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2009 DIGILAW 130 (ORI)

RAM NARESH PRASAD v. STATE OF JHARKHAND

2009-02-12

ARIJIT PASAYAT, M.K.SHARMA

body2009
JUDGMENT : Arijit Pasayat, J. - Leave granted. Challenge in this appeal is to the Judgment of a Learned Single Judge of the Jharkhand High court. 2. The Appellant filed Writ Petition (Crl.) No. 284 of 2002 With the prayer to quash the Order Dated 18-2-2002 passed by the Learned Sessions Judge, Palamau in Criminal Revision No. 53. of 2001 By the said order the Learned Sessions Judge set at fide the order of the Learned Chief Judicial Magistrate accepting the tonal report submitted by the police & directed him to pass a fresh order after perusing the case diary & after hearing the informant. Further prayer was to quash the order passed by the Learned Chief, Judicial Magistrate on remand taking cognizance of offences punishable under Sections 413 & 414 of the Penal Code, 1860 (in short "IPC"). 3. Background facts in a nutshell are as follows: One Arun Kumar Mishra (hereinafter referred to as "Respondent 4 informant") in the present appeal filed the first information report (in short "FIR") at Bishrampur Police Station in Palamau District against unknown persons. It was stated that in the preceding night some unknown persons had stolen five idols from Thakur Bari. On the basis of the FIR police instituted case relating to offence punishable under Sections 457 & 380 IPC, Investigation was carried out but in the absence of any definite clue, the final report was submitted on 4-1-1997, which was accepted by the Learned Judicial Magistrate. 4. After about one week one Raghu Thakur was arrested on 12-1-1997 & he made an extra-judicial confession before the villagers. On the basis of J the said extra-judicial confession four persons were detained, who were Raghu Thakur, Alak Singh, Dwarika Saw & Vijay Kumar Soni. On 12-3-1997 police submitted supplementary final form against the aforesaid four persons indicating commission of offences punishable under Sections 457, 380, 411 & 414 IPC. Final form was filed so far as the Appellant is concerned. The Learned Judicial Magistrate, First Class, by his Judgment dated 27-1-1999 convicted all the four accused persons. 5. During trial an application u/s 319 of the Code of Criminal Procedure, 1973 (in short "CrPC") was filed by the prosecution with a prayer to summon the Appellant as an accused. The said application was dismissed by the Trial Court. The same was not challenged before any higher Court but the investigation was kept alive. 5. During trial an application u/s 319 of the Code of Criminal Procedure, 1973 (in short "CrPC") was filed by the prosecution with a prayer to summon the Appellant as an accused. The said application was dismissed by the Trial Court. The same was not challenged before any higher Court but the investigation was kept alive. Investigation was taken over by the CID police from the district police. After investigation on 22-5-1999 final report was submitted so far as the Appellant was concerned. The same was accepted. 6. On 18-2-2002, after about two years, Respondent 2, a practising advocate who was neither the complainant nor having any connection with the alleged offence, filed a revision petition before the Learned Sessions Judge, Palamau, against the Order Dated 22-5-1999. By Order Dated 18-2-2002 the revision petition was allowed & the Learned Chief Judicial Magistrate was directed to hear the informant or the Additional Public Prosecutor, peruse case diary, both original as well as supplementary & then pass order in accordance with law. According to the Appellant no notice was issued to the Appellant nor was he heard. Though the revision petition was highly belated, the same was admitted ex parte arid that too without condonation of delay. The Appellant had no knowledge about these subsequent events. 7. On 29-8-2002 the Learned Chief Judicial Magistrate passed an order taking cognizance for offences punishable under Sections 413 & 414 IPC & non-boilable warrant was issued so far as the Appellant is concerned. Aggrieved by the Order Dated 29-8-2002 of the Learned Chief Judicial Magistrate, the Appellant filed a revision petition before the Learned Sessions Judge who dismissed the same. Questioning correctness of both the aforesaid orders, a Writ Petition was filed which was dismissed by the impugned order. 8. Learned Counsel for the Appellant submitted that the course adopted by the Revisional Courts at the first instance is unknown to law. At no stage before the order was passed by the Learned Sessions Judge in revision, the Appellant was heard. The revision Petitioner had no locus standi to file the petition as he was not the informant. The Learned Sessions Judge did not decide about the question of maintainability of the revision petition at first instance. The question of limitation was also not examined. 9. The revision Petitioner had no locus standi to file the petition as he was not the informant. The Learned Sessions Judge did not decide about the question of maintainability of the revision petition at first instance. The question of limitation was also not examined. 9. Respondent 2 had appeared in person & according to him the State was taking the sides of the Appellant, & he was forced to file the revision petition. 10. Learned Counsel for the State accepted that if u/s 319 CrPC the petition was rejected, no further steps were required to be taken by the State to question the correctness of the order in that behalf 11. In Abhinandan Jha and Others Vs. Dinesh Mishra it was observed as under: 5. On behalf of the Appellants, in Criminal Appeal No. 218 of 1966, Mr. Jha, Learned Counsel, pointed out that when a final report is submitted I by the police, u/s 173(1) of the Code, stating that no case is made out, the Magistrate has no jurisdiction to direct the police to file a charge-sheet. It may be open, Counsel points out, to the Magistrate, to direct further investigation to be made by the police, or to treat the protest petition filed by the second Respondent, as a complaint & take cognizance of the offence & proceed, according to law. The scheme of Chapter XIV of the Code, Counsel points out, clearly indicates that the formation of an opinion, as to whether or not there is a case to place the accused on trial, is that of the investigating officers & the Magistrate cannot compel the police to form a particular opinion on the investigation & to submit a report, according to such opinion. In this case, there is nothing to show that the protest petition, filed by the second Respondent, has been treated as a complaint, in which case, it may be open to the Magistrate to take cognizance of the offence; but in the absence of any such procedure being adopted, according to Counsel, the order of the Magistrate directing a charge-sheet to be filed, is illegal & not warranted by the provisions of the Code. These contentions have been adopted, & reiterated, by Mr. Nuruddin Ahmed, on behalf of the Appellants, in Criminal Appeal No. 238 of 1966. 6. These contentions have been adopted, & reiterated, by Mr. Nuruddin Ahmed, on behalf of the Appellants, in Criminal Appeal No. 238 of 1966. 6. Both the Learned Counsel pressed before us, for acceptance, the views, as expressed by the Gujarat High Court, in its Full Bench Judgment State of Gujarat v. Shah Lakhamshi Umarshi AIR 1966 Guj 283 . On the other hand, Mr. U.P. Singh, Learned Counsel for the Respondent, in Criminal Appeal No. 218 of 1966, has pointed out that the Magistrate has jurisdiction, in proper cases, when he does not agree with the final report submitted by the police to direct them to submit a charge-sheet. Otherwise, Counsel points out, the position will be that the entire matter is left to the discretion of the police authorities, & the Courts will be powerless, even when they feel that the action of the police is not justified. Quite naturally, Counsel prays, for acceptance of the views expressed by the dissenting Judges in A.K. Roy Vs. State of West Bengal, & by the Bombay & Patna High Courts in the decisions State and Others Vs. Murlidhar Govardhan and Others, & Ram Nandan Yadav and Others Vs. The State respectively. 7. In order, properly, to appreciate the duties of the police, in the matter of investigation of offences, as well as their powers, it is necessary to refer to the provisions contained in Chapter XIV of the Code. That Chapter deals with information to the police & their powers to investigate & it contains the-group of Sections beginning from Section 154, & ending with Section 176. Section 154 deals with information relating to the commission of a cognizable offence, & the procedure to be adopted in respect of the same. Section 155, similarly deals with information in respect of non-cognizable offences. Sub-section (2) of this Section, prohibits a police officer from, investigating a non-cognizable case, without the order, of a Magistrate. Section 156 authorizes a police officer, in charge of a police station, to investigate any cognizable case, without the order of a Magistrate. Therefore, it will be seen that large powers are conferred on the police, in the matter of investigation into a cognizable offence. Sub-section (3) of Section 156, provides for any Magistrate, empowered u/s 190, to order an investigation. Therefore, it will be seen that large powers are conferred on the police, in the matter of investigation into a cognizable offence. Sub-section (3) of Section 156, provides for any Magistrate, empowered u/s 190, to order an investigation. In cases where a cognizable offence is suspected to have been committed, the officer in charge of a police stater, after sending a report to the Magistrate, is entitled u/s 157 to investigate the facts & circumstances of the case & also to take steps, for the discovery & arrest of the offender. Clause (b) of the proviso to Section 157(1), gives a discretion to the police officer not to investigate the can, if it appears to him that there is no sufficient ground for entering on an investigation. Section 158 deals with the procedure to be adopted in, the matter of a report to be sent, u/s 157. Section 159 gives power to a Magistrate, on receiving a report u/s 157, either to direct an investigation, himself or through another Magistrate subordinate to him, to hold a preliminary enquiry into the matter, otherwise dispose of the case, in accordance with the Code. Sections 160 to 163 deal with, the power of the police to require attendance of witnesses, examine witnesses & record statements. Sections 165 & 166 deal with the power of police officers, in the matter of conducting searches during an investigation, in the circumstances, mentioned therein. Section 167 provides for the procedure to be adopted by the police, when investigation cannot be completed in 24 hours. Section 168 provides for a report being, sent to the officer, in charge of a police station, about the result of an investigation, when such investigation has been made by a subordinate police officer, under Chapter XIV. Section 169 authorizes a Police Officer to release a person from custody, on his executing a bond, to appear, if & when so required before a Magistrate, in cases when, on investigation under Chapter XW, it appears to the officer, in charge of the police station, or to the police officer making the investigation, that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a, Magistrate. Section 170 empowers the officer, in charge of the police station, after investigation under Chapter XIV, & if it appears the him that there is sufficient evidence, to forward the accused, under custody, to a competent Magistrate or to take security from the accused for his appearance before the Magistrate, in cases where the offence is bailable. Section 172 makes it obligatory on the police officer making an investigation, to maintain a diary recording the various particulars therein & in the manner indicated in that Section. Section 173 provides for an investigation, under Chapter XIV, to be completed, without unnecessary delay & also makes it obligatory, on the officer in charge of the police station to send a report to the Magistrate concerned in the manner provided for therein, containing the necessary particulars. 8. It is now only necessary to refer to Section 190, occurring in Chapter XV, relating to jurisdiction of criminal Courts in inquiries & trials. That Section 190 of the Criminal Procedure Code, 1898, which corresponds to Section 190 of the Criminal Procedure Code, 1973, is to be found under the heading Conditions, requisite for initiation of proceedings & Sub-section (1) is as follows: 190. Cognizance of offences by Magistrates. (1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, & any other Magistrate specially empowered in this behalf, may Jake cognizance 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. 9. From the foregoing Sections, occurring in Chapter XIV, it will be seen that very elaborate provisions have been made for securing that an investigation does take place into a reported offence & the investigation is carried out within the limits of the law, without causing any harassment to the accused & is also completed without unnecessary or undue delay. But the point to be noted is that the manner & method,of conducting the investigation, are left entirely to the police, & the Magistrate, so far as we can see, has no power under any of these provisions, to interfere with the same. But the point to be noted is that the manner & method,of conducting the investigation, are left entirely to the police, & the Magistrate, so far as we can see, has no power under any of these provisions, to interfere with the same. If, on investigation, it appears to the officer, in charge of a police station, or to the officer making an investigation, that there is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Magistrate, Section 169 says that the officer shall release the accused, if in custody, on his executing a bond to appear before the Magistrate. Similarly, if on the other hand, it appears to the officer in charge of a police station, or to the officer making the investigation, under Chapter XIV, that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, u/s 170, to forward the accused to a Magistrate; or if the offence is bailable to take security from him for his appearance before such Magistrate. But, whether a case comes u/s 169, or u/s 170 of the Code, on the completion of the investigation, the police officer has to submit a report to the Magistrate, u/s 173, in the manner indicated therein, containing the various details. The question as to whether the Magistrate has got power to direct the police to file a charge-sheet on receipt of a report u/s 173 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report. 10. In this connection, we may refer to certain observations, made by the Judicial Committee in AIR 1945 18 (Privy Council), & by this Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi. In AIR 1945 18 (Privy Council), Lord Porter observes, at IA pp. 212-13 as follows: ...Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province & into which the law imposes on, them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities & it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary & the police are complementary, not overlapping, & the combination of individual liberty with a due observance of law & order is-only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved u/s 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it, & not until then. These observations have been quoted, with approval, by this Court, in State of West Bengal Vs. S.N. Basak. This Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi observes at SCR p. 1156 as follows: 5. ...Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station & recorded u/s 154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to b the spot to investigate the facts & circumstances of the case & if necessary to take measures for the discovery and arrest of the offender.... Thus investigation primarily consists in the ascertainment of the facts & circumstances of the case. By definition, it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer". Again, after a reference to some of the provisions in Chapter XIV of the Code, it is 'observed at SCR pp. 1157-58: H.N. Rishbud and Inder Singh Vs. The State of Delhi, . 5. By definition, it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer". Again, after a reference to some of the provisions in Chapter XIV of the Code, it is 'observed at SCR pp. 1157-58: H.N. Rishbud and Inder Singh Vs. The State of Delhi, . 5. ...Thus, under the Code investigation consists generally of c the following steps: (1) proceeding to the spot, (2) ascertainment of the facts & circumstances of the case, (3) discovery & arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) & the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation I & to be produced at the trial, & (5) formation of the opinion as to I whether on the material collected there is a case to place the accused before a Magistrate for trial &:if so taking the necessary steps for the same by the filing of a charge-sheet u/s 173. ... It is also clear that the final step in the investigation viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. 11. We are referring to these observations for the purpose of emphasizing that the scheme of Chapter XIV, clearly shows that the formation of an opinion as to whether or not there is a case to place the accused on trial, has been left to the officer in charge of a police station. Bearing in mind these principles referred to above, we have to consider the question that arises for consideration, in this case. The High Courts which have held that the Magistrate has no jurisdiction to call upon the police to file a Charge-sheet, under such circumstances, have rested their decision on two principles viz. Bearing in mind these principles referred to above, we have to consider the question that arises for consideration, in this case. The High Courts which have held that the Magistrate has no jurisdiction to call upon the police to file a Charge-sheet, under such circumstances, have rested their decision on two principles viz. (a) that there is no express provision in the Code empowering a Magistrate to pass such art order; & (b) such a power, in view of the scheme of Chapter XIV, cannot be inferred vide Venkata Subba Rao v. Anjanayulu Naraharisetty AIR 1932 Mad 673; Abdul Rahim v. Abdul Muktadin AIR 1953 Ass 112; Amar Premanand Vs. The State, ; the majority view in A.K. Roy Vs. State of West Bengal, & State of Gujarat Vs. Shah Lakhamshi Umarshi and Another. On the other hand, the High Courts which have recognized such a power, rest their decision again on two grounds viz. (a) where a report is submitted by the police, after investigation, the Magistrate has to deal with it judicially which will mean that when the report is not accepted, the Magistrate can give suitable directions to the police; & (b) the Magistrate is given supervision over the conduct of investigation by the police, & therefore, such a power can be recognized in the State and Others Vs. Murlidhar Govardhan and Others, & Ram Nandan Yadav and Others Vs. The State, . 12. Though it may be that a report submitted by the police may have to be dealt with judicially, by a Magistrate, & although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the further view. that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. But, we may make it clear, that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him to take cognizance of an offence & proceed, according to law. We do not also find any such power u/s 173(3), as is sought to be inferred, in some of the decisions cited above. As we have indicated broadly the approach made by the. We do not also find any such power u/s 173(3), as is sought to be inferred, in some of the decisions cited above. As we have indicated broadly the approach made by the. various High Courts in coming to different conclusions, we do not think it necessary to refer to those decisions in detail. 12. Accordingly, we set aside the impugned order of the High Court & remit the matter to it to consider the following aspects: (a) Whether the revision petition before the Sessions Judge was maintainable at the instance of Respondent 2 & that too after considerable length of time; (b) Whether the Appellant needs to be heard; (c) Whether the informant has to be given the notice. 13. The appeal is allowed to the aforesaid extent.