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Report No. 37

"24. Amendment of section 155, Code of Criminal Procedure, 1898.-

In sub-section (1) of section 155 of the said Code, the following shall be added after the words "to the Magistrate", namely:-

"and may if he thinks fit send a report of such information to a Magistrate empowered to take cognizance of offences under section 190(1)(b), and such Magistrate may thereupon take cognizance of such offence.

Such report shall, if the Local Government so directs, be submitted through such superior officer as the Local Government by general or special order appoints in this behalf."

1. See Gazette of India, March 28, 1914 (Part V), pp. 104 and 121.

(Objects and reasons)

"Clause 24-The amendment is intended to make it clear that the words 'police report' quoted in section 190 include reports in cognizable and non-cognizable cases. There is some conflict of judicial opinion on the point."1

1. The Statement of Objects and Reasons cites no cases. The cases relevant to the period would seem to be-

(i) K.E. v. Sada, 1902 ILR 26 Bom 150.

(ii) Dilan Singh, 1912 ILR 50 Cal 360 (364) (report of non-cognizable offence not a "complaint" within the definition).

(iii) Chidambaran, 1909 ILR 32 Mad 3 (narrow view).

(iv) Sarferaz, (1913) 19 IC 314: 14 Cr LJ 218 (Cal).

(v) Nga Sen Ke, AIR 1914 Upper Burma 31.

(vi) Ahmad Khan v. Emp., 12 LJ 92, over-rule AIR 1924 Sind 71 (Police report is confined to section 173).

The Lowndes Committee1 (which examined the 1914 Bill) made these observations-

"Clause 24-We are not prepared to accept the amendment proposed by this clause. The difficulty suggested by ILR XXVI Bombay at page 157 will, we think, be met by the amendment which we propose in section 190(1)(b) (see clause 34B)."

"Clause 34B-See our note to clause 24. We do not think that the term "police-report" in section 190(1)(b) was intended to be a technical expression, but was used to cover any report made by a police officer, and our amendment will make this clear."

1. See Appendix B (Notes on clauses) to Report of the Lowndes Committee, file relating to Bill which was enacted as the Code of Criminal Procedure (Amendment) Act, 1923 (16 of 1923) (National Archives, Government of India), Legislative Department, Assembly and Council-A, Proceedings, October 1923, No. 1-54.

According to the amendment proposed by the Lowndes Committee,1 section 190(1)(b) was to read:-

"(b) upon a report of such facts made by any police officer".

1. See Appendix C to Report to Lowndes Committee.

The joint Committee on the 1921 Bill1 said,-

"Clause 45-We approve the amendment made in section 190 by this clause, but we think that courts should take cognizance under section 190(1)(b) only upon reports in writing".

1. Report of the Joint Committee on the Code of Criminal Procedure (Amendment) Bill (26th June, 1923). See the file relating to the 1921 Bill, Government of India, Legislative Department, Assembly and Council-A, Proceedings, October 1923, No. 1-54 (National Archives).

Thus, in 1923 the present wording was substituted in section 190(1)(b). But the controversy seems to survive.

$$For review of pre-1923 cases, see Abdullah v. Emp., AIR 1933 Sind 188 (DB).

One view is, that the present wording does not cover non-cognizable cases investigated without the orders of a Magistrate.1-7

A contrary view, however, has been taken in certain cases.8-9

1. State of Kerala v. Ali Meerankully, AIR 1965 Ker 59 (Reviews case-law).

2. AIR 1961 All 377 ( 378).

3. Candri Bawee v. Emp., AIR 1935 Bom 131 (134) (Fawcett J.).

4. Emp. v. Shivaswami, ILR 51 Bom 498: AIR 1927 Bom 440 (443) (Fawcett J.).

5. P.P. v. Ramiah, AIR 1958 AP 392 (393) para. 18.

6. Raghunath v. Emp., AIR 1932 Bom 610 (612, 613) (Beaument C.J. and Broomfield J.).

7. Abdul Hakim v. State, AIR 1961 Cal 257 (258), para. 3, referring to a Division Bench ruling.

8. P.P. v. Ratnavelu, AIR 1926 Mad 865 (871) (FB). (Police investigating a dacoity case and found that the complaint was false-sending charge sheet against the accused, under section 211, IPC.

9. Triloki Nath v. State, AIR 1962 Raj 94 (96).

The Lahore High Court1 followed the Bombay ruling, and in a later case,2 it has clearly held that in a non-cognizable case, no police report could be made, but on a complaint signed by the Court Inspector as ex-officio Public Prosecutor, cognizance can be taken under section 190(b).

1. Mehr Chiragh Din v. Crown, AIR 1924 Lah 258 (260) (Lumsden J.).

2. Emp. v. Ghulam Husain, AIR 1925 Lah 237.

The Calcutta decisions are reviewed in the undermentioned case.1 There are strong observations in one case2 that the use of 'police report' in section 173 does not restrict the power of the Magistrate to take cognizance of both cognizable and non-cognizable offences, under section 190(1)(b).

An invalid investigation may not vitiate the proceedings.3 But a Magistrate can decline to take cognizance on an invalid report.4-5

Even before 1923 it was observed in a Calcutta case6 that report of a police officer in a non-cognizable case is a "police report" under section 190(1)(b).

1. Manik Chand v. State, AIR 1958 Cal 324 (334), para. 23: (1958) 62 Cal WN 94 (107, 108) (Observations approving the wider view).

2. Bholanath v. Emp., AIR 1924 Cal 614 (616) (Greeves and Panton JJ.).

3. H.N. Rishbud v. State of Delhi, (1955) SCR 1150 (1163).

4. Cf. Delhi Adm. v. Ram Singh, AIR 1962 SC 63.

5. Tara v. State, AIR 1965 All 372.

6. Bhairab Chandra v. Emp., ILR 46 Cal 810, note: AIR 1919 Cal 433 (434, 435) (Richardson and Huda JJ.).

The decisions giving a restricted interpretation are based on one or more of the following grounds, namely,-

(1) that the police have no authority to investigate or report a non-cognizable . offence;1

(2) that a wide interpretation would lead to the unacceptable position that a police officer can never make a "complaint";2 and

(3) that it is not clear3 that the 1923 amendment was intended to bring in all types of police reports without exception.

1. Cf. Chandavarkar J. in K.E. v. Sada, 1901 ILR 26 Bom 150.

2. Cf. Burn J. in Mallikharjuna v. Emp., 1933 MWN 876 (cited in AIR 1965 Ker 59 (61), para. 5).

3. Cf. .Fawcett J. in Emp. v. Shivaswami, ILR 51 Bom 498: AIR 1927 Bom 440 (443).

It was held in a recent Supreme Court1 case, that under section 190, where the information discloses a cognizable as well as a non-cognizable offence, the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge sheet which he presents for a cognizable offence.

1. Pravin Chandra v. State of Andhra Pradesh, AIR 1965 SC 1185 (Subba Rao, M. Hidayatullah and Mudholkar JJ.).

It was further observed, that such a case fell under section 190(1)(b), and that once a case fell under section 190(1)(b), the procedure under section 251A was to be followed. The Calcutta decision in Prem Chand v. State, AIR 1958 Cal 213. was partly overruled, i.e., to the extent described below. The Calcutta decision held, that section 20G of the Opium Act (as amended in Bengal) which provided that a report in writing by an officer of the Excise, Police or the Customs Department shall be enquired into and tried as, if such report was a report in writing by a police officer under clause (b) of section 190(1), did not extend that fiction so as to regard the report as a charge sheet under section 173 or to attract section 251A. The Supreme Court raised this query-if the fiction in section 20G did not make it a report under section 173, then what other purposes could the Legislature have had in mind in saying that it was a police officer's report ?

The Supreme Court decision does not, however, seem to affect the proposition that if an investigation is not authorised by law, then the police report should be treated as a complaint. If a police officer is authorised to investigate a particular non-cognizable case, (as was the position on the facts which were before the Supreme Court), then his report would not fall under "complaint".

(2) The second question is, whether the definition of "complaint" can ever be applicable in the case of report of a police officer.1 The matter is not academic, because, there are certain differences in procedure as between a case instituted on complaint on the one hand and other cases on the other hand. Thus, on a "complaint" a Magistrate has to examine the complainant,2 and he may direct an inquiry or investigation.3 There are no similar provisions in relation to a Magistrate taking cognizance on a report of a police officer, and, ordinarily, once the Magistrate takes cognizance, and considers that there is sufficient ground for proceeding, he has to issue process.4 He cannot make over the police report for inquiry and report to another Magistrate.5

Further, if an "information" is not a report but a complaint, then only section 250 applies.6

"Taking cognizance" means that a Magistrate must not only apply his mind to the contents of the petition, but he must have done so for proceeding in a particular case.7 The taking of cognizance would be with the intention of taking steps in the progress of the case.8

In view of the case-law discussed above, it appears that

(a) "complaint" and report of a police officer are mutually exclusive;9 but

(b) where the context so requires, a communication by a police officer would be a "complaint".

1. See the discussion in Lakhan v. Emp., AIR 1936 All 788 (791, 793, 799) (Judgments of Sulaiman C.J. and Rachhpal Singh J. and dissenting judgment of Bennet J.).

2. Section 200.

3. Section 202.

4. Section 204.

5. Abdullah Mandal v. Emp., 1913 ILR 41 Cal 854 (856).

6. Cf. Mohammad Hashim v. Emp., AIR 1940 Sind 134 (135).

7. See R.R. Chari v. State, (1951) SCR 312 (320): AIR 1951 SC 207 (210), approving the observations in AIR 1950 Cal 437.

8. Cf. Bhajohari v. State of West Bengal, AIR 1959 SC 8 (12).

9. Cf. Woodroffe Criminal Procedure Code, (1926), p. 12, and Abdullah Khan v. Emp., AIR 1933 Sind 188 (189).

(3) The third question concerns section 200. Section 200, proviso (aa), provides that when a complaint is made in writing, inter alia, by a public servant acting or purporting to act in the discharge of his official duties, the court need not examine the complainant on oath. The view is sometimes expressed, that a Magistrate can take cognizance of a non-cognizable offence upon the report in writing by a police officer without examining the officer on oath by virtue of section 190(1)(b) and section 200, proviso (aa).1 But it has been pointed out,2 that section 200, proviso (aa) pre-supposes that there is a "complaint", while (after 1923) a report by a police officer of even a non-cognizable offence (according to one view) is not a complaint, and cognizance of the offence reported (according to that view) can be taken of just as on a "report" of a cognizable offence.3

1. Public Prosecutor v. Ratnavelu, ILR 49 Mad 525: AIR 1926 Mad 865.

2. Prag Datt v. Emp., AIR 1928 All 765 (766, 767).

3. Manik Chand v. State, 62 Cal WN 94 (108) (Chakravarti C.J. and Das Gupta J.).

(4) The fourth question which has been discussed in the case law is, whether section 190(1 )(b) applies to reports by the police under a provision of the Code of Criminal Procedure other than section 173. One view is, that it includes not only the final report under section 173, but also other reports made by the police.1-4

It was observed in a Sind5 case (before the 1923 Amendment) that the words "police report" in section 190(1)(b) can cover reports under sections 114, 157 and 168 also. It was also pointed out6 that when a report is submitted under section 157, the Magistrate can direct an investigation (section 159), or hold an inquiry or dispose of the case.

But the Calcutta view seems to have been narrower in this respect, namely, section 190(1)(b) (before 1923) is confined to "police reports" within the meaning of section 170.7

The Allahabad High Court held before 1923 that "police report" in section 190(1)(b) is not limited to a report mentioned in section 170 and preceding sections. Thus,8-9 receiving information by post, if the Magistrate sends the case for inquiry and report to the police and takes cognizance on the report thus received, it falls under clause (b) of section 190(1).

Even under Chapter 14, a police officer makes three different kinds of reports at three different stages, under the following sections

(i) section 157 (a kind of preliminary report);

(ii) section 168 (report to superior officer);

(iii) section 173 (final report).

The undermentioned cases10-12 may also be seen.

The observations in a Lahore case are instructive13:-

"The Code of Criminal Procedure clearly contemplates the possibility of a Magistrate who has taken cognizance of an offence commencing an inquiry or trial even though the case is still under investigation in the sense that the final report under section 173 has not been put in. Under section 170 of the Code, if upon an investigation under Chapter 14 it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report, and to try the accused or commit him for trial.

Under section 190, a Magistrate may take cognizance of an offence upon a report in writing of facts which constitute such offence made by any police officer. It is well settled that the report contemplated by section 190 need not be a final report under section 173 of the Code and that any report of facts which constitute an offence made by any police officer is sufficient to give the Magistrate jurisdiction to take cognizance of the offence and to commence the inquiry or trial. If, therefore, a report made by the investigating officer under section 170 complies with the conditions of section 190, sub-section (1), clause (b), namely, that it states the facts which constitute an offence, the Magistrate can take cognizance of the offence under section 190 and proceed with the enquiry or trial.

Thus the position is quite possible, and every one acquainted with the procedure of police investigation knows, that an enquiry or a trial might begin on a report made by the police under section 170, even though the matter is still under investigation by the police and the final report under section 173 has not been received. In such a case, it is, in our view, quite competent to the enquiring or trying Magistrate to proceed to record the statement of the accused person under section 342, Cr. P.C. without giving any such warning as is required by section 164, Cr. P.C."

According to the contrary views14, it is only when the final "charge sheet" under section 173 is filed that it will be clear whether an offence has been committed. Until then Magistrate does not take cognizance.

1. Bansidhar, ILR (1959) 9 Raj 86: AIR 1959 Raj 191 (193), [Report under section 153(2)-cognizance can be taken],

2. Rama Shankar v. State, AIR 1956 All 525 (527), para. 7, (A Magistrate can take cognizance of an offence on a charge-sheet submitted by an investigating officer under the administrative directions of District Magistrate, after he had submitted a final report).

3. ILR 1956 Cut 267: AIR 1956 Ori 129 (135), para. 15, (P.V.B. Rao J.) (Report under section 170).

4. Kunjan Nadar (in re:), ILR 1954 TC 1217: AIR 1955 TC 74 (79) (Interim charge-sheet).

5. Mehrab v. Crown, AIR 1924 Sind 71 (72) (FB) (Per Kincaid J.C.).

6. Mehrab v. Crown, AIR 1924 Sind 71 (72) (Per Raymond A.J.C.).

7. See Nagendra v. K.E, ILR 51 Cal 402: AIR 1924 Cal 476 (479) (Mookerjee and Chatterjee JJ.).

8. Sarfaraz v. Emp., 14 Cr LJ 218.

9. See also Lallu Singh, AIR 1943 Oudh 226.

10. Ranjit Singh v. State, AIR 1952 HP 81 (87, 88), para. 15 [Commencement of trial on receipt of first challan without waiting for final challan-Held, that though the challan was not a "police-report" within the meaning of section 173, it fell within the provisions of section 190(1)(b)].

11. Bholanath v. Emp., AIR 1924 Cal 614 (616).

12. Chunni Lal v. Emp., AIR 1933 All 399 (400) (Report by prosecuting inspector to put witness on trial as co-accused is a report in writing by a police officer within section 190(1)(b); taking cognizance is valid, but was set aside as unfair).

13. Lal Khan v. Emp., 1948 AIR 43 (45), para. 7, (Munir and Marlen J.).

14. Ponnu Kudumban (in re:), AIR 1956 Mad 392 (395), para. 6.

(5) The fifth question is as regards reports made under other laws.

Where a police officer, while investigating an offence under another law, still follows the procedure in Chapter 14 of the Criminal Procedure Code, there is no difficulty.1 In that case, the procedure under section 252, if followed, must be set aside.1

The controversy regarding other laws may be illustrated by the conflict of decisions as to reports under the Motor Vehicles Act. In one case,2 it has been held that a -report of a police officer in a non-cognizable case under sections 42 and 123 of the Motor Vehicles Act, 1939, is a "complaint", while in some cases3-4 it was not treated as a complaint.

A question as to the Essential Commodities Act arose in a Supreme Court decision, but in that case an offence under section 420, Indian Penal Code, was also under investigation. The Supreme Court disposed of the case5 on the ground that where a cognizable offence is involved, other offences can also be investigated by the police, so that the report submitted after the investigation was held to fall under section 190(1)(b) and also under section 173.

1. Cf. Pavadai Gounder, (1967) 1 Cr LJ 41 (44).

2. State v. Meenakshi, 1961 Ker LT 532.

3. State v. Abdul Rashid, AIR 1963 MP 71.

4. State v. Abdul Kadir, AIR 1963 MP 125.

5. Pravin Chandra v. State, AIR 1965 SC 1185.

The main reason for this conclusion was, that where the information discloses a cognizable as well as a non-cognizable offence, the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which is presented for the cognizable offence.

The question has been considered under sections 207, 207A, 208, 251, 251A and 252, which make a distinction as to the procedure to be followed in cases instituted upon police report on the one hand and other cases.

Considerable practical importance attaches to this question, because the procedure under section 251A is quite different from that under section 252, and the basis of the distinction is whether the case is instituted on a "police report," or otherwise. The old procedure was retained for cases instituted otherwise than on police report, when section 251A was introduced in 1955, because, in a case instituted on a police report there are statements of witnesses recorded by the police under section 161(3) and other documentary evidence which give the accused an opportunity of knowing the case, while there are no such statements or documents in a case instituted on a private complaint.1

In the decisions of the High Courts where this question has come up before 1966, it has been held,2-3 that when a Magistrate takes cognizance under section 190(1)(b) upon a report in writing of such facts made by a police officer, it may or may not be a "proceeding instituted upon a police report" within sections 207A and 251A.

1. Report of the Joint Committee on the 1954 Bill, p. (ix), para. 23 read with para. 20 notes relating to clauses 29 and 35.

2. Kankanampath Nagayya, (1962) 2 Cr LJ 719 (AP) (Kumarayya J.).

3. Chitraranjan Das v. State, AIR 1963 Cal 191.

The procedure in section 251A takes into account two important matters-

(1) that a competent Department of the Government has investigated the matter, and

(2) that the investigation has been in accordance with the Code of Criminal Procedure.

In fact, the validity of sections 207 and 207A was upheld by the Supreme Court1 because the distinction is based on a very relevant consideration, namely, whether or not there has been a previous inquiry by a responsible public servant.

It has been observed,2 that the report of a police officer is the genus, of which "police-report" understood in the technical sense is only a species.

In fact, if section 251A is sought to be given a wide interpretation to cover all reports of a police officer, the section would not really work,3 because sections 207A(3), 207A(5) and 251A contemplate that there has been an investigation under Chapter 14. Section 251A(1) would not be complied with, because there would be no first information report under section 154 nor any statement recorded under section 161 nor any report forwarded under section 173, of which a copy could be furnished to the accused, as required by section 251A(1) and section 207A(3). Moreover, sections 207A(1), 207A(3), 207A(6), and section 251A(1) and (2) expressly refer to section 173.

Though there are observations in the Supreme Court cases4-5 which may seem to take the view that every Report which falls under section 190(1)(b) falls also under section 251A, those observations must be read with the facts of the case, and could not have been intended to obliterate the distinction intended by the varying expressions used in sections 173 and 251A on the one hand, and section 190(1)(1) on the other.

In a Full Bench decision of the Madhya Pradesh High Court6 the Supreme Court decision in Pravin Chandra's case was followed. The Madhya Pradesh case also related to section 20G, Opium Act, as amended in Madhya Pradesh, and the actual decision could not be otherwise, though the observations seem to suggest that whatever falls under section 190(1)(b) falls under section 251A.

In a Calcutta case,7 the Supreme Court decision in Pravin Chandra8 was followed and was regarded as authority for a finding that the procedure prescribed in section 251A of the Code will be attracted to the trial of cases cognizance whereof is taken under section 190(1)(b) of the Code on the report of a police officer submitted under section 11 of the Essential Commodities Act

1. AIR 1957 SC 927.

2. Chittaranjan Das v. State of West Bengal, AIR 1963 Cal 191 (196), para. 18 (Amaresh Roy J.).

3. Cf. Premchand v. State, AIR 1958 Cal 213 (216), para. 11.

4. Pravin Chandra v. State of Andhra Pradesh, AIR 1965 SC 1185.

5. See also Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 (1169), para. 9.

6. Ashiq Miyan v. State, AIR 1966 MP 1 (4), para. 8 (FB).

7. Malay Banerjee v. State, (1967) Cr LI 858, para. 9: AIR 1967 Cal 352.

8. Pravin Chandra v. State, AIR 1965 SC 1185.

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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