(1) The accused in C. C. No. 958/58 on the file of the Judicial Magistrate, First Class, First Court, Bijapur, are the petitioners in this Court. One Hajisaheb Rajesab laid information before the police patil at Yakkundi complaining that the petitioners had committed an offence under S. 395, I.P.C. On receipt of that information the Sub-Inspector of Bableshwar investigated into the same and recommended to the Magistrate to drop the proceedings as no case is made out. Evidently the report in question is one under S. 173 of the Criminal Procedure Code.
Sometime after the receipt of that report by the learned Magistrate, the informant filed an application before him objecting to the recommendation contained therein. The learned Magistrate did not accept the recommendation made by the Police, and in spite of that recommendation be took cognisance of an offence falling under S. 395, I.P.C., against the petitioners. The petitioners contend that the learned Magistrate's action is ultra vires of his powers.
(2) According to the learned counsel for the petitioners, on receipt of a 'B' summary (recommendation to drop proceedings) in any case, the Magistrate is bound to drop the proceedings and it the informant is aggrieved by that order, he has to move the Magistrate by a separate complaint under S. 200 of the Criminal Procedure Code and the Magistrate, if he is satisfied, has to take action under S. 201. Cr.P.C. I am unable to accept this contention as correct. On receipt of any report from the police under S. 173 of the Cr.P.C., it is for the Magistrate either to accept the same or not. Section 190(1), Cr.P.C., provides as follows :
'Except as hereinafter provided any presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence--
(a) upon receiving a complaint of facts which constitute 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........'
From this provision it follows that the Magistrate is not bound by the recommendation of the police. In what cases he should take cognisance is a matter for him and not for the police. Sub-clause (b) of S. 190(1) Cr.P.C., does not lay down that he could take cognizance only if recommended by the police. All that it requires is that there should be a report in writing from a police officer setting out the facts which constitute the offence. A Magistrate can take cognizance of an offence on the facts contained in the report of the police officer, although in the opinion of such officer there is no evidence to justify taking further action. Hence, I do not think that the order of the learned Magistrate is liable to be quashed.
(3) In the result, this petition fails and the same is dismissed.
(4) Petition dismissed.