Full Judgment Text
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PETITIONER:
RAGHUBANS DUBEY
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT:
19/01/1967
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
HIDAYATULLAH, M.
VAIDYIALINGAM, C.A.
CITATION:
1967 AIR 1167 1967 SCR (2) 423
CITATOR INFO :
R 1977 SC1172 (17)
R 1978 SC1568 (4)
R 1979 SC 339 (3,10)
ACT:
Code of Criminal Procedure (Act 5 of 1898), ss. 190(1) (b)
and 2O7-Magistrate taking cognizance of offence on police
report-Jurisdictlion to proceed against accused not sent up
by police.
Discharge of accused-Whether possible, when accused not
included in the charge-sheet.
HEADNOTE:
The police investigated into a complaint against the
appellant and others, accepted the appellant’s plea of alibi
and filed a charge sheet against the others for offences,
under ss. 302, 201 and 149 I.P.C., before the Sub-Divisional
Magistrate. The Magistrate recorded that the appellant was
discharged -and transferred the case for enquiry to another
Magistrate, who, after examining two witnesses, ordered the
issue of a non-bailable warrant against the appellant, for
proceeding against him along with the other accused under s.
207-A Cr. P.C. The order was confirmed by the Sessions
Court and High Court.
In appeal to this Court,
HELD:(1) There could be no discharge of the appellant when
he was not included as an accused in the charge-sheet
submitted by the police. [426 C]
(2)The appellant could be proceeded against along with the
other accused under S. 207-A Cr.P.C. [426 B]
The Sub-divisional Magistrate had taken cognizance of the
offence upon the written report of the police, that is,
under s. 190(1)(b), Cr. P.C Therefore, the proceeding was
instituted under s. 207(a) and not under s. 207(b) Cr.P.C.
The cognizance, however, was of the offence only and not of
the offenders. Having taken cognizance of the offence, he
had to find out who the real offenders were, and if he came
to the conclusion that apart from the persons sent up by the
police some other persons were involved. It was his duty to
proceed against those persons also. The summoning of the
appellant as an additional accused was part of the
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proceeding initiated by his taking cognizance of the
offence. [427 B-C, 4Z8 C-D]
Pravin Chandra Mody v. State of A.P. [1965] 1 S.C.R. 269,
followed.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 189 of
1964.
Appeal by special leave from the judgment and order dated
April 10, 1964 of the Patna High Court in Criminal Revision
No. 896 of 1961.
Danial Latifi and K. K. Sinha, for the appellant.
R. N. Sachthey, for the respondent.
424
The Judgment of the Court was delivered by
Sikri, J. This appeal by special leave is directed against
the judgment of the High Court of Judicature of Patna
dismissing Criminal Revision No. 896 of 1961 filed by the
appellant Raghubans Dubey. The relevant facts for
appreciating the points raised before us are as follows :-
The appellant was one of the 15 persons mentioned as
assailants in the First Information Report dated July 29,
1959, lodged by one Raja Ram Sah. The police investigated
the case and during the investigation the appellant set up
an alibi. The police accepted the alibi and did not include
his name as an accused in the final report under s. 173 of
the Code of Criminal Procedure. His name was, however,
mentioned in column No. 2 of the Charge Sheet under the
heading "not sent up". On April 5, 1961, the Sub-divisional
Magistrate passed the following order
"C. S. No. 12 dated 234-3-61 u/s 149/302/201
1. P. C. received against the accused noted in
col. 3 and 4 of C. S.
Cog. taken u/s 149/302/201 1. P. C. and case
transferred to Sri L. P. Singh Magt........
class for enquiry under Chapter XVIII Cr. P.
C. Accused not sent up for trial is
discharged."
On transfer, Shri L. P. Singh, Magistrate, took up the
hearing of the case on May 1961. In the meantime a petition
had been filed on April .1, 1961, praying that the appellant
be summoned by the Magistrate. On May 2, 1961,. Jagannath
Sao, P. W. 1, was examined and in his examinations he
implicated the appellant as one of the persons who were
present in the mob which is alleged to have killed Rupan
Singh. On the same day Mahesh Sao, P. W. 2, also implicated
the appellant in his examination-in-chief. It appears that
the counsel for Raja Ram Sah, the person who lodged the
F.I.R., requested the Magistrate to summon the appellant as
well for trial, as prayed for in the petition dated April
11, 1961, The Magistrate, after hearing the Assistant
District Prosecutor as well as the counsel for the informant
and the accused, passed the following order
" Raghubans is named in F. I. R. and as
submitted by A. D. P. 5 witnesses have named
him before police and P. W. 1 examined before
me has also named him. So in my opinion it is
, proper to add Raghubans. Dubey also in this
enquiry as accused. ’At this stage one
petition has been filed by lawyer of accused
that cross-examination of P.W.s be allowed to
be done after appearance of Raghubans. This
contention is quite
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425
reasonable otherwise cross-examination will
have to be done again after appearance of
Raghubans and so prayer .of defence is
allowed. Examined P. W. 2 also in chief. He
has also named Rahgubans to be a member of the
mob of these accused at the time of
occurrence. So issue non-bailable W/A against
Raghubans Dubey according to address given by
P.W. today as the allegation against Raghubans
be very serious one. Send the process peon
returnable by 3-6-1961. Other accused will
reattend."
The appellant challenged this order before the Sessions
Judge. it was urged before him that the Magistrate had no
jurisdiction to summon the appellant because the Sub-
divisional Magistrate had already dismissed a protest
petition on merits. The Sessions Judge rejected the
argument and held that it was open to the Magistrate to
summon any person against whom he found sufficient evidence
in the case.
The appellant then filed a criminal revision before the High
Court. Before the High Court it was urged, first, that the
petition dated April 11, 1961, was’;, a petition of
complaint and, therefore, summoning the appellant on the
basis of a petition of complaint would result in a separate
complaint case and he could not be tried along with the
other accused under s. 207A of the Code of Criminal
Procedure. Secondly, it was urged that the order of the
Magistrate was irregular as he had summoned the appellant on
the same grounds on which the Sub.divisional Magistrate had
discharged him. On the first point the High Court held that
the order of the Magistrate did not result in a separate
complaint case against the appellant as "the present case
was instituted when the sub-divisional Magistrate took
cognizance of an offence reported by the Police, and
therefore, the case shall be deemed to have been instituted
oft the police report." The High Court further observed that
"it is’ therefore, clear from the language of section 190 of
the Code that the Magistrate takes cognizance of an offence
made out in the police report or in 1 the petition of
complaint and there, is nothing like taking cognizance of
the offenders at that stage. It has to be decided on the
materials on record as to who actually the offenders may be
only after cognizance of the offence has been taken. On the
facts of the instant case, therefore, cognizance of the
offence has been taken on a police report, and the order of
the transferee Magistrate summoning Raghubans Dubey does not
amount to taking cognizance of an offence." On the second
point the High Court held that the Magistrate did not summon
the appellant only on those grounds which were before the
Sub-divisional Magistrate as the materials before the
426
two Magistrates were not identical. The Sub-divisional
Magistrate had acted on the Police report alone but the
Magistrate took into consideration the evidence of the two
prosecution witnesses examined in court as well.
The learned counsel for the appellant, Mr. Danial Latifi,
raises two points before us; first that the discharge of the
appellant by the order dated April 5, 1961, by the Sub-
divisional Magistrate was final, and secondly, that the
proper procedure to be observed on the facts of this case
was not under s. 207A but under the subsequent sections in
Chapter XVIII of the Criminal Procedure Code. We see no
force in these points.
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Regarding the first point NV. Latifi urges that judicial
refusal to summon amounts to discharge. There is no force
in, this contention because there cannot be any question of
discharge when the appellant was not sent’ up upon the
charge-sheet submitted by the police.
Coming to the second point the learned counsel for the ap-
pellant contends that no proceeding was instituted against
the appellant on a police report within the meaning of s.
207A of the Code because the appellant’s name was not
included in the charge sheet. He says that although
cognizance might have been taken of an offence under s.
190(1)(b) no proceeding as such was instituted against the
appellant at this stage; the proceeding was instituted when
a non-bailable warrant was issued against the appellant and
this proceeding was instituted not on the basis of a police
report but on the basis of evidence taken before the Ma-
gistrate, and, therefore, he says, t is a proceeding falling
within s. 207(b).
Section 190(i) and 207 of the Code read as
follows
" 190(1) Except as hereinafter provided, any
Presidency Magistrate, District Magistrate or
Sub-divisional Magistrate, and any other
Magistrate specially empowered in this behalf,
may, take cognizance of any offence-
(a) upon receiving a complaint of facts
which constitute such offence;
(b) upon a report in writing of such facts
made by any police officer;
(c) upon information received from any
person other than a police-officer, or upon
his own knowledge or suspicion, that such
offence has beer. committed."
"207. In every inquiry before a Magistrate
where the case is triable exclusively by a
court of Session or
427
High Court, or, in the opinion of the Magistrate, ought to
be tried by such Court, the Magistrate shall-
(a)in any proceeding instituted on a police report, follow
the procedure specified in s. 207A; and
(b)in any other proceeding, follow the procedure specified
in the other provisions of this Chapter."
It seems to us that s. 207(a) refers back to s. 190(1)(b);
in other words, the police reportmentioned in s. 207(a) is
the report mentioned in s. 190(1) (b), and once cognizance
is taken under s. 190(1)(b), a proceeding is instituted
within s. 207(a). Hidayatullah, J., speaking for the Court,
while considering the interpretation of s. 251-A of the Code
of Criminal Procedure in Praviu Chandra Mody v. State of
Andhra Pradesh() observed as follows
"In our judgment the meaning which is sought
to be given to a ’police report’ is not
correct. In s. 190, a distinction is made
between the classes of persons who, can start
a criminal prosecution. Under the three
clauses of s. 190(1), to which we have already
referred, criminal prosecution can be
initiated (i) by a police officer by a report
in writing, (ii) upon information received
from any person other than a police officer or
upon the Magistrate’s own knowledge or
suspicion, and (iii) upon receiving a
complaint of facts. If the report in this
casefalls within (i) above, then the procedure
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under s. 251A, Criminal Procedure Code, must
be followed. If it falls. in (ii) or (iii)
then the procedure under s. 252, Criminal
Procedure Code, must be followed. We are thus
concerned to find out whether the report of
the police officer in writing in this case can
be described as a ’complaint of facts’ or as
’information received’ from any person other
than a police officer.’ That it cannot be the
latter is obvious enough because the
information is from a police officer. The
term ’complaint’ in this connection has been
defined by the Code of Criminal Procedure and
it ’means the allegation made orally or in
writing to a Magistrate, with a view to his
taking action under the Code, that some
person, whether known or unknown, has
committed
an offence, but it does not include the report
of a police officer.’ [see s. 4(1)(h].
It, therefore, follows that s. 252, Criminal
Procedure Code, can only apply to those cases
which are instituted otherwise than on a
police report, that is to say, upon complaints
which are not reports of a police officer or
upon information received from persons other
than a police officer."
(1) [1965]1 S.C.R. 269.
428
Similarly S. 207(b) Can Only apply if the case was
instituted ,otherwise than on a police report. On the facts
of this case it is quite clear that the case does not fall
within s. 190(1)(a) or s. 190(1)(c) because the Sub-
divisional Magistrate had taken cognizance of the offence on
April 5, 1961. But, says Mr. Latifi, that though it is true
that cognizance was taken on April 5, 1961, the cognizance
was taken of the offence as far as the other accused were
concerned and not as far is the appellant was concerned, as
a Matter of fact the appellant had been rightly or wrongly
discharged. in our opinion once cognizance has been taken by
the Magistrate, he takes cognizance of an offence and not
the offenders; once he takes cognizance of an offence it is
his duty to find out who the offenders really are and once
he comes to the Conclusion that apart from the persons sent
up by the police ’Some other persons are involved it is his
duty to proceed against those persons. The summoning of the
additional accused is part of the proceeding initiated by
his taking cognizance of an offence. As pointed out by this
Court in Pravin Chandra Mody v. State Of Andhra Pradesh(1)
the term "complaint" would include allegations made against
persons unknown. If a Magistrate takes -cognizance under s.
190(1)(a) on the basis of a complaint of facts he would take
cognizance and a proceeding would be instituted ,even though
persons who had committed the offence were not ’known at
that time. The same position prevails, in our view, under
s. 190(1)(b).
Mr. Sachthey, the learned counsel for the respondent brought
-to our notice some decisions which have taken the same
view. The Calcutta High Court in Saifar v. State of West
Bengal( ), following the Full Bench decision of the Judicial
Commissioners, Sind, in Mehrab v. Emperor( ), held that when
a Magistrate takes ’Cognizance under s. 190(1)b) on a police
report he takes cognizance of the offence and not merely of
the particular persons named in the charge sheet, and
therefore, the Magistrate is entitled ,to summon additional
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accused against whom he considers that there was good
evidence, after perusal of the statements recorded by the
police under s. 161 and the other documents referred to in
s. 173 even without examination of witnesses in court.
The Punjab High Court in Fatta v. The State(4) and the
-Allahabad High Court in Ali Ullah v. The State(5) also
expressed a :similar view.
In the result the appeal fails and is dismissed.
V.P.S. Appeal dismissed.
(1) [1965] 1 S.C.R. 269. (2) A.I.R. 1962 Cal. 133.
(3) A.I.R. 1924 Sind 7 1. (4) A.I.R. 1964 Pun. 351.
(5) [1963] 1 Cr. L.J. 66.
429