Nand Singh v. Sardar Singh and State — 1964 DIGILAW 29 (ALL)

ORDER D.S. Mathuk, J. - This is an application by Nand Singh for punish me the opposite party No. 1, Sardar Singh, Public Prosecutor of Etawah, for con tempt of the court of Sri. B.L. Sachdeva, Magistrate, and of the court of the Addl. District Magistrate (Judicial), Etawah. 2. The material facts of the case are not in dispute though the opposite party has given his explanation for his conduct, at the same time denying 'that he had acted with a dishonest intention. 3. Nand Singh, applicant,, lodged a report at P.S. Kotwali, Etawah, on September 20, 1961, at 11.55 p.m. alleging that one Dhirendra Mohan had admisistered poison to him that evening at about 7.30 p.m. at Ajitmal, P.S. Ajitmal(sic) of Distt. Etawah. The investigation of the crime was started by S.I., M.P. Tragi, Station Officer of P.S. Ajitmal, but on an application made by the applicant the Superintendent of Police entrusted the investigation of the crime to the Circle Inspector, Sri Lalloo Sinph. The Circle Inspector submitted a report u/s 173(1)(a) Code of Criminal Procedure on April 22, 1962, with his finding that no prima facie case had been made out and the accused, Dhirendra Mohan, be discharged. In this State such a report is called a "Final Report" and it shall hereinafter be referred to as the Final Report. 4. The then Public Prosecutor received the Final Report on May 3, 1962, and on May 25, 1962, directed the Assistant Public Prosecutor, N.K. Jain, to obtain the orders of the Magistrate concerned. The Assistant Public Prosecutor,, however, submitted the Final Report to the Magistrate, Sri B.P. Srivastava, Judicial Officer Aquaria, on September 15, 1962. The opposite party, Sardar Singh, had taken over charge as Public Prosecutor, Etawah, on June 26, 1962. 5. On August 9, 1962 the applicant moved an application (Annexure 'A' to the affidavit) before Sri B.P. Srivastava, Magistrate, with a request that he (applicant) may be heard and Case Diary perused before orders were passed on the Final Report. The Final Report had not reached the Magistrate by then and he consequently ordered that the application shall be laid before him for orders on September 15, 1962) along with the Final Report. Sri B.P. Srivastava heard the arguments in part on October 12, 1962. He then heard not only the applicant and "Dhirendra Mohan, accused, but also the Assistant Public Prosecutor, N.K. Jain. Sri B.P. Srivastava heard the arguments in part on October 12, 1962. He then heard not only the applicant and "Dhirendra Mohan, accused, but also the Assistant Public Prosecutor, N.K. Jain. It is the admitted case of the parties that the Public Prosecutor, namely, Sardar Singh, opposite party, had also attended the Magistrate's court that day. The applicant's version is that the Magistrate had also given a hearing to the Public Prosecutor The opposite party, however, says that the Magistrate merely enquired from him what attitude he (Public Prosecutor) would take and he replied that he was not in a position to say anything but normally he would press that orders in accordance with the Final Report, which had been approved by the Circle Officer, be passed. After a few adjournments arguments were concluded on March 8, 1963, and the Magistrate reserved his order without fixing any date. Thereafter Sri B.P. Srivastava was transferred from Etawah and he was succeeded by Sri B.L. Sachdeva. 6. On April 27, 1963, the opposite party, Sardar Singh, moved the Magistrate under Annexure 'B' to the affidavit to send him the Final Report in question as it was required for the perusal of the Circle Officer. The Magistrate passed an order on May 1, 1963, directing that the Final Report be given to the Public Prosecutor who. shall return it by May 5, 1963. In the certified copy supplied to the applicant it is noted that the Final Report shall be given to the Public Prosecutor, but-it has been suggested by the opposite party that under the orders of the Magistrate the Final Report was to be" given to the Assistant Public Prosecutor, who was to return it by May 5, 1963. The Final Report was actually handed over to the court mohair,. Vidya Dhar, and he passed it onto the Public Prosecutor. 7. In the month of April 1963 many Final Report's were pending with the Public Prosecutors on which orders had not been obtained from the Magistrate concerned. The Circle Officer, namely, the Deputy Superintendent of Police, Etawah, consequently passed an order (Annexure II to the counter affidavit), the relevant part whereof is as below: F.R. of case Crime No. 103 u/s 328 IPC of even 1961 and other F. Rs. are lying without order and APP has not even cared to report. The Circle Officer, namely, the Deputy Superintendent of Police, Etawah, consequently passed an order (Annexure II to the counter affidavit), the relevant part whereof is as below: F.R. of case Crime No. 103 u/s 328 IPC of even 1961 and other F. Rs. are lying without order and APP has not even cared to report. Please put up papers at once and discuss The defense of the opposite party is that it was in pursuance of the above order that he obtained the Final Report in question from the Magistrate, Sri B.L. Sachdeva. 8....The Final Report was not there after returned to the Magistrate, Sri B.L. Sachdeva, and instead the Public Prosecutor, Sardar Singh, submitted it to the Additional District Magistrate (Judicial) Etawah, for orders, who accepted it on May 10, 1963 in the pre service of the Public Prosecutor, Sardar Singh, who says that he did not know on which paper or papers the Addl.. District Magistrate (Judicial) was pas sing orders. The defense further is that the opposite party was not aware of the order of Sri B.L. sachdeva that the Final Report was to be returned lb him by May 5, 1963; and that it was in pursuance of the general order dated 11.4.1963 of the Additional District Magistrate (Judicial) (Annexure'J' to the rejoinder affidavit) that the Final Report in question was submitted to him for orders. The general order was to take effect from 15.4.1963 and related to the distribution of work amongst magistrates on the transfer of Sri. B.P. Srivastava, Judicial Officer. Thereunder enquiry cases of the whole district under the Indian Penal Code were to be heard by the Additional District Magistrate (Judicial). 9. In short, the defence of Sardar Singh, opposite party, is that he was throughout acting in good faith without any dishonest intention. In the alternative, it was pleaded that while entertaining the Final Report Sri. B.L. Sachdeva and also the Additional District Magistrate (Judicial) were not functioning as court and hence there was no contempt of a court subordinate to the High Court. 10. The opposite party has not pleaded that he had made it clear in his report while submitting the Final Report to the Additional District Magistrate (Judicial) that the Final Report had earlier been submitted to Sri. B.P. Srivastava and was then pending before his successor, Sri. 10. The opposite party has not pleaded that he had made it clear in his report while submitting the Final Report to the Additional District Magistrate (Judicial) that the Final Report had earlier been submitted to Sri. B.P. Srivastava and was then pending before his successor, Sri. B.L. Sachdeva, and that the present applicant had already moved an objection in writing against the acceptance thereof which was pending for disposal. We can, therefore, safely assume that the opposite party had not given out full facts while submitting the Final Report to the Additional District Magistrate Judicial) for orders. 11. The opposite party was aware it least from October 12, 1962, of the ejection made by the applicant to the acceptance of the Final Report. He was also aware of the fact that the Final Report was not accepted by Sri B.F. Srivastava and latter by Sri. B.L. Sachdeva on account of this objection. If he was acting in good faith without any intention to unduly help the accused, Dhirendra Mohan, it was necessary for him to return the Final Report to the Magistrate from whom. it had been obtained for submission of a report to the Circle Officer. In any case, while submitting the Final Report to the Addl. District Magistrate (Judicial it Was necessary to bring to his notice all the material facts, namely, that the Final Report had already been entertained by another Magistrate arid that the present applicant had moved an application with the request that the Final Report be not accepted. When the opposite party concealed facts, intentionally or otherwise, he cannot be said to have been acting in good faith. It was necessary for the opposite party to act in the above manner even if he was not aware of the order of Sri. B.L. Sachdeva that the Final Report was to be returned to him by May 5, 1963. 12. Whenever a case has been entertained by a Magistrate, it is be or the higher court which can determine who shall decide the case. In case the opposite party was under the impression that the Final Report already submitted to a Magistrate should now be entertained by the Additional Distt. Magistrate (. Judicial), it was necessary for him to move Sri. In case the opposite party was under the impression that the Final Report already submitted to a Magistrate should now be entertained by the Additional Distt. Magistrate (. Judicial), it was necessary for him to move Sri. B.L. Sachdeva to send the Final Report to the Additional District Magistrate (Judicial) or to move the latter to withdraw the Final Report from the court of Sri Sachdeva. In view of the fact that the Final Re* port had been obtained by the Public Prosecutor for submission of a report to his superior officer, it was necessary for him to return the Final Report to Sri Sachdeva with a request to send it to the Additional District Magistrate (Judicial) in pursuance of the general order passed by him. In the alternative, while resubmitting the Final Re-port the opposite party could request the Additional District Magistrate-(Judicial) to entertain it after withdrawal from the court of Sri Sachdeva. 13. The opposite party had obtained the Final Report in question from Sri. B.L. Sachdeva for submission of a report to the Circle Officer. While preparing the report or discussing the matter with the Circle Officer, he would have been reminded of the fact that the Final Report had been entertained by Sri. B.P. Srivastava and was then pending before Sri. B.L. Sachdeva. He could not also omit to remember that the applicant bad moved an application with a prayer that the Final Report be not accepted. It cannot, therefore, be said that the omission to bring full facts to the notice of the Additional District Magistrate (Judicial) was in good faith. The omission waft the result of gross negligence or can be with the intention to unduly assist the accused. Whatever the in tent ion of the opposite party may be, he cannot be said to have been acting in good faith i.e. with due care and caution. In other words, he would be guilty of contempt of the court of Sri. B.L. Sachdeva, in case he was functioning as a court and not as an Executive Officer. 14. This leads us to the consideration of the other question, whether Sri. B.L. Sachdeva was functioning as a court or as an Executive Officer while entertaining the Final Report. In other words, he would be guilty of contempt of the court of Sri. B.L. Sachdeva, in case he was functioning as a court and not as an Executive Officer. 14. This leads us to the consideration of the other question, whether Sri. B.L. Sachdeva was functioning as a court or as an Executive Officer while entertaining the Final Report. Whenever aft offence is investigated by the police, it is necessary for the officer in Charge of the police station to submit, after completion of the investigation, a report as contemplated by Section 173(1) the Code of Criminal Procedure. The report has to be in the form prescribed by the State Government setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and also stating whether the accused, if arrested, has been forwarded in custody or has been released on his bond and if so whether with or without sureties. Such a report is to be forwarded to a Magistrate empowered to take cognizance of the offence on a police report. The report contemplated by Clause (a) of Section 173(1) Code of Criminal Procedure governs not only those cases in which the Magistrate shall invariably hold an enquiry or trial, but also those in which the investigating officer is of opinion that there is no sufficient evidence to justify the holding of an enquiry or trial and himself releases the accused under, Section 169, Code of Criminal Procedure. 15. Sub-section (a) of Section 173 Code of Criminal Procedure governs a case where the accused has been released u/s 169; Code of Criminal Procedure on his executing a band, with or without sureties, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Sub-sections (4) and (5) of Section 173 Code of Criminal Procedure lay down the rule for the guidance of the police officers in cases in which an enquiry or trial shall be held. Sub-section (3) and also Sub-sections (4) and (5) speak of a report forwarded under this section. Consequently, in the eye of law, there is only one kind of report to be submitted after the investigation of the offence. Sub-section (3) and also Sub-sections (4) and (5) speak of a report forwarded under this section. Consequently, in the eye of law, there is only one kind of report to be submitted after the investigation of the offence. In the State of Uttar Pradesh such a report is called "Charge Sheet'', if the police recommend that sufficient evidence exists to warrant the holding of an enquiry or trial by a competent magistrate; but where the police is of opinion that sufficient evidence does not exist and a recommendation is made for the discharge of the accused, the report is called "Final Report". When the Magistrate takes cognizance of the Charge Sheet he holds the trial by following the procedure laid down for summons or warrant cases, as the case may be. If the offence is exclusively tradable by the Court of Session or the Magistrate is of opinion that he shall not be able to award a suitable sentence, he holds an enquiry under Chapter XVIII of the Code of Criminal Procedure. The cognizance of such cases is taken by the Magistrate under Clause (b) of Section 190(1) Code of Criminal Procedure. In other words, the Magistrate taking cognizance of the Charge Sheet acts as a court of law. There is no reason why the same view be net taken of the Final Report. The magistrate is net bound to accept the recommendation of the police. He can, if he considers necessary, not accept the Final Report and issue process u/s 204 Code of Criminal Procedure and hold the enquiry or the trial, as the case may be. 16. Sub-section (3) of Section 173 Code of Criminal Procedure lays down that whenever it appeals from the report forwarded under this section that the accused: has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. An accused person is invariably released on bond u/s 169 Code of Criminal Procedure when it appears to the police officer making the investigation that there is no sufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to a magistrate. The police can also release the accused on bond, if the offence committed is a bailable one. The police can also release the accused on bond, if the offence committed is a bailable one. On receipt of the report the Magistrate can make such order as he thinks fit for the discharge of the bond or otherwise, the bond is discharged where the Magistrate finds that sufficient evidence does not exist to justify the holding of the enquiry or trial for the offence (sic)eged to have been committed. Where (sic) finds that sufficient evidence exists, the bond is not discharged and enquiry or trial is commenced after the issue of process u/s 204, Code of Criminal Procedure. 17. It shall thus be found that on Receipt of the Final Report a Magistrate (sic) to exercise his judicial discretion, (sic)ther to accept or not to accept the (sic) Report. It would be rather absurd (sic)ay that when the Magistrate does not (sic)pt the Final Report and issues pro-(sic) u/s 204 Code of Criminal Procedure (sic) acts as a court of law and not it merely accepts the Bjoral Report and discharges the bond the decision one way or the other (sic) taken at one and the same time and the Magistrate must th(sic) be acting (sic)her as a court of lay(sic) as an Executive Officer. He (sic) for one purpose be (sic) netioning (sic) courtof law and for the other (sic)med to be discharging his duties as an Executive Officer. 18. A consideration of the provisions of the Code of Criminal procedure thus me to the conclusion that the Magistrate taking cognizance of the Report u/s 173(1) (a), Code of Criminal Procedure irrespective of whether it is a Charge Sheet or a Final Report, acts as a court of law and any one committing I contempt of his court can be punished by this Court. 19. A reference may now be made to a few reported decisions which have been brought to my notice. In Brajnandan Sinha Vs. Jyoti Narain, AIR 1956 SC 66 it was observed that apart from having some of the trappings of a judicial tribunal, the court should have power to give, a decision and authoritativeness which are the essential tests of a judicial pronouncement. In Brajnandan Sinha Vs. Jyoti Narain, AIR 1956 SC 66 it was observed that apart from having some of the trappings of a judicial tribunal, the court should have power to give, a decision and authoritativeness which are the essential tests of a judicial pronouncement. It is not necessary that a criminal, case coming before a court of law must result in conviction or acquit a The court can discharge the accused, or may, on one ground or the other, refuse to take cognizance of the offence. In other words, a criminal court shall not cease to be a court simply became no final order of conviction or acquittal has been passed. What is necessary to constitute a court is that it should have the power to give a decision if it considers necessary. Whenever a Final Report is entertained by a Magistrate, be can either accept it or can proceed with the trial or hold an inquire. If the trial proceeds it shall ordinary result in conviction or acquittal. other words, the magistrate entertaining the Final Report has the power to give a decision or a definitive judgment which has finality and authoritative ress. 20. In Rama Shanker v. State of U.P. (2) (1956 A.W.R. 334) a direction of the District Magistrate or the Superintendent of Police to submit a Charge Sheet to replace a Final Report was held to be administrative and not subject to any control by a court. The District Magistrate issuing the direction was not the one to whom the Final Report had been submitted. The direction given by the District Magistrate was prior to the submission of the Charge Sheet and consequently was a mere administrative direction, The same cannot (sic) to (sic) Charge (sic) Report is submitted. That (sic) has to act judicially and (sic) as a court. 21. In Dwarka Prasad Agarwal (sic) Krishna Chandra and Others (3) (1955) A.W.R. 236) it was observed that con tempt proceedings could not be taken in connection with the publication of news or articles as long as a criminal case was during the course of investigation and had not actually come to the Magistrate's court for enquiry or trial. 21. In Dwarka Prasad Agarwal (sic) Krishna Chandra and Others (3) (1955) A.W.R. 236) it was observed that con tempt proceedings could not be taken in connection with the publication of news or articles as long as a criminal case was during the course of investigation and had not actually come to the Magistrate's court for enquiry or trial. The learned Advocate for the opposite party wants to utilize this observation to infer that there is no contempt of the Magistrate's court till the inquiry or trial has commenced, i.e. (sic) Magistrate decides to issue (sic) u/s 204, Code of Criminal Procedure. The facts of this case are quite different. Therein an article was published before the Conclusion of the police investigation, i.e. before the police submitted the report u/s 173(1)(a) Code of Criminal Procedure and the point for consideration was whether the publication of the news during the Continuance of the investigation could Amount to contempt of the Magistrate's Court before whom the report u/s 173 Code of Criminal Procedure would eventually be submitted. In the instant case, however, the contempt is alleged to have been committed after the submission of the report u/s 173 Code of Criminal Procedure and after that report had been entertain-ed by the Magistrate. 1953 AWR 236 can thus be distinguished. Further, the observations referred to above cannot be given a restricted meaning as desired by the learned Advocate for the opposite party. A case comes be fore a Magistrate for enquiry or trial not when he actually issues process but when a complaint or report is received by him. In other words, the Magistrate functions as a court as soon as he entertains a complaint or a police report which may eventually lead to an enquiry or trial. In the instant case, even though the police submitted the Final Report, the Magistrate was not bound to accept it and the police report could lead to a trial or enquiry, as the case may be. Consequently, the condemner can be punished for contempt of the Magistrate's court if the contempt is committed after the receipt of the (sic) he Magistrate (sic) To sum up, while entertaining the Final Report Sri. B.L. Sachdeva was functioning as a court and (sic)ct as an Executive Officer, and when the opposite party, Sardar Singh, did not return the Final Report to the court of Sri. B.L. Sachdeva was functioning as a court and (sic)ct as an Executive Officer, and when the opposite party, Sardar Singh, did not return the Final Report to the court of Sri. B.L. Sachdeva he flouted the jurisdiction of that court and thereby committed its contempt. Even though the opposite party committed contempt of the court of Sri B.L. Sachdeva, the case is not one in which the condemner may be sent to jail. The acceptance of the Final Report has not materially affected the rights of the applicant to take criminal action against the accused, Dhirendra Mohan. The applicant can inspire of the acceptance of the. Final Report make a criminal complaint on the basis of which the Magistrate can take cognizance of the offence. The purpose shall be served by admonishing the opposite party though at the same time directing him to pay the costs of the applicant and also of the Assistant Government Advocate. 22. Opposite Party, Sardar Singh, is hereby found guilty of contempt of the court of Sri. B.L. Sachdeva but is merely admonished. He shall, however, be liable to pay Rs. 150/- as costs to the applicant and Rs. 80/ as costs to Sri. Kamla Nandan Srivastava, Assistant Government Advocate.