Pradyum Narain Pandey v. State of U. P. — 1968 DIGILAW 105 (ALL)

JUDGMENT C.B. Capoor, J. - This revision has been referred to a larger Bench at the instance of our brother Tripathi, J. The questions of law arising in this revision also arose in Criminal revision No. 342 of 1965 which was directed to be connected with this revision and to be listed before a larger Bench. 2. The facts in revision No. 1862 of 1963 were as below. On 10-4-1963 one Bedlam, son of Mahabir, lodged a report at Police Station Mahrajganj disclosing an offence under Section 325 of I.P.C. The Police on completion of the investigation submitted a report under Section 169 of Cr.P.C. which was accepted by the Magistrate concerned on 2-8-1963. The informant made an application on 21-8-1963 to the Judicial Officer, Mahrajganj, praying that the accused persons be summoned on the basis of the report and the connected papers submitted by the Police on 2-8-1963. This application was allowed, and on 9-9-1963 the learned Magistrate ordered summonses to be issued to the accused persons. Aggrieved by the aforesaid order an application in revision was filed by Pradyum Narain Pandey, one of the accused persons, which was rejected by the learned Additional District and Sessions Judge, Gorakhpur. It was against the orders passed by the learned Magistrate and the learned Additional District and Sessions Judge that the aforesaid revision No. 1862 of 1963 was directed. 3. In the connected revision one Prabhati Lal lodged a report at the Police station against the applicant disclosing offences under Sections 323, 324 and 148 of the Indian Penal Code. As a result of investigation the Police submitted a report under Section 169 of Cr.P.C. on 13-10-1962. It appears that the aforesaid final report was accepted by the learned Magistrate on 3-12-1962. On 21-12-1962 Prabhati Lal presented a . protest petition to the Magistrate concern ed who directed the police to submit a charge-sheet. Thereafter he recalled the aforesaid order on 5-5-1964 and took cognizance of the case and directed summons to be issued to the applicant. He also directed that the case would proceed as a State case. Aggrieved by the aforesaid order an application in revision was filed by the applicant, which was heard by the learned Sessions Judge, Dehradun, who dismissed the same. The applicant thereafter moved this Court in the exercise of its re visional jurisdiction. 4. He also directed that the case would proceed as a State case. Aggrieved by the aforesaid order an application in revision was filed by the applicant, which was heard by the learned Sessions Judge, Dehradun, who dismissed the same. The applicant thereafter moved this Court in the exercise of its re visional jurisdiction. 4. The following questions arise for determination : (1) Whether it is open to a Magistrate to take cognisance of an offence after having accepted a report submitted by the Police under Section 169 of Cr.P.C. relating to that offence? (2) Whether the Magistrate concerned acted in accordance with the law in taking cognisance of the offences in the cases under consideration? (3) Whether in the case under consideration the procedure as laid down under Section 251-A, Cr.P.C. is to be followed or the one laid down in Section 252 and on-wards of Cr.P.C. Question No. 1 : There has been a conflict of judicial opinion on the question as to whether a Magistrate exercises administrative or judicial functions in taking cognisance of a case. It is, however, not necessary for us either to notice that conflict or to express any categorical opinion thereon. Even if a Magistrate is held to exercise judicial functions in taking cognisance of a case. there does not appear to us to be any bar to his taking cognisance of a case on second thought after having accepted the final report once. The order approving the report under Section 169 of Cr.P.C. is not an order of acquittal and Section 403 of Cr.P.C. can possibly have no application to the question under consideration. The aforesaid order again is not even an order of discharge and it is significant that a fresh complaint is entertain able on the passing of an order of discharge. If a fresh complaint can be filed after an order of discharge, it should, in our opinion, be open to a Magistrate to take cognisance of a case on second thought after having accepted the final report under Section 169, of Cr.P.C. In the case of Rama Shanket v. The State of Uttar Pradesh, A.I.R. 1956 Alld. 525 the police had at first submitted a final report under Section 169 of Cr.P.C. This report appears to have been accepted by the Magistrate concerned. 525 the police had at first submitted a final report under Section 169 of Cr.P.C. This report appears to have been accepted by the Magistrate concerned. Thereafter the Police submitted a charge sheet against the accused persons and cognisance of the case was taken by a Magistrate. In the aforesaid setting of facts a question arose whether it was open to the Magistrate to take cognisance of the case subsequently after having accepted the report under Section 169 of Cr.P.C. and it was held that the failure of the Magistrate to take cognisance of the offence on the earlier report did not prevent his taking cognisance on the subsequent report. In the case of Mahabir Prasad "Agarwala v. The State, A.I.R. 1958 Orissa 11 also it was held that if at one stage a Magistrate accepts the final report and does not wish to proceed with the matter further; but subsequently either new facts come to light or after hearing the parties and perusing the papers available he finds that on the previous occasion he had over-looked an important aspect of the case, it is open to him to revise his earlier order. The second question is answered in the affirmative. Question No. 2: The relevant portion of Section 190 of Cr.P.C. reads as below : (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 cognisance 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. (2) The State Government, or the District Magistrate subject to the general or special orders of the State Government, may empower any Magistrate to take cognisance under sub-clause (1) clause (a) or clause (b) , of offences for which he may try or commit for trial. (3) The State Government may empower any Magistrate of the first or second class to take cognisance under sub-clause (1), clause (c) of offences for which he may try or commit for trial. (3) The State Government may empower any Magistrate of the first or second class to take cognisance under sub-clause (1), clause (c) of offences for which he may try or commit for trial. Section 4 (h) of Cr.P.C. defines complaint to mean the allegation made orally or in writing to a Magistrate, with a view to his taking action, under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a Police Officer. 5. It will be noticed that Section 190 referred to above is couched in very wide language, and that it inter alia empowers a Magistrate, who is otherwise duly empowered, to take cognisance of a case upon his own knowledge or suspicion that an offence has been committed. The scope of the aforesaid Section was considered by the Supreme Court in the case of Abhinandan Pia v. Dinesh Mishra, A.I.R. 1968 SC 117 where Vaidialingam, J. speaking for the Court observed at page 123, para. 17, as below: - "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, A.I.R. 1955 SC 196 that the formation 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 form ed 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 cognisance, under Section 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 want only or through bona fide error, fail to submit a report, setting out the facts constituting the offence. 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 want only 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 cognisance 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 cognisance of the offence, under Section 190 (I) (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." 6. The precise question that arose before the Supreme Court in the aforesaid case was as to whether it is within the powers of a Magistrate to direct the Police to submit a charge-sheet in a case in which the Police has submitted a report under Section 169 of Cr.P.C., but in considering that question their Lordships surveyed the relevant provisions of the Code and made the observations quoted above. Those observations, even though obiter, have a great persuasive value. It is clear from the aforesaid observations that it is within the powers of a Magistrate to take cognisance under Section 190 (1) (c) of Cr.P.C. of a case on the materials placed before him by the Police in submitting the final report. 7. It does not appear from the orders of the learned Magistrates as to under which clause or clauses of Section 190(1) of Cr. P.C. cognisance of the offences had been taken. The learned Magistrates had be fore them the materials which the police had made available as also the protest applications by which it was prayed that the accused be summoned on the basis of the report submitted by the police. P.C. cognisance of the offences had been taken. The learned Magistrates had be fore them the materials which the police had made available as also the protest applications by which it was prayed that the accused be summoned on the basis of the report submitted by the police. Under the circumstances it could not be said that the learned Magistrates, had taken cognisance of the cases merely on the basis of the materials placed before them by the police and it may reasonably he held that they had taken cognisance not only on the basis of the materials contained in the report under Section 169 of Cr.P.C. but also on the basis of the protest applications. The several clauses of Section 190(1) of Cr.P.C. are not mutually exclusive rather than are in the alternative. The cases reported in A.I.R. 1960 Bom. 116, A.I.R. 1958 Orissa 104 may usefully be referred to. The learned Magistrates had in our opinion taken cognisance of the offences under clauses (b) and (c) . 8. It may also be observed that in both the cases before us the learned Magistrate, who took cognisance, were duly empower. ed by the State Government to take cognisance of cases under the several clauses of Section 190 of Cr.P.C. vide Manual of Government Orders, Chapter XXVIII, para. 459, serial no. 9 and that it is permissible for the Magistrate to take cognisance of an offence under more than one of those clauses. Question No, 5: Section 251-A of Cr.P.C. provides for the procedure to be followed in warrant cases instituted on the police report whereas the procedure to be followed in cases instituted otherwise on a police report has been laid down in Section 252 and onwards of Cr.P.C. In view of the finding that the learned Magistrate had in the cases under consideration taken cognisance under both clauses (b) and (c) of the Code the procedure laid down under Section 251-A would not be attracted. In the case of Parvin Chandra v. State of Andhra Pradesh, A.I.R. 1965 SC 1185 the following observations were made at page 1186 : "In Section 190 a distinction is made between the classes of persons who can start a criminal prosecution. Under the three clauses of Section 190 (I). In the case of Parvin Chandra v. State of Andhra Pradesh, A.I.R. 1965 SC 1185 the following observations were made at page 1186 : "In Section 190 a distinction is made between the classes of persons who can start a criminal prosecution. Under the three clauses of Section 190 (I). to which we have already referred criminal prosecution can be initiated : (1) By a police officer by a report in writing; (2) Upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion; and (3) Upon receiving a complaint of facts. 9. If the report in this case was within (1) above then the procedure under Section 251-A of Cr.P.C. must be followed. If it falls in (2) or (3) , then the procedure under Section 252; Cr.P.C. must be followed." 10. It would thus appear that in the cases under consideration the Magistrates have to follow the procedure as laid down under Section 252 and onwards of Cr.P.C. It, however, appears that they intended to follow the procedure prescribed by Section 251-A of Cr.P.C. 11. We accordingly dismiss these revisions subject to the modification that the Magistrates concerned should in disposing of the cases under consideration follow the procedure laid down in Section 252 and the relevant following sections of Cr.P.C.