Muneshwar Prasad v. State Of Bihar — 1978 DIGILAW 198 (PAT)

Judgment Birendra Prasad Sinha, J. 1. The main question for consideration in this case is whether a Magistrate, differing with the final report of the police, and without examining on solemn affirmation the informant who files the protest petition, can take cognizance of an offence and issue process against a non-sent up accused. 2. On the 24th December, 1974, an information was lodged by one parmeshwar Prasad before the Bihar police-station relating to an occurrence which took place in village Ita Sang, police-station Rahui, district Nalanda. On the basis of the said report, a case under sections 302/149, Indian Penal Code, and under section 25-A of the Arms Act was instituted against the petitioner and four others. The police took up investigation. After completing the investigation, charge-sheet was submitted on 22.6.76 against three persons under sections 302/148/l49, Indian Penal Code, and under section 25-A of the Arms Act. The petitioner was not sent up by the police. 3. It appears that before the submission of the charge-sheet, a petition had been filed by the informant on 3.5.75 alleging, Inter alia, that the investigating officer was in collusion with the accused persons. Another petition seems to have been filed by the informant on 19.5.75 in which a prayer was made to hear him after the submission of the final form. The petition was kept on the record. Yet another petition was filed by the informant on 22.6.76, i. e. , on the very date the charge-sheet submitted against three of the accused was received by the magistrate, making a prayer to put the petitioner and one Tilakdhari Prasad (since dead) on trial. 4. It appears that the parties were heard on the question of summoning the non sent up accused persons by the Chief Judicial Magistrate on 9.11.76. ft was urged before him that the case had been supervised by higher police officers but finding that the supervision note by any such officer was not in the case diary, the learned Magistrate sent for those materials and ordered the case to be put up on 30.11.76. The case diary was returned to the Assistant Public prosecutor. The matter came up for consideration before Shri Kapildeo Sharma, the new Chief Judicial Magistrate (the previous Chief Judicial Magistrate having been transferred) on 17.2.77. The case diary was returned to the Assistant Public prosecutor. The matter came up for consideration before Shri Kapildeo Sharma, the new Chief Judicial Magistrate (the previous Chief Judicial Magistrate having been transferred) on 17.2.77. A petition was filed on behalf of the petitioner to accept the final report submitted by the police in respect of the petitioner. After hearing the parties and perusing the case diary and the final form submitted by the police, the learned Chief Judicial Magistrate took cognizance of the offences under sections 148, 149, 302, Indian Penal Code, and under section 25-A of the arms Act. Differing, however, with the final report submitted by the police in respect of petitioner, the learned Magistrate also summoned him along with the three charge sheeted accused persons. Accused Tilakdhari Prasad, against whom also no charge-sheet had been submitted had in the meanwhile died. It is this order of the Chief Judicial Magistrate taking cognizance against the petitioner which has been impugned in this application. 5. Shri Balbhadra Prasad Singh, learned Counsel for the petitioner, urged the following points for consideration : (1) That after the police had submitted a report under section 173 of the code of Criminal Procedure specifically stating that the allegations against the petitioner had been found to be false, the learned Magistrate without holding that the police report could not sustain the view of the police that the accuation was false and without assigning any reason tor the perversity of that view, summon the petitioner. (2) That the learned Magistrate had mixed up the pre-cognizance and post cognizance procedures and invented a hybrid procedure of his own in summoning the petitioner in view of the protest petition. On the basis of the police report, the Magistrate has to act under section 210 of the Code of Criminal Procedure without which he could not summon the petitioner. (3) That the Magistrate could not sit over the judgment of his predecessor and virtually review his order by summoning the petitioner. 6. As regards the first point raised by learned Counsel, it must be remembered that the Magistrate has the ultimate control over the police investigation. The jurisdiction to decide who will be put on trial is in a Magistrate and not in the police. The police is empowered to investigate, collect materials and produce it before the Magistrate. 6. As regards the first point raised by learned Counsel, it must be remembered that the Magistrate has the ultimate control over the police investigation. The jurisdiction to decide who will be put on trial is in a Magistrate and not in the police. The police is empowered to investigate, collect materials and produce it before the Magistrate. The view expressed by the police in the final form cannot be said to be conclusive. Where the function of the police ends, the function of the Magistrate commences. Both are complementary. The magistrate does not sit in appeal over the conclusions of the police. The power of the Magistrate to differ with the police report-either a charge sheet or a final report is implicit in section 190 (1) (b) of the Code. I do not think that there is any substance in the argument that the Magistrate must assign for differing with the police report. 7. Coming to the second point, Chapter XIV of the Code of Criminal procedure deals with the information to the police and the power to investigate. Upon completion of investigation, the police officer has to send a report to the magistrate concerned under section 173 of the Code containing the necessary particulars. Chapter XV deals with the conditions requisite for initiation of proceedings. Sec.190 occurs in this Chapter empowering the Magistrate to take cognizance. The manner and method of conducting an investigation are left with the police. If, in the opinion of the police making the investigation, there is no sufficient evidence justifying the forwarding of an accused to the magistrate, it shall release the accused, if in custody, on his executing a bond to appear before a magistrate, but if, it appears to the police that there are sufficient evidence justifying the forwarding of the accused to a Magistrate, it shall forward the accused to a Magistrate. In either casa, on completion of investigation, the police officer is required to submit a report to the Magistrate under section 173. Upon submission of a report by the police, the Magisrate is empowered to take cognizance of the offence and proceed according to law. It is open to a Magistrate to differ with the police report. He can take a view that the facts disclosed in the report do not make out an offence for taking cognizance. Upon submission of a report by the police, the Magisrate is empowered to take cognizance of the offence and proceed according to law. It is open to a Magistrate to differ with the police report. He can take a view that the facts disclosed in the report do not make out an offence for taking cognizance. In a case where final report has been submitted stating that no case has been made out for sending up the accused for trial, a Magistrate may agree with the said report and accept it and terminate the proceeding ; but he may also differ with the final report and take the view that the opinion formed by the police was not based on full and complete investigation. In such cases, the magistrate can direct the police under section 156 (3) of the Code to make further investigation. But, if the Magistrate forms an opinion that the facts set out in the final report constitute an offence, he can straightway take cognizance of the offence even though contrary opinion had been expressed by the police. In Kuli Singh V/s. State of Bihar (1978 BBCJ 377) a Special Bench of this Court held that when a final report was submitted by the police to a Magistrate, the magistrate was expected to apply his judicial mind to the report and to consider whether it discloses any offence or not. In arriving at that conclusion, it was open to a Magistrate to look into the case diary and other relevant materials. After considering all relevant materials, the Magistrate may accept the report ; but he may also differ and, if the investigation is incomplete, may direct re-investigation or further investigation under section 156 (3) of the Code. However, if the Magistrate feels that the investigation is complete and the materials collected during the investigation reveal commission of an offence calling for putting one or more accused on trial, he may differ with the final report, take cognizance and issue processes. Shri Singh did not challenge this position in law and fairly conceded that a Magistrate was empowered to differ with the final report and take cognizance if there was sufficient material collected during the police investigation. But he very strenuously urged that in a case where, before the submission of the police report, a protest petition had been filed, the position will be different. But he very strenuously urged that in a case where, before the submission of the police report, a protest petition had been filed, the position will be different. In that case, according to Shri Singh, treating the protest petition as a complaint, the Magistrate must examine the complainant on solemn affirmation and proceed under Chapter XVI of the Code. In Abhinandan Jha V/s. Dinesh Mishra, ( AIR 1968 SC 117 ), there were two criminal appeals which were heard together. In both of them, the police had submitted final report. Before the submission of the final report, the informants in both the cases had filed protest petitions challenging the correctness of the report submitted by the police. The Magistrate, after perusing the police diary and hearing the Counsel, had directed the police to submit charge-sheets against the accused persons. The order passed by the Magistrate calling for a charge sheet was challenged on the ground that the Magistrate had no power to call for the charge sheet although he could direct further investigation to be made by the police. It was also urged that the Magistrate could treat the protest petitions as complaints and take cognizance of the offence and proceed according to law. In both the cases it was found that there was nothing to show that the protest petitions filed by the informants had been treated as complaints. In paragraph 21, it was observed as follows : "in these two appeals, one other fact will have to be taken note of. It is not very clear as to whether the Magistrate, in each of these cases, has chosen to treat the protest petitions, filed by the respective respondents, as complaints, because, we do not find that the Magistrate has adopted the suitable procedure indicated in the Code, when he takes cognizance of an offence, on a complaint made to him. Therefore, while holding that the orders of the Magistrate, in, each of these cases, directing the police to file charge sheets, is without jurisdiction, we make it clear that it is open to the Magistrate to treat the respective protest petitions, as complaint, and take further proceedings, according to law, and, in the light of the views expressed by us, in this judgment. " The Supreme Court found that the Magistrate could not direct the police to file a charge-sheet. " The Supreme Court found that the Magistrate could not direct the police to file a charge-sheet. He could treat the protest petitions as complaints and proceed according to law. But what will happen in a case where the Magistrate, after looking into the case diary and other relevant materials, finds that there was sufficient material collected during the investigation revealing commission of an offence calling for putting one or more accused on trial. In my opinion, in such a situation he may ignore the protest petition and differing with the opinion of the police; expressed in the final report, take cognizance and issue processes. But if there are no sufficient materials for taking cognizance and the Magistrate feels that the investigation was incomplete, he may direct re-investigation or further investigation under section 156 (3) of the Code. In the instant case the magistrate seems to have found that the investigation was complete and the materials collected during investigation revealed the commission of an offence calling for putting even the petitioner on trial. He was right in differing with the final report and in taking cognizance and issuing processes. It cannot be said that as soon as a protest petition is filed, even though there was sufficient material collected during the investigation, the Magistrate must adopt the procedure of a complaint case. It is open to him to adopt such a procedure treating the protest petition as a complaint in cases where there are no sufficient materials collected during the investigation warranting taking of cognizance of an offence and putting the accused on trial. In my opinion, it will only be a futile exercise if the Magistrate proceeds on the basis of a protest petition treating it as a complaint, even though in his opinion there was sufficient material collected during the police investigation to book the accused persons. Shri singh placed great reliance on the decision of the Supreme Court in ruta Ram v. Kishore Singh, ( AIR 1977 SC 2401 ). A criminal case was registered by the police for causing the murder of one Balbir Singh. The case was committed to the Court of Session. A cross complaint was filed before the Judicial Magistrate by one Kishore Singh, brother of the accused in the police case. On receipt of the complaint, the Magistrate ordered the police to investigate the case under section 156 (3) of the Code. The case was committed to the Court of Session. A cross complaint was filed before the Judicial Magistrate by one Kishore Singh, brother of the accused in the police case. On receipt of the complaint, the Magistrate ordered the police to investigate the case under section 156 (3) of the Code. The police submitted a final report. The Court after considering the report ordered the complainant to appear before it. The complainant appeared and his statement was recorded. The Magistrate issued proceed against the accused persons of the complaint case. This order was challenged on the ground that the Magistrate having ordered investigation under section 156 (3) was not competent to revive the complaint and issue process against the accused. This was negatived by the High Court and, on appeal, by the Supreme Court. The Supreme Court laid down that a Magistrate can order investigation under section 156 (3) only at a pre-cognizance stage but where he decides to take cognizance under the provisions of Chapter XIV, he was not entitled to order an investigation under section 156 (3 ). In the instant case the Magistrate did not treat the protest petition as a complaint. The decision in the case of Tula Ram (supra) does not in any way help the petitioner in the present case. Shri Singh then referred to section 210 of the Code. According to section 210, in a case instituted otherwise than on a police report, i. e. on a complaint, if it was made to appear to the Magistrate during the course of inquiry or trial held by him that an investigation by the police was in progress in relation to the said offence, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. I fail to understand how section 210 helps the petitioner. The case at hand was not instituted on the basis of a complaint. It was not necessary, therefore, to follow the procedure under section 210 of the code. 8 Point No.3 does not deserve any serious consideration. It will appear that on 9.11.76 Shri K. N. Jaiswal, the then Chief Judicial Magistrate, heard the parties on the point of summoning the non sent up accused persons. During the course of argument he was told that the case had been supervised by some higher police officers. 8 Point No.3 does not deserve any serious consideration. It will appear that on 9.11.76 Shri K. N. Jaiswal, the then Chief Judicial Magistrate, heard the parties on the point of summoning the non sent up accused persons. During the course of argument he was told that the case had been supervised by some higher police officers. He did not find anything to that effect in the case diary produced before him. He ordered the matter to be put up on 30.11.76 in presence of parties, stating that it was necessary that those materials, viz. , the supervision notes of the higher police officers, if available, be brought to the notice of the Court The order dated 9.11.76 is annexed as annexure 2 to this application. From this, it cannot be even remotely suggested that the then learned chief Judicial Magistrate, Shri Jaiswal, passed any order either agreeing or disagreeing with the police report. I fail to understand how the impugned order dated 7.2.77 passed by Shri Kapildeo Sharma, the successor Chief Judicial magistrate, can be said to be a review of the order dated 9.11.76 passed by his predecessor. This submission of learned Counsel must be rejected. 9. To sum up, it must be held that in cases where a final report has been submitted, the Magistrate is not bound to accept it and he may differ with the opinion expressed by the police if there was sufficient material collected during the investigation, on the basis of which the Magistrate could take cognizance, and put the non-sent up accused persons on trial. In cases where protest petition has been filed before the submission of the final form, the Magistrate may treat the protest petition as a complaint and direct the police for further investigation] or re-investigation under section 156 (3) of the Code, if in his opinion the investigation was incomplete ; but if the investigation was complete and there was sufficient material collected during the police investigation warranting the taking of cognizance, the Magistrate, ignoring the protest petition, could straightway take cognizance and issue processes. 10. In the result, this application fails and is dismissed. Application dismissed.