Abhinandan Jha & Ors Vs. Dinesh
Mishra  INSC 110 (17 April 1967)
17/04/1967 VAIDYIALINGAM, C.A.
CITATION: 1968 AIR 117 1967 SCR (3) 668
RF 1977 SC2401 (13) R 1979 SC 777 (15,32) D
1980 SC1883 (7) RF 1981 SC 379 (38) RF 1991 SC1260 (44) RF 1992 SC 604 (39)
Code of Criminal Procedure (Act 5 of 1898),
ss. 169, 170, 173 and 190(1)-Report to police of cognizable offence-Report by
police to magistrate after investigation that offence not made out-If
magistrate can direct police to file chargesheet.
On the question whether a magistrate could
direct the police to submit a charge-sheet, when the police, after
investigation into a cognizable offence, had submitted a report of the action
taken under s. 169, Cr. P.C., that there was no case made out for sending up
the accused for trial,
HELD : There was no such power conferred on a
magistrate either expressly or by implication.
When a cognizable offence is reported to the
police they may after investigation take action under s. 169 or S. 170 Cr.
P.C. If thepolice :think there is not
sufficient evidence against the accused, they may, under s. 169 release the
accused from custody on his executing a bond to appear before a competent magistrate
if and when so required; or, if the police think there is sufficient evidence,
they may, under s. 170, forward the accused under custody to a competent
magistrate or release the accused on bail in cases where the offences are
bailable. In either case the police should submit a report of the action taken,
under s. 173, to the competent magistrate whoconsiders it judicially under s.
190 and takes the following action :
(1) If the report is a charge-sheet under s.
170 it is open to the magistrate to agree with it and take cognizance of the
offence under s. 190(1) (b); or to take the view that the facts disclosed do
not make out an offence and decline to take cognizance. But he cannot call upon
the police to submit a report that the accused need not be proceeded against on
the ground that there was not sufficient evidence.
(2) If the report is of the action taken
under s. 169, then the magistrate may agree with the report and close the
proceeding. If he disagrees with the report he can give directions to the
police under s. 156(3) to make a further investigation. If the police, after
further investigation submit a charge-sheet, the magistrate may follow the
procedure where the charge-sheet under s. 170 is filed; but if the police are
still of the opinion that there was not sufficient evidence against the
accused, the magistrate may agree or disagree with it. Where he agrees, the
case against the accused is closed. Where the magistrate disagrees and forms
the opinion that the facts set out in the report constitute an offence, he .can
take cognizance under s. 190(1)(c). The provision in s. 169 enabling the Police
to take a bond for the appearance of the accused before a magistrate if so
required, is to meet such a contingency of the magistrate taking cognizance of
the offence notwithstanding the contrary opinion of the police.
The power under s. 190(1)(c) was intended to
Secure that 66 9 offences may not go unpunished and justice may be invoked even
where persons individually aggrieved are unwilling or unable to prosecute, or
he police either wantonly or through a bona, fide error do not submit a
charge-sheet. But the magistrate cannot direct the Police to submit a chargesheet,
because the submission of the report depends entirely upon the opinion formed by
the police and not on the opinion of the magistrate. The magistrate, if he
disagrees with the report of the police, can. himself take cognizance of the
offence under s. 19O(1)(a) or (c), but, be cannot compel the police to form a
particular opinion on investigation and submit a report according to such
opinion. [672F-H; 673B;
676H; 677B-H; 678 A-H; 679A-C. E-H] State of
Gujarat v. Shah Lakhamshi, A.I.R. 1966 Gujarat 283 (F.B.); Venkatusubha v.
Anjanayulu, A.I.R. 1932 Mad. 673;
Abdul Rahim v. Abdul Muktadin, A.I.R. 1953
Assam 112; Amar Premanand v. State, A.I.R. 1960 M.P. 12 and A. K. Roy v.
State of West Bengal, A.I.R. 1962 Cal. 135
State v. Murlidhar Govardhan, A.I.R. 1960
Bom. 240 and Ram Wandan v. State, A.I.R. 1966 Pat. 438, disapproved.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 218 of 1966.
Appeal by special leave from the order dated
August 5, 1966 of the Patna High Court in Criminal Revision No. 1020 of 966,
AND Criminal Appeal No. 238 of 1966.
Appeal by special leave from the judgment and
order dated September 13, 1966 of the Patna High Court in Criminal Revision No.
40 of 1965.
B. P. Jha and Subhag Mal Jain, for the
appellants (in Cr.
A. No. 218 of 1966).
Nuruddin Ahmed and R. C. Prasad, for the
appellants (in Cr.
A. No. 238 of 1966).
U. P. Singh, for the respondents (in both the
The Judgment of the Court was delivered by
Vaidialingam, J. The common question, that arises for consideration, in these
two criminal appeals, by special leave, is as to whether a Magistrate can
direct the police to submit a charge-sheet, when the police, after the
investigation into a congnizable offence, had submitted a final report, under
S. 173 of the Code of. Criminal Procedure (hereinafter called the Code). There
is a conflict of opinion, on this point between the various High Courts in
India. The High Courts of Madras, Calcutta, Madhya Pradesh, Assam and Gujarat
have taken the view that the Magistrate has no such power, whereas, the Patna
and Bombay High Courts have held a contrary view.
In Criminal Appeal No. 218 of 1966, the
respondent, Dinesh Mishra, lodged a first information report, on June 3, 670
1965, at the Rajoun Police Station, that he saw a thatched house, of one Uma
Kant Misra, situated on the northern side of his house, burning, and the
petitioners herein., running away from the scene,. The police made an
investigation and submitted what is called a 'final report', under s. 173 (1)
of the Code, to the effect that the offence complained of, was false. The
Sub-Divisional Magistrate received this report on July 13, 1965, but, in the
meanwhile, the respondent had filed what is termed 'a protest petition',
challenging the correctness of the report submitted by the police. The
Magistrate appears to have perused the police diary and, after hearing the
counsel for the respondent and the public prosecutor, passed an order on
October 27, 1965, directing the police to submit a charge-sheet, against the
petitioners, herein. The petitioners challenged this order, without success,
both before the learned Sessions Judge, Bhagalpur, and the Patna High Court. It
was held by the High Court, following its previous decision, that the
Magistrate has jurisdiction to call for a charge-sheet, when he disagrees with
the report submitted by the police, under S. 173(1) of the Code. The
petitioners, in this appeal, challenge these orders.
Similarly, in Criminal Appeal No. 238 of
1966, the second respondent therein, had lodged a written report, on February
24. 1.964, before the police, at Malsalami
police station, that his daughter, Hiramani, was missing from February 21,
1964, and that the appellants in that appeal, had kidnapped her. A case under
S. 366 I.P.C. was registered against them. The police, after investigation,
submitted a final report to the Magistrate. to the effect that the girl
concerned, had been recovered and that she bad stated that she had, of her own
accord, eloped; and therefore the police stated that the case might be treated
The second respondent filed a 'protest
petition' in Court, challenging the statements of the police and he also filed
a complaint, under s. 498 I.P.C. The Magistrate, after a perusal of the case
diary of the police, and hearing the lawyer for the appellants and the second
respondent, as also the public prosecutor, passed an order directing the
investigating officer to submit a charge-sheet, against the accused persons,
under S. 366 I.P.C This order has been confirmed by the, learned Sessions
Judge, as well as the Patna High Court. Here also, the Patna High Court, in
accordance with its previous decision, held that the Magistrate had
jurisdiction to pass the order, in question.
All these orders are challenged by the
appellants, in this appeal.
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 S. 173(1) of the Code,, 6 71 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 befell
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.
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(1). 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 position 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. (2) and by the Bombay and Patna High Courts, in the decisions
reported as State v. Murlidhar Govardhan(3), and Ram Nandan v. State ( 4 ) ,
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 section beginning from s. 154 and
ending with s. 176. Section 154 deals with information relating to the
commission of a cognizable R. 1966 Guj, 283. (2) A. 1. R. 1962 Cal. 135 (F.
(3) A. 1. R. 1960 Bom. 240 (4) A. 1. R. 1966
67 2 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-s. (2), of this section, prohibits a
police officer from investigating a non-cognizable case, without the order of a
Section 156 authorizes a police officer,
in-charge of a police station, to investigate any cognizable case, without the
order of a Magistrate. Therefore, it wilt be seen that large powers are
conferred on the police, in the matter of investigation into a cognizable
offence. Sub-s. (3), of s.
156, provides for any Magistrate empowered
under S. 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 S. 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 s.
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 S. 157.
Section 159 gives power to a Magistrate, on
receiving a report under S. 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, incharge 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, incharge 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 673
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, incharge of the police station, to send a report to
the Magistrate concerned, in the manner provided for therein, containing the
It is now only necessary to refer to S. 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 its sub-S.
(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." 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, incharge of a police
station, or to the officer making an investigation, that ,,here is no
sufficient evidence or reasonable grounds of suspicion justifying the
forwarding of an accused to a Magistrate,, S. 169 says that the officer shall
release the accused, if in custody, on hi-, 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 S. 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 S. 169, or under S. 170, of the
Code, on the completion of the investigation, the police officer has to
L7SupCI/67-13 674 submit a report to the Magistrate, under s. 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 s. 173 really depends upon the nature of the jurisdiction exercised by a
Magistrate, on receiving a report.
In this connection, we may refer to certain
observations, made by the Judicial Committee in King Emperor v. Khwaja Nazir
Ahmed(1) and by this Court, in H. N. Rishbud and Inder Singh v. The State of
Delhi(2). In Nazir Ahmed's Case(1), Lord Porter observes, at 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 s. 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(3). This Court in Rishbud and Inder Singh's Case(1), observes, at p. 1156,
as follows :
"Investigation usually starts on
information relating to the commission of an offence given to an officer
incharge of a police station and recorded under sec(1) L. R. 71 1. A. 203. (2)
 1. S. C. R. 115).
(3) A. 1. R. 1963 S. C. 447.
675 tion 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 a 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 1 7 3. . . . . It is also clear that the final step in the
investigation viz., the formation of the opinion as to whether or no' there is
a case to place the accused on trial is to be that of the officer in-charge of
the police station." 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 incharge 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 Tested 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 L7SUPCI/67 14 676 Chapter XIV, cannot be inferred-vide Venkata
Subha v Anjanayulu(1); Abdul Rahim v. Abdul Muktadin(2); Aman Premanand v.
State(3); the majority view in A. K. Roy v. State of W. B.(1); and Stale of
Gujarat v. Shah Lakhamshi(5). Or 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 where 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 there ore, such a power can be recognised in the Magistrate-vide
State v. Murlidhar Goverdhan(6); and Ram Nandan v. State(7).
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 lo take cognizance of an offence and
proceed, according to law. We do not also find any such power, under s. 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
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 s. 170 of the Code, is referred to as a 'charge-sheet'. But
in respect of the reports sent under s. 169, i.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
In these two appeals, which are from the
State of Bihar, the reports, under s. 169, are referred to as 'final report'.
Now, the question as to what exactly is to be
done by a Magistrate, on receiving a report. under s. 173, will have to be considered.
That report may be inrespect of a case, coming under s. 170, (1) A.I.R. 1932
Mad. 673. (2) A.I.R. 1953 Assam 112.
(3) A.I.R. 1960 M P. 12. (4) A.I.R. 1962 Cal.
(5) A.I.R. 1966 Guj. 283. (6) A.I.R. 1960
(7) A.I.R. 1966 Pat. 438.
677 or one coming under s. 169. We have
already referred to s. 190, which is the first section in the group of sections
headed 'Conditions requisite for Initiation of Proceedings.' Sub-s. (1), of
this section, will cover a report sent, under s. 173. The use of the words 'may
take cognizance of any offence', in sub-s. (1) of s. 190 in our opinion imports
the exercise of a 'judicial discretion', and the Magistrate, who receives the
report, under s.. 173, will have to consider the said report and judicially
take a decision, whether or not to take cognizance of the offence. From this it
follows that it is not as if that the Magistrate is bound to accept ,,the
opinion of the police that there is a case for placing the accused, on trial.
It is open to the Magistrate to take the view that the facts disclosed in the
report do not make out an offence for taking cognizance or he may take the view
that there is no sufficient evidence to justify an accused being put on trial.
On either of these grounds, the Magistrate will be perfectly justified in
declining to take cognizance of an offence, irrespective of the opinion of the
police. On the other hand, if the Magistrate agrees with the report, which is a
charge-sheet submitted by the police, no difficulty whatsoever is caused,
because he will have full jurisdiction to take cognizance of the offence, under
s. 190(1)(b) of the Code. This will be the position, when the report under s.
173, is a charge-sheet.
Then the question is, what is the position,
when the Magistrate is dealing with a report submitted by the police, under s.
173, that no case is made out for sending up an accused for trial, which
report, as we have already indicated, is called, in the area in question, as a
'final report'? Even in those cases, if the Magistrate agrees with the said
report, he may accept the final report and close the proceedings. But there may
be instances when the Magistrate may take the view, on a consideration of the
final report, that the opinion formed by the police is not based on a full and
complete investigation, in which case in our opinion the Magistrate will have
ample jurisdiction to give directions to the police, under s. 1 5 6 ( 3 ), to
make a further investigation. That is, if the Magistrate feels, after
considering the final report, that the investigation is unsatisfactory, or
incomplete, or that there is scope for further investigation, it will be open
to the Magistrate to decline to accept the final report and direct the police
to make further investigation, under s.
156(3). The police, after such further
investigation, may submit a charge-sheet, or,, again submit a final report,
depending upon the further investigation made by them. If, ultimately, the
Magistrate forms the opinion that the facts, set out in the final report,
constitute an offence, he, can take cognizance of the offence under s. 190(1)
(c), notwithstanding the contrary opinion of the police, expressed in the final
678 In this connection, the provisions of S.
169 of the Code, are relevant. They specifically provide that even though, on
investigation, a police officer, or other investigating officer, is of the
opinion that there is no case for proceeding against the accused, he is bound,
While releasing the accused,, to take a bond from him to appear, 'If and.
when required, before a Magistrate. This
provision is obviously to meet a contingency of the Magistrate, when he
considers the report of the investigating officer, and judicially takes a view
different from the police.
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 XXIV, as well as the
observations of this Court in Rishbud and Inder Singh's Case(1) that the formation
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 tile police,
to take cognizance, under S. 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
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 s. 190(1)
(c), on the ground that, after having due regard to the final report and the
police records placed before him, be has reason to suspect that an offence has
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 s. 170, being a 'charge sheet', or under S. 169, 'a final
report'. It is no (1) 1 S.C.R. 1150.
67 9 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. Thai 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 s. 169, or under s. 170,
depending upon the nature of the decision. Such a function has been left to the
police, under the Code.
We have already pointed out that the
investigation, under the Code, takes in several aspects, and stages, ending
ultimately with the formation of an opinion by the police as to whether, on the
material covered and collected, a case is made out to place the accused before
the Magistrate for trial, and the submission of either a charge-sheet, or a
final report is dependent on the nature of the opinion, so formed. The
formation of ,the said opinion, by the police, as pointed out earlier, is the
final step in the investigation, and that final step is to be taken only by the
police and by no other authority.
The question can also be considered from
another point of view. Supposing the police send a report, viz., a charge sheet,
under s. 170 of the Code. As we have already pointed out, the Magistrate is not
bound to accept that report, when he considers the matter judicially. But, can
he differ from the police. and call upon them to submit a final report, under
s.169 ? In our opinion, the Magistrate has no such power. If he has no such
power, in law, it also follows that the Magistrate has no power to direct the
police to submit a charge-sheet when the police have submitted a final report
that no case is made out for sending the accused for trial. The functions of
the Magistracy and the police, are entirely different, and though, in the
circumstances mentioned earlier the Magistrate may or may not accept the report,
and take suitable action, according to law, he cannot certainly infringe upon
the jurisdiction of the police, by compelling them to change their opinion, so
as to accord with his view.
Therefore, to conclude, 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 s. 169
of the Code, that there is no case made out for sending tip an accused for
L7 Sup. CI/6715 680 In these two appeals, one
other fact will have to be taken note of. It is not very clear as to whether
the Magistrate, in each of these cases, has chosen to treat the protest
petitions, filed by the respective respondents, as complaints, because, we do
not find that the Magistrate has adopted the suitable procedure indicated in
the Code, when he takes cognizance of an offence, on a complaint made to him.
Therefore, while holding that the orders of the Magistrate, in each of these
cases, directing the police to file charge-sheets, is Without jurisdiction, we
make it clear that it is open to the Magistrate to treat the respective protest
petitions, as complaints, and take further proceedings, according to law, and
in the light of the views expressed by us, in this judgment.
Mr. Nuruddin Ahmed, learned counsel for the
appellants in Criminal Appeal No. 238 of 1966, particularly urged that it is
unnecessary to direct further proceedings to be continued, so far as his
clients are concerned. Learned counsel pointed out that the police report
before the Magistrate clearly shows that the girl, in question, who is stated
to be above 19 years of age, has herself stated that she bad eloped, of her own
accord and that if that is so, further proceedings against his clients, are
absolutely unnecessary, to be continued. We are not inclined to accept these
contentions of the learned counsel. As to whether an offence is made out or
whether any of the appellants or both of them are guilty of the offences with
which they may be charged, are all matters which do not require to be
considered, by this Court, at this stage.
In the result, subject to the directions
contained above, the orders of the Magistrate, directing the police to file a
charge, will be set aside, and the appeals allowed, to that extent.
V.P.S. Appeals allowed.