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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