H.S. Thakur, J.
1. The following question has been referred to this Division Bench for decision:
Whether it is open to a Magistrate to take cognizance of an offence under Section 190(1)(b) of the Code on the basis of a police report submitted before him by the police after formation of the opinion that in view of the material collected during the course of investigation, no case is made out for sending the accused for trial.
2. The facts and circumstances under which the question has arisen may be briefly stated. One Basant Lai lodged the First Information Report No. 58 on 9th June, 1977, at Police Station, Theog, alleging offence under Section 348, I.P.C. against the present petitioners. As a result of the investigation conducted in the case, the Investigating Officer came to the conclusion that the case against the petitioners was politically motivated and that the allegations made in the FIR were all false. The Investigating Officer prepared his report under Section 173 of the Cr.P.C. recommending that the case registered against the petitioners be got cancelled and Shri Basant Lai at whose instance the FIR was registered be prosecuted under Section 182, I.P.C. The Investigating Officer forwarded the report to the Superintendent of Police, who agreeing with the recommendation of the Investigating Officer, passed that report on to the Judicial Magistrate, Theog, for cancellation of the case. It appears that along with the report were the documents as referred to in Sub-section (5) of Section 173 of the Cr.P.C. (the Code in short). The report as also the documehts attached therewith were considered by the Judicial Magistrate who did not agree with the conclusion drawn by the Investigating Officer, that no case was made out against the petitioners and that the allegations in the FIR were false. According to the learned Judicial Magistrate, the evidence collected during investigation furnished grounds for proceeding against the petitioners under Section 384, I.P.C. The learned Magistrate was also of the opinion that besides an offence under Section 384, I.P.C. sufficient grounds existed for proceeding against Zalam Singh petitioner under Section 352, I.P.C. as well. The learned Magistrate accordingly vide his order dated 17th Feb. 1978, took cognizance of the offence under Section 190(1)(b) of the Code and sum- moned the petitioners to appear before him. The learned Magistrate, after hearing the petitioners, framed charges under Section 384, I.P.C. against all the petitioners with an additional charge under Section 352, I.P.C. against Zalam Singh petitioner, on 21st Sept, 1978.
3. It has been urged on behalf of the petitioners that where the police on the basis of the material collected during investigation come to the conclusion that no case is made out for sending the accused before a Magistrate for trial and submit their report under Section 173(2) of the Code, to a Magistrate with their opinion and conclusion aforesaid, the Magistrate on the basis of such a police report has no jurisdiction to take cognizance of the offence investigated by the police. According to the learned Counsel for the petitioner, there are only two options open to the Magistrate on receipt of a police report of this type (known as final report), that is, (i) either to accept the police report and close the case or (ii) to order further investigation under Section 156(3) of the Code. In the latter event, in case even after further investigation, the police stick to their original opinion, the Magistrate will have no option but to close the case.
4. The learned Counsel for the petitioner in support of this view has placed reliance on Abhinandan Jha v. Dinesh Mishra : 1968CriLJ97 and K.S. Karai v. The State ILR (1973) Him Pra 25. Their Lordships of the Supreme Court in the aforesaid Abhinandan Jha's case laid down some broad propositions of law. The same are reproduced as under:-
1. The investigation, under the Code takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said 'opinion, by the police, is the final step in the investigation, and that final step is to be taken only by the police and no' other authority.
2. The Magistrate has no power to direct the police to submit a charge-sheet, when the police have submitted a final report that ho case is made out for sending the' adcu'sed1 for trial:
3. If the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, he may decline to accept the final report and direct the police to make further investigation, under Section 156(3) of the Code.
4. Notwithstanding the contrary opinion of the police, expressed in the final report, if the Magistrate has reason to suspect that an offence has been committea. he is entitled to take cognizance of the offence under Section 190(1)(c) of the Code.
This view was taken by the Supreme Court when the Code of 1898 (old Code) was in force. Section 190 of the old Code then was as follows :
190. Cognizance of offences 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) cr 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.
The Code was amended in 1974 and Section 190 now reads as under:
190(1). Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence:-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed,
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance undies; Sub-section (1) of such offences as are within his competence to inquire into or try.
It is apparent that in Section 190(1)(c) after the amendment, in 1074, the words 'or suspicion' have been deleted.
5. The other case relied upon by the learned Counsel for the petitioner,. K. S. Karai v. The State, referred to above, does lend support to the view propounded by the learned Counsel for the petitioner,
6. On the contrary, it is contended by the learned Deputy Advocate General that in the aforesaid decisions, the Courts did not consider the provisions s contained in S. MO (b) of the Code, It is further contended that in case a Magistrate is held to be bound by the final report of the- Investigating ' Officer, his position would be reduced to that of a rubber stamp and that, if it is so, there was no necessity of submitting the police report to the Magistrate who was not even required to apply his mind to such a report. It is pointed out by him that a police report has beon defined under Section 2(r) of the Code as follows'.
'Police Report' means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173.
It is contended by Shri L. S, Panta, the learned Dy. Advocate General that Calcutta High Court in a Full Bench, judgment, the majority view taken in A. K. Roy v. State of West Bengal AIR 19132 Cal 13b : 1962 (1) Cri LJ 2K5 wart as follows (at p. 311):
(i) When the police upon investigation has submitted a final report under Section 173, Cr.P.C. a Magistrate cannot direct the police to submit a charge-sheet.
(ii) The Magistrate can take cognizance on the statement of facts contained in final report, if those facts constitute, in the opinion of the Magistrate, an offence.
(iii) For the purpose of deciding whether cognizance of an offence should be taken, the Magistrate can look into the materials contained in the case diary and obtained during investigation, including statements recorded under Section 161, Cr, P.C. but he cannot take cognizance and issue process against the accused on the materials contained in the case diary alone, unless facts contained in the report under Section 173 constitute an offence.
Mr. Panta has also referred to a. decision. of the Division Bench of this Court in State v. Bhim Singh 1978 Cri LJ 1041. This was a case in which the police had submitted cancellation report but the Magistrate, after perusing the police papers, came to the conclusion that there was enough evidence against the accused for the offence in question. As such, the Magistrate took cognizance of the offence under Section 190 of the Code. The Magistrate thereafter asked the Assistant Public Prosecutor to furnish a copy of the challan to the accused. The Assistant Public Prosecutor, however, did not comply with the order and informed the Court that as the case was submitted to the Court for cancellation of the challan, he was not bound to make appearance in the Court and to conduct the prosecution. On this, the learned Magistrate reported the matter to the High Court that the A.P. p. had committed the contempt. The Court in that fase observed as under :
The learned Magistrate has considered the relevant provisions of law including the decision given by the Supreme Court in Abhinandan Jha v, Dinesh Mishra reported in AIR 1963 SC 117 : 1968 Cri LJ 97 wherein the Supreme Court has made (ii observation that if ultimately the Magistrate forms the opinion that the facts set out in the final report constitute an offence, he could take cognizance of 1he offence under Section 190(1)(b) of the Cr.P.C. notwithstanding the contrary opinion of the police expressed in the final report. According to the learned Magistrate, therefore, the matter fell within the purview of Clause (b) of Section 190(1) of the Cr.P.C. and, therefore, the respondent could not have refused to assist the Court and could not have also refused to conduct the case on behalf of the prosecution.
Again, reference has been made to a decision in Badarmal v. Roshanlal AIR 1971 Raj 18 : 1971 Cri LJ 239. The learned Judge while considering the decision of the Supreme Court in Abhinandan Jha's case above, observed as under (at p. 243):
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 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 190(1)(c) Criminal Procedure Code as well.
Again, in Raju v. State of Rajasthan 1980 Cri U 896 (Raj) though on different reasonings, the learned Judge, after considering the case law on the point and the meaning of 'knowledge' observed (at p. 901) as under:
To sum up, when a final report and police papers are placed before a Magistrate, either he can agree with it or he can take cognizance of the offence under Section 190(1)(c) of the Code, because of his own knowledge which he derives from the final report and the police papers submitted along with it. I, therefore, hold that the Magistrate certainly can take cognizance under Section 190(1)(c) of the new Code upon the information submitted by police officer that no offence has been committed if from the papers submitted along with the information the Magistrate derives the knowledge that an offence has been committed.
7. We have considered the respective contentions of the learned Counsel for the parties as also the case law placed before us. We are of the view that when an Investigating Officer submits a report before a Magistrate under Section 190(1)(b) of the Code, the Magistrate has not to proceed mechanically in agreeing with the opinion formed by the police, but has to apply his mind and peruse the papers placed before him. If there is material on record which satisfies the Magistrate that the accused should be sent for trial, he is within his jurisdiction to do so. It is not the intention of the Code that the report is to be placed before a Magistrate so that he may act administratively in the matter. On the contrary, a Magistrate has to act. judicially and has to examine the papers from that angle. The opinion formed by the police is not binding on a Magistrate. As such, with respect, we are unable to agree with the view taken by this Court in the aforesaid K.S. Karai's case ILR (1973) Him Pra 25.
8. For the foregoing reasons, we are of the view that it is open to a Magistrate to take cognizance of an offence under Section 190(1)(b) of the Code on the basis of a police report submitted before him by the police after formation of the opinion that in view of the material collected during the course of investigation, no case is made out for sending the accused for trial. As such, the question referred to us is answered in the affirmative.