Asgar Khan v. State of Rajasthan — 1997 DIGILAW 1469 (RAJ)

Honble SINGH, J.–Both the petitions under Section 482, of the Criminal Procedure Code, 1973 have been filed with the prayer that the challan presented by the police relating to F.I.R. No. 43 of 1992, Police Station Kotwali, Churu as well as proceedings initiated on the basis of the challan be quashed. (2). Heard learned counsel for the petitioners and the learned Public Prosecu- tor and perused the record of the Criminal Case No. 80/93 State vs. Nasir Khan & Ors. (3). Both these petitions have been filed by persons who are accused of having committed offences under sections 307, 323, 341, 326, 147, 148 and 149 of the Indian Penal Code and against whom a report purported to be a report under Section 173, Cr.P.C. was submitted in the Court of the Chief Judicial Magistrate , Churu by the Station House Officer of the Police Station Kotwali, Churu. On the basis of the aforesaid report purporting to be a report under Section 173, Cr.P.C., cognizance of offences under Sections 307, 323, 341, 326, 147, 148 and 149 of the Indian Penal Code was taken by the Officer performing the duties of the Chief Judicial Magistrate on the day. The accused persons viz., Nasir Khan, Rafiq, Baboo Khan, Rafiq s/o Yaqub Khan, Asgar Khan, Changes Khan and Yasin Khan were stated in the police-report to be absconding and therefore, after taking cognizance of the offences mentioned above, warrants of arrest were ordered to be issued compelling the attendance of the accused petitioners. (4) The facts which are relevant for the disposal of these petitions may be sum- marised below : On 22.2.92, Sabir Ali s/o Salim Khan gave oral information to Banwari Lal, F.C. No. 139 at Government Hospital Churu about the commission of the offences. Information given by Sabir Ali was recorded by Banwari Lal, F.C. and the letter submitted at the Police Station and, on the basis of that information F.I.R. No. 43/92 was registered. According to the information given by Sabir Ali, on 22.2.92, at about 8 A.M., Sabir Ali was going towards Rohi with his cows. When he reached near the house of Iqbal Khan, all of a sudden, 10-12 persons attacked him. Asgar Khan was ahead of the other assailants and he was instigating others to kill the complainant (Sabir Ali). According to the information given by Sabir Ali, on 22.2.92, at about 8 A.M., Sabir Ali was going towards Rohi with his cows. When he reached near the house of Iqbal Khan, all of a sudden, 10-12 persons attacked him. Asgar Khan was ahead of the other assailants and he was instigating others to kill the complainant (Sabir Ali). The assailants were armed with lathis, axes, gandasis and knives and after surrounding the complainant Sabir Ali they started inflicting injuries on his body. Sabir Ali had one small stick with him with which he tried to defend himself. At that time, Yasin and Nasir Khan inflicted knife-injuries on the head of Sabir Ali and Baboo Khan inflicted a gandasi injury on his waist and on his nose. Several injuries with iron chain were also inflicted on his body. Sabir Ali in order to save himself from the assault tried to escape by entering into the house of Ast Ali but he was followed by the assailants and he was given a beating inside the house of Ast Ali. Meanwhile, Iqbal and Mushtaq reached the scene of occurrence and they saved Sabir Ali. It was also stated by Sabir Ali that about 2 1/2 years ago he had severed his relationship with his wife and Asgar Khan (vakil) was acting as pleader in her case and he was demanding a sum of Rs. 2,00,000/- and was also asking him to take his wife with him and was threatening to kill him in the event he did not comply with the above demands. On the basis of the information given by Sabir Ali, the first-information-report was registered at Police Station Kotwali, Churu. (5). After conducting investigation, the report purporting to be a report under Section 173, Cr.P.C. was submitted in the Court of learned Chief Judicial Magistrate, Churu and on the basis of that report cognizance of offences under Sections 307, 323, 341, 326, 147, 148 and 149 of the Penal Code was taken and warrants of arrest were issued against the accused persons to compel their attendance. (6). Feeling aggrieved by the proceedings initiated against them, the accused persons have filed these petitions. Asgar Ali has filed S.B. Criminal Misc. Petition No. 56/94 and the remaining accused persons have filed S.B. Criminal Misc. Petition No. 87/94. (6). Feeling aggrieved by the proceedings initiated against them, the accused persons have filed these petitions. Asgar Ali has filed S.B. Criminal Misc. Petition No. 56/94 and the remaining accused persons have filed S.B. Criminal Misc. Petition No. 87/94. Learned counsel for the petitioners have filed a copy of the order No. F. 25(6)Home/11/98 dated 28th August, 1993 passed by the Deputy Secretary to the Government of Rajasthan. This document shows that on representation filed by Asgar Ali Advocate of Churu, the State Government gave a direction to the effect that the case be got re-investigated by an officer of the level of Superintendent of Police and it was further directed that re- investigation-report may be made available to the Home Department with the comments of the Inspector General of Police (CID) to whom the above mentioned order was addressed. Learned counsel for the petitioners have submitted that this order was not complied with and the report on the basis of which cognizance was taken of the various offences against the accused petitioners was submitted by the Station House Officer of the Police Station Kotwali, Churu, without complying with the directions contained in the State Governments order dated 28.8.93. (7). In both these petitions, the following grounds have been urged : (i) That on 25.1.94, the Chief Judicial Magistrate, Churu was on leave and cognizance of the offences was taken by another Officer who was looking after the work of the Chief Judicial Magistrate and he had no legal jurisdiction to take cognizance of the offences, therefore the initiation of the proceedings is without jurisdiction and it cannot be said that the proceedings have been legally initiated in the Court of the Chief Judicial Magistrate. (ii) The report on the basis of which cognizance was taken was submitted by the Station House Officer, P.S. Kotwali, Churu without complying with the provisions of Section 173(3) of the Criminal Procedure Code read with Section 158 and the Rajasthan Police Rules, 1965 and, therefore the Magistrate was not legally empowered to take cognizance on such a report. (ii) The report on the basis of which cognizance was taken was submitted by the Station House Officer, P.S. Kotwali, Churu without complying with the provisions of Section 173(3) of the Criminal Procedure Code read with Section 158 and the Rajasthan Police Rules, 1965 and, therefore the Magistrate was not legally empowered to take cognizance on such a report. (iii) That in this case the report submitted by the Station House Offi- cer, P.S Kotwali, Churu cannot be regarded a report under Section 173 of the Criminal Procedure Code because after the passing of the order dated 28.8.93 by the State Government, it was obligatory on the part of the Police to comply with the directions given by the State Government and that after passing of the order by the State Government, the police officer who was investigating the case ceased to have the jurisdiction to conduct further investigation and submit the report under Section 173, Cr.P.C. It is further submitted that since the report submitted by the police in this case cannot be regarded a report under Section 173 of the Criminal Procedure Code, cognizance of the offences under clause (b) of sub-section (1) of Section 190 on the basis of such report could not have been legally taken by the Officer acting as the Chief Judicial Magistrate, Churu. (iv) That in view of the facts, the issue of warrants of arrest against the accused persons was not justified because the allegation that they were absconding was false and there was no abscondance on the part of the accused persons and the petitioner Asgar Khan, who was one of the accused, was in fact a practising Advocate and was practising regularly and it would have been in the fitness of things if bailable warrants were issued. (8). The learned Public Prosecutor has opposed these petitions and supported the order of taking cognizance as well as the institution of the case on the basis of the report submitted by the Station House Officer, P.S. Kotwali, Churu in this case. (9). The first question to be decided is whether the Magistrate who purported to act as the Chief Judicial Magistrate on 25.1.94 was legally empowered to take cognizance of the offences. The fact that the Chief Judicial Magistrate was on leave is evidenced by the order dated 25.1.94 itself. (9). The first question to be decided is whether the Magistrate who purported to act as the Chief Judicial Magistrate on 25.1.94 was legally empowered to take cognizance of the offences. The fact that the Chief Judicial Magistrate was on leave is evidenced by the order dated 25.1.94 itself. The submission made by the learned counsel for the petitioners is that the Chief Judicial Magistrate in exercise of the statutory powers conferred on him distributes work among the Judicial Magistrates subordinate to him under sub-section (2) of Section 15 of the Criminal Procedure Code, 1973. The Chief Judicial Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Judicial Magistrates subordinate to him and the fact that the challan was to be filed in the Court of the Chief Judicial Magistrate shows that the cases arising out of the jurisdiction of Kotwali, Churu, were to be instituted in the Court of the Chief Judicial Magistrate and not in the Court of any other Magistrate and, therefore, the Judicial Magistrate who was looking after the work of the Court of Chief Judicial Magistrate on 25.1.94 had no jurisdiction to take cognizance of the offences on the basis of the report submitted by the Station House Officer of Police Station Kotwali, Churu. I have carefully considered the submission. Sub-Section (2) of Section 14 of the Criminal Procedure Code provides that, ``Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district. A similar question was decided by a learned Single Judge of this Court in Radhey & Ors. vs. Girwar (1), wherein sub-sections (1) and (2) of Section 12 of the Criminal Procedure Code, 1898 were considered. Several decisions of the High Court were also considered and conclusions were given by the learned Single Judge in para 9 at page 197. The learned Judge observed as under : ``It may be noted that the plain language of S. 12 (1) and (2) supports the view taken by Beaumont C.J., in the Bombay Case, AIR 1935 Bom- bay 409, referred to above. The learned Judge observed as under : ``It may be noted that the plain language of S. 12 (1) and (2) supports the view taken by Beaumont C.J., in the Bombay Case, AIR 1935 Bom- bay 409, referred to above. Mere allocation of a particular area to a particular Magistrate by the District Magistrate cannot by itself be understood to have the effect of excluding the jurisdiction of that Magistrate from over other areas of the same district over which he exercises jurisdiction by virtue of provision of S. 12(2), Criminal P.C. In order to exclude certain areas from the jurisdiction of the Magistrate, there must be something express or by necessary implication in the order defining the local area to warrant an inference that the intention of the said order was to exclude the jurisdiction of such Magistrate from such areas. I am in respectful agreement with the view of Beaumont C.J., noted above......The technicality that has prevailed in the opinion of the learned Additional District Magistrate is resolved when the provisions of S. 12(1) and (2) is interpreted in the manner noted above. I am in respectful agreement with the views expressed by Honble Justice Ranawat in the case of Radhey & Ors. vs. Girvar (supra). The Magistrate is appointed by the High Court for the whole of the District Sub-section (2) of Section 14 of the Criminal Procedure Code, 1973 expressly provides that unless otherwise provided by the definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district. It is true that sub-section (2) of Section 15 of the Criminal Procedure Code, 1973 gives statutory powers to the Chief Judicial Magistrate to make rules or give special orders consistent with the Code as to distribution of business among the Judicial Magistrates subordinate to him and sub-section (1) of Section 14 of the Code of Criminal Procedure, 1973 further empowers the Chief Ju- dicial Magistrate to define the local limits of the area within which the Magistrates appointed under Section 11 or under Section 13 may exercise allor any of the powers with which they may respectively be invested under this Code. But, in this case, there is nothing to show that by any order, the jurisdiction of the Magistrate was restricted to a limited area within the district and, therefore, it cannot be said that he had ceased to have jurisdiction which is expressly saved by sub-sec. (2) of Sec. 14 of the Code of Criminal Procedure, 1973. My attention has not been drawn to any such order passed by the Chief Judicial Magistrate under sub-section (1) of Sec. 14 as may support the contention of the learned counsel for the petitioners. (10). It is well known that whenever any Presiding Officer of the Court is on leave on a court-working day, some other Judicial Officer who is competent in accordance with the provisions of the Code to exercise jurisdiction in respect of cases pending in the Court of the Officer who is on leave, is asked to look after the work of that Court. In other words, he temporarily succeeds the Officer who may be on leave, and the very object of asking another Officer to look after the work pending in the Court presided by the officer who is on leave, is that necessary judicial orders may be passed and legal complications may not arise on account of the absence of the Officer on account of leave or otherwise. The successor, unless prohibited by law, can exercise the powers while doing the work of the Court which were required to be looked after during the absence of the Presiding Officer. In any case, presumption that the Officer was performing functions regularly is to be drawn in such cases though such presumption is rebutable; and, in the instant case, there is nothing to rebut the presumption that the officer who took cognizance of the offences on 25.1.94 was duly empowered to look after the work of the Court of Chief Judicial Magistrate, on account of the Presiding Officer of that Court being on leave and, therefore, as successor he could lawfully take the cognizance of the offences under Section 190, sub-section (1), of the Criminal Procedure Code. As pointed out, this presumption is rebutable. If the petitioners have any objection in this behalf they may raise the same before the learned Chief Judicial Magistrate, if occasion should arise for the proceedings to continue. (11). As pointed out, this presumption is rebutable. If the petitioners have any objection in this behalf they may raise the same before the learned Chief Judicial Magistrate, if occasion should arise for the proceedings to continue. (11). The second contention of the learned counsel for the petitioners is that the learned Chief Judicial Magistrate could not have cognizance of the offences on the basis of the report submitted before him because the provisions of sub-section (3) of Section 173 read with Section 158 were not complied with. The crucial question, therefore, is whether it is necessary that provisions of sub-section (3) of Section 173 must be duly complied with before the Magistrate can acquire jurisdiction to take cognizance under Section 190(1), Criminal Procedure Code. The provisions of Section 190 of the Criminal Procedure Code have been lifted from the Criminal Procedure Code, 1898 with only one change that in clause (c) of sub-section (1) of Section 190, the word ``suspicion has been deleted. The powers of the Magistrate to take cognizance under Sec. 190 of the Criminal Procedure Code, are the same as they were under the Criminal Procedure Code,1898. The question raised by learned counsel for the petitioners may be decided by ascertaining as to what was the legal position as to the powers of the Magistrate to take cognizance under Sec. 190 of the Cr. P.C. Under the Code of 1898, so far as the compliance of sub-sec. (3) of Sec. 173 of the Criminal Procedure Code is concerned. (12). It may be pointed out at the very outset that under the Code of 1898 it was not necessary that there should have been filed a report under Section 173 of the Criminal Procedure Code in order the Magistrate could take cognizance under clause (b) of sub-section (1) of Section 190. The words `police report as used in clause (b) of sub-section (1) of Section 190 was not defined in the Criminal Procedure Code of 1898 and, therefore, any report of any Police Officer was sufficient to enable the Magistrate to take cognizance under clause (b) of sub-section (1) of Section 190 of the Criminal Procedure Code. The words `police report as used in clause (b) of sub-section (1) of Section 190 was not defined in the Criminal Procedure Code of 1898 and, therefore, any report of any Police Officer was sufficient to enable the Magistrate to take cognizance under clause (b) of sub-section (1) of Section 190 of the Criminal Procedure Code. Regarding taking of cognizance under Section 190, Cr.P.C and the definition of `taking cognizance, the earliest ruling which has been followed by the Courts is the ruling given by the Division Bench of the Calcutta High Court in Emperor vs. Sourindra Mohan Chuckerbutty (2). The facts of that case may be briefly mentioned to show that occasion for filing the report under Section 173 had not arisen when the cognizance of the offence was taken. On 24.4.1909, a dacoity took place at Nettra, and on the same day the police sent a report to the Sub-Divisional Officer of Diamond Harbour. On 2nd September, one of the accused concerned was arrested and made a confession on 18th October. The case was subsequently transferred by the District Magistrate of Alipore to his own file, and, on 20th January, 1910, an order under section 2 of Act XIV of 1908 was passed. On the same day, the house of the petitioners fa- ther was searched, but nothing incriminating was found. The petitioner surrendered on 24th and was arrested by the police and put up before the Joint Magistrate of Alipore, who remanded him to jail. An application for bail was then made on 28th to the District Magistrate who directed the case to be put up before him on the next day. On the next day, his bail application was considered and it was rejected. Another application for bail was filed on 5th February and that was rejected on the ground that it was a case under special procedure. When the Sessions Judge was approached under Section 498 of the Criminal Procedure Code, 1898 for bail, the application was rejected. The petitioner then obtained a rule from the Calcutta High Court calling upon the District Magistrate to show cause why bail should not be gran- ted on the grounds that no order has been made applying Act XIV of 1908 and that there did not appear any sufficient cause for further inquiry into the guilt of the petitioner. The petitioner then obtained a rule from the Calcutta High Court calling upon the District Magistrate to show cause why bail should not be gran- ted on the grounds that no order has been made applying Act XIV of 1908 and that there did not appear any sufficient cause for further inquiry into the guilt of the petitioner. In the return, filed by the District Magistrate, Alipore, it was mentioned that the accused was in custody for one month and the accused had made a full confession and the police was in possession of some evidence. That there were 17 accused under arrest and, that the District Magistrate at that stage did not deem it fit to insist upon the police to place before him the evidence against the accused persons. It is obvious that the investigation had not been completed by the time the matter was brought to the notice of Calcutta High Court in connection with bail to one of the accused Sourindra Mohan. The applicability of the provisions of the Act XIV of 1908 which provided special procedure as to grant of bail and trial of the accused persons depended upon the answer to the question whether the District Magistrate, Alipore had taken cognizance. It was submitted before the Division Bench of the Calcutta High Court that the Magistrate had not taken cognizance of offence of Nettra dacoity on 20.1.1910. The Calcutta High Court perused the record and observed : ``......On looking at the record, we find that a police report was made to the Sub-divisional Officer of Diamond Harbour on the 24th April, the day when the dacoity is alleged to have taken place, and that the case was afterwards transferred to head-quarters. Cognizance had, therefore, been taken of the offence on the 20th January 1910, as recited in the order of the Local Government of that date; for taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, applies his mind to the suspected commission of an offence. The view taken by the Division Bench of the Calcutta High Court in Sourindra Mohans case as to the definition of the expression ``taking cognizance, for the purpose of Section 190, Cr.P.C. was approved by the Supreme Court in AIR 1951 S.C. 207 (3) and several other cases. The view taken by the Division Bench of the Calcutta High Court in Sourindra Mohans case as to the definition of the expression ``taking cognizance, for the purpose of Section 190, Cr.P.C. was approved by the Supreme Court in AIR 1951 S.C. 207 (3) and several other cases. It would be sufficient for the purpose to refer to the constitutional Bench ruling of the Honble Supreme Court in this behalf. In the case of Mowu vs. Superintendent, Special Jail Naogaon (4), after conducting the inquiry, a complaint was submitted under the orders of the Government before the District Magistrate, Kohima against as many as 170 persons alleging the commission of various offences. On the submission of that complaint, on 22.12.69, the District Magistrate direc- ted the police to register the case. The police registered the case as per the directions of the District Magistrate and on the next day i.e., 23.12.69, produced a copy of the first information report before the Magistrate and prayed for issue of warrants of arrest against the accused persons who were reported to be lodged in different jails of the country. The warrants of arrest were issued by the District Magis- trate, Kohima and in execution of the warrants of arrest steps were taken to bring the offenders from different jails to Kohima for the purpose of trial. Some of the accused were outside the jurisdiction of the District Magistrate, Kohima and for the transfer of their cases, the concerned High Courts were moved. This delayed the appearance of the accused persons before the District Magistrate, Kohima. One of the accused persons, Mowu, whose case was delayed moved a habeas corpus petition under Article 32 of the Constitution before the Supreme Court. He was represented by two Advocates : Mr. R.K. Garg and Mr. M.C. Chhagala. Mr. Chhagla took the stand that the District Magistrate, Kohima had issued the warrants after taking cognizance on 23.12.69 but the act of taking cognizance was irregular in as much as the list of witnesses had not been filed as required by Section 204(1)(a) of the Criminal Procedure Code, 1898. The Honble Supreme Court after considering the contention raised by Mr. Chhagla took the stand that the District Magistrate, Kohima had issued the warrants after taking cognizance on 23.12.69 but the act of taking cognizance was irregular in as much as the list of witnesses had not been filed as required by Section 204(1)(a) of the Criminal Procedure Code, 1898. The Honble Supreme Court after considering the contention raised by Mr. Chhagla held that the names of witnesses were contained in the first information report and as such the alleged irregularity was not fatal and, in any case, it was the spirit of the Criminal Procedure Code that was application to the case. Consequently, taking cognizance by the District Magistrate, Kohima was held to be legal. The other counsel, Mr. R.K. Garg took a completely different stand. He submitted that the case was at the stage of investigation which had not been concluded and, therefore, the District Magistrate, Kohima could not have taken cognizance of the offence as taking cognizance would have hampered the investigation by the police. The Honble Supreme Court rejected the contention and held that the District Magistrate, Kohima must be said to have taken cognizance of the offence on 22.12.69 or, in any case, on 23.12.69 when the first information report was submitted before him. So far as the provisions of Section 190 of the Criminal Procedure Code of 1898 are concerned, these authoritative pronouncements clearly show that the report under Section 173, Cr.P.C. was not a must for the purpose of taking cognizance under Section 190 of the Criminal Procedure Code, 1898 and any police-report, including the first information report was sufficient to give jurisdiction to the Magistrate under clause (b) of sub-section (1) of Section 190 of the Criminal Procedure Code. It is obvious that under the Code of 1898 the Magis- trate could not be said to have been prevented from taking cognizance under clause (b) of sub-section (1) of Section 190, if the provisions of Section 173(3) were not complied with, because for the purpose of taking cognizance under clause (b) of sub-section (1) of Sec. 190, a report under Section 173, Cr.P.C. was not necessary. (13). When the Criminal Procedure Code of 1973 was enacted the legislature did not deem it fit to curtail the powers of the Magistrate in the matter of taking cognizance, save to the extent, a change was effected in the Criminal Procedure Code of 1973. (13). When the Criminal Procedure Code of 1973 was enacted the legislature did not deem it fit to curtail the powers of the Magistrate in the matter of taking cognizance, save to the extent, a change was effected in the Criminal Procedure Code of 1973. It is by the act of giving a definition of `police report in the definition clause that the report under Section 173, Cr.P.C. has been made necessary for the purpose of taking cognizance under clause (b) of sub-sec. (1) of Section 190 of the Cr. P.C. Suffice it to say that the powers of the Magistrate in the matter of taking cognizance under Section 190 of the Criminal Procedure Code have not undergone any change in respect of the matter under consideration. In a recent case of State of Maharashtra vs. Sharad Chandra Vinayak Dongre & Ors. (5), the Honble Supreme Court considered the provisions of Sections 173 and 190 of the Criminal Procedure Code. In that case, the Honble Supreme Court considered whether the trial Court could not have taken cognizance in view of the application filed by the prosecution seeking permission to file a supplementary charge-sheet. On the basis that the charge-sheet was an incomplete charge-sheet. The High Court quashed the order passed by the Chief Judicial Magistrate on 21.11.86. The Honble Supreme Court held that the view taken by the High Court was erroneous and observed : ``Section 173(2) of the Code of Criminal Procedure provides that as soon as investigation is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in the form prescribed by the State Government stating: (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether the accused has been arrested; (g) whether he has been forwarded in custody under Section 170. ``The purpose of submission of the police report with the details is to enable the Magistrate to ascertain whether on the basis of the police report, with the material filed alongwith the report, a case for taking cognizance has been made out or not. ``The purpose of submission of the police report with the details is to enable the Magistrate to ascertain whether on the basis of the police report, with the material filed alongwith the report, a case for taking cognizance has been made out or not. Thereafter, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further under Section 190(1)(b), Cr.P.C. which provides that upon the police report of such facts, as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence. Therefore, if the police report and the material filed there- with is sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173(2), Cr.P.C. Merely, because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file ``supplementary charge-sheet, it could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him alongwith the charge-sheet that cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the report (charge-sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate. (14). In view of the above pronouncements two things are very clear. The first is that even if the charge-sheet submitted by the police under Section 173, Cr.P.C. is called an incomplete charge-sheet the Magistrate can take cognizance on the basis of it, if it complies with the requirements of Section 173, Cr.P.C. and, the second is, that the powers of the Magistrate in the matter of taking cognizance are not to be curtailed by any act or omission on the part of the police officer. It would be proper to recall the observations made in AIR 1945 P.C. 18 (6), that the functions of the Police and of the Courts are not overlapping; they are supplementary to each other and it would be proper that both are allowed to perform their functions without any interference by the other, subject of course to directions by the High Court under Section 561-A, Cr.P.C. The powers of the Magistrate in the matter of taking cognizance under Section 190, Cr.P.C. are, therefore, not to be curtailed by any act or omission on the part of the police officer conducting the investigation. It cannot be doubted that when the law requires the police officer to conduct himself in a certain manner he must conduct himself in that manner to maintain the majesty of rule of law and discipline which is expected of him. But, what would be the consequence of non-compliance of a rule or a provision of law, is a quite different matter. It has been pointed out by this Court in one case that the doctrine of vitiation for non- compliance of the mandatory provisions of the rule of law pertains to the domain of jurisdiction rather than to appreciation of evidence and, therefore, whenever a question arises whether a certain proceedings is vitiated for non-compliance of a legal provision it is necessary to see whose jurisdiction is involved and whether a question arises whether a certain proceedings is vitiated for non-compliance of a legal provision it is necessary to see whose jurisdiction is involved and whether the jurisdiction which has been exercised could be said to have been denied to the authority which exercised the jurisdiction, on account of non-compliance of the rule or any provision of law. The omission on the part of the police officer to comply with the provisions of sub-section (3) of section 173 and any provisions of Rajasthan Police Rules, 1965 (which appear to have been framed under the Police Act, 1861) does not attract the doctrine of vitiation so far as the jurisdiction of the Magistrate under Section 190, Cr.P.C. is concerned. The omission on the part of the police officer to comply with the provisions of sub-section (3) of section 173 and any provisions of Rajasthan Police Rules, 1965 (which appear to have been framed under the Police Act, 1861) does not attract the doctrine of vitiation so far as the jurisdiction of the Magistrate under Section 190, Cr.P.C. is concerned. It is, therefore, difficult to agree with the learned counsel for the petitioners that the jurisdiction to take cognizance was not available to the learned Magistrate merely because the Station House Officer of the Police Station did not comply with sub-section (3) of Section 173, Cr.P.C. The second contention is thus answered accordingly. (15). The third contention has two limbs. The first is that in view of the order passed by the State Government on 28.8.93 the investigation was incomplete because reinvestigation by the Officer of the rank of Superintendent of Police as ordered by the State Government was to be done and, therefore, the report submitted before the Chief Judicial Magistrate was not a report within the meaning of Section 173, Cr.P.C. I am afraid this cannot be accepted as correct in view of the law laid down by the Honble Supreme Court in State of Maharashtra vs. Sharad Chandra Vinayak Dongre (supra) and the law laid down in Tara Singh vs. State (7) wherein it was held that even though the investigation was not complete in the sense that the report of the Forensic Science Laboratory was not received, the cog- nizance was validly taken by the Magistrate. The second limb is very important. The submission of the learned counsel for the petitioners is that the report submitted before the Chief Judicial Magistrate on 24.1.94 cannot be said to be a police report because the officer who submitted it had no jurisdiction to submit such a report, on the day it was submitted. The above argument is based on the premise that since the State Government had given a direction that the case should be re-investigated by an Officer of the rank of Superintendent of Police, the report under Section 173, Cr.P.C was to be submitted by that officer and none else. The above argument is based on the premise that since the State Government had given a direction that the case should be re-investigated by an Officer of the rank of Superintendent of Police, the report under Section 173, Cr.P.C was to be submitted by that officer and none else. Since no re-investigation was conducted as was directed by the State Government and the report on the basis of which cognizance was taken was not submitted by the Officer of the rank of Superintendent of Police, the report purporting to be a report under Section 173, Cr.P.C. could not be said to be submitted by a Police Officer in accordance with Section 173, Criminal Procedure Code, 1973. Learned counsel for the petitioners have placed reliance on the judgment reported in 1980 S.C.C. (Cr.) 272 (8), and a recent decision given by the Division Bench of this Court in Kan Singh vs. State of Rajasthan (9). These judgments are authorities for the proposition that under Section 3, Police Act, 1861, the State Government has legal jurisdiction to direct further investigation in a case, by any officer other than the officer conducting the investigation and, therefore, the State Governments order needs to be given effect to and the investigation or further investigation was required to be conducted by the Officer mentioned in the order passed by the State Government. In Kan Singh vs. State of Rajasthan D.B. Civil Writ Petition No. 198 of 1994 (supra), at page 15 of the typed- script of the judgment, the Division Bench has held that, ``On the day the said order was passed and commu- nicated to the competent authority, Mr. Johari became functus officio and lost competence to proceed with the investigation. In my opinion, this last submission made by learned counsel for the petitioners must succeed. The order passed by the State Government on 28.8.93 directing the re-investigation by an Officer of the rank of Superintendent of Police was an order passed by the State Government in exercise of its statutory powers under the Police Act, 1861. The Officer mentioned in the order was required to be of the rank of Superintendent of Police, who under Section 36 of the Criminal Procedure Code is empowered to exercise all the powers of the officer incharge of a police station. The Officer mentioned in the order was required to be of the rank of Superintendent of Police, who under Section 36 of the Criminal Procedure Code is empowered to exercise all the powers of the officer incharge of a police station. If the Magistrate had taken cognizance before the passing of the order by the State Government, no exception could have taken to the cognizance taken by him because such cognizance would be the cognizance on the basis of a valid police report. But, in the instant case, the cognizance was taken by the Chief Judicial Magistrate on 25.1.94 which was the date subsequent to the date of passing of the order by the State Government. I therefore, have no hesitation in coming to the con- clusion that the report submitted by the police in this case was not a police- report within the meaning of clause (b) of sub-section (1) of Section 190, Cr.P.C It is true that the learned Chief Judicial Magistrate was not aware on the date of taking cognizance, of the order passed by the State Government. Had he been apprised of the order passed by the State Government, probably he would not have taken the cognizance on the basis of the report submitted by him. (16). For the reasons mentioned above, the last submission succeeds. The report on the basis of which the cognizance was taken on 25.1.94 was not a report contemplated by clause (b) sub- section (1) of Section 190, Cr.P.C. and consequently it must be held that the learned Magistrate could not have taken cognizance under clause (b) of sub-section (1) of Section 190, Cr.P.C. on the basis of that report. The order dated 25.1.94, therefore, deserves to be quashed and is hereby quashed. The investigation shall be taken up in accordance with law and subject to the statutory directions given by the State Government. (17). The petitions stand disposed of in the manner indicated above.