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Badarmal and ors. Vs. Roshanlal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Revn. Nos. 216 of 369 of 1969
Judge
Reported inAIR1971Raj18; 1971CriLJ239; 1970(3)WLN380
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 173, 190(1) and 251A
AppellantBadarmal and ors.
RespondentRoshanlal and anr.
Appellant Advocate A.K. Mathur, Dy. Govt. Adv.; D.S. Shisodia, Adv.
Respondent Advocate A.L. Mehta and; B.P. Dave, Advs. for Respondent No. 1
DispositionApplication dismissed
Cases ReferredMansingh v. State of Rajasthan
Excerpt:
.....final report submitted by the police under section 173 criminal procedure code was nothing but a police report. the heading of the section itself is quite suggestive of that. section 190(1)(b) criminal procedure code covers reports submitted by a police officer. the report may be on a challaning the accused or it may be what is known as a deferred charge-sheet or 'iktami'. all the same it is a police report. taking cognizance means applying one's mind to the facts stated in the report and then proceeding further in the matter under the relevant provisions of the criminal procedure code. therefore, the learned magistrate was not wrong in taking cognizance of the offence under section 190(1)(b) criminal procedure code though in an appropriate case he could have acted under section..........as a complaint case in accordance with section 252 criminal procedure code and not as a case on a police report under section 251-a criminal procedure code. the learned sessions judge after hearing the parties, came to the conclusion that there was no ground to interfere with the order passed by the learned magistrate. it is in thesecircumstances that the accused have filed these two revision applications.3. in revision application no. 216 of 1969 it is urged that the learned magistrate could not have taken cognizance of the offence taking a view contrary to the final report made by the police. the contention raised in the other revision is that the learned magistrate was required to proceed with the case as a complaint case in accordance with section 252 criminal procedure code.4. now.....
Judgment:
ORDER

Kan Singh, J.

1. The Revision applications before me raise a short question though, by no means, an easy one about the mode of proceeding where the Magistrate does not accept the final report made by the police under Section 173 Criminal Procedure Code and takes cognizance of the offence by not agreeing to the final report.

2. On 9-7-67, one Roshanlal lodged information with the police station Doongla against the 8 accused petitioners alleging that they had committed an offence of rioting. On this report the police registered a case against all the accused for the offence under Section 147 Criminal Procedure Code and investigated the matter. On 15-1-68 the police submitted a final report in the case to the Munsif Magistrate, Doongla, under Section 173 Criminal Procedure Code to the effect that there was no case for putting up a challan. Roshanlal then filed a protest petition. On consideration of the facts found in the final report and after hearing the prosecuting Sub-Inspector and the counsel for Roshanlal the learned Magistrate formed the opinion that the facts set out in the final report constituted offences under Sections 147, 452 and 323 Indian Penal Code. The learned Magistrate, therefore, took cognizance of the said offences and issued processes against the accused. He called upon the police to produce the documents referred to in Section 173 Criminal Procedure Code and directed the Prosecuting Sub-Inspector to conduct the case. Against this order of the learned Magistrate the prosecution filed a revision application before the learned Sessions Judge which was No. 38 of 1968. The accused persons also presented another revision application on 17-6-68 contending that the final report having not been accepted the Magistrate should be treated to have taken cognizance on a complaint and consequently the Prosecuting Sub-Inspector could not have been asked to conduct the prosecution. According to the accused the case has to proceed as a complaint case in accordance with Section 252 Criminal Procedure Code and not as a case on a police report under Section 251-A Criminal Procedure Code. The learned Sessions Judge after hearing the parties, came to the conclusion that there was no ground to interfere with the order passed by the learned Magistrate. It is in thesecircumstances that the accused have filed these two revision applications.

3. In revision application No. 216 of 1969 it is urged that the learned Magistrate could not have taken cognizance of the offence taking a view contrary to the final report made by the police. The contention raised in the other revision is that the learned Magistrate was required to proceed with the case as a complaint case in accordance with Section 252 Criminal Procedure Code.

4. Now I may read Section 190 Criminal Procedure Code:--

'Section 190. Cognizance of offence by Magistrates:-- (1) 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.

(2) The State Government, or the District Magistrate subject to the general or special orders of the State Government, may empower any Magistrate to take cognizance under Sub-section (1), Clause (a) or Clause (b), of offences for which he may try or commit for trial.

(3) The State Government may empower any Magistrate of the first or second class to take cognizance under Sub-section (1), Clause (c) of offences for which he may try or commit for trial.'

This section shows that there are three ways in which cognizance of an offence is taken. The one is on the basis of a complaint. The term 'complaint' has been defined in the Criminal Procedure Code to mean the allegations made orally or in writing to a Magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence, but it does not include the report of a police officer. The second mode is upon a report in writing of such facts made by any police officer. The third mode is when the Magistrate takes cognizance 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 careful reading of the section without encumbering oneself with the case law shows that if the Magistrate takes cognizance upon a report in writing of the facts made by any police officer he will be acting under sub-clause (b). In the present case, the Magistrate had not acted on any complaint. The protest application could not be regarded as a complaint, as the applicant was not examined under Section 200 Criminal Procedure Code. The order recorded by the learned Magistrate shows that he applied his mind to the report made by the police and then formed his opinion differently from what the police officer had said in the final report and then took cognizance of the offence. Section 190(1) (c), to my mind, is not attracted where a Magistrate acts on the information received from a police officer, because that is expressly excluded by the first part of Clause (c) of Sub-section (1). The learned Magistrate also cannot be said to have acted on his own knowledge or suspicion, because he has applied his mind to the facts mentioned in the police report and then decided to issue processes against the accused.

A final report of the police after the investigations is made under Section 173 Criminal Procedure Code. Section 173 Cr. P. C. lays down that every investigation under this Chapter shall be completed without unnecessary delay, and as soon as it is completed, the officer in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report, in the form prescribed by the State Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear 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. Section 169, Criminal Procedure Code lays down that if, upon an investigation under this Chapter, it appears to the Officer in charge of the Police station or to the Police Officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such Officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such Officer may direct, to appear if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial.

Section 170, Criminal Procedure Code provides that if, upon an investigation under this Chapter, it appears to the Officer in charge of the Police Station that there is sufficient evidence or reasonable ground as aforesaid, such Officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a Police report and to try the accused or commit him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance beforesuch Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. Section 169, Criminal Procedure Code shows that even where the Police Officer does not find sufficient evidence in the case and the accused has to be released then he can release only after taking a bond from the accused for appearance before the Magistrate who can take cognizance on a Police report. Section 173 covers both a report where the Police challans an accused and also a case where the Police does not think fit to challan the accused. The report in that event is popularly known as the deferred charge-sheet or 'Iktami'. All the same there is no escape from the position that even a deferred charge-sheet or 'Iktami' is also a report of a Police Officer. Where cognizance is taken on a police report and the Magistrate so takes cognizance under Section 190 (1) (b), Cr. P. C. and not under any other sub-clause.

Learned counsel for the petitioner contended that in such a situation the Magistrate can act only under Section 190 (1) (c) and he relies on a decision of their Lordships of the Supreme Court reported as Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117. In that case their Lordships were dealing with a question whether a Magistrate can direct the Police to put up a challan when the Police has given a deferred charge-sheet or the final report in a case investigated by it. Their Lordships observed that the formation of the opinion as to whether or not there is a case to place the accused for trial, is that of the Officer-in-charge of the Police station and that there was no express power which gave jurisdiction to the Magistrate to pass an order of the nature in the case nor could any such powers be implied. Their Lordships then proceeded to say that certainly there was no obligation to accept the report if the Magistrate did not agree with the opinion formed and their Lordships pointed out that in that situation the Magistrate could take cognizance under Section 190 (1) (c) of the Code of Criminal Procedure. I may read in extenso the passage on which learned counsel has placed his reliance.

'Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the Police, to take cognizance under Section 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, under Section 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. Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a charge-sheet from the Police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to place the accused for trial, is that of the Officer-in-charge of the Police Station and that opinion determines whether the report is to be under Section 170, being a 'chargesheet,' or under Section 169, 'a final report'. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the Police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the Police to submit a charge-sheet, because the submission of the report depends upon the opinion formed by the Police and not on the opinion of the Magistrate. 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.'

5. It is true, their Lordships had observed that the Magistrate can take cognisance under Section 190(1) (c) of the Code in such a situation, but having read the judgment as a whole, I am unable to hold that their Lordships can be taken to lay down that cognizance cannot be taken under Section 190 (1) (b), Criminal Procedure Code. The passage should not be read in isolation from what their Lordships were pleased to say in the earlier part of the judgment. It is a trite principle of appreciating the observations in a judgment that the generality of the observations made is circumscribed by the particular facts and circumstances of the case. Even in the case of a statute the general words have to be construed in the light of the context and this will be all the more necessary in appreciating the observations in a precedent.

6. In Attorney General v. H.R.H. Prince Ernest Augustus of Hanover, 1957-1All ER 49 it was observed that 'for words, and particularly general words, cannot be read in isolation; their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia and the mischief which I can by these and other legitimate means, discern that the statute was intended to remedy.' This passage has been quoted in a recent case of the House of Lords reported as D.P.P. v. Schildkamp, 1969-3 All ER 1640.

7. Now in Para 15 of the judgment in Abhinandan Jha's case, AIR 1968 SC 117 their Lordships observed as follows:--

'Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the Police under Section 173, that no case is made out for sending up an accused for trial, which report as we have already indicated, is called, in the area in question, as a 'final report'? 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 'n which case, in our opinion the Magistrate will have ample jurisdiction to give directions to the police, under Section 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, under Section 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, under Section 190(1) (b), notwithstanding the contrary opinion of the police expressed in the final report.'

Their Lordships have very clearly said here in this Para that 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 under Section 190(1) (b), notwithstanding the contrary opinion of the police expressed in the final report. There is an earlier decision of their Lordships reported as Pravin Chandra v. State of Andhra Pradesh, AIR 1965 SC 1185 which also shows that a police report under Section 173 Criminal Procedure Code can include an offence relating to a non-cognizable case under Section 190(1) (b).

8. In Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167,' their Lordships were dealing with a case where the police after investigations had challaned some accused and had not challaned others and the Magistrate issued processes against the accused who were not challaned by the police. It was held that even against the accused not challaned by the police the learned Magistrate will be taken to have taken cognizance under Section 190(1) (b) and the case will be triable in accordance with Section 307-A or Section 251-A Criminal Procedure Code.

9. Learned counsel for the petitioners invited my attention to a very recent case of their Lordships in R.N. Chatterji v. Havildar Kuer Singh, Criminal Appeal No. 89 of 1967, D/- 19-2-1970. It was observed in this case that the provisions of the Criminal Procedure Code do not empower the Magistrate to ask the police to submit a charge-sheet. If, however, the Magistrate is of opinion that the report submitted by the police requires further investigation the Magistrate may order investigation under Section 156(3) of the Criminal Procedure Code, but directing a further investigation is entirely different from asking the police to submit a charge-sheet. Their Lordships added that Section 190(1) (c) Criminal Procedure Code empowers the Magistrate to take cognizance of an offence notwithstanding a contrary opinion of the police. The governing point was whether the police can be directed to put up the challan against an accused when it has come to hold a contrary opinion. Their Lordships have, no doubt, said in this case also that cognizance can be taken by the Magistrate under Section 190(1) (c), but their Lordships have not negatived the taking of cognizance under Section 190 (1) (b), Criminal Procedure Code by treating the final report to be a police report within the meaning of Section 190(1) (b) Criminal Procedure Code. About this what their Lordships have Said in Para 15 of the Judgment in Abhi-nandhan Jha's case, AIR 1968 SC 117 clinches the issue.

10. I have referred to the principles of interpretation stated by the House of Lords in a recent case for appreciating the observations of their Lordships of the Supreme Court in Abhinandan Jha's case, AIR 1968 SC 117 because what their Lordships lay down is declaration of law in accordance with the provisions of our Constitution. Thus, to my mind, a Magistrate who does not accept the final report of the police under Section 173 Criminal Procedure Code and takes cognizance of the offence in spite of the contrary opinion of the police, having applied his mind to the facts mentioned in the police report under Section 173 Criminal Procedure Code, will be taking cognizance of the offence under Section 190(1) (b) Criminal Procedure Code, though in an appropriate case he might be taken to have , acted even under Section 190(1) (c) Criminal Procedure Code. Learned counsel for the petitioner has also brought to my notice an unreported case of a learned Single Judge of this Court in Mansingh v. State of Rajasthan, Criminal Revn. No. 34 of 1969, D/- 18-3-1969 (Raj). In that case the police submitted a final report before the learned Additional Munsif Magistrate First Class, Bharatpur. The learned Magistrate did not agree with the reasons given by the investigating officer for the submission of a negative final report and on consideration of the statements made under Section 164 of the Code of Criminal Procedure he found that there was a prima facie case and accordingly he referred the matter to the investigating officer for submitting a charge-sheet. The investigating officer in deference to the wishes of the learned Magistrate submitted a charge-sheet. An application was moved by the accused contending that the charge-sheet submitted by the police in the case was not a police report and the learned Magistrate could not accept this. The accused first went in revision to the court of Sessions Judge and he then approached this Court. The learned Single Judge referred to para 17 of the judgment in Abhinandan Jha's case, AIR 1968 SC 117 and observed that the only legal course open to the Magistrate for taking cognizance of the offence was under Section 190(1) (c) and it was not open to him to submit a charge-sheet. This case also was dealing with the legality of the order of the learned Magistrate directing the police to put up a challan. It does not deal with the question pointedly whether the Magistrate can or cannot take cognizance of the offence under Section 190(1) (b) Criminal Procedure Code.

11. Having considered the matter, I am of the opinion that the final report submitted by the police under Section 173 Criminal Procedure Code was nothing but a police report. The heading of the section itself is quite suggestive of that. Section 190(1) (b) Criminal Procedure Code covers reports submitted by a police officer. The report may be one challaning the accused or it may be what is known as a deferred charge-sheet or 'Iktami'. All the same it is a police report. Taking cognizance means applying one's mind to the facts stated in the reportand then proceeding further in the matter under the relevant provisions of the Criminal Procedure Code. Therefore, the learned Magistrate was not wrong in taking cognizance of the offence under Section 190(1) (b) Criminal Procedure Code though in an appropriate case he could have acted under Section 190(1) (c) Criminal Procedure Code as well.

12. I may next deal with the question whether the Prosecuting Sub-Inspector could have been directed to conduct the prosecution and to furnish the copies of the relevant statements of witnesses to the accused. Now a Prosecuting Sub-Inspector of Police is undoubtedly a member of the Police Force and belongs to the Police Department, but it cannot also be forgotten that in conducting the criminal cases before a Magistrate he is acting as a Public Prosecutor under Section 492 Criminal Procedure Code and in doing so he is discharging public duties by assisting in the administration of justice, but for the Prosecuting Sub-Inspector being treated as a Public Prosecutor under Section 492 Criminal Procedure Code he would not be entitled to conduct a case, because he is not a legal practitioner who alone can conduct cases in the courts. The Magistrate could legitimately call upon the Public Prosecutor attached to his court, be a Prosecuting Sub-Inspector, being such an officer to conduct a case of which he had taken cognizance. There was nothing wrong in the order of the learned Magistrate directing the Prosecuting Sub-Inspector to conduct the case. Since the cognizance has been taken by the learned Magistrate on a police report the case will have to proceed in accordance with the provisions of Section 251-A Criminal Procedure Code. Therefore, the copies of the various statements have to be furnished to the accused and consequently the learned Magistrate has rightly directed the Prosecuting Sub-Inspector to furnish the necessary copies. There also he cannot be said to have acted against the provisions of any law. Learned counsel for the petitioner submitted that what a Magistrate is not authorised to do directly he could not do indirectly. In other words, according to the learned counsel if, according to the view taken by their Lordships of the Supreme Court, the police cannot be directed to put up a challan against an accused for the same reason the learned Magistrate could not direct the Prosecuting Sub-Inspector to conduct the proceedings and furnish the copies of the relevant papers to the accused. The argument is, no doubt, attractive but it overlooks one important point of distinction. In one case when the police puts up the challan it is the police who takes the responsibility of prosecuting the accused. In the other case it is the court which istaking cognizance and what the Prosecuting Sub-Inspector is doing he is so required to do in his another capacity as a public functionary discharging the duties of a Public Prosecutor. This is not the same thing as when he is acting as a limb of the Police Department. Here he is conducting a case under orders of the Magistrate. In an appropriate case if the Magistrate finds that the Prosecuting Sub-Inspector will feel embraced (embarrassed?) on account of any direction of his superior officers to whom he may be subordinate, then in an appropriate case the District Magistrate can* be asked to appoint any other person as a public prosecutor to conduct the case. It is not always the case that the Prosecuting Sub-Inspector conducts only cases challenged by the police. In a case that may be instituted by a court say, for an offence under Section 193 Criminal Procedure Code, the prosecution will still be conducted by the Prosecuting Sub-Inspector attached to the court of the Magistrate. Therefore, there is nothing startling if the Prosecuting Sub-Inspector is asked to conduct a case not challenged by the police. Therefore, it is not a case where the Magistrate is doing indirectly what he is forbidden to do directly namely, asking the police to put up a challan where the police has expressed a contrary opinion.

13. Therefore, to my mind, both the revision applications are without substance and I hereby dismiss them.


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