagreed with the conclusion of police, took
cognizance of the case under Sections 448, 451 and 506 of
the Indian Penal Code and directed the issue of process to
the appellant. Aggrieved by the issue of process, the
appellant filed Criminal Miscellaneous Case No. 26-M of
1980, in the High Court of Punjab and Haryana to quash the
proceedings before the Magistrate. The application was
dismissed by the High Court and the appellant filed a
petition for the grant of special leave to appeal against
the order of the High Court. We granted Special Leave and
straightaway heard the appeal with the consent of the
parties.
Shri Kapil Sibal urged that the Magistrate had issued
process to the accused without recording the statement, on
oath, of the complainant and the witnesses under Sec. 200
Criminal Procedure Code and therefore, he must be taken to
have taken cognizance of the case under Sec. 190(1)(b), as
if upon a police report. Shri Sibal submitted that the
Magistrate was not competent to take cognizance of the case
as if it was upon a police report as the report under Sec.
173 Criminal Procedure Code submitted to him disclosed that
no offence had been committed by the accused. According to
Shri Sibal, in the circumstances of the case, the
Magistrate, on receipt of the report under Sec. 173 Criminal
Procedure Code to the effect that the case against the
accused was not proved, had only two options before him. He
could either order a further investigation or he could take
cognizance of the case as if upon a complaint, record the
statements of the complainant and witnesses under Sec. 200
Criminal Procedure Code and then proceed to issue process if
he was satisfied that process ought to be issued. In any
case Shri Sibal submitted that the order of the Ist Class
Magistrate taking cognizance of the case was so unjudicial
that it ought to be struck down. Shri Sibal invited our
attention to two decisions of this Court: Abhinandan Jha &
Ors. v. Dinesh Mishra; and Tula Ram & Ors. v. Kishore Singh.
938
Chapter XII of the Code of Criminal Procedure 1973
deals with information to the Police, and their powers to
investigate. Sec. 156 (1) vests in an officer incharge of a
Police Station the power to investigate any cognizable case,
without the order of a Magistrate. Sec. 156(3) authorises a
Magistrate, empowered under Sec. 190, to order an
investigation as mentioned in Sec. 156(1). The provisions
from Sec. 157 onwards are concerned with the power and
procedure for investigation. Sec. 169 prescribes that if
upon an investigation it appears to the officer incharge of
the Police Station that there is no sufficient evidence or
reasonable ground of suspicion to justify the forwarding of
the accused to a Magistrate, such officer shall, if such
person is in custody, release him on his executing a bond
(with or without sureties) to appear if and when required,
before a Magistrate empowered to take cognizance of an
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offence on a police report and to try the accused or commit
him for trial. Sec. 170 prescribes that if upon
investigation it appears to the officer incharge of the
Police Station that there is sufficient evidence or
reasonable ground of suspicion to justify the forwarding of
the accused to a Magistrate, such officer shall forward the
accused under custody to a Magistrate empowered to take
cognizance of an offence on a police report and to try the
accused or commit him for trial. If the offence is bailable
the officer shall take security from him for his appearance
before such Magistrate on a day fixed and for his attendance
from day to day before such Magistrate until otherwise
directed. Sec. 173(1) casts a duty upon the police officer
to complete the investigation without unnecessary delay.
Sec. 173(2) prescribes that as soon as the investigation is
completed the officer incharge of the police station shall
forward to a Magistrate empowered to take cognizance of an
offence on a police report, a report in the prescribed form
stating the various particulars mentioned in that sub-
section.
Sec. 190(1) which occurs in Chap. XIV (Conditions
requisite for initiation of proceedings) may be extracted at
this stage. It is as follows:
"190(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;
939
(c) upon information received from any person
other than a police officer, or upon his own
knowledge, that such offence has been committed".
What has been extracted is Sec. 190 as it stands at present.
Sec. 190 of the previous Code was slightly different. Clause
(1)(b) read as "upon a report in writing of such facts made
by any police-officer". In clause (1)(c) after the word
’knowledge’, the words ’or suspicion’ occurred, and these
words have now been omitted.
Chapter XV (Sections 200 to 203) of the Code deals with
"complaints to Magistrates". A Magistrate taking cognizance
of an offence on complaint is required by Sec. 200 to
examine the complainant and the witnesses present, if any.
Sec. 202 provides that a Magistrate taking cognizance of a
case upon complaint, may, 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, for the purpose of deciding whether or not there is
sufficient ground for proceeding. Sec. 203 empowers the
Magistrate to dismiss the complaint, if, after considering
the statements on oath (if any) of the complainant and of
the witnesses and the result of the enquiry or investigation
(if any) under Sec. 202, the Magistrate is of the opinion
that there is no sufficient ground for proceeding. Chapter
XVI deals with "commencement of proceedings before
Magistrate" and Sec. 204 enables a Magistrate to issue
summons or a warrant as the case may be to secure the
attendance of the accused if in the opinion of the
Magistrate taking cognizance of the offence there is
sufficient ground for proceeding.
It is seen from the provisions to which we have
referred in the preceding paragraphs that on receipt of a
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complaint a Magistrate has several courses open to him. He
may take cognizance of the offence and proceed to record the
statements of the complainant and the witnesses present
under Sec. 200. Thereafter, if in his opinion there is no
sufficient ground for proceeding he may dismiss the
complaint under Sec. 203. If in his opinion there is
sufficient ground for proceeding he may issue process under
Sec. 204. However, if he thinks fit, he may postpone the
issue of process and either enquire into the case himself or
direct an investigation to be made by a Police Officer or
such other person as he thinks fit for the purpose of
deciding whether or not there is sufficient ground for
proceeding. He may then issue process if in his opinion
there is sufficient ground for proceeding or dismiss the
complaint if there is no sufficient ground for proceeding.
On the other hand, in the first instance, on receipt
940
of a complaint, the Magistrate may, instead of taking
cognizance of the offence, order an investigation under Sec.
156(3). The police will then investigate and submit a report
under Sec. 173(1). On receiving the police report the
Magistrate may take cognizance of the offence under Sec.
190(1)(b) and straightaway issue process. This he may do
irrespective of the view expressed by the police in their
report whether an offence has been made out or not. The
Police report under Sec. 173 will contain the facts
discovered or unearthed by the police and the conclusion
drawn by the police therefrom. The Magistrate is not bound
by the conclusions drawn by the Police and he may decide to
issue process even if the Police recommend that there is no
sufficient ground for proceeding further. The Magistrate
after receiving the Police report, may, without issuing
process or dropping the proceeding decide to take cognizance
of the offence on the basis of the complaint originally
submitted to him and proceed to record the statements upon
oath of the complainant and the witnesses present under Sec.
200 Criminal Procedure Code and thereafter decide whether to
dismiss the complaint or issue process. The mere fact that
he had earlier ordered an investigation under Sec. 156(3)
and received a report under Sec. 173 will not have the
effect of total effacement of the complaint and therefore
the Magistrate will not be barred from proceeding under
Sections 200, 203 and 204. Thus, a Magistrate who on receipt
of a complaint, orders an investigation under Sec. 156(3)
and receives a police report under Sec. 173(1), may,
thereafter, do one of three things: (1) he may decide that
there is no sufficient ground for proceeding further and
drop action; (2) he may take cognizance of the offence under
Sec. 190(1)(b) on the basis of the police report and issue
process; this he may do without being bound in any manner by
the conclusion arrived at by the police in their report: (3)
he may take cognizance of the offence under Sec. 190(1)(a)
on the basis of the original complaint and proceed to
examine upon oath the complainant and his witnesses under
Sec. 200 If he adopts the third alternative, he may hold or
direct an inquiry under Sec. 202 if he thinks fit.
Thereafter he may dismiss the complaint or issue process, as
the case may be.
In Abhinandan Jha & Ors. v. Dinesh Mishra, (supra) the
question arose whether a Magistrate to whom a report under
Sec. 173(1) had been submitted to the effect that no case
had been made out against the accused, could direct the
police to file a charge-sheet, on his disagreeing with the
report submitted by the Police. This Court held that the
Magistrate had no jurisdiction to direct the police to
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submit a charge-sheet. It was open to the Magistrate to
agree or
941
disagree with the police report. If he agreed with the
report that there was no case made out for issuing process
to the accused, he might accept the report and close the
proceedings. If he came to the conclusion that further
investigation was necessary he might make an order to that
effect under Sec. 156(3). If ultimately the Magistrate was
of the opinion that the facts set out in the police report
constituted an offence he could take cognizance of the
offence, notwithstanding the contrary opinion of the police
expressed in the report. While expressing the opinion that
the Magistrate could take cognizance of the offence
notwithstanding the contrary opinion of the police the Court
observed that the Magistrate could take cognizance under
Sec. 190(1)(c)’. We do not have any doubt that the reference
to ’Sec. 190(1)(c)’ was a mistake for ’Sec. 190(1)(b)’. That
appears to be obvious to us. But Shri Kapil Sibal urged that
the reference was indeed to Sec. 190(1)(c) since at that
time Sec. 190(1)(c) included the words ’or suspicion’ and
the Court had apparently taken the view that the Magistrate
could take cognizance of the offence not under Sec. 190(1)
(b) as if on a police report but under Sec. 190(1)(c) as if
on suspicion’. We do not agree with this submission. Sec.
190(1)(c) was never intended to apply to cases where there
was a police report under Sec. 173(1). We find it impossible
to say that a Magistrate who takes cognizance of an offence
on the basis of the facts disclosed in a police report must
be said to have taken cognizance of the offence on suspicion
and not upon a police report merely because the Magistrate
and the Police arrived at different conclusions from the
facts. The Magistrate is not bound by the conclusions
arrived at by the police even as he is not bound by the
conclusions arrived at by the complainant in a complaint. If
a complainant states the relevant facts in his complaint and
alleges that the accused is guilty of an offence under Sec.
307 Indian Penal Code the Magistrate is not bound by the
conclusion of the complainant. He may think that the facts
disclose an offence under Sec. 324 Indian Penal Code only
and he may take cognizance of an offence under Sec. 324
instead of Sec. 307. Similarly if a police report mentions
that half a dozen persons examined by them claim to be eye
witnesses to a murder but that for various reasons the
witnesses could not be believed, the Magistrate is not bound
to accept the opinion of the police regarding the
credibility of the witnesses. He may prefer ignore the
conclusions of the police regarding the credibility of the
witnesses and take cognizance of the offence. If he does so,
it would be on the basis of the statements of the witnesses
as revealed by the police report. He would be taking
cognizance upon the facts disclosed by the police
942
report though not on the conclusions arrived at by the
police. It could not be said in such a case that he was
taking cognizance on suspicion.
In Tula Ram & Ors. v. Kishore Singh (supra) the
Magistrate, on receiving a complaint, ordered an
investigation under Sec. 156(3). The Police submitted a
report indicating that no case had been made out against the
accused. The Court, however, recorded the statements of the
complainant and the witnesses and issued process against the
accused. It was contended that the Magistrate acted without
jurisdiction in taking cognizance of the case as if upon a
complaint when the police had submitted a report that no
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case had been made out against the accused. This Court held
that the Magistrate acted within his powers and observed
that the complaint did not get exhausted as soon as the
Magistrate ordered an investigation under Sec. 156(3). We
are, therefore unable to agree with the submission of Shri
Sibal that the Magistrate acted without jurisdiction in
taking cognizance of the offence and issuing process to the
accused notwithstanding the fact that the police report was
to the effect that no case had been made out.
We do not propose to say a word about the merits of the
case since it was entirely a matter for the learned
Magistrate to take cognizance or not to take cognizance of
the several offences. We however wish to observe that it was
wholly unnecessary for the Magistrate to write such an
elaborate order as if he was weighing the evidence and
finally disposing of the case. We also desire to say that
some of the observations of the learned Magistrate about the
District Magistrate were wholly uncalled for as the latter
was yet to appear before him as a witness. We are told that
the case has already been transferred to some other
Magistrate. It is, therefore, unnecessary to say anything
further in the matter. The appeal is, therefore, dismissed.
P.B.R. Appeal dismissed
943