PETITIONER: ABHINANDAN JHA & ORS. Vs. RESPONDENT: DINESH MISHRA(With Connected Appeal) DATE OF JUDGMENT: 17/04/1967 BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. HIDAYATULLAH, M. CITATION: 1968 AIR 117 1967 SCR (3) 668 CITATOR INFO : RF 1977 SC2401 (13) R 1979 SC 777 (15,32) D 1980 SC1883 (7) RF 1981 SC 379 (38) RF 1991 SC1260 (44) RF 1992 SC 604 (39) ACT: Code of Criminal Procedure (Act 5 of 1898), ss. 169, 170, 173 and 190(1)-Report to police of cognizable offence-Report by police to magistrate after investigation that offence not made out-If magistrate can direct police to file charge- sheet. HEADNOTE: On the question whether a magistrate could direct the police to submit a charge-sheet, when the police, after investigation into a cognizable offence, had submitted a report of the action taken under s. 169, Cr. P.C., that there was no case made out for sending up the accused for trial, HELD : There was no such power conferred on a magistrate either expressly or by implication. When a cognizable offence is reported to the police they may after investigation take action under s. 169 or S. 170 Cr. P.C. If the- police :think there is not sufficient evidence against the accused, they may, under s. 169 release the accused from custody on his executing a bond to appear before a competent magistrate if and when so required; or, if the police think there is sufficient evidence, they may, under s. 170, forward the accused under custody to a competent magistrate or release the accused on bail in cases where the offences are bailable. In either case the police should submit a report of the action taken, under s. 173, to the competent magistrate who- considers it judicially under s. 190 and takes the following action : (1) If the report is a charge-sheet under s. 170 it is open to the magistrate to agree with it and take cognizance of the offence under s. 190(1) (b); or to take the view that the facts disclosed do not make out an offence and decline to take cognizance. But he cannot call upon the police to submit a report that the accused need not be proceeded against on the ground that there was not sufficient evidence. (2) If the report is of the action taken under s. 169, then the magistrate may agree with the report and close the proceeding. If he disagrees with the report he can give directions to the police under s. 156(3) to make a further investigation. If the police, after further investigation submit a charge-sheet, the magistrate may follow the procedure where the charge-sheet under s. 170 is filed; but if the police are still of the opinion that there was not sufficient evidence against the accused, the magistrate may agree or disagree with it. Where he agrees, the case against the accused is closed. Where the magistrate disagrees and forms the opinion that the facts set out in the report constitute an offence, he .can take cognizance under s. 190(1)(c). The provision in s. 169 enabling the Police to take a bond for the appearance of the accused before a magistrate if so required, is to meet such a contingency of the magistrate taking cognizance of the offence notwithstanding the contrary opinion of the police. The power under s. 190(1)(c) was intended to Secure that 66 9 offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or he police either wantonly or through a bona, fide error do not submit a charge-sheet. But the magistrate cannot direct the Police to submit a charge- sheet, because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the magistrate. The magistrate, if he disagrees with the report of the police, can. himself take cognizance of the offence under s. 19O(1)(a) or (c), but, be cannot compel the police to form a particular opinion on investigation and submit a report according to such opinion. [672F-H; 673B; 676H; 677B-H; 678 A-H; 679A-C. E-H] State of Gujarat v. Shah Lakhamshi, A.I.R. 1966 Gujarat 283 (F.B.); Venkatusubha v. Anjanayulu, A.I.R. 1932 Mad. 673; Abdul Rahim v. Abdul Muktadin, A.I.R. 1953 Assam 112; Amar Premanand v. State, A.I.R. 1960 M.P. 12 and A. K. Roy v. State of West Bengal, A.I.R. 1962 Cal. 135 (F.B.), approved. State v. Murlidhar Govardhan, A.I.R. 1960 Bom. 240 and Ram Wandan v. State, A.I.R. 1966 Pat. 438, disapproved. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 218 of
1966.
Appeal by special leave from the order dated August 5, 1966
of the Patna High Court in Criminal Revision No. 1020 of
966,
AND
Criminal Appeal No. 238 of 1966.
Appeal by special leave from the judgment and order dated
September 13, 1966 of the Patna High Court in Criminal Revi-
sion No. 40 of 1965.
B. P. Jha and Subhag Mal Jain, for the appellants (in Cr.
A. No. 218 of 1966).
Nuruddin Ahmed and R. C. Prasad, for the appellants (in Cr.
A. No. 238 of 1966).
U. P. Singh, for the respondents (in both the appeals).
The Judgment of the Court was delivered by
Vaidialingam, J. The common question, that arises for con-
sideration, in these two criminal appeals, by special leave,
is as to whether a Magistrate can direct the police to
submit a charge-sheet, when the police, after the
investigation into a congnizable offence, had submitted a
final report, under S. 173 of the Code of. Criminal
Procedure (hereinafter called the Code). There is a
conflict of opinion, on this point between the various High
Courts in India. The High Courts of Madras, Calcutta,
Madhya Pradesh, Assam and Gujarat have taken the view that
the Magistrate has no such power, whereas, the Patna and
Bombay High Courts have held a contrary view.
In Criminal Appeal No. 218 of 1966, the respondent, Dinesh
Mishra, lodged a first information report, on June 3,
670
1965, at the Rajoun Police Station, that he saw a thatched
house, of one Uma Kant Misra, situated on the northern side
of his house, burning, and the petitioners herein., running
away from the scene,. The police made an investigation and
submitted what is called a ‘final report’, under s. 173 (1)
of the Code, to the effect that the offence complained of,
was false. The Sub-Divisional Magistrate received this
report on July 13, 1965, but, in the meanwhile, the
respondent had filed what is termed ‘a protest
petition’, challenging the correctness of the report
submitted by the police. The Magistrate appears to have
perused the police diary and, after hearing the
counsel for the respondent and the public prosecutor,
passed an order on October 27, 1965, directing the police to
submit a charge-sheet, against the petitioners, herein. The
petitioners challenged this order, without success, both
before the learned Sessions Judge, Bhagalpur, and the Patna
High Court. It was held by the High Court, following its
previous decision, that the Magistrate has jurisdiction to
call for a charge-sheet, when he disagrees with the report
submitted by the police, under S. 173(1) of the Code. The
petitioners, in this appeal, challenge these orders.
Similarly, in Criminal Appeal No. 238 of 1966, the second
respondent therein, had lodged a written report, on February
24. 1.964, before the police, at Malsalami police station,
that his daughter, Hiramani, was missing from February 21,
1964, and that the appellants in that appeal, had kidnapped
her. A case under S. 366 I.P.C. was registered against
them. The police, after investigation, submitted a final
report to the Magistrate. to the effect that the girl
concerned, had been recovered and that she bad stated that
she had, of her own accord, eloped; and therefore the police
stated that the case might be treated as closed.
The second respondent filed a ‘protest petition’ in Court,
challenging the statements of the police and he also filed a
complaint, under s. 498 I.P.C. The Magistrate, after a
perusal of the case diary of the police, and hearing the
lawyer for the appellants and the second respondent, as also
the public prosecutor, passed an order directing the
investigating officer to submit a charge-sheet, against the
accused persons, under S. 366 I.P.C This order has been
confirmed by the, learned Sessions Judge, as well as the
Patna High Court. Here also, the Patna High Court, in
accordance with its previous decision, held that the
Magistrate had jurisdiction to pass the order, in question.
All these orders are challenged by the appellants, in this
appeal.
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 by the police, under S. 173(1) of the
Code,,
6 71
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, and take cognizance of the offence and
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, and the Magistrate cannot compel the
police to form a particular opinion on the ‘investigation
and 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 befell 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 and not warranted by the provisions of the
Code. These contentions have been adopted, and reiterated,
by Mr. Nuruddin Ahmed, on behalf of the appellants, in
Criminal Appeal No. 238 of 1966.
Both the learned counsel pressed before us, for acceptance,
the views, as expressed by the Gujarat High Court, in its
Full Bench judgment, reported as State of Gujarat v. Shah
Lakhamshi(1). 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, and 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
v. State of W. B. (2) and by the Bombay and Patna High
Courts, in the decisions reported as State v. Murlidhar
Govardhan(3), and Ram Nandan v. State ( 4 ) , respectively.
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 and their Powers to
investigate’, and it contains the group of section beginning
from s. 154 and ending with s. 176. Section 154 deals with
information relating to the commission of a cognizable
R. 1966 Guj, 283. (2) A. 1. R. 1962 Cal. 135 (F. B.).
(3) A. 1. R. 1960 Bom. 240 (4) A. 1. R. 1966 Pat. 438.
67 2
offence, and the procedure to be adopted in respect of the
same. Section 155, similarly, deals with information in
respect of noncognizable offences. Sub-s. (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 wilt be seen that
large powers are conferred on the police, in the matter of
investigation into a cognizable offence. Sub-s. (3), of s.
156, provides for any Magistrate empowered under 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 station, after sending a report to the
Magistrate, is entitled, under S. 157, to investigate the
facts and circumstances of the case and also to take steps
for the discovery and arrest of the offender. Clause (b),
of the proviso to s. 157(1), gives a discretion to the
police officer not to investigate the case, 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, under S. 157.
Section 159 gives power to a Magistrate, on receiving a
report under S. 157, either to direct an investigation or,
himself or through another Magistrate subordinate to him, to
hold a preliminary enquiry into the matter, or 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 and record
statements. Sections 165 and 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, incharge 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 authorises a police officer
to release a person from custody, on his executing a bond,
to appear, if and when so required, before a Magistrate, in
cases when, on investigation under Chapter XIV, 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, incharge of a police
station, after investigation under Chapter XIV, and if it
appears to him that there is sufficient evidence, to forward
the accused, under custody, to a competent Magistrate or to
take securtiy 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 and in the
673
manner indicated in that section. Section 173 provides for
an investigation, under Chapter XIV, to be completed,
without unnecessary delay and also makes it obligatory, on
the officer, incharge of the police station, to send a
report to the Magistrate concerned, in the manner provided
for therein, containing the necessary particulars.
It is now only necessary to refer to S. 190, occurring in
Chapter XV, relating to jurisdiction of criminal Courts in
inquiries and trials. That section is to be found under the
heading ‘Conditions requisite for initiation of proceedings’
and its sub-S.
(1) is as follows :
“(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 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.”
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 and the investigation is carried out within
the limits of the law, without causing any harassment to the
accused and is also completed without unnecessary or undue
delay. But the point to be noted is that the manner and
method of conducting the investigation, are left entirely to
the police, and 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 ,,here is no sufficient evidence or
reasonable grounds of suspicion justifying the forwarding of
an accused to a Magistrate,, S. 169 says that the officer
shall release the accused, if in custody, on hi-, 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, under 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 under S.
169, or under S. 170, of the Code, on the completion of the
investigation, the police officer has to
L7SupCI/67-13
674
submit a report to the Magistrate, under 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 under s. 173 really depends upon the nature of the
jurisdiction exercised by a Magistrate, on receiving a
report.
In this connection, we may refer to certain observations,
made by the Judicial Committee in King Emperor v. Khwaja
Nazir Ahmed(1) and by this Court, in H. N. Rishbud and Inder
Singh v. The State of Delhi(2). In Nazir Ahmed’s Case(1),
Lord Porter observes, at 212, 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 and 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, and 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 and the police are
complementary, not overlapping, and the
combination of individual liberty with a due
observance of law and 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 under 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, and not until then.”
These observations have been quoted, with approval, by this
Court, in State of West Bengal v. S. N. Basak(3). This
Court in Rishbud and Inder Singh’s Case(1), observes, at p.
1156, as follows :
“Investigation usually starts on information
relating to the commission of an offence given
to an officer incharge of a police station and
recorded under sec-
(1) L. R. 71 1. A. 203. (2) [1955] 1. S. C. R. 115).
(3) A. 1. R. 1963 S. C. 447.
675
tion 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 the spot to investigate the facts
and circumstances of the case and if necessary
to take measures for the discovery and arrest
of the offender. Thus investigation primarily
consists in the ascertainment or the facts and
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 p. 1157
“Thus, under the Code investigation consists
generally of the following steps : (1)
Proceeding to the spot, (2) Ascertainment of
the facts and circumstances of the case, (3)
Discovery and 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) and the
reduction of their statements into writing,
if’ the officer thinks fit, (b) the search of
places of seizure of things considered
necessary for the investigation and to be
produced at the trial, and (5) Formation of
the opinion as to whether on the material
collected there is a case to place the accused
before a Magistrate for trial and if so taking
the necessary steps for the same by filing of
a charge-sheet under section 1 7 3. . . . . It
is also clear that the final step in the
investigation viz., the formation of the
opinion as to whether or no’ there is a case
to place the accused on trial is to be that of
the officer in-charge of the police station.”
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 incharge 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 Tested their decision on two
principles viz., (a) that there is no express provision in
the Code empowering a Magistrate to pass such an order; and
(b) such a power, in view of the scheme of
L7SUPCI/67 14
676
Chapter XIV, cannot be inferred-vide Venkata Subha v
Anjanayulu(1); Abdul Rahim v. Abdul Muktadin(2); Aman
Premanand v. State(3); the majority view in A. K. Roy v.
State of W. B.(1); and Stale of Gujarat v. Shah
Lakhamshi(5). Or the other hand, the High Courts which have
recognised 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 where the report is not
accepted, the Magistrate can give suitable directions to the
police-, and (b) the Magistrate is given supervision over
the conduct of investigation by the police, and there ore,
such a power can be recognised in the Magistrate-vide State
v. Murlidhar Goverdhan(6); and Ram Nandan v. State(7).
Though it may be that a report submitted by the police may
have to be dealt with, judicially, by a Magistrate, and
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 lo take cognizance of an
offence and proceed, according to law. We do not also find
any such power, under 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.
It will be seen that the Code, as such, does not use the ex-
pression ‘charge-sheet’ or ‘final report’. But it is
understood, in the Police Manual containing Rules and
Regulations, that a report by the Police, filed under s. 170
of the Code, is referred to as a ‘charge-sheet’. But in
respect of the reports sent under s. 169, i.e., when there
is no sufficient evidence to justify the forwarding of the
accused to a Magistrate, it is termed variously, in
different States, as either ‘referred charge’, ‘final
report’, or ‘Summary’.
In these two appeals, which are from the State of Bihar, the
reports, under s. 169, are referred to as ‘final report’.
Now, the question as to what exactly is to be done by a
Magistrate, on receiving a report. under s. 173, will have
to be considered. That report may be inrespect of a
case, coming under s. 170,
(1) A.I.R. 1932 Mad. 673. (2) A.I.R. 1953 Assam 112.
(3) A.I.R. 1960 M P. 12. (4) A.I.R. 1962 Cal. 135.
(5) A.I.R. 1966 Guj. 283. (6) A.I.R. 1960 Born. 240.
(7) A.I.R. 1966 Pat. 438.
677
or one coming under s. 169. We have already referred to s.
190, which is the first section in the group of sections
headed ‘Conditions requisite for Initiation of Proceedings.’
Sub-s. (1), of this section, will cover a report sent, under
s. 173. The use of the words ‘may take cognizance of any
offence’, in sub-s. (1) of s. 190 in our opinion imports the
exercise of a ‘judicial discretion’, and the Magistrate, who
receives the report, under s.. 173, will have to consider
the said report and judicially take a decision, whether or
not to take cognizance of the offence. From this it follows
that it is not as if that the Magistrate is bound to accept
,,the opinion of the police that there is a case for placing
the accused, on trial. It is open to the Magistrate to take
the view that the facts disclosed in the report do not make
out an offence for taking cognizance or he may take the view
that there is no sufficient evidence to justify an accused
being put on trial. On either of these grounds, the
Magistrate will be perfectly justified in declining to take
cognizance of an offence, irrespective of the opinion of the
police. On the other hand, if the Magistrate agrees with
the report, which is a charge-sheet submitted by the police,
no difficulty whatsoever is caused, because he will have
full jurisdiction to take cognizance of the offence, under
s. 190(1)(b) of the Code. This will be the position, when
the report under s. 173, is a charge-sheet.
Then the question is, what is the position, when the Magis-
trate is dealing with a report submitted by the police,
under s. 173, that no case is made out for sending up an
accused for trial, which report, as we have already
indicated, is called, in the area in question, as a ‘final
report’? Even in those cases, if the Magistrate agrees with
the said report, he may accept the final report and close
the proceedings. But there may be instances when the
Magistrate may take the view, on a consideration of the
final report, that the opinion formed by the police is not
based on a full and complete investigation, in which case
in our opinion the Magistrate will have ample jurisdiction
to give directions to the police, under s. 1 5 6 ( 3 ), to
make a further investigation. That is, if the Magistrate
feels, after considering the final report, that the
investigation is unsatisfactory, or incomplete, or that
there is scope for further investigation, it will be open to
the Magistrate to decline to accept the final report and
direct the police to make further investigation, under s.
156(3). The police, after such further investigation, may
submit a charge-sheet, or,, again submit a final report,
depending upon the further investigation made by them. If,
ultimately, the Magistrate forms the opinion that the facts,
set out in the final report, constitute an offence, he, can
take cognizance of the offence under s. 190(1) (c),
notwithstanding the contrary opinion of the police,
expressed in the final report.
678
In this connection, the provisions of S. 169 of the Code,
are relevant. They specifically provide that even though,
on investigation, a police officer, or other investigating
officer, is of the opinion that there is no case for
proceeding against the accused, he is bound, While releasing
the accused,, to take a bond from him to appear, ‘If and.
when required, before a Magistrate. This provision is
obviously to meet a contingency of the Magistrate, when he
considers the report of the investigating officer, and
judicially takes a view different from the police.
We have to approach the, question, arising for consideration
in this case, in the light of the circumstances pointed out
above. We have, already referred to the scheme of Chapter
XXIV, as well as the observations of this Court in Rishbud
and Inder Singh’s Case(1) 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
formed by the police. Under those circumstances, if he
still suspects that an offence has been committed, he is
entitled, notwithstanding the opinion of tile police, to
take cognizance, under S. 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 in-
voked even where persons individually aggrieved are
unwilling or unable to prosecute. or the police, either
wantonly 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 cognizance 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 cognizance of the offence, under s.
190(1) (c), on the ground that, after having due regard to
the final report and the police records placed before him,
be has reason to suspect that an offence has been committed.
Therefore, these circumstances will also clearly negative
the power of a Magistrate to call for a charge-sheet from
the police, when they have submitted a final report. The
entire scheme of Chapter XIV clearly indicates that the
formation of the opinion, as to whether or not there is a
case to, place the accused for trial, is that of the officer
in-charge of the police station and that opinion determines
whether the report is to be under s. 170, being a ‘charge-
sheet’, or under S. 169, ‘a final report’. It is no
(1) [1955]1 S.C.R. 1150.
67 9
doubt open to the Magistrate, as we have already pointed
out, to accept or disagree with the opinion of the police
and, if he disagrees, he is entitled to adopt any one of the
courses indicated by us. But he cannot direct the police to
submit a charge-sheet, because, the submission of the report
depends upon the opinion formed by the police, and not on
the opinion of the Magistrate. The Magistrate cannot compel
the police to form a particular opinion, on the
investigation, and to submit a report, according to such
opinion. Thai will be really encroaching on the sphere of
the police and compelling the police to form an opinion so
as to accord with the decision of the Magistrate and send a
report, either under s. 169, or under s. 170, depending upon
the nature of the decision. Such a function has been left
to the police, under the Code.
We have already pointed out that the investigation, under
the Code, takes in several aspects, and stages, ending
ultimately with the formation of an opinion by the police as
to whether, on the material covered and collected, a case is
made out to place the accused before the Magistrate for
trial, and the submission of either a charge-sheet, or a
final report is dependent on the nature of the opinion, so
formed. The formation of ,the said opinion, by the police,
as pointed out earlier, is the final step in the
investigation, and that final step is to be taken only by
the police and by no other authority.
The question can also be consider from another point of
view. Supposing the police send a report, viz., a charge-
sheet, under s. 170 of the Code. As we have already pointed
out, the Magistrate is not bound to accept that report, when
he considers the matter judicially. But, can he differ from
the police. and call upon them to submit a final report,
under s.169 ? In our opinion, the Magistrate has no such
power. If he has no such power, in law, it also follows
that the Magistrate has no power to direct the police to
submit a charge-sheet when the police have submitted a final
report that no case is made out for sending the accused for
trial. The functions of the Magistracy and the police, are
entirely different, and though, in the circumstances
mentioned earlier the Magistrate may or may not accept the
report, and take suitable action, according to law, he
cannot certainly infringe upon the jurisdiction of the
police, by compelling them to change their opinion, so as to
accord with his view.
Therefore, to conclude, there is no power, expressly or im-
pliedly conferred, under the Code, on a Magistrate to call
upon the police to submit a charge-sheet, when they have
sent a report under s. 169 of the Code, that there is no
case made out for sending tip an accused for trial.
L7 Sup. CI/67- 15
680
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 complaints, and take
further proceedings, according to law, and in the light of
the views expressed by us, in this judgment.
Mr. Nuruddin Ahmed, learned counsel for the appellants in
Criminal Appeal No. 238 of 1966, particularly urged that it
is unnecessary to direct further proceedings to be
continued, so far as his clients are concerned. Learned
counsel pointed out that the police report before the
Magistrate clearly shows that the girl, in question, who is
stated to be above 19 years of age, has herself stated that
she bad eloped, of her own accord and that if that is so,
further proceedings against his clients, are absolutely
unnecessary, to be continued. We are not inclined to accept
these contentions of the learned counsel. As to whether an
offence is made out or whether any of the appellants or both
of them are guilty of the offences with which they may be
charged, are all matters which do not require to be
considered, by this Court, at this stage.
In the result, subject to the directions contained above,
the orders of the Magistrate, directing the police to file a
charge, will be set aside, and the appeals allowed, to that
extent.
V.P.S. Appeals allowed.
681