{"id":35904,"date":"1967-04-17T00:00:00","date_gmt":"1967-04-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abhinandan-jha-ors-vs-dinesh-mishrawith-connected-on-17-april-1967"},"modified":"2015-02-15T23:18:57","modified_gmt":"2015-02-15T17:48:57","slug":"abhinandan-jha-ors-vs-dinesh-mishrawith-connected-on-17-april-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abhinandan-jha-ors-vs-dinesh-mishrawith-connected-on-17-april-1967","title":{"rendered":"Abhinandan Jha & Ors vs Dinesh Mishra(With Connected … on 17 April, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Abhinandan Jha & Ors vs Dinesh Mishra(With Connected … on 17 April, 1967<\/div>\n
Equivalent citations: 1968 AIR 117, \t\t 1967 SCR (3) 668<\/div>\n
Author: C Vaidyialingam<\/div>\n
Bench: Vaidyialingam, C.A.<\/div>\n
           PETITIONER:\nABHINANDAN JHA & ORS.\n\n\tVs.\n\nRESPONDENT:\nDINESH MISHRA(With Connected Appeal)\n\nDATE OF JUDGMENT:\n17\/04\/1967\n\nBENCH:\nVAIDYIALINGAM, C.A.\nBENCH:\nVAIDYIALINGAM, C.A.\nHIDAYATULLAH, M.\n\nCITATION:\n 1968 AIR  117\t\t  1967 SCR  (3) 668\n CITATOR INFO :\n RF\t    1977 SC2401\t (13)\n R\t    1979 SC 777\t (15,32)\n D\t    1980 SC1883\t (7)\n RF\t    1981 SC 379\t (38)\n RF\t    1991 SC1260\t (44)\n RF\t    1992 SC 604\t (39)\n\n\nACT:\nCode  of Criminal Procedure (Act 5 of 1898), ss.  169,\t170,\n173 and 190(1)-Report to police of cognizable offence-Report\nby police to magistrate after investigation that offence not\nmade  out-If  magistrate can direct police to  file  charge-\nsheet.\n\n\n\nHEADNOTE:\nOn the question whether a magistrate could direct the police\nto   submit   a\t charge-sheet,\twhen   the   police,   after\ninvestigation  into  a cognizable offence, had\tsubmitted  a\nreport\tof  the action taken under s. 169, Cr.\t P.C.,\tthat\nthere  was no case made out for sending up the\taccused\t for\ntrial,\nHELD  :\t There was no such power conferred on  a  magistrate\neither expressly or by implication.\nWhen a cognizable offence is reported to the police they may\nafter  investigation take action under s. 169 or S. 170\t Cr.\nP.C. If the- police :think there is not sufficient  evidence\nagainst\t the  accused, they may, under s.  169\trelease\t the\naccused\t from  custody\ton his executing a  bond  to  appear\nbefore\ta competent magistrate if and when so required;\t or,\nif the police think there is sufficient evidence, they\tmay,\nunder  s.  170,\t forward  the accused  under  custody  to  a\ncompetent magistrate or release the accused on bail in cases\nwhere the offences are bailable.  In either case the  police\nshould submit a report of the action taken, under s. 173, to\nthe competent magistrate who- considers it judicially  under\ns. 190 and takes the following action :\n(1)  If the report is a charge-sheet under s. 170 it is open\nto  the magistrate to agree with it and take  cognizance  of\nthe  offence under s. 190(1) (b); or to take the  view\tthat\nthe  facts disclosed do not make out an offence and  decline\nto  take cognizance.  But he cannot call upon the police  to\nsubmit\ta  report  that the accused need  not  be  proceeded\nagainst\t on  the  ground  that\tthere  was  not\t  sufficient\nevidence.\n(2)  If the report is of the action taken under s. 169, then\nthe  magistrate\t may  agree with the report  and  close\t the\nproceeding.   If  he disagrees with the report he  can\tgive\ndirections  to the police under s. 156(3) to make a  further\ninvestigation.\t If the police, after further  investigation\nsubmit\ta  charge-sheet,  the  magistrate  may\tfollow\t the\nprocedure where the charge-sheet under s. 170 is filed;\t but\nif  the police are still of the opinion that there  was\t not\nsufficient evidence against the accused, the magistrate\t may\nagree  or  disagree  with it.  Where  he  agrees,  the\tcase\nagainst\t the  accused  is  closed.   Where  the\t  magistrate\ndisagrees  and forms the opinion that the facts set  out  in\nthe  report constitute an offence, he .can  take  cognizance\nunder  s. 190(1)(c).  The provision in s. 169  enabling\t the\nPolice\tto  take a bond for the appearance  of\tthe  accused\nbefore\ta  magistrate  if so required, is  to  meet  such  a\ncontingency  of\t the  magistrate taking\t cognizance  of\t the\noffence notwithstanding the contrary opinion of the  police.\nThe power under s. 190(1)(c) was intended to Secure that\n66 9\noffences  may not go unpunished and justice may\t be  invoked\neven  where persons individually aggrieved are unwilling  or\nunable to prosecute, or he police either wantonly or through\na  bona, fide error do not submit a charge-sheet.   But\t the\nmagistrate  cannot  direct the Police to  submit  a  charge-\nsheet, because the submission of the report depends entirely\nupon the opinion formed by the police and not on the opinion\nof the magistrate.  The magistrate, if he disagrees with the\nreport\tof the police, can. himself take cognizance  of\t the\noffence under s. 19O(1)(a) or (c), but, be cannot compel the\npolice\tto  form a particular opinion on  investigation\t and\nsubmit\ta report according to such opinion.  [672F-H;  673B;\n676H; 677B-H; 678 A-H; 679A-C.\tE-H]\nState of Gujarat v. Shah Lakhamshi, A.I.R.<\/a> 1966 Gujarat\t 283\n(F.B.);\t Venkatusubha v. Anjanayulu, A.I.R. 1932  Mad.\t673;\nAbdul  Rahim v. Abdul Muktadin, A.I.R.<\/a> 1953 Assam 112;\tAmar\nPremanand  v.  State, A.I.R. 1960 M.P. 12 and A. K.  Roy  v.\nState of West Bengal, A.I.R. 1962 Cal. 135 (F.B.), approved.\nState v. Murlidhar Govardhan, A.I.R. 1960 Bom. 240 and Ram\nWandan v. State, A.I.R. 1966 Pat. 438, disapproved.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 218  of
\n1966.\n<\/p>\n
Appeal by special leave from the order dated August 5,\t1966
\nof  the\t Patna High Court in Criminal Revision No.  1020  of
\n966,
\n\t\t\t    AND
\nCriminal Appeal No. 238 of 1966.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nSeptember 13, 1966 of the Patna High Court in Criminal Revi-
\nsion No. 40 of 1965.\n<\/p>\n
B.   P. Jha and Subhag Mal Jain, for the appellants (in\t Cr.
\nA. No. 218 of 1966).\n<\/p>\n
Nuruddin Ahmed and R. C. Prasad, for the appellants (in\t Cr.
\nA. No. 238 of 1966).\n<\/p>\n
U. P. Singh, for the respondents (in both the appeals).
\nThe Judgment of the Court was delivered by
\nVaidialingam,  J. The common question, that arises for\tcon-
\nsideration, in these two criminal appeals, by special leave,
\nis  as\tto  whether a Magistrate can direct  the  police  to
\nsubmit\t a   charge-sheet,  when  the  police,\t after\t the
\ninvestigation  into a congnizable offence, had\tsubmitted  a
\nfinal  report,\tunder  S.  173\tof  the\t Code  of.  Criminal
\nProcedure  (hereinafter\t called\t the  Code).   There  is   a
\nconflict of opinion, on this point between the various\tHigh
\nCourts\tin  India.   The High Courts  of  Madras,  Calcutta,
\nMadhya\tPradesh, Assam and Gujarat have taken the view\tthat
\nthe  Magistrate\t has no such power, whereas, the  Patna\t and
\nBombay High Courts have held a contrary view.
\nIn  Criminal Appeal No. 218 of 1966, the respondent,  Dinesh
\nMishra, lodged a first information report, on June 3,
\n670<\/span>
\n1965,  at the Rajoun Police Station, that he saw a  thatched
\nhouse, of one Uma Kant Misra, situated on the northern\tside
\nof his house, burning, and the petitioners herein.,  running
\naway from the scene,.  The police made an investigation\t and
\nsubmitted what is called a ‘final report’, under s. 173\t (1)
\nof  the Code, to the effect that the offence complained\t of,
\nwas  false.   The Sub-Divisional  Magistrate  received\tthis
\nreport on July 13,  1965,   but,  in  the   meanwhile,\t the
\nrespondent had filed what     is   termed     ‘a     protest
\npetition’, challenging the correctness of\t the   report
\nsubmitted by the police. The Magistrate\t      appears to have
\nperused\t  the\tpolice\tdiary and,   after   hearing   the
\ncounsel for\t the respondent and the\t public\t prosecutor,
\npassed an order on October 27, 1965, directing the police to
\nsubmit a charge-sheet, against the petitioners, herein.\t The
\npetitioners  challenged\t this order, without  success,\tboth
\nbefore the learned Sessions Judge, Bhagalpur, and the  Patna
\nHigh  Court.  It was held by the High Court,  following\t its
\nprevious  decision, that the Magistrate has jurisdiction  to
\ncall  for a charge-sheet, when he disagrees with the  report
\nsubmitted  by the police, under S. 173(1) of the Code.\t The
\npetitioners, in this appeal, challenge these orders.
\nSimilarly,  in Criminal Appeal No. 238 of 1966,\t the  second
\nrespondent therein, had lodged a written report, on February\n<\/p>\n
24.  1.964, before the police, at Malsalami police  station,
\nthat  his daughter, Hiramani, was missing from February\t 21,
\n1964, and that the appellants in that appeal, had  kidnapped
\nher.   A  case under S. 366 I.P.C.  was\t registered  against
\nthem.\tThe police, after investigation, submitted  a  final
\nreport\tto  the\t Magistrate. to the  effect  that  the\tgirl
\nconcerned,  had been recovered and that she bad stated\tthat
\nshe had, of her own accord, eloped; and therefore the police
\nstated that the case might be treated as closed.
\nThe  second respondent filed a ‘protest petition’ in  Court,
\nchallenging the statements of the police and he also filed a
\ncomplaint,  under  s.  498 I.P.C. The  Magistrate,  after  a
\nperusal\t of  the case diary of the police, and\thearing\t the
\nlawyer for the appellants and the second respondent, as also
\nthe  public  prosecutor,  passed  an  order  directing\t the
\ninvestigating officer to submit a charge-sheet, against\t the
\naccused\t persons,  under S. 366 I.P.C This  order  has\tbeen
\nconfirmed  by  the, learned Sessions Judge, as well  as\t the
\nPatna  High  Court.   Here also, the Patna  High  Court,  in
\naccordance  with  its  previous\t decision,  held  that\t the
\nMagistrate had jurisdiction to pass the order, in  question.
\nAll  these orders are challenged by the appellants, in\tthis
\nappeal.\n<\/p>\n
On  behalf of the appellants, in Criminal Appeal No. 218  of
\n1966, Mr. Jha, learned counsel pointed out that when a final
\nreport\tis submitted by the police, under S. 173(1)  of\t the
\nCode,,
\n6 71
\nstating\t that  no case is made out, the\t Magistrate  has  no
\njurisdiction  to direct the police to file  a  charge-sheet.
\nIt  may be open, counsel points out, to the  Magistrate,  to
\ndirect further investigation to be made by the police, or to
\ntreat  the protest petition filed by the second\t respondent,
\nas  a  complaint,  and take cognizance of  the\toffence\t and
\nproceed, according to law., The scheme of Chapter XIV of the
\nCode,  counsel\tpoints\tout,  clearly  indicates  that\t the
\nformation  of  an opinion, as to whether or not there  is  a
\ncase  to  place\t the  accused  on  trial,  is  that  of\t the
\ninvestigating officers, and the Magistrate cannot compel the
\npolice\tto form a particular opinion on\t the  ‘investigation
\nand to submit a report, according to such opinion.  In\tthis
\ncase,  there is nothing to show that the  protest  petition,
\nfiled  by  the second respondent, has befell  treated  as  a
\ncomplaint,  in which case, it may be open to the  Magistrate
\nto  take cognizance of the offence, but, in the\t absence  of
\nany  such procedure being adopted according to counsel,\t the
\norder  of  the\tMagistrate directing a\tcharge-sheet  to  be
\nfiled, is illegal and not warranted by the provisions of the
\nCode.  These contentions have been adopted, and\t reiterated,
\nby  Mr.\t Nuruddin  Ahmed, on behalf of\tthe  appellants,  in
\nCriminal Appeal No. 238 of 1966.\n<\/p>\n
Both the learned counsel pressed before us, for\t acceptance,
\nthe  views, as expressed by the Gujarat High Court,  in\t its
\nFull  Bench judgment, reported as State of Gujarat  v.\tShah
\nLakhamshi<\/a>(1).  On the, other hand, Mr. U. P. Singh,  learned
\ncounsel\t for the respondent, in Criminal Appeal No.  218  of
\n1966, has pointed out that the Magistrate has  jurisdiction,
\nin  proper  cases,  when he does not agree  with  the  final
\nreport\tsubmitted by the police, to direct them to submit  a
\ncharge-sheet.\tOtherwise, counsel points out, the  position
\nwill be that the entire matter is left to the discretion  of
\nthe  police authorities, and the Courts will  be  powerless,
\neven  when ‘they feel that the action of the police  is\t not
\njustified.  Quite naturally, counsel prays for acceptance of
\nthe  views expressed by the dissenting Judges, in A. K.\t Roy
\nv.  State  of  W. B. (2) and by the Bombay  and\t Patna\tHigh
\nCourts,\t in  the decisions reported as\tState  v.  Murlidhar
\nGovardhan(3), and Ram Nandan v. State ( 4 ) , respectively.
\nIn order, properly, to appreciate the duties of the  police,
\nin  the\t matter of ‘investigation of offences,\tas  well  as
\ntheir  powers,\tit is necessary to refer to  the  provisions
\ncontained  in Chapter XIV of the Code.\tThat  chapter  deals
\nwith  ‘Information  to\tthe  Police  and  their\t Powers\t  to
\ninvestigate’, and it contains the group of section beginning
\nfrom s. 154 and ending with s. 176.  Section 154 deals\twith
\ninformation relating to the commission of a cognizable
\nR. 1966 Guj, 283.\t(2) A. 1. R. 1962 Cal. 135 (F.\tB.).
\n(3) A. 1. R. 1960 Bom. 240   (4) A. 1. R. 1966 Pat. 438.
\n67 2
\noffence,  and the procedure to be adopted in respect of\t the
\nsame.\tSection\t 155, similarly, deals with  information  in
\nrespect\t of  noncognizable offences.  Sub-s.  (2),  of\tthis
\nsection,  prohibits  a police officer from  investigating  a
\nnon-cognizable\tcase,  without the order  of  a\t Magistrate.
\nSection\t 156  authorizes a police officer,  in-charge  of  a
\npolice station, to investigate any cognizable case,  without
\nthe order of a Magistrate.  Therefore, it wilt be seen\tthat
\nlarge  powers are conferred on the police, in the matter  of
\ninvestigation into a cognizable offence.  Sub-s. (3), of  s.
\n156, provides for any Magistrate empowered under S. 190,  to
\norder an investigation.\t In cases where a cognizable offence
\nis suspected to have been committed, the officer,  in-charge
\nof  a  police  station,\t after\tsending\t a  report  to\t the
\nMagistrate,  is entitled, under S. 157, to  investigate\t the
\nfacts  and circumstances of the case and also to take  steps
\nfor  the discovery and arrest of the offender.\tClause\t(b),
\nof  the\t proviso  to s. 157(1), gives a\t discretion  to\t the
\npolice officer not to investigate the case, if it appears to
\nhim  that there is no sufficient ground for entering  on  an
\ninvestigation.\t Section 158 deals with the procedure to  be
\nadopted in the matter of”a report to be sent, under S.\t157.
\nSection\t 159  gives power to a Magistrate,  on\treceiving  a
\nreport\tunder S. 157, either to direct an investigation\t or,
\nhimself or through another Magistrate subordinate to him, to
\nhold  a\t preliminary enquiry into the matter,  or  otherwise
\ndispose of the case, in accordance with the Code.   Sections
\n160  to\t 163 deal with the power of the\t police\t to  require
\nattendance  of\twitnesses,  examine  witnesses\tand   record
\nstatements.   Sections\t165 and 166 deal with the  power  of
\npolice\tofficers,  in  the matter  of  conducting  searches,
\nduring\tan  investigation, in the  circumstances,  mentioned
\ntherein.   Section  167\t provides for the  procedure  to  be
\nadopted\t  by  the  police,  when  investigation\t cannot\t  be
\ncompleted  in 24 hours.\t Section 168 provides for  a  report
\nbeing  sent  to the officer, incharge of a  police  station,
\nabout\tthe   result   of  an\tinvestigation,\t when\tsuch
\ninvestigation has been made by a subordinate police officer,
\nunder Chapter XIV.  Section 169 authorises a police  officer
\nto  release a person from custody, on his executing a  bond,
\nto appear, if and when so required, before a Magistrate,  in
\ncases  when, on investigation under Chapter XIV, it  appears
\nto  the officer, in-charge of the police station, or to\t the
\npolice\tofficer making the investigation, that there  is  no
\nsufficient  evidence or reasonable ground of  suspicion,  to
\njustify\t the  forwarding  of the accused  to  a\t Magistrate.
\nSection\t 170  empowers\tthe officer, incharge  of  a  police
\nstation,  after investigation under Chapter XIV, and  if  it
\nappears to him that there is sufficient evidence, to forward
\nthe accused, under custody, to a competent Magistrate or  to
\ntake securtiy from the accused for his appearance before the
\nMagistrate, in cases where the offence is bailable.  Section
\n172  makes  it obligatory on the police\t officer  making  an
\ninvestigation,\tto  maintain a diary recording\tthe  various
\nparticulars therein and in the
\n673<\/span>
\nmanner indicated in that section.  Section 173 provides\t for
\nan  investigation,  under  Chapter  XIV,  to  be  completed,
\nwithout\t unnecessary delay and also makes it obligatory,  on
\nthe  officer,  incharge\t of the police station,\t to  send  a
\nreport\tto the Magistrate concerned, in the manner  provided
\nfor therein, containing the necessary particulars.
\nIt  is now only necessary to refer to S. 190,  occurring  in
\nChapter\t XV, relating to jurisdiction of criminal Courts  in
\ninquiries and trials.  That section is to be found under the
\nheading ‘Conditions requisite for initiation of proceedings’
\nand its sub-S.\n<\/p>\n
\t      (1) is\t as follows :\n<\/p>\n
\t      “(1)  Except  as\thereinafter  provided,\t any
\n\t      Presidency Magistrate, District Magistrate  or
\n\t      Sub-divisional   Magistrate  and\t any   other
\n\t      Magistrate specially empowered in this behalf,
\n\t      may take cognizance of any offence-\n<\/p>\n
\t      (a)   upon  receiving  a\tcomplaint  of  facts
\n\t      which constitute such offence;\n<\/p>\n
\t      (b)   upon  a report in writing of such  facts
\n\t      made, by any police-officer;\n<\/p>\n
\t      (c)   upon   information\treceived  from\t any
\n\t      person  other than a police-officer,  or\tupon
\n\t      his  own\tknowledge or suspicion, that  such
\n\t      offence has been committed.”\n<\/p>\n
From  the foregoing sections, occurring in Chapter  XIV,  it
\nwill  be seen that very elaborate provisions have been\tmade
\nfor  securing that an investigation does take place  into  a
\nreported offence and the investigation is carried out within
\nthe limits of the law, without causing any harassment to the
\naccused\t and is also completed without unnecessary or  undue
\ndelay.\t But  the point to be noted is that the\t manner\t and
\nmethod of conducting the investigation, are left entirely to
\nthe police, and the Magistrate, so far as we can see, has no
\npower  under any of these provisions, to interfere with\t the
\nsame.  If, on investigation, it appears to the officer,\t in-
\ncharge\tof  a police station, or to the\t officer  making  an
\ninvestigation,\tthat  ,,here is no  sufficient\tevidence  or
\nreasonable grounds of suspicion justifying the forwarding of
\nan  accused to a Magistrate,, S. 169 says that\tthe  officer
\nshall release the accused, if in custody, on hi-,  executing
\na  bond to appear before the Magistrate.  Similarly,  if  on
\nthe  other hand, it appears to the officer, in-charge  of  a
\npolice station, or to the officer making the  investigation,
\nunder  Chapter\tXIV, that there is  sufficient\tevidence  or
\nreasonable ground to justify the forwarding of an accused to
\na Magistrate, such an officer is required, under S. 170,  to
\nforward\t the accused to a Magistrate or, if the\t offence  is
\nbailable,  to  take  security from him\tfor  his  appearance
\nbefore such Magistrate.\t But, whether a case comes under  S.
\n169, or under S. 170, of the Code, on the completion of\t the
\ninvestigation, the police officer has to
\nL7SupCI\/67-13
\n674<\/span>
\nsubmit\ta  report to the Magistrate, under s.  173,  in\t the
\nmanner\tindicated therein, containing the  various  details.
\nThe  question as to whether the Magistrate has got power  to
\ndirect\tthe police to file a charge-sheet, on receipt  of  a
\nreport\tunder s. 173 really depends upon the nature  of\t the
\njurisdiction  exercised\t by  a Magistrate,  on\treceiving  a
\nreport.\n<\/p>\n
In  this connection, we may refer to  certain  observations,
\nmade  by  the Judicial Committee in King Emperor  v.  Khwaja
\nNazir Ahmed(1) and by this Court, in H. N. Rishbud and Inder
\nSingh  v. The State of Delhi<\/a>(2).  In Nazir Ahmed’s  Case(1),
\nLord Porter observes, at 212, as follows
\n\t      “Just  as\t it  is\t essential  that  every\t one
\n\t      accused of a crime should have free access  to
\n\t      a\t court\tof justice so that he  may  be\tduly
\n\t      acquitted\t if found not guilty of the  offence
\n\t      with  which  he is charged, so it is,  of\t the
\n\t      utmost  importance that the  judiciary  should
\n\t      not interfere with the police in matters which
\n\t      are  within their province and into which\t the
\n\t      law  imposes on them the duty of inquiry.\t  In
\n\t      India, as has been shown, there is a statutory
\n\t      right on the part of the police to investigate
\n\t      the  circumstances  of an\t alleged  cognizable
\n\t      crime without requiring any authority from the
\n\t      judicial\tauthorities, and it would, as  their
\n\t      Lordships\t think, be an unfortunate result  if
\n\t      it  should be held possible to interfere\twith
\n\t      those  statutory rights by an exercise of\t the
\n\t      inherent\tjurisdiction  of  the  court.\t The
\n\t      functions of the judiciary and the police\t are
\n\t      complementary,   not  overlapping,   and\t the
\n\t      combination  of individual liberty with a\t due
\n\t      observance  of  law and order is\tonly  to  be
\n\t      obtained\tby leaving each to exercise its\t own
\n\t      function,\t always, of course, subject  to\t the
\n\t      right   of  the  court  to  intervene  in\t  an
\n\t      appropriate case when\tmoved  under s.\t 491
\n\t      of the Criminal Procedure Code to\t\tgive
\n\t      directions in the nature of habeas corpus.    In
\n\t      such  a  case  as the  present,  however,\t the
\n\t      court’s  functions  begin\t when  a  charge  is
\n\t      preferred before it, and not until then.”\n<\/p>\n
These observations have been quoted, with approval, by\tthis
\nCourt,\tin  State of West Bengal v. S.\tN.  Basak<\/a>(3).\tThis
\nCourt in Rishbud and Inder Singh’s Case(1), observes, at  p.
\n1156, as follows :\n<\/p>\n
\t      “Investigation  usually starts on\t information
\n\t      relating to the commission of an offence given
\n\t      to an officer incharge of a police station and
\n\t      recorded under sec-\n<\/p><\/blockquote>\n
(1) L. R. 71 1. A. 203.\t      (2) [1955] 1. S. C. R. 115).
\n(3)  A. 1. R. 1963 S. C. 447.\n<\/p>\n
675<\/span><\/p>\n
\t      tion 154 of the Code.  If from information  so
\n\t      received\tor otherwise, the officer in  charge
\n\t      of  the police station has reason\t to  suspect
\n\t      the commission of an offence, he or some other
\n\t      subordinate  officer  deputed by him,  has  to
\n\t      proceed  to the spot to investigate the  facts
\n\t      and circumstances of the case and if necessary
\n\t      to take measures for the discovery and  arrest
\n\t      of the offender.\tThus investigation primarily
\n\t      consists in the ascertainment or the facts and
\n\t      circumstances of the case.  By definition,  it
\n\t      includes\t‘all the proceedings under the\tCode
\n\t      for the collection of evidence conducted by  a
\n\t      police officer’.”\n<\/p>\n
Again  after a reference to some       of the provisions  in
\nChapter XIV of the Code, it is observed\t      at p. 1157
\n\t      “Thus,  under the Code investigation  consists
\n\t      generally\t  of  the  following  steps  :\t (1)
\n\t      Proceeding  to the spot, (2) Ascertainment  of
\n\t      the  facts and circumstances of the case,\t (3)
\n\t      Discovery\t  and\tarrest\tof   the   suspected
\n\t      offender, (4) Collection of evidence  relating
\n\t      to  the  commission of the offence  which\t may
\n\t      consist  of  (a) the  examination\t of  various
\n\t      persons\t(including  the\t accused)  and\t the
\n\t      reduction\t of their statements  into  writing,
\n\t      if’ the officer thinks fit, (b) the search  of
\n\t      places   of  seizure  of\t things\t  considered
\n\t      necessary\t for  the investigation\t and  to  be
\n\t      produced\tat the trial, and (5)  Formation  of
\n\t      the  opinion  as to whether  on  the  material
\n\t      collected there is a case to place the accused
\n\t      before a Magistrate for trial and if so taking
\n\t      the necessary steps for the same by filing  of
\n\t      a charge-sheet under section 1 7 3. . . . . It
\n\t      is  also\tclear  that the final  step  in\t the
\n\t      investigation  viz.,  the\t formation  of\t the
\n\t      opinion  as to whether or no’ there is a\tcase
\n\t      to place the accused on trial is to be that of
\n\t      the officer in-charge of the police station.”
\nWe  are referring to these observations for the\t purpose  of
\nemphasizing  that the scheme of Chapter XIV,  clearly  shows
\nthat the formation of an opinion as to whether or not  there
\nis  a case to place the accused on trial, has been  left  to
\nthe  officer incharge of a police station.  Bearing in\tmind
\nthese principles referred to above, we have to consider\t the
\nquestion  that arises for consideration, in this case.\t The
\nHigh  Courts  which  have held that the\t Magistrate  has  no
\njurisdiction to call upon the police to file a charge-sheet,
\nunder such circumstances, have Tested their decision on\t two
\nprinciples  viz., (a) that there is no express provision  in
\nthe Code empowering a Magistrate to pass such an order;\t and\n<\/p>\n
(b) such a power, in view of the scheme of
\nL7SUPCI\/67 14
\n676<\/span>
\nChapter\t XIV,  cannot  be  inferred-vide  Venkata  Subha   v
\nAnjanayulu(1);\tAbdul  Rahim  v.  Abdul\t Muktadin<\/a>(2);\tAman
\nPremanand  v.  State(3); the majority view in A. K.  Roy  v.
\nState\tof   W.\t B.(1);\t and  Stale  of\t Gujarat   v.\tShah
\nLakhamshi(5).  Or the other hand, the High Courts which have
\nrecognised  such a power, rest their decision again  on\t two
\ngrounds viz., (a) where a report is submitted by the police,
\nafter  investigation,  the Magistrate has to  deal  with  it
\njudicially,  which  will mean that where the report  is\t not
\naccepted, the Magistrate can give suitable directions to the
\npolice-,  and (b) the Magistrate is given  supervision\tover
\nthe  conduct of investigation by the police, and there\tore,
\nsuch a power can be recognised in the Magistrate-vide  State
\nv. Murlidhar Goverdhan(6); and Ram Nandan v. State(7).
\nThough\tit may be that a report submitted by the police\t may
\nhave  to  be dealt with, judicially, by\t a  Magistrate,\t and
\nalthough the Magistrate may have certain supervisory powers,
\nnevertheless, we are not inclined to agree with the  further
\nview  that  from these considerations alone it can  be\tsaid
\nthat  when the police submit a report that no case has\tbeen
\nmade out for sending up an accused for trial, it is open  to
\nthe Magistrate to direct the police to file a  charge-sheet.
\nBut, we may make it clear, that this is not to say that\t the
\nMagistrate  is\tabsolutely powerless, because,\tas  will  be
\nindicated later, it is open to him lo take cognizance of  an
\noffence and proceed, according to law.\tWe do not also\tfind
\nany  such  power,  under  s. 173(3),  as  is  sought  to  be
\ninferred, in some of the decisions cited above.\t As we\thave
\nindicated  broadly  the, approach made by the  various\tHigh
\nCourts\tin coming to different conclusions, we do not  think
\nit necessary to refer to those decisions in detail.
\nIt will be seen that the Code, as such, does not use the ex-
\npression  ‘charge-sheet’  or  ‘final  report’.\t But  it  is
\nunderstood,  in\t the  Police  Manual  containing  Rules\t and
\nRegulations, that a report by the Police, filed under s. 170
\nof  the\t Code, is referred to as a ‘charge-sheet’.   But  in
\nrespect\t of the reports sent under s. 169, i.e., when  there
\nis  no sufficient evidence to justify the forwarding of\t the
\naccused\t to  a\tMagistrate,  it\t is  termed  variously,\t  in
\ndifferent  States,  as\teither\t‘referred  charge’,   ‘final
\nreport’, or ‘Summary’.\n<\/p>\n
In these two appeals, which are from the State of Bihar, the
\nreports,  under s. 169, are referred to as  ‘final  report’.
\nNow,  the  question as to what exactly is to be\t done  by  a
\nMagistrate,  on receiving a report. under s. 173, will\thave
\nto be considered.   That report may be inrespect  of   a
\ncase, coming under s. 170,
\n(1) A.I.R. 1932 Mad. 673.     (2) A.I.R. 1953 Assam 112.
\n(3) A.I.R. 1960 M P. 12. (4) A.I.R. 1962 Cal. 135.
\n(5) A.I.R. 1966 Guj. 283.     (6) A.I.R. 1960 Born. 240.
\n(7)  A.I.R. 1966 Pat. 438.\n<\/p>\n
677<\/span><\/p>\n
or one coming under s. 169.  We have already referred to  s.
\n190,  which  is the first section in the group\tof  sections
\nheaded ‘Conditions requisite for Initiation of Proceedings.’
\nSub-s. (1), of this section, will cover a report sent, under
\ns.  173.  The use of the words ‘may take cognizance  of\t any
\noffence’, in sub-s. (1) of s. 190 in our opinion imports the
\nexercise of a ‘judicial discretion’, and the Magistrate, who
\nreceives  the report, under s.. 173, will have\tto  consider
\nthe  said report and judicially take a decision, whether  or
\nnot to take cognizance of the offence.\tFrom this it follows
\nthat it is not as if that the Magistrate is bound to  accept
\n,,the opinion of the police that there is a case for placing
\nthe accused, on trial.\tIt is open to the Magistrate to take
\nthe view that the facts disclosed in the report do not\tmake
\nout an offence for taking cognizance or he may take the view
\nthat  there is no sufficient evidence to justify an  accused
\nbeing  put  on\ttrial.\t On either  of\tthese  grounds,\t the
\nMagistrate will be perfectly justified in declining to\ttake
\ncognizance of an offence, irrespective of the opinion of the
\npolice.\t  On the other hand, if the Magistrate\tagrees\twith
\nthe report, which is a charge-sheet submitted by the police,
\nno  difficulty\twhatsoever is caused, because he  will\thave
\nfull  jurisdiction to take cognizance of the offence,  under
\ns.  190(1)(b) of the Code.  This will be the position,\twhen
\nthe report under s. 173, is a charge-sheet.
\nThen the question is, what is the position, when the  Magis-
\ntrate  is  dealing with a report submitted  by\tthe  police,
\nunder  s.  173, that no case is made out for sending  up  an
\naccused\t for  trial,  which  report,  as  we  have   already
\nindicated,  is called, in the area in question, as a  ‘final
\nreport’?  Even in those cases, if the Magistrate agrees with
\nthe  said report, he may accept the final report  and  close
\nthe  proceedings.   But\t there may  be\tinstances  when\t the
\nMagistrate  may\t take the view, on a  consideration  of\t the
\nfinal  report, that the opinion formed by the police is\t not
\nbased  on a full and complete investigation, in which\tcase
\nin  our opinion the Magistrate will have ample\tjurisdiction
\nto  give directions to the police, under s. 1 5 6 ( 3 ),  to
\nmake  a further investigation.\tThat is, if  the  Magistrate
\nfeels,\t after\tconsidering  the  final\t report,  that\t the
\ninvestigation  is  unsatisfactory, or  incomplete,  or\tthat
\nthere is scope for further investigation, it will be open to
\nthe  Magistrate\t to decline to accept the final\t report\t and
\ndirect\tthe police to make further investigation,  under  s.
\n156(3).\t  The police, after such further investigation,\t may
\nsubmit\ta  charge-sheet, or,, again submit a  final  report,
\ndepending upon the further investigation made by them.\t If,
\nultimately, the Magistrate forms the opinion that the facts,
\nset out in the final report, constitute an offence, he,\t can
\ntake  cognizance  of  the  offence  under  s.  190(1)\t(c),
\nnotwithstanding\t  the  contrary\t opinion  of   the   police,
\nexpressed in the final report.\n<\/p>\n
678<\/span><\/p>\n
In  this connection, the provisions of S. 169 of  the  Code,
\nare  relevant.\tThey specifically provide that even  though,
\non  investigation, a police officer, or other  investigating
\nofficer,  is  of  the  opinion that there  is  no  case\t for
\nproceeding against the accused, he is bound, While releasing
\nthe  accused,, to take a bond from him to appear,  ‘If\tand.
\nwhen  required,\t before\t a Magistrate.\t This  provision  is
\nobviously  to meet a contingency of the Magistrate, when  he
\nconsiders  the\treport\tof the\tinvestigating  officer,\t and
\njudicially takes a view different from the police.
\nWe have to approach the, question, arising for consideration
\nin this case, in the light of the circumstances pointed\t out
\nabove.\t We have, already referred to the scheme of  Chapter
\nXXIV,  as well as the observations of this Court in  Rishbud
\nand Inder Singh’s Case(1) that the formation of the  opinion
\nas to whether or not there is a case to place the accused on
\ntrial before a Magistrate, is ‘left to the officer in-charge
\nof the police station.\tThere is no express power, so far as
\nwe can see, which gives jurisdiction to pass an order of the
\nnature\tunder  attack; nor can any such powers\tbe  implied.
\nThere  is  certainly no obligation, on\tthe  Magistrate,  to
\naccept\tthe  report, if he does not agree with\tthe  opinion
\nformed\tby  the police.\t Under those  circumstances,  if  he
\nstill  suspects\t that an offence has been committed,  he  is
\nentitled,  notwithstanding  the opinion of tile\t police,  to
\ntake  cognizance,  under  S. 190(1)(c) of  the\tCode.\tThat
\nprovision,  in our opinion, is obviously intended to  secure
\nthat  offences may not go unpunished and justice may be\t in-
\nvoked\teven  where  persons  individually   aggrieved\t are
\nunwilling  or  unable to prosecute. or\tthe  police,  either
\nwantonly  or  through  bona fide error,\t fail  to  submit  a
\nreport,\t setting  out the facts\t constituting  the  offence.
\nTherefore, a very wide power is conferred on the  Magistrate
\nto take cognizance of an offence. not only when he  receives
\ninformation about the commission of an offence from a third
\nperson,\t but also where he has knowledge or  even  suspicion
\nthat  the  offence has been committed.\tIt is  open  to\t the
\nMagistrate  to\ttake  cognizance of the\t offence,  under  s.
\n190(1)\t(c), on the ground that, after having due regard  to
\nthe  final report and the police records placed before\thim,
\nbe has reason to suspect that an offence has been committed.
\nTherefore,  these circumstances will also  clearly  negative
\nthe  power of a Magistrate to call for a  charge-sheet\tfrom
\nthe  police, when they have submitted a final  report.\t The
\nentire\tscheme\tof Chapter XIV clearly\tindicates  that\t the
\nformation  of the opinion, as to whether or not there  is  a
\ncase to, place the accused for trial, is that of the officer
\nin-charge of the police station and that opinion  determines
\nwhether\t the report is to be under s. 170, being a  ‘charge-
\nsheet’, or under S. 169, ‘a final report’.  It is no
\n(1)  [1955]1 S.C.R. 1150.\n<\/p>\n
67 9
\ndoubt  open  to the Magistrate, as we have  already  pointed
\nout,  to accept or disagree with the opinion of\t the  police
\nand, if he disagrees, he is entitled to adopt any one of the
\ncourses indicated by us.  But he cannot direct the police to
\nsubmit a charge-sheet, because, the submission of the report
\ndepends\t upon the opinion formed by the police, and  not  on
\nthe opinion of the Magistrate.\tThe Magistrate cannot compel
\nthe   police   to  form\t a  particular\t opinion,   on\t the
\ninvestigation,\tand  to submit a report, according  to\tsuch
\nopinion.   Thai will be really encroaching on the sphere  of
\nthe  police and compelling the police to form an opinion  so
\nas to accord with the decision of the Magistrate and send  a
\nreport, either under s. 169, or under s. 170, depending upon
\nthe  nature of the decision.  Such a function has been\tleft
\nto the police, under the Code.\n<\/p>\n
We  have already pointed out that the  investigation,  under
\nthe  Code,  takes  in several aspects,\tand  stages,  ending
\nultimately with the formation of an opinion by the police as
\nto whether, on the material covered and collected, a case is
\nmade  out  to place the accused before\tthe  Magistrate\t for
\ntrial,\tand  the submission of either a charge-sheet,  or  a
\nfinal  report is dependent on the nature of the opinion,  so
\nformed.\t The formation of ,the said opinion, by the  police,
\nas   pointed  out  earlier,  is\t the  final  step   in\t the
\ninvestigation,\tand that final step is to be taken  only  by
\nthe police and by no other authority.\n<\/p>\n
The  question  can also be consider from  another  point  of
\nview.\tSupposing the police send a report, viz., a  charge-
\nsheet, under s. 170 of the Code.  As we have already pointed
\nout, the Magistrate is not bound to accept that report, when
\nhe considers the matter judicially.  But, can he differ from
\nthe  police.  and call upon them to submit a  final  report,
\nunder  s.169 ?\tIn our opinion, the Magistrate has  no\tsuch
\npower.\t If  he has no such power, in law, it  also  follows
\nthat  the  Magistrate has no power to direct the  police  to
\nsubmit a charge-sheet when the police have submitted a final
\nreport that no case is made out for sending the accused\t for
\ntrial.\tThe functions of the Magistracy and the police,\t are
\nentirely   different,  and  though,  in\t the   circumstances
\nmentioned  earlier the Magistrate may or may not accept\t the
\nreport,\t and  take  suitable action, according\tto  law,  he
\ncannot\tcertainly  infringe  upon the  jurisdiction  of\t the
\npolice, by compelling them to change their opinion, so as to
\naccord with his view.\n<\/p>\n
Therefore, to conclude, there is no power, expressly or\t im-
\npliedly\t conferred, under the Code, on a Magistrate to\tcall
\nupon  the  police to submit a charge-sheet, when  they\thave
\nsent  a\t report under s. 169 of the Code, that there  is  no
\ncase made out for sending tip an accused for trial.
\nL7 Sup.\t CI\/67- 15
\n680<\/span>
\nIn  these two appeals, one other fact will have to be  taken
\nnote of.  It is not very clear as to whether the Magistrate,
\nin  each  of these cases, has chosen to\t treat\tthe  protest
\npetitions,   filed   by\t the  respective   respondents,\t  as
\ncomplaints, because, we do not find that the Magistrate\t has
\nadopted\t the suitable procedure indicated in the Code,\twhen
\nhe  takes cognizance of an offence, on a complaint  made  to
\nhim.   Therefore,  while  holding that\tthe  orders  of\t the
\nMagistrate, in each of these cases, directing the police  to
\nfile  charge-sheets,  is Without jurisdiction,\twe  make  it
\nclear  that  it\t is  open to the  Magistrate  to  treat\t the
\nrespective  protest  petitions,\t as  complaints,  and\ttake
\nfurther\t proceedings, according to law, and in the light  of
\nthe views expressed by us, in this judgment.
\nMr.  Nuruddin Ahmed, learned counsel for the  appellants  in
\nCriminal Appeal No. 238 of 1966, particularly urged that  it
\nis   unnecessary  to  direct  further  proceedings   to\t  be
\ncontinued,  so\tfar as his clients are\tconcerned.   Learned
\ncounsel\t pointed  out  that the\t police\t report\t before\t the
\nMagistrate clearly shows that the girl, in question, who  is
\nstated to be above 19 years of age, has herself stated\tthat
\nshe  bad eloped, of her own accord and that if that  is\t so,
\nfurther\t proceedings  against his  clients,  are  absolutely
\nunnecessary, to be continued.  We are not inclined to accept
\nthese contentions of the learned counsel.  As to whether  an
\noffence is made out or whether any of the appellants or both
\nof  them are guilty of the offences with which they  may  be
\ncharged,  are  all  matters  which  do\tnot  require  to  be
\nconsidered, by this Court, at this stage.\n<\/p>\n
In  the result, subject to the directions  contained  above,
\nthe orders of the Magistrate, directing the police to file a
\ncharge, will be set aside, and the appeals allowed, to\tthat
\nextent.\n<\/p>\n
V.P.S.\t\t\t\t\t  Appeals allowed.\n681<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Abhinandan Jha & Ors vs Dinesh Mishra(With Connected … on 17 April, 1967 Equivalent citations: 1968 AIR 117, 1967 SCR (3) 668 Author: C Vaidyialingam Bench: Vaidyialingam, C.A. 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-35904","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAbhinandan Jha & Ors vs Dinesh Mishra(With Connected ... on 17 April, 1967 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/abhinandan-jha-ors-vs-dinesh-mishrawith-connected-on-17-april-1967\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Abhinandan Jha & Ors vs Dinesh Mishra(With Connected ... on 17 April, 1967 - 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