Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 168 (GAU)

Lakhi Narayan Sahu v. State of Assam

2005-03-01

P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. None has appeared for the Petitioner today also. Heard the learned Public Prosecutor. 2. The counsel for the Petitioner remained absent on the last day also. 3. The facts leading to the present revision; in brief, are that on the FIR filed by one Nitai Mazi alleging commission of arson by some accused persons, Silchar P.S. case No. 235 of 1995 under Section 436/34, IPC was registered (GR. Case No. 552 of 1995) and police initiated investigation. On conclusion of the investigation police submitted final report under Section 173, Code of Criminal Procedure stating inter alia that though the case is under Section 436/34, IPC but the evidence is insufficient against the accused persons. Thereafter, when the final report was placed before the Chief Judicial Magistrate, Cachar, Silchar the Chief Judicial Magistrate, did not accept the final report and passed the following impugned order. Seen the FIR and the CD. Gone through the statement of witnesses recorded under Section 161, Code of Criminal Procedure There is sufficient materials under Section 436, IPC. Cognizance is taken on police report. Send the accused persons to Sri N.N. Das, J.M. 1st Class, Cachar, Silchar for disposal. 4. Hence, the revision. 5. The impugned order as well as the subsequent orders have been challenged on two counts as seen from the revision petition. So far the challenge on the ground of merit or pendency of civil litigation between the parties is concerned, we do not propose to enter into as the merit of the case cannot be examined by this Court at this stage. The other count on which the impugned order of taking cognizance has been challenged is that the impugned order suffers from irregularities as detailed under Sub-clause (k) of Section 461, Code of Criminal Procedure and that the learned Chief Judicial Magistrate had no jurisdiction to issue process. It is stated that the learned Chief Judicial Magistrate should have proceeded under Sub-clause (c) of Section 190(1), Code of Criminal Procedure. 6. The question raised in this revision is no more res integra in view of the law laid down by the Apex Court in the case of Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 and in the case of H.S. Bains v. State (Union Territory of Chandigarh) AIR 1980 SC 1883 . 7. 6. The question raised in this revision is no more res integra in view of the law laid down by the Apex Court in the case of Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 and in the case of H.S. Bains v. State (Union Territory of Chandigarh) AIR 1980 SC 1883 . 7. In Abhinandan Jha (supra), which has been referred in H.S. Bains (supra) the Apex Court explained: The question arose whether a Magistrate to whom a report under Section 173(1) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the police. This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet. It was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3). If ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police the Court observed that the Magistrate could take cognizance under Section 190(1)(c). We do not have any doubt that the reference to Section 190(1)(c) was a mistake for Section 190(1)(b). That appears to be obvious to us. But Shri Kapil Sibal urged that the reference was indeed to Section 190(1)(c) since at that time Section 190(1)(c) included the words or suspicion and the Court had apparently taken the view that the Magistrate could take cognizance of the offence not under Section 190(1)(b) as if on a police report but under Section 190(1)(c) as if on suspicion. We do not agree with this submission. Section 190(1)(c) was never intended to apply to cases where there was a police report, under Section 173(1). We do not agree with this submission. Section 190(1)(c) was never intended to apply to cases where there was a police report, under Section 173(1). We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the Magistrate and the police arrived at different conclusions from the facts. The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307, Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under Section 324, IPC only and he may take cognizance of an offence under Section 324 instead of Section307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eye-witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. It could not be said in such a case that he was taking cognizance on suspicion. 8. In H.S. Bains (supra) the Apex Court further explained: On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommended that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report may without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 Code of Criminal Procedure and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections200, 203 and 204. Thus a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1) may thereafter, do one of three things; (1) he (sic) decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be. 9. In the present case we find that the learned Chief Judicial Magistrate did not accept the final report submitted by the police and instead took cognizance and issued process against the accused persons under the provisions of Section 190(1)(b), Code of Criminal Procedure. Thereafter he may dismiss the complaint or issue process, as the case may be. 9. In the present case we find that the learned Chief Judicial Magistrate did not accept the final report submitted by the police and instead took cognizance and issued process against the accused persons under the provisions of Section 190(1)(b), Code of Criminal Procedure. In view of the settled position of law, we find no merit in this revision and the revision petition is accordingly dismissed. 10. Send down the records. Petition dismissed.