Report No. 41
15.71. Section 189.-
Section 189 needs one or two consequential and minor changes. Although the opening words "whenever any such offence as is referred to in section 188 is being inquired into or tried" are comprehensive, the section applies only where an extr.-territorial offence is alleged to have been committed in a foreign country. In order to make this clear it would be desirable to amend the opening words. Since the sanctioning authority under the first proviso to section 188 is to be the Central Government, the reference to the State Government in section 189 should be replaced by the Central Government. And since the expression "Political Agent" as defined in the General Clauses Act, 1897, means the principal officer representing India in the foreign country, we recommend that it should be replaced by "a diplomatic or consular representative." Section 189 may accordingly be revised to read.-
"189. Power to direct copies of depositions and exhibits to be received in evidence.-When any offence alleged to have been committed in a territory outside India is being inquired into or tried under the provisions of section 188, the Central Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before a judicial officer in or for that territory or before a diplomatic or consular representative of India in or for that territory shall be received as evidence by the Court holding such inquiry or trial in any case in which such Court might issue a commission for taking evidence as to the matters to which such depositions or exhibits relate."
B.-Conditions requisite for Initiation of Proceedings
15.72. Section 190.-
The group of sections, from section 190 to section 199B, describes the methods by which, and the limitations subject to which, various Criminal Courts are entitled to take cognizance of offences.
Section 190 first mentions the classes of Magistrates entitled to take cognizance, and then says that cognizance may be take.-
"(a) upon receiving a complaint of acts 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."
15.73. Two main categories of cases.-
Clause (c) is of limited practical importance as resort to it is not had in many cases. Leaving that alone, and speaking broadly, the cases fall into two categories.-
(1) those started on complaint; and
(2) those started on a polic.-report.
A "complaint" is defined in section 4(1)(h) as not including the "report of a police officer". It seems to us, however, that there is no practical advantage in distinguishing a case started on a complaint from a case started on "the report of a police officer" which is not given under section 173. In Chapter XXI of the Code, where two different procedures are laid down for the trial of two different kinds of cases, the point of distinction is whether the case was instituted on a "police report" or not, and the expression "the report of a police officer" is not used. The same is the case in Chapter XVIII.
15.74. "Police report" to be defined and used in clause (b).-
At first sight, of course, the difference in meaning between a "police report" and the "report of a police officer" may seem slight, but authoritative decisions show that the expression "police report", which was in fact the expression used in clause (b) of section 190(1) before 1923, has a technical connotation, limited to a report made by an investigating officer under section 173 of the Code. Such an investigation can only be of a cognizable offence, or if made into a no.-cognizable offence, it must be with the permission of a Magistrate required by section 155.
We, therefore, consider it important that Magistrates should be readily able to distinguish a case instituted on a "police report" from any other kind of case; and to facilitate this, we propose, that the expression "police report" should be clearly defined in the Code itself, and the definition should follow the judicial decisions, limiting it to a report made under section 173. For the same reasons, we propose that clause (b) of section 190, su.-section (1) should mention only a "police report", leaving other kinds of reports by a police officer to be treated as complaints. We have already proposed the necessary verbal alteration in the definition of "complaint" now contained in section 4.
15.75. Object of proposals.-
These proposals, we hope, will do away with the controversy whether the present wording of section 190(1)(b) does or does not include a report made regarding a no.-cognizable offence investigated by a polic.-officer without the orders of a Magistrate, which on occasions has arisen. At the same time, there will be a clea.-cut division between cases properly investigated by the police and others, and the distinction between cases instituted on a police report and other cases will be easy to make.
15.76. First class magistrates need not be specially empowered.-
Section 190 authorises only a Presidency Magistrate, a District Magistrate or a Su.-divisional Magistrate to take cognizance of offences, and leaves any other Magistrate to be specially empowered in that behalf, so that a first class Magistrate cannot, without such special power, take cognizance. We find no great advantage in this scheme, as most of the cases have to be handled by first class Magistrates and, in practice, we gather, all first class Magistrates have to be so empowered.
We feel that all first class magistrates can be safely entrusted with this power, and the formal step of specially empowering them can be done away with. We therefore propose to mention all first class Magistrates in the section itself, leaving magistrates of the second class to be specially empowered. We assume, of course, that first class powers are conferred on magistrates only when they are experienced enough to exercise them.
15.77. Amendment of opening words.-
There remain two small matters about this section. It opens with the words "Except as hereinafter provided", while in fact the provisions that follow are not in a strict sense "exceptions", but only additional requirements for initiating proceedings. It would in our view, be more appropriate to use the words "subject to the provisions of this Chapter".
15.78. Amendment of clause (c).-
Clause (c) of su.-section (1) authorises a magistrate to take cognizance of an offence not only on his own knowledge, but also on suspicion that an offence has been committed. We recognize that a police officer can, in certain circumstances, act on suspicio.-(reasonable of course.-that an offence has been committed;1 but we do not think it wise to place such a responsibility on a judicial officer, and we therefore propose to delete that provision from the clause.
1. Cf. section 54.
15.79. Meaning of "may take cognizance.-
Before concluding we would like to mention one aspect of section 190 which has been discussed in the courts but which does not seem to require any change in its wording. It will be noticed that section 190 provides that certain magistrates "may" take cognizance of offences if certain conditions are satisfied. It has at times been argued in court and the argument accepted, that, despite the use of the word "may" a magistrate is bound to take cognizance of an offence if there is before him a proper complaint, or a proper police report.
At other times, as in a recent case in the Supreme Court, it has been observed that a Magistrate has ample discretion in this respect and if on looking at a police report he finds that there has not been a thorough investigation he can, without taking cognizance, order further investigation. We take it, therefore, that a magistrate has cer.tain discretion in this connection but as this discretion is judicial in nature, it is limited in its scope, and that is how it should be. We, therefore, do not propose to disturb the language of the section.
15.80. Section 190 as revised.-
We would accordingly revise the section to read as follows.-
"190. Cognizance of offences by Magistrate.- (1) Subject to the provisions of this Chapter, any Presidency Magistrate or Judicial Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf under su.-section (2), may take cognizance of any offenc.-
(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 committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under su.-section (1) of such offences as are within his competence to inquire into or try.