Har
Prasad and Anr Vs. Ranveer Singh and Anr [2008] Insc 174 (12 February 2008)
Dr.
Arijit Pasayat & P. Sathasivam
CRIMINAL
APPEAL NO. 294 /2008 (Arising out of SLP (Crl.) No. 365 of 2007) Dr. ARIJIT
PASAYAT, J
Leave
granted.
Challenge
in this appeal is to the order passed by a learned Single Judge of the Allahabad
High Court allowing the revision filed by respondent No.1. The revision was
filed questioning the legality of the order dated 18.11.2000 passed by XIII
Additional District and Sessions Judge, Aligarh in Criminal Revision No.272 of
2000 accepting the contention that the informant of the case got a false
affidavit filed alongwith protest petition, and therefore no action could have
been taken.
Stand
taken before the learned Sessions Judge was that by the time the protest
petition was filed the informant had died and false affidavit with a thumb
impression was filed.
Since
the informant had already died, the learned Magistrate could not have been proceeded
in the matter. This found acceptance by the learned Sessions Judge. The High
Court by the impugned order had held that the order was not passed on the
protest petition and was in fact passed on consideration of the report
submitted in terms of Section 173 of the Code of Criminal Procedure, 1973 (in
short 'Cr.P.C.').
Learned
counsel for the appellants submitted that the High Court fell in grave error by
holding that the filing of false affidavit, if any, alongwith protest petition
was immaterial.
According
to him, when the learned Magistrate acted upon the protest petition, the view
that the affidavit alongwith the protest petition was not of any consequence,
cannot be maintained.
Learned
counsel for the respondents on the other hand submitted that a bare reading of
the order passed by learned Magistrate shows that the order did not have its
foundation on the protest petition, but was relatable to the report submitted
under Section 173 Cr.P.C.
The
only question that falls for consideration is whether the order was passed by
learned Magistrate on protest petition or on the police report.
Reference
may be made to a judgment of this Court in Abhinandan Jha and Ors. v. Dinesh Mishra
(AIR 1968 SC 117) where it was held as follows:
"8.
It is now only necessary to refer to Section 190, occurring in Chapter XIV,
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 sub-section (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."
9.
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, in-charge of a police station, or to
the officer making an investigation, that there 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 his 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 this 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 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.
Xx xx xx
12.
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 to take cognizance of an offence and proceed, according to law. We
do not also find any such power, under Section 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 in detail.
13. 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 Section 170 of the Code, is referred to as a
'charge-sheet'. But in respect of the reports sent under Section 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 'summary'.
xx xx xx
17. 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 XIV, as well as the observations of this Court in Rishbud and
Inder Singh's Case (AIR 1955 SC 196) that the information 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 the 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 the offence. 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, he has
reason to suspect that an offence has been committed. 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 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. That 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."
As the
factual position goes to show the order passed by learned Magistrate was in
consideration of the police report and was not relatable to the protest
petition. That being so, the view of the High Court does not suffer from any
infirmity and no interference is called for.
The
appeal is dismissed.
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