REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.           964        OF 2008   (Arising out of SLP (Crl.) No. 5189 of 2007)

Chittaranjan Mirdha …Appellant

Versus

Dulal Ghosh & Anr. …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 Calcutta High Court quashing the cognizance taken by learned Addl.  

District and Sessions Judge, 4th  Court  Alipore in Canning PS case No. 160  

relating  to  offences  punishable  under  Section  302/34/120B of the  Indian  

Penal Code, 1860 (in short the ‘IPC’) read with Section 25 and 27 of the  

Arms  Act,  1959  (in  short  the  ‘Arms  Act’)  pending  trial  before  the  

Additional Chief Judicial Magistrate District South 24 Parganas.  

3. Background facts in a nutshell are as follows:

A complaint was lodged by the appellant with the Inspector in charge  

of  Canning  police  station  alleging  that  on  25.12.2000  at  about  12  noon  

when  his  son  Dipak  Mirdha  was  in  a  saloon  under  the  name and  style  

“Sundaram” at Canning bus stand, he suddenly sustained a gunshot injury  

on  his  person.   Upon  hearing  the  sound  of  such  gunshot  and  the  chaos  

which resulted thereby, the third son of the complainant rushed to the spot.  

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With the help of others the victim was shifted to Canning Hospital where he  

was declared dead. There was previous enmity between the victim and one  

Azimuddin Laskar of Basanti Police Station and Kartick Bose of Canning  

Police Station over the decoration of Canning Dock Ferry Ghat. In 1999,  

one Anil Thakur was murdered by some antisocial elements near Canning  

Hospital.  Arnab  Roy,  Pradhan  of  Dighirpar  Gram  Panchayat,  falsely  

implicated the complainant's son being the victim, in connection with that  

murder.

On the  basis  of  such  complaint,  Canning  P.S.  case  No.160  dated  

25.12.2000 was started. After completion of investigation, the Investigating  

Authority  submitted  chargesheet  No.  141  dated  2.9.07.2001  implicating  

Animesh Halder @ Kuche, Rajesh Dhali, Selim Gayan, Rafique Dhali and  

Rajab Ali @ Doktar as accused persons. On the basis of such chargesheet,  

the Learned Court of Sub-Divisional Judicial Magistrate, Alipore, by order  

dated 31.08.2001 took cognizance of offences under sections 302/34/120B  

of  the  Indian  Penal  Code read  with  Section  25/27  of  the  Arms Act  and  

directed  issuance  of  warrants  of  arrest  against  the  absconding  accused  

persons.

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After about 27 months i.e. on 27.2.03 the defacto complainant i.e. the  

present  appellant  filed  an  application  before  the  Ld.  Court  of  Sub-

Divisional  Judicial  Magistrate  praying  for  direction  upon the DIG, CID,  

West Bengal to cause further investigation in terms of Section 173(8) of the  

Code of Criminal Procedure Code, 1973 (in short the ‘Code’) .

Learned Sub-Divisional Judicial Magistrate, Alipore, by order dated  

27.2.2003, in response to such prayer directed the DIG, CID, West Bengal,  

to investigate the aforesaid case under Section 173(8) of the Code.

The  learned  court  by  order  dated  9.6.2005  directed  issuance  of  

warrant of arrest was issued against the respondent no.1.  

Being aggrieved by the said order dated 27.2.003 and order dated  

9.6.2005,  the  respondent  no.1  moved  a  revisional  application  being  

Criminal  Motion  No.  484  of  2005  before  the  Learned  Sessions  Judge,  

Alipore. Learned 4th  Court of Additional. Sessions Judge, Alipore, who by  

order dated 13.3.2006 rejected the application on the ground that there was  

no scope to reopen the matter in view of an earlier application filed by one  

Arnab  Roy,  against  the  said  dated  27.2.2003  and  disposal  of  the  said  

application being Criminal Motion No. 100/03 by order dated 21.1.2004.

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4. Learned counsel for the respondent no.1 referring to the backdrop of  

the present case submitted that admittedly after completion of investigation  

of the case under reference police authority submitted chargesheet for the  

offences which include a serious offence under section 302 of Indian Penal  

Code. The Learned Court on receipt of the said chargesheet took cognizance  

of the offences. It could be that the FIR named accused persons were left  

out in the chargesheet, whereas few others were implicated.

5. It cannot be denied that in such a situation it was the duty on the part  

of the learned Court to issue notice upon the de-facto complainant and give  

him an opportunity of hearing. The learned Court ought to have given the  

de-facto  complainant  a  chance  to  have  his  say  over  the  result  of  

investigation.  Curiously enough that was not  done. The learned Court  in  

response to a subsequent prayer made by the de-facto complainant directed  

further investigation and that too, by an officer,  not below the rank of a  

Inspector to be selected by the DIG, CID, West Bengal.

6. A  petition  under  Section  482  of  the  Code  was  filed  before  the  

Calcutta High Court  questioning the correctness of the order passed. The  

High Court observed that the order of taking cognizance deserved to be set  

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aside.   Learned  Additional  Chief  Judicial  Magistrate  was  directed  to  

consider  the  relevant  materials  as  well  as  the  charge  sheet  No.  141  of  

29.7.2001.

7. It  was  directed  that  while  taking  note  of  the  matter  for  fresh  

consideration a notice was required to be sent to the de facto complainant  

and giving de facto complainant an opportunity of hearing which was to be  

done before the order was passed.

8. In  response  to  the  prayer  made  by  the  investigating  officer  for  

discharge of the pending of the FIR of the accused persons, it was also held  

that the Court was to take into consideration all that happened in the case  

and to pass appropriate orders.

9. In support of the appeal, learned counsel for the appellant submitted  

that the course adopted cannot be maintained in law.

10. Learned  counsel  for  the  respondent  No.  1,  on  the  other  hand,  

supported the judgment of the High Court.

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11. There is  no provision  in  the Code to  file  a protest  petition  by the  

informant  who lodged the first  information  report.  But  this  has  been the  

practice. Absence of a provision in the Code relating to filing of a protest  

petition  has  been  considered.  This  Court  in  Bhagwant  Singh v.  

Commissioner of Police and Another (AIR 1985 SC 1285), stressed on the  

desirability of intimation being given to the informant when a report made  

under Section 173 (2) is under consideration. The Court held as follows:

“....There can, therefore, be no doubt that when, on  a  consideration  of  the  report  made  by  the  officer  in  charge  of  a  police  station  under  Sub-Section  (2)(i)  of  Section  173,  the  Magistrate  is  not  inclined  to  take  cognizance  of  the  offence  and  issue  process,  the  informant must be given an opportunity of being heard  so  that  he  can  make  his  submission  to  persuade  the  Magistrate to take cognizance of the offence and issue  process.  We are accordingly of the view that in a case  where  the  Magistrate  to  whom  a  report  is  forwarded  under  Sub-section  (2)(i)  of  Section  173 decides  not  to  take  cognizance  of  the  offence  and  to  drop  the  proceeding or takes the view that there is no sufficient  ground  for  proceeding  against  some  of  the  persons  mentioned  in  the  First  Information  Report,  the  Magistrate must give notice to the informant and provide  him  an  opportunity  to  be  heard  at  the  time  of  consideration of the report...”

12. Therefore, there is no shadow of doubt that the informant is entitled  

to a notice and an opportunity to be heard at the time of consideration of the  

report.   This Court further held that the position is different so far as an  

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injured person or  a relative of the deceased,  who is not  an informant,  is  

concerned.   They are not entitled to any notice.  This Court felt  that  the  

question  relating  to  issue  of  notice  and  grant  of  opportunity  as  afore-

described  was  of  general  importance  and  directed  that  copies  of  the  

judgment be sent to the High Courts in all the States so that the High Courts  

in  their  turn  may circulate  the  same among the  Magistrates  within  their  

respective jurisdictions.

13. In  Abhinandan  Jha  and  Another v.  Dinesh  Mishra (AIR 1968  SC  

117), this Court while considering the provisions of Sections 156(3), 169,  

178 and 190 of the Code held that there is no power, expressly or impliedly  

conferred, under the Code, on a Magistrate to call upon the police to submit  

a charge sheet, when they have sent a report under Section 169 of the Code,  

that  there  is  no  case  made out  for  sending  up an  accused  for  trial.  The  

functions  of  the Magistrate  and the  police  are entirely different,  and the  

Magistrate  cannot  impinge  upon  the  jurisdiction  of  the  police,  by  

compelling  them to  change  their  opinion  so  as  to  accord  with  his  view.  

However, he is not deprived of the power to proceed with the matter. There  

is no obligation on the Magistrate to accept the report if he does not agree  

with  the  opinion  formed  by  the  police.   The  power  to  take  cognizance  

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notwithstanding formation of the opinion by the police which is the final  

stage in the investigation has been provided for in Section 190(1)(c).  

14. When  a  report  forwarded  by  the  police  to  the  Magistrate  under  

Section 173(2)(i) is placed before him several situations arise. The report  

may  conclude  that  an  offence  appears  to  have  been  committed  by  a  

particular person or persons and in such a case, the Magistrate may either  

(1) accept the report and take cognizance of the offence and issue process,  

or (2) may disagree with the report  and drop the proceeding,  or (3) may  

direct further investigation under Section 156(3) and require the police to  

make a further report. The report may on the other hand state that according  

to  the  police,  no offence  appears  to  have been committed.  When such a  

report is placed before the Magistrate, he has again the option of adopting  

one of the three courses open i.e., (1) he may accept the report and drop the  

proceeding; or (2) he may disagree with the report and take the view that  

there  is  sufficient  ground  for  further  proceeding,  take  cognizance  of  the  

offence and issue process; or (3) he may direct further investigation to be  

made by the police under Section 156(3). The position is, therefore, now  

well-settled  that  upon  receipt  of  a  police  report  under  Section  173(2)  a  

Magistrate  is  entitled  to  take  cognizance  of  an  offence  under  Section  

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190(1)(b) of the Code even if the police report is to the effect that no case is  

made out  against  the accused.   The Magistrate can take into  account  the  

statements of the witnesses examined by the police during the investigation  

and take cognizance of the offence complained of and order the issue of  

process  to  the  accused.  Section  190(1)(b)  does  not  lay  down  that  a  

Magistrate  can  take  cognizance  of  an  offence  only  if  the  Investigating  

Officer gives an opinion that the investigation has made out a case against  

the  accused.  The Magistrate  can  ignore  the  conclusion  arrived  at  by the  

Investigating  Officer  and  independently  apply  his  mind  to  the  facts  

emerging  from the  investigation  and  take  cognizance  of  the  case,  if  he  

thinks  fit,  exercise  of  his  powers  under  Section  190(1)(b)  and direct  the  

issue  of  process  to  the  accused.  The  Magistrate  is  not  bound  in  such  a  

situation to follow the procedure laid down in Sections 200 and 202 of the  

Code for taking cognizance of a case under Section 190(1)(a) though it is  

open to him to act under Section 200 or Section 202 also. [See M/s. India  

Sarat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885)]. The  

informant is not prejudicially affected when the Magistrate decides to take  

cognizance and to proceed with the case.  But where the Magistrate decides  

that sufficient ground does not subsist for proceeding further and drops the  

proceeding or takes the view that there is material for proceeding against  

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some and there are insufficient grounds in respect of others, the informant  

would  certainly  be  prejudiced  as  the  First  Information  Report  lodged  

becomes wholly or partially ineffective. Therefore, this Court indicated in  

Bhagwant Singh’s case (supra) that where the Magistrate decides not to take  

cognizance  and  to  drop  the  proceeding  or  takes  a  view that  there  is  no  

sufficient ground for proceeding against some of the persons mentioned in  

the  First  Information  Report,  notice  to  the  informant  and  grant  of  

opportunity of being heard in the matter becomes mandatory.  As indicated  

above, there is no provision in the Code for issue of a notice in that regard.

15. We may add here that the expressions ‘charge-sheet’ or ‘final report’  

are not used in the Code, but it is understood in Police Manuals of several  

States containing the Rules and the Regulations to be a report by the police  

filed under Section 170 of the Code, described as a “charge-sheet”.  In case  

of  reports  sent  under  Section  169,  i.e.,  where  there  is  no  sufficiency  of  

evidence  to  justify  forwarding  of  a  case  to  a  Magistrate,  it  is  termed  

variously i.e., referred charge, final report or summary. Section 173 in terms  

does not refer to any notice to be given to raise any protest to the report  

submitted by the police.  Though the notice issued under some of the Police  

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Manuals states it to be a notice under Section 173 of the Code, though there  

is nothing in Section 173 specifically providing for such a notice.   

16. As  decided  by  this  Court  in  Bhagwant  Singh’s case  (supra),  the  

Magistrate  has  to  give  the  notice  to  the  informant  and  provide  an  

opportunity to be heard at the time of consideration of the report.  It was  

noted as follows:-

“....the  Magistrate  must  give  notice  to  the  informant and provide him an opportunity to be heard at  the time of consideration of the report...”

17. Therefore, the stress is on the issue of notice by the Magistrate at the  

time of consideration of the report.  If the informant is not aware as to when  

the  matter  is  to  be  considered,  obviously,  he  cannot  be  faulted,  even  if  

protest  petition in reply to the notice issued by the police has been filed  

belatedly.  But as indicated in  Bhagwant Singh’s case (supra) the right  is  

conferred on the informant and none else.

18. The aforesaid position was highlighted by this Court in  Gangadhar  

Janardan Mhatre v. State of Maharashtra and Ors. (2004 (7) SCC 768).

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19. It is not explained as to how the order of the High Court is prejudicial  

to the appellant. The High Court has directed all procedural safeguards to be  

followed.  It has also referred to applicability of Section 319 of the Code in  

appropriate cases.   

20. That being so we find no merit in this appeal which is dismissed.

…………..…………………… ….J.

(Dr. ARIJIT PASAYAT)

……………………..…………….J. (HARJIT SINGH BEDI)      

New Delhi, May 08, 2009

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