Cancellation Report _ Power of the Court

MANU/PH/3130/2011

Equivalent Citation: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl. Rev. No. 975 of 2010

Decided On: 07.12.2011

Appellants: Tavinder KaurVs.

Respondent: State of Haryana and others[Alongwith Crl. Misc. No. M-8903 of 2011]

Hon'ble Judges/Coram:Hon'ble Mr. Justice Hemant Gupta and Hon'ble Mr. Justice G.S. SandhawaliaSubject: CriminalCatch WordsMentioned INActs/Rules/Orders: Pre - Natal Diagnostic Techniques (Regulation, Pre - Natal Prevention of Misuse) Act, Pre - Natal 1994; Police Act, 1861 - Section 3, Police Act, 1861 - Section 36; Delhi Police Establishment Act;Code of Criminal Procedure (CrPC) - Section 2, Code of Criminal Procedure (CrPC) - Section 4, Code of Criminal Procedure (CrPC) - Section 156(3), Code of Criminal Procedure (CrPC) - Section167(2), Code of Criminal Procedure (CrPC) - Section 173, Code of Criminal Procedure (CrPC) - Section 173(2), Code of Criminal Procedure (CrPC) - Section 173(3), Code of Criminal Procedure (CrPC) - Section 173(4), Code of Criminal Procedure (CrPC) - Section 173(5), Code of Criminal Procedure (CrPC) - Section 173(6), Code of Criminal Procedure (CrPC) - Section 173(8), Code of Criminal Procedure (CrPC) - Section 190, Code of Criminal Procedure (CrPC) - Section 190(1), Code of Criminal Procedure (CrPC) - Section 251A, Code of Criminal Procedure (CrPC) - Section 482, Code of Criminal Procedure (CrPC) - Section 540; Indian Penal Code - Section 34, Indian Penal Code - Section 201, Indian Penal Code - Section 304, Indian Penal Code - Section 314Cases Referred: Randhir Singh Rana Vs. The State being the Delhi Administration MANU/SC/0161/1997 : AIR 1997 SC 639; Reeta Nag Vs. State of West Bengal and others MANU/SC/1486/2009 : (2009)9 SCC 129;Union Public Service Commission Vs. S. Papaiah and others MANU/SC/0961/1997 : (1997) 7 SCC 614; Jacob Mathew Vs. State of Punjab MANU/SC/0457/2005 : (2005) 6 SCC 1; Martin F. D'souza Vs. Mohd. Ishfaq MANU/SC/0225/2009 : (2009) 3 SCC 1; Abhinandan Jha and others Vs. Dinesh Mishra MANU/SC/0054/1967 : AIR 1968 SC 117; State Vs. Mehar Singh ILR (1973) 2 P&H 561; Ram Lal Narang Vs. Om Prakash Narang and another MANU/SC/0216/1979 : AIR 1979 SC 1791; State v. Mehar Singh, (ILR (1973) 2 P&H 561; State of Bihar and another v. A.C. Saldanna and others,MANU/SC/0253/1979 : AIR 1980 SC 326; State of Haryana and others Vs. Ch. Bhajan Lal and others MANU/SC/0115/1992 : AIR 1992 SC 604; Bhagwant Singh Vs. Commissioner of Police and anotherMANU/SC/0063/1985 : (1985) 2 SCC 537; Popular Muthiah Vs. State represented by Inspector of Police MANU/SC/8399/2006 : (2006) 7 SCC 296; Minu Kumari and Anr. v. The State of Bihar and others 2006 (3) All India Criminal LR (SC) 491); Dinesh Dalmia v. CBI, MANU/SC/7924/2007 : (2007) 8 SCC 770; Fakhruddin Ahmad Vs. State of Uttaranchal and another (2008) 17 SCC 157; Nirmal Singh Kahlon Vs. State of Punjab and others MANU/SC/8189/2008 : (2009) 1 SCC 441; Sakiri Vasu v. State of U.P. (2008) 2 SSC 409; Ashok Kumar Todi Vs. Kishwar Jahan and othersMANU/SC/0162/2011 : (2011) 3 SCC 758; Hemant Dhasmana v. Central Bureau of Investigation and Another, MANU/SC/0459/2001 : (2001)7 SCC 536; Master Construction Co. (P) Ltd. Vs. State of Orissa, MANU/SC/0304/1965 : AIR 1966 SC 1047; Sankatha Singh Vs. State of U.P. MANU/SC/0142/1962 : AIR 1962 SC 1208; Sooraj Devi Vs. Pyare Lal MANU/SC/0228/1981 : (1981) 1 SCC 500;Rajneesh Kr. Singhal Vs. The State (NCT of Delhi) 2001 (2) RCR (Criminal) 123; Shaji Vs. State of Kerala 2003 (4) RCR (Criminal) 66Citing Reference:

Affirmed 4

Mentioned 5

Relied On 16

Case Note: Criminal - Jurisdiction - Sections 173(8), 190, 156(3) of Code of Criminal Procedure, 1973 (CrPC) - Reference made by Single Judge noticing conflict in judgments of Supreme Court relating to power to exercise of jurisdiction under Section 173(8) of Code of Criminal Procedure - Whether complainant had a right to seek further investigations as regards Accused and/or against existing Accused alleging commission of other offences after report was filed under Section 173(2) of CrPC by investigating agency - Whether Court without any petition either by complainant or by investigating agency could order further investigation - Held, Police had absolute right of investigation and in such right of investigation, Court could not direct filing of a charge-sheet in a particular manner against any specific Accused - Right to investigate and manner of investigations was right of police - Magistrate could not direct investigation against a particular Accused and in a particular manner - A competent Magistrate, in terms of Section 190 of CrPC, was empowered to order investigation in terms of Section 156(3) of CrPC even before police submit its report under Section 173 of CrPC - Magistrate could examine and order that investigations were not proper and require further investigations even if police had concluded commission of offence by all suspects named by complainant - Power of Magistrate was not restricted to order further investigation only on basis of objection/protest petition by complainant - There was no provision in Code prohibiting or regulating power of Magistrate to order further investigation to prevent mis-carriage of justice - When on completion of investigation, a report under Section 173 of CrPC, was filed, Court could accept such report and either drop proceedings or take cognizance of proceedings on basis of such report - If no offence was said to have been committed in final report and Magistrate felt that there were sufficient grounds to proceed further, he could issue process and take cognizance in terms of Section 190 of CrPC - Magistrate was also competent to order further investigation without accepting report though he had no power to direct police to file a final report in a particular form or report making some persons guilty - Before accepting closure report, Magistrate was bound to provide an opportunity of being heard to informant, so that he could make his submissions to persuade Magistrate to take cognizance of offence and issue process - Power to order further investigation under Section173(8) of CrPC, could be exercised by Magistrate even if cognizance of offence had been taken - Magistrate could order further investigation, when an opportunity was given to informant and when informant filed either a protest petition or objections to report - Magistrate, empowered to do so under Section 190 of CrPC, could also suo motu exercise such powers, as observed by Full Bench of this Court in case of State v. Mehar Singh - Police had a right to investigate further under Section 173(8) of CrPC even in cases where cognizance of offence had already been taken, but propriety demanded that police should inform Magistrate, who had taken cognizance.

JUDGMENTHemant Gupta, J.1. The matter has been placed before this Bench consequent to a reference made by the learned Single Judge noticing conflict in the judgments of the Hon'ble Supreme Court in Randhir Singh Rana Vs. The State being the Delhi Administration MANU/SC/0161/1997 : AIR 1997 SC 639 and Reeta Nag Vs. State of West Bengal and others MANU/SC/1486/2009 : (2009)9 SCC 129, whereby in exercise of jurisdiction under Section 173(8) of the Code of Criminal Procedure (for short 'the Code') it was held that the trial Court has no power to order further investigations suo moto and in Hemant Dhasmana Vs. Central Bureau of Investigation and another MANU/SC/0459/2001 : (2001) 7 SCC 536 and Union Public Service Commission Vs. S. Papaiah and others MANU/SC/0961/1997 : (1997) 7 SCC 614, wherein, it has been

held that the Magistrate in exercise of powers under Section 173(8) of the Code could direct further investigations.2. In Criminal Revision No.975 of 2010, report under Section 173(2) was filed in respect of death of daughter-in-law Amarjit Kaur of the Petitioner for an offence under Sections 304, 314, 201 read with Section 34 IPC and Sections 22, 23 & 25 of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (for short 'the PNDT Act'). On the basis of such report, the learned Additional Sessions Judge framed charges against respondent Nos.2 & 3 for an offence under Sections 304, 314, 201 read with Section 34 IPC and Section 23 of the PNDT Act vide order dated 15.09.2004.3. The accused filed a petition for quashing of the charges framed under Section 482 of Criminal Procedure Code before this Court. In Criminal Revision No.2008 of 2004, the framing of charges was quashed by this Court in view of the judgment in Jacob Mathew Vs. State of Punjab MANU/SC/0457/2005 : (2005) 6 SCC 1 and Martin F. D'souza Vs. Mohd. Ishfaq MANU/SC/0225/2009 : (2009) 3 SCC 1 and the matter was remanded back to the trial Court to hear the parties and decide afresh taking into consideration the guidelines spelt out in the aforesaid judgments. After the aforesaid order was passed, the learned Addl. Sessions Judge in its order dated 11.01.2010 considering the guidelines laid down in the aforesaid judgments, found that no opinion of any specialist or any medical board was taken by the investigating agency during investigation and neither the investigating agency nor the court is an expert on the subject and it would be very hard to determine as to whether the accused would be liable for the offences allegedly to have been committed by them or not. Therefore, in exercise of the powers conferred under Section 173(8) of the Code, the learned trial Court directed the investigating agency to further investigate the matter keeping in view the guidelines laid down by the Hon'ble Supreme Court in Jacob Mathew and Martin F. D'zouza's cases (supra).4. In Criminal Misc. No.M-8903 of 2011, an application filed by the petitioner for further investigations and/or investigations by an independent agency was dismissed by the learned trial Court on 25.01.2011. The petitioner herein is mother of the deceased Sonia who was married to Jaipal son of Gurdev Singh. The allegation is that the daughter of the complainant was done to death on account of inability of the complainant to satisfy the demands of dowry. Though an FIR No.302 dated 15.09.2009 was lodged, but since the investigations were not being conducted properly, the petitioner invoked the jurisdiction of this Court under Section 482 of the Code by filing Criminal Misc. No.M-2058 of 2010, which was disposed of on 11.02.2010. An affidavit was filed by the Inspector General of Police that the husband and father-in-law of the deceased have been arrested as incriminating material have been found only against the said two persons. The petition filed by the petitioner was disposed of by observing that the complainant would have a right under the Code of Criminal procedure against the cancellation report or non-inclusion of other persons as accused. The petitioner submitted a protest petition/complaint before the learned trial Court praying for further investigations and/or for additional and fresh challan. The learned trial Court returned a finding that the complainant and her private counsel have no locus standi to prosecute and they cannot ask for further investigations as per the provisions of Section 173(8) of the Code. It was further observed that the Court was competent to summon any person as an accused during the trial on the application of the Public Prosecutor or otherwise if material comes against any person, who has not been made an accused by the investigating agency. In view of the said fact, the application was dismissed.5. Mr. Takhi has relied upon Randhir Singh Rana and Reeta Nag's cases (supra) to contend that the Police have power to further investigate even after the report is filed, but the Magistrate cannot suo moto exercise jurisdiction for further investigation. The Magistrate can exercise jurisdiction only if the police seeks further investigation.

6. Mr. Dutt argued that the complainant has a right to submit an application for summoning of other accused and also for addition of other offences against the accused already made to stand trial by the investigating agency in terms of Section 173(8) of the Code.7. In view of the respective contentions, it is required to be examined, that (1) Whether the complainant has a right to seek further investigations as regards the accused and/or against the existing accused alleging the commission of other offences after the report is filed under Section 173(2) of the Code by the investigating agency and (2) Whether the Court without any petition either by the complainant or by the investigating agency could order further investigation.8. The proceedings in respect of the commission of criminal offences, are conducted in three stages. Firstly, "investigation" as defined under Section 2(h) of the Code. It includes all the proceedings under the Code for the collection of evidence to be conducted by a Police Officer or by any person other then the Magistrate, who is authorized by a Magistrate in this behalf. The process of investigation includes an order passed by the Magistrate under Section 156(3) of the Code. The 'inquiry' as defined

under Section 2(g) of the Code means every inquiry, other than a trial, conducted under the Code by a Magistrate or Court. Such inquiry is after the report under Section 173 of the Code is submitted and the Court is seized of the proceedings before framing of charge. The third stage is that of the trial. It takes place in respect of commission of offence after the Court takes cognizance of the offence and consequently proceeds to frame charges and collect evidence as provided in Section 4 of the Code.9. It is also well settled that the Police has absolute right of investigation and in such right of investigation; the Court cannot direct filing of a charge-sheet in a particular manner against any specific accused. Such enunciation of law was made by the Hon'ble Supreme Court in Abhinandan Jha and others Vs. Dinesh Mishra MANU/SC/0054/1967 : AIR 1968 SC 117. The Court observed as under: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.

10. Still further, it has been observed that the scheme of Chapter XIV of the Code shows that the formation of an opinion as to whether or not there is case to place the accused on trial, has been left to the officer in-charge of a police station. It was observed that the Magistrate, after report under Section 173 of the Code is submitted, is not bound to accept the opinion of the police. It is open to the Magistrate to take the view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. The Magistrate can take cognizance under Section 190(1)(c) of the Code, if he does not agree with the opinion of the police. Such provision is 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. It has been further observed that if the Magistrate disagrees with the opinion of the police, he is entitled to adopt any one of the courses indicated. But he cannot direct the police to submit charge-sheet because the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate.11. The 41st report of the Law Commission submitted in September 1969, noticed that some Courts have taken a narrow view that once the final repot under Section 173 has been sent, the police cannot touch the case again and reopen the investigation. It is the said narrow view, which was addressed at the time of enactment of the Code. It reported:14.23 A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173comes upon evidence bearing on the guilt or innocence of the accused. We should have though that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and sent a repot to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused.

12. Earlier a Full Bench of this Court in State Vs. Mehar Singh ILR (1973) 2 P&H 561 considering the provisions of Criminal Procedure Code 1878, held that the police becomes functus officio once the Court takes cognizance of an offence on the filing of a charge-sheet by the police and thereafter further investigation by the police was not permissible even if the fresh material comes to the notice of the investigating agencies. The agency can file an application to the court to "suspend cognizance". It would be open to the Magistrate to suspend cognizance and direct the police to conduct investigation into a case and submit repot. The court observed:

39. ...In a case instituted on the police report, a Magistrate can be deemed to have taken cognizance of the crime after he accepts the police report and proceeds to act under section 251-A of the Code. The fact whether the Magistrate has taken cognizance of a criminal offence or not has to be inferred by the action taken by him at the initial stage of the trial. It may be regarded as an interlocutory decision but can by no stretch

of imagination be considered to be a final judgment in the case. In other words, because of no express prohibition in the Code on this subject, the Magistrate can either withdraw or suspend the cognizance taken by him. Once this impedient is removed, the case is relegated to the stage of police enquiry entitling the investigating agency to renew its activities. It is needless to reiterate that the Magistrate will be competent to take this action only under his inherent powers and subject to all those conditions under which these powers are commonly exercised.xxx

(44) If this step has to be taken by the Magistrate in the course of a criminal trial, then, in the very nature of things, he has to give a judicial decision after hearing all the parties who are interested in the result of the trial. Whether the Court acts suo motu or on the application of an interested party, it has to take into consideration the nature of allegations upon which cognizance is sought to be suspended, the bona fides of the investigating agency if a request emanates from them, comparative hardship which may be caused to either of the parties if such a request is acceded to or not, and last of all the ends of justice which is the most dominant consideration in a criminal trial. The permission to conduct further investigation cannot be given as a matter of course and it would certainly not be given if the wrong complained of can be remedied by resorting to other provisions of the Code. For instance, if additional evidence is sought to be brought on record, the Court will first have to see whether adequate relief can be given under section 540 of the Criminal Procedure Code or not.

13. The Hon'ble Supreme Court in Ram Lal Narang Vs. Om Prakash Narang and another MANU/SC/0216/1979 : AIR 1979 SC 1791, found that such procedure of 'suspending cognizance' does not appear to be warranted by the provisions of the Code. The Hon'ble Supreme Court observed as under:In State v. Mehar Singh, (ILR (1973) 2 P&H 561, a Full Bench of the High Court of Punjab and Haryana held that the police became functus officio once the Court took cognizance of an offence on the filing of a charge-sheet by the police and thereafter further investigation by the police was not permissible. The police, it was said, could not 'tinker' with the proceedings pending in the Court. It was, however, observed that it would be open to the Magistrate to 'suspend cognizance' and direct the police to make further investigation into the case and submit a report. The High Court of Punjab and Haryana acknowledged the existence of the practice of submitting supplemental charge-sheets, but was of the view that such practice was not sanctioned by the Code. Faced with the impracticality of banning all further investigation once cognizance of an offence was taken by the Court the High Court tried to find a solution to the problem by suggesting the procedure of the Magistrate suspending cognizance and ordering further investigation. The procedure of 'suspending cognizance' suggested by the High Court of Punjab and Haryana does not appear to us to be warranted by the provisions of the Criminal Procedure Code.

14. The Court recognized the fact that it is in the interests of both the prosecution and the defence that the police should have power to investigate and in either case, it is for the Magistrate to decide upon further course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the inquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single inquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. The argument that further investigation by the police, which trench upon the proceedings before the Court, was found to be insignificant, as it was observed that whatever the police may do, the final discretion with regard to further action is with the Magistrate. It was observed to the following effect:

20...The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That

the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceedings before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.

15. The Court concluded that notwithstanding that a Magistrate has taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. It was further observed that where the police desired to make a further investigation, the police could seek formal permission from the court to make further investigation as respect for the Court.16. A three-Judge Bench judgment in State of Bihar and another v. A.C. Saldanna and others, MANU/SC/0253/1979 : AIR 1980 SC 326, held that the power of the Magistrate under Section 156(3) of the Code of Criminal Procedure to direct further investigation is an independent power, which can be exercised even after submission of the report as provided under Section 173(8) of the Code. It was held to the following effect:19. The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State government as spelt out hereinbefore. The power conferred upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8).

17. In State of Haryana and others Vs. Ch. Bhajan Lal and others MANU/SC/0115/1992 : AIR 1992 SC 604, the Court has considered the powers of the Police to investigate under Chapters XII and XIV. It was held that the Magistrate is to be kept in the picture at all stages of the police investigation, but he is not authorized to interfere with the actual investigation or to direct the police how that investigation is to be conducted. It was held to the following effect:62. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation, but he is not authorized to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. Needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will be tantamount to recognition of 'Divine Power' which no authority on earth can enjoy.

18. In Bhagwant Singh Vs. Commissioner of Police and another MANU/SC/0063/1985 : (1985) 2 SCC 537, a three Judges' Bench of Hon'ble Supreme Court was considering the consequences of a report submitted to the Magistrate under Section 173(2) of the Code. It was held that if on consideration of report made by Officer in-charge of police station under sub-Section (2)(i) of Section173, 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 submissions to persuade the Magistrate to take cognizance of the offence and issue process. The Court delineated the following options available

with the Magistrate after the report is furnished:4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may 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 do one of three things; (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the repot and drop the proceedings or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceedings or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156.

19. In Hemant Dhasman's case (supra), the Court noticed the fact that the Magistrate has a power to order further investigation though he has no power to direct that the investigations be conducted in a particular manner. The Court said to the following effect:

15. When the report is filed under the sub-section the Magistrate (in this case the Special Judge) has to deal with it by bestowing his judicial consideration. If the report is to the effect that the allegations in the original complaint were found true in the investigation, or that some other accused and/or some other offences were also detected, the court has to decide whether cognizance of the offences should be taken or not on the strength of that report. We do not think that it is necessary for us to vex our mind, in this case, regarding that aspect when the report points to the offences committed by some persons. But when the report is against the allegations contained in the complaint and concluded that no offence has been committed by any person, it is open to the court to accept the report after hearing the complainant at whose behest the investigation had commenced. If the court feels on a perusal of such a report that the alleged offences have in fact been committed by some persons the court has the power to ignore the contrary conclusions made by the investigating officer in the final report. Then it is open to the court to independently apply its mind to the facts emerging therefrom and it can even take cognizance of the offences which appear to it to have been committed, in exercise of its power under Section 190(1)(b) of the Code. The third option is the one adumbrated in Section 173(8) of the Code....16. Although the said sub-section does not, in specific terms, mention about the powers of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by a court which has the jurisdiction to do so, it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. After the further investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation, the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back on that tract. If they come to the same conclusion, it is of added advantage to the persons against whom the allegations were made, and if the allegations are found false again the complainant would be in trouble....

20. In S. Papaiah's case (supra), the Central Bureau of Investigation filed a report under Section 173 of the Code seeking closure of the case without informing Union Public Service Commission in whose complaint the investigations were entrusted to it. Union Public Service Commission pointed out that filing of closure report was not justified and there was need for reinvestigation in a letter addressed to the Director, CBI. The Central Bureau of Investigation again resubmitted the closure report, which report was accepted by the Court without any opportunity being provided to the Union Public Service

Commission. The Commission filed a petition seeking reinvestigation, but the same was rejected. In a challenge to such order, the Court observed as under:13. The appellant brought the contents of its communication dated 23.01.1995 to the notice of the learned Metropolitan Magistrate through its Miscellaneous Petition No.2040 of 1995 seeking "reinvestigation" but the learned Magistrate, rejected the petition vide order dated 04.11.1995 observing that "rightly or wrongly that Court had passed an order and it had no power to review the earlier order". Here again the learned Magistrate fell into an error. He was not required to "review" his order. He could have ordered "further investigation" into the case. It appears that the learned Metropolitan Magistrate overlooked the provisions ofSection 173(8) which have been enacted to take care of such like situations also. That provision reads:xxx

The Magistrate could, thus, in exercise of the powers under Section 173(8) Cr.P.C. direct the CBI to "further investigate" the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the "new" report to be submitted by the investigating officer would be governed by sub-sections (2) to (6) of Section 173 Cr.P.C. The learned Magistrate, failed to exercise the jurisdiction vested in him by law and his order dated 04.11.1995 cannot be sustained.

21. In another judgment report as Popular Muthiah Vs. State represented by Inspector of Police MANU/SC/8399/2006 : (2006) 7 SCC 296, the Hon'ble Supreme Court has delineated the jurisdiction of the Magistrate after final report under Section 173 of the Code is submitted. It observed as under:49. We have noticed hereinbefore that the Jurisdiction of the learned Magistrate in the matter of issuance of process or taking of cognizance depends upon existence of conditions precedent therefore. The Magistrate has jurisdiction in the event a final form is filed (i) to accept the final form; (ii) in the event a protest petition is filed to treat the same as a complaint petition and if a prima facie case is made out, to issue processes; (iii) to take cognizance of the offences against a person, although a final form has been filed by the police, in the event he comes to the opinion that sufficient materials exist in the case diary itself therefore; and (iv) to direct reinvestigation into the matter. (See Abhinandan Jha and others v. Dinesh Mishra, MANU/SC/0054/1967 : AIR 1968 SC 117, see also Minu Kumari and Anr. v. The State of Bihar and others 2006 (3) All India Criminal LR (SC) 491)

22. In Dinesh Dalmia v. CBI, MANU/SC/7924/2007 : (2007) 8 SCC 770, the Hon'ble Supreme Court observed:19. A charge-sheet is a final report within the meaning of sub-section (2) of Section 173 of the Code. It is filed so as to enable the court concerned to apply its mind as to whether cognizance of the offence thereupon should be taken or not. The report is ordinarily filed in the form prescribed therefor. One of the requirements for submission of a police report is whether any offence appears to have been committed and, if so, by whom. In some cases, the accused having not been arrested, the investigation against him may not be complete. There may not be sufficient material for arriving at a decision that the absconding accused is also a person by whom the offence appears to have been committed. If the investigating officer finds sufficient evidence even against such an accused who had been absconding, in our opinion, law does not require that filing of the charge-sheet must await the arrest of the accused.20. Indisputably, the power of the investigating officer to make a prayer for making further investigation in terms of sub-section (8) of Section 173 is not taken away only because a charge-sheet under sub-section (2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate.xxx

38. ..... So long a charge-sheet is not filed within the meaning of sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not

preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of sub-section (8) of Section 173of the Code.

23. In Fakhruddin Ahmad Vs. State of Uttaranchal and another (2008) 17 SCC 157, the Hon'ble Supreme Court noticed that the Magistrate is not bound by the opinion of the Investigating Officer and is competent to exercise its discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether an offence has been made out or not. It observed as under:

12. Thus, it is trite that the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether an offence has been made out or not. This is because the purpose of the police report underSection 173(2) of the Code, which will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom is primarily to enable the Magistrate to satisfy himself whether on the basis of the report and the material referred therein, a case for cognizance is made out or not.

24. The Hon'ble Supreme Court has set aside the restriction on the right of further investigation, as it was said to be not a proper expression of law. The investigating agency was given liberty to investigate further in the manner it deems fit and proper in accordance with law. The Court proceeded to observe:

17. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender.

25. The Hon'ble Supreme Court in a judgment reported as Nirmal Singh Kahlon Vs. State of Punjab and others MANU/SC/8189/2008 : (2009) 1 SCC 441, observed as under:68. An order of further investigation in terms of Section 173(8) of the Code by the State in exercise of its jurisdiction under Section 36 thereof stands on a different footing. The power of the investigating officer to make further investigation in exercise of its statutory jurisdiction under Section 173(8) of the Code and at the instance of the State having regard to Section 36 thereof read with Section 3 of the Police Act, 1861 should be considered in different contexts. Section 173(8) of the Code is an enabling provision. Only when cognizance of an offence is taken, the learned Magistrate may have some say. But, the restriction imposed by judicial legislation is merely for the purpose of upholding the independence and impartiality of the judiciary. It is one thing to say that the court will have supervisory jurisdiction to ensure a fair investigation, as has been observed by a Bench of this Court in Sakiri Vasu v. State of U.P. (2008) 2 SSC 409, correctness whereof is open to question, but it is another thing to say that the investigating officer will have no jurisdiction whatsoever to make any further investigation without the express permission of the Magistrate.

26. In Ashok Kumar Todi Vs. Kishwar Jahan and others MANU/SC/0162/2011 : (2011) 3 SCC 758, the Hon'ble Supreme Court again recently examined the scope of powers of the police in the matter of investigations. It observed:50. When the final report is laid after conclusion of the investigation, the Court has the power to consider the same and issue notice to the complainant to be heard in case the conclusions in the final report are not in concurrence with the allegations made by them. Though the investigation was conducted by the CBI, the provisions under Chapter XII of the Code would apply to such investigation. The police referred to in the Chapter, for the purpose of investigation, would apply to the officer/officers of the Delhi Police Establishment Act. On completion of the investigation, the report has to be filed by the

CBI in the manner provided in Section173(2) of the Code. [Vide Hemant Dhasmana v. Central Bureau of Investigation and Another, MANU/SC/0459/2001 : (2001)7 SCC 536]

27. In Randhir Singh Rana's case (supra), the Court has recognized that the Magistrate has power to order further investigation, but such power cannot be exercised on his own. The Court observed as under:

11. The aforesaid being the legal position as discernible from the various decisions of this Court and some of the High Courts, we would agree, as presently advised, with Shri Vasdev that within the grey area to which we have referred the Magistrate of his own cannot order for further investigation. As in the present case the learned Magistrate had done so, we set aside his order and direct him to dispose of the case either by framing the charge or discharge the accused on the basis of materials already on record. This will be subject to the caveat that even if the order be of discharge, further investigation by the police on its own would be permissible, which could even end in submission of either fresh charge-sheet.

28. In the aforesaid case, the Magistrate ordered further investigation after the accused put his appearance and the case was at the stage for considering the question as to whether the charge should be framed or the appellant should be discharged.

29. Reeta Nag's case (supra), the investigating agency sent for trial sixteen accused in its report under Section 173 of the Code. The charges were framed against six accused, whereas ten other co-accused were discharged. The complainant prayed for reinvestigation. It was the said application, which was allowed. Such order was challenged before the High Court. The Court held that after having passed a final order framing charge against six persons and discharge of the remaining accused, it was no longer within the Magistrate's jurisdiction to direct reinvestigation into the case. It was observed as under:19. As has been rightly held by the High Court, having regard to the decisions of this Court in Master Construction Co. (P) Ltd. Vs. State of Orissa,MANU/SC/0304/1965 : AIR 1966 SC 1047 and Sankatha Singh Vs. State of U.P. MANU/SC/0142/1962 : AIR 1962 SC 1208, which were reflected in Sooraj Devi Vs. Pyare Lal MANU/SC/0228/1981 : (1981) 1 SCC 500, having passed a final order framing charge against six persons and discharging the remaining accused persons, it was no longer within the Magistrate's jurisdiction to direct a reinvestigation into the case.

30. It was noticed that Judicial Magistrate cannot on his own direct the investigating agency to conduct fresh inquiry though such an order could be passed on the application of the investigating authorities. It was held to the following effect:

21. In addition to the above, the decision of this Court in Randhir Singh Rana case (supra) also makes it clear that after taking cognizance of an offence on the basis of a police report and after appearance of the accused, a Judicial Magistrate cannot of his own order further investigation in the case, though such an order could be passed on the application of the investigating authorities.

xxx

23. What emerges from the abovementioned decisions of this Court is that once a charge-sheet is filed under Section 173(2) Cr.PC and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authorities permit further investigation under Section 173(8). The Magistrate cannot suo motu direct a further investigation under Section 173(8)Cr.P.C. or direct a reinvestigation into a case on account of the bar of Section 167(2) of the Code.

31. A Full Bench of Delhi High Court in a judgment reported as Rajneesh Kr. Singhal Vs. The State (NCT of Delhi) 2001 (2) RCR (Criminal) 123 by referring to the judgment in Randhir Singh Rana's case (supra), observed to the following effect:

21. In view of the aforesaid discussion, we hold that the Magistrate is empowered to

direct the police to further investigate the matter after the filing of the challan before it and even after taking cognizance of the offence and such a direction on the analogy of the decision of the Supreme Court in Union Public Service Commission v. S. Papaiah and others (supra), will not amount to review of its earlier order whereby cognizance of the offence was taken. Before, however, parting with this point, we would like to refer to the decisions cited by the learned senior counsel for the petitioner. He first relied upon a two-Judge bench decision of the Supreme Court in Randhir Singh Rana v. State being the Delhi Administration case (supra), decided on December 20, 1996, which was also noted in the order of reference of the learned Single Judge. In that case, it was held that the magistrate acting suo motu has no power to order further in estimation after taking cognizance of the offence. This case, however, does not deal with a situation where an application is made to the magistrate for directing further investigation of the matter by the complainant or the police. Besides, as seen above, in at least three decisions of the Supreme Court, out of which two are decisions which were rendered after the decision in Randhir Singh Rana's case (supra), the power of the trial Court, before whom police reports were filed, to direct the police to carry out further investigation have been recognized. There is no provision in the Code which bars the magistrate before whom the report under Section 173(2) of the Code is filed to direct further investigation of the offence even in a case where cognizance has already been taken. All procedural laws are meant to do justice and not to stifle the same. In a given situation where a magistrate finds that the matter requires further investigation in view of the partisan attitude of the police there can be no bar to his directing the investigating agency to conduct further investigation in the case. The magistrate by giving such a direction does not trench upon the jurisdiction of the police who are empowered to further investigate the matter. The magistrate simply by asking the police to further investigate the matter in a sense is directing it to exercise the jurisdiction which has been conferred on the police under Section 173(8) of the Code. Restricting the powers of the Magistrate will adversely affect the administration of justice. Magistracy cannot be made so powerless that it becomes incapable of correcting a wrong and advancing the cause of justice.

32. In Shaji Vs. State of Kerala 2003 (4) RCR (Criminal) 66, a Division Bench of Kerala High Court also considered the judgment of Hon'ble Supreme Court in Randhir Singh Rana's case (supra) and also the other judgments and arrived at the following conclusions:

(1) When a final report is filed before the Magistrate under Section 173(2), the Court may accept the report and either drop the proceedings or take cognizance of the proceeding on the basis of the report;(2) The Court may disagree with the report. Even if the final report states that no offence has been committed, if the Magistrate feels that there are sufficient grounds for proceeding further, he can issue process and take cognizance of the offence;

(3) The Court may without accepting the report order further investigation. Magistrate has no power to direct the police to file a final report in a particular form or report making some persons guilty. On the basis of the further investigation, police is free to make the final report;

(4) By taking cognizance of the offence, adjudicatory process of the Court starts and normally investigation stage ends except under Section 173(8). Therefore, ordinarily, after taking cognizance of the offence, Court shall not suo motu order further investigation unless circumstances warrant;(5) If the complainant files a petition saying that real culprits were not included in the final report or there is lacuna in the investigation which will cause failure of justice and if the Magistrate after considering the matter comes to the prima facie conclusion that proper investigation was not conducted, he is not helpless, the Magistrate will be free order further investigation to avoid failure of justice;

(6) Section 173(8) gives power to the police to conduct further investigation with

permission from the Magistrate even in a case where cognizance of the offence has already been taken by the Magistrate. The above provision gives express power to the police for further investigation even after taking cognizance of the offence;(7) Section 173(8) puts no bar on the Magistrate to order further investigation. If the Magistrate comes to the conclusion that in the interest of justice a further investigation is necessary, he can trigger the police to exercise the power under Section 173(8) as police has power to conduct further investigation under Section173(8) even after taking cognizance of the offence. The Magistrate has got power to point out to the police to exercise their duties under Section 173(8) if on the facts of the case, it is revealed that further investigation necessary. But, such powers can be exercised sparingly only in the circumstances warrant in the interest of justice;(8) There is no provision in the Code prohibiting or fettering the power of the Magistrate from ordering further investigation if the circumstances warrant to prevent miscarriage of justice. It is the duty of the Court to see that ultimate truth is revealed and no innocent shall be punished and at the same time real culprits shall not escape;

(9) When a Magistrate order further investigation, High Court in its revisional power shall not interfere in the same unless there is miscarriage of justice.

33. In view of the aforesaid judgments, it transpires that the right to investigate and the manner of investigations is the right of police. The Magistrate cannot direct investigation against a particular accused and in a particular manner. A competent Magistrate, in terms of Section 190 of the Code, is empowered to order investigation in terms of Section 156(3) of the Code even before the police submits its report under Section 173 of the Code. The report submitted may disclose that an offence has been committed or that no offence has been committed. The police report can also conclude that few of the suspects are to stand trial for the offence on the basis of investigations carried. In either situation, right is given to the complainant to submit his objection/protest petition and on such consideration; the Magistrate can order further investigation in terms of Bhagwant Singh's case (supra). The Magistrate can examine and order that the investigations are not proper and require further investigations even if the police has concluded commission of offence by all the suspects named by the complainant. The power of the Magistrate is not restricted to order further investigation only on the basis of the objection/protest petition by the complainant.34. Reeta Nag's case (supra) ten accused were discharged by the Magistrate, but sought to be summoned again on a petition by the complainant. The discharge of an accused concludes the criminal proceedings against the accused. Therefore, the Magistrate who ordered discharge has been found to be not competent to order further investigation. In Randhir Singh Rana's case (supra), the Court notices the amendment carried out with insertion of sub-clause (8) of Section 173 consequent to the report of the Law Commission, but observes that the Magistrate on his own cannot order for further investigation. The Court has not given a final conclusion, but observed as presently advised. Such finding is in the facts of the said case and not supported by earlier and latter larger Bench judgments of the Hon'ble Supreme Court, wherein power for further investigation is recognized with the Magistrate. It is trite to say that the Magistrate can order further investigation on a protest petition of the complainant or on the request of the police, but cannot act suo motu act itself even if the Magistrate is satisfied that the investigations have not conducted properly. Such cannot be the intention and such interpretation is not sustainable as it does not advance the cause of justice. The power of Magistrate to order further investigation is recognized in all the judgments, referred to above, even in the judgments relied upon by Mr. Takhi. The long line of precedents recognizes the jurisdiction of the Magistrate to order further investigation even in cases where cognizance has been taken. We find that if such power can be exercised on a protest petition or objection petition by a complainant or when sought by the police, then why the Magistrate on the basis of investigations carried out by the police and conclusions arrived at in the report, cannot suo motu order further investigation. The Magistrate is seized of the investigation at all its stages. He may not direct investigation in a particular course, but after report is submitted, there is no prohibition in directing further investigation.35. Still further, in Randhir Singh Rana's case (supra), the earlier judgments in Bhagwant Singh and Ch. Bhajan Lal's cases (supra) have not been brought to the notice of the Bench, whereas subsequently the Hon'ble Supreme Court in S. Papaiah, Hemant Dhasmana and Fakhruddin Ahmad's cases (supra) have taken a view that the Magistrate has power to order further investigations. Even a Full Bench of Delhi High Court and a Division Bench of Kerala High Court have also taken a view that the Magistrate has power to order further investigations. If the Magistrate has power to order further investigation, whether he acts suo motu or on a protest petition/objections of the complainant or on the request of

the Police is immaterial. Earlier Full Bench of this Court in Mehar Singh's case (Supra) specifically noticed that the magistrate has power to order further investigations suo moto. The Hon'ble Supreme Court in Ram Lal Narang's case (Supra) has set aside part of the judgment of this court when it came out with concept of "suspended cognizance". The finding of this Court recognizing the suo motu powers of the Magistrate has not been interfered with. It is source of power with the Magistrate, which is important and determinative of the jurisdiction of the Court rather than the manner and procedure in which he takes cognizance. The suo moto exercise of jurisdiction by the magistrate is matter of procedure and does not relate to his jurisdiction.

36. Keeping in view the fact that there is no provision in the Code prohibiting or regulating the power of the Magistrate to order further investigation to prevent mis-carriage of justice and following the principles culled down by the Division Bench of Kerala High Court, we arrive at the following conclusions:

(1) When on completion of investigation, a report under Section 173 of the Code is filed, the Court can accept such report and either drop the proceedings or take cognizance of the proceedings on the basis of such report;(2) If no offence is said to have been committed in the final report and the Magistrate feels that there are sufficient grounds to proceed further, he can issue process and take cognizance in terms of Section 190 of the Code;(3) The Magistrate is also competent to order further investigation without accepting the report though he has no power to direct the police to file a final report in a particular form or report making some persons guilty. Reference may be made to Bhagwant Singh, Hemant Dhasmana, S. Papaiah, Popular Muthiah and Fakhruddin Ahmad's cases (supra);

(4) That before accepting the closure report, the Magistrate is bound to provide an opportunity of being heard to the informant, so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. Reference may be made to Bhagwant Singh's case (supra);

(5) That power to order further investigation under Section 173(8) of the Code can be exercised by the Magistrate even if cognizance of the offence has been taken. Reference may be made to Ram Lal Narang, A.C. Saldanna and Hemant Dhasmana's cases (supra);(6) That the Magistrate can order further investigation, when an opportunity is given to the informant and when the informant files either a protest petition or objections to the report. The Magistrate, empowered to do so under Section 190 of the Code, can also suo motu exercise such powers, as observed by the Full Bench of this Court in Mehar Singh's cases (supra); and(7) The police has a right to investigate further under Section 173(8) of the Code even in cases where cognizance of the offence has already been taken, but the propriety demands that police should inform the Magistrate, who has taken cognizance;

37. Let the matters be placed before the appropriate Bench with the observation that in view of the conclusions recorded above, Criminal Revision No.975 of 2010 is without merit, whereas the order passed by the learned trial Court in Crl. Misc. No.M-8903 of 2011 is illegal and liable to be set aside.

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MANU/PH/1873/2011

Equivalent Citation: 2011(2)RCR(Criminal)688IN THE HIGH COURT OF PUNJAB AND HARYANA

Crl. Revision No. 2356 of 2008 (O and M)


Appellants: Gurdev SinghVs.

Respondent: State of Punjab and Anr.Hon'ble Judges/Coram:Alok Singh, J.Subject: CriminalCatch WordsMentioned INActs/Rules/Orders: Prevention of Corruption Act - Section 4, Prevention of Corruption Act - Section 5, Prevention of Corruption Act - Section 7, Prevention of Corruption Act - Section 13(2), Prevention of Corruption Act - Section 19; Code of Criminal Procedure (CrPC) - Section 156(3), Code of Criminal Procedure (CrPC) - Section 173(1), Code of Criminal Procedure (CrPC) - Section 190, Code of Criminal Procedure (CrPC) - Section 190(1)Cases Referred: Rupan Deol Bajaj (Mrs.) v. Kanvar Pal Singh Gill MANU/SC/0080/1996 : 1995 (3) R.C.R.(Cri) 700 : (1995) 6 S.C.C 194; Abhinandan Jha v. Dinesh MishraDisposition:Petition allowedCase Note:Criminal - Quashing of cognizance order - Offence committed punishable under Section 7, 13(2) of the Prevention of Corruption Act (Act) - Held, in present case, it was clear that Special Judge had not disclosed what was sufficient material or facts collected by police forming opinion that the accused was involved in alleged offence under Section 7,13(2) of the Act - Cognizance of the offence shall be taken by the Court only when Court finds prima facie sufficient material against the accused - Although, detailed discussion was not required before the forming the opinion to take cognizance, however, summary discussion to form the basis of opinion was expected - Observation "there is sufficient material" without summary discussion thereof was not proper - Impugned order set aside - Petition allowed.

JUDGMENTAlok Singh, J.1. Accused-revisionist is assailing the order dated 29.09.2008 passed by learned Special Judge, Ferozepur, thereby disagreeing with the cancellation report submitted by the police and taking cognizance against the accused under Section 7, 13(2) of the Prevention of Corruption Act (hereinafter referred to as the Act).2. The brief facts of the present case are that Mohin-der Singh-complainant has lodged an F.I.R. with the Deputy Superintendent of Police, Vigilance Bureau, Ferozepur, which reads as under:

Stated that I am resident of Village Chack Gurdi-tiwala and do agriculture. That I had to get a limit made from the Bank for which I needed a copy of Jamabandi of my land. I approached the Patwari Halqa Gurdev Singh 2/3 times, but each time he dilly dallied the matter. Yesterday, I again met him at village Ilmewala and asked for the copy of the jamabandi. He told me that by making rounds like this he will not get the copy of the jamabandi and in case he really wanted the copy he will have to grease his palm. He made a demand of Rs. 1000/- for this purpose. On my pursuing he agreed to accept a bribe of Rs. 700/-, but I made an excuse for not having the cash ready with him but promised to pay the same on the next day. He agreed to accept a sum of Rs. 700/- from him in preparing the copy of jamabandi. But I did not wish to pay the bribe

money and therefore made a false promise with him and returned to my house. ON return my acquaintances Gur-mail Chand son of Jarnail Ram resident of Village Hahmanwala at my village to whom I narrated the whole story. He also dissuaded me from paying any bribe money to the patwari and to get him trapped with the Vigilance Department. I along with Gurmail Chand have come present before you and produced a currency of Rs. 700/- which was demanded by Gurdev Singh Patwari Halqa Ilmewala for preparing a copy of jamabandi, since I do not wish to pay any bribe money, legal action be taken against Patwari My statement has been recorded correctly.

3. Investigation was carried out and material was placed before the Collector, Ferozepur, to grant sanction against the accused for his prosecution under Section 7, 13(2) of the Act as required bySection 1? of the Act. Learned Collector vide order dated 28.05.2007 has declined to grant any sanction against the accused-revisionist to prosecute him. Cancellation report dated 24.012008 was submitted before the Special Judge, Ferozepur. Learned Special Judge, Ferozepur, vide impugned order dated 29.09.2008 has decided to take cognizance against the accused for an offence underSection 7, 13(2) of the Act Order of the learned Special Judge dated 29.09.2008 is under challenge before this Court.4. This Court on 27.01.2010 has passed the following order:

Learned Counsel for Respondent No. 2 (complainant) states that cancellation report was filed as the sanction to prosecute was not given.

Learned Counsel further contends that a petition has been made to the Deputy Commissioner, Ferozepur to reconsider the issue of grant of sanction. The sanction to prosecute has been denied only on the grounds taken by the accused. Learned Counsel further states that accused is not required to be heard at the stage of sanction.

Adjourned to 30.3.2010.

Deputy Commissioner, Ferozepur is directed to consider the issue and take a final decision within three weeks from today.

5. Again matter was considered by the Collector in the light of the order dated 27.01.2010 passed by tins Court and again Collector has refused to grant sanction to prosecute the Petitioner-accused.

6.I have heard learned Counsel for the parties and perused the record.

7. As per Section 4 of the Act, Special Judges have jurisdiction to try the offences punishable under this Act and as per Section 5 of the Act, a Special Judge shall follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by the Magistrates. Thus, word used "Magistrate" in Section 190 of the Code of Criminal Procedure shall also include a Special Judge under the provisions of the Prevention of Corruption Act8. There is no doubt that under Section 190(l)(b) of the Code of Criminal Procedure, learned Magistrate or Special Judge, as the case may be, has jurisdiction to take cognizance on the police report on the basis of material/facts collected by the police even if police has opined for the closure of the case. If Court is not agreeing with the opinion of the police to close the case, Court has to opine, discussing the facts and material collected by the police during the investigation, that there is sufficient material justifying prosecution of the accused and that accused is involved in the commission of a crime.9. Hon'ble Apex Court in the matter of Rupan Deol Bajaj (Mrs.) v. Kanvar Pal Singh Gill, reported in MANU/SC/0080/1996 : 1995 (3) R.C.R.(Cri) 700 : (1995) 6 S.C.C 194 has held as under:In Abhinandan Jha v. Dinesh Mishra (supra) the question arose whether a Magistrate to whom a report under Section 173(1) Code of Criminal Procedure 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 that report. In answering tile question tins Court first observed that the use of the words 'may take cognizance of any offence' in Sub-section (1) of Section 190 Code of Criminal Procedure imports the exercise of 'judicial discretion' and the Magistrate who receives the report under Section 173 Code of Criminal Procedure will have to consider the said report and judicially take a decision whether or not to take cognizance of the offence. The Court then held, in answering the question posed before it, that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or 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 Section 156(3). It was further held that if ultimately) the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance thereof, notwithstanding contrary opinion of the police expressed in the report.

10. Thus, it is clear from the above decision of the Apex Court that the Magistrate can take cognizance under Section 190(l)(b) even on submission of final report by the police i.e. upon a police report and he is not bound to adopt the procedure of complaint as required for taking cognizance under Section 190(l)(b) of the Code.11. In the present case, learned Special Judge has passed the following order:

Heard. The complainant has appeared in the court and disagreed with the cancellation report submitted by the police. I have also gone through the file. There is sufficient material against the accused to proceed against him under Section 7, 13(2) of Prevention of Corruption Act. So the request of the police is declined. Therefore, notice to the accused be issued for 4.11.08.

12. From the perusal of the order, it is, thus, clear that learned Special Judge has not disclosed what is the sufficient material or facts collected by the police forming opinion that the accused is involved in the alleged offence under Section 7, 13(2) of the Act. A cognizance of the offence shall be taken by the Court only when Court finds prima facie sufficient material against the accused. Although, detailed discussion is not required before the forming the opinion to take cognizance, however, summary discussion to form the basis of opinion is expected. Observation "there is sufficient material" without summary discussion thereof is not proper.13. Undisputedly, Collector has declined to grant sanction vide order dated 28.05.2007 as required under Section 19 of the Act to prosecute the Petitioner - accused for an offence under Section 7,13(2) of the Act. Undisputedly, in the light of the interim order' passed by this Court dated 27.01.2010, again Collector has applied his mind and again has declined to grant sanction as required underSection 19 of the Act vide order dated 22.02.2010.14. For the reasons recorded herein above, order impugned cannot be sustained in the eyes of law. Present petition is allowed, order impugned is set aside.


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MANU/PH/1637/2009

Equivalent Citation: (2009)ILR 1Punjab and Haryana903IN THE HIGH COURT OF PUNJAB AND HARYANA

Criminal Misc. No. 4542-M of 2008


Appellants: Malkiat Singh DhaliwalVs.

Respondent: Manpreet Kaur Dhaliwal and Anr.Hon'ble Judges/Coram:Kanwaljit Singh Ahluwalia, J.Counsels:For Appellant/Petitioner/Plaintiff: J.S. Brar, Adv.For Respondents/Defendant: C.L. Verma, Adv. for Respondent No. 1 and Mehardeep Singh , Assistant Adv. GeneralSubject: CriminalCatch WordsMentioned INActs/Rules/Orders: Code of Criminal Procedure (CrPC) - Section 190(1), Code of Criminal Procedure (CrPC) - Section 200, Code of Criminal Procedure (CrPC) - Section 202, Code of Criminal Procedure (CrPC) - Section202(2), Code of Criminal Procedure (CrPC) - Section 482; Prevention of Atrocities of Scheduled Castes and Scheduled Tribes Act, 1999 - Section 3(1); Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3Cases Referred: Pakhandu and Ors. v. State of U.P. and Anr. MANU/UP/0911/2001 : 2002 Cri. L.J. 1210; Rosy v. State of Kerala, (2000) 1 JT (SC) 84 : MANU/SC/0018/2000 : AIR 2000 SC 637; Surya Bhan v. State of U.P. and Anr. MANU/UP/0195/2007 : 2007 Cri.LJ. 2230Case Note:Code of Criminal Procedure, 1973 - Section 482--Prevention of Atrocities of Scheduled Castes and Scheduled Tribes Act, 1999-- Section 3(l)x--Prosecution filing cancellation report in case Under Section 3(l)(x) of 1999 Act--Trial Court failing to record reasons in not accepting cancellation report--In case of rejection of cancellation report SDJM had to straightway take the cognizance Under Section 190(1) (b) and issue process straightway or he could have ordered further investigation--Summoning order nowhere reveals as to in which fashion SDJM intended to proceed--In no way SDJM could consolidate cancellation report with the protest petition--Petition allowed, summoning order set aside.Held, that not only summoning order dated 1st May, 2004 is a cryptic order but it also reflects no application of mind as to for what reasons the Sub-Divisional Judicial Magistrate had not agreed with the cancellation report. The learned Sub-Divisional Judicial Magistrate could either accept the cancellation report and in case the cancellation report was to be rejected, he had to straightway take the cognizance under Section 190( 1 )(b) and had to issue the process straightway or he could have ordered further investigation. In case he had to rely upon the protest petition, then he had to take cognizance under Section 190(1) upon the original complaint dated 25th March, 2004 or on the protest petition treating the same to be a complaint and to proceed under Section 200 and 202 Code of Criminal Procedure and had to record the preliminary evidence. The summoning order nowhere reveals as to in which fashion the Sub-Divisional Judicial Magistrate intended to proceed. In

no way he could consolidate the cancellation report with the protest petition.JUDGMENT

Kanwaljit Singhahluwalia, J.1. Present petition has been filed by Malkiat Singh Dhaliwal, Divisional Engineer Telephones, Jagraon, seeking quashing of complaint/ protest petition dated 25th March, 2004 (Annexure P-4) and summoning order dated 1st May, 2004 (Annexure P-5).

2. Case of the Petitioner is that he was working as a Senior Divisional Engineer Telephones and had rendered service of more than 32 years. It has been further averred that husband of the complainant, Darshan Singh was working as Sub-Divisional Officer. On 10th October, 2001, he absented from duty and he was issued a show cause notice for violation of departmental rules (Annexure P-l), due to which wife of Darshan Singh had lodged an FIR bearing No. 217 dated 22nd October, 2001 under Section 3(1)x of Prevention of Atrocities of Scheduled Castes and Scheduled Tribes Act, 1999 at Police Station Jagraon. Counsel has further submitted that departmental inquiry was conducted by three senior level officers, who--vide Annexure P-9 found the allegations to be false and it was further held therein that complainant and her husband are habitual of making such complaints. It has been further averred that the FIR was investigated and enquired into by the DSP Jagraon, who relied upon the testimony of various witnesses and came to the conclusion that no offence has been committed and that the version of complaint was false, and a cancellation report was submitted. Counsel has further submitted that complainant filed a complaint (Annexure P-4) and also submitted a protest petition in the Court of Illaqua Magistrate, where cancellation report was submitted. Counsel has stated that for the averments made in the petition, the order (Annexure P-5) whereby cognizance has been taken by the Magistrate, is liable to be quashed. Counsel has relied upon order dated 22nd February, 2008 passed by a Coordinate Bench, whereby notice of motion was issued and further proceedings were stayed. Order dated 22nd February, 2008, counsel states, contains all his contentions. Therefore, it will be apposite here to reproduce order dated 22nd February, 2008, which reads as under:Present: Mr. J.S. Brar, Advocate for the Petitioner.

By filing this petition under Section 482 of Code of Criminal Procedure, quashing of complaint titled "Manpreet Kaur Dhaliwal v. Malkiat Singh Dhaliwal" pending in the Court of Judicial Magistrate 1st Class (for short "JMIC"), Jagraon (Annexure P4) and summoning order dated May 1, 2004 (Annexure P5) is sought on the grounds: (i) that Petitioner was Senior Divisional Engineer Telegraph (for short "DET"), Jagraon in the year 2001; (ii) that Manpreet Kaur Dhaliwal-complainant is wife of Darshan Singh, Sub-Divisional Officer in the department of Telegraph; (Hi) that on the statement of complainant, FIR No. 217 October 22, 2001 under Section 3(i) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "SC & ST Act") was registered against the Petitioner; (iv) that matter was investigated by Deputy Superintendent of Police, Jagraon and it was found that allegations levelled were baseless; (v) that prosecution filed cancellation report in the court of Area Magistrate, Jagraon; (vi) that departmental inquiry was also got conducted by a Board of Senior Officers and it was found that complaint filed by the complainant was false. In the inquiry report, it was also observed that earlier Darshan Singh also filed similar complaint in the year 1997 against his seniors levelling allegations under SC and ST Act; (vii) that the allegations levelled by the Petitioner, in brevity, are that on October 11, 2001, Petitioner called her husband in the office and used words "Chuhra Chapra" andon account of that, her husband became unconscious. He was admitted in Emergency in Civil Hospital, Jagraon and regained consciousness after 40 hours when he narrated the said incident to her and (viii) that in fact Darshan Singh, SDE was absent on October 10, 2001 and Petitioner issued him a notice (Annexure P-l) and on that account, the present complaint was filed against the Petitioner.Notice of motion for 12th March, 2008 Meanwhile, further proceedings in the complaint titled Manpreet Kaur Dhaliwal v. Malkiat Singh Dhaliwal pending in the Court of JMIC Jagraon shall remain stayed.

(Sd.)...,(Nawab Singh) 22nd February, 2008 Judge.

3. Mr. J.S. Brar appearing for the Petitioner states that his contentions recorded in the order of notice of

motion may be taken as his submissions for consideration by this Court.

4. Mr. C.L. Verma appearing for the complainant states that departmental inquiry report is not perse admissible. Petitioner is an influential high official and therefore, his grouse is, a false cancellation report has been submitted. He has further stated that show cause notice (Annexure P-l) has been issued later. Leave was duly sanctioned to him on 10th October, 2001.

5. Before the rival submissions made by the counsel for the parties could be examined, it will be necessary to reproduce the impugned order, which reads as under:

Manpreet Kaur v. Malkit Singh Pr: APP/Complainant with R.K. Beri, Advocate Received by transfer; be regd. Complainant has suffered her statement that in her protest petition, she rely upon the inquiry report No. 618, submitted by SP (Headaquarter) and she does not want to lead any preliminary evidence. I have heard the learned Counsel for the complainant and APP and have also gone through the file in question very carefully. Perusal of the file shows that cancellation report were sent by the police in spite of the inquiry report No. 618 which has already been placed on file in which the inquiry officer had reached at the conclusion that the allegations levelled by the complainant are true as against the accused. In view of the inquiry report No. 618,I do not agree with the cancellation report submitted by the prosecution. Since the inquiry report No. 618 is complete in itself, as such, notice be issued to accused to appear on 3rd July, 2004. Cancellation report and protest petition are ordered to be consolidated. (Sd.) . . ., SDJM: 1-5-2004

6. A perusal of the above said order will show that the learned Sub Divisional Judicial Magistrate has stated that in view of the subsequent inquiry report No. 618, he does not agree with the cancellation report and further ordered that cancellation report and protest petition he consolidated.

7. I am of the view that such a course is not open to the Sub Divisional Judicial Magistrate. Reliance can be placed upon 'Pakhandu and Ors. v. State of U.P. and Anr. MANU/UP/0911/2001 : 2002 Cri. L.J. 1210 where a similar controversy arose and a reference was made to a Division Bench. The Division Bench, after considering the entire conspectus of case law, held as under:15. From the aforesaid decisions, it is thus clear that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:

(i) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall given an opportunity of hearing to the complainant ; or (ii) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (iii) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or (iv) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190 (l)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Code of Criminal Procedure and thereafter decide whether complaint should be dismissed or process should be issued.

16. Where the Magistrate decides to take cognizance of the case under Section 190(l)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code, and consequently the proviso to Section 202(2), Code of Criminal Procedure will have no application. It would however be relevant to mention that for forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190(1) (a) of the Code and calls upon the complainant to examine himself and the witnesses present if any under Section 200.

17. A plain reading of Sub-section (2) of Section 202 with the proviso attached thereto makes it clear that question of applying the proviso will arise only in cases where the Magistrate before taking cognizance of the case opts to hold the inquiry. This matter was thoroughly examined by the Apex Court in the latest decision in Rosy v. State of Kerala, MANU/SC/0018/2000 : JT (2000)1 (SC) 84: AIR 2000 SC 637.

8. This view has been further reiterated by Allahabad High Court in 'Surya Bhan v. State of U.P. and Anr.' MANU/UP/0195/2007 : 2007 Cri.LJ. 2230.9. In the present case, not only Annexure P-5 is a cryptic order, but it also reflects no application of mind as to for what reasons the Sub Divisional Judicial Magistrate had not agreed with the cancellation report. As held in Pakhandu's case (supra), the learned Sub Divisional Judicial Magistrate could either accept the cancellation report and in case the cancellation report was to be rejected, he had to straightaway take the cognizance under Section 190(1)(b) and had to issue the process straightaway or he could have ordered further investigation. In case he had to rely upon the protest petition, then he had to take cognizance under Section 190(l)(a) upon the original complaint (Annexure P-4) or on the protest petition treating the same to be a complaint and to proceed under Section 200 and 202 Cr. P.C. and had to record the preliminary evidence. The order (Annexure P-5) nowhere reveals as to in which fashion the Sub Divisional Judicial Magistrate intended to proceed. In no way he could consolidate the cancellation report with the protest petition.10. Therefore, the order (Annexure P-5) cannot be sustained and the same is set aside. The matter is remanded back to the Sub Divisional Judicial Magistrate to examine the legal proposition enumerated in Pakhandu's and Surya Bhan's case (supra) and pass a fresh order after hearing the parties.

11. With these observations, present petition is disposed off.


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MANU/UP/0911/2001

Equivalent Citation: 2002CriLJ1210

IN THE HIGH COURT OF ALLAHABAD

Criminal Misc. Appln. No. 3264 of 2000


Appellants: Pakhandu and Ors.Vs.

Respondent: State of U.P. and Anr.

Hon'ble Judges/Coram:J.C. Gupta and M.A. Khan, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Ram Sajiwan, Adv.

For Respondents/Defendant: A.G.A.

Subject: Criminal

Catch Words

Mentioned IN

Acts/Rules/Orders: Code of Criminal Procedure (CrPC) 1974 - Section 2, Code of Criminal Procedure (CrPC) 1974 - Section 156(3), Code of Criminal Procedure (CrPC) 1974 - Section 157, Code of Criminal Procedure (CrPC) 1974 - Section 173(2) 190(1), Code of Criminal Procedure (CrPC) 1974 - Section 200, Code of Criminal Procedure (CrPC) 1974 - Section 202, Code of Criminal Procedure (CrPC) 1974 - Section 202(2), Code of Criminal Procedure (CrPC) 1974 - Section 203, Code of Criminal Procedure (CrPC) 1974 - Section 204, Code of Criminal Procedure (CrPC) 1974 - Section 482; Indian Penal Code - Section 307, Indian Penal Code - Section 324, Indian Penal Code - Section 364, Indian Penal Code - Section 392, Indian Penal Code - Section 395, Indian Penal Code - Section 396, Indian Penal Code - Section 397, Indian Penal Code - Section 419, Indian Penal Code - Section 420, Indian Penal Code - Section 467, Indian Penal Code - Section 468

Cases Referred: Moahabbat Ali v. State of U.P. 1985 UP Cri R 264 : 1984 All LJ NOC 31; A.R. Antulay v. R.S. Nayak (1984) 2 SCC 500 : AIR 1984 SC 718; Abhinandan Jha v. Dinesh Misra AIR 1968 SC 117; H.S. Bains v. State AIR 1980 SC 1883; India Carat Pvt. Ltd. v. State of Karnataka AIR 1989 SC 885; Tularam v. Kishore Singh AIR 1977 SC 2401; Rosy v. State of Kerala (2000) 1 JT (SC) 84 : AIR 2000 SC 637

Citing Reference:

Discussed

7

Case Note:Code of Criminal Procedure, 1973 - Sections 156 (3), 190 (1) (b) and 202 (2), provisoApplication under Section 156 (3) for direction to register F.I.R. under Sections 467/468/419/ 420/364 and 392, I.P.C. and investigatePolice forwarding final reportProtest petition by complainant with affidavits of witnessesMagistrate on basis of material on record coming to conclusion that there was sufficient ground to proceed against accused personsAnd issuing process against them under Section 204, Cr. P.C. taking cognizance under Section 190 (1) (b)Accused persons summoned also under Section 364, I.P.C. offence under which exclusively triable by Court of SessionWhether Magistrate required to record statement of all witnesses as under proviso to Section 202 (2), Cr. P.C.?Held, noWhether single Judge decision in Mohabbat Ali v. State of U. P., 1985 UP CrR 264, taking contrary view correct?Held, no.

Where cognizance has been taken under Section 190 (1) (b), Cr. P.C. only on the basis of material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to sub-section (2) of Section 202, Cr. P.C. shall have no application. The contrary view expressed in Mohabbat Alis case 1985 UP Cr R 264, is not a correct proposition of law.

Where the Magistrate decides to take cognizance of the case under Section 190 (1) (b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code, and consequently the proviso to Section 202 (2), Cr. P.C. will have no application. It would, however, be relevant to mention that for forming such an independent opinion, the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190 (1) (a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any under Section 200. The proviso to sub-section (2) of Section 202 of the Code will apply only to a case where the Magistrate has taken cognizance under Section 190 (1) (a) and has opted to held inquiry under Section 202, after examining the complainant and witnesses present, if any, under Section 200, Cr. P.C.

JUDGMENT

J.C. Gupta, J.

1. Doubting the correctness of a Single Judge decision in the case of Moahabbat Ali v. State of U.P. reported in 1985 UP Cri R 264 : (1984 All LJ NOC 31), Hon'ble S. Harkauli, J. has referred the following question for consideration by a larger Bench :

Whether the view taken in the aforesaid case of Mohabbat Ali is correct ?

2. By the order of the Hon'ble the Chief Justice, the matter has been assigned to this Bench.

3. Before we start our discussion on the aforesaid question, we may first put in brief facts of this case.

4. On an application moved by Smt. Vimala Devi, the Magistrate in exercise of powers under Section 156(3), Cr.P.C. directed the police to register the case and investigate the same. Consequently an F.I.R. under Sections 467/468/419/420/364 and 392, I.P.C. was registered and investigated. On completion of investigation, police forwarded a final report to the Court of the concerned Magistrate.

Feeling aggrieved, the complainant Smt. Vimala Devi filed objections in the form of 'Protest Petition' against the acceptance of final report. Along with the said petition, she also filed her own affidavit and affidavits of witnesses Ram Charan and Mata Prasad. It further appears that the learned Magistrate, on the basis of material on record came to the conclusion that there was sufficient ground to proceed against the applicants and issued process against them under Section 204 of the Code of Criminal Procedure. Thereafter, an application on behalf of the applicants was moved before the Magistrate for recalling the summoning order dated 7-7-97. This application was however rejected by the learned Magistrate by the order dated 21-10-99 holding that the applicants had no right of hearing before passing of the summoning order and as cognizance has been taken under Section 190(1)(b), Cr.P.C. the order of summoning was amenable to revision. The applicants then preferred before the Session Judge against the aforesaid order dated 29-10-99. The revision has also been dismissed by the learned Session Judge by the impugned order dated 15-5-2000. The applicants have now approached this Court for invoking inherent powers of the Court under Section 482, Cr.P.C. seeking quashing of the summoning order dated 7-7-97.

5. When this application was taken up for admission on 25-5-2001 by this Court, it was urged on behalf of the applicants that they have been summoned under Section 364, I.P.C. also which offence is triable exclusively by the Court of Session, yet before issuing process the learned Magistrate did not record statements of all the witnesses as required by the proviso to Section202(2), Cr.P.C, In support of this contention reliance was placed upon a single Judge decision of this Court in Mohabbat All's case 1984 ALJ NOC 31 (supra). The facts of that case were that one Mohammad Sharif filed a complaint under Section 395/397, I.P.C. against Mohabbat Ali and others. After investigation final report was submitted by the police. On receipt of Protest application from the complainant, the learned Magistrate summoned the accused persons to stand their trial under Section 395/397, I.P.C. The learned Single Judge allowed the said revision and quashing the order of summoning on the holding that charge under Section 395/397, I.P.C. is exclusively triable by the Court of Session and as proviso to Section 202(2) of the Code of Criminal Procedure lays down that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath but that procedure was not adopted by the learned Magistrate before passing the order of summoning.

6. Hon'ble S. Harkauli, J. hearing the present application expressed the view that Section 202 (falling under Chapter XV) applied only to a case instituted upon a complaint and cognizance taken under Section 190(1)(a) and not to cases covered by Section 190(1)(b), Cr.P.C. and thus found himself unable to agree with the view expressed in Mohabbat Ali's case MANU/RH/0078/1983(supra). Accordingly the Hon'ble Judge has referred the above said question for consideration by a larger Bench.

7. Chapter XIV of the Code of Criminal Procedure deals with the conditions requisite for initiation of proceedings. For the purpose of this case, we are concerned with Section 190(1) alone which is reproduced below:

190. Cognizance of offences by Magistrate :- (1) Subject to the provisions of this Chapter and 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;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

8. There are four more methods of taking cognizance of offences by the Court competent to try the same. The Court called upon to take cognizance of the offence must apply its mind to the facts placed before it either upon a police report or upon a complaint or in some other manner the Court came to

know about it and in the case of Court of Session upon commitment of the case by the Magistrate, [vide A.R. Antulay v. R.S. Nayak MANU/SC/0082/1984 : (1984) 2 SCC 500 : (AIR 1984 SC 718)].

9. When a Magistrate receives a complaint or an application under Section 156(3), Cr.P.C. which otherwise tantamounts to complaint under Clause (d) of Section 2 of the Code, there are two courses open to him. He may take cognizance under Section 190(1)(a) by applying his mind to the facts of the case. In that event he has to proceed in the manner provided in Sections 200 and202, Cr.P.C. By virtue of Section 200 he is required to examine the complainant and the witnesses present, if any. If the Magistrate finds that there is sufficient ground for proceeding, he may issue process under Section 204. However, if the Magistrate is not satisfied, he may either dismiss the complaint under Section 203, Cr.P.C. or postpone the issue of process and take recourse to Section 202 which provides that he may inquire into the case himself or may 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 are sufficient grounds to proceed. But if the offence is triable exclusively by a Court of Session, the Magistrate cannot make a direction for investigation. It is only where the Magistrate decides to hold the inquiry himself that the proviso to Sub-section (2) of Section 202, which we extract below, would come into operation :

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

10. The other course open to the Magistrate is that instead of taking cognizance, he may send the complaint/application under Section 156(3), Cr.P.C. for police investigation. If the course is adopted, the police will have to investigate the matter as per the procedure laid down in Section 157 onwards. If upon investigation the police came to the conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify the forwarding of accused for trial and submitted final report for dropping the proceedings, following courses are open to the Magistrate and he may adopt any one of them as the facts and circumstances of the case may require :

(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant;

(II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed;

(III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

(IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

11. The Apex Court in Abhinandan Jha v. Dinesh Misra MANU/SC/0054/1967 : AIR 1968 SC 117 held that on receiving final report it was not within the powers of the Magistrate to direct the police to submit a charge sheet but it is open to him to agree or disagree with the police report. If he agrees that there is no case made out for issuing process, he may accept the report and drop the proceedings. He may come to the conclusion that further investigation is necessary in that event he may pass an order to that effect. If ultimately the Magistrate is of the opinion that the facts set out in the police report constitute an offence, he can take cognizance of the offence, notwithstanding the contrary opinion, expressed in the police report. It was observed therein that the Magistrate in that

event could take cognizance under Section 190(1)(c) of the Code. The reference to Section 190(1)(c) was a mistake for Section 190(1)(b) and this has been pointed out in a later decision of H.S. Bains v. State MANU/SC/0126/1980 : AIR 1980 SC 1883.

12. In H. S. Bains (MANU/SC/0126/1980 : AIR 1980 SC 1883) (supra) it was held by the Supreme Court that the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses expressed in the police report submitted to the Magistrate under Section 173(2), Cr.P.C. The Magistrate may prefer to 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 report though not on the conclusions arrived at by the police. In that case it was observed : "If a complaint states the relevant facts in his compliant and alleges that the accused is guilty of an offence under Section 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 Section 324, Indian Penal Code only and he may take cognizance of an offence under Section 324 instead of Section 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 to 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 statement of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police."

13. In another decision in India Carat Pvt. Ltd. v. State of Karnataka MANU/SC/0349/1989 : AIR 1989 SC 885 (890), it was held as under :

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 conclusions arrived at by the investigation officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in 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. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.

14. In the case of Tularam v. Kishore Singh MANU/SC/0163/1977 : AIR 1977 SC 2401, it was held that if the police, after making an investigation, sent a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of the case under Section 190(1)(b) on the basis of material collected during investigation and issue process or in the alternative he could take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he was of opinion that the case should be proceeded with.

15. From the aforesaid decisions, it is thus clear that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require :-

(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or

(II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

(III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or.

(IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

16. Where the Magistrate decides to take cognizance of the case under Section 190(1))(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code and consequently the proviso to Section 202(2), Cr.P.C. will have no application. It would however be relevant to mention that for forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present if any under Section 200.

17. A plain reading of Sub-section (2) of Section 202 with the proviso attached thereto makes it clear that question of applying the proviso will arise only in cases where the Magistrate before taking cognizance of the case opts to hold the inquiry. This matter was thoroughly examined by the Apex Court in the latest decision in Rosy v. State of Kerala MANU/SC/0018/2000 : AIR 2000 SC 637 : 2000) 1 JT (SC) 84.

18. It was observed as under in paragraph 37 :

Therefore, the question of complying with the proviso to Sub-section (2) of Section 202 would arise only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry and secondly in such inquiry by him, if he decides to take evidence of witnesses on oath. But the object and purpose of holding inquiry or investigation under Section 202 is to find out whether there is sufficient ground for proceeding against the accused or not and that holding of inquiry or investigation is not an indispensable course before issue of process against the accused or dismissal of the complaint. It is an enabling provision to form an opinion as to whether or not process should be issued and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath.

19. It was further observed as under in paragraph 40 of the report :

In this view of the matter it is apparent that the High Court erred in holding that there was breach of mandatory provisions of the proviso to Section 202(2) of the Code and the order of committal is vitiated and, therefore, requires to be set-aside. The High Court failed to consider proviso to Section 200, particularly proviso (a) to the said section and also the fact that inquiry under Section 202 is discretionary for deciding whether to issue process (under Section 204) or

to dismiss the complaint (under Section 203). Under Section 200, on receipt of the complaint, Magistrate can take cognizance and issue process to the accused. If the case is exclusively triable by the Sessions Court, he is required to commit the case to the Court of Sessions.

20. From the above it is absolutely clear that proviso to Sub-section (2) of Section 202 of the Code will apply only to a case where the Magistrate has taken cognizance under Section 190(1)(a)and has opted to hold inquiry under Section 202 after examining the complainant and witnesses present, if any, under Section 200, Cr.P.C.

21. From the facts stated in the report of Mohabbat Ali's case 1985 UP Cri R 264 : 1984 ALJ NOC 31 it appears that the learned Magistrate had not adopted the procedure laid down for complaint cases after receiving the final report and had issued process. The Magistrate thus appears to have taken cognizance under Section 190(1)(b) of the Cr.P.C. If the cognizance was taken under said provision there was no question of applicability of relevant provisions applicable to complaint cases including proviso to Section 202(2), Cr.P.C. The Magistrate was thus not bound to call upon the complainant to produce all his witnesses and examine them on oath. Even otherwise also in view of Apex Court decision in Rosy MANU/SC/0018/2000 : AIR 2000 SC 637) (supra) no room for doubt is left to hold that the question of complying with the proviso to Sub-section (2) of Section 202 arises only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry under Section 202 and secondly in such inquiry by him, if he decides to take evidence of witnesses on oath. The inquiry under Section 202 is discretionary for deciding whether to issue process under Section 204 or to dismiss the complaint under Section 203, Cr.P.C.

22. In view of what we have stated above the question referred to by the learned single Judge is answered as follows :-

Where cognizance has been taken under Section 190(1)(b), Cr.P.C. only on the basis of material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to Sub-section (2) of Section202, Cr.P.C. shall have no application. The contrary view expressed in Mohabbat Ali's case is not a correct proposition of law.

23. Let the case now be listed before the appropriate Bench for deciding the matter finally.


Documents

Cancellation Report _ Power of the Court