Protest Petition Cognizance

MANU/SC/1197/2013 Equivalent Citation: 2013(14)SCALE209 IN THE SUPREME COURT OF INDIA Criminal Appeal No.1969 of 2013 (Arising out of Special Leave Petition (Crl.) No. 1515 of 2013) Decided On: 21.11.2013 Appellants: B. Chandrika Vs. Respondent: Santhosh and Anr. Hon'ble Judges/Coram: K.S. Panicker Radhakrishnan and A.K. Sikri, JJ. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Hindu Marriage Act, 1955 - Section 13(1); Indian Penal Code (IPC) - Section 34, Indian Penal Code (IPC) - Section 420; Code of Criminal Procedure (CrPC) - Section 156(3), Code of Criminal Procedure (CrPC) - Section 173, Code of Criminal Procedure (CrPC) - Section 190(1) Cases Referred: Gopal Vijay Verma v. Bhuneshwar Prasad Sinha and Ors. MANU/SC/0069/1982 : (1982) 3 SCC 510; Kishore Kumar Gyanchandani v. G.D. Mehrotra MANU/SC/1478/2001 : AIR 2002 SC 483 : (2001) 10 SCC 59 Disposition: Appeal allowed JUDGMENT K.S. Panicker Radhakrishnan, J. 1. Leave granted. 2. The Appellant herein is the second accused in CC 1548/2011 pending on file of the Judicial Magistrate, First Class, Cherthalay, which was initiated by the Magistrate on a protest complaint filed by the first Respondent herein for the offences punishable under Section 420 read with Section 34 Indian Penal Code. Summons were issued to accused persons by the learned Magistrate vide order dated 22.11.2011. That order was challenged in Revision before the High Court of Kerala on the ground that the Magistrate was not justified in initiating proceedings after a refer report was submitted by the Police, after due enquiry. The High Court, however, dismissed the Revision Petition vide order dated 23rd November, 2012 stating that even if a refer report is filed by the police after conducting investigation, the Magistrate has the power to entertain a protest complaint and to issue summons to the accused and proceed in accordance with law. Aggrieved by the same, this appeal has been preferred. 3. This appeal has been preferred by the second accused, a divorced wife of the first accused. The first Respondent herein initially filed a complaint against accused Nos. 1 and 2 before the Police Station Mohamma which was registered as Crime No. 302/2010. The operative portion of the complaint is as follows: The accused 1 and 2 with the ambition for immediate profits and the intention to make loss to the complainant, had given the commitment to the complainant in his rental residence house, owned by Kamal Travels, at Aryakara, Tannermukkam on 13.10.2006 to provide job to his uncle's son Sajimon, in Aushathi Govt. Department and taken 1 lac rupee from complainant, from Raveendran, R/o. Illathukalathil House, Kumarakam taken 1 lac rupees in the commitment to give job to his son Rathish from Prabhakaran, Puthanparambil House, Kumarakam, and from Arumukam, R/o. Kalathil House, Udayaperoor taken 50,000/- rupees each, and from K.P. Prasad, R/o. Tikarthil, Kothuruthi, taken 25,000/- rupees, thereafter the accused persons committed cheating without providing job to these persons. 4. An FIR was registered and the investigation ordered. Police conducted detailed investigation, relevant portion of the investigation report is as follows: After completing the investigation and recording the statement of witnesses stated above, I came to the conclusion that the fact stated above was not occurred. The complainant through Adv. Rajan had made contact with the first accused Ramchandran Unni and given Rs. 12000/for the purpose of taking certified copy of the order passed in Water Authority case, which was decided by the Kerala High Court, wherein he relatives of the complainant were parties in the case for the purpose of being permanency in service. After two weeks, Ramchandran Unni had got the certified copies from High Court and given it to the complainant. Except this, the accused had not collected money from any person. During the period when money was given as stated by the complainant, the second accused was not in the residential house at Mohamma with the first accused because they were separated to each other and started living in the house at Thiruvananthapuram. It is also proved that the first accused had not received any amount from the complainant or any other persons for providing job to the relative of the complainant or any other person. The amount paid, as stated in the complaint, has not been proved by the complainant and Ors. by submitting any reliable documents. 5. On the basis of the above-mentioned report, the police referred the case as not proved. Reference report was submitted to the Judicial Magistrate, First Class, Cherthalay for appropriate action. Later, the Respondent/claimant filed a protest complaint before the above-mentioned Court for cancellation of the reference report and for taking cognizance of the case, on which, as already stated, the Magistrate passed an order dated 22.11.2011, which reads as follows: Heard the counsel for the Petitioner. Perused the evidence adduced and other case records, prima facie case alleged is made out. Hence, case is taken on file as CC No. 154810 for offence Under Section 420 and 34 Indian Penal Code. Issue summons to both accused. Take steps 28.1.12. 6. The power of the Magistrate to take cognizance of an offence on a complaint or a protest petition on the same or similar allegations even after accepting the final report cannot be disputed. It is settled law that when a complaint is filed and sent to police under Section 156(3) for investigation and then a protest petition is filed, the Magistrate after accepting the final report of the police under Section 173 and discharging the accused persons has the power to deal with the protest petition. However, the protest petition has to satisfy the ingredients of complaint before Magistrate takes cognizance under Section 190(1)(a) Code of Criminal Procedure. 7. This Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha and Ors. MANU/SC/0069/1982 : (1982) 3 SCC 510 held that the Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of police report. The judgment was followed by a Three-Judge Bench judgment of this Court in Kishore Kumar Gyanchandani v. G.D. Mehrotra MANU/SC/1478/2001 : AIR 2002 SC 483 : (2001) 10 SCC 59. 8. The High Court, in our view, rightly applied the legal principle, but omitted to consider the crucial question as to the involvement of the second accused, the wife of the first accused. In this connection, it is pertinent to refer to the statement of the complainant having been made during the investigation, which reads as follows: Thereafter I, Kunjumon and Rajan were gone to Thiruvendipuram and met his wife then she told that they were separated to each other and she don't know nothing about him. I have given payment of Ramchandran Unni on the words of Rajan and Kunjumon. I don't know where he is now. At the time of paying the amount I have not seen his wife or not talked to her. I don't know anything about him so I have given this complaint. 9. The above statement of the complainant clearly indicates that money was entrusted to the first accused (the husband of A-2) and not to A-2. Complainant has also stated that at the time of paying the amount, the wife was not seen. Police on investigation, noticed that during the period when money was entrusted to the first accused, the second accused was riot in the residential house of first Respondent. Investigation revealed that they were separated and second accused started living at Thiruvananthapuram. 10. The Appellant has also produced a copy of decree of divorce dated 25.1.2010 before the Court, which will indicate that the second accused had obtained a decree of divorce against the first accused on the ground of cruelty under Section 13(1)(a) of the Hindu Marriage Act, 1955. Considering the fact that the second accused had no role, even according to the complainant, there is no reason to prosecute the second accused. In our view, the Magistrate has not considered this vital aspect when the protest petition was considered by him. 11. Magistrate has to exercise judicial discretion and apply his mind to the contents of the petition. The refer report as well as the statement of the complainant would indicate that no offence has been made out so far as the second accused is concerned since, admittedly, no money was entrusted to her and that second accused is the divorced wife of the first accused. That being the factual situation, we are inclined to allow the appeal so far as the second accused is concerned and the summons issued against the second accused would stand quashed. However, it is open to the Magistrate to proceed against the first accused. 12. The appeal is allowed, as above. © Manupatra Information Solutions Pvt. Ltd. Go to top MANU/SC/1373/2011 Equivalent Citation: 2012(1)ACR1173(SC), 2012(3)B.L.J.60, 2012BomCR(Cri)818, 2012(1)Crimes16, [2012(1)JCR218(SC)], JT2011(13)SC319, (2012)2MLJ383(SC), 2012(1)PLJR139, 2012(1)RCR(Criminal)14, 2011(13)SCALE75, (2012)1SCC130, 2012(1)UC195 IN THE SUPREME COURT OF INDIA Criminal Appeal No. 2160 of 2011 (Arising out of SLP (Crl.) No. 2768 of 2010) Decided On: 22.11.2011 Appellants: Shiv Shankar Singh Vs. Respondent: State of Bihar and Anr. Hon'ble Judges/Coram: Balbir Singh Chauhan and T.S. Thakur, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Gaurav Agrawal, Adv. For Respondents/Defendant: Awanish Sinha, Gopal Singh and Ravi Bhushan, Advs. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Indian Penal Code, 1860 (IPC) - Section 34, Indian Penal Code, 1860 (IPC) - Section 302, Indian Penal Code, 1860 (IPC) - Section 395, Indian Penal Code, 1860 (IPC) - Section 396, Indian Penal Code, 1860 (IPC) - Section 398, Indian Penal Code, 1860 (IPC) - Section 506; Code of Criminal Procedure, 1973 (CrPC) - Section 156(3), Code of Criminal Procedure, 1973 (CrPC) Section 173,Code of Criminal Procedure, 1973 (CrPC) - Section 203, Code of Criminal Procedure, 1973 (CrPC) - Section 204 Cases Referred: Joy Krishna Chakraborty and Ors. v. The State and Anr. MANU/WB/0325/1980 : 1980 Cri. L.J. 482; Ram Lal Narang v. State (Delhi Admn.) MANU/SC/0216/1979 : AIR 1979 SC 1791; Sudhir and Ors. v. State of M.P. AIR 2001 SC 826; T.T. Antony v. State of Kerala and Ors. MANU/SC/0365/2001 : AIR 2001 SC 2637; Upkar Singh v. Ved Prakash and Ors. MANU/SC/0733/2004 : AIR 2004 SC 4320;Babubhai v. State of Gujarat and Ors. MANU/SC/0643/2010 : (2010) 12 SCC 254); Bhagwant Singh v. Commissioner of Police and Anr. MANU/SC/0063/1985 : AIR 1985 SC 1285; Bindeshwari Prasad Singh v. Kali Singh MANU/SC/0100/1976 : AIR 1977 SC 2432; Pramatha Nath Talukdar v. Saroj Ranjan Sarkar MANU/SC/0149/1961 : AIR 1962 SC 876; Mahesh Chand v. B. Janardhan Reddy and Anr.MANU/SC/1111/2002 : AIR 2003 SC 702; Poonam Chand Jain and Anr. v. Fazru AIR 2005 SC 38; Jatinder Singh and Ors. v. Ranjit Kaur MANU/SC/0753/2001 : AIR 2001 SC 784; Ranvir Singh v. State of Haryana MANU/SC/1592/2009 : (2009) 9 SCC 642 Prior History: From the Judgment and Order dated 06.05.2009 of the High Court of Judicature at Patna in Cr. Misc. No. 36335 of 2008 (MANU/BH/1607/2010) Disposition: Appeal allowed Citing Reference: Discussed 7 Mentioned 6 Case Note: Code of Criminal Procedure, 1973 - Sections 190 (1), 200 and 202--F.I.R. for offence under Section 395, IPC-Final report--Protest petition--Second complaint--No bar to entertain it on same facts in exceptional circumstances--Similarly, second protest petition can also be entertained only under exceptional circumstances--First protest petition filed prior to filing of final report--Not competent--Hence, second protest petition maintainable-High Court wrong in holding otherwise--Order of High Court set aside--And that of Magistrate restored. The law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the Court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit. The police reached the place of occurrence at about 3. An FIR No. on 9.2004. C. 1. Bhola Singh.S. A dacoity was committed in the house of present Appellant Shivshankar Singh and his brother Kameshwar Singh on 6. After considering the same and examining a very large number of witnesses. the facts of .2005. The matter stood concluded after trial in favour of the accused persons therein. F. E. Therefore. Shri Awanish Sinha and Shri Gopal Singh. charge-sheet was filed under Sections 302. 36335 of 2008.2005. The High Court has rightly observed that the order of the Magistrate summoning the Respondent No. L. More so. the facts of the case in Joy Krishna Chakraborty and Ors. a fresh Protest Petition is filed giving full details. Protest Petition is to be treated as a complaint and the law does not prohibit filing and entertaining of second complaint even on the same facts in certain circumstances.12.4.?).J. 4. 1 and Ors.8.12.The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of Cr. was totally vague. D. Chauhan. the Court fails to understand as to why it should not be maintainable.8. Being aggrieved. After investigating the other FIR filed by Kameshwar Singh.12. (hereinafter called `Code of Criminal Procedure. the second Protest Petition can also similarly be entertained only under exceptional circumstances.8. 1860 (hereinafter called `Indian Penal Code?) has been quashed.4.2009 passed by the High Court of Judicature at Patna in Criminal Miscellaneous No. 147/2004 dated 6. in exceptional circumstances. learned Counsel appearing for the Appellant has submitted that the High Court failed to appreciate that the so-called first Protest Petition having been filed prior to filing the Final Report was not maintainable and just has to be ignored. by which the cognizance taken by the Magistrate vide order dated 2. Even otherwise. JUDGMENT B. but did not pursue the matter further. The learned Magistrate rightly did not proceed on the basis of the said Protest Petition and it remained merely a document in the file. the maternal uncle of Bhola Singh had killed Gopal Singh as the accused wanted to grab the immovable property. The court did not pass any order on the said petition.4. Shri Gaurav Agrawal. the Magistrate took cognizance and issued summons to Respondent An and Kumar Singh and Ors.5. the judgment and order impugned is liable to be set aside. father of the deceased. On the contrary. The second petition was the only Protest Petition which could be entertained as it had been filed subsequent to filing the Final Report. The High Court further committed an error observing that the Magistrate?s order of summoning the Respondent No. 506 Indian Penal Code etc.C. When the investigation in pursuance of both the FIRs was pending. son of complainant and others.2008 which has been allowed by the High Court on the ground that second Protest Petition was not maintainable and the Appellant ought to have pursued the first Protest Petition dated 4. the Appellant filed Protest Petition on 4. about 2 hours after the occurrence.e. the Respondent An and Kumar Singh filed Criminal Miscellaneous No.2005 against the Appellant. MANU/WB/0325/1980 : 1980 Cri. Kameshwar Singh. Thus. on 29. In case the first Protest Petition has been filed without furnishing the full facts/particulars necessary to decide the case. the police filed Final Report under Section 173 Code of Criminal Procedure. the deceased. vide order dated 2. 151/2004 was lodged on 29.12. The State and Anr. 1973. 2 under Section 395 of the Indian Penal Code.2008 against the Respondent No.2005.2005. This appeal has been preferred against the judgment and order dated 6. Therefore. he cannot be held to be a competent/eligible person to file the Protest Petition. in case there is no bar to entertain a second complaint on the same facts.2008. J. 302/34. decided by the Division Bench of the Calcutta High Court and solely relied by the High Court were distinguishable as in the said case the first Protest Petition had been entertained by the Magistrate and an order had been passed. Bhola Singh.8. approached the court by filing a case under Section156(3) of the Code of Criminal Procedure. He had purposely lodged the false FIR promptly after committing the offence himself. the Appellant filed a second Protest Petition in respect of the Final Report dated 9. the real brother of the Appellant and father of Gopal Singh. P. However. son of the second complainant and Shankar Thakur. 482. It was on 22.2005 to the effect that the case was totally false and Gopal Singh had been killed for property disputes.00 AM i. B. 3. as the Appellant himself had faced the criminal trial in respect of the same incident.2004 Where in Gopal Singh son of Kameshwar Singh was killed by the dacoits and lots of valuable properties were looted. and prior to its entertainment by the Court.2004 in respect of the same incident with the allegations that the present Appellant. Facts and circumstances giving rise to this case are that: A. Investigation in pursuance of both the reports ensued.9.2004 was lodged by the Appellant naming Ramakant Singh and An and Kumar Singh alongwith 15 other persons under Sections 396/398 Indian Penal Code. Hence.4. 1 was vague and it was not clear as in which Protest Petition the order had been passed. 2. v. this appeal. After completing investigation in the Report dated 6. Appropriate orders were passed therein and in pursuance of which FIR No. 36335 of 2008 for quashing the order dated 2. Learned Counsel appearing for the Respondent have vehemently opposed the appeal contending that the second petition was not maintainable and the Appellant ought to have pursued the first Protest Petition. it was in this factual backdrop that the Calcutta High Court held that the matter could have been proceeded with on the basis of the first Protest Petition itself by the Magistrate and second Protest Petition could not have been entertained.1976. We do not find any force in the submission made on behalf of the Respondent that as in respect of same incident i. MANU/SC/0365/2001 : AIR 2001 SC 2637. State of Kerala and Ors.. have been adduced. proceedings cannot be initiated against the Respondent No. In Jatinder Singh and Ors. however. State of Gujarat and Ors. Sudhir and Ors. he has a right to be heard. He is the person interested in the result of the investigation.P.3. v. and Babubhai v. The test of sameness has to be applied otherwise there would not be cross cases and counter cases. The Officer-in-Charge of the said police station did not carry out any investigation on the ground that the incident had occurred outside the territorial jurisdiction of the said police station.the case do not warrant any interference by this Court and the appeal is liable to be dismissed. v. In Bindeshwari Prasad Singh v. MANU/SC/0063/1985 : AIR 1985 SC 1285.1976 was entertained by the Magistrate issuing direction to the Officer-in-Charge of the Khanakul Police Station under Section 156(3) Code of Criminal Procedure. 10. in Mahesh Chand v. v.3. 6. the informant would certainly be prejudiced and therefore. second complaint would not be maintainable wherein the earlier complaint has been disposed of on full . In Bhagwant Singh v. After considering the aforesaid judgment along with various other judgments of this Court. 5. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case. Ved Prakash and Ors. (Vide: Ram Lal Narang v. have been brought on the record in the previous proceedings.1976 was entertained by the learned Magistrate. the Magistrate under Section 204 Code of Criminal Procedure may take cognizance of an offence and issue process if there is sufficient ground for proceeding. AIR 2001 SC 826. the ratio of the said judgment has no application in the facts of this case. a similar view has been re-iterated by this Court. this Court examined the issue in the backdrop of facts that the complaint had been dismissed for the failure of the complainant to put in the process fees for effecting service and held that in such a factsituation second complaint was maintainable. to make the investigation and submit the report to the court concerned by 10. The facts of the present case are completely distinguishable. this Court held that the second complaint lies if there are some new facts or even on the previous facts if the special case is made out. Antony v. Thus.. dacoity and murder of Gopal Singh. Fazru AIR 2005 SC 38. wherein the Protest Petition dated 19.e. State of M. 7. in case the Magistrate takes a view that there is no sufficient ground for proceeding further and drops the proceedings. MANU/SC/0733/2004 : AIR 2004 SC 4320. 8. no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances e. B.) MANU/SC/0216/1979 : AIR 1979 SC 1791.T. In a case where a previous complaint is dismissed without assigning any reasons. In fact.It is settled law that there is no statutory bar in filing a second complaint on the same facts. it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. 13. he or any other person should be given another opportunity to have his complaint enquired into. it would be violative of principles of natural justice of the complainant and therefore before the Magistrate drops the proceedings the informant is required to be given hearing as the informant must know what is the result of the investigation initiated on the basis of first FIR. unjust or foolish or where new facts which could not. 1 at his behest as registration of two FIRs in respect of the same incident is not permissible in law. Similarly in Ranvir Singh v. Kali Singh MANU/SC/0100/1976 : AIR 1977 SC 2432. Thus. in Pramatha Nath Talukdar v. Therefore. Undoubtedly. (supra). with reasonable diligence. T. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd. Upkar Singh v. State (Delhi Admn. Commissioner of Police and Anr. State of Haryana MANU/SC/1592/2009 : (2009) 9 SCC 642. Thus. Saroj Ranjan Sarkar MANU/SC/0149/1961 : AIR 1962 SC 876. 11.4. We have considered the rival submissions made by the Learned Counsel for the parties and perused the record. filing another FIR in respect of the same incident having a different version of events is permissible. this Court dealt with an issue elaborately entertaining the writ petition and accepting the submission in regard to acceptance of the Final Report to the extent that if no case was made out by the Magistrate. Janardhan Reddy and Anr. MANU/SC/0643/2010 : (2010) 12 SCC 254). for the simple reason that law does not prohibit registration and investigation of two FIRs in respect of the same incident in case the versions are different. Similarly. The second Protest Petition filed by the same complainant on 23. Ranjit Kaur MANU/SC/0753/2001 : AIR 2001 SC 784.g. the High Court has placed a very heavy reliance on the judgment of the Calcutta High Court in Joy Krishna Chakraborty and Ors. is. this Court has held as under: An order of dismissal under Section 203 of the Code of Criminal Procedure. the Appellant himself along with others is facing criminal trial. MANU/SC/1111/2002 : AIR 2003 SC 702. 9. this Court held as under: . However. this Court held that dismissal of a complaint on the ground of default was no bar for a fresh Complaint being filed on the same facts. In Poonam Chand Jain and Anr. 12. Ganesh Kumar.12. Ltd. we clarify that any observation made in this judgment shall not adversely prejudice the cause of the Respondent to seek any further relief permissible in law as the said observations have been made only to decide the controversy involved herein. In view of the above. we fail to understand as to why it should not be maintainable. 18. Suman Devi.consideration of the case of the complainant on merit. Respondent No.8. wherein the Appellant himself has been put to trial was also summoned and examined by the learned Magistrate. a fresh Protest Petition is filed giving full details. More so. and a very large number of witnesses. in exceptional circumstances. Jateshwar Acharya. trial was pending in another court. 14.2008 passed by the Magistrate concerned is based on the depositions made by the Appellant-Shivshankar Singh. © Manupatra Information Solutions Pvt. the record of the Sessions Trial No. In our opinion. The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of Code of Criminal Procedure. the appeal succeeds and is allowed.2008 for filing of the requisites. Nirmala Devi. However. and prior to its entertainment by the court. namely. Thus. so that advantage may accrue to Opposite Party No. Therefore. The instant case is required to be decided in the light of the aforesaid settled legal propositions. After appreciating the evidence of the complainant and other witnesses deposed in the enquiry. Neeraj Kumar Singh. Narendra Kumar. Ram Achal Singh. 2. the learned Magistrate passed the following order: On the basis of aforesaid discussion. in case there is no bar to entertain a second complaint on the same facts. 1 is directed to appear before the Magistrate on 1. 17. In case the first Protest Petition has been filed without furnishing the full facts/particulars necessary to decide the case. I find that there are materials available on the record to proceed against the accused person. 16.8. the second Protest Petition can also similarly be entertained only under exceptional circumstances. 15. Go to top . 866 of 2005. Put up the record on 13. The order impugned of the High Court is set aside and the order of the Magistrate is restored. Sonu Kumar Singh. the Magistrate further took note of the fact that for the same incident. More so. O/c is directed to issue summons on filing of the requisite. Order dated 2. there was no occasion for the High Court to make such sweeping remarks against the Magistrate and the same remain unjustified and unwarranted in the facts and circumstances of the case. Udai Kumar Ravi. the High Court without any justification made the following remarks: The Court can only record that the learned Judicial Magistrate has not conducted himself in a fair manner because he has intentionally left the impugned order vague as to which protest petition he was acting upon. A prima-facie case under Section395 Indian Penal Code has been made out against all the accused person of this case. Krishna Devi and Dr.2011 and the learned Magistrate is requested to proceed in accordance with law. The High Court without taking note of the aforesaid evidence set side the order of the Magistrate on a technical ground that the second Protest Petition was not maintainable without considering the fact that the first Protest Petition having been filed prior to filing of the Final Report was not competent. Section 173(8). MANU/SC/0749/2009 : (2009) 6 SCC 576. Code of Criminal Procedure (CrPC) . Sudhakar Joshi and Ranjith K. State of Gujarat and Ors.Power of Court--Held--Under Section 156(3) Cr. Code of Criminal Procedure (CrPC) . Respondent: State of Gujarat Hon'ble Judges/Coram: Altamas Kabir and Cyriac Joseph.Section 156. MANU/SC/0014/2001 : (2001) 2 SCC 628.Section 200. Code of Criminal Procedure (CrPC) .C. Advs.Section 193.P. (2010)4SCC185. v.2010 Appellants: Rameshbhai Pandurao Hedau Vs.MANU/SC/0183/2010 Equivalent Citation: AIR2010SC1877.Section 120B.Mohd. State of M.Section 156(3).Section 173(2). IN THE SUPREME COURT OF INDIA Criminal Appeal No. Indian Penal Code (IPC) . [Para--18] .) and Anr.2008 of the High Court of Gujarat in Special Criminal Application No.Section 302. [2010]3SCR522. 2010(2)ALD(Cri)520. 2010CriLJ2441. Hemantika Wahi..C. Narayana Reddy and Ors. Counsels: For Appellant/Petitioner/Plaintiff: Chaitanya Joshi. Magistrate can treate the petition as complaint under Section 200 Cr. Indian Penal Code (IPC) . Code of Criminal Procedure (CrPC) .03. V. and kept the matter with himself for an enquiry in the facts of the case.P. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Indian Penal Code (IPC) .07. Code of Criminal Procedure (CrPC) . 8600 of 2008) Decided On: 19. MANU/SC/0108/1976 : (1976) 3 SCC 252. Code of Criminal Procedure (CrPC) . Code of Criminal Procedure (CrPC) . JJ. 2010GLH(243)2.Section 202(1).Section 203 Cases Referred: Suresh Chand Jain v.Section 114. MANU/SC/0189/2006 : (2006) 1 SCC 627 Prior History: From the Judgment and Order dated 02. Afaq Jahan (Smt.P.Devarapalli Lakshminarayana Reddy and Ors. Code of Criminal Procedure (CrPC) .Section 202(2). 1458 of 2007 Disposition: Appeal dismissed Citing Reference: Discussed 5 Case Note: Criminal Procedure Code 1973--Section 156(3) and 193-. Code of Criminal Procedure (CrPC) . Dharmeshbhai Vasudevbhai and Ors. Yousuf v. Code of Criminal Procedure (CrPC) . v. Code of Criminal Procedure (CrPC) . State of Delhi MANU/SC/3678/2007 : (2007) 12 SCC 641. Advs. 2010(2)SCALE166.Section 202. For Respondents/Defendant: Meenakshi Lekhi. Somnath Padan and Jesal. 548 of 2010 (Arising out of Special Leave Petition (Crl) No. Nachiketa Joshi. JT2010(3)SC254. 2010(1)UC656 2010GLH(2)243. Dilawar Singh v.C.Section 190. Mr. 2008. 4.. Joshi's submissions were vehemently opposed on behalf of the State of Gujarat by Ms. The Appellant is the elder brother of the deceased. J. 20 at Ahmedabad on 17 th April. 2.C.P. 114 read with Section 120B Indian Penal Code and prayed for an order to be passed for an inquiry under Section 156(3) Cr. 7. Nachiketa Joshi.P. On 21 st December. 1458 of 2007 before the Gujarat High Court.C. In such a case. 6.C. 5. After the post-mortem examination was conducted. 2007. but once he takes cognizance. 8. In other words. Dissatisfied with the closure of the investigation. as well as that of the High Court. Joshi also referred to the decision of this Court in Dharmeshbhai Vasudevbhai and Ors. submitted that the learned Metropolitan Magistrate. including the power to conduct an inquiry or investigation under Section 202 of the Code. 2006. to 7. as well as the High Court.. upon receipt of the said reports. while considering the power of the Magistrate to recall an order for investigation passed by him under Section 156(3) Cr. for taking action against the accused. At the time of his death. Lekhi submitted that the scheme of the Code of Criminal Procedure was such that once an investigation on a complaint had been concluded and a final report had been submitted by the investigating agency to the Magistrate . In support of his aforesaid submissions.P. wherein while considering the power of the Magistrate under Section 156(3) Cr.P. 2006. an inquiry by the Court under Section 202 Cr. Joshi submitted that the order of the learned Metropolitan Magistrate..C. before taking cognizance of an offence the Magistrate always has the jurisdiction to direct an investigation under Section 156(3) of the Code on a fresh complaint. In the complaint.P. Advocate. MANU/SC/0749/2009 : (2009) 6 SCC 576. Appearing in support of the appeal. his relatives and others. Kamleshbhai's death was not found to be unnatural but as a result of natural causes. 17 of 2007. it was held that such power is vested in the Magistrate before taking cognizance of the offence.P. State of Gujarat and Ors. Mr.C. accordingly. the investigation was closed by the Investigating Officer attached to Vatva Police Station. The Appellant herein filed a Criminal Writ Petition. postponed the issuance of process and kept the complaint for Court inquiry. in accordance with Section 202 Cr. MANU/SC/0014/2001 : (2001) 2 SCC 628. the learned Metropolitan Magistrate by his order dated 17 th April. 2007. Joshi further submitted that the Courts were ill-equipped to deal with an investigation which would be required to be undertaken in the instant case and. Ahmedabad.m.C. Advocate. Ms. Joshi referred to the decision of this Court in Suresh Chand Jain v. failed to recognize the gravity of the offence and the attempt made to cover up the incident which has caused a miscarriage of justice.P. being Special Criminal Application No. Mr. the opinion of the doctor as to the cause of death was kept pending till the reports from the FSL and HTP were made available. Instead of directing an investigation to be conducted by higher police officials under Section 156(3) Cr. there was no further scope for an investigation under Section 156(3) Cr.P.P. Mr.mortem examination.C. on the basis of a fresh complaint and the only remedy available to the complainant would be by way of a complaint under Section 200 Cr. were liable to be set aside with a direction to higher officials of the police in the District to conduct a proper investigation under Section 156(3) of the Code. On the basis of the said statements and the report of the post.00 p. which was numbered as Enquiry Case No. the orders passed by the learned Magistrate.C. this Court appears to have taken the same view as was expressed in Suresh Chand Jain's case (supra) to the effect that before taking cognizance the Magistrate can invoke his powers under Section 156(3) Cr. The Investigating Officer had also occasion to record the statements of the Appellant. whose dead body was found near Govindbhai Ghat on Sarkhej Narol Highway on 17 th October. the Appellant went to the above-mentioned spot and found the dead body of his brother. who contended that once a final report had been filed by the investigating authorities under Section 173(2) Cr. Mr. on receipt of information. State of M. On 17 th October.P. he has to proceed in accordance with the procedure embodied in Chapter XV thereof. On 17th October.P. which was dismissed in limine on 2 nd July. the Medical Officer was of the opinion that the cause of death of the deceased was on account of cardio-respiratory arrest due to lungs pathology.00 p.JUDGMENT Altamas Kabir. v.m. the Appellant alleged that offences had been committed under Sections 302. 2006.C. It was submitted that having regard to the serious nature of the offence complained of. postmortem was conducted by the Medical Officer of the Civil Hospital. 3.. 2006 itself. the Appellant filed a complaint before the Metropolitan Magistrate No. would not be apposite in preference to an investigation by the higher police officials under Section 156(3) of the Code. Ahmedabad. 1. Kamleshbhai. Kamleshbhai was serving with M/s Airstate International Courier and his usual working time was from 1. Mr.P.C.C. had committed an error in rejecting the Appellant's prayer for an investigation under Section 156(3) of the Code and taking recourse to Section 202 of the Code instead. Leave granted. by a learned Single Judge upon holding that no case had been made out for directing investigation under Section 156(3) Cr. wherein. It is the said order of the High Court which has been questioned in the present appeal. Meenakshi Lekhi. (1) Any officer in charge of a police station may. he is not required to examine the complainant since he was not taking cognizance of any offence therein for the purpose of enabling the police to start investigation. where the difference in the investigative procedure in Chapters XII and XV of the Code has been recognized and in that case this Court also appears to have taken the view that any Judicial Magistrate. At the same time. which forms part of Chapter XII. The Courts are ad idem on the question that the powers under Section 156(3)can be invoked by a learned Magistrate at a pre. It has been sought to be urged by Ms. However. Since the appellant had filed a fresh complaint by way of a protest petition. the power to direct an investigation or an inquiry under Section 202(1) is exercisable at the postcognizance stage when the Magistrate is in seisin of the case. he is. (3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned. under Section 190 of the Code. The settled legal position has been enunciated by this Court in several decisions to which we shall refer presently. Reference has been made to the decision of this Court in Suresh Chand Jain's case (supra). which deals with the powers of the police to investigate into an offence. no further order could be made on a protest petition. 11. before taking cognizance of an offence. V. whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint but before issuance of process. learned Counsel appearing for the State of Gujarat. Ms. 13. In other words.under Section 173(2) of the Code. We have carefully considered the submissions made on behalf of the respective parties and we find no reason to interfere with the order of the High Court impugned in the appeal. 12. MANU/SC/0108/1976 : (1976) 3 SCC 252. Ms. without the order of a Magistrate. precluded from ordering an investigation under Section 156(3) of the Code. On the other hand. Lekhi firstly referred to the decision of this Court in Devarapalli Lakshminarayana Reddy and Ors. other than a police officer. Ms. which is in the nature of a fresh complaint for a further investigation under Section 156(3) of the Code. Lekhi. 14. 15. any fresh complaint by way of a protest petition could only be entertained under Section 200 and if the Magistrate so thought fit. an inquiry or investigation could be conducted under Section 202 of the Code. deals with the power of an Officer in-charge of a police station to investigate cognizable cases and provides as follows: 156.cognizable offences and the steps to be taken in that regard culminating in the filing of the report of the investigation on completion thereof under Section 173(2) of the Code. investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. such power may be exercised by the officer concerned on an order being passed by any Magistrate empowered under Section 190 of the Code for making such an investigation.P. 9. Chapter XII deals with the power of the police authorities to investigate in respect of cognizable offence on receipt of information thereof.. that once an investigation is undertaken by the police and a final report is filed. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Such a view has been expressed in Suresh Chand Jain's case (supra) as well as in Dharmeshbhai Vasudevbhai's case (supra) and the case of Devarapalli Lakshminarayana Reddy's case (supra). Section 200 which falls in Chapter XV.C. The three aforesaid cases have been cited on behalf of the parties. Police Officer's power to investigate cognizable cases. as indicated in the decisions referred to hereinabove. v. the learned Magistrate had rightly invoked the provisions of Section 202 to order an inquiry without directing a fresh investigation as prayed for by the appellant. indicates the manner in which the cognizance has to be taken and that the Magistrate may also inquire into the case himself or direct an investigation to be made by . the only course open to the appellant was to file a fresh complaint under Section 200 of the Code. once a Magistrate takes cognizance of the offence. At this stage it may also be indicated that under Sub-section (8) of Section 173 the police is empowered to conduct further investigation in respect of an offence even after a report under Sub-section (2) is forwarded to the Magistrate. It is now well-settled that in ordering an investigation under Section 156(3) of the Code. Chapter XII deals with the conduct of investigation of both cognizable and non. In support of her submissions. Lekhi contended that since the police had already conducted an investigation and had filed the final report under Section 173(2) of the Code and the same having been accepted by the learned Magistrate. It was explained that while Section 156(3) occurs in Chapter XII of the Code. it is quite clear that the two contemplate two different situations. can order investigation under Section 156(3) of the Code and in doing so. Chapter XV deals with complaints filed before the Magistrate for taking cognizance of an offence. Narayana Reddy and Ors. Reference was made to paragraph 17 of the said judgment wherein the distinction between an investigation under Section 156(3) of the Code and one under Section 202(1) of the Code has been highlighted. We may also refer to the decision of this Court in Dilawar Singh v. the Magistrate is not empowered to take cognizance of the offence and such cognizance is taken only on the basis of the complaint of the facts received by him which includes a police report of such facts or information received from any person. State of Delhi MANU/SC/3678/2007 : (2007) 12 SCC 641. all these steps are to be taken by the learned Magistrate prior to taking cognizance of the offence. It will thus be seen that the power of the police authorities to investigate a cognizable offence is not dependent on an order of the Magistrate. From the scheme of Chapters XII and XV of the Code of Criminal Procedure. 10. Lekhi submitted that the provisions of Section202 Cr. While the power to direct a police investigation under Section 156(3) is exercisable at the pre-cognizance stage. thereafter. Section 202 thereof deals with complaints made to Magistrates where the power to direct an inquiry operates in a different sphere. had been correctly invoked by the Magistrate and the prayer for investigation under Section 156(3) of the Code made by the Appellant had been rightly rejected.cognizance stage. Section 156. to direct an investigation by the police authorities is at the pre-cognizance stage while the power to direct a similar investigation under Section 202 is at the post-cognizance stage. he may either dismiss the complaint under Section 203 or proceed in terms of Section 193 and commit the case to the Court of Sessions.P. see no reason to interfere with the order of the learned Magistrate and the views expressed by the High Court in the impugned order on the invocation of jurisdiction by the learned Magistrate under Section 202 Cr. MANU/SC/0189/2006 : (2006) 1 SCC 627.C. accordingly. The law is well-settled that an investigation ordered by the Magistrate under Chapter XII is at the pre-cognizance stage and the inquiry and/or investigation ordered under Section 202 is at the postcognizance stage. © Manupatra Information Solutions Pvt. 17. 19. The power to direct an investigation to the police authorities is available to the Magistrate both under Section 156(3) Cr. The only difference is the stage at which the said powers may be invoked. dismissed.C.P. As indicated hereinbefore.C. Reference was also made to the decision of this Court in Mohd. he has to follow the procedure envisaged in Chapter XV of the Code. 16. therefore. 18.a police officer before issuing process. What we have to consider is whether the Magistrate committed any error in refusing the appellant's prayer for an investigation by the police under Section 156(3) of the Code and resorting to Section 202 of the Code instead. Go to top .P. and under Section 202 Cr. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the Appellant as a complaint under Section 200 of the Code and has thereafter proceeded under Section 202 Cr.) and Anr. The inquiry contemplated under Section 202(1) or investigation by a police officer or by any other person is only to help the Magistrate to decide whether or not there is sufficient ground for him to proceed further on account of the fact that cognizance had already been taken by him of the offence disclosed in the complaint but issuance of process had been postponed. since both the two courses were available to him. Afaq Jahan (Smt. where it has been held that when a Magistrate orders investigation under Chapter XII of the Code.C.P. the power under Section 156(3) Cr.C. and kept the matter with himself for an inquiry in the facts of the case. Yousuf v. Once he takes cognizance of the offence.P. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of Sub-section (2) of Section 202 the learned Magistrate deems it fit. The appeal is. We. he does so before he takes cognizance of the offence. Ltd. Code of Criminal Procedure (CrPC) Section 482. Sankatha Singh' s case AIR 1962 SC 1028.Section 204. Code of Criminal Procedure (CrPC) .Section 362. MANU/SC/0961/1997 : (1997) 7 SCC 614. Rooplal Jindal MANU/SC/0688/2004 : (2004) 7 SCC 338. Advs. Code of Criminal Procedure (CrPC) .Section 173(2).Reinvestigation order under Section 173(8)Code of Criminal Procedure. Adv. Sooraj Devi v. Adv For Respondents/Defendant: K. Advs. (2009)9SCC129. State of Kerala MANU/SC/0434/1992 : (1992) 1 SCC 217.Application filed by Respondents against the said Order before the High Court . Union Public Service Commission v. (P) Ltd. Indian Penal Code (IPC) .K. Code of Criminal Procedure (CrPC) .Framing thereof . S. JJ.Held . Code of Criminal Procedure (CrPC) .S. Adv. Indian Penal Code (IPC) . Code of Criminal Procedure (CrPC) . MANU/SC/0228/1981 : (1981) 1 SCC 500.01. Ajay Kr. Mathew v. State (Delhi Administration) MANU/SC/0161/1997 : (1997) 1 SCC 361.2007 of the High Court of Calcutta in C. Aruna Devi and Ors. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure (CrPC) .Whether the learned Magistrate had jurisdiction to order re-investigation under Section 173(8) of Code of Criminal Procedure .Reinvestigation — Sections 173(2)and 173(8) of the Code of Criminal Procedure.Charge . MANU/SC/0515/1995 : (1995) 1 SCC 1..MANU/SC/1486/2009 Equivalent Citation: 2009(57)BLJR2945. 2009(8)UJ3984 IN THE SUPREME COURT OF INDIA Special Leave Petition (Crl. Code of Criminal Procedure (CrPC) .Section 468 Cases Referred: Master Construction Co. the present Petition .Section 173(6). Venugopal. Code of Criminal Procedure (CrPC) Section 319. Counsels: For Appellant/Petitioner/Plaintiff: Jaideep Gupta.Magistrate can order further investigation under section 173(8) after framing of charges but cannot order for reinvestigation — Magistrate cannot suo moto direct a further investigation under Section . Raja Chatterjee and Arindam Mitra. Sr. Papaiah and Ors. Hon'ble Judges/Coram: Altamas Kabir and Cyriac Joseph. CBI MANU/SC/7924/2007 : (2007) 8 SCC 770 Prior History: From the Judgment and Order dated 31. Jha. State of Rajasthan v. for G. Tara Chandra Sharma and Neelam Sharma.R. Chatterjee. Code of Criminal Procedure (CrPC) .Section 467.. Goopal Sankaranarayanan. Dinesh Dalmia v. 1973 . Adalat Prasad v. Code of Criminal Procedure (CrPC) Section 200. 2009(4)PLJR169. 2009(11)SCALE395. for Parekh & Co.08. Respondent: State of West Bengal and Ors. Advs.M.. 2318 of 2004 Disposition: Petition dismissed Citing Reference: Discussed 4 Mentioned 5 Case Note: Criminal . Sr.Section 156(3).High court set aside the order — Hence.Randhir Singh Rana v. [2009]14SCR276. Pyare Lal and Anr. 3062 of 2007 Decided On: 13.2009 Appellants: Reeta Nag Vs. Code of Criminal Procedure (CrPC) Section 173(8).Section 190. Indian Penal Code (IPC) . 2010CriLJ2245.Section 173. 1973 by Judicial Magistrate .) No. No.'s case MANU/SC/0304/1965 : AIR 1966 SC 1047. K.R.Section 167(2). Divya Sinha.Section 120B. P. for All India Services. urged that the application filed on behalf of the petitioner herein was really for the purpose of further investigation. praying for reinvestigation of the case. Gupta urged that the application filed by the petitioner ought to have been considered for the purpose of further investigation as contemplated under Section 173(8) Cr.. and was. the learned Single Judge also took the view that merely because out of sixteen accused persons ten had been discharged.P. before the Calcutta High Court. Having regard to the view taken by him.". having regard to the provisions of Section 362 Cr. Gupta urged that if such a procedure was not barred under the law. urged that the order of the learned Magistrate. in accordance with law.P. the SubDivisional Judicial Magistrate. which expression had been inadvertently included in the prayer of the said application. Asansol. Mr. allowed the revisional application and directed the trial court to proceed with the case. 2004.C. 1. the order passed by the learned Magistrate on 20th August. hereinafter referred to as "U.No application for further investigation by investigating authority it was only upon the application filed by the de facto complainant under Section 173(8) . in fact. there is no express prohibition.. J. to select the best talent. the Magistrate can direct the investigating authorities to conduct a re-investigation or even further investigation under Sub-section (8) of Section 173 Cr. S. the learned Magistrate had. Venugopal.C. Pyare Lal and Anr.173(8) . Jaideep Gupta. being CRR No. MANU/SC/0515/1995 : (1995) 1 SCC 1. The learned Single Judge observed that although the Magistrate could not direct reinvestigation on the basis of an application made by the de facto complainant and that too on the technical ground of non-service of notice upon him. 2004.C. learned Counsel submitted that in the said case this Court had occasion to consider in detail the provisions of Section 173(8) Cr.P. and not for reinvestigation.C.C. Aruna Devi and Ors. which empowers the court to proceed against the other persons if any material is disclosed against them during the trial.. Gupta urged that since in Sub-section (8) of Section 173 Cr. 7. while considering an application filed by the de facto complainant. MANU/SC/0228/1981 : (1981) 1 SCC 500. to reinvestigate the case and to submit a report. 2007. Gupta submitted that on a plain reading of Sub-section (8) of Section 173 Cr. 5.P. liable to be quashed.C. as contemplated under Section 173(8) Cr. The said submission was accepted by the High Court.Petition Dismissed ORDER Altamas Kabir.C.) to investigate the case further and to collect further evidence in the larger public interest in order to ensure the purity of the examination conducted by the Union Public Service Commission. it cannot be argued that a further investigation could not be directed by the learned Magistrate even if the chargesheet had been filed and charges had been framed. could not be supported since it had been .C".P.S. Mr. Gupta submitted that the order of the High Court was contrary to the provisions of Section 173(8) Cr. took cognizance of offences alleged to have been committed by six of the original sixteen accused persons under Sections 467/468/120B of the Indian Penal Code. 2007. Papaiah and Ors.I. 3. Appearing on behalf of the petitioner. MANU/SC/0961/1997 : (1997) 7 SCC 614. wherein it was held that acceptance of Final Report by the Magistrate does not debar him from taking cognizance of the offence if on further investigation fresh material came to be discovered. and charge has been framed against some of the accused on the basis thereof and the other co-accused have been discharged. Mr. Before the learned Single Judge of the Calcutta High Court it was submitted on behalf of the abovementioned respondents that after framing charge against six of the accused persons and discharging the rest.K.P. for quashing the said order and the same was allowed by a judgment and order dated 31st January.C. 2318 of 2004.C. Mr. the learned Magistrate directed the Officer in-Charge. failed to exercise the jurisdiction vested in him. Setting aside the order of the learned Magistrate accepting the Final Report. The learned Judge then referred to the provisions of Section 319 Cr.P. Mr. learned Senior Advocate. this Court had occasion to observe that by not ordering such further investigation on account of the facts. learned Senior Advocate. the learned Magistrate had no jurisdiction to order a reinvestigation as had been done in the instant case.P.P. Mr. as considered by this Court in the case of Sooraj Devi v. Apart from the above. 2 and 3 filed an application under Section 482 Cr. which is the subject matter of challenge in the present Special Leave Petition 4.C. Gupta submitted that the use of the expression "reinvestigation" had been taken literally and a decision had been rendered on the basis thereof. Referring to the decision of this Court in Union Public Service Commission v.P. on 9th July. The other ten accused persons were discharged on the prayer of the Investigating Officer.P. 10.P. 8. at the stage of trial.C. to the Central Bureau of Investigation (C. Mr. West Bengal. Subsequently.C. which had been quashed by High Court. 9.P. Asansol (South) Police Station. the Magistrate was always within his jurisdiction to order a further investigation into the question of discharge of ten of the sixteen accused persons. Gupta pointed out that in the said case.C. therefore. Mr. 2004 could not be faulted. Reference was also made to the decision of this Court in State of Rajasthan v. The Respondents No. on the basis of a charge-sheet filed by the Investigating Officer.C. he could take recourse to Section 319 Cr. and this Court had held that under Section 173(8) Cr. 6. the Magistrate could direct further investigation to collect further evidence and the new report to be submitted by the Investigating Officer would be governed by Sub-section (2) and (6) of Section 173 Cr.P.Such a course of action was beyond the jurisdictional competence of the Magistrate .C.P. In this Special Leave Petition we are called upon to decide whether after charge-sheet has been filed by the investigating agency under Section 173(2) of the Code of Criminal Procedure. 11. the learned Single Judge by his order dated 31st January. on the other hand. Mr. this Court remitted the matter to the learned Metropolitan Magistrate to issue directions under Section 173(8) Cr. K. hereinafter referred to as "Cr. 12. it did not necessarily mean that they could not be tried subsequently. who is the petitioner before us. on 20th August. under Section 173(8) Cr..B.P.C. 2. In the instant case. Mathew v.C.. the order impugned in the Special Leave Petition could not be sustained having been passed in excess of the jurisdiction vested in the learned Magistrate. though such an order could be passed on the application of the investigating authorities. Venugopal submitted that the order passed by the learned Magistrate on 20th August.C. wherein while considering various provisions of the Criminal Procedure Code including Section 173 thereof. 15. it was no longer within the Magistrate's jurisdiction to direct a re-investigation into the case. Apart from the above.P. cannot act in excess of the powers vested in them by the statute. the magistrate had no jurisdiction to direct a reinvestigation of the case under Sub-section (8) of Section 173 Cr. but he also exceeded his jurisdiction in entertaining the said application filed by the de factocomplainant. 190. investigation remains pending. State of Kerala MANU/SC/0434/1992 : (1992) 1 SCC 217. where it was held that the Court issuing summons was entitled to recall the same on being satisfied that the issuance of summons was not in accordance with law. the magistrate could take recourse to Section 319 Cr. The Magistrate cannot suo moto direct a further investigation under Section 173(8) Cr. had held that after taking cognizance of an incident on the basis of a police report and after appearance of the accused. take cognizance of the offence complained of or on the application made by the investigating authorities permit further investigation under Section173(8). (P) Ltd. wherein this Court. such a course of action was beyond the jurisdictional competence of the Magistrate.C. 2004. to reinvestigate the case and to submit a report.P.C.C. on a reference made with regard to the correctness of the law laid down by the Supreme Court in K. but was available to the High Court under Section 482 Cr. having regard to the decisions of this Court in the Master Construction Co. As we have already indicated above. a Judicial Magistrate cannot of his own order further investigation in the case. Venugopal referred to the decision of this Court in Randhir Singh Rana v. The view expressed in Randhir Singh Rana's case (supra) finds support in the decision of this Court in the case of Dinesh Dalmia v. the decision of this Court in Randhir Singh Rana's 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. On the other hand. 17. Although. this Court held that so long as the charge-sheet is not filed within the meaning of Section 173(2) Cr. which he was not competent to do. Jaideep Gupta based his submissions on the premise that the application filed by the petitioner (de facto complainant) was for a further investigation. when a charge-sheet has not been filed.P.C. But. Re-emphasizing the provisions of Section 362 Cr.P.C.C. 13. 18.C. Mr.P. and either charge is framed or the accused are discharged. Mr. having passed a final order framing charge against six persons and discharging the remaining accused persons. It was also observed that the power of the Investigating Officer to make a prayer for conducting further investigation in terms of Section 173(8) of the Code is not taken away only because a charge-sheet has been filed under Section 173(2) and a further investigation is permissible even if cognizance has been taken by the Magistrate. 173(8). As has been rightly held by the High Court. Venugopal also submitted that once a charge-sheet had been filed and charges had been framed against some of the accused. which the Magistrate could not do having regard to the fact that he had already passed an order of discharge of ten of the accused persons and such an order is contrary to the provisions of Section 362 Cr. 16. Mr. in view of the bar imposed under Section 362 Cr. Although. on the basis of a protest petition. 14. . State (Delhi Administration) MANU/SC/0161/1997 : (1997) 1 SCC 361..P.M.P. 200 and 204 Cr. a Judicial Magistrate cannot on his own order further investigation in the case. Asansol (South) Police Station. Venugopal submitted that Magistrates being creatures of statute. the interpretation of the provisions of Section 173(8) in the said decision is relevant in the facts of this case also.passed by the learned Magistrate without jurisdiction. CBI MANU/SC/7924/2007 : (2007) 8 SCC 770.P.P. the High Court made it clear that if during the trial any fresh material surfaced against the discharged persons. 19. the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173(8). could only be done in the manner prescribed by the statute and in no other manner. In support of his submissions. Venugopal submitted that the view taken by the High Court was on the basis of the settled position of law that having taken cognizance of an offence.C.P. What emerges from the above-mentioned decisions of this Court is that once a charge-sheet is filed under Section 173(2) Cr.P. and if an order of discharge is passed. was a direction given by the learned Magistrate to re-investigate the matter. Mr. amounted to review of his order dated 9th July. Holding that the said decision did not lay down the correct law. In addition to the above. or direct a re-investigation into a case on account of the bar of Section 167(2) of the Code. 2004.C. Mr. By virtue of the said order. Not only was the Magistrate wrong in directing a re-investigation on the application made by the de facto complainant.C. the decision in Dinesh Dalmia's case (supra) was rendered in the context of the applicability of Section 167(2) and the proviso thereto.'s case MANU/SC/0304/1965 : AIR 1966 SC 1047 and the Sankatha Singh' s case AIR 1962 SC 1028. the Magistrate may. while considering the provisions of Section 156(3). which were reflected in Sooraj Devi's case (supra). Mr.. 20. It was urged that the High Court should have kept in mind the well-settled principle that whatever was required to be done under a statute. Mr. much less a reinvestigation. nothing would prevent the police from making further investigation on its own. the fact remains that the same was made for a direction for reinvestigation which was allowed by the magistrate by his order dated 20th August. this Court held that the Magistrate had no jurisdiction to recall his order issuing process in the absence of any power of review or inherent power which did not inhere in the subordinate Criminal Courts. even the filing of a charge-sheet did not preclude an Investigating Officer from carrying on further investigation in terms of Section 173(8) Cr. 2004. it was no longer available to the learned Magistrate to order even a further investigation as contemplated under Section 173(8) Cr.P. In the instant case. The aforesaid question was considered by a three Judge Bench of this Court in Adalat Prasad v. Venugopal submitted that even if the intention was to direct further investigation. Rooplal Jindal MANU/SC/0688/2004 : (2004) 7 SCC 338. the magistrate directed the Officer-in-Charge. P.21.C. 22. Since no application had been made by the investigating authorities for conducting further investigation as permitted under Section 173(8) Cr.. dismissed. The Special Leave Petition is. but there will be no order as to costs. © Manupatra Information Solutions Pvt. accordingly. therefore. 23. We. see no reason to interfere with the order of the High Court since it will always be available to the Magistrate to take recourse to the provisions of Section 319 if any material is disclosed during the examination of the witnesses during the trial. Go to top . the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of Section 319 of the Code at the stage of trial. Ltd. Ramachandran v. 13] JUDGMENT S. 1973 (CrPC) . (2009)7SCC685. Code of Criminal Procedure. 1973 (CrPC) Section 156(1).N. Respondent: Dharmendra Bafna and Anr. Sharma v. Indian Penal Code (IPC) . Sr. Counsels: For Appellant/Petitioner/Plaintiff: K. Sakiri Vasu v. Sr. An order of further investigation can be made at various stages including the stage of the trial .N.. State of Gujarat MANU/SC/0858/2009 . Code of Criminal Procedure. Code of Criminal Procedure.2009 Appellants: Kishan Lal Vs.1553. Code of Criminal Procedure. MANU/SC/7637/2008 . S. Code of Criminal Procedure.Section 420. V. JJ. Lalit and R. S. MANU/SC/0108/1976 . 1973 (CrPC) . Code of Criminal Procedure. Advs. P. 245 of 2008 (MANU/TN/0476/2008 ) Disposition: Appeal dismissed Citing Reference: Discussed 5 Mentioned 2 Case Note: Criminal .Section 156.MANU/SC/8179/2007 .Section 190.C. [2009]11SCR234 IN THE SUPREME COURT OF INDIA Criminal Appeal No. 1973 was the question involved in the appeal Held.Article 20(3).07. Indian Penal Code (IPC) . Leave granted. 1973 (CrPC) . S. 1. 1973 (CrPC) .Section 159. Constitution of India Article 226 Cases Referred: Naresh Kavarchand Khatri v. (2010)1CALLT26(SC). State of Uttar Pradesh and Ors. U. MANU/SC/0182/1970 . State of Gujarat and Anr.S.Section 482.Jurisdiction of a Magistrate to direct reinvestigation of a case from time to time under Sub-section (8) of Section 173 of the Code of Criminal Procedure.T. Balasubramaniam. Tulsi. Code of Criminal Procedure. Udhayakumar MANU/SC/7684/2008 Prior History / High Court Status: From the Judgment and Order dated 13.B. Code of Criminal Procedure. 1973 (CrPC) . (Crl)OLR1553. Mithabhai Pashabhai Patel and Ors. 2009CriLJ3721. Hon'ble Judges/Coram: S. Constitution of India . 1973 (CrPC) .) No. State of Gujarat and Ors. Sinha and Deepak Verma.Section 406. MANU/SC/0749/2009 .Revisional court should not interfere with the discretionary jurisdiction exercised by the Magistrate unless a jurisdictional error or an error of law is noticed . Indian Penal Code (IPC) . v. Advs For Respondents/Defendant: M. Sinha.Section 173(2).2008 of the High Court of Judicature at Madras in Criminal R. Code of Criminal Procedure. Code of Criminal Procedure.Section 173.Investigation .Section 561A.Section 157.Section 202.MANU/SC/1296/2009 Equivalent Citation: AIR2009SC2932. 1283 of 2009 (Arising out of SLP (Crl.It has not been found that the Investigating Officer was in any way biased towards the complainant Appeal dismissed [para 10. No.B. 1973 (CrPC) . .Section 319.Article 32.Section 120B. Adv. Narayana Reddy and Ors. Dharmeshbhai Vasudevbhai and Ors. 1973 (CrPC) . 2703 of 2008) Decided On: 21.Crl. 2009(Supp. Advs. CLT(2009)Supp.Section 202(1). Code of Criminal Procedure. 1973 (CrPC) .Section 173(8). J. Krishnan and Jayant Kumar Mehta. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure. 1973 (CrPC) . R. Promila. JT2009(9)SC669. Code of Criminal Procedure (CrPC) . 1973 (CrPC) . Thananjayan.D. Amit Bhandari. Dwarkanath and Kailash Chand. v. Bipen Kumar Tiwari and Ors.Section 156(3).Constitution of India .03. Code of Criminal Procedure.Section 190(1). Code of Criminal Procedure. 2010(1)ALD(Cri)213. 1973 (CrPC) . Devarapalli Lakshminarayana Reddy and Ors.. v.U. Rao. 1973 (CrPC) . 4. R. when it was utilized and on which state the amount has been kept. 2 filed revisional application thereagainst before the High Court.2. 5). 2008 passed by the learned III Metropolitan Magistrate. Jurisdiction of a Magistrate to direct reinvestigation of a case from time to time as laid down under Sub-section (8) of Section 173 of the Code of Criminal Procedure. On or about 8th October. observing: While considering the averments made in this petition. Rakesh Bafna (Accused No. Although they have admitted the liability to the extent of 4. the parties have filed some Civil Suits also. . 9) before the Commissioner of Police. but did not return either any gold or money to the complainant. as alleged on behalf of the petitioner. It was admitted that the Accused No. the learned Magistrate is entitled to invoke the powers under Sections 173(8) of the Criminal Procedure Code and direct the respondent to further investigate into the matter.R. incorporating his grievances and the alleged lapses on the part of the investigating agency and seek further investigation in the case. The learned Magistrate took cognizance against the said accused. Shantilal Surana (Accused No. Tamil Nadu. Allegedly. a direction for further investigation was issued. on or about 30th December 2005. If those doubts were not cleared through suitable investigation. 3. Chennai City. Chennai inter alia alleging that they connived together from the beginning and cheated him a sum of Rs. Chennai. a complaint was lodged by the appellant against Accused Nos. Dinesh Chand Surana (Accused No. 10) was subsequently added. George Town. however. Chennai by the Director General of Police. the learned Magistrate. a situation for handing out an opportunity for both the parties to bring out the hidden truths in this case and the facts in this case and this Court holds that it would pave a way for conducting a trial in the proper direction.65 crores by denying to return the money which was given to them for purchase of gold. Therefore in the considered view of this order. On such petition being filed. no opportunity could be given to get it revealed the true picture. But. Indisputably. 2 is the sub-agent of Surana Corporation Limited who introduces investors. Vijayaraj Surana (Accused No. it is the duty of this Court to find out the truth by holding suitable investigation of the matters which were unearthed. 2008 passed by a learned single judge of the High Court of Judicature at Madras in Crl. Lakshmichand Bafna (Accused No. 6). 3).George Town. in the aforementioned bail application. Banwarlal Sharma (Accused No.C. the appellant filed an application under Section 482 of the Code before the High Court for setting aside the said order. 5 to 8 are brothers and are the directors of their family business known as M/s Surana Corporation Limited. shall consider the same in accordance with law and if the learned Magistrate is satisfied that a case has been made out by the petitioner for ordering further investigation under Section173(8) of the Criminal Procedure Code. A First Information Report ("FIR") was lodged by the appellant against all the accused on or about 22nd January. 1). "the Code") is the question involved in this appeal. The said application was disposed of by the learned single judge of the High Court in the following terms: 8. namely.O. No. the above criminal original petition can be disposed of with the following directions: The petitioner is at liberty to file an appropriate petition before the III Metropolitan Magistrate. 4. 245 of 2008 allowing the criminal revision application filed by the respondent No. this Court holds that several kinds of issues were not undisclosed and beyond from knots of doubts. 2007. By reason of the impugned judgment. 1 to 9.P. It arises out of a judgment and order dated 13 th March. the said revision application has been allowed. 420 and 120Bof the Indian Penal Code ("IPC"). G. While considering the nature of the case. as noticed hereinbefore. On or about 12th January 2006. and in view of necessity to find out several facts in this case and in accordance of the orders of High Court of Madras in CRL. Pursuant to or in furtherance of the said observations. 1973 (for short. the the the the Accused No. on the premise that the learned Magistrate had not taken cognizance against the other accused. Energy. George Town.95 crores. In the event of this Court refusing to find out the true picture by ordering a reinvestigation. the said accused filed statement of accounts of the appellant/de facto complainant mentioned in the Multi Commodity Exchange of India Limited ("MCX") which is a Government approved On-Line Trading Exchange of Bullion. Dharmendra Bafna (Accused No. 2). Chennai only against Accused Nos. As this Court holds that certain cause of actions available in this case. appellant filed an application for further investigation before the learned Magistrate and by an order dated 13 th February 2008. admitting that they had undertaken bullion trade with MCX by using the appellant's money. 2006 in the Central Crime Branch Station. on or about 27th January 2006. Surana (Accused No. Mahendar Bafna (Accused No. 1 and 2 under Sections 406. 33354 of 2007. Chennai. it is to meet the ends of justice. case could be ordered for reinvestigation and thereby the petition presented by Petitioner/complainant under Section 173(8) is allowed. It was alleged that the amount was entrusted on various dates from 06th October 2005 to 17th November 2005. On or about 29th October 2007. Metal and Oil. If the reinvestigation is ordered. an application for grant of anticipatory bail before the High Court of Madras was filed by all the accused stating that the Accused Nos. it is important to find out how the amount given by the petitioner utilized. 8) and Maran (Accused No. Apart from the said FIR. It is furthermore not in dispute that the investigation was transferred to CBCID. 1 from an order dated 13th February. Indisputably. either party is likely to get hardships and losses. a charge-sheet was filed before the learned III Metropolitan Magistrate. 4). 7). 5. If it is found that the investigation has been conducted by an Investigating Officer who did not have any territorial jurisdiction in the matter. 6 being father of Accused No. no interference therewith by any court is permissible. upon completion of the investigation would file a police report. M. U. 8. on the other hand. Bipen Kumar Tiwari and Ors.65 crores entrusted by the appellant to the accused No. (iv) The High Court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration that Accused No.N. 5. MANU/SC/0182/1970 : 1970CriLJ764 . 9. In Naresh Kavarchand Khatri v.T. 4. but the use of this expression. wherein the law has been stated as under: 6. . 6. 2. could be directed only in the event where investigation was not carried in respect of certain aspects of the matter or where during trial it came to the notice to the court that some facts which were relevant for arriving at the truth had not been gone into. MANU/SC/7637/2008 this Court held: : AIR2008SC2180 .6. It is also permissible for a learned Magistrate to direct further investigation. 2 and Accused Nos. the second alternative could have been held to be independent of the first. Tulsi. State of Gujarat and Anr. In Dharmeshbhai Vasudevbhai and 2009CriLJ2969 . Lalit. the same should be transferred by him to the police station having the requisite jurisdiction. This aspect of the matter has been considered by this Court in S. Sharma v. on the basis whereof after fulfilling the other statutory requirements cognizance may be taken. the learned Counsel would urge.N. The Magistrate's power in this regard is limited. in terms of Section 156 of the Code of Criminal Procedure. urged: (i) Despite the fact that the learned Magistrate had the requisite jurisdiction to direct further investigation. Interference in the exercise of the statutory power of investigation by the Police by the Magistrate far less direction for withdrawal of any investigation which is sought to be carried out is not envisaged under the Code of Criminal Procedure. Even otherwise. Mr. He may file a protest petition which in a given case may be treated to be a complaint petition. learned Senior Counsel appearing on behalf of the appellant would contend: (i) The High Court committed a serious error in opining that no direction for further investigation or reinvestigation can be directed after cognizance of an offence is taken. in our opinion. exercise a statutory power. such order could not have been passed in the instant case as all aspects of the matter had been taken into consideration by the Investigating Officers. he has no power to recall his order. 7 and 8 being his brothers. and consequent refusal on their part to return the amount on the ground that they have suffered a huge loss. MANU/SC/0749/2009 : 9.S. learned Senior Counsel appearing on behalf of the State would take us through the detailed counter affidavit filed on behalf of the State to contend that the investigation had been carried out in a fair and diligent manner touching all aspects of the matter. Mr. The Code of Criminal procedure has conferred power on the statutory authorities to direct transfer of an investigation from one Police Station to another in the event it is found that they do not have any jurisdiction in the matter. Without the use of the expression "if he thinks fit". The Investigating Officer when an FIR is lodged in respect of a cognizable offence. The learned Magistrate can also take cognizance on the basis of the materials placed on record by the investigating agency. Ordinarily. the learned Senior Counsel appearing on behalf of the accused other than accused Nos. (iii) Direction for further investigation having been made by the learned Magistrate upon taking into consideration all aspects of the matter. he does not have any inherent power.U. The police authorities. K. State of Gujarat and Ors. were running and operating Surana Corporation Limited and having admittedly invested the said amount in MCX. The power of the court to interfere with an investigation is limited. Rao. another learned judge of the same High Court could not have taken a contrary view. v. the first informant has to be given notice. The Court should not interfere in the matter at an initial stage in regard thereto. they must be held to have conspired together for misappropriation of the aforementioned amount of Rs. (ii) The application for a direction for further investigation having been filed only in terms of the order of the High Court dated 17th December 2007. 7. Mr. makes it plain that the power conferred by the second clause of this section is only an alternative to the power given by the first clause and can. It is now a well settled principle of law that when a final form is filed by any Investigating Officer in exercise of his power under Sub-section (2) of Section 173 of the Code. The power of investigation is a statutory one and ordinarily and save and except some exceptional situations. (ii) Further investigation. the High Court committed a serious error in interfering therewith. this Court held: Ors. 2 and 6. is to order an investigation. held as under: 7. Narayana Reddy and Ors. or. We are. In our opinion. within the limits circumscribed by that section an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding". Section 156(3) occurs in Chapter XII. we need not dilate thereupon as the matter has recently been considered by a Division Bench of this Court in Mithabhai Pashabhai Patel and Ors. that is. there is no mention of any power to stop an investigation by the police. It may be noted further that an order made under Sub-section (3) of Section 156. State of Uttar Pradesh and Ors. not oblivious of the fact that recently a Division Bench of this Court in Sakiri Vasu v.cognizance stage. This Court exercised its jurisdiction which was within the realm of the Code. That is to say in the case of a complaint regarding the commission of a cognizable offence. The first is exercisable at the pre. to some extent. the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). 17. This Court while passing the order in exercise of its jurisdiction under Article 32 of Constitution of India did not direct re. however. the second at the post-cognizance stage when the Magistrate is in seisin of the case. the Magistrate is empowered under Section 202 to direct. This interpretation. and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation. under the caption : "Information to the Police and their powers to investigate". upon comparison of the provision of the old Code and the new Code. while we have to interpret Section 159 of the Code which defines the powers of a Magistrate which he can exercise on receiving a report from the police of the cognizable offence under Section 157 of the Code. The power of the police to investigate has been made independent of any control by the Magistrate. however. It may also be further noticed that.State of Gujarat MANU/SC/0858/2009 : (2009)6SCC332 in the following terms: 16. 10. but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. MANU/SC/8179/2007 : AIR2008SC907 while dealing with the power of the court to direct the police officer to record an FIR in exercise of power under Section 156(3) of the Code observed that the Magistrate had also a duty to see that the investigation is carried out in a fair manner (correctness whereof is open to question). MANU/SC/0108/1976 : 1976CriLJ1361 . beyond any cavil that `further investigation' and `re-investigation' stand on different footing. The scheme of these sections. An order of further investigation can be made at various stages including the stage of the trial. 7. Yet again in Devarapalli Lakshminarayana Reddy and Ors. v.therefore. himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. he is not competent to switch back to the pre. certain situations. But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV. Section 159 was really intended to give a limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence. clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate. Although some decisions have been referred to us. Indisputably the investigating agency in terms of Sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. however. It is. while Section 202 is in Chapter XV which bears the heading: "Of complaints to Magistrates". The two operate in distinct spheres at different stages. after taking cognizance of the offence. concerned only with the powers of the High Court under Section 561A CrPC. Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. In such a situation. V. who can take cognizance of an offence under Section 190.investigation. this Court. Their Lordships of the Privy Council were. in the alternative. On the other hand. thus. Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV. It may be that in a given situation a superior court in exercise of its constitutional power. be exercised only in those cases in which the first clause is applicable. namely under Articles 226 and 32 of the Constitution of India could direct a `State' to get an offence investigated and/or further investigated by a . is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Interpreting the aforementioned provisions vis-a-vis the lack of inherent power in the Magistrate in terms of Section 561A of the Old Criminal procedure Code (equivalent to Section 482 of the new Code of Criminal procedure). the only power given to the Magistrate. it was held: 10. of course. The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1).cognizance stage and avail of Section 156(3). There are. even in Sub-section (3) of Section 156. supports the view that the scheme of the Criminal Procedure Code is that the power of the police to investigate a cognizable offence is not to be interfered with by the judiciary. v. where such a formal request may not be insisted upon. CCB Chennai (3) Tr. Chennai CCB. We have referred to the aforementioned decision only because Mr. Rajakumar. The documents cannot be proved through accused. Metro Wing. Udhayakumar MANU/SC/7684/2008 : 2008CriLJ4309 ..65 crores was given to Accused No. the version of A2 in the suit filed by him was also not believed as it was not borne out by any documentary evidence. Saravana Brabu. It is stated in the FIR filed by the petitioner that the transaction between the petitioner and the A-2 Dharmendra Bafna are independent transaction between themselves and no third party was involved. when new facts come to its notice. 4. (2) Tr. It was furthermore pointed out: (b) The second accused came forward with improbable stories for him to escape from prosecution. Assistant Commissioner of Police. It was pointed out that the complainant had filed the aforementioned application under Section 173(8) of the Code principally on the premise that no investigation had been carried out in respect of three documents being (1) The additional grounds raised in the anticipatory bail application. however.65 crores by cash and entered upon a shady transaction with the A4 Dharmendra Bafna. Tulsi contends that in effect and substance the prayer of the appellant before the learned Magistrate was for reinvestigation but the learned Magistrate had directed further investigation by the Investigating Officer inadvertently. Chennai City. R. 1. Edward. K. Similarly. S. entered transactions with M/s Surana Corporation Ltd. The Investigating Officer may exercise his statutory power of further investigation in several situations as. Inspector of Police. Mr. CCB. Inspector of Police. is as to whether in a case of this nature a direction for further investigation would be necessary. no superior court would ordinarily issue such a direction. The documents could be hit by under Article 20(3) of the Constitution of India. The matter.. C. has been investigated by two specialized agencies. 2 for both trading in gold and silver on the basis of orally agreed terms. the case against A-3 to A-10 were dropped. 2 had given the said amount on 18th November 2005 to M/s Vinayaga Vyapar Limited on various dates on its own risks and on the basis whereof M/s Vinayaga Vyapar Ltd. Similarly. the letter written by Mahaveer Surana to the Chief Minister's Cell is also a document intended to save A-1 and A-2 from the crime and hence not to be believed. The question. if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice. trade execution order and trade confirmation order from the A-2 Dharmendra Bafna and did not deal in cheque transactions. All the three documents are that of the accused. Salathraj. J. 2 was introduced by Accused No.. Chennai and (5) Tr. Accused No. Pasayat. the petitioner herein and also of A-2 to establish the connection between the money paid by the de facto complainant to A-2 with A-3 to A-10 is not borne out by any documentary evidence. The version of the de facto complainant. Accused No. Tamil Nadu. for example. In regard to the statements made by the accused in their application for anticipatory bail with regard to account with M/s MEGHA GG.G. Dhayalan. Veiladurai. Job Rocket and Video Piracy. Chennai apart from him. 2 in the Civil Suit filed by him and (3) the letter written by Mahaveer Surana. the police has right to further investigate under Subsection (8). 3 to 10 especially when the petition had not been signed by . Apart from the aforementioned grounds. We have noticed hereinbefore that the investigation was transferred to CBCID by an order dated 29th March 2007 passed by the DGP. Egmore. opined as under: 7. when certain aspects of the matter had not been considered by it and it found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to its notice. 11. Direction of a re-investigation. From a plain reading of the above section it is evident that even after completion of investigation under Subsection (2) of Section 173 of the Code. however. (2) The plaint filed by Accused No. Assistant Commissioner of Police. thus. on 17 th November 2005 and all payments had been made through cheques only. S. 12. Hence. The deponent of the counter affidavit categorically stated that he had made a thorough investigation and upon consideration of the materials gathered during investigation identified that there was no connection between the money of the de facto complainant and Accused Nos. The petitioner has given Rs. 4. being forbidden in law. At this juncture it would be necessary to take note of Section 173 of the Code. Inspector of Police. 3 to 10 and hence the final form was filed in their favour. Upon giving the details. No accused can be compelled to be a witness against himself. but not fresh investigation or reinvestigation. it has been contended that the same cannot be construed to be an admission on the part of the Accused Nos. The investigating officer was of the opinion that the amount of Rs. the learned Magistrate or the Superior Courts can direct further investigation. Chennai in his counter affidavit inter alia brought to this Court's notice that the matter was investigated by (1) Tr. The version of the accused in his anticipatory bail application is without any material to support the same and was not believed. to the Chief Minister's cell. in Ramachandran v. Crime Branch CID.different agency. (4) Tr. the Investigating Officer had come to the following conclusion: These transactions were for speculative trading only. Assistant Commissioner of Police. The petitioner did not make any agreement or contract with the A-2 Dharmendra Bafna for doing gold bullion forward trade business and failed to obtain the trade order. CCB. the authorized signatory of Surana Corporation Ltd. What are hidden truths required to be unearthed had also not been pointed out. Ltd. 3 to 10 were dropped. The learned Magistrate did not consider the fact that the investigation had been carried out by two different agencies and by responsible police officers. 3 to 10 were involved in the matter could be pointed out from the materials which had already been brought on record. we do not find any merit in this appeal. His order that "several kinds of issues were not disclosed and beyond from knots of doubts" is vague in nature. We have noticed hereinbefore the order passed by the learned Magistrate. It is correct that the revisional court should not interfere with the discretionary jurisdiction exercised by the learned Magistrate unless a jurisdictional error or an error of law is noticed. whether the admissions made in the application for anticipatory bail were binding on them. We furthermore clarify that any observations made by the High Court or by us should not prejudice the either party and the learned Magistrate should consider the matter on its own merit and without in any way being influenced by the same. It has not been pointed out that in what respect the investigation has not been carried out. The said Shri Dhayalan had also stated in great details as to why Accused Nos. 14. if an appropriate case is made out therefor. It has not been found that the Investigating Officer was in any way biased towards the complainant. He had also taken into consideration the dealings by and between the parties inter se as also the litigations filed by them against each other. the same being a matter of inference can also be urged. the question as to whether Accused Nos. if any occasion arises in this behalf in future. Furthermore. if the contention of Mr. For the reasons aforementioned. Go to top . © Manupatra Information Solutions Pvt. 13.any of the accused and all the documentary evidence and material gathered during the investigation were to the contrary. Furthermore. It is neither necessary nor desirable to notice the statements made therein by us as we are concerned with a question of law. Tulsi is correct. The appeal is dismissed accordingly. The other and further remedies as pointed out can be resorted to as also invocation of the provisions of Section 319 of the Code at the stage of trial is also permissible in law. Appeal dismissed [para 14. (2009)6SCC661. 19] JUDGMENT Arijit Pasayat. Counsels: For Appellant/Petitioner/Plaintiff: Rukhsana Choudhury. Adv For Respondents/Defendant: Salal Bhattacharya. Advs. 2009CriLJ3430. Code of Criminal Procedure. v.Section 202. 5189 of 2007) Decided On: 08. Bansal.Cognizance . 1973 (CrPC) Section 169. Code of Criminal Procedure. 1973 (CrPC) . Indian Penal Code 1860. J. Indian Penal Code 1860. 1973 (CrPC) . 1.) No. JT2009(13)SC198. 1973 (CrPC) . Arms Act. Ltd. 1973 (CrPC) . Respondent: Dulal Ghosh and Anr. Commissioner of Police and Anr. India Sarat Pvt. Code of Criminal Procedure. Code of Criminal Procedure. 1973 (CrPC) . Code of Criminal Procedure. Hon'ble Judges/Coram: Dr. 1973 (CrPC) .05.It has also referred to applicability of Section 319 of the Code in appropriate cases . Where Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report. [2009]8SCR412 IN THE SUPREME COURT OF INDIA Criminal Appeal No. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Arms Act.Section 190. Arijit Pasayat and H. 2009(8)SCALE40. (IPC) .R. .Section 178. relating to offences punishable under Section 302/34/120B of the Indian Penal Code. Code of Criminal Procedure. Bedi. notice to the informant and grant of opportunity of being heard in the matter becomes mandatory . Y. State of Karnataka and Anr. MANU/SC/0063/1985 . 1959 Held.Section 27. 1973 (CrPC) .Section 173(8). Code of Criminal Procedure.R.Challenge was to the judgment of High Court quashing the cognizance. Leave granted. Code of Criminal Procedure. Tara Charndra Sharma and Neelam Sharma.Section 200.Section 319.02.Section 34.MANU/SC/0349/1989 . 1973 (CrPC) .Section 120B.Section 170. 1973 (CrPC) .Section 302. v. Code of Criminal Procedure. 1062 of 2006 (MANU/WB/0017/2007 ) Disposition: Appeal dismissed Citing Reference: Affirmed 1 Discussed 1 Mentioned 2 Case Note: Criminal .MANU/SC/0882/2009 Equivalent Citation: 2009(2)ALD(Cri)527. Gangadhar Janardan Mhatre v. No. Indian Penal Code 1860. MANU/SC/0830/2004 Prior History / High Court Status: From the Judgment and Order dated 14. 1860 read with Section 25 and 27 of the Arms Act.Section 25.2009 Appellants: Chittaranjan Mirdha Vs. (IPC) .S.Section 482 Cases Referred: Bhagwant Singh v. Abhinandan Jha and Anr.Section 190(1). 1973 (CrPC) . Rauf Rahim. Dinesh Mishra MANU/SC/0054/1967 . Code of Criminal Procedure.2007 of the Hon'ble High Court of Calcutta in C. 964 of 2008 (Arising out of SLP (Crl.Section 173.Section 156(3).High Court has directed all procedural safeguards to be followed . JJ. (IPC) .Code of Criminal Procedure. Deba Prasad Nath. 1959 . Code of Criminal Procedure. 1973 (CrPC) . Code of Criminal Procedure. 1959 .Section 173(2). 1973 (CrPC) . State of Maharashtra and Ors. CID. In response to the prayer made by the investigating officer for discharge of the pending of the FIR of the accused persons. West Bengal to cause further investigation in terms of Section 173(8) of the Code of Criminal Procedure Code.7. Rafique Dhali and Rajab Ali @ Doktar as accused persons. CID.12. Pradhan of Dighirpar Gram Panchayat.6. by order dated 27. . to investigate the aforesaid case under Section 173(8) of the Code.12. District and Sessions Judge. 100/03 by order dated 21.2. 4. Learned Counsel for the respondent No.2000 at about 12 noon when his son Dipak Mirdha was in a saloon under the name and style "Sundaram" at Canning bus stand.2.2. 10. The learned court by order dated 9. A petition under Section 482 of the Code was filed before the Calcutta High Court questioning the correctness of the order passed. 5. Alipore. Sessions Judge. On the basis of such complaint. not below the rank of a Inspector to be selected by the DIG. Challenge in this appeal is to the judgment of a learned Single Judge of the Calcutta High Court quashing the cognizance taken by learned Addl. 8. the Investigating Authority submitted chargesheet No. supported the judgment of the High Court. In support of the appeal. With the help of others the victim was shifted to Canning Hospital where he was declared dead. case No. West Bengal. 160 relating to offences punishable under Section 302/34/120B of the Indian Penal Code.9. 141 dated 2.2001 implicating Animesh Halder @ Kuche. The Learned Court on receipt of the said chargesheet took cognizance of the offences. The High Court observed that the order of taking cognizance deserved to be set aside.2006 rejected the application on the ground that there was no scope to reopen the matter in view of an earlier application filed by one Arnab Roy. 1 moved a revisional application being Criminal Motion No.2003 and disposal of the said application being Criminal Motion No. 4 th Court Alipore in Canning PS case No. West Bengal.Divisional Judicial Magistrate praying for direction upon the DIG. On the basis of such chargesheet. by order dated 31. Court of Sub. Curiously enough that was not done.003 and order dated 9. in connection with that murder.e.2001. one Anil Thakur was murdered by some antisocial elements near Canning Hospital. it was also held that the Court was to take into consideration all that happened in the case and to pass appropriate orders. the third son of the complainant rushed to the spot. learned Counsel for the appellant submitted that the course adopted cannot be maintained in law. Selim Gayan. Being aggrieved by the said order dated 27. There was previous enmity between the victim and one Azimuddin Laskar of Basanti Police Station and Kartick Bose of Canning Police Station over the decoration of Canning Dock Ferry Ghat. 1. 484 of 2005 before the Learned Sessions Judge.2004. Rajesh Dhali. After completion of investigation.2005. 1 referring to the backdrop of the present case submitted that admittedly after completion of investigation of the case under reference police authority submitted chargesheet for the offences which include a serious offence under Section 302 of Indian Penal Code. 3. Alipore.2000 was started. 141 of 29.2005 directed issuance of warrant of arrest was issued against the respondent No.2.3. the Learned Court of Sub-Divisional Judicial Magistrate. Learned 4th Court of Additional. who by order dated 13.e.2001 took cognizance of offences under Sections 302/34/120B of the Indian Penal Code read with Section 25/27 of the Arms Act and directed issuance of warrants of arrest against the absconding accused persons. 1860 (in short the `IPC') read with Section 25 and 27 of the Arms Act. Alipore. It cannot be denied that in such a situation it was the duty on the part of the learned Court to issue notice upon the de-facto complainant and give him an opportunity of hearing. Canning P. In 1999. whereas few others were implicated.07. falsely implicated the complainant's son being the victim. 1973 (in short the `Code') . 160 dated 25. 6.1. CID.2. the present appellant filed an application before the Ld.6. Alipore. on 27. Learned Additional Chief Judicial Magistrate was directed to consider the relevant materials as well as the charge sheet No. 1959 (in short the `Arms Act') pending trial before the Additional Chief Judicial Magistrate District South 24 Parganas. The learned Court in response to a subsequent prayer made by the de-facto complainant directed further investigation and that too.03 the defacto complainant i. 9. It was directed that while taking note of the matter for fresh consideration a notice was required to be sent to the de facto complainant and giving de facto complainant an opportunity of hearing which was to be done before the order was passed. It could be that the FIR named accused persons were left out in the chargesheet. Learned Counsel for the respondent No. Upon hearing the sound of such gunshot and the chaos which resulted thereby. in response to such prayer directed the DIG. against the said dated 27.S. The learned Court ought to have given the de-facto complainant a chance to have his say over the result of investigation.08. Background facts in a nutshell are as follows: A complaint was lodged by the appellant with the Inspector in charge of Canning police station alleging that on 25. Learned Sub-Divisional Judicial Magistrate. the respondent No. After about 27 months i. he suddenly sustained a gunshot injury on his person. Arnab Roy.2003. 1. by an officer. 7. on the other hand. he is not deprived of the power to proceed with the matter.e.e. exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. expressly or impliedly conferred. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case. 15. We may add here that the expressions `charge-sheet' or `final report' are not used in the Code. is concerned. But this has been the practice. 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. 14. described as a "charge-sheet". 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 informant must be given an opportunity of being heard so that he can make his submission to persuade the Magistrate to take cognizance of the offence and issue process. (1) he may accept the report and drop the proceeding. under the Code. that there is no case made out for sending up an accused for trial. The position is. final report or summary.There can.described was of general importance and directed that copies of the judgment be sent to the High Courts in all the States so that the High Courts in their turn may circulate the same among the Magistrates within their respective jurisdictions. i. the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. it is termed variously i. MANU/SC/0349/1989 : [1989]1SCR718 ]. if he thinks fit. therefore.. or (3) may direct further investigation under Section 156(3) and require the police to make a further report. on a Magistrate to call upon the police to submit a charge sheet. this Court indicated in Bhagwant Singh's case (supra) that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report. [See India Sarat Pvt. by compelling them to change their opinion so as to accord with his view. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report. there is no shadow of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report.. take cognizance of the offence and issue process.. As indicated above. 13. or (3) he may direct further investigation to be made by the police under Section 156(3). who is not an informant. Ltd. referred charge. Therefore. and the Magistrate cannot impinge upon the jurisdiction of the police. 169. the Magistrate is not inclined to take cognizance of the offence and issue process. The functions of the Magistrate and the police are entirely different. 12. This Court felt that the question relating to issue of notice and grant of opportunity as afore. This Court in Bhagwant Singh v. therefore. there is no provision in the Code for issue of a notice in that regard.. but it is understood in Police Manuals of several States containing the Rules and the Regulations to be a report by the police filed under Section 170 of the Code. The Court held as follows: . The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. They are not entitled to any notice. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case. Therefore. Absence of a provision in the Code relating to filing of a protest petition has been considered. However.e.11. when they have sent a report under Section 169 of the Code. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. he has again the option of adopting one of the three courses open i. v. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c). There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. this Court while considering the provisions of Sections 156(3). stressed on the desirability of intimation being given to the informant when a report made under Section 173(2) is under consideration.. The report may on the other hand state that according to the police.. where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate. the Magistrate may either (1) accept the report and take cognizance of the offence and issue process. now wellsettled that upon receipt of a police report under Section173(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. or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding. 178 and 190 of the Code held that there is no power. Dinesh Mishra MANU/SC/0054/1967 : 1968CriLJ97 . Section 173 in terms does not refer to any notice to be given to raise any protest to the report . Commissioner of Police and Anr. no offence appears to have been committed. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others. MANU/SC/0063/1985 : 1985CriLJ1521 . When such a report is placed before the Magistrate. This Court further held that the position is different so far as an injured person or a relative of the deceased. on a consideration of the report made by the officer in charge of a police station under Sub-section (2)(i) of Section173.. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. State of Karnataka and Anr. notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. In case of reports sent under Section 169. v. In Abhinandan Jha and Anr.. the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. 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. or (2) may disagree with the report and drop the proceeding. be no doubt that when. even if protest petition in reply to the notice issued by the police has been filed belatedly. If the informant is not aware as to when the matter is to be considered. MANU/SC/0830/2004 : 2004CriLJ4623 .... the Magistrate has to give the notice to the informant and provide an opportunity to be heard at the time of consideration of the report. © Manupatra Information Solutions Pvt. he cannot be faulted. That being so we find no merit in this appeal which is dismissed. 16. 17. The aforesaid position was highlighted by this Court in Gangadhar Janardan Mhatre v. State of Maharashtra and Ors.. 19. Therefore. 18. 20. It has also referred to applicability of Section 319 of the Code in appropriate cases. obviously. Go to top . It is not explained as to how the order of the High Court is prejudicial to the appellant.submitted by the police. the stress is on the issue of notice by the Magistrate at the time of consideration of the report. The High Court has directed all procedural safeguards to be followed. Though the notice issued under some of the Police Manuals states it to be a notice under Section 173 of the Code. But as indicated in Bhagwant Singh's case (supra) the right is conferred on the informant and none else.the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. though there is nothing in Section 173 specifically providing for such a notice. Ltd.. It was noted as follows: . As decided by this Court in Bhagwant Singh's case (supra). Code of Criminal Procedure. Sr. Amar Premanand v.. 1973 (CrPC) . Akshaliya Kumar. Code of Criminal Procedure.Section 154. 1973 (CrPC) . Venkata Subba v.Section 168.Section 411. 1973 (CrPC) . Inder Singh case MANU/SC/0049/1954 . yes--Principles governing final report stated--Impugned order of High Court set aside-High Court to consider revision petition at instance of respondent No. 1973 (CrPC) .Section 166. 1973 (CrPC) . MANU/WB/0040/1962 .Section 457.Section 158.B. Code of Criminal Procedure. 1973 (CrPC) . Code of Criminal Procedure. 1973 (CrPC) .2006 of the High Court of Jharkhand at Ranchi in WP (Crl) No. Shefali Jain.Section 163.N.Section 413. 1973 (CrPC) . Abdul Rahim v. 1973 (CrPC) .Section 170. (IPC) . Khwaja Nazir Ahmed MANU/PR/0007/1944 . Abhinandan Jha and Ors. Hon'ble Judges/Coram: Dr.2009 Appellants: Ram Naresh Prasad Vs. Rishbud and Inder Singh v. 1973 (CrPC) . Indian Penal Code 1860. 1973 (CrPC) . 1973 (CrPC) . Basak MANU/SC/0114/1962 .Section 161. Indian Penal Code 1860.Section 190. [2009]2SCR369 IN THE SUPREME COURT OF INDIA Criminal Appeal No.Section 173. Code of Criminal Procedure. (IPC) . Code of Criminal Procedure. State of W. 284 of 2002 Disposition: Appeal allowed Citing Reference: Discussed 3 Mentioned 8 Case Note: Constitution of India . Murlidhar GovardhanMANU/MH/0088/1960 . 1973 (CrPC) . State of West Bengal v. Rajesh Prasad Singh and Ranjana Narayan.Section 380.Section 414.3. Surya Kant and Pranav Vyas. 1973 (CrPC) . Code of Criminal Procedure.K. Code of Criminal Procedure. (IPC) .Section 157. StateMANU/MP/0007/1960 . 1973 (CrPC) .Section 162.Section 169. (IPC) . 1973 (CrPC) . Shah Lakhamshi MANU/GJ/0064/1966 . Code of Criminal Procedure. State MANU/BH/0103/1966 . Advs For Respondents/Defendant: Manish Kumar Saran.P. Nirmal Kumar Ambastha.Section 172. 1973 (CrPC) .02.Section 319. Arijit Pasayat and Mukundakam Sharma. Code of Criminal Procedure. 2009(2)PLJR160.Section 157(1). JT2009(4)SC379. Code of Criminal Procedure. Respondent: State of Jharkhand and Ors. Code of Criminal Procedure.Section 491 Cases Referred: A. King Emperor v. Code of Criminal Procedure.N.Section 176. Code of Criminal Procedure. 1973 (CrPC) . Code of Criminal Procedure. State v. Code of Criminal Procedure. 3358 of 2006) Decided On: 12. Code of Criminal Procedure. Abdul Muktadin MANU/GH/0051/1953 .Article 226--Final report by police for alleged offences under Sections 413 and 414. I. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Indian Penal Code 1860. Indian Penal Code 1860.Section 155. Code of Criminal Procedure. 2 maintainable--And . 1973 (CrPC) . 1973 (CrPC) .Section 165.Section 173(3).C. JJ. Advs. Adv. Code of Criminal Procedure. 1973 (CrPC) .Section 156(3). Code of Criminal Procedure. Fuzail Khan. Code of Criminal Procedure.Section 173(1). Code of Criminal Procedure. (2009)11SCC299.) No. 290 of 2009 (Arising out of SLP (Crl.Section 159.Section 167.--Accepted by Magistrate--Revision filed by respondent No. 1973 (CrPC) . S. v. Code of Criminal Procedure. Dinesh Mishra MANU/SC/0054/1967 . State of Gujarat v. Indian Penal Code 1860. 1973 (CrPC) .Section 156. Roy v. 1973 (CrPC) . 1973 (CrPC) .Section 160. 1973 (CrPC) . Anjanavulu MANU/TN/0210/1932 : AIR 1932 Mad 673 Prior History: From the final Judgment and Order dated 17/28. State of Delhi MANU/SC/0049/1954 .Ram Nandan v.MANU/SC/0201/2009 Equivalent Citation: 2009(2)ACR1425(SC). Counsels: For Appellant/Petitioner/Plaintiff: Nagendra Rai. Code of Criminal Procedure. H. 2 practising advocate neither being complainant nor having any concern with alleged crime--Revision petition allowed--Writ petition thereagainst dismissed--Whether liable to interference?-Held. Code of Criminal Procedure. (IPC) . Code of Criminal Procedure. 2. by his judgment dated 27. 3. 4) in the present appeal filed the First Information Report (in short the `FIR') at the Bishrampur Police Station in Palamau District against unknown persons. Final Form was filed so far as appellant is concerned. By order dated 18. On the basis of the said extra judicial confession four persons were detained who were Raghu Thakur. and he was forced to file the revision petition.5. At no stage before the order was passed by the learned Sessions Judge in revision. 380. to direct further investigation to be made by the police.P.P.that too after considerable length of time--Whether appellant needs to be heard in whose favour final report submitted--And whether informant to be given notice.8. 2. It was stated that in the preceding night some unknown persons had stolen five idols from Thakur Bari. respondent No. According to the appellant no notice was issued to the appellant nor was he heard.2002 learned Chief Judicial Magistrate passed an order taking cognizance for offences punishable under Sections413 and 414 IPC and non-bailable warrant was issued so far as the appellant is concerned. It may be open. On behalf of the appellants. the final report was submitted on 4. Jha.1997.1. J. Learned Sessions Judge did not decide about the question of maintainability of the revision petition at first instance.8. The question of limitation was also not examined. Learned Counsel for the appellant submitted that the course adopted by the revisional courts at the first instance is unknown to law. 411 and 414 IPC. On 29. 218 of 1966. a writ petition was filed which was dismissed by the impugned order. counsel points out. On 18. 6. 1973 (in short the `Cr. First Class. to the Magistrate. or to treat the protest petition filed by the second respondent. On 12. stating that no case is made out. is that of the investigating . no further steps were required to be taken by the State to question the correctness of the order on that behalf. Investigation was carried out but in the absence of any definite clue. By the said order learned Sessions Judge set aside order of learned Chief Judicial Magistrate accepting the final report submitted by the police and directed him to pass a fresh order after perusing the case diary and after hearing the informant. a practicing advocate who was neither the complainant nor having any connection with the alleged offence. 53 of 2001. JUDGMENT Arijit Pasayat. Challenge in this appeal is to the judgment of a learned Single Judge of the Jharkhand High Court.2002 of learned CJM. Mr. Learned Judicial Magistrate. against the order dated 22. and take cognizance of the offence and proceed. filed a revision petition before the learned Sessions Judge. which was accepted by learned Judicial Magistrate. On the basis of the FIR police instituted case relating to offence punishable under Sections 457 and 380 IPC. learned Counsel.') was filed by prosecution with a prayer to summon the appellant as an accused.2. The said application was dismissed by the trial court.C. in Criminal Appeal No.C.1.1. During trial an application under Section 319 of the Code of Criminal Procedure. The same was not challenged before any higher court but the investigation was kept alive. as to whether or not there is a case to place the accused on trial.1999 final report was submitted so far as the appellant was concerned. clearly indicates that the formation of an opinion.1999. 2. Though the revision petition was highly belated. 2 had appeared in person and according to him the State was taking the sides of the appellant. Palamau. 7. 5.2002 the revision petition was allowed and learned CJM was directed to hear the informant or APP. v.3.2002 passed by learned Sessions Judge Palamau in Criminal Revision No. Dwarika Saw and Vijay Kumar Soni. 284 of 2002 with the prayer to quash the order dated 18. Dinesh Mishra MANU/SC/0054/1967 : 1968CriLJ97 it was observed as under: 5. the Magistrate has no jurisdiction to direct the police to file a charge-sheet. The scheme of Chapter XIV of the Code. the same was admitted ex parte and that too without condonation of delay.5. Alak Singh.1997 police submitted supplementary Final Form against the aforesaid four persons indicating commission of offences punishable under Sections 457. Leave granted. Further prayer was to quash the order passed by learned Chief Judicial Magistrate on remand taking cognizance of offences punishable under Sections 413 and 414 of the Indian Penal Code. according to law. the petition was rejected. Background facts in a nutshell are as follows: One Arun Kumar Mishra (hereinafter referred to as the `informant'. as a complaint.1997 and he made an extra judicial confession before the villagers. Learned Counsel for the State accepted that if under Section 319 Cr.) No. Appellant filed writ petition (Crl.2.Respondent No.1999 convicted all the four accused persons. the appellant was heard. pointed out that when a final report is submitted by the police. The revision petitioner had no locus standi to file the petition as he was not the informant. under Section 173(1) of the Code. The same was accepted. After investigation on 22. counsel points out. appellant filed a revision petition before learned Sessions Judge who dismissed the same. In Abhinandan Jha and Ors. 4. Investigation was taken over by the CID Police from the district police. After about one week one Raghu Thakur was arrested on 12. The appellant had no knowledge about these subsequent events.2002 after about two years. The respondent No. 1860 (in short the `IPC'). 1. peruse case diary both original as well as supplementary and then pass order in accordance with law. Questioning correctness of both the aforesaid orders. Aggrieved by the order dated 29. after investigation under Chapter XIV. to send a report to the Magistrate concerned. Section 158 deals with the procedure to be adopted in the matter of a report to be sent. under custody. it will be seen that large powers are conferred on the police. mentioned therein. to maintain a diary recording the various particulars therein and in the manner indicated in that section. Sections 160 to 163 deal with the power of the police to require attendance of witnesses. Murlidhar Govardhan MANU/MH/0088/1960 : (1959)61BOMLR1656 . in proper cases. himself or through another Magistrate subordinate to him. Quite naturally. to forward the accused. Section 169 authorises a police officer to release a person from custody. when he does not agree with the final report submitted by the police. Section 173 provides for an investigation. 6. Section 168 provides for a report being sent to the officer in charge of a police station. and if it appears to him that there is sufficient evidence. In this case. similarly. but. learned Counsel for the respondent. under Chapter XIV. in Criminal Appeal No. 238 of 1966. the order of the Magistrate directing a charge-sheet to be filed. in-charge of a police station. the officer in-charge of a police station. after sending a report to the Magistrate. Sections 165 and 166 deal with the power of police officers.K. in the absence of any such procedure being adopted according to counsel. properly. and it contains the group of sections beginning from Section 154. about the result of an investigation. on investigation under Chapter XIV. Singh. to appreciate the duties of the police. of this section. if it appears to him that there is no sufficient ground for entering on an investigation. respectively. Section 170 empowers the officer. of the proviso to Section 157(1). Section 155. U. Section 159 gives power to a Magistrate. 218 of 1966. Section 167 provides for the procedure to be adopted by the police. to order an investigation. during an investigation.officers. and reiterated. the petition will be that the entire matter is left to the discretion of the police authorities. Roy v. or to the police officer making the investigation. to be completed. and the Courts will be powerless. it may be open to the Magistrate to take cognizance of the offence. for acceptance. on receiving a report under Section 157. if and when so required. In order. empowered under Section 190. in its Full Bench judgment. either to direct an investigation or.B. State of W. on behalf of the appellants. and the procedure to be adopted in respect of the same. prohibits a police officer from investigating a non-cognizable case. On the other hand. Otherwise. according to such opinion. and the Magistrate cannot compel the police to form a particular opinion on the investigation and to submit a report. without the order of a Magistrate. when such investigation has been made by a subordinate police officer. in the decisions reported asState v. without unnecessary delay and also makes it obligatory. and ending with Section 176. under Section 157. is illegal and not warranted by the provisions of the Code. to direct them to submit a charge-sheet. even when they feel that the action of the police is not justified. in the matter of investigation into a cognizable offence. has been treated as a complaint. in Criminal Appeal No. to investigate any cognizable case. is entitled. Clause (b). to a competent Magistrate or to take security from the accused for his appearance before the Magistrate. Section 172 makes it obligatory on the police officer making an investigation. the views. in cases when. examine witnesses and record statements. deals with information in respect of non-cognizable offences. Section 156 authorises a police officer. counsel prays for acceptance of the views expressed by the dissenting Judges. to hold a preliminary enquiry into the matter. gives a discretion to the police officer not to investigate the case. filed by the second respondent. there is nothing to show that the protest petition. of Section 156. Sub-section (2). Sub-section (3). as well as their powers. to justify the forwarding of the accused to a Magistrate. reported as State of Gujarat v. under Chapter XIV. to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender. That chapter deals with "Information to the Police and their Powers to investigate". 7. has pointed out that the Magistrate has jurisdiction. containing the . on the officer in charge of the police station. before a Magistrate. and Ram Nandan v. provides for any Magistrate. as expressed by the Gujarat High Court. These contentions have been adopted. in charge of a police station. Both the learned Counsel pressed before us. in the matter of conducting searches. it appears to the officer in-charge of the police station. Therefore. in A. in the circumstances. when investigation cannot be completed in 24 hours. counsel points out. in the matter of investigation of offences. in accordance with the Code. by Mr Nuruddin Ahmed. or otherwise dispose of the case. In cases where a cognizable offence is suspected to have been committed. Shah Lakhamshi MANU/GJ/0064/1966 : AIR1966Guj283 (FB). State MANU/BH/0103/1966 : AIR1966Pat438 . to appear. without the order of a Magistrate. on his executing a bond. in which case. Section 154 deals with information relating to the commission of a cognizable offence. under Section 157. in cases where the offence is bailable. that there is no sufficient evidence or reasonable ground of suspicion. in the manner provided for therein. it is necessary to refer to the provisions contained in Chapter XIV of the Code. MANU/WB/0040/1962 : AIR1962Cal135 and by the Bombay and Patna High Courts. Mr.P. it appears to the officer. as follows: Investigation usually starts on information relating to the commission of an offence given to an officer in. occurring in Chapter XV. under Section 170. By definition. has no power under any of these provisions. of course. and it would. or to the officer making the investigation.N. on investigation. on receipt of a report under Section 173 really depends upon the nature of the jurisdiction exercised by a Magistrate. or to the officer making an investigation. if in custody. in the manner indicated therein. Rishbud and Inder Singh v. But. it appears to the officer. as has been shown. the officer in-charge of the police station has reason to suspect the commission of an offence. we may refer to certain observations. he or some other subordinate officer deputed by him. or. relating to jurisdiction of Criminal Courts in inquiries and trials. 10. that. without causing any harassment to the accused and is also completed without unnecessary or undue delay. in. under Section 173. But the point to be noted is that the manner and method of conducting the investigation. at p.charge of a police station and recorded under Section 154 of the Code. are left entirely to the police. Basak MANU/SC/0114/1962 : [1963]2SCR52 . From the foregoing sections. This Court inRishbud and Inder Singh case MANU/SC/0049/1954 : 1955CriLJ526 observes. and the Magistrate. in H. not overlapping. on receiving a report. or under Section 170.N.charge of a police station. if. subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. Lord Porter observes. Similarly. on his executing a bond to appear before the Magistrate. 8. In India. It is now only necessary to refer to Section 190. 1156. to take security from him for his appearance before such Magistrate. however. there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities. whether a case comes under Section 169. 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. and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function. by this Court. If. (c) upon information received from any person other than a police-officer. made by the Judicial Committee in King Emperor v. has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. (b) upon a report in writing of such facts made by any police-officer. as Their Lordships think. so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. If from information so received or otherwise. the police officer has to submit a report to the Magistrate. may take cognizance of any offence-(a) upon receiving a complaint of facts which constitute such offence. 9. on the other hand. State of Delhi MANU/SC/0049/1954 : 1955CriLJ526 . That section is to be found under the heading "Conditions requisite for initiation of proceedings" and Sub-section (1) is as follows: (1) Except as hereinafter provided. that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate. containing the various details. Thus investigation primarily consists in the ascertainment or the facts and circumstances of the case. In Nazir Ahmed case (supra). always. there is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Magistrate. it includes all the proceedings under the Code for the collection of evidence . any Presidency Magistrate. or upon his own knowledge or suspicion. of the Code. with approval. Khwaja Nazir Ahmed MANU/PR/0007/1944 and by this Court. as follows: Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged. These observations have been quoted. on the completion of the investigation. so far as we can see. Section 169 says that the officer shall release the accused. under Chapter XIV. S. District Magistrate or Sub. the court's functions begin when a charge is preferred before it. such an officer is required. In such a case as the present. and any other Magistrate specially empowered in this behalf. in State of West Bengal v. at p.necessary particulars. to interfere with the same. that such offence has been committed. in-charge of a police station. if the offence is bailable. be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. to forward the accused to a Magistrate. The question as to whether the Magistrate has got power to direct the police to file a chargesheet.divisional Magistrate. and not until then. The functions of the judiciary and the police are complementary. In this connection. 212. occurring in Chapter XIV. have rested their decision on two principles viz. because. and State of Gujarat v. it is open to the Magistrate to direct the police to file a charge-sheet. © Manupatra Information Solutions Pvt. On the other hand. after investigation. State of W. State MANU/MP/0007/1960 : AIR1960MP12 . and although the Magistrate may have certain supervisory powers.B. Accordingly we set aside the impugned order of the High Court and remit the matter to it to consider the following aspects: (a) Whether the revision petition before the Sessions Judge was maintainable at the instance of Respondent No. 11. 2 and that too after considerable length of time. 1157: Thus. cannot be inferred vide Venkata Subba v. as is sought to be inferred. We do not also find any such power. Murlidhar Goverdhan. Go to top . As we have indicated broadly the approach made by the various High Courts in coming to different conclusions.. and Ram Nandan v. Ltd. AnjanavuluMANU/TN/0210/1932 : AIR 1932 Mad 673. 8. which will mean that when the report is not accepted. under Section 173(3). that this is not to say that the Magistrate is absolutely powerless. we may make it clear. nevertheless. we do not think it necessary to refer to those decisions in detail. after a reference to some of the provisions in Chapter XIV of the Code. and therefore. the High Courts which have recognised such a power. according to law. Abdul Rahim v. (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing. we have to consider the question that arises for consideration. (2) Ascertainment of the facts and circumstances of the case. the Magistrate has to deal with it judicially. in this case.charge of a police station. and (c) whether the informant has to be given the notice. Though it may be that a report submitted by the police may have to be dealt with judicially. under the Code investigation consists generally of the following steps: (1) Proceeding to the spot. Abdul Muktadin MANU/GH/0051/1953 . as will be indicated later.conducted by a police officer. the Magistrate can give suitable directions to the police. (a) that there is no express provision in the Code empowering a Magistrate to pass such an order. (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial. and (b) such a power.K. (b) Whether the appellant needs to be heard. such a power can be recognised in the Magistrate vide State v. it is observed at p. in view of the scheme of Chapter XIV. Again. (3) Discovery and arrest of the suspected offender. Amar Premanand v. Shah Lakhamshi.. We are referring to these observations for the purpose of emphasizing that the scheme of Chapter XIV. 9. and (b) the Magistrate is given supervision over the conduct of investigation by the police. But. it is open to him to take cognizance of an offence and proceed. (a) where a report is submitted by the police. if the officer thinks fit. It is also clear that the final step in the investigation viz. 12. the majority view in A. under such circumstances. clearly shows that the formation of an opinion as to whether or not there is a case to place the accused on trial.. The High Courts which have held that the Magistrate has no jurisdiction to call upon the police to file a charge-sheet. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in-charge of the police station. by a Magistrate. Appeal is allowed to the aforesaid extent. and (5) Formation of the opinion as to whether on the material collected there is case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet under Section 173. we are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial. rest their decision again on two grounds viz.. Roy v. has been left to the officer in. State. Bearing in mind these principles referred to above. in some of the decisions cited above. 1973 (CrPC) Section 170. Stand taken before the learned Sessions Judge was that by the time the protest petition was filed the informant had died and false affidavit with a thumb impression was filed. the learned Magistrate could not have been proceeded in the matter.Section 169. 1973 (CrPC) . 1973 (in short 'Cr. 2.) No.').MANU/SC/7130/2008 Equivalent Citation: 2008(1)ACR995(SC). Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure. Since the informant had already died. Vandana Mishra and Vibha Dwivedi.View of the High Court does not suffer from any infirmity and no interference is called for . J. Respondent: Ranveer Singh and Anr.P. the view that the affidavit alongwith the protest . 3. 2008(2)SCALE391. v.11.02. RLW2008(3)SC2705. Code of Criminal Procedure. JT2008(2)SC261. Hon'ble Judges/Coram: Dr.N. 294 of 2008 (Arising out of SLP (Crl. S. 365 of 2007) Decided On: 12. Leave granted. and therefore no action could have been taken .Crl.2006 of the High Court of Allahabad in Criminal Revision No. alongwith protest petition was immaterial. 1. the factual position goes to show the order passed by the Magistrate was in consideration of the police report and was not relatable to the protest petition .Held. Learned Counsel for the appellants submitted that the High Court fell in grave error by holding that the filing of false affidavit. Dinesh Mishra MANU/SC/0054/1967 Prior History: From the Judgment and Order dated 24. 1973 (CrPC) .514. (2008)11SCC431 IN THE SUPREME COURT OF INDIA Criminal Appeal No. Anuvrat Sharma. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court allowing the revision filed by respondent No.Section 173(3). when the learned Magistrate acted upon the protest petition. Pandey.Protest petition . AIR2008SC1265. Code of Criminal Procedure. Code of Criminal Procedure. Sathasivam.. This found acceptance by the learned Sessions Judge. 1973 .Section 190(1) Cases Referred: Abhinandan Jha and Ors. 2008CriLJ1655.Appeal dismissed JUDGMENT Arijit Pasayat. 1973 (CrPC) . Adv For Respondents/Defendant: Shail Kumar Dwivedi. 2008(Supp. Arijit Pasayat and P.C. 1.Section 173 of the Code of Criminal Procedure. JJ. The High Court by the impugned order had held that the order was not passed on the protest petition and was in fact passed on consideration of the report submitted in terms of Section 173 of the Code of Criminal Procedure. 4. Vs. if any. Aligarh in Criminal Revision No. Code of Criminal Procedure. AAG. 147 of 2001 Disposition: Appeal dismissed Citing Reference: Discussed 1 Case Note: Criminal . (Crl)OLR514. 1973 (CrPC) . 1973 (CrPC) .Section 190.Additional District and Sessions Judge accepted the contention that the informant of the case got a false affidavit filed along with protest petition.2008 Appellants: Har Prasad and Anr. CLT(2008)Supp. 272 of 2000 accepting the contention that the informant of the case got a false affidavit filed alongwith protest petition. According to him. Counsels: For Appellant/Petitioner/Plaintiff: Shakil Ahmed Syed. Debasis Misra.Section 173.11.Whether the order was passed by the Magistrate on protest petition or on the police report .2000 passed by XIII Additional District and Sessions Judge. The revision was filed questioning the legality of the order dated 18.Filing of false affidavit . and therefore no action could have been taken. Advs.High Court held that the order was not passed on the protest petition and was in fact passed on consideration of the report submitted in terms of Section 173 . Code of Criminal Procedure. whether a case comes under Section 169. occurring in Chapter XIV. as will be indicated later. it appears to the officer. But the point to be noted is that the manner and method of conducting the investigation. cannot be maintained. as is sought to be inferred. We have to approach the question.P. or 'summary'. as either 'referred charge'. and any other Magistrate specially empowered in this behalf. on receipt of a report under Section 173 really depends upon the nature of the jurisdiction exercised by a Magistrate. But it is understood. it appears to the officer. without causing any harassment to the accused and is also completed without unnecessary or undue delay. but was relatable to the report submitted under Section 173 Cr. xx xx xx 17. because. The question as to whether the Magistrate has got power to direct the police to file a charge . But in respect of the reports sent under Section 169i. to interfere with the same. the police officer has to submit a report to the Magistrate. under Section 173. we are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial. may take cognizance of any offence(a) upon receiving a complaint of facts which constitute such offence.C. if. Section 169 says that the officer shall release the accused. does not use the expression 'charge-sheet' or 'final report'. to take security from him for this appearance before such Magistrate.e. we may make it clear. that this is not to say that the Magistrate is absolutely powerless. or upon his own knowledge or suspicion. 5. that there is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Magistrate. v. But. in different States. Dinesh Mishra MANU/SC/0054/1967 : 1968CriLJ97 where it was held as follows: 8. is referred to as a 'charge-sheet'. occurring in Chapter XIV. so far as we can see. to forward the accused to a Magistrate or. or to the officer making an investigation. containing the various details. that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate. by a Magistrate. Reference may be made to a judgment of this Court in Abhinandan Jha and Ors. or to the officer making the investigation. As we have indicated broadly the approach made by the various High Courts in coming to different conclusions. in-charge of a police station. The only question that falls for consideration is whether the order was passed by learned Magistrate on protest petition or on the police report. arising for consideration in this case. If. But. Learned Counsel for the respondents on the other hand submitted that a bare reading of the order passed by learned Magistrate shows that the order did not have its foundation on the protest petition. We have already referred to the scheme of Chapter XIV. District Magistrate or Sub-divisional Magistrate. that such offence has been committed. we do not think it necessary to refer to those decisions in detail. nevertheless.petition was not of any consequence. on receiving a report. on the completion of the investigation.sheet. it is open to the Magistrate to direct the police to file a charge-sheet. under Chapter XIV. We do not also find any such power. Similarly. in some of the decisions cited above. filed under Section 170 of the Code. (b) upon a report in writing of such facts made by any police-officer. That section is to be found under the heading "Conditions requisite for initiation of proceedings" and Subsection (1) is as follows: (1) Except as hereinafter provided. in the light of the circumstances pointed out above. relating to jurisdiction of Criminal courts in inquiries and trials. It will be seen that the Code. as well as the observations of this Court in Rishbud and Inder Singh's Case AIR 1955 SC 196 that the information of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate. in the Police Manual containing Rules and Regulations. in the manner indicated therein. are left entirely to the police. under Section 173(3). in-charge of a police station. according to law. when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate. 9. is left to the officer in-charge of the . or under Section 170. 6. It is now only necessary to refer to Section 190. if the offence is bailable. has no power under any of these provisions. on investigation. as such. under Section 170. and the Magistrate. such an officer is required. and although the Magistrate may have certain supervisory powers. on his executing a bond to appear before the Magistrate. any Presidency Magistrate. it is termed variously. of the Code. From the foregoing sections. that a report by the police. 13. Though it may be that a report submitted by the police may have to be dealt with judicially. it is open to him to take cognizance of an offence and proceed. 'final report'. (c) upon information received from any person other than a police-officer. 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. if in custody. on the other hand. Xx xx xx 12. notwithstanding the opinion of the police.police station. but also where he has knowledge or even suspicion that the offence has been committed. to accept the report. It is open to the Magistrate to take cognizance of the offence. or under Section 170. The Magistrate cannot compel the police to form a particular opinion. according to such opinion. because. That being so. which gives jurisdiction to pass an order of the nature under attack. Such a function has been left to the police. Ltd. Therefore. so far as we can see. fail to submit a report. or under Section 169. on the Magistrate. 7. as we have already pointed out. if he still suspects that an offence has been committed. these circumstances will also clearly negative the power of a Magistrate to call for a charge-sheet from the police. not only when he receives information about the commission of an offence from a third person. to take cognizance. or the police. There is no express power. There is certainly no obligation. either wantonly or through bona fide error. is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute. and to submit a report. on the investigation. © Manupatra Information Solutions Pvt. when they have submitted a final report. either under Section 169. That provision. if he does not agree with the opinion formed by the police. Therefore. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion. It is no doubt open to the Magistrate. if he disagrees. in our opinion. depending upon the nature of the decision. as to whether or not there is a case to place the accused for trial.charge of the police station and that opinion determines whether the report is to be under Section 170. As the factual position goes to show the order passed by learned Magistrate was in consideration of the police report and was not relatable to the protest petition. But he cannot direct the police to submit a charge-sheet. he has reason to suspect that an offence has been committed. That will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report. a very wide power is conferred on the Magistrate to take cognizance of an offence. he is entitled. the submission of the report depends upon the opinion formed by the police. the view of the High Court does not suffer from any infirmity and no interference is called for. is that of the officer in. he is entitled to adopt any one of the courses indicated by us. under the Code. under Section 190(1)(c). and not on the opinion of the Magistrate. nor can any such powers be implied. after having due regard to the final report and the police records placed before him. setting out the facts constituting the offence. 'a final report'. being a 'charge-sheet'. on the ground that. Go to top . to accept or disagree with the opinion of the police and. Under those circumstances. The appeal is dismissed. under Section 190(1)(c) of the Code.