K.S. Karai vs The State

R.S. Pathak, C.J.—This reference has been made by the learned Sessions Judge, Mahasu upon a revision petition filed u/s 435, 436 and 458 of the Code of Criminal Procedure by Shri K.S. Karai who has been charged by the Magistrate First Class, Mahasu with offences under Sections 353 and 448 of the Indian Penal Code.

A complaint was filed by one Shri B. Section Pathania, Principal of the Panchayat Training Institute, Mashobra, against the Petitioner alleging that he had been assaulted by him and obstructed in the discharge of his duties. It was alleged in the complaint that on November 4, 1968 the complainant entered his office and found the Petitioner sitting there and on being asked by the complainant why he had entered the office without permission the Petitioner complained of urinal pits having been constructed in the premises, and then behaving in an offensive manner he left the office after hitting the complainant in the chest.

The police registered a case against the Petitioner. During the course of investigation, they came to know that the Petitioner was a representative of the Hotz Hotels Private Limited, which was the lessor of the building in question, and that he was visiting the building on the day in question and when he found that some unauthorised urinal pits had been dug up 1 he raised an objection with the complainant, which resulted in the incident. The police came to the conclusion that there, was no ground for proceeding against the Petitioner, and accordingly on June 13, 1969 they submitted what is described as a "cancellation report" before the Magistrate. The Magistrate, however, made an order to the following effect:

I have gone through the case file very carefully. I am afraid I am unable to agree with the report of cancellation. The version of the First Information Report has been fully corroborated by a number of independent witnesses and it is not the duty of the Police to weigh the defence evidence which has to be seen only during the course of a trial.

The file be returned to the Superintendent of Police, Mahasu along with a copy of this order and the First Information Report be retained in this Court.

It seems that the police did not send any fresh report, and the Magistrate issued repeated reminders to the police. Reminders were sent on July 23, 1969, August 30, 1969, November 14, 1969, January 20, 1970, February 20, 1970, March 20, 1970, April 30, 1970, May 20, 1970, June 20, 1970, July 20, 1970, August 13, 1970, September 6, 1970, October 26, 1970, November 23, 1970, and December 28, 1970. These reminders were sent to the Station House Officer, Dhalli and the Superintendent of Police, Mahasu. Ultimately the police filed a challan against the Petitioner on January 18, 1971 and the Petitioner was ordered to be summoned. The Magistrate found a prima facie case made out against him u/s 353 read with Section 448 of the Code and he framed a charge accordingly. The Petitioner then filed a revision petition, out of which the present reference has arisen.

The learned Sessions Judge has expressed the view that having regard to the law laid down by the Supreme Court in Abhinandan Jha and Others Vs. Dinesh Mishra, the procedure followed by the Magistrate was not warranted by law and that the proceedings taken and the charge framed against the Petitioner be quashed.

I have heard Shri K.D. Sud, learned Counsel for the Petitioner, and the learned Advocate General for the State. In my opinion, the learned Sessions Judge is plainly right in the view taken by him.

The law as to the functions of the police and of the Magistrate in a case such as this has been laid down by the Supreme Court in Abhinandan Jha (supra). The Supreme Court referred to H.N. Rishbud and Inder Singh Vs. The State of Delhi, where it was pointed out that an investigation by the police consists generally of the following steps:

(1) Proceeding to the spot, (2) ascertainment of the facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (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, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material there is a 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 u/s 173.

It was observed that the final steps in the investigation, namely, the formation of the opinion as to whether or not there was a case for placing the accused on trial was a matter resting with the police, and the Magistrate could not compel the police to form a particular opinion on the investigation and to submit a report according to that opinion. If the Magistrate was not satisfied with the report submitted by the police, all he could do was to require them to make a further investigation. He could not direct them to reassess the material and to arrive at a different opinion. In case he was not satisfied with the opinion expressed by the police that upon investigation made by them there was no case for sending the accused to trial, it was open to him to proceed u/s 190(1)(c) of the Code of Criminal Procedure and upon doing so to follow the procedure laid down in Section 191 of the Code. Reference may also be made to the observations of the Allahabad High Court in Ramchandra and Others Vs. State of Uttar Pradesh and Another,

The learned Advocate General contends that the Magistrate has merely returned the file to the Superintendent of Police and it was the Superintendent of Police who had decided to file a challan subsequently. I have been referred to Raghunath Sharma and Others Vs. The State, That was a case very different on the facts from the present case. There, after the officer in charge of a police station had filed a "final report" to the effect that there was no case for producing the accused before the Magistrate the Superintendent of Police had sent a report to the contrary, and the Patna High Court laid down that it was open to the Superintendent of Police to do so, and the Magistrate was entitled to act upon his report.

In the present case, the Magistrate specifically stated that he did not agree with the report of cancellation filed by the police and that the version contained in the First Information Report was fully corroborated by a number of independent witnesses. In other words, he took the view that there was a case for producing the Petitioner before him. He commented that it was not the duty of the police to weigh the defence evidence. In making that comment, the Magistrate betrayed a want of knowledge of the law. As I have pointed out above, the police in the process of investigation were required to collect material relevant to the offence and to form an opinion whether a case had been made out for producing the accused before a Magistrate. In doing so, it was also open to the police to record the statement of the accused. Unless the police examined both sides of the matter, it was not possible for them to form a fair judgment on the question whether there was a case for producing the accused before a Magistrate. In my opinion, the Magistrate was wrong in the approach adopted by him. It will also be noticed that the fresh report submitted by the police did not proceed on any further information. There is no evidence that the police made further investigation into the matter. The learned Sessions Judge has observed that the police did not make any further probe into the case and only forwarded the case to the Magistrate after omitting reference to the statement of the accused. In my opinion, the action taken by the Magistrate must be quashed.

It is urged by the learned Advocate General that in any event the Magistrate should be considered to have taken cognizance of the case u/s 190(1)(c) of the Code and that this Court should direct that the case should go to another Magistrate in accordance with Section 191 of the Code. It seems tome that having regard to the manner in which the proceedings have been taken such a course would not be in accordance with the interests of justice.

The reference is accepted. The charge framed against the Petitioner is quashed.