REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  290    OF 2009 (Arising out of SLP (Crl.) No. 3358 of 2006)

Ram Naresh Prasad  ..Appellant

Versus

State of Jharkhand & Ors.         ..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of the Jharkhand High Court.  Appellant filed writ petition (Crl.) No. 284 of

2002 with the prayer to quash the order dated 18.2.2002 passed by learned

Sessions Judge Palamau in Criminal Revision No. 53 of 2001.  By the said

order  learned  Sessions  Judge  set  aside  order  of  learned  Chief  Judicial

Magistrate accepting the final report submitted by the police and directed

him to pass a fresh order after perusing the case diary and after hearing the

informant.  Further prayer was to quash the order passed by learned Chief

Judicial  Magistrate  on  remand taking  cognizance  of  offences  punishable

under Sections 413 and 414 of the Indian Penal Code, 1860 (in short the

‘IPC’).

3. Background facts in a nutshell are as follows:

One Arun Kumar Mishra (hereinafter referred to as the ‘informant’-

Respondent No.4) in the present appeal filed the First Information Report

(in short the ‘FIR’) at  the Bishrampur Police Station in Palamau District

against  unknown persons.  It  was stated that  in the  preceding night  some

unknown persons had stolen five idols from Thakur Bari. On the basis of

the FIR police instituted case relating to offence punishable under Sections

457 and 380 IPC. Investigation was carried out but in the absence of any

definite  clue,  the  final  report  was  submitted  on  4.1.1997,  which  was

accepted by learned Judicial Magistrate. After about one week one Raghu

Thakur was arrested on 12.1.1997 and he made an extra judicial confession

before the villagers.  On the basis of the said extra judicial confession four

persons were detained who were Raghu Thakur, Alak Singh, Dwarika Saw

and Vijay Kumar Soni. On 12.3.1997 police submitted supplementary Final

Form against the aforesaid four persons indicating commission of offences

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punishable under Sections 457, 380, 411 and 414 IPC. Final Form was filed

so far as appellant is concerned.  Learned Judicial Magistrate, First Class,

by his  judgment  dated 27.1.1999 convicted all  the  four  accused persons.

During  trial  an  application  under  Section  319  of  the  Code  of  Criminal

Procedure,  1973 (in  short  the  ‘Cr.P.C.’)  was  filed  by prosecution  with a

prayer to summon the appellant as an accused.  The said application was

dismissed by the trial court.  The same was not challenged before any higher

court but the investigation was kept alive.  Investigation was taken over by

the CID Police from the district  police.  After investigation on 22.5.1999

final report was submitted so far as the appellant was concerned.  The same

was accepted.   On 18.2.2002 after  about  two years,  respondent  No. 2,  a

practicing  advocate  who  was  neither  the  complainant  nor  having  any

connection  with  the  alleged  offence,  filed  a  revision  petition  before  the

learned Sessions  Judge,  Palamau, against  the order  dated 22.5.1999.   By

order dated 18.2.2002 the revision petition was allowed and learned CJM

was directed to hear the informant or APP, peruse case diary both original

as well as supplementary and then pass order in accordance with law.

According to the appellant no notice was issued to the appellant nor

was he heard. Though the revision petition was highly belated, the same was

admitted ex parte and that too without condonation of delay.  The appellant

had no knowledge about these subsequent  events.   On 29.8.2002 learned

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Chief Judicial  Magistrate passed an order taking cognizance for offences

punishable under Sections 413 and 414 IPC and non-bailable warrant was

issued so far as the appellant is concerned. Aggrieved by the order dated

29.8.2002 of learned CJM, appellant filed a revision petition before learned

Sessions Judge who dismissed the same. Questioning correctness of both

the aforesaid orders, a writ petition was filed which was dismissed by the

impugned order.

4. Learned counsel for the appellant submitted that the course adopted

by the revisional courts at the first instance is unknown to law. At no stage

before the order was passed by the learned Sessions Judge in revision, the

appellant was heard.  The revision petitioner had no locus standi to file the

petition as he was not the informant. Learned Sessions Judge did not decide

about  the  question  of  maintainability  of  the  revision  petition  at  first

instance.  The question of limitation was also not examined.  

5. The respondent No.2 had appeared in person and according to him

the State was taking the sides of the appellant, and he was forced to file the

revision petition.

6. Learned  counsel  for  the  State  accepted  that  if  under  Section  319

Cr.P.C. the petition was rejected, no further steps were required to be taken

by the State to question the correctness of the order on that behalf.

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7. In Abhinandan Jha and Ors. v. Dinesh Mishra (AIR 1968 SC 117) it

was observed as under:

“5. On behalf of the appellants, in Criminal Appeal No. 218 of 1966, Mr. Jha, learned counsel, pointed out that when a final report is submitted by the police, under Section 173(1) of the Code, stating that no case is made out, the Magistrate has no jurisdiction to direct the police to file a charge-sheet. It may be open,  counsel  points  out,  to  the  Magistrate,  to  direct  further investigation to be made by the police, or to treat the protest petition  filed  by the  second respondent,  as  a complaint,  and take cognizance of the offence and proceed, according to law. The scheme of Chapter XIV of the Code, counsel points out, clearly indicates that the formation of an opinion, as to whether or not there is a case to place the accused on trial, is that of the investigating  officers,  and  the  Magistrate  cannot  compel  the police to form a particular opinion on the investigation and to submit a report, according to such opinion. In this case, there is nothing to show that the protest petition, filed by the second respondent, has been treated as a complaint, in which case, it may  be  open  to  the  Magistrate  to  take  cognizance  of  the offence;  but,  in  the  absence  of  any  such  procedure  being adopted  according  to  counsel,  the  order  of  the  Magistrate directing a charge-sheet to be filed, is illegal and not warranted by the provisions  of  the Code.  These  contentions  have  been adopted, and reiterated, by Mr Nuruddin Ahmed, on behalf of the appellants, in Criminal Appeal No. 238 of 1966.

6. Both  the  learned  counsel  pressed  before  us,  for acceptance, the views, as expressed by the Gujarat High Court, in  its  Full  Bench  judgment,  reported  as  State  of  Gujarat v. Shah Lakhamshi (1966 AIR Guj. 283 (FB). On the other hand, Mr. U.P. Singh, learned counsel for the respondent, in Criminal Appeal No. 218 of 1966, has pointed out that the Magistrate has jurisdiction, in proper cases, when he does not agree with the  final  report  submitted  by  the  police,  to  direct  them  to submit  a  charge-sheet.  Otherwise,  counsel  points  out,  the petition will be that the entire matter is left to the discretion of

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the police authorities, and the Courts will be powerless, even when  they feel  that  the  action  of  the police  is  not  justified. Quite  naturally,  counsel  prays  for  acceptance  of  the  views expressed  by  the  dissenting  Judges,  in  A.K.  Roy v.  State  of W.B. (AIR 1962 Cal 135 (FB) and by the Bombay and Patna High Courts,  in the decisions reported as  State v.  Murlidhar Govardhan (AIR 1960 Bom 240),  and  Ram Nandan v.  State (AIR 1966 Pat. 438), respectively.

7. In order, properly, to appreciate the duties of the police, in  the  matter  of  investigation  of  offences,  as  well  as  their powers, it is necessary to refer to the provisions contained in Chapter XIV of the Code. That chapter deals with “Information to the Police and their Powers to investigate”; and it contains the group of sections beginning from Section 154, and ending with Section 176. Section 154 deals with information relating to the commission of a cognizable offence, and the procedure to  be adopted in respect  of the same. Section 155, similarly, deals with information in respect of non-cognizable offences. Sub-section (2), of this section, prohibits a police officer from investigating  a  non-cognizable  case,  without  the  order  of  a Magistrate. Section 156 authorises a police officer, in-charge of a police station, to investigate any cognizable case, without the order  of  a  Magistrate.  Therefore,  it  will  be  seen  that  large powers  are  conferred  on  the  police,  in  the  matter  of investigation  into  a  cognizable  offence.  Sub-section  (3),  of Section  156,  provides  for  any Magistrate,  empowered  under Section  190,  to  order  an  investigation.  In  cases  where  a cognizable offence is  suspected to have been committed,  the officer in-charge of a police station, after sending a report to the Magistrate, is entitled, under Section 157, to investigate the facts and circumstances of the case and also to take steps for the  discovery  and  arrest  of  the  offender.  Clause  (b),  of  the proviso  to  Section  157(1),  gives  a  discretion  to  the  police officer not to investigate the case, if it appears to him that there is no sufficient ground for entering on an investigation. Section 158 deals with the procedure to be adopted in the matter of a report to be sent, under Section 157. Section 159 gives power to a Magistrate, on receiving a report under Section 157, either to  direct  an  investigation  or,  himself  or  through  another Magistrate subordinate  to him, to hold a preliminary enquiry into the matter, or otherwise dispose of the case, in accordance

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with the Code. Sections 160 to 163 deal with the power of the police  to  require  attendance  of  witnesses,  examine witnesses and  record  statements.  Sections  165  and  166  deal  with  the power of police officers, in the matter of conducting searches, during  an  investigation,  in  the  circumstances,  mentioned therein. Section 167 provides for the procedure to be adopted by the police, when investigation  cannot be completed in 24 hours.  Section  168  provides  for  a  report  being  sent  to  the officer  in  charge  of  a  police  station,  about  the  result  of  an investigation,  when  such  investigation  has  been  made  by  a subordinate  police  officer,  under  Chapter  XIV.  Section  169 authorises a police officer to release a person from custody, on his executing a bond, to appear, if and when so required, before a  Magistrate,  in  cases  when,  on  investigation  under  Chapter XIV, it appears to the officer in-charge of the police station, or to the police officer making the investigation, that there is no sufficient evidence or reasonable ground of suspicion, to justify the  forwarding  of  the  accused  to  a  Magistrate.  Section  170 empowers  the  officer,  in  charge  of  a  police  station,  after investigation under Chapter XIV, and if it appears to him that there  is  sufficient  evidence,  to  forward  the  accused,  under custody, to a competent Magistrate or to take security from the accused  for  his  appearance  before  the  Magistrate,  in  cases where the offence is bailable. Section 172 makes it obligatory on  the  police  officer  making  an  investigation,  to  maintain  a diary  recording  the  various  particulars  therein  and  in  the manner indicated in that section. Section 173 provides for an investigation,  under  Chapter  XIV,  to  be  completed,  without unnecessary delay and also makes it obligatory, on the officer in  charge  of  the  police  station,  to  send  a  report  to  the Magistrate  concerned,  in  the  manner  provided  for  therein, containing the necessary particulars.

8. It  is  now  only  necessary  to  refer  to  Section  190, occurring in Chapter XV, relating to jurisdiction of Criminal Courts in inquiries and trials. That section is to be found under the heading “Conditions requisite for initiation of proceedings” and sub-section (1) is as follows:

“(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—

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(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 been committed.”

9. From the foregoing sections, occurring in Chapter XIV, it will be seen that very elaborate provisions have been made for  securing  that  an  investigation  does  take  place  into  a reported offence and the investigation is carried out within the limits  of  the  law,  without  causing  any  harassment  to  the accused and is  also completed without  unnecessary or undue delay. But the point to be noted is that the manner and method of conducting the investigation, are left entirely to the police, and the Magistrate, so far as we can see, has no power under any  of  these  provisions,  to  interfere  with  the  same.  If,  on investigation,  it  appears  to  the  officer,  in-charge  of  a  police station, or to the officer making an investigation, that, there is no  sufficient  evidence  or  reasonable  grounds  of  suspicion justifying the forwarding of an accused to a Magistrate, Section 169 says that the officer shall release the accused, if in custody, on  his  executing  a  bond  to  appear  before  the  Magistrate. Similarly, if,  on the  other  hand,  it  appears  to  the  officer,  in- charge  of  a  police  station,  or  to  the  officer  making  the investigation,  under  Chapter  XIV,  that  there  is  sufficient evidence or reasonable ground to justify the forwarding of an accused  to  a  Magistrate,  such  an  officer  is  required,  under Section 170, to forward the accused to a Magistrate; or, if the offence is bailable, to take security from him for his appearance before  such  Magistrate.  But,  whether  a  case  comes  under Section  169,  or  under  Section  170,  of  the  Code,  on  the completion of the investigation, the police officer has to submit a report  to the Magistrate,  under Section 173, in the manner indicated therein, containing the various details. The question as to whether the Magistrate has got power to direct the police to file a charge-sheet, on receipt of a report under Section 173 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report.

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10. In this connection, we may refer to certain observations, made by the Judicial Committee in  King Emperor v.  Khwaja Nazir  Ahmed (AIR 1945 PC 18)  and by this  Court,  in  H.N. Rishbud and Inder Singh v. State of Delhi (AIR 1955 SC 196). In Nazir Ahmed case (supra), Lord Porter observes, at p. 212, as follows:

“Just as it is essential that every one accused of a crime should have free access to a court of justice so  that  he  may  be  duly  acquitted  if  found  not guilty of the offence with which he is charged, so it  is  of  the  utmost  importance  that  the  judiciary should  not  interfere  with  the  police  in  matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without  requiring any authority from the judicial authorities,  and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those  statutory  rights  by  an  exercise  of  the inherent jurisdiction of the court. The functions of the  judiciary  and  the  police  are  complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own  function,  always,  of  course,  subject  to  the right  of  the  court  to  intervene  in  an  appropriate case  when  moved  under  Section  491  of  the Criminal Procedure Code to give directions in the nature  of  habeas  corpus.  In  such  a  case  as  the present,  however,  the  court’s  functions  begin when a charge is preferred before it, and not until then.”

These observations have been quoted,  with approval,  by this Court,  in  State of  West  Bengal v.  S.N.  Basak (AIR 1963 SC 447). This Court in  Rishbud and Inder Singh case (AIR 1955 SC 196) observes, at p. 1156, as follows:

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“Investigation  usually  starts  on  information  relating  to the  commission  of  an  offence  given  to  an  officer  in- charge  of  a  police  station  and  recorded  under  Section 154  of  the  Code.  If  from information  so  received  or otherwise, the officer in-charge of the police station has reason to suspect  the commission of  an offence,  he or some other  subordinate  officer  deputed  by him, has  to proceed  to  the  spot  to  investigate  the  facts  and circumstances  of  the  case  and  if  necessary  to  take measures  for  the  discovery  and  arrest  of  the  offender. Thus  investigation  primarily  consists  in  the ascertainment or the facts and circumstances of the case. By definition, it  includes all  the proceedings under the Code  for  the  collection  of  evidence  conducted  by  a police officer.”

Again, after a reference to some of the provisions in Chapter XIV of the Code, it is observed at p. 1157:

“Thus,  under  the  Code  investigation  consists generally of the following steps:  (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the  case,  (3)  Discovery  and  arrest  of  the  suspected offender,  (4)  Collection  of  evidence  relating  to  the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,  (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is case to place the accused before a Magistrate for trial and if so taking  the necessary steps  for  the  same by filing  of  a charge-sheet under Section 173…. It is also clear that the final step in the investigation viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in-charge of the police station.”

11. We are referring to these observations for the purpose of emphasizing  that  the  scheme of  Chapter  XIV, clearly  shows

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that the formation of an opinion as to whether or not there is a case to place the accused on trial, has been left to the officer in- charge  of  a  police  station.  Bearing  in  mind  these  principles referred to above, we have to consider the question that arises for  consideration,  in  this  case.  The  High Courts  which  have held  that  the  Magistrate  has  no  jurisdiction  to  call  upon the police  to file  a charge-sheet,  under such circumstances,  have rested their decision on two principles viz. (a) that there is no express provision in the Code empowering a Magistrate to pass such an order; and (b) such a power, in view of the scheme of Chapter  XIV,  cannot  be  inferred  vide  Venkata  Subba v Anjanavulu  (AIR  1932  Mad  673),  Abdul  Rahim v.  Abdul Muktadin (AIR 1953 Assam 112);  Amar Premanand v.  State (AIR 1960 Madh.  Pra 12);  the  majority view in  A.K. Roy v. State of W.B.2; and  State of Gujarat v.  Shah Lakhamshi1. On the other hand, the High Courts which have recognised such a power, rest their decision again on two grounds viz. (a) where a report  is  submitted  by  the  police,  after  investigation,  the Magistrate has to deal with it judicially, which will mean that when  the  report  is  not  accepted,  the  Magistrate  can  give suitable directions to the police; and (b) the Magistrate is given supervision over the conduct of investigation by the police, and therefore,  such a power can be recognised  in  the  Magistrate vide State v. Murlidhar Goverdhan; and Ram Nandan v. State.

12. Though it may be that a report submitted by the police may have  to  be  dealt  with  judicially,  by  a  Magistrate,  and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the further view that from these considerations alone it  can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet.  But,  we may make it clear,  that  this  is  not  to say that  the Magistrate is  absolutely powerless, because, as will be indicated later, it is open to him to take cognizance of an offence and proceed, according to law. We do not also find any such power, under Section 173(3), as is sought to be inferred, in some of the decisions cited above. As  we  have  indicated  broadly  the  approach  made  by  the various High Courts in coming to different conclusions, we do not think it necessary to refer to those decisions in detail.”

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8. Accordingly we set aside the impugned order of the High Court and

remit the matter to it to consider the following aspects :

(a) Whether  the

revision  petition  before  the  Sessions

Judge was maintainable at the instance of

Respondent  No.2  and  that  too  after

considerable length of time;

(b)  Whether the appellant needs

to be heard; and  

(c) whether the informant has to be given the notice.

9. Appeal is allowed to the aforesaid extent.

                 ....... ..............................................J. (Dr. ARIJIT PASAYAT)  

…..................................................J.          (Dr. MUKUNDAKAM SHARMA)

New Delhi  February 12, 2009

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