R. N. Chatterji Vs. Havildar Kuer
Singh [1970] INSC 25 (19 February 1970)
19/02/1970
ACT:
Criminal Procedure Code 1898 Section 156(3)
and 190(1) (c)--Scope of--Investigating Police Officer submitting a report of
insufficient evidence--If Magistrate can direct Police to file a charge sheet.
HEADNOTE:
After investigation of a complaint filed by
the Respondent against the Appellant making certain allegations, the Deputy
Superintendent of Police who carried out the investigation, submitted a report
to the Deputy Inspector- General under whom the investigation was carried on,
to the effect that there was, insufficient evidence against the Appellant and
furthermore that the Respondent's case against the Appellant was false. On a
"protest petition" filed by the Respondent the Sub-Divisional
Magistrate passed an order directing the Police to submit a charge sheet. The
High Court rejected an application in revision filed against this order On
appeal to this Court,
HELD : Allowing the appeal : The provisions
of the Criminal Procedure Code do not empower the Magistrate to ask the police
to submit a charge-sheet. If, however, the Magistrate is of opinion that the
report submitted by the police requires further investigation, the Magistrate
may order investigation under section 156(3) of the Criminal Procedure Code
Directing a further investigation is entirely different from asking the police
to submit a charge-sheet.
Furthermore, section 190(1)(c) of the
Criminal Procedure Code empowers the Magistrate to take cognizance of an
offence notwithstanding a contrary opinion of the police.
[718 G] Emperor v. Nazir Ahmed 71 I.A. 203;
H. N. Rishbud v. State of Delhi [1955] 1 S.C.R. 1150; Abhinandan Jha and Ors.v.
Dinesh Mishra, A.I.R.1968 S.C. 117; referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No.89 of 1967.
Appeal from the judgment and order dated
February 18, 1967 of the Patna High Court in Criminal Revision No. 44 of 1965.
D. Goburdhun, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by
Ray, J. This is an appeal from the Judgment dated 18 November, 1967 of the High
Court at Patna.
The question for consideration is whether a
Sub- Divisional Magistrate could after submission of a final report by the
police 717 direct the police on what is described as a protest petition having.
been filed by the opposite party to submit a charge- sheet.
The facts in short are that on account of an
occurrence at the platform of Muzaffarpur Railway Station on 24 March,1964 two
cases were instituted before the Railway Police.
One of these was instituted by the appellant
against the respondent and the other was instituted by the respondent against
the appellant.
The appellant in the case instituted by him
alleged that the respondent wanted to entrain two of his men in an
unauthorised' way in one of the compartments and the appellant objected to the
same, whereupon the respondent pulled the appellant on the platform and
assaulted him. A charge-sheet was submitted against the respondent in that case.
The present appeal relates to the case
instituted by the respondent against the appellant on these allegations. The
appellant a,, the material time was a Travelling Ticket Examiner while the
respondent was a police havildar. The respondent alleged that while he was on
duty at the railway platform on the relevant date. he found a few smugglers
were travelling in a particular compartment. The respondent wanted to enter the
compartment. The appellant pushed him back. The appellant and three other
Ticket Examiners assaulted the respondent.
The Deputy Superintendent of Railway Police
who carried on the investigation submitted a report to the Deputy Inspector
General (C.I.D.), Crime Branch and Railways tinder whom the, investigation was
carried on, to the effect that there was insufficient evidence against the
appellant and further that the respondent's case against the appellant was a
palpably false story about the smugglers' and the case was therefore to be
returned as "F.R.T. insufficient evidence".
On 2 April, 1964 the respondent filed a
"protest petition" against the final report of the police. On I
September, 1964 the Sub-Divisional Magistrate called for the case diary,
supervision and progress report of the police case as -prayed for by the respondent.
On 14 November, 1964 the Sub--Divisional Magistrate passed an order directing
the police to submit' the charge-sheet under sections 353/379 of the Indian
Penal Code- The appellant went up before the Sessions Judge of Muzaffarpur in
revision against the order of the Sub- Divisional Magistrate and asked for a
reference to the High Court. The appellant's application was rejected by the
Sessions Judge, Thereafter. the 718 appellant filed an application in revision
before the High Court at Patna. The appellant contended that the Sub-
Divisional Magistrate acted without jurisdiction in asking the police to submit
the charge-sheet and therefore the order dated 14 November, 1964 passed by the
Sub-Divisional Magistrate should be quashed.
The High Court at Patna held that calling
for, a charge- sheet by a Magistrate means taking cognizance of the case and
then summoning the accused through the police, and, therefore, it did not
amount to interference with the police investigation. The High Court at Patna
referred to two divergent views expressed by the High Courts. The views of the
High Courts at Calcutta and Madras are that the Magistrate has no such power
whereas the views of the High Courts at Bombay and Patna are to the contrary.
The High Court at Patna did not see any reason to depart from the view of that
Court.
It has been emphasised in several decisions
that 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 enquiry. (See Emperor v. Nazir Ahmed) (1).
This Court in the case of H. N. Rishbud v.
State of Delhi(2) ,said that investigation is primarily an ascertainment of
facts and circumstances of a case and the proceedings in an investigation are
conducted by the police officer. Chapter XIV of the Criminal Procedure Code
relates to information to the police and their powers to investigate. The
investigation carried on by the police results either in release of accused
when evidence is deficient or 'sending the case to. the Magistrate when the
evidence is sufficient. It should also be remembered that when a person is
released by the police because there is not sufficient evidence to justify the
forwarding of the accused to a magistrate a bond is taken to the effect That if
and when so required he will appear before a magistrate empowered to take
cognizance of the offence on a police report.
The provisions of the Criminal Procedure Code
do not empower the magistrate to ask the police to submit a charge- sheet. If.
however, the magistrate is of opinion that the report submitted by the police
requires further investigation the magistrate may order investigation under
section 156(3) of the Criminal Procedure Code' Directing a further
investigation is entirely different from asking the police to submit a
charge-sheet. Furthermore, section 190(1) (c) of the Criminal Procedure Code
empowers (1) 71 I. A. 203.
(2) [1955] 1 S. C. R. 1150.
719 the magistrate to take cognizance of an
offence notwithstanding a contrary opinion of the police.
These provisions in the Criminal Procedure
Code, to which I have referred, indicate two broad features; first, the
formation of an opinion in an investigation is left to the police; and,
secondly, the magistrate exercises judicial functions in dealing with the
report submitted by the police.
This question came up for consideration in
the case of Abhinandan Jha and Ors. v. Dinesh Mishra(1) where it was held that
it was for the police to form their opinion and the final step in the
investigation was to be taken only by the police and no other authority. As to
the powers of the magistrate it is said that he cannot call upon the police to
submit a charge-sheet when they have sent a report, that there is no case for
sending up the accused for trial because that would be dictating to the police
to form opinion in accordance with that of the magistrate. Such a course is not
desirable. That is why the Magistrate, can call for a further investigation.
The decision of the High Court is erroneous.
The order of the Sub-Divisional Magistrate dated 14 ,November, 1964 is quashed.
The appeal is allowed.
R.K.P.S. Appeal allowed.
(1) A.I.R. 1968 S. C. 117.
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