And Anr Vs. The State of Bihar & Ors  Insc 200 (12 April 2006)
Pasayat & S.H. Kapadia
out of (SLP (Crl.) No. 4607 of 2003) ARIJIT PASAYAT, J.
in this appeal is to the legality of order passed by a learned Single Judge of
the Patna High Court rejecting the petition filed by the appellants in terms of
Section 482 of the Code of Criminal Procedure, 1973 (in short the 'Code').
position in essence is as follows:
written report of informant Dhrup Narain Dubey, father of respondents 2 and 3
case for alleged commission of offences punishable under Sections 341, 323 and
435 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC')
was registered vide Raghunath Pur P.S. case No.7/99 dated 20.8.1999. It was
alleged that accused persons named in the FIR assaulted the informant and
others. However, the police after investigation submitted charge sheet wherein
three of the ladies accused were found to be not involved in the case.
police submitted charge sheet only against Harendra Dubey and Sheo Kumar Dubey.
The charge sheet was placed before the learned Chief Judicial Magistrate (in
short the 'CJM') who by his order dated 15.2.1999 took cognizance of the
offence and directed issuance of processes against accused Sheo Kumar Dubey, Harendra
Dubey, and appellants Minu Kumari and Runjhun Kumari on the ground that there
is a prima facie case against them for the offences punishable u/s 341, 323 and
435 read with Section 34 IPC. The learned CJM also ordered for issuance of
summons and made over the case to the court of Judicial Magistrate, 1st Class
for favour of disposal.
on behalf of appellants Minu Kumari and Runjhun Kumari a petition was filed
before the Court of learned CJM praying therein that due to clerical error the
names of the appellants have also been mentioned in the order dated 15.2.1999
and cognizance was also taken and issuance of summons was also ordered so far
as they are concerned.
learned CJM on the above petition got a miscellaneous case No.37/99 registered
and by order dated 5.5.1999 he called for the record from the court of the
Magistrate, where the Trial No.795/1999 was pending. The learned CJM heard
learned counsel for the appellants and ordered to strike of their names.
order passed by learned CJM was assailed before learned First Additional
District and Sessions Judge, Siwan who set aside the order holding that the
learned CJM did not have any power, muchless inherent power to recall or review
his order. With reference to Section 362 of the Code it was held that the Court
is not empowered to alter the judgment save as otherwise provided by the Code
or by any other law for the time being in force. It was further held that the
order passed by learned CJM amounted to review. Accordingly, the order passed
by learned CJM was set aside.
questioned correctness of the order by filing a petition under Section 482 of
the Code which came to be dismissed on the ground that the Subordinate Court could not have recalled its own
order under Section 362 of the Code on the pretext that there was correction of
clerical and arithmetical errors.
support of the appeal, learned counsel for the appellants submitted that
approach of the High Court is clearly erroneous. Even if it is conceded for the
sake of argument that the Subordinate Court could not have recalled or review its order, on the facts of the case
the High Court should have exercised power under Section 482 of the Code.
spite of service of notice respondents 2 and 3 have not entered appearance.
counsel for the State of Bihar submitted that technically the
learned 1st Additional District and Sessions Judge was correct. But the High
Court should have exercised power under Section 482 of the Code.
Jha and another v. Dinesh Mishra (AIR 1968 SC 117), 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 Magistracy 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
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).
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
report and take cognizance of the offence and issue process, or
with the report and drop the proceeding, or
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 option of adopting one of the three courses open i.e.,
he may accept
the report and drop the proceeding; or
he may disagree
with the report and take the view that there is sufficient ground for further
proceeding, take congnizance of the offence and issue process; or
he may direct
further investigation to be made by the police under Section 156(3). The
position is, therefore, now well-settled that upon receipt of a police report
under Section 173(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.
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 M/s. India Carat Pvt. Ltd. v. State
of Karnataka and another (AIR 1989 SC 885)].
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. This Court in Bhagwant Singh v. Commnr. of Police
(1985 (2) SCC 537) held 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.
indicated above, there is no provision in the Code for issue of a notice in
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.
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..." 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
the information is laid with the Police, but no action in that behalf is taken,
the complainant is given power under Section 190 read with Section 200 of the
Code to lay the complaint before the Magistrate having jurisdiction to take
cognizance of the offence and the Magistrate is required to enquire into the
complaint as provided in Chapter XV of the Code. In case the Magistrate after recording
evidence finds a prima facie case, instead of issuing process to the accused,
he is empowered to direct the police concerned to investigate into offence
under Chapter XII of the Code and to submit a report.
finds that the complaint does not disclose any offence to take further action,
he is empowered to dismiss the complaint under Section 203 of the Code. In case
he finds that the complaint/evidence recorded prima facie discloses an offence,
he is empowered to take cognizance of the offence and would issue process to
the accused. These aspects have been highlighted by this Court in All India
Institute of Medical Sciences Employees' Union
(Reg.) through its President v. Union of India and others (1996 (11) SCC 582).
It was specifically observed that a writ petition in such cases is not to be
above position was highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. (2004 (7) SC 768).
362 of the Code, as noted above, permits correctness of clerical or arithmetical
errors. There is no quarrel with that proposition. But the High Court seems to
have completely lost sight of the scope and ambit of Section 482 of the Code.
Section does not confer any new power on the High Court. It only saves the
inherent power which the Court possessed before the enactment of the Code. It
envisages three circumstances under which the inherent jurisdiction may be
to give effect
to an order under the Code,
to prevent abuse
of the process of court, and
secure the ends of justice. It is neither possible nor desirable to lay down
any inflexible rule which would govern the exercise of inherent jurisdiction.
No legislative enactment dealing with procedure can provide for all cases that
may possibly arise. Courts, therefore, have inherent powers apart from express
provisions of law which are necessary for proper discharge of functions and
duties imposed upon them by law.
is the doctrine which finds expression in the section which merely recognizes
and preserves inherent powers of the High Courts. All courts, whether civil or
criminal possess, in the absence of any express provision, as inherent in their
constitution, all such powers as are necessary to do the right and to undo a
wrong in course of administration of justice on the principle "quando lex aliquid
alicui concedit, concedere videtur et id sine quo res ipsae esse non potest"
(when the law gives a person anything it gives him that without which it cannot
exist). While exercising powers under the section, the court does not function
as a court of appeal or revision.
jurisdiction under the section though wide has to be exercised sparingly,
carefully and with caution and only when such exercise is justified by the
tests specifically laid down in the section itself. It is to be exercised ex debito
justitiae to do real and substantial justice for the administration of which
alone courts exist. Authority of the court exists for advancement of justice
and if any attempt is made to abuse that authority so as to produce injustice,
the court has power to prevent abuse. It would be an abuse of process of the
court to allow any action which would result in injustice and prevent promotion
of justice. In exercise of the powers court would be justified to quash any
proceeding if it finds that initiation/continuance of it amounts to abuse of
the process of court or quashing of these proceedings would otherwise serve the
ends of justice.
noted above, the powers possessed by the High Court under Section 482 of the
Code are very wide and the very plenitude of the power requires great caution
in its exercise.
must be careful to see that its decision in exercise of this power is based on
sound principles. The inherent power should not be exercised to stifle a
legitimate prosecution. The High Court being the highest court of a State
should normally refrain from giving a prima facie decision in a case where the
entire facts are incomplete and hazy, more so when the evidence has not been collected
and produced before the Court and the issues involved, whether factual or
legal, are of magnitude and cannot be seen in their true perspective without
sufficient material. Of course, no hard-and-fast rule can be laid down in
regard to cases in which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S.
Chowdhary (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1).
the factual scenario is considered in the background of legal principle set out
above, the inevitable conclusion is that the High Court was not justified in
rejecting the application in terms of Section 482 of the Code. This is a case
when the cognizance was taken, summons were issued by mistake and the names of
the appellants were also mentioned in the order dated 15.2.1999. Since the
police have not found any material against the appellants, the learned CJM
without following the procedure as indicated above could not have directed issuance
of summons so far as they are concerned. There was no indication that learned
CJM dis- agreed with the opinion of the investigating agency and therefore
ordered issuance of summons. On the contrary, as noted by learned CJM later
that was a mistake and, therefore, he had ordered to strike of the names of the
appellants. The High Court's order is set aside. The names of the appellants
shall be struck of from the array of accused persons.
appeal is allowed.