Chittaranjan Mirdha Vs.
Dulal Ghosh & ANR.  INSC 991 (8 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 964 OF 2008
(Arising out of SLP (Crl.) No. 5189 of 2007) Chittaranjan Mirdha ...Appellant
Versus Dulal Ghosh & Anr. ...Respondents
Dr. ARIJIT PASAYAT,
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, 4th 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.
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
3 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') .
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
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.
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.
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.
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
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
support of the appeal, learned counsel for the appellant submitted that the
course adopted cannot be maintained in law.
counsel for the respondent No. 1, on the other hand, supported the judgment of
the High Court.
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 Another
(AIR 1985 SC 1285), 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:
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 Section 173,
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..."
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.
Abhinandan 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 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).
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 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. 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 M/s. India Sarat Pvt. Ltd. v. State of Karnataka
and another (AIR 1989 SC 885)]. 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.
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.
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..."
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.
aforesaid position was highlighted by this Court in Gangadhar Janardan Mhatre
v. State of Maharashtra and Ors. (2004 (7) SCC 768).
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
being so we find no merit in this appeal which is dismissed.
(Dr. ARIJIT PASAYAT)