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CASE NO.: Appeal (crl.)  294 of 2008

PETITIONER: Har Prasad and Anr

RESPONDENT: Ranveer Singh and Anr

DATE OF JUDGMENT: 12/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   294          /2008 (Arising out of SLP (Crl.) No. 365 of 2007)

Dr. ARIJIT PASAYAT, J

Leave granted.          Challenge in this appeal is to the order passed by a  learned Single Judge of the Allahabad High Court allowing the  revision filed by respondent No.1. The revision was filed  questioning the legality of the order dated 18.11.2000 passed  by XIII Additional District and Sessions Judge, Aligarh in  Criminal Revision No.272 of 2000 accepting the contention  that the informant of the case got a false affidavit filed  alongwith protest petition, and therefore no action could have  been taken.

       Stand taken before the learned Sessions Judge was that  by the time the protest petition was filed the informant had  died and false affidavit with a thumb impression was filed.  Since the informant had already died, the learned Magistrate  could not have been proceeded in the matter. This found  acceptance by the learned Sessions Judge.  The High Court by  the impugned order had held that the order was not passed on  the protest petition  and was in fact passed on consideration of  the report submitted in terms of Section 173 of the Code of  Criminal Procedure, 1973 (in short ’Cr.P.C.’).  

       Learned counsel for the appellants submitted that the  High Court fell in grave error by holding that the filing of false  affidavit, if any, alongwith protest petition was immaterial.  According to him, when the learned Magistrate acted upon the  protest petition, the view that the affidavit alongwith the  protest petition was not of any consequence, cannot be  maintained.  

       Learned counsel for the respondents on the other hand  submitted that a bare reading of the order passed by learned  Magistrate shows that the order did not have its foundation on   the protest petition, but was relatable to the report submitted  under Section 173 Cr.P.C.  

       The only question  that falls for consideration is whether  the order was passed by learned Magistrate on protest petition  or on the police report.           Reference may be  made to a judgment of this Court in  Abhinandan Jha and Ors. v. Dinesh Mishra (AIR 1968 SC 117)  where it was held as follows:

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"8.     It is now only necessary to refer to Section  190, occurring in Chapter XIV, 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\027  (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, s. 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 s. 170, to forward the accused to a Magistrate  or, if the offence is bailable, to take security from  him for this appearance before such Magistrate.  But, whether a case comes under s. 169, or under  s. 170, of the Code, on the completion of the  investigation, the police officer has to submit a  report to the Magistrate, under s. 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 s. 173 really  depends upon the nature of the jurisdiction  exercised by a Magistrate, on receiving a report.                  Xx                      xx              xx 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

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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.    13. It will be seen that the Code, as such, does not  use the expression ’charge-sheet’ or ’final report’.  But it is understood, in the Police Manual  containing Rules and Regulations, that a report by  the police, filed under Section 170 of the Code, is  referred to as a ’charge-sheet’. But in respect of the  reports sent under Section 169 i.e. when there is no  sufficient evidence to justify the forwarding of the  accused to a Magistrate, it is termed variously, in  different States, as either ’referred charge’, ’final  report’, or ’summary’.          xx                      xx                      xx 17. We have to approach the question, arising for  consideration in this case, in the light of the  circumstances pointed out above. We have already  referred to the scheme of Chapter XIV, as well as  the observations of this Court in Rishbud and Inder  Singh’s Case (AIR 1955 SC 196) that the  information of the opinion as to whether or not  there is a case to place the accused on trial before a  Magistrate, is left to the officer in-charge of the  police station. There is no express power, so far as  we can see, which gives jurisdiction to pass an  order of the nature under attack; nor can any such  powers be implied. There is certainly no obligation,  on the Magistrate, to accept the report, if he does  not agree with the opinion formed by the police.  Under those circumstances, if he still suspects that  an offence has been committed, he is entitled,  notwithstanding the opinion of the police, to take  cognizance, under s. 190(1) (c) of the Code. That  provision, in our opinion, is obviously intended to  secure that offences may not go unpunished and  justice may be invoked even where persons  individually aggrieved are unwilling or unable to  prosecute, or the police, either wantonly or through  bona fide error, fail to submit a report, setting out  the facts constituting the offence. Therefore, a very  wide power is conferred on the Magistrate to take  cognizance of an offence, not only when he receives  information about the commission of an offence  from a third person, but also where he has  knowledge or even suspicion that the offence has  been committed. It is open to the Magistrate to take  cognizance of the offence, under s. 190(1) (c), on the  ground that, after having due regard to the final  report and the police records placed before him, he  has reason to suspect that an offence has been  committed. Therefore, these circumstances will also  clearly negative the power of a Magistrate to call for

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a charge-sheet from the police, when they have  submitted a final report. The entire scheme of  Chapter XIV clearly indicates that the formation of  the opinion, as to whether or not there is a case to  place the accused for trial, is that of the officer in- charge of the police station and that opinion  determines whether the report is to be under s. 170,  being a ’charge-sheet’, or under s. 169, ’a final  report’. It is no doubt open to the Magistrate, as we  have already pointed out, to accept or disagree with  the opinion of the police and, if he disagrees, he is  entitled to adopt any one of the courses indicated by  us. But he cannot direct the police to submit a  charge-sheet, because, the submission of the report  depends upon the opinion formed by the police, and  not on the opinion of the Magistrate. The Magistrate  cannot compel the police to form a particular  opinion, on the investigation, and to submit a  report, according to such opinion. That will be really  encroaching on the sphere of the police and  compelling the police to form an opinion so as to  accord with the decision of the Magistrate and send  a report, either under s. 169, or under s. 170,  depending upon the nature of the decision. Such a  function has been left to the police, under the  Code."           As the factual position goes to show the order passed by  learned Magistrate was in consideration of the police report  and was not relatable to the protest petition. That being so,  the view of the High Court does not suffer from any infirmity  and no interference is called for.          The appeal is dismissed.