H.S. Bains vs U.T. Chandigarh and Another

Madan Mohan Punchhi, J.—The question of law which falls for consideration in these two petitions--Crl. Misc. No. 26-M of 1980 (H.S. Bains v. Union Territory of Chandigarh and Anr.) and Crl. Revision No. 755 of 1977 (Rattan Chand and Ors. v. The State of Punjab) mainly u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), is by no means simple. It requires spelling out from the provisions of the Code, as to what is a Magistrate entitled to do, if he differs from the police report prepared u/s 173(2) of the Code and placed before him by the police, after investigation of a crime reported.

The first case in hand is Crl. Misc. No. 26-M of 1980. The Petitioner, H.S. Bains, Director, Small Saving-cum-Deputy Secretary, Finance, Punjab, Chandigarh, prays for quashing of the order dated November 23, 1979, passed by Shri B. C. Rajput, Judicial Magistrate 1st Class, Chandigarh, whereby the learned Magistrate took cognizance of offences under Sections 448/451/506 of the Indian Penal Code against the Petitioner in exercise of his powers u/s 190(1) of the Code, differing with the line of investigation. Broad facts were that Gurnam Singh complainant-Respondent filed a complaint on August 13, 1979, against the Petitioner for the aforesaid offences under the Penal Code before the Judicial Magistrate 1st Class, Chandigarh, alleging that the accused-Petitioner had come in his car on the morning of August 11, 1979, to the residential house of the complainant at Chandigarh, effected criminal trespass and threatened to kill him and his natural son, who had been taken in adoption by the complainant''s sister. This lady was stated to be the widow of the deceased brother of the accused-Petitioner and the adoption was to his distaste. The complaint was referred to the local police by the Magistrate u/s 156(3) for investigation and registration of the case. The police conducted the investigation, during the course of which, it came to be handled by two police officers, one after the other. The police investigation disclosed that the accused had an alibi in the statement of Shri Jai Singh, I.A.S. District Magistrate-cum-Deputy Commissioner, Amritsar, who claimed that the accused-Petitioner was with him a, Amritsar at the relevant time when the alleged offence took place. Thus, the police came to the conclusion that the case against the accused was false and while submitting report u/s 173(2) of the Code, recommended the case to be dropped. The Judicial Magistrate differed from the report and issued process against the Petitioner by observing as follows:

I am constrained to observe on the basis of the record that the police in this case has been greatly influenced by the status of the accused and the statement of the District Magistrate and took this uncalled for stand. The proper course for the police was to seek the judicial verdict when the commission of the offence was apparent from the record and it was for the accused to take up the plea of alibi and prove the same in the court. Every one is equal before the law. The courts are meant to do justice not only when two parties are equal but also when two parties are unequal in their status. Therefore, I do not adopt the line of investigation. This is a fit case for taking cognizance and I take cognizance of the offence u/s 190(1) in order that the accused be summoned for facing the trial under Sections 448/451/506 of the Indian Penal Code. The summons be issued for his appearance for 17th December, 1979.

The second case in hand is Crl. Revision No. 755 of 1978. which arose out of a First Information Report lodged by P.S. Dewan, Assistant Excise and Taxation Officer, Ludhiana, at Police Station Division No. 2, Ludhiana. Broadly stated, the said Shri P.S. Dewan alleged therein that in the normal exercise of his duties, he came to the business premises of Messrs Oswal Woollen Mills, Ludhiana, and while he had impounded accounts books of the said firm, Rattan Chand and Vijay Kumar Petitioners, along with five or ten other persons over-powered him and forcibly snatched the impounded documents from him. On the basis of the said First Information Report, the police investigated the case and submitted a police report u/s 173(2) of the Code before Shri Sharnagat Singh, Judicial Magistrate 1st Class, Ludhiana, indicating therein that Vijay Kumar and Ashok Kumar Petitioners were participants in the crime and that Rattan Chand Petitioner had an established alibi in Delhi, and thus the police had not sent up a challan against him. The learned Magistrate, differing with the police report, ordered Rattan Chand Petitioner to be summoned as well, as an accused, along with Ashok Kumar and Vijay Kumar Petitioners. Besides the individual grouse of Rattan Chand Petitioner, as to why he was summoned, all the three Petitioners lay emphasis in their petition that the proceedings could not go on against them as the entry of the Assistant Excise and Taxation Officer was illegal and in excess of his powers, and hence so case u/s 352 or 353 of the Indian Penal Code was made out against the Petitioners in view of the dictum of this Court in Parshotam Dass Lajja Ram and Others Vs. The State, . However, at the bar arguments alone were confined to the powers of the Magistrate to issue process against Rattan Chand, and thus the debate remained common in both the cases.

Mr H.L. Sibal, the learned Counsel for the Petitioners in both the cases, contended that the respective Magistrates in both the cases had to jurisdiction to issue straightway process against the affected Petitioners, differing with the views expressed and reported to them by the police in their police reports. It was his firm stand that the Magistrates could not take cognizance of the offences in either of the sub-clauses of Section 190(1) of the Code, which is in the following terms:

Cognizance of offences by Magistrates.

(1) Subject to the provisions of this chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence:

(a) upon receiving a complaint of facts which constitutes such offence;

(b) upon a police report of such facts;

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

It would be essential to note some history of the section not only in the legislative, but the judicial field as well. Prior to the Code, which came into operation with effect from 1st April, 1974, the old Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code), was operative and Section 190(1) of the said Code read as follows:

Cognizance of offence by Magistrates.

(1) Except as hereinafter provided any Chief Judicial Magistrate and any other Judicial Magistrate specially empowered in this behalf, may take cognizance of any offence:

(a) upon receiving a complaint of facts which constitutes such offence;

(b) upon a report in writing of such facts made by any police officer;

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

A comparative reading of the two makes it plain that there is no change in Clause (a), whereas changes have come in Clauses (b) and (c). In Clause (c) the word "suspicion" has been omitted and that clause now is meant to confine to the taking of cognizance by a Magistrate, of an offence upon information received from any person (other than a police officer) or upon the Magistrate''s own knowledge that such offence has been committed, and, in Clause (b) for "a report in writing" the expression "police report" has been substituted and the words "by any police officer" have been omitted. The significant changes in Clauses (b) and (c) are so read by the learned Counsel for the Petitioners to mean, that a police report placed before a Magistrate can only be accepted by him for the reasons suggested by the police and the Magistrate cannot, while differing with the report, issue straightway process to the accused. This deserves closer scrutiny in the light of the decisions cited at the bar.

In Abhinandan Jha and Others Vs. Dinesh Mishra, , their Lordships of the Supreme Court considered the import of various sections including Section 173 of the Old Code of 1898. While dealing with the Police report u/s 169 of the Old Code referred to as ''final report" recommending the discharge of the accused, Vaidia-lingam. J. speaking for the Court observed thus:

Now, the question as to what exactly is to be done by a Magistrate on receiving a report, u/s 173, will have to be considered. That report may be in respect of a case, coming u/s 170, or one coming u/s 169. We have already referred Section 190, which is the first section in the group of sections headed "Conditions requisite for initiation of Proceedings". Sub-section (1) of this section will cover a report sent u/s 173. The use of the words "may take cognizance of any offence", in Sub-section (1) of Section 190, in our opinion, imports the exercise of a ''judicial discretion'', and the Magistrate who receives the report, u/s 173 will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence.

Then again while dealing with Section 169 of the Code, the learned Judge observed thus:

...the provisions of Section 169 of the Code of Criminal Procedure....specifically provide that even though on an investigation, a police officer, or other investigating officer, is of the opinion that there is no case for proceeding against the accused he is bound, while releasing the accused to take a bond from him to appear, if and when required before a Magistrate This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating officer, and judicially takes a view different from the Police.

Again while dealing with the report submitted by the police u/s 173 of the Code that no case is made out for sending up an accused for the trial the learned Judge observed:

... Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, u/s 156(3) to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, u/s 156(3). The police, after such further investigation may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, u/s 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report.

In the afore-mentioned paragraph, the quotation has been borrowed from paragraph 15 of that judgment, but instead of Section 190(1)(b), it has to be read as Section 190(1)(c) as pointed out by the printer in Ramchandra and Others Vs. State of Uttar Pradesh and Another, .

Relying on the afore-quoted judgment of the Supreme Court, a Full Bench of the Delhi High Court in Narayan Ramchandra Karambelkar v. The State 1972 Cr. L.J. 1446 , held that the nature of the order will remain the same whether the Magistrate decides to accept the report submitted by the police or takes a view different from the one taken by the police, and it would be a judicial order disposing of the information given to the police. Somewhat, akin was the view of this Court in S.P. Jaiswal Vs. The State and Another, .

Before proceeding further, it would be essential to take notice, as to what was required to be contained in a report u/s 173, which is meant to be placed before a Magistrate. u/s 173(1)(a) of the Old Code the report was required to be in the form prescribed by the State Government stating forth the names of the parties, the nature of the information and the names of the persons who appeared to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and if so, whether with or without sureties. Now in the new Code, Section 173(2) not only requires a report in the same terms and particulars as provided in Section 173(1)(a) of the Old Code, but carries an additional particular under heading "(d)":

(d) whether any offence appears to have been committed and, if so, by whom;

Besides the added particular, Sub-section (4) and (5) of Section 173 of the New Code, meaningfully provide:

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report:

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statement recorded u/s 161 of all the persons whom the prosecution proposes to examine as its witnesses.

It would seem therefrom that a report u/s 173(2), called the "police report" is required to be in a form, to be filled in by the Officer Incharge of the Police Station, providing necessary particulars required therein, but in case it relates to a case to which Section 170 applies, on the existence of sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to a Magistrate, the report must carry along with it, documents mentioned in Sub-section (5). Thus, a "police report", which has now been defined in the Code u/s 2(r) to mean a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173, is a document placed before a Magistrate to be dealt with by him judicially who could take cognizance of an offence under Clause (b) of Section 190(1) of the Code. The said police report may disclose that no offence appears to have been committed, and if committed, not by persons who were named or suspected during investigation, so as to satisfy the requirements of Clause (d) of Section 173(2) of the Code. Obviously, the difference in the ''charge report'' or ''final report'' or ''summary'', seems to have vanished in the New Code by a comprehensive report, required to be prepared by the Officer Incharge of a Police Station after an investigation carried out, revealing results of Section 169 or Section 170 of the Code. When such police report is placed before the Magistrate, with a view to his taking cognizance of the offence (and not the case or the accused) he would be taking cognizance upon a police report on facts, which constitute such offence.

In Althinandan Jha''s case (supra), before the Supreme Court were two cases, placed before the respective Magistrates upon such reports with the opinions that the cases were false or disclosed no offences. The protest petitions made by the complainants, after the receipt of the reports u/s 173 of the Code, had not been taken as complaints by the Magistrates to independently take cognizance of the offences u/s 190(1) (a), but directions were given by the Magistrates to the police to submit charge-sheets, contrary to the opinion of the police. It is in that context that the Court held that the Magistrate had no such power, in law, and he could not direct the police to submit a charge-sheet when the police had submitted a report that no case was made out for sending the accused for trial. It was pointed out that the functions of the Magistrate and the police were entirely different, and though the Magistrate could refuse to accept the report, as submitted before him by the police, and take suitable action accordingly, he could not impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view. The Court observed:

...Under these circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, u/s 190(1)(c) of the Code. That provision in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, u/s 190(1)(c) on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed....

It was contended by the learned Counsel for the Petitioners that by the omission of the word "suspicion" from Section 190(1)(c) of the Code, the law laid down in Abhinandan Jha''s case (supra) quoted in the foregoing paragraph, would no longer be available to a Magistrate to take aid of Section 190(1)(c). It was also contended that the information derived from a police report would be information received by him from a Police Officer and obviously would not be a case of an offence to be taken cognizance of upon his own knowledge, so as to come within the purview of Section 190(1)(c) of the Code. This contention of learned Counsel deserves to be shelved for the moment till two other precedents are taken note of.

In Nasib Singh v. Maman and Ors. Cr. R. 396 of 1979 decided on 1st November, 1979 (decided by a Division Bench of this Court to which I was a member) the Bench had the occasion to deal with a matter in which a First Information Report recorded at the Police Station was investigated upon and the police report submitted to the Magistrate recommended cancellation of the case. The learned Magistrate called for the complainant and other witnesses, examined them and thereupon issued process to the accused. The learned Additional Sessions Judge, on revision before him, upset ''that order and suggested the complainant to file a regular complaint, if permissible. The view of the learned Additional Sessions Judge was challenged before us and in dealing with that matter, we took in aid the changes brought in by the New Code, the relevant extracts of the 41st report of the Law Commission and the law laid down in Abhinandan Jha''s case (supra) by the Supreme Court. Oblivious of the printers''s error pointed out in the earlier part of this judgment, we held as follows:

Even under the New Code, the law as laid down by their Lordships of the Supreme Court remains unexceptionable except that is no longer open to the Magistrate to take cognizance of an offence u/s 190(1)(c) of the new Code on the basis of suspicion. That cognizance can only be taken upon knowledge of the Magistrate. That knowledge the Magistrate may derive from or without a police report so as to bring the foundation of cognizance u/s 190(1)(c) of the new Code. The same object can even be achieved under Clause (b) of Sub-section (1) of Section 173 of the new Code when a police report is submitted u/s 173(2) for that report has to particularise whether any offence appears to have been committed besides mentioning other particulars. The police report may postulate that an offence has or has not been committed and on the placing of it before the Magistrate requesting him to apply his judicial mind thereon, the Magistrate is taken to have taken cognizance of the matter.

. . . .

In the instant case, when the matter was brought before the Magistrate u/s 169, Code of Criminal Procedure, for cancellation of the case and on the application of mind he decided not to accept the report of the Investigating Officer and having chosen to examine the complainant and others, he is taken to have applied his mind and taken cognizance of the matter. It would be wholly immaterial to determine the exact point of time or stage as to when cognizance started. The Information derived from the report submitted to him by the police, if proceeded with in the manner of a complaint, required examination of preliminary evidence and this has been done in the present case by the Magistrate before summoning the accused-Respondents.

In Tula Ram and Others Vs. Kishore Singh, , the Supreme Court was seized of a case in which a complaint was filed before a Magistrate, who ordered the police to investigate it u/s 156(3) of the Code. The police, after investigation reported that no case was made out. The Magistrate thereupon took cognizance of the complaint and proceeded to examine the complainant. Thereafter, the Magistrate issued process against the accused, which too was the subject of challenge in this Court as well as in the Supreme Court. The stand taken was that the complaint got merged in the police report and was thus incapable of being revived, when it had already been dealt with by the Magistrate at the stage of Section 156(3). Their Lordships of the Supreme Court held that stage was one of pre-congnizance, and the stage when the complaint was taken cognizance of was at a time when the police report was placed before the Magistrate. The Court also quoted approvingly observations from Abhindan Jha''s case (supra) to lay down that the Magistrate was not absolutely powerless and it was in that situation open to him to take cognizance of an offence and proceed according to law. Out of the four legal propositions settled, the fourth one is relevant to the instant case:

Where a Magistrate orders investigation by the police before taking cognizance u/s 156(2) of the Code and receives a report thereupon, he can act on the report and discharge the accused, or straightway issue process against the accused or apply his mind to the complaint filed before him and take action u/s 190, as described above.

Placing reliance on the aforesaid two judicial precedents, the contention of the learned Counsel was that despite a First Information Report recorded and a report recommending for cancellation thereof, the Magistrate in Nasib Singh''s case (supra) took cognizance by following the procedure of a complaint by examining the complainant and his witnesses before issuing process to the accused. In the same strain, the Magistrate in Tula Ram''s case (supra) again followed the procedure applicable to a complaint case when the police report was placed before him, though the case came to be registered under orders of a Magistrate u/s 156(3) on a complaint. In nutshell, it is contended that the Magistrates in the instant two cases could not have straightway issued process, but should have followed the procedure of a complaint case, in Crl. Misc. No. 26-M of 1980, since the First Information Report came to be registered after a complaint was forwarded u/s 156(3), in view of Tula Ram''s case (supra), and again by an adoption of complaint procedure in Criminal Revision No. 755 of 1977, even when the case was registered directly by the police, in view of the law interpreted by this Court in Nasib Singh''s case (supra). It was maintained that since in both cases the procedure of complaint had not been followed and processes have been issued straightway, the proceedings before the respective Magistrates against the Petitioners, deserved to be quashed.

In view of what has been said by this Court in Nasib Singh''s case (supra), it would appear to me that the contention of the learned Counsel must fail with the added reasoning available from Tula Ram''s case (supra), which decision is said to be only applicable to complaints ultimately getting registered as First Information Reports u/s 156(3) and not First Information Reports per se. It would appear that an information relating to the commission of a cognizable offence given by a person to an Officer Incharge of the Police Station u/s 154, has got to be reduced in writing and signed by the person giving it and the substance thereof to be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. The lodging of the information, per se, does not ipso jacto commence investigation till such time the Officer Incharge of a Police Station has reason to suspect the commission of an offence, which he is empowered u/s 156 to investigate--(Section 157 of the Code). Therefrom starts building the edifice culminating into a police report, whether be it of the nature of Section 169 or Section 170. In Tula Ram''s case (supra) the complaint was left unsoiled by the investigation of the police and the offence involved therein was taken cognizance of by the Magistrate u/s 190(1)(a). On the same reasoning, the information given by a person to an Officer Incharge of the Police Station remains unsoiled by investigation, and the information worked upon being an information from a person other than a Police Officer, the same can be used by a Magistrate to take cognizance of the offence disclosed therein u/s 190(1)(c) of the Code and for that purpose the procedure applicable has to be that of a complaint case since it would be a case instituted otherwise than on a police report. That is what we permitted to be done in Nasib Singh''s case (supra) since the Information lodged was rescued from the debris of the investigation, like the complaint was done in Tula Ram''s case (supra). But cognizance under Sub-clause (c) apart, it was clearly held in Nasib Singh''s case (supra) that the Magistrate could have straightway on police report issued process if he chose so to do, and that is what has been held as a whole by the Supreme Court in Tula Ram''s case (supra) in legal exposition No. 4. Even in that case, as held by the Court, straightway process could be issued against the accused on the receipt of the police report. The view thus taken by this Court in Nasib Singh''s case (supra) is in accord with the view taken by the Supreme Court in Tula Ram''s case (supra), and it stands clearly spelled out that on the receipt of a police report, whether be it directly on a First Information Report or on a complaint forwarded u/s 156(3), the Magistrate differing from the police report can straightway issue process against the accused. On the aforesaid understanding of law, the orders and action in both the cases are perfectly legal and call for no interference by this Court presently.

No other point was raised in these petitions.

As a result, these petitions fail and are hereby dismissed.