MANU/SC/1197/2013 Equivalent Citation: 2013(14)SCALE209 IN THE SUPREME COURT OF INDIA Criminal Appeal No.

1969 of 2013 (Arising out of Special Leave Petition (Crl.) No. 1515 of 2013) Decided On: 21.11.2013 Appellants: B. Chandrika Vs. Respondent: Santhosh and Anr. Hon'ble Judges/Coram: K.S. Panicker Radhakrishnan and A.K. Sikri, JJ. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Hindu Marriage Act, 1955 - Section 13(1); Indian Penal Code (IPC) - Section 34, Indian Penal Code (IPC) - Section 420; Code of Criminal Procedure (CrPC) - Section 156(3), Code of Criminal Procedure (CrPC) - Section 173, Code of Criminal Procedure (CrPC) - Section 190(1) Cases Referred: Gopal Vijay Verma v. Bhuneshwar Prasad Sinha and Ors. MANU/SC/0069/1982 : (1982) 3 SCC 510; Kishore Kumar Gyanchandani v. G.D. Mehrotra MANU/SC/1478/2001 : AIR 2002 SC 483 : (2001) 10 SCC 59 Disposition: Appeal allowed JUDGMENT K.S. Panicker Radhakrishnan, J. 1. Leave granted. 2. The Appellant herein is the second accused in CC 1548/2011 pending on file of the Judicial Magistrate, First Class, Cherthalay, which was initiated by the Magistrate on a protest complaint filed by the first Respondent herein for the offences punishable under Section 420 read with Section 34 Indian Penal Code. Summons were issued to accused persons by the learned Magistrate vide order dated 22.11.2011. That order was challenged in Revision before the High Court of Kerala on the ground that the Magistrate was not justified in initiating proceedings after a refer report was submitted by the Police, after due enquiry. The High Court, however, dismissed the Revision Petition vide order dated 23rd November, 2012 stating that even if a refer report is filed by the police after conducting investigation, the Magistrate has the power to entertain a protest complaint and to issue summons to the accused and proceed in accordance with law. Aggrieved by the same, this appeal has been preferred. 3. This appeal has been preferred by the second accused, a divorced wife of the first accused. The first Respondent herein initially filed a complaint against accused Nos. 1 and 2 before the Police Station Mohamma which was registered as Crime No. 302/2010. The operative portion of the complaint is as follows:

The accused 1 and 2 with the ambition for immediate profits and the intention to make loss to the complainant, had given the commitment to the complainant in his rental residence house, owned by Kamal Travels, at Aryakara, Tannermukkam on 13.10.2006 to provide job to his uncle's son Sajimon, in Aushathi Govt. Department and taken 1 lac rupee from complainant, from Raveendran, R/o. Illathukalathil House, Kumarakam taken 1 lac rupees in the commitment to give job to his son Rathish from Prabhakaran, Puthanparambil House, Kumarakam, and from Arumukam, R/o. Kalathil House, Udayaperoor taken 50,000/- rupees each, and from K.P. Prasad, R/o. Tikarthil, Kothuruthi, taken 25,000/- rupees, thereafter the accused persons committed cheating without providing job to these persons.
4. An FIR was registered and the investigation ordered. Police conducted detailed investigation, relevant portion of the investigation report is as follows:

After completing the investigation and recording the statement of witnesses stated above, I came to the conclusion that the fact stated above was not occurred. The complainant through Adv. Rajan had made contact with the first accused Ramchandran Unni and given Rs. 12000/for the purpose of taking certified copy of the order passed in Water Authority case, which was decided by the Kerala High Court, wherein he relatives of the complainant were parties in the case for the purpose of being permanency in service. After two weeks, Ramchandran Unni had got the certified copies from High Court and given it to the complainant. Except this, the accused had not collected money from any person. During the period when money was given as stated by the complainant, the second accused was not in the residential house at Mohamma with the first accused because they were separated to each other and started living in the house at Thiruvananthapuram. It is also proved that the first accused had not received any amount from the complainant or any other persons for providing job to the relative of the complainant or any other person. The amount paid, as stated in the complaint, has not been

proved by the complainant and Ors. by submitting any reliable documents.

5. On the basis of the above-mentioned report, the police referred the case as not proved. Reference report was submitted to the Judicial Magistrate, First Class, Cherthalay for appropriate action. Later, the Respondent/claimant filed a protest complaint before the above-mentioned Court for cancellation of the reference report and for taking cognizance of the case, on which, as already stated, the Magistrate passed an order dated 22.11.2011, which reads as follows:

Heard the counsel for the Petitioner. Perused the evidence adduced and other case records, prima facie case alleged is made out. Hence, case is taken on file as CC No. 154810 for offence Under Section 420 and 34 Indian Penal Code. Issue summons to both accused. Take steps 28.1.12.
6. The power of the Magistrate to take cognizance of an offence on a complaint or a protest petition on the same or similar allegations even after accepting the final report cannot be disputed. It is settled law that when a complaint is filed and sent to police under Section 156(3) for investigation and then a protest petition is filed, the Magistrate after accepting the final report of the police under Section 173 and discharging the accused persons has the power to deal with the protest petition. However, the protest petition has to satisfy the ingredients of complaint before Magistrate takes cognizance under Section 190(1)(a) Code of Criminal Procedure. 7. This Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha and Ors. MANU/SC/0069/1982 : (1982) 3 SCC 510 held that the Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of police report. The judgment was followed by a Three-Judge Bench judgment of this Court in Kishore Kumar Gyanchandani v. G.D. Mehrotra MANU/SC/1478/2001 : AIR 2002 SC 483 : (2001) 10 SCC 59. 8. The High Court, in our view, rightly applied the legal principle, but omitted to consider the crucial question as to the involvement of the second accused, the wife of the first accused. In this connection, it is pertinent to refer to the statement of the complainant having been made during the investigation, which reads as follows:

Thereafter I, Kunjumon and Rajan were gone to Thiruvendipuram and met his wife then she told that they were separated to each other and she don't know nothing about him. I have given payment of Ramchandran Unni on the words of Rajan and Kunjumon. I don't know where he is now. At the time of paying the amount I have not seen his wife or not talked to her. I don't know anything about him so I have given this complaint.
9. The above statement of the complainant clearly indicates that money was entrusted to the first accused (the husband of A-2) and not to A-2. Complainant has also stated that at the time of paying the amount, the wife was not seen. Police on investigation, noticed that during the period when money was entrusted to the first accused, the second accused was riot in the residential house of first Respondent. Investigation revealed that they were separated and second accused started living at Thiruvananthapuram. 10. The Appellant has also produced a copy of decree of divorce dated 25.1.2010 before the Court, which will indicate that the second accused had obtained a decree of divorce against the first accused on the ground of cruelty under Section 13(1)(a) of the Hindu Marriage Act, 1955. Considering the fact that the second accused had no role, even according to the complainant, there is no reason to prosecute the second accused. In our view, the Magistrate has not considered this vital aspect when the protest petition was considered by him. 11. Magistrate has to exercise judicial discretion and apply his mind to the contents of the petition. The refer report as well as the statement of the complainant would indicate that no offence has been made out so far as the second accused is concerned since, admittedly, no money was entrusted to her and that second accused is the divorced wife of the first accused. That being the factual situation, we are inclined to allow the appeal so far as the second accused is concerned and the summons issued against the second accused would stand quashed. However, it is open to the Magistrate to proceed against the first accused. 12. The appeal is allowed, as above. Manupatra Information Solutions Pvt. Ltd.
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MANU/SC/1373/2011 Equivalent Citation: 2012(1)ACR1173(SC), 2012(3)B.L.J.60, 2012BomCR(Cri)818, 2012(1)Crimes16, [2012(1)JCR218(SC)], JT2011(13)SC319, (2012)2MLJ383(SC), 2012(1)PLJR139, 2012(1)RCR(Criminal)14, 2011(13)SCALE75, (2012)1SCC130, 2012(1)UC195 IN THE SUPREME COURT OF INDIA Criminal Appeal No. 2160 of 2011 (Arising out of SLP (Crl.) No. 2768 of 2010) Decided On: 22.11.2011 Appellants: Shiv Shankar Singh Vs. Respondent: State of Bihar and Anr. Hon'ble Judges/Coram: Balbir Singh Chauhan and T.S. Thakur, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Gaurav Agrawal, Adv. For Respondents/Defendant: Awanish Sinha, Gopal Singh and Ravi Bhushan, Advs. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Indian Penal Code, 1860 (IPC) - Section 34, Indian Penal Code, 1860 (IPC) - Section 302, Indian Penal Code, 1860 (IPC) - Section 395, Indian Penal Code, 1860 (IPC) - Section 396, Indian Penal Code, 1860 (IPC) - Section 398, Indian Penal Code, 1860 (IPC) - Section 506; Code of Criminal Procedure, 1973 (CrPC) - Section 156(3), Code of Criminal Procedure, 1973 (CrPC) Section 173,Code of Criminal Procedure, 1973 (CrPC) - Section 203, Code of Criminal Procedure, 1973 (CrPC) - Section 204 Cases Referred: Joy Krishna Chakraborty and Ors. v. The State and Anr. MANU/WB/0325/1980 : 1980 Cri. L.J. 482; Ram Lal Narang v. State (Delhi Admn.) MANU/SC/0216/1979 : AIR 1979 SC 1791; Sudhir and Ors. v. State of M.P. AIR 2001 SC 826; T.T. Antony v. State of Kerala and Ors. MANU/SC/0365/2001 : AIR 2001 SC 2637; Upkar Singh v. Ved Prakash and Ors. MANU/SC/0733/2004 : AIR 2004 SC 4320;Babubhai v. State of Gujarat and Ors. MANU/SC/0643/2010 : (2010) 12 SCC 254); Bhagwant Singh v. Commissioner of Police and Anr. MANU/SC/0063/1985 : AIR 1985 SC 1285; Bindeshwari Prasad Singh v. Kali Singh MANU/SC/0100/1976 : AIR 1977 SC 2432; Pramatha Nath Talukdar v. Saroj Ranjan Sarkar MANU/SC/0149/1961 : AIR 1962 SC 876; Mahesh Chand v. B. Janardhan Reddy and Anr.MANU/SC/1111/2002 : AIR 2003 SC 702; Poonam Chand Jain and Anr. v. Fazru AIR 2005 SC 38; Jatinder Singh and Ors. v. Ranjit Kaur MANU/SC/0753/2001 : AIR 2001 SC 784; Ranvir Singh v. State of Haryana MANU/SC/1592/2009 : (2009) 9 SCC 642 Prior History: From the Judgment and Order dated 06.05.2009 of the High Court of Judicature at Patna in Cr. Misc. No. 36335 of 2008 (MANU/BH/1607/2010) Disposition: Appeal allowed Citing Reference: Discussed 7 Mentioned 6 Case Note: Code of Criminal Procedure, 1973 - Sections 190 (1), 200 and 202--F.I.R. for offence under Section 395, IPC-Final report--Protest petition--Second complaint--No bar to entertain it on same facts in exceptional circumstances--Similarly, second protest petition can also be entertained only under exceptional circumstances--First protest petition filed prior to filing of final report--Not competent--Hence, second protest petition maintainable-High Court wrong in holding otherwise--Order of High Court set aside--And that of Magistrate restored. The law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the Court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.

The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of Cr. P.C. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second Protest Petition can also similarly be entertained only under exceptional circumstances. In case the first Protest Petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the Court, a fresh Protest Petition is filed giving full details, the Court fails to understand as to why it should not be maintainable. JUDGMENT B.S. Chauhan, J. 1. This appeal has been preferred against the judgment and order dated 6.5.2009 passed by the High Court of Judicature at Patna in Criminal Miscellaneous No. 36335 of 2008, by which the cognizance taken by the Magistrate vide order dated 2.8.2008 against the Respondent No. 2 under Section 395 of the Indian Penal Code, 1860 (hereinafter called `Indian Penal Code?) has been quashed. 2. Facts and circumstances giving rise to this case are that:

A. A dacoity was committed in the house of present Appellant Shivshankar Singh and his brother Kameshwar Singh on 6.12.2004 Where in Gopal Singh son of Kameshwar Singh was killed by the dacoits and lots of valuable properties were looted. The police reached the place of occurrence at about 3.00 AM i.e. about 2 hours after the occurrence. An FIR No. 147/2004 dated 6.12.2004 was lodged by the Appellant naming Ramakant Singh and An and Kumar Singh alongwith 15 other persons under Sections 396/398 Indian Penal Code. B. However, Kameshwar Singh, the real brother of the Appellant and father of Gopal Singh, the deceased, approached the court by filing a case under Section156(3) of the Code of Criminal Procedure, 1973, (hereinafter called `Code of Criminal Procedure.?). Appropriate orders were passed therein and in pursuance of which FIR No. 151/2004 was lodged on 29.12.2004 in respect of the same incident with the allegations that the present Appellant, Bhola Singh, son of the second complainant and Shankar Thakur, the maternal uncle of Bhola Singh had killed Gopal Singh as the accused wanted to grab the immovable property. C. Investigation in pursuance of both the reports ensued. When the investigation in pursuance of both the FIRs was pending, the Appellant filed Protest Petition on 4.4.2005, but did not pursue the matter further. The court did not pass any order on the said petition. After completing investigation in the Report dated 6.12.2004, the police filed Final Report under Section 173 Code of Criminal Procedure. on 9.4.2005 to the effect that the case was totally false and Gopal Singh had been killed for property disputes. D. After investigating the other FIR filed by Kameshwar Singh, father of the deceased, charge-sheet was filed under Sections 302, 302/34, 506 Indian Penal Code etc. on 29.8.2005 against the Appellant, Bhola Singh, son of complainant and others. The matter stood concluded after trial in favour of the accused persons therein. E. It was on 22.9.2005, the Appellant filed a second Protest Petition in respect of the Final Report dated 9.4.2005. After considering the same and examining a very large number of witnesses, the Magistrate took cognizance and issued summons to Respondent An and Kumar Singh and Ors. vide order dated 2.8.2008. F. Being aggrieved, the Respondent An and Kumar Singh filed Criminal Miscellaneous No. 36335 of 2008 for quashing the order dated 2.8.2008 which has been allowed by the High Court on the ground that second Protest Petition was not maintainable and the Appellant ought to have pursued the first Protest Petition dated 4.4.2005. Hence, this appeal.
3. Shri Gaurav Agrawal, learned Counsel appearing for the Appellant has submitted that the High Court failed to appreciate that the so-called first Protest Petition having been filed prior to filing the Final Report was not maintainable and just has to be ignored. The learned Magistrate rightly did not proceed on the basis of the said Protest Petition and it remained merely a document in the file. The second petition was the only Protest Petition which could be entertained as it had been filed subsequent to filing the Final Report. The High Court further committed an error observing that the Magistrate?s order of summoning the Respondent No. 1 was vague and it was not clear as in which Protest Petition the order had been passed. More so, the facts of the case in Joy Krishna Chakraborty and Ors. v. The State and Anr. MANU/WB/0325/1980 : 1980 Cri. L.J. 482, decided by the Division Bench of the Calcutta High Court and solely relied by the High Court were distinguishable as in the said case the first Protest Petition had been entertained by the Magistrate and an order had been passed. Protest Petition is to be treated as a complaint and the law does not prohibit filing and entertaining of second complaint even on the same facts in certain circumstances. Thus, the judgment and order impugned is liable to be set aside. 4. On the contrary, Shri Awanish Sinha and Shri Gopal Singh, Learned Counsel appearing for the Respondent have vehemently opposed the appeal contending that the second petition was not maintainable and the Appellant ought to have pursued the first Protest Petition. The High Court has rightly observed that the order of the Magistrate summoning the Respondent No. 1 and Ors. was totally vague. Even otherwise, as the Appellant himself had faced the criminal trial in respect of the same incident, he cannot be held to be a competent/eligible person to file the Protest Petition. He had purposely lodged the false FIR promptly after committing the offence himself. Therefore, the facts of

the case do not warrant any interference by this Court and the appeal is liable to be dismissed. 5. We have considered the rival submissions made by the Learned Counsel for the parties and perused the record. 6. We do not find any force in the submission made on behalf of the Respondent that as in respect of same incident i.e. dacoity and murder of Gopal Singh, the Appellant himself along with others is facing criminal trial, proceedings cannot be initiated against the Respondent No. 1 at his behest as registration of two FIRs in respect of the same incident is not permissible in law, for the simple reason that law does not prohibit registration and investigation of two FIRs in respect of the same incident in case the versions are different. The test of sameness has to be applied otherwise there would not be cross cases and counter cases. Thus, filing another FIR in respect of the same incident having a different version of events is permissible. (Vide: Ram Lal Narang v. State (Delhi Admn.) MANU/SC/0216/1979 : AIR 1979 SC 1791; Sudhir and Ors., v. State of M.P. AIR 2001 SC 826; T.T. Antony v. State of Kerala and Ors. MANU/SC/0365/2001 : AIR 2001 SC 2637; Upkar Singh v. Ved Prakash and Ors. MANU/SC/0733/2004 : AIR 2004 SC 4320; and Babubhai v. State of Gujarat and Ors. MANU/SC/0643/2010 : (2010) 12 SCC 254). 7. Undoubtedly, the High Court has placed a very heavy reliance on the judgment of the Calcutta High Court in Joy Krishna Chakraborty and Ors. (supra), wherein the Protest Petition dated 19.3.1976 was entertained by the Magistrate issuing direction to the Officer-in-Charge of the Khanakul Police Station under Section 156(3) Code of Criminal Procedure. to make the investigation and submit the report to the court concerned by 10.4.1976. The Officer-in-Charge of the said police station did not carry out any investigation on the ground that the incident had occurred outside the territorial jurisdiction of the said police station. The second Protest Petition filed by the same complainant on 23.3.1976 was entertained by the learned Magistrate. In fact, it was in this factual backdrop that the Calcutta High Court held that the matter could have been proceeded with on the basis of the first Protest Petition itself by the Magistrate and second Protest Petition could not have been entertained. 8. The facts of the present case are completely distinguishable. Therefore, the ratio of the said judgment has no application in the facts of this case. 9. In Bhagwant Singh v. Commissioner of Police and Anr. MANU/SC/0063/1985 : AIR 1985 SC 1285, this Court dealt with an issue elaborately entertaining the writ petition and accepting the submission in regard to acceptance of the Final Report to the extent that if no case was made out by the Magistrate, it would be violative of principles of natural justice of the complainant and therefore before the Magistrate drops the proceedings the informant is required to be given hearing as the informant must know what is the result of the investigation initiated on the basis of first FIR. He is the person interested in the result of the investigation. Thus, in case the Magistrate takes a view that there is no sufficient ground for proceeding further and drops the proceedings, the informant would certainly be prejudiced and therefore, he has a right to be heard. 10. In Bindeshwari Prasad Singh v. Kali Singh MANU/SC/0100/1976 : AIR 1977 SC 2432, this Court held that the second complaint lies if there are some new facts or even on the previous facts if the special case is made out. Similarly, in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar MANU/SC/0149/1961 : AIR 1962 SC 876, this Court has held as under: An order of dismissal under Section 203 of the Code of Criminal Procedure, is, however, no bar

to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into.
11. After considering the aforesaid judgment along with various other judgments of this Court, in Mahesh Chand v. B. Janardhan Reddy and Anr. MANU/SC/1111/2002 : AIR 2003 SC 702, this Court held as under:

..It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 Code of Criminal Procedure may take cognizance of an offence and issue process if there is sufficient ground for proceeding.
In Poonam Chand Jain and Anr. v. Fazru AIR 2005 SC 38, a similar view has been re-iterated by this Court. 12. In Jatinder Singh and Ors. v. Ranjit Kaur MANU/SC/0753/2001 : AIR 2001 SC 784, this Court held that dismissal of a complaint on the ground of default was no bar for a fresh Complaint being filed on the same facts. Similarly in Ranvir Singh v. State of Haryana MANU/SC/1592/2009 : (2009) 9 SCC 642, this Court examined the issue in the backdrop of facts that the complaint had been dismissed for the failure of the complainant to put in the process fees for effecting service and held that in such a factsituation second complaint was maintainable. 13. Thus, it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full

consideration of the case of the complainant on merit. 14. The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of Code of Criminal Procedure. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second Protest Petition can also similarly be entertained only under exceptional circumstances. In case the first Protest Petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh Protest Petition is filed giving full details, we fail to understand as to why it should not be maintainable. 15. The instant case is required to be decided in the light of the aforesaid settled legal propositions. Order dated 2.8.2008 passed by the Magistrate concerned is based on the depositions made by the Appellant-Shivshankar Singh, and a very large number of witnesses, namely, Sonu Kumar Singh, Suman Devi, Nirmala Devi, Ganesh Kumar, Udai Kumar Ravi, Ram Achal Singh, Jateshwar Acharya, Neeraj Kumar Singh, Krishna Devi and Dr. Narendra Kumar. More so, the record of the Sessions Trial No. 866 of 2005, wherein the Appellant himself has been put to trial was also summoned and examined by the learned Magistrate. Thus, the Magistrate further took note of the fact that for the same incident, trial was pending in another court. After appreciating the evidence of the complainant and other witnesses deposed in the enquiry, the learned Magistrate passed the following order:

On the basis of aforesaid discussion, I find that there are materials available on the record to proceed against the accused person. A prima-facie case under Section395 Indian Penal Code has been made out against all the accused person of this case. O/c is directed to issue summons on filing of the requisite. Put up the record on 13.8.2008 for filing of the requisites.
16. The High Court without taking note of the aforesaid evidence set side the order of the Magistrate on a technical ground that the second Protest Petition was not maintainable without considering the fact that the first Protest Petition having been filed prior to filing of the Final Report was not competent. More so, the High Court without any justification made the following remarks:

The Court can only record that the learned Judicial Magistrate has not conducted himself in a fair manner because he has intentionally left the impugned order vague as to which protest petition he was acting upon, so that advantage may accrue to Opposite Party No. 2.
17. In our opinion, there was no occasion for the High Court to make such sweeping remarks against the Magistrate and the same remain unjustified and unwarranted in the facts and circumstances of the case. 18. In view of the above, the appeal succeeds and is allowed. The order impugned of the High Court is set aside and the order of the Magistrate is restored. Respondent No. 1 is directed to appear before the Magistrate on 1.12.2011 and the learned Magistrate is requested to proceed in accordance with law. However, we clarify that any observation made in this judgment shall not adversely prejudice the cause of the Respondent to seek any further relief permissible in law as the said observations have been made only to decide the controversy involved herein. Manupatra Information Solutions Pvt. Ltd.
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MANU/SC/0183/2010

Equivalent Citation: AIR2010SC1877, 2010(2)ALD(Cri)520, 2010CriLJ2441, 2010GLH(243)2, JT2010(3)SC254, 2010(2)SCALE166, (2010)4SCC185, 2010(1)UC656

2010GLH(2)243, [2010]3SCR522,

IN THE SUPREME COURT OF INDIA Criminal Appeal No. 548 of 2010 (Arising out of Special Leave Petition (Crl) No. 8600 of 2008) Decided On: 19.03.2010 Appellants: Rameshbhai Pandurao Hedau Vs. Respondent: State of Gujarat Hon'ble Judges/Coram: Altamas Kabir and Cyriac Joseph, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Chaitanya Joshi, Nachiketa Joshi, Sudhakar Joshi and Ranjith K.C., Advs. For Respondents/Defendant: Meenakshi Lekhi, Hemantika Wahi, Somnath Padan and Jesal, Advs. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Indian Penal Code (IPC) - Section 114, Indian Penal Code (IPC) - Section 120B, Indian Penal Code (IPC) - Section 302; Code of Criminal Procedure (CrPC) - Section 156, Code of Criminal Procedure (CrPC) - Section 156(3), Code of Criminal Procedure (CrPC) - Section 173(2), Code of Criminal Procedure (CrPC) - Section 173(8), Code of Criminal Procedure (CrPC) - Section 190, Code of Criminal Procedure (CrPC) - Section 193, Code of Criminal Procedure (CrPC) - Section 200, Code of Criminal Procedure (CrPC) - Section 202, Code of Criminal Procedure (CrPC) - Section 202(1), Code of Criminal Procedure (CrPC) - Section 202(2), Code of Criminal Procedure (CrPC) - Section 203 Cases Referred: Suresh Chand Jain v. State of M.P. MANU/SC/0014/2001 : (2001) 2 SCC 628; Dharmeshbhai Vasudevbhai and Ors. v. State of Gujarat and Ors. MANU/SC/0749/2009 : (2009) 6 SCC 576;Devarapalli Lakshminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. MANU/SC/0108/1976 : (1976) 3 SCC 252; Dilawar Singh v. State of Delhi MANU/SC/3678/2007 : (2007) 12 SCC 641;Mohd. Yousuf v. Afaq Jahan (Smt.) and Anr. MANU/SC/0189/2006 : (2006) 1 SCC 627 Prior History: From the Judgment and Order dated 02.07.2008 of the High Court of Gujarat in Special Criminal Application No. 1458 of 2007 Disposition: Appeal dismissed Citing Reference:

Discussed 5 Case Note: Criminal Procedure Code 1973--Section 156(3) and 193-- Power of Court--Held--Under Section 156(3) Cr.P.C. Magistrate can treate the petition as complaint under Section 200 Cr.P.C. and kept the matter with himself for an enquiry in the facts of the case. [Para--18]

JUDGMENT Altamas Kabir, J. 1. Leave granted. 2. The Appellant is the elder brother of the deceased, Kamleshbhai, whose dead body was found near Govindbhai Ghat on Sarkhej Narol Highway on 17 th October, 2006. At the time of his death, Kamleshbhai was serving with M/s Airstate International Courier and his usual working time was from 1.00 p.m. to 7.00 p.m. On 17th October, 2006, on receipt of information, the Appellant went to the above-mentioned spot and found the dead body of his brother. On 17 th October, 2006 itself, postmortem was conducted by the Medical Officer of the Civil Hospital, Ahmedabad. After the post-mortem examination was conducted, the opinion of the doctor as to the cause of death was kept pending till the reports from the FSL and HTP were made available. On 21 st December, 2006, upon receipt of the said reports, the Medical Officer was of the opinion that the cause of death of the deceased was on account of cardio-respiratory arrest due to lungs pathology. In other words, Kamleshbhai's death was not found to be unnatural but as a result of natural causes. The Investigating Officer had also occasion to record the statements of the Appellant, his relatives and others. On the basis of the said statements and the report of the post- mortem examination, the investigation was closed by the Investigating Officer attached to Vatva Police Station. 3. Dissatisfied with the closure of the investigation, the Appellant filed a complaint before the Metropolitan Magistrate No. 20 at Ahmedabad on 17 th April, 2007, which was numbered as Enquiry Case No. 17 of 2007. In the complaint, the Appellant alleged that offences had been committed under Sections 302, 114 read with Section 120B Indian Penal Code and prayed for an order to be passed for an inquiry under Section 156(3) Cr.P.C. for taking action against the accused. Instead of directing an investigation to be conducted by higher police officials under Section 156(3) Cr.P.C., the learned Metropolitan Magistrate by his order dated 17 th April, 2007, postponed the issuance of process and kept the complaint for Court inquiry, in accordance with Section 202 Cr.P.C. 4. The Appellant herein filed a Criminal Writ Petition, being Special Criminal Application No. 1458 of 2007 before the Gujarat High Court, which was dismissed in limine on 2 nd July, 2008, by a learned Single Judge upon holding that no case had been made out for directing investigation under Section 156(3) Cr.P.C. It is the said order of the High Court which has been questioned in the present appeal. 5. Appearing in support of the appeal, Mr. Nachiketa Joshi, Advocate, submitted that the learned Metropolitan Magistrate, Ahmedabad, had committed an error in rejecting the Appellant's prayer for an investigation under Section 156(3) of the Code and taking recourse to Section 202 of the Code instead. It was submitted that having regard to the serious nature of the offence complained of, an inquiry by the Court under Section 202 Cr.P.C. would not be apposite in preference to an investigation by the higher police officials under Section 156(3) of the Code. Mr. Joshi submitted that the order of the learned Metropolitan Magistrate, as well as that of the High Court, failed to recognize the gravity of the offence and the attempt made to cover up the incident which has caused a miscarriage of justice. Mr. Joshi further submitted that the Courts were ill-equipped to deal with an investigation which would be required to be undertaken in the instant case and, accordingly, the orders passed by the learned Magistrate, as well as the High Court, were liable to be set aside with a direction to higher officials of the police in the District to conduct a proper investigation under Section 156(3) of the Code. 6. In support of his aforesaid submissions, Mr. Joshi referred to the decision of this Court in Suresh Chand Jain v. State of M.P. MANU/SC/0014/2001 : (2001) 2 SCC 628, wherein while considering the power of the Magistrate under Section 156(3) Cr.P.C., it was held that such power is vested in the Magistrate before taking cognizance of the offence. In such a case, before taking cognizance of an offence the Magistrate always has the jurisdiction to direct an investigation under Section 156(3) of the Code on a fresh complaint. 7. Mr. Joshi also referred to the decision of this Court in Dharmeshbhai Vasudevbhai and Ors. v. State of Gujarat and Ors. MANU/SC/0749/2009 : (2009) 6 SCC 576, wherein, while considering the power of the Magistrate to recall an order for investigation passed by him under Section 156(3) Cr.P.C., this Court appears to have taken the same view as was expressed in Suresh Chand Jain's case (supra) to the effect that before taking cognizance the Magistrate can invoke his powers under Section 156(3) Cr.P.C. but once he takes cognizance, he has to proceed in accordance with the procedure embodied in Chapter XV thereof, including the power to conduct an inquiry or investigation under Section 202 of the Code. 8. Mr. Joshi's submissions were vehemently opposed on behalf of the State of Gujarat by Ms. Meenakshi Lekhi, Advocate, who contended that once a final report had been filed by the investigating authorities under Section 173(2) Cr.P.C., there was no further scope for an investigation under Section 156(3) Cr.P.C. on the basis of a fresh complaint and the only remedy available to the complainant would be by way of a complaint under Section 200 Cr.P.C. Ms. Lekhi submitted that the scheme of the Code of Criminal Procedure was such that once an investigation on a complaint had been concluded and a final report had been submitted by the investigating agency to the Magistrate

under Section 173(2) of the Code, any fresh complaint by way of a protest petition could only be entertained under Section 200 and if the Magistrate so thought fit, an inquiry or investigation could be conducted under Section 202 of the Code. Ms. Lekhi submitted that the provisions of Section202 Cr.P.C. had been correctly invoked by the Magistrate and the prayer for investigation under Section 156(3) of the Code made by the Appellant had been rightly rejected. 9. In support of her submissions, Ms. Lekhi firstly referred to the decision of this Court in Devarapalli Lakshminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. MANU/SC/0108/1976 : (1976) 3 SCC 252. Reference was made to paragraph 17 of the said judgment wherein the distinction between an investigation under Section 156(3) of the Code and one under Section 202(1) of the Code has been highlighted. It was explained that while Section 156(3) occurs in Chapter XII of the Code, which deals with the powers of the police to investigate into an offence, Section 202 thereof deals with complaints made to Magistrates where the power to direct an inquiry operates in a different sphere. While the power to direct a police investigation under Section 156(3) is exercisable at the pre-cognizance stage, the power to direct an investigation or an inquiry under Section 202(1) is exercisable at the postcognizance stage when the Magistrate is in seisin of the case. Ms. Lekhi contended that since the police had already conducted an investigation and had filed the final report under Section 173(2) of the Code and the same having been accepted by the learned Magistrate, the only course open to the appellant was to file a fresh complaint under Section 200 of the Code. Since the appellant had filed a fresh complaint by way of a protest petition, the learned Magistrate had rightly invoked the provisions of Section 202 to order an inquiry without directing a fresh investigation as prayed for by the appellant. 10. We have carefully considered the submissions made on behalf of the respective parties and we find no reason to interfere with the order of the High Court impugned in the appeal. From the scheme of Chapters XII and XV of the Code of Criminal Procedure, it is quite clear that the two contemplate two different situations. Chapter XII deals with the power of the police authorities to investigate in respect of cognizable offence on receipt of information thereof. Section 156, which forms part of Chapter XII, deals with the power of an Officer in-charge of a police station to investigate cognizable cases and provides as follows:

156. Police Officer's power to investigate cognizable cases.- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.

11. It will thus be seen that the power of the police authorities to investigate a cognizable offence is not dependent on an order of the Magistrate. At the same time, such power may be exercised by the officer concerned on an order being passed by any Magistrate empowered under Section 190 of the Code for making such an investigation. Chapter XII deals with the conduct of investigation of both cognizable and non- cognizable offences and the steps to be taken in that regard culminating in the filing of the report of the investigation on completion thereof under Section 173(2) of the Code. At this stage it may also be indicated that under Sub-section (8) of Section 173 the police is empowered to conduct further investigation in respect of an offence even after a report under Sub-section (2) is forwarded to the Magistrate. 12. However, all these steps are to be taken by the learned Magistrate prior to taking cognizance of the offence. On the other hand, Chapter XV deals with complaints filed before the Magistrate for taking cognizance of an offence. It has been sought to be urged by Ms. Lekhi, learned Counsel appearing for the State of Gujarat, that once an investigation is undertaken by the police and a final report is filed, no further order could be made on a protest petition, which is in the nature of a fresh complaint for a further investigation under Section 156(3) of the Code. 13. The settled legal position has been enunciated by this Court in several decisions to which we shall refer presently. The Courts are ad idem on the question that the powers under Section 156(3)can be invoked by a learned Magistrate at a pre- cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint but before issuance of process. Such a view has been expressed in Suresh Chand Jain's case (supra) as well as in Dharmeshbhai Vasudevbhai's case (supra) and the case of Devarapalli Lakshminarayana Reddy's case (supra). 14. The three aforesaid cases have been cited on behalf of the parties. We may also refer to the decision of this Court in Dilawar Singh v. State of Delhi MANU/SC/3678/2007 : (2007) 12 SCC 641, where the difference in the investigative procedure in Chapters XII and XV of the Code has been recognized and in that case this Court also appears to have taken the view that any Judicial Magistrate, before taking cognizance of an offence, can order investigation under Section 156(3) of the Code and in doing so, he is not required to examine the complainant since he was not taking cognizance of any offence therein for the purpose of enabling the police to start investigation. Reference has been made to the decision of this Court in Suresh Chand Jain's case (supra). In other words, as indicated in the decisions referred to hereinabove, once a Magistrate takes cognizance of the offence, he is, thereafter, precluded from ordering an investigation under Section 156(3) of the Code. 15. It is now well-settled that in ordering an investigation under Section 156(3) of the Code, the Magistrate is not empowered to take cognizance of the offence and such cognizance is taken only on the basis of the complaint of the facts received by him which includes a police report of such facts or information received from any person, other than a police officer, under Section 190 of the Code. Section 200 which falls in Chapter XV, indicates the manner in which the cognizance has to be taken and that the Magistrate may also inquire into the case himself or direct an investigation to be made by

a police officer before issuing process. 16. Reference was also made to the decision of this Court in Mohd. Yousuf v. Afaq Jahan (Smt.) and Anr. MANU/SC/0189/2006 : (2006) 1 SCC 627, where it has been held that when a Magistrate orders investigation under Chapter XII of the Code, he does so before he takes cognizance of the offence. Once he takes cognizance of the offence, he has to follow the procedure envisaged in Chapter XV of the Code. The inquiry contemplated under Section 202(1) or investigation by a police officer or by any other person is only to help the Magistrate to decide whether or not there is sufficient ground for him to proceed further on account of the fact that cognizance had already been taken by him of the offence disclosed in the complaint but issuance of process had been postponed. 17. The law is well-settled that an investigation ordered by the Magistrate under Chapter XII is at the pre-cognizance stage and the inquiry and/or investigation ordered under Section 202 is at the postcognizance stage. What we have to consider is whether the Magistrate committed any error in refusing the appellant's prayer for an investigation by the police under Section 156(3) of the Code and resorting to Section 202 of the Code instead, since both the two courses were available to him. 18. The power to direct an investigation to the police authorities is available to the Magistrate both under Section 156(3) Cr.P.C. and under Section 202 Cr.P.C. The only difference is the stage at which the said powers may be invoked. As indicated hereinbefore, the power under Section 156(3) Cr.P.C. to direct an investigation by the police authorities is at the pre-cognizance stage while the power to direct a similar investigation under Section 202 is at the post-cognizance stage. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the Appellant as a complaint under Section 200 of the Code and has thereafter proceeded under Section 202 Cr.P.C. and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of Sub-section (2) of Section 202 the learned Magistrate deems it fit, he may either dismiss the complaint under Section 203 or proceed in terms of Section 193 and commit the case to the Court of Sessions. 19. We, therefore, see no reason to interfere with the order of the learned Magistrate and the views expressed by the High Court in the impugned order on the invocation of jurisdiction by the learned Magistrate under Section 202 Cr.P.C. The appeal is, accordingly, dismissed. Manupatra Information Solutions Pvt. Ltd.
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MANU/SC/1486/2009 Equivalent Citation: 2009(57)BLJR2945,

2010CriLJ2245,

2009(4)PLJR169,

2009(11)SCALE395,

(2009)9SCC129, [2009]14SCR276, 2009(8)UJ3984

IN THE SUPREME COURT OF INDIA Special Leave Petition (Crl.) No. 3062 of 2007 Decided On: 13.08.2009 Appellants: Reeta Nag Vs. Respondent: State of West Bengal and Ors. Hon'ble Judges/Coram: Altamas Kabir and Cyriac Joseph, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Jaideep Gupta, Sr. Adv., Raja Chatterjee and Arindam Mitra, Advs. for G.S. Chatterjee, Adv For Respondents/Defendant: K.K. Venugopal, Sr. Adv., Ajay Kr. Jha, Divya Sinha, Goopal Sankaranarayanan, Advs. for Parekh & Co., Tara Chandra Sharma and Neelam Sharma, Advs. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure (CrPC) - Section 156(3), Code of Criminal Procedure (CrPC) - Section 167(2), Code of Criminal Procedure (CrPC) - Section 173, Code of Criminal Procedure (CrPC) - Section 173(2), Code of Criminal Procedure (CrPC) - Section 173(6), Code of Criminal Procedure (CrPC) Section 173(8), Code of Criminal Procedure (CrPC) - Section 190, Code of Criminal Procedure (CrPC) Section 200, Code of Criminal Procedure (CrPC) - Section 204, Code of Criminal Procedure (CrPC) Section 319, Code of Criminal Procedure (CrPC) - Section 362, Code of Criminal Procedure (CrPC) Section 482; Indian Penal Code (IPC) - Section 120B, Indian Penal Code (IPC) - Section 467, Indian Penal Code (IPC) - Section 468 Cases Referred: Master Construction Co. (P) Ltd.'s case MANU/SC/0304/1965 : AIR 1966 SC 1047; Sankatha Singh' s case AIR 1962 SC 1028; Sooraj Devi v. Pyare Lal and Anr. MANU/SC/0228/1981 : (1981) 1 SCC 500; Union Public Service Commission v. S. Papaiah and Ors. MANU/SC/0961/1997 : (1997) 7 SCC 614; State of Rajasthan v. Aruna Devi and Ors. MANU/SC/0515/1995 : (1995) 1 SCC 1;Randhir Singh Rana v. State (Delhi Administration) MANU/SC/0161/1997 : (1997) 1 SCC 361; Adalat Prasad v. Rooplal Jindal MANU/SC/0688/2004 : (2004) 7 SCC 338; K.M. Mathew v. State of Kerala MANU/SC/0434/1992 : (1992) 1 SCC 217; Dinesh Dalmia v. CBI MANU/SC/7924/2007 : (2007) 8 SCC 770 Prior History: From the Judgment and Order dated 31.01.2007 of the High Court of Calcutta in C.R.R. No. 2318 of 2004 Disposition: Petition dismissed Citing Reference:

Discussed 4 Mentioned 5 Case Note: Criminal - Charge - Framing thereof - Reinvestigation Sections 173(2)and 173(8) of the Code of Criminal Procedure, 1973 - Reinvestigation order under Section 173(8)Code of Criminal Procedure, 1973 by Judicial Magistrate - Application filed by Respondents against the said Order before the High Court - High court set aside the order Hence, the present Petition - Whether the learned Magistrate had jurisdiction to order re-investigation under Section 173(8) of Code of Criminal Procedure - Held - Magistrate can order further investigation under section 173(8) after framing of charges but cannot order for reinvestigation Magistrate cannot suo moto direct a further investigation under Section

173(8) - No application for further investigation by investigating authority it was only upon the application filed by the de facto complainant under Section 173(8) - Such a course of action was beyond the jurisdictional competence of the Magistrate - Petition Dismissed ORDER Altamas Kabir, J. 1. In this Special Leave Petition we are called upon to decide whether after charge-sheet has been filed by the investigating agency under Section 173(2) of the Code of Criminal Procedure, hereinafter referred to as "Cr.P.C", and charge has been framed against some of the accused on the basis thereof and the other co-accused have been discharged, the Magistrate can direct the investigating authorities to conduct a re-investigation or even further investigation under Sub-section (8) of Section 173 Cr.P.C. 2. In the instant case, on the basis of a charge-sheet filed by the Investigating Officer, the SubDivisional Judicial Magistrate, Asansol, West Bengal, on 9th July, 2004, took cognizance of offences alleged to have been committed by six of the original sixteen accused persons under Sections 467/468/120B of the Indian Penal Code. The other ten accused persons were discharged on the prayer of the Investigating Officer. Subsequently, on 20th August, 2004, while considering an application filed by the de facto complainant, who is the petitioner before us, under Section 173(8) Cr.P.C., praying for reinvestigation of the case, the learned Magistrate directed the Officer in-Charge, Asansol (South) Police Station, to reinvestigate the case and to submit a report. 3. The Respondents No. 2 and 3 filed an application under Section 482 Cr.P.C., being CRR No. 2318 of 2004, before the Calcutta High Court, for quashing the said order and the same was allowed by a judgment and order dated 31st January, 2007, which is the subject matter of challenge in the present Special Leave Petition 4. Before the learned Single Judge of the Calcutta High Court it was submitted on behalf of the abovementioned respondents that after framing charge against six of the accused persons and discharging the rest, the learned Magistrate had no jurisdiction to order a reinvestigation as had been done in the instant case, having regard to the provisions of Section 362 Cr.P.C. as considered by this Court in the case of Sooraj Devi v. Pyare Lal and Anr. MANU/SC/0228/1981 : (1981) 1 SCC 500. The said submission was accepted by the High Court. 5. Apart from the above, the learned Single Judge also took the view that merely because out of sixteen accused persons ten had been discharged, it did not necessarily mean that they could not be tried subsequently. The learned Judge then referred to the provisions of Section 319 Cr.P.C. which empowers the court to proceed against the other persons if any material is disclosed against them during the trial. The learned Single Judge observed that although the Magistrate could not direct reinvestigation on the basis of an application made by the de facto complainant and that too on the technical ground of non-service of notice upon him, he could take recourse to Section 319 Cr.P.C. at the stage of trial. 6. Having regard to the view taken by him, the learned Single Judge by his order dated 31st January, 2007, allowed the revisional application and directed the trial court to proceed with the case, in accordance with law. 7. Appearing on behalf of the petitioner, Mr. Jaideep Gupta, learned Senior Advocate, urged that the application filed on behalf of the petitioner herein was really for the purpose of further investigation, as contemplated under Section 173(8) Cr.P.C., and not for reinvestigation, which expression had been inadvertently included in the prayer of the said application. Mr. Gupta submitted that the use of the expression "reinvestigation" had been taken literally and a decision had been rendered on the basis thereof. Mr. Gupta urged that the application filed by the petitioner ought to have been considered for the purpose of further investigation as contemplated under Section 173(8) Cr.P.C. 8. Mr. Gupta submitted that on a plain reading of Sub-section (8) of Section 173 Cr.P.C., it cannot be argued that a further investigation could not be directed by the learned Magistrate even if the chargesheet had been filed and charges had been framed. Mr. Gupta urged that if such a procedure was not barred under the law, the order passed by the learned Magistrate on 20th August, 2004 could not be faulted. 9. Referring to the decision of this Court in Union Public Service Commission v. S. Papaiah and Ors. MANU/SC/0961/1997 : (1997) 7 SCC 614, learned Counsel submitted that in the said case this Court had occasion to consider in detail the provisions of Section 173(8) Cr.P.C. and this Court had held that under Section 173(8) Cr.P.C. the Magistrate could direct further investigation to collect further evidence and the new report to be submitted by the Investigating Officer would be governed by Sub-section (2) and (6) of Section 173 Cr.P.C. Mr. Gupta pointed out that in the said case, this Court had occasion to observe that by not ordering such further investigation on account of the facts, the learned Magistrate had, in fact, failed to exercise the jurisdiction vested in him. Setting aside the order of the learned Magistrate accepting the Final Report, this Court remitted the matter to the learned Metropolitan Magistrate to issue directions under Section 173(8) Cr.P.C. to the Central Bureau of Investigation (C.B.I.) to investigate the case further and to collect further evidence in the larger public interest in order to ensure the purity of the examination conducted by the Union Public Service Commission, hereinafter referred to as "U.P.S.C.", for All India Services, to select the best talent. 10. Reference was also made to the decision of this Court in State of Rajasthan v. Aruna Devi and Ors. MANU/SC/0515/1995 : (1995) 1 SCC 1, wherein it was held that acceptance of Final Report by the Magistrate does not debar him from taking cognizance of the offence if on further investigation fresh material came to be discovered. 11. Mr. Gupta urged that since in Sub-section (8) of Section 173 Cr.P.C. there is no express prohibition, the Magistrate was always within his jurisdiction to order a further investigation into the question of discharge of ten of the sixteen accused persons. Mr. Gupta submitted that the order of the High Court was contrary to the provisions of Section 173(8) Cr.P.C. and was, therefore, liable to be quashed. 12. Mr. K.K. Venugopal, learned Senior Advocate, on the other hand, urged that the order of the learned Magistrate, which had been quashed by High Court, could not be supported since it had been

passed by the learned Magistrate without jurisdiction. Re-emphasizing the provisions of Section 362 Cr.P.C., Mr. Venugopal submitted that the order passed by the learned Magistrate on 20th August, 2004, amounted to review of his order dated 9th July, 2004, which he was not competent to do. Mr. Venugopal submitted that Magistrates being creatures of statute, cannot act in excess of the powers vested in them by the statute. Mr. Venugopal submitted that even if the intention was to direct further investigation, the order impugned in the Special Leave Petition could not be sustained having been passed in excess of the jurisdiction vested in the learned Magistrate. 13. Apart from the above, Mr. Venugopal also submitted that once a charge-sheet had been filed and charges had been framed against some of the accused, it was no longer available to the learned Magistrate to order even a further investigation as contemplated under Section 173(8) Cr.P.C., much less a reinvestigation, in view of the bar imposed under Section 362 Cr.P.C. In support of his submissions, Mr. Venugopal referred to the decision of this Court in Randhir Singh Rana v. State (Delhi Administration) MANU/SC/0161/1997 : (1997) 1 SCC 361, wherein this Court, while considering the provisions of Section 156(3), 173(8), 190, 200 and 204 Cr.P.C. had held that after taking cognizance of an incident on the basis of a police report and after appearance of the accused, a Judicial Magistrate cannot on his own order further investigation in the case, and if an order of discharge is passed, nothing would prevent the police from making further investigation on its own. 14. Mr. Venugopal submitted that the view taken by the High Court was on the basis of the settled position of law that having taken cognizance of an offence, the magistrate had no jurisdiction to direct a reinvestigation of the case under Sub-section (8) of Section 173 Cr.P.C. On the other hand, the High Court made it clear that if during the trial any fresh material surfaced against the discharged persons, the magistrate could take recourse to Section 319 Cr.P.C. It was urged that the High Court should have kept in mind the well-settled principle that whatever was required to be done under a statute, could only be done in the manner prescribed by the statute and in no other manner. 15. Although, Mr. Jaideep Gupta based his submissions on the premise that the application filed by the petitioner (de facto complainant) was for a further investigation, the fact remains that the same was made for a direction for reinvestigation which was allowed by the magistrate by his order dated 20th August, 2004. By virtue of the said order, the magistrate directed the Officer-in-Charge, Asansol (South) Police Station, to reinvestigate the case and to submit a report, which the Magistrate could not do having regard to the fact that he had already passed an order of discharge of ten of the accused persons and such an order is contrary to the provisions of Section 362 Cr.P.C. As has been rightly held by the High Court, having regard to the decisions of this Court in the Master Construction Co. (P) Ltd.'s case MANU/SC/0304/1965 : AIR 1966 SC 1047 and the Sankatha Singh' s case AIR 1962 SC 1028, which were reflected in Sooraj Devi's case (supra), having passed a final order framing charge against six persons and discharging the remaining accused persons, it was no longer within the Magistrate's jurisdiction to direct a re-investigation into the case. 16. The aforesaid question was considered by a three Judge Bench of this Court in Adalat Prasad v. Rooplal Jindal MANU/SC/0688/2004 : (2004) 7 SCC 338, on a reference made with regard to the correctness of the law laid down by the Supreme Court in K.M. Mathew v. State of Kerala MANU/SC/0434/1992 : (1992) 1 SCC 217, where it was held that the Court issuing summons was entitled to recall the same on being satisfied that the issuance of summons was not in accordance with law. Holding that the said decision did not lay down the correct law, this Court held that the Magistrate had no jurisdiction to recall his order issuing process in the absence of any power of review or inherent power which did not inhere in the subordinate Criminal Courts, but was available to the High Court under Section 482 Cr.P.C. 17. In addition to the above, the decision of this Court in Randhir Singh Rana's case (supra) also makes it clear that after taking cognizance of an offence on the basis of a police report and after appearance of the accused, a Judicial Magistrate cannot of his own order further investigation in the case, though such an order could be passed on the application of the investigating authorities. The view expressed in Randhir Singh Rana's case (supra) finds support in the decision of this Court in the case of Dinesh Dalmia v. CBI MANU/SC/7924/2007 : (2007) 8 SCC 770, wherein while considering various provisions of the Criminal Procedure Code including Section 173 thereof, this Court held that so long as the charge-sheet is not filed within the meaning of Section 173(2) Cr.P.C., investigation remains pending. But, even the filing of a charge-sheet did not preclude an Investigating Officer from carrying on further investigation in terms of Section 173(8) Cr.P.C. It was also observed that the power of the Investigating Officer to make a prayer for conducting further investigation in terms of Section 173(8) of the Code is not taken away only because a charge-sheet has been filed under Section 173(2) and a further investigation is permissible even if cognizance has been taken by the Magistrate. 18. Although, the decision in Dinesh Dalmia's case (supra) was rendered in the context of the applicability of Section 167(2) and the proviso thereto, when a charge-sheet has not been filed, the interpretation of the provisions of Section 173(8) in the said decision is relevant in the facts of this case also. 19. What emerges from the above-mentioned decisions of this Court is that once a charge-sheet is filed under Section 173(2) Cr.P.C. and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authorities permit further investigation under Section173(8). The Magistrate cannot suo moto direct a further investigation under Section 173(8) Cr.P.C. or direct a re-investigation into a case on account of the bar of Section 167(2) of the Code. 20. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173(8), was a direction given by the learned Magistrate to re-investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a re-investigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de factocomplainant.

21. Since no application had been made by the investigating authorities for conducting further investigation as permitted under Section 173(8) Cr.P.C., the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of Section 319 of the Code at the stage of trial. 22. We, therefore, see no reason to interfere with the order of the High Court since it will always be available to the Magistrate to take recourse to the provisions of Section 319 if any material is disclosed during the examination of the witnesses during the trial. 23. The Special Leave Petition is, accordingly, dismissed, but there will be no order as to costs. Manupatra Information Solutions Pvt. Ltd.
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MANU/SC/1296/2009 Equivalent Citation: AIR2009SC2932, CLT(2009)Supp.Crl.1553, 2009CriLJ3721,

2010(1)ALD(Cri)213, (2010)1CALLT26(SC), JT2009(9)SC669, 2009(Supp. (Crl)OLR1553,

(2009)7SCC685, [2009]11SCR234 IN THE SUPREME COURT OF INDIA Criminal Appeal No. 1283 of 2009 (Arising out of SLP (Crl.) No. 2703 of 2008) Decided On: 21.07.2009 Appellants: Kishan Lal Vs. Respondent: Dharmendra Bafna and Anr. Hon'ble Judges/Coram: S.B. Sinha and Deepak Verma, JJ. Counsels: For Appellant/Petitioner/Plaintiff: K.T.S. Tulsi, Sr. Adv., S.D. Dwarkanath and Kailash Chand, Advs For Respondents/Defendant: M.N. Rao, U.U. Lalit and R. Balasubramaniam, Sr. Advs., Promila, S. Thananjayan, Amit Bhandari, P. Krishnan and Jayant Kumar Mehta, Advs. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure, 1973 (CrPC) - Section 156, Code of Criminal Procedure, 1973 (CrPC) Section 156(1), Code of Criminal Procedure, 1973 (CrPC) - Section 156(3), Code of Criminal Procedure, 1973 (CrPC) - Section 157, Code of Criminal Procedure, 1973 (CrPC) - Section 159, Code of Criminal Procedure, 1973 (CrPC) - Section 173, Code of Criminal Procedure, 1973 (CrPC) - Section 173(2), Code of Criminal Procedure, 1973 (CrPC) - Section 173(8), Code of Criminal Procedure, 1973 (CrPC) - Section 190, Code of Criminal Procedure, 1973 (CrPC) - Section 190(1), Code of Criminal Procedure, 1973 (CrPC) - Section 202, Code of Criminal Procedure, 1973 (CrPC) - Section 202(1), Code of Criminal Procedure, 1973 (CrPC) - Section 319, Code of Criminal Procedure, 1973 (CrPC) - Section 482; Indian Penal Code (IPC) - Section 120B, Indian Penal Code (IPC) - Section 406, Indian Penal Code (IPC) - Section 420; Code of Criminal Procedure (CrPC) - Section 561A;Constitution of India - Article 20(3), Constitution of India - Article 32, Constitution of India Article 226 Cases Referred: Naresh Kavarchand Khatri v. State of Gujarat and Anr. MANU/SC/7637/2008 ; Dharmeshbhai Vasudevbhai and Ors. v. State of Gujarat and Ors. MANU/SC/0749/2009 ; S.N. Sharma v. Bipen Kumar Tiwari and Ors. MANU/SC/0182/1970 ; Devarapalli Lakshminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. MANU/SC/0108/1976 ; Sakiri Vasu v. State of Uttar Pradesh and Ors.MANU/SC/8179/2007 ; Mithabhai Pashabhai Patel and Ors. v. State of Gujarat MANU/SC/0858/2009 ; Ramachandran v. R. Udhayakumar MANU/SC/7684/2008 Prior History / High Court Status: From the Judgment and Order dated 13.03.2008 of the High Court of Judicature at Madras in Criminal R.C. No. 245 of 2008 (MANU/TN/0476/2008 ) Disposition: Appeal dismissed Citing Reference: Discussed 5 Mentioned 2 Case Note: Criminal - Investigation - Jurisdiction of a Magistrate to direct reinvestigation of a case from time to time under Sub-section (8) of Section 173 of the Code of Criminal Procedure, 1973 was the question involved in the appeal Held, An order of further investigation can be made at various stages including the stage of the trial - Revisional court should not interfere with the discretionary jurisdiction exercised by the Magistrate unless a jurisdictional error or an error of law is noticed - It has not been found that the Investigating Officer was in any way biased towards the complainant Appeal dismissed [para 10, 13] JUDGMENT S.B. Sinha, J. 1. Leave granted.

2. Jurisdiction of a Magistrate to direct reinvestigation of a case from time to time as laid down under Sub-section (8) of Section 173 of the Code of Criminal Procedure, 1973 (for short, "the Code") is the question involved in this appeal. It arises out of a judgment and order dated 13 th March, 2008 passed by a learned single judge of the High Court of Judicature at Madras in Crl. R.C. No. 245 of 2008 allowing the criminal revision application filed by the respondent No. 1 from an order dated 13th February, 2008 passed by the learned III Metropolitan Magistrate, George Town, Chennai. 3. Indisputably, on or about 30th December 2005, a complaint was lodged by the appellant against Accused Nos. 1 to 9, namely, Lakshmichand Bafna (Accused No. 1), Dharmendra Bafna (Accused No. 2), Mahendar Bafna (Accused No. 3), Rakesh Bafna (Accused No. 4), G.R. Surana (Accused No. 5), Shantilal Surana (Accused No. 6), Vijayaraj Surana (Accused No. 7), Dinesh Chand Surana (Accused No. 8) and Maran (Accused No. 9) before the Commissioner of Police, Chennai City, Chennai inter alia alleging that they connived together from the beginning and cheated him a sum of Rs. 4.65 crores by denying to return the money which was given to them for purchase of gold. It was alleged that the amount was entrusted on various dates from 06th October 2005 to 17th November 2005. Although they have admitted the liability to the extent of 4.95 crores, but did not return either any gold or money to the complainant. 4. On or about 12th January 2006, an application for grant of anticipatory bail before the High Court of Madras was filed by all the accused stating that the Accused Nos. 5 to 8 are brothers and are the directors of their family business known as M/s Surana Corporation Limited. It was admitted that the Accused No. 2 is the sub-agent of Surana Corporation Limited who introduces investors. 5. A First Information Report ("FIR") was lodged by the appellant against all the accused on or about 22nd January, 2006 in the Central Crime Branch Station. Allegedly, on or about 27th January 2006, in the aforementioned bail application, the said accused filed statement of accounts of the appellant/de facto complainant mentioned in the Multi Commodity Exchange of India Limited ("MCX") which is a Government approved On-Line Trading Exchange of Bullion, Energy, Metal and Oil, admitting that they had undertaken bullion trade with MCX by using the appellant's money. Apart from the said FIR, the parties have filed some Civil Suits also. Indisputably, however, Banwarlal Sharma (Accused No. 10) was subsequently added. It is furthermore not in dispute that the investigation was transferred to CBCID, Chennai by the Director General of Police, Tamil Nadu. On or about 8th October, 2007, a charge-sheet was filed before the learned III Metropolitan Magistrate, George Town, Chennai only against Accused Nos. 1 and 2 under Sections 406, 420 and 120Bof the Indian Penal Code ("IPC"). The learned Magistrate took cognizance against the said accused. On or about 29th October 2007, on the premise that the learned Magistrate had not taken cognizance against the other accused, the appellant filed an application under Section 482 of the Code before the High Court for setting aside the said order. The said application was disposed of by the learned single judge of the High Court in the following terms:

8. Therefore in the considered view of this order, the above criminal original petition can be disposed of with the following directions:

The petitioner is at liberty to file an appropriate petition before the III Metropolitan Magistrate,George Town, Chennai, incorporating his grievances and the alleged lapses on the part of the investigating agency and seek further investigation in the case. On such petition being filed, the learned Magistrate, shall consider the same in accordance with law and if the learned Magistrate is satisfied that a case has been made out by the petitioner for ordering further investigation under Section173(8) of the Criminal Procedure Code, the learned Magistrate is entitled to invoke the powers under Sections 173(8) of the Criminal Procedure Code and direct the respondent to further investigate into the matter.
Pursuant to or in furtherance of the said observations, appellant filed an application for further investigation before the learned Magistrate and by an order dated 13 th February 2008, a direction for further investigation was issued, observing:

While considering the averments made in this petition, this Court holds that several kinds of issues were not undisclosed and beyond from knots of doubts. If those doubts were not cleared through suitable investigation, no opportunity could be given to get it revealed the true picture. While considering the nature of the case, it is important to find out how the amount given by the petitioner utilized, when it was utilized and on which state the amount has been kept. But, as alleged on behalf of the petitioner, it is the duty of this Court to find out the truth by holding suitable investigation of the matters which were unearthed. In the event of this Court refusing to find out the true picture by ordering a reinvestigation, either party is likely to get hardships and losses. If the reinvestigation is ordered, a situation for handing out an opportunity for both the parties to bring out the hidden truths in this case and the facts in this case and this Court holds that it would pave a way for conducting a trial in the proper direction. As this Court holds that certain cause of actions available in this case, and in view of necessity to find out several facts in this case and in accordance of the orders of High Court of Madras in CRL.O.P. 33354 of 2007, it is to meet the ends of justice, case could be ordered for reinvestigation and thereby the petition presented by Petitioner/complainant under Section 173(8) is allowed.

the the the the

Accused No. 2 filed revisional application thereagainst before the High Court. By reason of the impugned judgment, as noticed hereinbefore, the said revision application has been allowed.

6. Mr. K.T.S. Tulsi, learned Senior Counsel appearing on behalf of the appellant would contend:

(i) The High Court committed a serious error in opining that no direction for further investigation or reinvestigation can be directed after cognizance of an offence is taken. (ii) The application for a direction for further investigation having been filed only in terms of the order of the High Court dated 17th December 2007, another learned judge of the same High Court could not have taken a contrary view. (iii) Direction for further investigation having been made by the learned Magistrate upon taking into consideration all aspects of the matter, the High Court committed a serious error in interfering therewith. (iv) The High Court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration that Accused No. 6 being father of Accused No. 2 and Accused Nos. 5, 7 and 8 being his brothers; were running and operating Surana Corporation Limited and having admittedly invested the said amount in MCX, they must be held to have conspired together for misappropriation of the aforementioned amount of Rs. 4.65 crores entrusted by the appellant to the accused No. 2, and consequent refusal on their part to return the amount on the ground that they have suffered a huge loss.
7. Mr. U.U. Lalit, the learned Senior Counsel appearing on behalf of the accused other than accused Nos. 2 and 6, on the other hand, urged:

(i) Despite the fact that the learned Magistrate had the requisite jurisdiction to direct further investigation, such order could not have been passed in the instant case as all aspects of the matter had been taken into consideration by the Investigating Officers. (ii) Further investigation, the learned Counsel would urge, could be directed only in the event where investigation was not carried in respect of certain aspects of the matter or where during trial it came to the notice to the court that some facts which were relevant for arriving at the truth had not been gone into.
8. Mr. M.N. Rao, learned Senior Counsel appearing on behalf of the State would take us through the detailed counter affidavit filed on behalf of the State to contend that the investigation had been carried out in a fair and diligent manner touching all aspects of the matter. 9. It is now a well settled principle of law that when a final form is filed by any Investigating Officer in exercise of his power under Sub-section (2) of Section 173 of the Code, the first informant has to be given notice. He may file a protest petition which in a given case may be treated to be a complaint petition, on the basis whereof after fulfilling the other statutory requirements cognizance may be taken. The learned Magistrate can also take cognizance on the basis of the materials placed on record by the investigating agency. It is also permissible for a learned Magistrate to direct further investigation. The Investigating Officer when an FIR is lodged in respect of a cognizable offence, upon completion of the investigation would file a police report. The power of investigation is a statutory one and ordinarily and save and except some exceptional situations, no interference therewith by any court is permissible. In Naresh Kavarchand Khatri v. State of Gujarat and Anr. MANU/SC/7637/2008 this Court held: : AIR2008SC2180 ,

6. The power of the court to interfere with an investigation is limited. The police authorities, in terms of Section 156 of the Code of Criminal Procedure, exercise a statutory power. The Code of Criminal procedure has conferred power on the statutory authorities to direct transfer of an investigation from one Police Station to another in the event it is found that they do not have any jurisdiction in the matter. The Court should not interfere in the matter at an initial stage in regard thereto. If it is found that the investigation has been conducted by an Investigating Officer who did not have any territorial jurisdiction in the matter, the same should be transferred by him to the police station having the requisite jurisdiction.
In Dharmeshbhai Vasudevbhai and 2009CriLJ2969 , this Court held: Ors. v. State of Gujarat and Ors. MANU/SC/0749/2009 :

9. Interference in the exercise of the statutory power of investigation by the Police by the Magistrate far less direction for withdrawal of any investigation which is sought to be carried out is not envisaged under the Code of Criminal Procedure. The Magistrate's power in this regard is limited. Even otherwise, he does not have any inherent power. Ordinarily, he has no power to recall his order. This aspect of the matter has been considered by this Court in S.N. Sharma v. Bipen Kumar Tiwari and Ors. MANU/SC/0182/1970 : 1970CriLJ764 , wherein the law has been stated as under: 6. Without the use of the expression "if he thinks fit", the second alternative could have been held to be independent of the first; but the use of this expression, in our opinion, makes it plain that the power conferred by the second clause of this section is only an alternative to the power given by the first clause and can,

therefore, be exercised only in those cases in which the first clause is applicable. 7. It may also be further noticed that, even in Sub-section (3) of Section 156, the only power given to the Magistrate, who can take cognizance of an offence under Section 190, is to order an investigation; there is no mention of any power to stop an investigation by the police. The scheme of these sections, thus, clearly is that 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 to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate. Interpreting the aforementioned provisions vis-a-vis the lack of inherent power in the Magistrate in terms of Section 561A of the Old Criminal procedure Code (equivalent to Section 482 of the new Code of Criminal procedure), it was held: 10. This interpretation, to some extent, supports the view that the scheme of the Criminal Procedure Code is that the power of the police to investigate a cognizable offence is not to be interfered with by the judiciary. Their Lordships of the Privy Council were, of course, concerned only with the powers of the High Court under Section 561A CrPC, while we have to interpret Section 159 of the Code which defines the powers of a Magistrate which he can exercise on receiving a report from the police of the cognizable offence under Section 157 of the Code. In our opinion, Section 159 was really intended to give a limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence. Yet again in Devarapalli Lakshminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. MANU/SC/0108/1976 : 1976CriLJ1361 , this Court, upon comparison of the provision of the old Code and the new Code, held as under: 7. Section 156(3) occurs in Chapter XII, under the caption : "Information to the Police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading: "Of complaints to Magistrates". The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre- cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre- cognizance stage and avail of Section 156(3). It may be noted further that an order made under Sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding". Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.
We are, however, not oblivious of the fact that recently a Division Bench of this Court in Sakiri Vasu v. State of Uttar Pradesh and Ors. MANU/SC/8179/2007 : AIR2008SC907 while dealing with the power of the court to direct the police officer to record an FIR in exercise of power under Section 156(3) of the Code observed that the Magistrate had also a duty to see that the investigation is carried out in a fair manner (correctness whereof is open to question). 10. An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence. Although some decisions have been referred to us, we need not dilate thereupon as the matter has recently been considered by a Division Bench of this Court in Mithabhai Pashabhai Patel and Ors. v.State of Gujarat MANU/SC/0858/2009 : (2009)6SCC332 in the following terms: 16. This Court while passing the order in exercise of its jurisdiction under Article 32 of

Constitution of India did not direct re- investigation. This Court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of Sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon. 17. It is, however, beyond any cavil that `further investigation' and `re-investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a `State' to get an offence investigated and/or further investigated by a

different agency. Direction of a re-investigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar MANU/SC/7684/2008 : 2008CriLJ4309 , opined as under: 7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under Subsection (2) of Section 173 of the Code, the police has right to further investigate under Subsection (8), but not fresh investigation or reinvestigation...
11. We have referred to the aforementioned decision only because Mr. Tulsi contends that in effect and substance the prayer of the appellant before the learned Magistrate was for reinvestigation but the learned Magistrate had directed further investigation by the Investigating Officer inadvertently. The Investigating Officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to its notice; when certain aspects of the matter had not been considered by it and it found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to its notice. Apart from the aforementioned grounds, the learned Magistrate or the Superior Courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice. 12. The question, however, is as to whether in a case of this nature a direction for further investigation would be necessary. Mr. Dhayalan, Inspector of Police, Crime Branch CID, Metro Wing, Chennai in his counter affidavit inter alia brought to this Court's notice that the matter was investigated by (1) Tr. S. Saravana Brabu, Inspector of Police, Chennai CCB, (2) Tr. Salathraj, Assistant Commissioner of Police, CCB Chennai (3) Tr. S. Veiladurai, Assistant Commissioner of Police, Job Rocket and Video Piracy, Chennai City, (4) Tr. C. Edward, Inspector of Police, CCB, Chennai and (5) Tr. K.G. Rajakumar, Assistant Commissioner of Police, CCB, Egmore, Chennai apart from him. We have noticed hereinbefore that the investigation was transferred to CBCID by an order dated 29th March 2007 passed by the DGP, Tamil Nadu. The matter, thus, has been investigated by two specialized agencies. The deponent of the counter affidavit categorically stated that he had made a thorough investigation and upon consideration of the materials gathered during investigation identified that there was no connection between the money of the de facto complainant and Accused Nos. 3 to 10 and hence the final form was filed in their favour. It was pointed out that the complainant had filed the aforementioned application under Section 173(8) of the Code principally on the premise that no investigation had been carried out in respect of three documents being (1) The additional grounds raised in the anticipatory bail application, (2) The plaint filed by Accused No. 2 in the Civil Suit filed by him and (3) the letter written by Mahaveer Surana, the authorized signatory of Surana Corporation Ltd., to the Chief Minister's cell. It was furthermore pointed out:

(b) The second accused came forward with improbable stories for him to escape from prosecution. The version of the accused in his anticipatory bail application is without any material to support the same and was not believed. Similarly, the version of A2 in the suit filed by him was also not believed as it was not borne out by any documentary evidence. Similarly, the letter written by Mahaveer Surana to the Chief Minister's Cell is also a document intended to save A-1 and A-2 from the crime and hence not to be believed. The version of the de facto complainant, the petitioner herein and also of A-2 to establish the connection between the money paid by the de facto complainant to A-2 with A-3 to A-10 is not borne out by any documentary evidence. Hence, the case against A-3 to A-10 were dropped. All the three documents are that of the accused. The documents cannot be proved through accused. No accused can be compelled to be a witness against himself. The documents could be hit by under Article 20(3) of the Constitution of India.
The investigating officer was of the opinion that the amount of Rs. 4.65 crores was given to Accused No. 2 for both trading in gold and silver on the basis of orally agreed terms. Accused No. 2 was introduced by Accused No. 1. Accused No. 2 had given the said amount on 18th November 2005 to M/s Vinayaga Vyapar Limited on various dates on its own risks and on the basis whereof M/s Vinayaga Vyapar Ltd. entered transactions with M/s Surana Corporation Ltd. on 17 th November 2005 and all payments had been made through cheques only. Upon giving the details, the Investigating Officer had come to the following conclusion:

These transactions were for speculative trading only. It is stated in the FIR filed by the petitioner that the transaction between the petitioner and the A-2 Dharmendra Bafna are independent transaction between themselves and no third party was involved. The petitioner did not make any agreement or contract with the A-2 Dharmendra Bafna for doing gold bullion forward trade business and failed to obtain the trade order, trade execution order and trade confirmation order from the A-2 Dharmendra Bafna and did not deal in cheque transactions. The petitioner has given Rs. 4.65 crores by cash and entered upon a shady transaction with the A4 Dharmendra Bafna.
In regard to the statements made by the accused in their application for anticipatory bail with regard to account with M/s MEGHA GG, it has been contended that the same cannot be construed to be an admission on the part of the Accused Nos. 3 to 10 especially when the petition had not been signed by

any of the accused and all the documentary evidence and material gathered during the investigation were to the contrary. The said Shri Dhayalan had also stated in great details as to why Accused Nos. 3 to 10 were dropped. He had also taken into consideration the dealings by and between the parties inter se as also the litigations filed by them against each other. It is neither necessary nor desirable to notice the statements made therein by us as we are concerned with a question of law. 13. It is correct that the revisional court should not interfere with the discretionary jurisdiction exercised by the learned Magistrate unless a jurisdictional error or an error of law is noticed. We have noticed hereinbefore the order passed by the learned Magistrate. His order that "several kinds of issues were not disclosed and beyond from knots of doubts" is vague in nature. It has not been pointed out that in what respect the investigation has not been carried out. What are hidden truths required to be unearthed had also not been pointed out. The learned Magistrate did not consider the fact that the investigation had been carried out by two different agencies and by responsible police officers. It has not been found that the Investigating Officer was in any way biased towards the complainant. Furthermore, if the contention of Mr. Tulsi is correct, the question as to whether Accused Nos. 3 to 10 were involved in the matter could be pointed out from the materials which had already been brought on record. Furthermore, whether the admissions made in the application for anticipatory bail were binding on them, the same being a matter of inference can also be urged. The other and further remedies as pointed out can be resorted to as also invocation of the provisions of Section 319 of the Code at the stage of trial is also permissible in law, if an appropriate case is made out therefor. We furthermore clarify that any observations made by the High Court or by us should not prejudice the either party and the learned Magistrate should consider the matter on its own merit and without in any way being influenced by the same, if any occasion arises in this behalf in future. 14. For the reasons aforementioned, we do not find any merit in this appeal. The appeal is dismissed accordingly. Manupatra Information Solutions Pvt. Ltd.
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MANU/SC/0882/2009 Equivalent Citation: 2009(2)ALD(Cri)527,

2009CriLJ3430,

JT2009(13)SC198,

2009(8)SCALE40,

(2009)6SCC661, [2009]8SCR412 IN THE SUPREME COURT OF INDIA Criminal Appeal No. 964 of 2008 (Arising out of SLP (Crl.) No. 5189 of 2007) Decided On: 08.05.2009 Appellants: Chittaranjan Mirdha Vs. Respondent: Dulal Ghosh and Anr. Hon'ble Judges/Coram: Dr. Arijit Pasayat and H.S. Bedi, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Rukhsana Choudhury, Adv For Respondents/Defendant: Salal Bhattacharya, Deba Prasad Nath, Y. Bansal, Rauf Rahim, Tara Charndra Sharma and Neelam Sharma, Advs. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Arms Act, 1959 - Section 25, Arms Act, 1959 - Section 27; Indian Penal Code 1860, (IPC) - Section 34, Indian Penal Code 1860, (IPC) - Section 120B, Indian Penal Code 1860, (IPC) - Section 302;Code of Criminal Procedure, 1973 (CrPC) - Section 156(3), Code of Criminal Procedure, 1973 (CrPC) Section 169, Code of Criminal Procedure, 1973 (CrPC) - Section 170, Code of Criminal Procedure, 1973 (CrPC) - Section 173, Code of Criminal Procedure, 1973 (CrPC) - Section 173(2), Code of Criminal Procedure, 1973 (CrPC) - Section 173(8), Code of Criminal Procedure, 1973 (CrPC) - Section 178, Code of Criminal Procedure, 1973 (CrPC) - Section 190, Code of Criminal Procedure, 1973 (CrPC) - Section 190(1), Code of Criminal Procedure, 1973 (CrPC) - Section 200, Code of Criminal Procedure, 1973 (CrPC) - Section 202, Code of Criminal Procedure, 1973 (CrPC) - Section 319, Code of Criminal Procedure, 1973 (CrPC) - Section 482 Cases Referred: Bhagwant Singh v. Commissioner of Police and Anr. MANU/SC/0063/1985 ; Abhinandan Jha and Anr. v. Dinesh Mishra MANU/SC/0054/1967 ; India Sarat Pvt. Ltd. v. State of Karnataka and Anr.MANU/SC/0349/1989 ; Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. MANU/SC/0830/2004 Prior History / High Court Status: From the Judgment and Order dated 14.02.2007 of the Hon'ble High Court of Calcutta in C.R.R. No. 1062 of 2006 (MANU/WB/0017/2007 ) Disposition: Appeal dismissed Citing Reference: Affirmed 1 Discussed 1 Mentioned 2 Case Note: Criminal - Cognizance - Challenge was to the judgment of High Court quashing the cognizance, relating to offences punishable under Section 302/34/120B of the Indian Penal Code, 1860 read with Section 25 and 27 of the Arms Act, 1959 Held, Where Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory - High Court has directed all procedural safeguards to be followed - It has also referred to applicability of Section 319 of the Code in appropriate cases - Appeal dismissed [para 14, 19] JUDGMENT Arijit Pasayat, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge of the Calcutta High Court quashing the cognizance taken by learned Addl. District and Sessions Judge, 4 th Court Alipore in Canning PS case No. 160 relating to offences punishable under Section 302/34/120B of the Indian Penal Code, 1860 (in short the `IPC') read with Section 25 and 27 of the Arms Act, 1959 (in short the `Arms Act') pending trial before the Additional Chief Judicial Magistrate District South 24 Parganas. 3. Background facts in a nutshell are as follows:

A complaint was lodged by the appellant with the Inspector in charge of Canning police station alleging that on 25.12.2000 at about 12 noon when his son Dipak Mirdha was in a saloon under the name and style "Sundaram" at Canning bus stand, he suddenly sustained a gunshot injury on his person. Upon hearing the sound of such gunshot and the chaos which resulted thereby, the third son of the complainant rushed to the spot. With the help of others the victim was shifted to Canning Hospital where he was declared dead. There was previous enmity between the victim and one Azimuddin Laskar of Basanti Police Station and Kartick Bose of Canning Police Station over the decoration of Canning Dock Ferry Ghat. In 1999, one Anil Thakur was murdered by some antisocial elements near Canning Hospital. Arnab Roy, Pradhan of Dighirpar Gram Panchayat, falsely implicated the complainant's son being the victim, in connection with that murder. On the basis of such complaint, Canning P.S. case No. 160 dated 25.12.2000 was started. After completion of investigation, the Investigating Authority submitted chargesheet No. 141 dated 2.9.07.2001 implicating Animesh Halder @ Kuche, Rajesh Dhali, Selim Gayan, Rafique Dhali and Rajab Ali @ Doktar as accused persons. On the basis of such chargesheet, the Learned Court of Sub-Divisional Judicial Magistrate, Alipore, by order dated 31.08.2001 took cognizance of offences under Sections 302/34/120B of the Indian Penal Code read with Section 25/27 of the Arms Act and directed issuance of warrants of arrest against the absconding accused persons. After about 27 months i.e. on 27.2.03 the defacto complainant i.e. the present appellant filed an application before the Ld. Court of Sub- Divisional Judicial Magistrate praying for direction upon the DIG, CID, West Bengal to cause further investigation in terms of Section 173(8) of the Code of Criminal Procedure Code, 1973 (in short the `Code') . Learned Sub-Divisional Judicial Magistrate, Alipore, by order dated 27.2.2003, in response to such prayer directed the DIG, CID, West Bengal, to investigate the aforesaid case under Section 173(8) of the Code. The learned court by order dated 9.6.2005 directed issuance of warrant of arrest was issued against the respondent No. 1. Being aggrieved by the said order dated 27.2.003 and order dated 9.6.2005, the respondent No. 1 moved a revisional application being Criminal Motion No. 484 of 2005 before the Learned Sessions Judge, Alipore. Learned 4th Court of Additional. Sessions Judge, Alipore, who by order dated 13.3.2006 rejected the application on the ground that there was no scope to reopen the matter in view of an earlier application filed by one Arnab Roy, against the said dated 27.2.2003 and disposal of the said application being Criminal Motion No. 100/03 by order dated 21.1.2004.
4. Learned Counsel for the respondent No. 1 referring to the backdrop of the present case submitted that admittedly after completion of investigation of the case under reference police authority submitted chargesheet for the offences which include a serious offence under Section 302 of Indian Penal Code. The Learned Court on receipt of the said chargesheet took cognizance of the offences. It could be that the FIR named accused persons were left out in the chargesheet, whereas few others were implicated. 5. It cannot be denied that in such a situation it was the duty on the part of the learned Court to issue notice upon the de-facto complainant and give him an opportunity of hearing. The learned Court ought to have given the de-facto complainant a chance to have his say over the result of investigation. Curiously enough that was not done. The learned Court in response to a subsequent prayer made by the de-facto complainant directed further investigation and that too, by an officer, not below the rank of a Inspector to be selected by the DIG, CID, West Bengal. 6. A petition under Section 482 of the Code was filed before the Calcutta High Court questioning the correctness of the order passed. The High Court observed that the order of taking cognizance deserved to be set aside. Learned Additional Chief Judicial Magistrate was directed to consider the relevant materials as well as the charge sheet No. 141 of 29.7.2001. 7. It was directed that while taking note of the matter for fresh consideration a notice was required to be sent to the de facto complainant and giving de facto complainant an opportunity of hearing which was to be done before the order was passed. 8. In response to the prayer made by the investigating officer for discharge of the pending of the FIR of the accused persons, it was also held that the Court was to take into consideration all that happened in the case and to pass appropriate orders. 9. In support of the appeal, learned Counsel for the appellant submitted that the course adopted cannot be maintained in law. 10. Learned Counsel for the respondent No. 1, on the other hand, supported the judgment of the High Court.

11. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court in Bhagwant Singh v. Commissioner of Police and Anr. MANU/SC/0063/1985 : 1985CriLJ1521 , stressed on the desirability of intimation being given to the informant when a report made under Section 173(2) is under consideration. The Court held as follows:

...There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Sub-section (2)(i) of Section173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submission to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report....
12. Therefore, there is no shadow of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report. This Court further held that the position is different so far as an injured person or a relative of the deceased, who is not an informant, is concerned. They are not entitled to any notice. This Court felt that the question relating to issue of notice and grant of opportunity as afore- described was of general importance and directed that copies of the judgment be sent to the High Courts in all the States so that the High Courts in their turn may circulate the same among the Magistrates within their respective jurisdictions. 13. In Abhinandan Jha and Anr. v. Dinesh Mishra MANU/SC/0054/1967 : 1968CriLJ97 , this Court while considering the provisions of Sections 156(3), 169, 178 and 190 of the Code held that 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 Magistrate and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c). 14. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate, he has again the option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now wellsettled that upon receipt of a police report under Section173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. [See India Sarat Pvt. Ltd. v. State of Karnataka and Anr. MANU/SC/0349/1989 : [1989]1SCR718 ]. The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh's case (supra) that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard. 15. We may add here that the expressions `charge-sheet' or `final report' are not used in the Code, but it is understood in Police Manuals of several States containing the Rules and the Regulations to be a report by the police filed under Section 170 of the Code, described as a "charge-sheet". In case of reports sent under Section 169, i.e., where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate, it is termed variously i.e., referred charge, final report or summary. Section 173 in terms does not refer to any notice to be given to raise any protest to the report

submitted by the police. Though the notice issued under some of the Police Manuals states it to be a notice under Section 173 of the Code, though there is nothing in Section 173 specifically providing for such a notice. 16. As decided by this Court in Bhagwant Singh's case (supra), the Magistrate has to give the notice to the informant and provide an opportunity to be heard at the time of consideration of the report. It was noted as follows:

...the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report....
17. Therefore, the stress is on the issue of notice by the Magistrate at the time of consideration of the report. If the informant is not aware as to when the matter is to be considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly. But as indicated in Bhagwant Singh's case (supra) the right is conferred on the informant and none else. 18. The aforesaid position was highlighted by this Court in Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. MANU/SC/0830/2004 : 2004CriLJ4623 . 19. It is not explained as to how the order of the High Court is prejudicial to the appellant. The High Court has directed all procedural safeguards to be followed. It has also referred to applicability of Section 319 of the Code in appropriate cases. 20. That being so we find no merit in this appeal which is dismissed. Manupatra Information Solutions Pvt. Ltd.
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MANU/SC/0201/2009 Equivalent Citation: 2009(2)ACR1425(SC), JT2009(4)SC379, 2009(2)PLJR160, (2009)11SCC299, [2009]2SCR369 IN THE SUPREME COURT OF INDIA Criminal Appeal No. 290 of 2009 (Arising out of SLP (Crl.) No. 3358 of 2006) Decided On: 12.02.2009 Appellants: Ram Naresh Prasad Vs. Respondent: State of Jharkhand and Ors. Hon'ble Judges/Coram: Dr. Arijit Pasayat and Mukundakam Sharma, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Nagendra Rai, Sr. Adv., Surya Kant and Pranav Vyas, Advs For Respondents/Defendant: Manish Kumar Saran, Nirmal Kumar Ambastha, Fuzail Khan, Akshaliya Kumar, Shefali Jain, Rajesh Prasad Singh and Ranjana Narayan, Advs. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Indian Penal Code 1860, (IPC) - Section 380, Indian Penal Code 1860, (IPC) - Section 411, Indian Penal Code 1860, (IPC) - Section 413, Indian Penal Code 1860, (IPC) - Section 414, Indian Penal Code 1860, (IPC) - Section 457; Code of Criminal Procedure, 1973 (CrPC) - Section 154, Code of Criminal Procedure, 1973 (CrPC) - Section 155, Code of Criminal Procedure, 1973 (CrPC) - Section 156, Code of Criminal Procedure, 1973 (CrPC) - Section 156(3), Code of Criminal Procedure, 1973 (CrPC) - Section 157, Code of Criminal Procedure, 1973 (CrPC) - Section 157(1), Code of Criminal Procedure, 1973 (CrPC) - Section 158, Code of Criminal Procedure, 1973 (CrPC) - Section 159, Code of Criminal Procedure, 1973 (CrPC) - Section 160, Code of Criminal Procedure, 1973 (CrPC) - Section 161, Code of Criminal Procedure, 1973 (CrPC) - Section 162, Code of Criminal Procedure, 1973 (CrPC) - Section 163, Code of Criminal Procedure, 1973 (CrPC) - Section 165, Code of Criminal Procedure, 1973 (CrPC) - Section 166, Code of Criminal Procedure, 1973 (CrPC) - Section 167, Code of Criminal Procedure, 1973 (CrPC) - Section 168, Code of Criminal Procedure, 1973 (CrPC) - Section 169, Code of Criminal Procedure, 1973 (CrPC) - Section 170, Code of Criminal Procedure, 1973 (CrPC) - Section 172, Code of Criminal Procedure, 1973 (CrPC) - Section 173, Code of Criminal Procedure, 1973 (CrPC) - Section 173(1), Code of Criminal Procedure, 1973 (CrPC) - Section 173(3), Code of Criminal Procedure, 1973 (CrPC) - Section 176, Code of Criminal Procedure, 1973 (CrPC) - Section 190, Code of Criminal Procedure, 1973 (CrPC) - Section 319, Code of Criminal Procedure, 1973 (CrPC) - Section 491 Cases Referred: A.K. Roy v. State of W.B. MANU/WB/0040/1962 ; Abdul Rahim v. Abdul Muktadin MANU/GH/0051/1953 ; Abhinandan Jha and Ors. v. Dinesh Mishra MANU/SC/0054/1967 ; Amar Premanand v. StateMANU/MP/0007/1960 ; H.N. Rishbud and Inder Singh v. State of Delhi MANU/SC/0049/1954 ; Inder Singh case MANU/SC/0049/1954 ; King Emperor v. Khwaja Nazir Ahmed MANU/PR/0007/1944 ;Ram Nandan v. State MANU/BH/0103/1966 ; State of Gujarat v. Shah Lakhamshi MANU/GJ/0064/1966 ; State of West Bengal v. S.N. Basak MANU/SC/0114/1962 ; State v. Murlidhar GovardhanMANU/MH/0088/1960 ; Venkata Subba v. Anjanavulu MANU/TN/0210/1932 : AIR 1932 Mad 673 Prior History: From the final Judgment and Order dated 17/28.3.2006 of the High Court of Jharkhand at Ranchi in WP (Crl) No. 284 of 2002 Disposition: Appeal allowed Citing Reference:

Discussed 3 Mentioned 8 Case Note: Constitution of India - Article 226--Final report by police for alleged offences under Sections 413 and 414, I.P.C.--Accepted by Magistrate--Revision filed by respondent No. 2 practising advocate neither being complainant nor having any concern with alleged crime--Revision petition allowed--Writ petition thereagainst dismissed--Whether liable to interference?-Held, yes--Principles governing final report stated--Impugned order of High Court set aside-High Court to consider revision petition at instance of respondent No. 2 maintainable--And

that too after considerable length of time--Whether appellant needs to be heard in whose favour final report submitted--And whether informant to be given notice. JUDGMENT Arijit Pasayat, J. 1. Leave granted. 2. Challenge in this appeal is to the judgment of a learned Single Judge of the Jharkhand High Court. Appellant filed writ petition (Crl.) No. 284 of 2002 with the prayer to quash the order dated 18.2.2002 passed by learned Sessions Judge Palamau in Criminal Revision No. 53 of 2001. By the said order learned Sessions Judge set aside order of learned Chief Judicial Magistrate accepting the final report submitted by the police and directed him to pass a fresh order after perusing the case diary and after hearing the informant. Further prayer was to quash the order passed by learned Chief Judicial Magistrate on remand taking cognizance of offences punishable under Sections 413 and 414 of the Indian Penal Code, 1860 (in short the `IPC'). 3. Background facts in a nutshell are as follows:

One Arun Kumar Mishra (hereinafter referred to as the `informant'- Respondent No. 4) in the present appeal filed the First Information Report (in short the `FIR') at the Bishrampur Police Station in Palamau District against unknown persons. It was stated that in the preceding night some unknown persons had stolen five idols from Thakur Bari. On the basis of the FIR police instituted case relating to offence punishable under Sections 457 and 380 IPC. Investigation was carried out but in the absence of any definite clue, the final report was submitted on 4.1.1997, which was accepted by learned Judicial Magistrate. After about one week one Raghu Thakur was arrested on 12.1.1997 and he made an extra judicial confession before the villagers. On the basis of the said extra judicial confession four persons were detained who were Raghu Thakur, Alak Singh, Dwarika Saw and Vijay Kumar Soni. On 12.3.1997 police submitted supplementary Final Form against the aforesaid four persons indicating commission of offences punishable under Sections 457, 380, 411 and 414 IPC. Final Form was filed so far as appellant is concerned. Learned Judicial Magistrate, First Class, by his judgment dated 27.1.1999 convicted all the four accused persons. During trial an application under Section 319 of the Code of Criminal Procedure, 1973 (in short the `Cr.P.C.') was filed by prosecution with a prayer to summon the appellant as an accused. The said application was dismissed by the trial court. The same was not challenged before any higher court but the investigation was kept alive. Investigation was taken over by the CID Police from the district police. After investigation on 22.5.1999 final report was submitted so far as the appellant was concerned. The same was accepted. On 18.2.2002 after about two years, respondent No. 2, a practicing advocate who was neither the complainant nor having any connection with the alleged offence, filed a revision petition before the learned Sessions Judge, Palamau, against the order dated 22.5.1999. By order dated 18.2.2002 the revision petition was allowed and learned CJM was directed to hear the informant or APP, peruse case diary both original as well as supplementary and then pass order in accordance with law.
According to the appellant no notice was issued to the appellant nor was he heard. Though the revision petition was highly belated, the same was admitted ex parte and that too without condonation of delay. The appellant had no knowledge about these subsequent events. On 29.8.2002 learned Chief Judicial Magistrate passed an order taking cognizance for offences punishable under Sections413 and 414 IPC and non-bailable warrant was issued so far as the appellant is concerned. Aggrieved by the order dated 29.8.2002 of learned CJM, appellant filed a revision petition before learned Sessions Judge who dismissed the same. Questioning correctness of both the aforesaid orders, a writ petition was filed which was dismissed by the impugned order. 4. Learned Counsel for the appellant submitted that the course adopted by the revisional courts at the first instance is unknown to law. At no stage before the order was passed by the learned Sessions Judge in revision, the appellant was heard. The revision petitioner had no locus standi to file the petition as he was not the informant. Learned Sessions Judge did not decide about the question of maintainability of the revision petition at first instance. The question of limitation was also not examined. 5. The respondent No. 2 had appeared in person and according to him the State was taking the sides of the appellant, and he was forced to file the revision petition. 6. Learned Counsel for the State accepted that if under Section 319 Cr.P.C. the petition was rejected, no further steps were required to be taken by the State to question the correctness of the order on that behalf. 7. In Abhinandan Jha and Ors. v. Dinesh Mishra MANU/SC/0054/1967 : 1968CriLJ97 it was observed as under:

5. On behalf of the appellants, in Criminal Appeal No. 218 of 1966, Mr. Jha, learned Counsel, pointed out that when a final report is submitted by the police, under Section 173(1) of the Code, stating that no case is made out, the Magistrate has no jurisdiction to direct the police to file a charge-sheet. It may be open, counsel points out, to the Magistrate, to direct further investigation to be made by the police, or to treat the protest petition filed by the second respondent, as a complaint, and take cognizance of the offence and proceed, according to law. The scheme of Chapter XIV of the Code, counsel points out, clearly indicates that the formation of an opinion, as to whether or not there is a case to place the accused on trial, is that of the investigating

officers, and the Magistrate cannot compel the police to form a particular opinion on the investigation and to submit a report, according to such opinion. In this case, there is nothing to show that the protest petition, filed by the second respondent, has been treated as a complaint, in which case, it may be open to the Magistrate to take cognizance of the offence; but, in the absence of any such procedure being adopted according to counsel, the order of the Magistrate directing a charge-sheet to be filed, is illegal and not warranted by the provisions of the Code. These contentions have been adopted, and reiterated, by Mr Nuruddin Ahmed, on behalf of the appellants, in Criminal Appeal No. 238 of 1966. 6. Both the learned Counsel pressed before us, for acceptance, the views, as expressed by the Gujarat High Court, in its Full Bench judgment, reported as State of Gujarat v. Shah Lakhamshi MANU/GJ/0064/1966 : AIR1966Guj283 (FB). On the other hand, Mr. U.P. Singh, learned Counsel for the respondent, in Criminal Appeal No. 218 of 1966, has pointed out that the Magistrate has jurisdiction, in proper cases, when he does not agree with the final report submitted by the police, to direct them to submit a charge-sheet. Otherwise, counsel points out, the petition will be that the entire matter is left to the discretion of the police authorities, and the Courts will be powerless, even when they feel that the action of the police is not justified. Quite naturally, counsel prays for acceptance of the views expressed by the dissenting Judges, in A.K. Roy v. State of W.B. MANU/WB/0040/1962 : AIR1962Cal135 and by the Bombay and Patna High Courts, in the decisions reported asState v. Murlidhar Govardhan MANU/MH/0088/1960 : (1959)61BOMLR1656 , and Ram Nandan v. State MANU/BH/0103/1966 : AIR1966Pat438 , respectively. 7. In order, properly, to appreciate the duties of the police, in the matter of investigation of offences, as well as their powers, it is necessary to refer to the provisions contained in Chapter XIV of the Code. That chapter deals with "Information to the Police and their Powers to investigate"; and it contains the group of sections beginning from Section 154, and ending with Section 176. Section 154 deals with information relating to the commission of a cognizable offence, and the procedure to be adopted in respect of the same. Section 155, similarly, deals with information in respect of non-cognizable offences. Sub-section (2), of this section, prohibits a police officer from investigating a non-cognizable case, without the order of a Magistrate. Section 156 authorises a police officer, in-charge of a police station, to investigate any cognizable case, without the order of a Magistrate. Therefore, it will be seen that large powers are conferred on the police, in the matter of investigation into a cognizable offence. Sub-section (3), of Section 156, provides for any Magistrate, empowered under Section 190, to order an investigation. In cases where a cognizable offence is suspected to have been committed, the officer in-charge of a police station, after sending a report to the Magistrate, is entitled, under Section 157, to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender. Clause (b), of the proviso to Section 157(1), gives a discretion to the police officer not to investigate the case, if it appears to him that there is no sufficient ground for entering on an investigation. Section 158 deals with the procedure to be adopted in the matter of a report to be sent, under Section 157. Section 159 gives power to a Magistrate, on receiving a report under Section 157, either to direct an investigation or, himself or through another Magistrate subordinate to him, to hold a preliminary enquiry into the matter, or otherwise dispose of the case, in accordance with the Code. Sections 160 to 163 deal with the power of the police to require attendance of witnesses, examine witnesses and record statements. Sections 165 and 166 deal with the power of police officers, in the matter of conducting searches, during an investigation, in the circumstances, mentioned therein. Section 167 provides for the procedure to be adopted by the police, when investigation cannot be completed in 24 hours. Section 168 provides for a report being sent to the officer in charge of a police station, about the result of an investigation, when such investigation has been made by a subordinate police officer, under Chapter XIV. Section 169 authorises a police officer to release a person from custody, on his executing a bond, to appear, if and when so required, before a Magistrate, in cases when, on investigation under Chapter XIV, it appears to the officer in-charge of the police station, or to the police officer making the investigation, that there is no sufficient evidence or reasonable ground of suspicion, to justify the forwarding of the accused to a Magistrate. Section 170 empowers the officer, in charge of a police station, after investigation under Chapter XIV, and if it appears to him that there is sufficient evidence, to forward the accused, under custody, to a competent Magistrate or to take security from the accused for his appearance before the Magistrate, in cases where the offence is bailable. Section 172 makes it obligatory on the police officer making an investigation, to maintain a diary recording the various particulars therein and in the manner indicated in that section. Section 173 provides for an investigation, under Chapter XIV, to be completed, without unnecessary delay and also makes it obligatory, on the officer in charge of the police station, to send a report to the Magistrate concerned, in the manner provided for therein, containing the

necessary particulars. 8. It is now only necessary to refer to Section 190, occurring in Chapter XV, relating to jurisdiction of Criminal Courts in inquiries and trials. That section is to be found under the heading "Conditions requisite for initiation of proceedings" and Sub-section (1) is as follows: (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. 9. From the foregoing sections, occurring in Chapter XIV, it will be seen that very elaborate provisions have been made for securing that an investigation does take place into a reported offence and the investigation is carried out within the limits of the law, without causing any harassment to the accused and is also completed without unnecessary or undue delay. But the point to be noted is that the manner and method of conducting the investigation, are left entirely to the police, and the Magistrate, so far as we can see, has no power under any of these provisions, to interfere with the same. If, on investigation, it appears to the officer, in-charge of a police station, or to the officer making an investigation, that, there is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Magistrate, Section 169 says that the officer shall release the accused, if in custody, on his executing a bond to appear before the Magistrate. Similarly, if, on the other hand, it appears to the officer, in- charge of a police station, or to the officer making the investigation, under Chapter XIV, that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, under Section 170, to forward the accused to a Magistrate; or, if the offence is bailable, to take security from him for his appearance before such Magistrate. But, whether a case comes under Section 169, or under Section 170, of the Code, on the completion of the investigation, the police officer has to submit a report to the Magistrate, under Section 173, in the manner indicated therein, containing the various details. The question as to whether the Magistrate has got power to direct the police to file a chargesheet, on receipt of a report under Section 173 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report. 10. In this connection, we may refer to certain observations, made by the Judicial Committee in King Emperor v. Khwaja Nazir Ahmed MANU/PR/0007/1944 and by this Court, in H.N. Rishbud and Inder Singh v. State of Delhi MANU/SC/0049/1954 : 1955CriLJ526 . In Nazir Ahmed case (supra), Lord Porter observes, at p. 212, 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 on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as Their Lordships think, 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. 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 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the court's functions begin when a charge is preferred before it, and not until then. These observations have been quoted, with approval, by this Court, in State of West Bengal v. S.N. Basak MANU/SC/0114/1962 : [1963]2SCR52 . This Court inRishbud and Inder Singh case MANU/SC/0049/1954 : 1955CriLJ526 observes, at p. 1156, as follows: Investigation usually starts on information relating to the commission of an offence given to an officer in- charge of a police station and recorded under Section 154 of the Code. If from information so received or otherwise, the officer in-charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment or the facts and circumstances of the case. By definition, it includes all the proceedings under the Code for the collection of evidence

conducted by a police officer. Again, after a reference to some of the provisions in Chapter XIV of the Code, it is observed at p. 1157: Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet under Section 173.... It is also clear that the final step in the investigation viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in-charge of the police station. 11. We are referring to these observations for the purpose of emphasizing that the scheme of Chapter XIV, clearly shows that the formation of an opinion as to whether or not there is a case to place the accused on trial, has been left to the officer in- charge of a police station. Bearing in mind these principles referred to above, we have to consider the question that arises for consideration, in this case. The High Courts which have held that the Magistrate has no jurisdiction to call upon the police to file a charge-sheet, under such circumstances, have rested their decision on two principles viz. (a) that there is no express provision in the Code empowering a Magistrate to pass such an order; and (b) such a power, in view of the scheme of Chapter XIV, cannot be inferred vide Venkata Subba v. AnjanavuluMANU/TN/0210/1932 : AIR 1932 Mad 673, Abdul Rahim v. Abdul Muktadin MANU/GH/0051/1953 ; Amar Premanand v. State MANU/MP/0007/1960 : AIR1960MP12 ; the majority view in A.K. Roy v. State of W.B.; and State of Gujarat v. Shah Lakhamshi. On the other hand, the High Courts which have recognised such a power, rest their decision again on two grounds viz. (a) where a report is submitted by the police, after investigation, the Magistrate has to deal with it judicially, which will mean that when the report is not accepted, the Magistrate can give suitable directions to the police; and (b) the Magistrate is given supervision over the conduct of investigation by the police, and therefore, such a power can be recognised in the Magistrate vide State v. Murlidhar Goverdhan; and Ram Nandan v. State. 12. Though it may be that a report submitted by the police may have to be dealt with judicially, by a Magistrate, and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. But, we may make it clear, that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him to take cognizance of an offence and proceed, according to law. We do not also find any such power, under Section 173(3), as is sought to be inferred, in some of the decisions cited above. As we have indicated broadly the approach made by the various High Courts in coming to different conclusions, we do not think it necessary to refer to those decisions in detail.
8. Accordingly we set aside the impugned order of the High Court and remit the matter to it to consider the following aspects:

(a) Whether the revision petition before the Sessions Judge was maintainable at the instance of Respondent No. 2 and that too after considerable length of time; (b) Whether the appellant needs to be heard; and (c) whether the informant has to be given the notice.
9. Appeal is allowed to the aforesaid extent. Manupatra Information Solutions Pvt. Ltd.
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MANU/SC/7130/2008 Equivalent Citation: 2008(1)ACR995(SC), AIR2008SC1265, CLT(2008)Supp.Crl.514, 2008CriLJ1655, JT2008(2)SC261, 2008(Supp. (Crl)OLR514, RLW2008(3)SC2705, 2008(2)SCALE391, (2008)11SCC431 IN THE SUPREME COURT OF INDIA Criminal Appeal No. 294 of 2008 (Arising out of SLP (Crl.) No. 365 of 2007) Decided On: 12.02.2008 Appellants: Har Prasad and Anr. Vs. Respondent: Ranveer Singh and Anr. Hon'ble Judges/Coram: Dr. Arijit Pasayat and P. Sathasivam, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Shakil Ahmed Syed, Adv For Respondents/Defendant: Shail Kumar Dwivedi, AAG., Debasis Misra, Anuvrat Sharma, S.N. Pandey, Vandana Mishra and Vibha Dwivedi, Advs. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure, 1973 (CrPC) - Section 169, Code of Criminal Procedure, 1973 (CrPC) Section 170, Code of Criminal Procedure, 1973 (CrPC) - Section 173, Code of Criminal Procedure, 1973 (CrPC) - Section 173(3), Code of Criminal Procedure, 1973 (CrPC) - Section 190, Code of Criminal Procedure, 1973 (CrPC) - Section 190(1) Cases Referred: Abhinandan Jha and Ors. v. Dinesh Mishra MANU/SC/0054/1967 Prior History: From the Judgment and Order dated 24.11.2006 of the High Court of Allahabad in Criminal Revision No. 147 of 2001 Disposition: Appeal dismissed Citing Reference:

Discussed 1 Case Note: Criminal - Protest petition - Filing of false affidavit - Section 173 of the Code of Criminal Procedure, 1973 - Additional District and Sessions Judge accepted the contention that the informant of the case got a false affidavit filed along with protest petition, and therefore no action could have been taken - High Court held that the order was not passed on the protest petition and was in fact passed on consideration of the report submitted in terms of Section 173 - Whether the order was passed by the Magistrate on protest petition or on the police report - Held, the factual position goes to show the order passed by the Magistrate was in consideration of the police report and was not relatable to the protest petition - View of the High Court does not suffer from any infirmity and no interference is called for - Appeal dismissed JUDGMENT Arijit Pasayat, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court allowing the revision filed by respondent No. 1. The revision was filed questioning the legality of the order dated 18.11.2000 passed by XIII Additional District and Sessions Judge, Aligarh in Criminal Revision No. 272 of 2000 accepting the contention that the informant of the case got a false affidavit filed alongwith protest petition, and therefore no action could have been taken. 3. Stand taken before the learned Sessions Judge was that by the time the protest petition was filed the informant had died and false affidavit with a thumb impression was filed. Since the informant had already died, the learned Magistrate could not have been proceeded in the matter. This found acceptance by the learned Sessions Judge. The High Court by the impugned order had held that the order was not passed on the protest petition and was in fact passed on consideration of the report submitted in terms of Section 173 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.'). 4. Learned Counsel for the appellants submitted that the High Court fell in grave error by holding that the filing of false affidavit, if any, alongwith protest petition was immaterial. According to him, when the learned Magistrate acted upon the protest petition, the view that the affidavit alongwith the protest

petition was not of any consequence, cannot be maintained. Learned Counsel for the respondents on the other hand submitted that a bare reading of the order passed by learned Magistrate shows that the order did not have its foundation on the protest petition, but was relatable to the report submitted under Section 173 Cr.P.C. 5. The only question that falls for consideration is whether the order was passed by learned Magistrate on protest petition or on the police report. 6. Reference may be made to a judgment of this Court in Abhinandan Jha and Ors. v. Dinesh Mishra MANU/SC/0054/1967 : 1968CriLJ97 where it was held as follows:

8. It is now only necessary to refer to Section 190, occurring in Chapter XIV, relating to jurisdiction of Criminal courts in inquiries and trials. That section is to be found under the heading "Conditions requisite for initiation of proceedings" and Subsection (1) is as follows: (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. 9. From the foregoing sections, occurring in Chapter XIV, it will be seen that very elaborate provisions have been made for securing that an investigation does take place into a reported offence and the investigation is carried out within the limits of the law, without causing any harassment to the accused and is also completed without unnecessary or undue delay. But the point to be noted is that the manner and method of conducting the investigation, are left entirely to the police, and the Magistrate, so far as we can see, has no power under any of these provisions, to interfere with the same. If, on investigation, it appears to the officer, in-charge of a police station, or to the officer making an investigation, that there is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Magistrate, Section 169 says that the officer shall release the accused, if in custody, on his executing a bond to appear before the Magistrate. Similarly, if, on the other hand, it appears to the officer, in-charge of a police station, or to the officer making the investigation, under Chapter XIV, that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, under Section 170, to forward the accused to a Magistrate or, if the offence is bailable, to take security from him for this appearance before such Magistrate. But, whether a case comes under Section 169, or under Section 170, of the Code, on the completion of the investigation, the police officer has to submit a report to the Magistrate, under Section 173, in the manner indicated therein, containing the various details. The question as to whether the Magistrate has got power to direct the police to file a charge - sheet, on receipt of a report under Section 173 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report. Xx xx xx 12. Though it may be that a report submitted by the police may have to be dealt with judicially, by a Magistrate, and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. But, we may make it clear, that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him to take cognizance of an offence and proceed, according to law. We do not also find any such power, under Section 173(3), as is sought to be inferred, in some of the decisions cited above. As we have indicated broadly the approach made by the various High Courts in coming to different conclusions, we do not think it necessary to refer to those decisions in detail. 13. It will be seen that the Code, as such, does not use the expression 'charge-sheet' or 'final report'. But it is understood, in the Police Manual containing Rules and Regulations, that a report by the police, filed under Section 170 of the Code, is referred to as a 'charge-sheet'. But in respect of the reports sent under Section 169i.e. when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, it is termed variously, in different States, as either 'referred charge', 'final report', or 'summary'. xx xx xx 17. We have to approach the question, arising for consideration in this case, in the light of the circumstances pointed out above. We have already referred to the scheme of Chapter XIV, as well as the observations of this Court in Rishbud and Inder Singh's Case AIR 1955 SC 196 that the information of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is left to the officer in-charge of the

police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack; nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. 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 'charge-sheet', 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.
7. As the factual position goes to show the order passed by learned Magistrate was in consideration of the police report and was not relatable to the protest petition. That being so, the view of the High Court does not suffer from any infirmity and no interference is called for. The appeal is dismissed. Manupatra Information Solutions Pvt. Ltd.
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