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CASE NO.: Appeal (crl.)  420 of 2006

PETITIONER: Minu Kumari and Anr.

RESPONDENT: The State of Bihar and Ors.

DATE OF JUDGMENT: 12/04/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of (SLP (Crl.) No. 4607 of 2003)

ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is to the legality of order passed  by a learned Single Judge of the Patna High Court rejecting  the petition filed by the appellants in terms of Section 482 of  the Code of Criminal Procedure, 1973 (in short the ’Code’).  

       Factual position in essence is as follows:         On the written report of informant Dhrup Narain Dubey,  father of respondents 2 and 3 case for alleged commission of  offences punishable under Sections 341, 323 and 435 read  with Section 34 of the Indian Penal Code, 1860 (in short the  ’IPC’) was registered vide Raghunath Pur P.S. case No.7/99  dated 20.8.1999. It was alleged that accused persons named  in the FIR assaulted the informant and others. However, the  police after investigation submitted charge sheet wherein three  of the ladies accused were found to be not involved in the case.  The police submitted charge sheet only against Harendra  Dubey and Sheo Kumar Dubey. The charge sheet was placed  before the learned Chief Judicial Magistrate (in short the  ’CJM’) who by his order dated 15.2.1999 took cognizance of  the offence and directed issuance of processes against accused  Sheo Kumar Dubey, Harendra Dubey, and appellants Minu  Kumari and Runjhun Kumari on the ground that there is a  prima facie case against them for the offences punishable u/s  341, 323 and 435 read with Section 34 IPC. The learned CJM  also ordered for issuance of summons and made over the case  to the court of Judicial Magistrate, 1st Class for favour of  disposal.

       However, on behalf of appellants Minu Kumari and  Runjhun Kumari a petition was filed before the Court of  learned CJM praying therein that due to clerical error the  names of the appellants have also been mentioned in the order  dated 15.2.1999 and cognizance was also taken and issuance  of summons was also ordered so far as they are concerned.  The learned CJM on the above petition got a miscellaneous  case No.37/99 registered and by order dated 5.5.1999 he  called for the record from the court of the Magistrate, where  the Trial No.795/1999 was pending. The learned CJM heard  learned counsel for the appellants and ordered to strike of  their names.    

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       The order passed by learned CJM was assailed before  learned First Additional District and Sessions Judge, Siwan  who set aside the order holding that the learned CJM did not  have any power, muchless inherent power to recall or review  his order. With reference to Section 362 of the Code it was  held that the Court is not empowered to alter the judgment  save as otherwise provided by the Code or by any other law for  the time being in force. It was further held that the order  passed by learned CJM amounted to review.  Accordingly, the  order passed by learned CJM was set aside.  

       Appellants questioned correctness of the order by filing a  petition under Section 482 of the Code which came to be  dismissed on the ground that the Subordinate Court could not  have recalled its own order under  Section 362 of the Code on  the pretext that there was correction of clerical and  arithmetical errors.           In support of the appeal, learned counsel for the  appellants submitted that approach of the High Court is  clearly erroneous. Even if it is conceded for the sake of  argument that the Subordinate Court could not have recalled  or review its order, on the facts of the case the High Court  should have exercised power under Section 482 of the Code.         In spite of service of notice respondents 2 and 3 have not  entered appearance.

       Learned counsel for the State of Bihar submitted that  technically the learned 1st Additional District and Sessions  Judge was correct. But the High Court should have exercised  power under Section 482 of the Code.

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 Magistracy 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 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).  

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 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

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proceeding, take congnizance 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 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 Carat 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 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. This Court in Bhagwant Singh v. Commnr.  of Police (1985 (2) SCC 537) held 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.          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 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.   

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

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informant and provide him an opportunity to be  heard at the time of consideration of the report..."

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.    

When the information is laid with the Police, but no  action in that behalf is taken, the complainant is given power  under Section 190 read with Section 200 of the Code to lay the  complaint before the Magistrate having jurisdiction to take  cognizance of the offence and the Magistrate is required to  enquire into the complaint as provided in Chapter XV of the  Code. In case the Magistrate after recording evidence finds a  prima facie case, instead of issuing process to the accused, he  is empowered to direct the police concerned to investigate into  offence under Chapter XII of the Code and to submit a report.  If he finds that the complaint does not disclose any offence to  take further action, he is empowered to dismiss the complaint  under Section 203 of the Code.  In case he finds that the  complaint/evidence recorded prima facie discloses an offence,  he is empowered to take cognizance of the offence and would  issue process to the accused.  These aspects have been  highlighted by this Court in All India Institute of Medical  Sciences Employees’ Union (Reg.) through its President v.  Union of India and others (1996 (11) SCC 582). It was  specifically observed that a writ petition in such cases is not to  be entertained. The above position was highlighted in Gangadhar  Janardan Mhatre v. State of Maharashtra and Ors. (2004 (7)  SC 768).

Section 362 of the Code, as noted above, permits  correctness of clerical or arithmetical errors.  There is no  quarrel with that proposition. But the High Court seems to  have completely lost sight of the scope and ambit of Section  482 of the Code.  The Section does not confer any new power on the High  Court. It only saves the inherent power which the Court  possessed before the enactment of the Code. It envisages three  circumstances under which the inherent jurisdiction may be  exercised, namely, (i) to give effect to an order under the Code,  (ii) to prevent abuse of the process of court, and (iii) to  otherwise secure the ends of justice. It is neither possible nor  desirable to lay down any inflexible rule which would govern  the exercise of inherent jurisdiction. No legislative enactment  dealing with procedure can provide for all cases that may  possibly arise. Courts, therefore, have inherent powers apart  from express provisions of law which are necessary for proper  discharge of functions and duties imposed upon them by law.  That is the doctrine which finds expression in the section  which merely recognizes and preserves inherent powers of the  High Courts. All courts, whether civil or criminal possess, in  the absence of any express provision, as inherent in their  constitution, all such powers as are necessary to do the right  and to undo a wrong in course of administration of justice on  the principle "quando lex aliquid alicui concedit, concedere  videtur et id sine quo res ipsae esse non potest" (when the law  gives a person anything it gives him that without which it  cannot exist). While exercising powers under the section, the  court does not function as a court of appeal or revision.

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Inherent jurisdiction under the section though wide has to be  exercised sparingly, carefully and with caution and only when  such exercise is justified by the tests specifically laid down in  the section itself. It is to be exercised ex debito justitiae to do  real and substantial justice for the administration of which  alone courts exist. Authority of the court exists for  advancement of justice and if any attempt is made to abuse  that authority so as to produce injustice, the court has power  to prevent abuse. It would be an abuse of process of the court  to allow any action which would result in injustice and prevent  promotion of justice. In exercise of the powers court would be  justified to quash any proceeding if it finds that  initiation/continuance of it amounts to abuse of the process of  court or quashing of these proceedings would otherwise serve  the ends of justice.  As noted above, the powers possessed by the High Court  under Section 482 of the Code are very wide and the very  plenitude of the power requires great caution in its exercise.  Court must be careful to see that its decision in exercise of  this power is based on sound principles. The inherent power  should not be exercised to stifle a legitimate prosecution. The  High Court being the highest court of a State should normally  refrain from giving a prima facie decision in a case where the  entire facts are incomplete and hazy, more so when the  evidence has not been collected and produced before the Court  and the issues involved, whether factual or legal, are of  magnitude and cannot be seen in their true perspective  without sufficient material. Of course, no hard-and-fast rule  can be laid down in regard to cases in which the High Court  will exercise its extraordinary jurisdiction of quashing the  proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary  (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar  (AIR 1964 SC 1).  

When the factual scenario is considered in the  background of legal principle set out above, the inevitable  conclusion is that the High Court was not justified in rejecting  the application in terms of Section 482 of the Code. This is a  case when the cognizance was taken,  summons were issued  by mistake and the names of the appellants were also  mentioned in the order dated 15.2.1999. Since the police have  not found any material against the appellants, the learned  CJM without following the procedure as indicated above could  not have directed issuance of summons so far as they are  concerned.  There was no indication that learned CJM dis- agreed with the opinion of the investigating agency and  therefore ordered issuance of summons. On the contrary, as  noted by learned CJM later that was a mistake and, therefore,  he had ordered to strike of the names of the appellants. The  High Court’s order is set aside. The names of the appellants  shall be struck of from the array of accused persons.  

The appeal is allowed.