A.B. Rohatgi, J.
(1) This is a petition under section 482 of the Code of Criminal Procedure, 1973 for quashing the order of the Additional Chief Metropolitan Magistrate dated 7.11.1981.
(2) These are the facts. On 22.1.1981 a sub inspector of police with 2 assistant sub-inspectors and a head constable went to investigate a case under section 307, 1.P.O. They were looking for Rakesh and Umesh, two sons of Dalbir Singh, in his house in Onkar Nagar. They knocked at the door of his house. It was 1.15 a. m. The accused Dalbir Singh came out of the house. The sub inspector explained to him the reasons of his presence. On this the accused became angry and caught hold of the collar of the sub inspector and shook him saying; 'How have you dared to come to my house at this hour ?' When the sub inspector tried to free himself his son also came there and both of them began to beat the sub inspector. His uniform was also torn. With these allegations a first information report Was lodged. The investigation commenced. As a result of the investigation the police came to the conclusion that there was no independent eye witness of the incident. Even the staff accompanying the sub inspector did not witness the occurrence. They said that they had not seen the incident. So the police found that there was no sufficient evidence to challan the accused person under Ss. 353/186/332 Indian Penal Code They formed the opinion that the case be treated as closed or cancelled due to lack of evidence. They requested the magistrate that the accused persons may be discharged. An application was made to him for the discharge of the accused persons on which he made this order ; 'No case of discharge. Challan be filed'. This is the impugned order dated 7.11.81. The question is about the legality of this order.
(3) A large number of authorities have been cited on.-behalf of the petitioners Mr. Soni has referred me to Abhinandan Jha v. Dinesh Mishra, : 1968CriLJ97 , Avtar Singh v. State, 1978 All Rul 405 Chandrasekhar v. State, 1978 All Rul 455, Krishna Kant v. State, 1980 All Law Jou 759, Jauhari Mal v. State, : AIR1969All241 , Sesh Nath Chaube v. State, 1978 All Crim Rul 284 and R.N. Chatterjee v. Havildar Kuer Singh, 1970 (1) S.C.C. 49.
(4) On behalf of the State, Mr. Khan, on the other hand, relies on Lumbaram v. State, 1957 Cri. LJ. 241 (Rajasthan) Badramal v Roshanlal, , Ranchandra v. State, : AIR1971All155 , Gopala Panikkar v. State, 1969 Crl. L.J. 116 (Kerala).
(5) In some of these decisions divergent views have been expressed. It is unnecessary for the purposes of this case to consider those views. In my opinion this case is plainly governed by the decision of the Supreme Court in R.N. Chatterjee v. Huvildar Kuer Singh (supra). R.N. Chatterjee and Abhinandan Jha are cases decided by the Supreme Court under the Code of Criminal Procedure 1898. To the new Code of 1973 they are fully applicable so far as sub clause (b) of section 190 is concerned. In 1973 Code the legislature made change in clause (c) by deleting the word 'on suspicion', as was pointed out in Avtar Singh's case (supra) by this court. But in this case I am concerned only with clau(r)e (b) of section 190. The State defends the order under attach under clause (b) only.
(6) The learned magistrate had before him only an application praying for discharge of the accused persons. There was no other material before him. In this application all that was said was that no independent eye witness could be found and the accused cannot be sent up for trial for want of evidence. This application was obviously under section 169 of the Code. Because in the opinion of the police there was no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to the magistrate, to use the words of the section. If there had been in the opinion of the police sufficient evidence or reasonable ground they were bound to forward the accused to the magistrate empowered to take cognizance of the offence, (s. 170). But they found that there was no case for sending up the accused for trial as a result of the investigation.
(7) Obviously the learned magistrate went through the application. He formed an opinion contrary to that of the police. He said : 'No case of discharge. Challan be tiled.' The question is whether he had jurisdiction to make this order under, 190(l)(b) of the Code of Criminal Procedure, 1973, on which Mr. Khan relies to support it. There can be no doubt that if the magistrate is of the opinion that the report submitted by the police requires further investigation into the alleged offence he may make an order under. 156(3) of the Code. Directing a further investigation is entirely different from asking the police to submit a charge sheet. Furthermore section 190(1)(c) empowers the magistrate to take cognizance of an offence not withstanding the contrary opinion of the police (see R.N. Chatterjj (supra). But in this case the learned magistrate has neither ordered a further investigation nor has he made the order in question under section 190(1)(c)
(8) The short question for decision is whether the magistrate had jurisdiction to pass the impugned order under section 190(l)(b) and compel the police to file the charge sheet. On 10.2.82 the police did file the challan in obedience to the orders of the learned magistrate. They mentioned in the challan itself that it is being done under the orders of the court though they themselves have come to a contrary conclusion as a result of their investigation. Now the law is settled. In Abhinandan Jha (supra) the Supreme Court held that it was for the police to form opinion and the formation of the opinion by the police is the final step in the investigation and that final step is to be taken only by the police and by no other authority. As to the powers of the magistrate it was said that he cannot call upon the police to submit a charge-sheet when they have sent their final report that there is no case for sending up the accused for trial because that would be dictating to the police to form an opinion so as to accord with that of the magistrate and to fall in line with his views. The Court said:
'THEREFORE to conclude, there is no power expressly or implied conferred, under the Code, on a magistrate to call upon the police to submit a charge sheet, when they have sent a report under section 169 of the Code that there is no case made out for sending up and accused for trial'.
(Abhinandan Jha, supra p. 124). And again :
'THE magistrate cannot compel the police to form a particular opinion on the investigation, and to submit a report, according to such opinion. 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 either under section 169, or under section 170, depending upon the nature of the decision. Such a function has been left to the police under the Code.' (p. 123). This is not to say that the magistrate is absolutely powerless. He can order further investigation. Or he may act under section 190(l)(c). But he can- not compel the police to file the charge sheet as has been done in this case. In R.N. Chatterjee, Abhinandan Jha was followed. The court observed : 'It has been emphasised in several decisions that 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 enquiry'. (p. 498). Applying the principle laid down in Abhinandan Jha and R.N. Chatterji it is impossible to uphold the validity of the order under attach. The magistrate has no power to compel the police to file challan when they have on investi- gation formed a contrary opinion as to the guilt of the accused persons. The formation of opinion in the investigation is left to the police. This is clearly indicated the scheme of Ch. Xiv of the Code of Criminal Procedure. The Code envisages a scheme of shared powers between the police and the magistracy. (1) The formation of the opinion in an investigation is left to the police (2) The magistrate exercise judicial functions in dealing with the report submitted by the police. But he cannot direct the police to submit a charge sheet because the submission of the charge sheet depends upon the opinion formed by the Police, and not on the opinion of the magistrate.
(9) I have thereforee come to the conclusion that under section 190(1)(b) an order such as the present one could not be made. There was no juris- diction in the magistrate to make the impugned order. The order of the learned magistrate dated 7.11.1981 is quashed. The petition is allowed.