India
Carat Pvt. Ltd. Vs. State of Karnataka & Anr [1989] INSC 60 (15 February 1989)
Natrajan,
S. (J) Natrajan, S. (J) Pathak, R.S. (Cj) Venkatachalliah, M.N. (J)
CITATION:
1989 AIR 885 1989 SCR (1) 718 1989 SCC (2) 132 JT 1989 (1) 308 1989 SCALE
(1)370
ACT:
Criminal
Procedure Code 1973: Sections 190, 200, 202, 203, 204 and 482--Magistrate
directing registration of calendar case under Sections 408, 420 IPC and issue
of summons----Jurisdiction of Magistrate to deal with such complaints--High
Court setting aside the Magistrate's order--Validity of.
HEAD NOTE:
The
appellant gave a report to the Commissioner of Police against the second
respondent, alleging that he had committed the offences of cheating and
criminal breach of trust. It was alleged that the second respondent, who was
employed by the appellant as its Divisional Manager (Export-Import) had
negotiated on behalf of the appellant with an Italian firm for supply of
quality granite stones and had obtained a letter of credit and availing the
credit facility, had drawn a sum of Rs. 13,69,750 and misappropri- ated the
amount.
A case
was registered and investigated, but subsequently the police sent a 'B' Report
to the Court, stating that further investigation was not required as the case
was of a civil nature. Aggrieved by the report, the appellant ap- proached the
Second Additional Chief Metropolitan Magistrate for quashing the report and for
permission to prove the commission of offences by the second respondent. The Magis-
trate passed an order for a calendar case being registered against the second
respondent for offences punishable under Sections 408 and 420 I.P.C. and for
issuing summons to him.
Thereupon
the second respondent filed a petition under Section 482 of the Code before the
High Court and sought the quashing of the order of the Magistrate. The High
Court allowed the petition and set aside the order of the Magis- trate on the
ground that the Magistrate had not followed the procedure for taking cognizance
of the case and issuing process to the accused after the police had sent a 'B'
report in the case. According to the High Court, the Magis- trate should have
issued notice to the appellant to find out whether he was disputing the
correctness of the 'B' report and if so, to comply with the requirements of
Section 200 719 of the Code. The High Court further stated that only after
examining the appellant on oath and his witnesses, the Magistrate should have
decided whether a case should be registered and process issued to the accused.
Aggrieved
by the High Court's order, the appellant has preferred this appeal by special
leave.
On
behalf of the appellant, it was contended that the second respondent had no
locus to question the order of the Magistrate and that the Magistrate was
justified in taking cognizance of the offence and directing the issue of
process to the second respondent.
On
behalf of the respondent, it was argued that since the Magistrate had not
followed the procedure laid down in Section 200 or Section 202, the second
respondent was enti- tled to seek quashing the order of the Magistrate, and the
High Court was right in setting aside the order of the Magistrate.
Allowing
the appeal,
HELD:
1. On receipt of a complaint a Magistrate has several courses open to him. The
Magistrate may take cogni- zance of the offence at once and proceed to record
state- ments of the complainant and the witnesses present under Section 200.
After recording those statements, if in the opinion of the Magistrate there is
no sufficient ground for proceeding, he may dismiss the complaint under Section
203.
On the
other hand if in his opinion there is sufficient ground for proceeding he may
issue process under Section 264. If, however, the Magistrate thinks fit, he may
postpone the issue of process and either inquire into the case him- self or
direct an investigation to be made by the police officer or such other person
as he thinks fit, for the purpose of deciding whether or not there is
sufficient ground for proceeding. He may then issue process if in his opinion
there is sufficient ground for proceeding or dismiss the complaint if there is
no sufficient ground for proceed- ing. Yet another course open to the
Magistrate is that instead of taking cognizance of the offence and following
the procedure laid down under Section 200 or Section 202, he may order an
investigation to be made by the police under Section 156(3). When such an order
is made, the police will have to investigate the matter and submit a report
under Section 173(2). On receiving the police report the Magis- trate may take
cognizance of the offence under Section 190(1)(0) and issue process
straightaway to the accused. The Magistrate may exercise his powers in this 720
behalf irrespective of the view expressed by the police in their report whether
an offence has been made out or not.
This
is because the police report under Section 173(2) will contain the facts
discovered or unearthed by the police as well as the conclusion drawn by the
police there from. If the Magistrate is satisfied that upon the facts
discovered or unearthed by the police there is sufficient material for him to
take cognizance of the offence and issue process, the Magistrate may do so
without reference to the conclusion drawn by the Investigating Officer because
the Magistrate is not bound by the opinion of the police officer as to whether
an offence has been made out or not. Alternately the Magis- trate, on receiving
the police report, may without issuing process or dropping the proceeding
proceed to act under Section 200 by taking cognizance of the offence on the
basis of the complaint originally submitted to him and proceed to record the
statement upon oath of the complainant and the witnesses present and thereafter
decide whether the com- plaint should be dismissed or process should be issued.
[725D-H;726A-C]
2.1
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 investi-
gation 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 opin-
ion 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, in 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 Section 200 and 202 of the Code for taking cognizance of a case under
Section 190(1)(b) though it is open to him to act under Section 200 or Section
202 also. The High Court was, there- fore, wrong in taking the view that the
Second Additional Chief Metropolitan Magistrate was not entitled to direct the
registration of a case against the second respondent and order the issue of
summons to him. [728C-F]
2.2
The fact that in this case the investigation had not originated from a
complaint preferred to the Magistrate but had been made 721 pursuant to a
report given to the police would not alter the situation in any manner. Even if
the appellant had preferred a complaint before the Magistrate and the
Magistrate had ordered investigation under Section 156(3), the police would
have had to submit a report under Section 173(2). [728G-H] K. Sham Rao v. A.R. Diwakar,
[1979] 2 Karnataka Law Journal 441; Nagawwa v. S. Konjalgi, [1976] 3 SCC 736; Abhinandan Jha and Ors. v. Dinesh Mishra,
[1967] 3 SCR 668; H.S. Bains v. State, [1981] 1 SCR 935 and Tufa Ram & Ors.
v. Kishore Singh, [1978] 1 SCR 615 relied on.
Setting
aside the order of the High Court and restoring the order of the Magistrate,
this Court directed that the case against the Second Respondent shall proceed
in accord- ance with law. [729B-C]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 105 of 1989.
From
the Judgment and Order dated 31.10.1987 of the Karnataka High Court in Criminal
Petition No. 400 of 1986.
M.V. Goswami
and B.R.G.K. Achar for the Appellant.
B.
Krishna Prasad and P.K. Rao for the Respondents.
The
Judgment of the Court was delivered by NATARAJAN, J. Special Leave granted.
This
appeal by special leave is directed against an order of the High Court of
Karnataka under Sec. 482 Criminal Procedure Code (For short the Code) setting
aside the order or the Second Additional Chief Metropolitan Magistrate,
Bangalore directing the registration of a calendar case against the second
respondent under Sections 408 and 420 of the Indian Penal Code and the issue of
summons to him under Section 204 of the Code.
So far
as the facts are concerned, they are as follows.
The
appellant gave a report to the Commissioner of Police, Bangalore on 20.2.1980 against the second
respondent alleg- ing that he had committed the offences of cheating and
criminal breach of trust. It was averred that the second respondent, was its
Divisional Manager 722 (Export-Import) and had negotiated on its behalf with an
Italian firm in July 1979 for supply of quality granite stones and had obtained
a letter credit. Availing the credit facility, he had drawn a sum of Rs. 13,59,750
but failed to supply granite stones to the Italian firm and instead had
misappropriated the amount.
On the
foot of the report, a case was registered against the second respondent in Ulsoor
Police Station as Crime No. 145/1980 under Sections 408 and 420 of the Indian
Penal Code and the case was investigated by Shri Bayar, Inspector of Police.
When Shri Bayar went away on promotion, his succes- sor took over the
investigation but subsequently he sent a "B" Report to the Court
stating that further investigation was not required as the case was of a civil
nature.
Aggrieved
by the report sent by the police, the appel- lant approached the Second
Additional Chief Metropolitan Magistrate, Bangalore for the report being
quashed and permission granted to him to prove the commission of of- fences by
the second respondent. The learned Magistrate, after perusing the investigation
records came to the view that a prima-facie case was made out against the
second respondent and consequently he passed an order for a calen- dar case
being registered against him for offences punisha- ble under Sections 408 and
420 of the Indian Penal Code and for summons being issued to him under Sec. 204
of the Code.
Thereupon,
the second respondent filed a petition under Sec. 482 of the Code before the
High Court and sought the quashing of the order of the Magistrate. The High
Court allowed the petition and set aside the order of the Magis- trate on the
ground the Magistrate had not followed the procedure laid down by the Code for
taking cognisance of the case and issuing process to the accused after the
police had sent a 'B' report in the case. The High Court has held that on
receipt of the 'B' report, the Magistrate should have issued notice to the
appellant to find out whether he was disputing the correctness of the 'B'
report and, if so, to comply with the requirements of Sec. 200 of the Code. The
High Court has further stated that only after examining the appellant. on oath
and his witnesses, the Magistrate should have decided whether a case should be
registered and process issued to the accused. The High Court has referred to
the ratio laid down in an earlier case K. Sham Rao v. A.R. Diwakar, [1979] 2
Karnataka Law Journal 441 and followed it.
Aggrieved
by the order of the High Court, the appellant has come forward with this appeal.
723
Mr. B.R.G.K. Achar, learned counsel for the appellant contended that the second
respondent had no locus to ques- tion the order of the Second Additional Chief
Metropolitan Magistrate and therefore, the High Court was in error in
entertaining the petition filed by him under Section 482 of the Code and
setting aside the order of the learned Magis- trate. In support of this
contention he placed reliance on the decision in Nagawwa v.S. Konjalgi, [1976]
3 SCC 736. He further submitted that the Second Additional Chief Metropol- itan
Magistrate was entitled to take cognizance of the offences alleged to have been
committed by the second re- spondent and order the issue of process to him and
that the Magistrate's power under Sections 190 and 204 of the Code could well
be exercised without advertance to any possible defence the second respondent
may have. The learned counsel also stated that since the police had made a
perfunctory investigation and sent a 'B' report stating that the case was of a
civil nature, the Magistrate was perfectly justi- fied, in the facts and
circumstances of the case in taking cognizance of the offence and directing the
issue of process to the second respondent.
Controverting
these arguments, the learned counsel for the respondent submitted that since
the police had sent a 'B' report stating that the investigation disclosed that
the dispute between the parties was only of a civil nature and that no offence
has been made out against the second re- spondent, the Second Additional Chief
Metropolitan Magis- trate, ought to have called upon the appellant to find out
whether he was challenging the police report and if so, to make a sworn
statement and also examine his witnesses and thereafter only the learned
Magistrate should have decided whether cognizance should be taken of the
offences and process issued to the second respondent. The learned coun- sel,
therefore, argued that since the magistrate had not followed the procedure laid
down in Section 200 or Section 202, the second respondent was entitled to seek
quashing of the order of the Magistrate and as such the High Court ha:;
acted
correctly in allowing the second respondent's petition and setting aside the
order of the Magistrate.
Before
we examine the contentions of the learned counsel for the appellant and the
second respondent, we may briefly refer to some of the provisions in Chapter
X11, XIV, XV and XVI of the Code. Section 155 in Chapter XII pertains to
information laid to the police regarding non-cognizable cases and Sub-Section
(2) lays down that no police officer shall investigate a non-cognizable case
without the order of a Magistrate having power to try such case or commit the
case for trial.
724
Section 156(1) confers power on an officer in charge of a police station to investigate
any cognizable case without the order of a Magistrate. Section 156(3) authorises
a Magistrate, empowered under Section 190 to order the police to make an
investigation as provided for in Section 156(1).
The
other provisions in the Chapter from Section 157 onwards set out the powers of
investigation of the police and the procedure to be followed. Section 169
prescribes the proce- dure to be followed by an officer in charge of a police
station if it appears to him upon investigation of a case that there is no
sufficient evidence or reasonable ground of suspicion to justify the forwarding
of the accused to a Magistrate. Section 170 prescribes the procedure to be
followed by the officer in charge of a police station if it appears to him upon
investigation that there is sufficient evidence or reasonable ground of
suspicion to justify the forwarding of the accused to a Magistrate. Section
173(1) enjoins a Police Officer to complete the investigation without
unnecessary delay. Section 173(2) lays down that as soon as the investigation
is completed the officer in charge of a police station should forward to a
Magistrate empowered to take cognizance of an offence on a police report, a
report in the prescribed form stating the various particu- lars mentioned in
that Sub-Section.
Chapter
XIV deals with the conditions requisite for initiation of proceedings and as to
the powers of cognizance of a Magistrate. For our purpose it is enough if we
extract Section 190(1) alone.
"Section
190(1). Cognizance of offences by Magistrates-Subject to the provisions of this
Chapter, any Magistrate of the first class, and any Magistrate of the second
class spe- cially empowered in this behalf under sub- section (2), may take
cognizance of any of- fence-- (a) upon receiving a complaint of facts which
constitute such offence;
(b) upon
a police report of such facts;
(c) upon
information received from any person other than a police officer, or upon his
own knowledge, that such offence has been commit- ted." Chapter XV which
contains Section 200 to 203 deals with "Complaints to Magistrate". A
Magistrate taking cognizance of an offence on complaint is required by Section
200 to examine the complaint and 725 the witnesses present, if any. Section 202
provides that a Magistrate taking cognizance of a case, upon complaint, may, if
he thinks fit, postpone the issue of process against the accused, and either
inquire into the case himself or direct investigation to be made by a police
officer or by such other person as he thinks fit, for the purpose of deciding
whether or not there is sufficient ground for proceeding.
Section
203 empowers the Magistrate to dismiss the com- plaint, if after considering
the statements on oath (if any) of the complainant and of the witnesses and the
result of the inquiry or investigation (if any) under Section 202, the
Magistrate is of opinion that there is no sufficient ground for proceeding.
Chapter
XVI deals with "Commencement of Proceedings before Magistrates" and
Section 204 empowers a Magistrate to issue summons or a warrant as the case may
be, to secure the attendance of the accused if in the opinion of the Magis- trate
taking cognizance of the offence there is sufficient ground for proceeding.
From
the provisions referred to above, it may be seen that on receipt of a complaint
a Magistrate has several courses open to him. The Magistrate may take
cognizance of the offence at once and proceed to record statements of the
complainant and the witnesses present under Section 200.
After
recording those statements, if in the opinion of the Magistrate there is no
sufficient ground for proceeding, he may dismiss the complaint under Section
203. On the other hand if in his opinion there is sufficient ground for pro- ceeding
he may issue process under Section 204. If, however, the Magistrate thinks fit,
he may postpone the issue of process and either inquire into the case himself
or direct an investigation to be made by the police officer or such other
person as he thinks fit, for the purpose of deciding whether or not there is
sufficient ground for proceeding. He may then issue process if in his opinion
there is sufficient ground for proceeding or dismiss the complaint if there is
no sufficient ground for proceeding. Yet another course open to the Magistrate
is that instead of taking cognizance of the offence and following the procedure
laid down under Section 200 or Section 202, he may order an investigation to be
made by the police under Section 156(3). When such an order is made, the police
will have to investigate the matter and submit a report under Section 173(2).
On receiv- ing the police report the Magistrate may take congnizance of the
offence under Section 190(1)(c) and issue process straightaway to the accused.
The Magistrate may exercise his powers in this behalf irrespective of the view
expressed by the police in their report whether an offence has been made out or
not. This is because the police report 726 under Section 173(2) will contain
the facts discovered or un-earthed by the police as well as the conclusion
drawn by the police therefrom. If the Magistrate is satisfied that upon the
facts discovered or unearthed by the police there is sufficient material for
him to take cognizance of the offence and issue process, the Magistrate may do
so without reference to the conclusion drawn by the Investigating Officer
because the Magistrate is not bound by the opinion of the police officer as to
whether an offence has been made out or not. Alternately the Magistrate, on
receiving the police report, may without issuing process or dropping the
proceeding proceed to act under Section 200 by taking cogni- zance of the
offence on the basis of the complaint original- ly submitted to him and proceed
to record the statement upon oath of the complaint and the witnesses present
and thereaf- ter decide whether the complaint should be dismissed or process
should be issued.
Since
in the present case the Second Additional Chief Metropolitan Magistrate has
taken cognizance of offences alleged to have been committed by the second
respondent and ordered issue of process without first examining the appel- lant
and his witnesses, the question for consideration would be whether the
Magistrate is entitled under the Code to have acted in that manner. The
question need not detain us for long because the power of a Magistrate to take
cognizance of an offence under Section 190(1)(b) of the Code even when the
police report was to the effect that the investigation has not made out any
offence against an accused has already been examined and set out by this Court
in Abninandan Jha & Ors. v. Dinesh Misra, [1967] 3 SCR 668 and H.S. Bains
v. State, [1981] 1 SCR 935. In Abhinandan Jha & Ors. v. Dinesh Misra,
(supra) the question arose whether a Magistrate to whom a report under Section
173(2) had been submitted to the effect that no case had been made out against
the accused, could direct the police to file a charge-sheet, on his disagreeing
with the report submitted by the Police. This Court held that the Magistrate
had no jurisdiction to direct the police to submit a charge-sheet but it was
open to the Magistrate to agree or disagree with the police report. If he
agreed with the report that there was no case made out for issuing process to
the accused, he might accept the report and close the proceedings. If he came
to the conclusion that further investigation was necessary he might make an
order to that effect under Section 156(3) and if ultimately the Magistrate was
of the opinion that the facts set out in the police report constituted an offence
he could take cognizance of the offence, notwithstanding the contrary opinion
of the police expressed in the report. While expressing the opinion that the
Magistrate could take cognizance of the offence, notwithstanding the 727
contrary opinion of the police, the Court observed that the Magistrate could
take cognizance under Section 190(1)(c).
The
reference to Section 190(1)(c) was a mistake for Section 190(1)(b) and this has
been pointed out in H.S. Bains (supra).
In the
case of H.S Bains (supra) one Gurnam Singh sub- mitted a complaint to the
Judicial Magistrate 1st Class, Chandigarh alleging that H.S. Bains trespassed
into his house along with two others on 11-8-1979 at about 8 a.m. and
threatened to kill him and his son. The Magistrate directed the police under
Section 156(3) of the Code to make an investigation. After completing the
investigation, the police submitted a report to the Magistrate under Section
173(2) of the Code stating that the case against the accused was not true and
that the case may be dropped. The learned Magistrate disagreed with the
conclusion of the police and took cognizance of the case under Sections 448 and
506 of the Indian Penal Code and directed the issue of process to the accused.
Thereupon, the accused moved the High Court for quashing the proceedings before
the Magistrate. As the High Court declined to interfere, the accused approached
this Court by way of appeal by special leave. Various contentions were advanced
on behalf of the accused and one of them was that the Magistrate was not
competent to take cognizance of the case upon the police report since the
report was to the effect that no offence had been committed by the accused. It
was further urged that if the Magistrate was not satisfied with the police
report, there were only two courses open to him, viz. either to order a further
investigation of the case by the police or to take cognizance of the case
himself as if upon a complaint and record the statements of the complainant and
his witnesses under Section 200 of the Code and then issue process if he was
satisfied that the case should be proceeded with. Repelling those contentions
this Court held as follows:
"The
Magistrate is not bound by the conclu- sions arrived at by the police even as
he is not bound by the conclusions arrived at by the complainant in a
complaint. If a complainant states the relevant facts in his complaint and
alleges that the accused is guilty of an offence under Section 307 Indian Penal
Code the magistrate is not bound by the conclusion of the complainant. He may
think that the facts disclose an offence under Section 324 Indian Penal Code
only and he may take congni- zance of an offence under Section 324 instead of
Section 307. Similarly if a police report mentions that half a dozen persons examined
by them claim to be eye witnesses to a murder but that for 728 various reasons
the witnesses could not be believed, the Magistrate is not bound to accept the
opinion of the police regarding the credibility of the witnesses. He may prefer
to ignore the conclusions of the police regarding the credibility of the
witnesses and take cognizance of the offence. If he does so, it would be on the
basis of the statements of the witnesses as revealed by the police report. He
would be taking cognizance upon the facts disclosed by the police report though
not on the conclusions arrived at by the police." 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, in 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 Section 200 and 202 of the Code for taking cognizance of a case under
Section 190(1)(b) though it is open to him to act under Section 200 or Section
202 also. The High Court was, there- fore, wrong in taking the view that the
Second Additional Chief Metropolitan Magistrate was not entitled to direct the
registration of a case against the second respondent and order the issue of
summons to him.
The
fact that in this case the investigation had not originated from a complaint
preferred to the Magistrate but had been made pursuant to a report given to the
police would not alter the situation in any manner. Even if the appellant had
preferred a complaint before the learned Magistrate and the Magistrate had
ordered investigation under Section 156(3), the police would have had to submit
a report under Section 173(2). It has been held in Tufa Ram & Ors. v. Kishore
Singh, [1978] 1 SCR 615 that if the police, after making an investigation, send
a report that no case was made out against the accused, the 729 Magistrate
could ignore the conclusion drawn by the police and take cognizance of a case
under Section 190(1)(b) and issue process or in the alternative he can take
cognizance of the original complaint and examine the complainant and his
witnesses and thereafter issue process to the accused, if he is of opinion that
the case should be proceeded with.
In the
light of our conclusion, the appeal succeeds and the order of the High Court is
set aside. The order of the Second Additional Chief Metropolitan Magistrate, Bangalore will stand restored and the case
against the second respondent will be proceeded further in accordance with law.
G.N.
Appeal allowed.
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