P.D. Kudal, J.
1. This is an application under Section 482, Criminal P.C. 1973, against the order dated April 28, 1976 by the learned Judicial Magistrate No. 1, Jodhpur in Criminal Misc. Case No. 35 of 1975.
2. The facts of the case, in brief, which are relevant for the disposal of this application, are that a case under Section 9 of the Indian Opium Act was registered against the accused-applicant and others. During investigation the sample of the opium was sent to the Director, Forensic Science Laboratory, Jaipur. In the report dated October 4, 1975, the Director reported that on chemical examination the sample contained in the packet was not found to be of opium. The investigating agency, therefore, submitted a final report under Section 173, Criminal P.C. 1973. The proceedings before the learned Magistrate dated April 8, 1976 reveal that the final report under Section 173, Criminal P.C. 1973 was presented and the case was posted for orders for April 22, 1976. On April 22, 1976, the learned Magistrate ordered that he would like to see the seized material. The A.P.P. was directed to produce the seized material on April 28, 1976. On April 28, 1976, it was ordered that as the court time is over, the sample from the sealed packet may be taken and be sent for re-examination. It is against this order that the present application under Section 482, Criminal P.C. has been filed.
3. On behalf of the accused-applicant, it was contended that the learned Magistrate acted without jurisdiction in passing the order contained in the proceedings dated April 28, 1976. It was also contended that the learned Magistrate could not collect evidence for the prosecution if any such evidence was wanting as it would mean plugging the lacunae in the prosecution evidence. It was also contended that once a final report under Section 173, Criminal P.C. has been filed, only two courses were open to the learned Magistrate, viz. (1) that he could ignore the final report under Section 173, Criminal P.C. and could have taken cognizance of the offence after examining the evidence on record, collected by the investigating agency; or (2) he could have either allowed the prosecution to be dropped in pursuance of the final report submitted under Section 173, Criminal P.C. or could have proceeded as envisaged under Section 159. Criminal P. C It was contended that the learned Magistrate did not adopt any of the permissible procedure, as indicated, and acted in an arbitrary and capricious manner. It was also contended that the order passed by the learned Magistrate is neither a speaking order nor a reasoned order in the absence of which no appellate or revisional Court could infer why such an extraordinary step was taken by the learned Magistrate.
4. On behalf of the State, it was contended that if the learned Magistrate did not accept the final report under Section 173, Criminal P.C. he was competent to further investigate the matter in view of the provisions of Section 159, Criminal P.C. It was contended that sending of the sample to the chemical examiner for further investigation was nothing, but a step-in-aid to further investigation. It was also contended that even if the learned Magistrate has not written a reasoned or a speaking order, then too the pith and substance of his intention could be gathered from the order. The learned Public Prosecutor also raised a preliminary objection that the investigation is not yet complete, and at this stage, the accused-applicant has no locus standi to be heard.
5. The contentions of the learned Counsel for th(c) accused-applicant and the learned Public Prosecutor have been considered, and the record of the case perused.
6. The learned Public Prosecutor has supported the preliminary objection raised by him by placing reliance on Emperor v. Nazir Ahmad AIR 1945 PC 18 : 46 Cri LJ 413, wherein it has been held as follows:
Just as it is essential that every one accused of a crime should have free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so 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 upon them the duty of enquiry. In India there is a statutory right on the part of the police under Sections 154 and 156, to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under Section 561A, The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course subject to the right of the Court to intervene in an appropriate case when moved, under Section 491, Criminal P.C. to give directions in the nature of habeas corpus. In the case of a cognizable offence, the Court's functions begin when a charge is preferred before it and not until then and, therefore, the High Court can interfere under Section 561-A only when a charge has been preferred and not before. As the police have under Sections 154 and 156, a statutory right to investigate a cognizable offence without requiring the sanction of the Court to quash the police investigation on the ground that it would be an abuse of the powers of the Court would be to act on treachrous grounds.
7. The learned Public Prosecutor also placed reliance on Nagawwa v. Veeranna : 1976CriLJ1533 , wherein it has been held as under:
At the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one.
The scope of the inquiry whether Section 202 is extremely limited - only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (it) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact, in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.
8. The learned Counsel for the accused-applicant contended that there is no force in this preliminary objection as no interference has been sought in the investigation of the investigating agency. Reliance was placed on Nagawwa v. Veeranna : 1976CriLJ1533 ; S.N. Sharma v. Bipen Kumar : 1970CriLJ764 ; Padam Sen v. State of U.P. 0065/1960 : 1961CriLJ322 and Abhinandan v. Dinesh Mishra : 1968CriLJ97 .
9. In S.N. Sharma v. Bipen Kumar : 1970CriLJ764 , it has been held as under:
The power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him proceed to enquire into the case.
The use of the expression 'as he thinks fit' in Section 159 makes it clear that Section 159 is primarily meant to give to the Magistrate the power of directing an investigation in cases where the police decide not to investigate the case under the proviso to Section 157(1), and it is in those cases that, if he thinks fit, he can choose the second alternative of proceeding himself or deputing any Magistrate subordinate to him to proceed to hold a preliminary enquiry as the circumstances of the case may require.
Though the Code gives to the police unfettered power to investigate all cases whei' they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power to investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code.
10. In Padam Sen v. State of U.P. 0065/1960 : 1961CriLJ322 , it has been held as under:
If the documents are forged, while in the possession of the plaintiff the defendant can prove the foregeries and dispute the entries. It is not the business of the Court to collect evidence for a party.
11. In Abhinandan Jha v. Dinesh Mishra : 1968CriLJ97 , it has been held as under:
There is no power, expressly or impliedly 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 an accused for trial. The functions of the Magistracy and the police are entirely different, and though, the Magistrate may not accept the report and take suitable action, according to law, he cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.
12. In the instant case, the investigating agency had investigated the case, and submitted its report under Section 173, Criminal P.C. stating that no case is made out against the accused-applicant. It is thus apparent that no interference at any stage was made in the process of investigation of the investigating agency. The investigating agency while placing reliance on the report of the Director, Forensic Science Laboratory, Jaipur has submitted a final report. The learned Magistrate has, at no stage, expressed any doubt about the report, he has also not expressed any intention of disbelieving the final report submitted by the investigating agency and the learned Magistrate has also not said that he would like to proceed with the investigation himself under Section 159, Criminal P.C. As a matter of fact, the order passed by the learned Magistrate is neither a reasoned order, nor a speaking order, and it is not possible to gather what circumstances or reasons impelled him to pass the impugned order dated April 28, 1976. The investigating agency has already completed its work and submitted the final report, and as the impugned order dated Apri] 28, 1978 does not fulfil even the minimum requirements under Section 159, Criminal P.C. it is very difficult to hold that any attempt is being made to impede the process of investigation or to create obstacles. The learned Magistrate did not choose to take cognizance under the provisions of Section 190, Cr.P. G after evaluating the evidence collected by the investigating agency, nor did he adopt to accept the final report. The order dated April 28, 1976, by no stretch of imagination, comes within the ambit of the provisions of' Section 159, Criminal P.C. if a Magistrate chooses to adopt a procedure which is unwarranted by law, or, chooses fanciful or imaginary process of its own creation, this Court, while in exercise of its powers under Section 482, Criminal P.C. 1973 cannot sit as a silent spectator.
13. In the set of circumstances narrated above, the preliminary objection raised by the learned Public Prosecutor is, therefore, overruled.
14. In Paneham Singh v. State : AIR1967Pat416 , it has been held as under:
If after the submission of the final form under Section 173 of the Code, the Magistrate has some doubt in deciding whether he should take cognizance under Section 190(1)(b) of the Code or not, he, in order to remove bis doubt, may himself proceed to hold an inquiry or get an enquiry held by any other subordinate Magistrate. It is, of course, true that, in a case where a protest petition is filed by the first informant before the Magistrate while the police investigation is on, the Magistrate is competent to get an enquiry made by a subordinate Magistrate or any other person to ascertain the truth or otherwise of the allegation contained in the protest petition, in order to decide whether a prirna facie case has been made out by the allegations contained in the protest petition; but such an enquiry is legal, because a protest petition is a petition of complaint and an enquiry in such a case is permissible under Section 202, of the Cofle.
15. As stated above, as the order of the learned Magistrate is not in conformity with law and seems to be in excess of the jurisdiction, the impugned order is hereby quashed in exercise of the powers under Section 482, Cr.P.C. 1973 to prevent abuse of the process of the Court, and to further the ends of justice.
16. The above order will not, in any way, stand in the way of the learned Magistrate in the proceeding with the case before him in accordance with law.