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TMI Blog1965 (12) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... question is one of some importance since it is likely to arise frequently before Magistrates and that is why the Revision Applications have been referred to a Full Bench by Bakshi and Vakil JJ. before whom they originally came up for hearing. The facts of each revision application are different but it is not necessary to set them out in detail for the purpose, of deciding the Revision Applications. It is sufficient to point out that in each case the police investigating the offence -- a cognizable one -- took the view on completion of the investigation that there was not sufficient evidence or reasonable ground of suspicion to justify putting up of the accused for trial and accordingly submitted a final report to the Magistrate asking for a "B" Summary to the effect that the case was maliciously false. The Magistrate on a consideration of the final report and other police papers did not agree with the recommendation of the police and declined to grant "B" Summary. The Magistrate took the view that the facts disclosed in the final report and the police paper? constituted an offence and there was a case for putting up the accused on trial and he therefore directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... represented the correct law but besides these two decisions, several other decisions of various High Courts were also cited before us and we shall have to consider them. But before we refer to these decisions, it would be desirable to examine the question on principle and to do that we must see what is the scheme of the Code relating to investigation of offences. 3. The provisions relating to the power of the police to investigate into offences and the procedure to be adopted by them are to be found in Chapter XIV which falls in Part V headed: "Information to the Police and their powers to investigate". An officer-in-charge of a police station may investigate into any cognizable offence 'without the order of a Magistrate (Section 156 (1)), but no police officer can investigate a non- cognizable case without an order from a Magistrate specified in Section 155(2). Under Section 156 (3) any Magistrate empowered under Section 190 may order the police to investigate into a cognizable case. Section 157 prescribes the procedure to be followed where from information received or otherwise, an officer-in-charge of a police-station has reason to suspect the commission of an off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, says Section 169, release the accused, if in custody, on his executing a bond, to appear, if and when required, before a Magistrate empowered to take cognizance of the offence on a police-report and to try the accused or commit him for trial. If on the other hand if appears to the officer in charge of the police-station, upon an investigation under Chapter XIV, that there is sufficient evidence or reasonable ground to justify the forwarding of the accused to a Magistrate, such officer is required under Section 170 to forward the accused to a Magistrate empowered to take cognizance of the offence and try the accused or commit him for trial or, if the offence is bailable, take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate. In either case, on the completion of the investigation, the officer in charge of the police station has to submit a report to the Magistrate under Section 173 in the prescribed form furnishing various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 169 or to a report made by the police in a case falling within Section 170: in both cases the report Is genetically a report under Section 173. But when we turn to the Bombay Police Manual which contains inter alia Rules and Regulations made by the Inspector General of Police, we find that a distinction is made between the two types of cases. The report to be made by the police in a case falling within Section 170 -- where there is sufficient evidence to justify the sending of the accused to the Magistrate -- is called a "charge sheet" in Rule 218 and that Rule says that the charge-sheet shall be in Form C. P. C. 20 and shall comply with the requirements specified in that Rule where the case falls within Section 169--that is, there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, the report to be submitted by the police is termed as "final report" and Rule 219 directs that such final report shall be submitted by the Police Station Officer through the Superintendent of Police or the Sub Divisional Officer and while forwarding such final report, a request should be made to the Magistrate to classify the case and to issue an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns requisite for initiation of proceedings". Sub-section (1) of Section 190 is the only relevant provision and that provides for taking cognizance of an offence by the Magistrate in the following terms: "190. (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." Section 190(1)(b) covers the case of a report under Section 173 and we shall, therefore, for the time being be concerned only with that provision. Under Section 190(1)(b) a Magistrate may take cognizance of an offence on a report under Section 173 disclosing facts which constitute such offence. The word "may" imports the exercise of judicial discretion and the Magistrate receiving the report under Section 173 would have to consider the report and deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficulty where the Magistrate on a consideration of the final report agrees with the Opinion of the police: he may in such a case accept the recommendation of the police and issue the kind of summary asked for, namely, "A", "B" or "C". But even where he agrees with the opinion of the police that there is no case for putting up the accused on trial. He is not bound to issue the kind of Summary asked for by the police. As observed by a Division Bench of the Bombay High Court in State v. Shankar Bhaurao: AIR1959Bom437 , a Magistrate who is invited to give "B" Summary may on the evidence give "A" Summary. The Magistrate has to apply his mind judicially to the final report and decide what kind of Summary is justified on the facts and circumstances of the case. The Magistrate may also refuse to issue any Summary at all if on a consideration of the final report and the police papers he is of the view that the request of the police is not well grounded. The Magistrate may take the view that the opinion formed by the police is not based on full and complete investigation and he may direct the police to make further investigation under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the final report constitute an offence and having regard to the final report and the police papers there is a case for placing the accused on trial, the Magistrate can take cognizance of the offence under Section 190(1)(b) notwithstanding the contrary opinion of the police expressed in the final report. Section 190(1)(b) empowers a Magistrate to take cognizance of an offence on a report under Section 173 containing facts constituting such offence and a final report is as much a report under Section 173 as a charge-sheet and, therefore, if the final report contains facts which according to the Magistrate constitute an offence, the Magistrate can take cognizance of the offence on the final report under Section 190(1)(b). That is why Section 169 provides that even though on investigation the police station officer or the investigating officer forms the opinion that there is no case for proceeding against the accused, he shall while releasing the accused take a bond from him to appear if and when so required, before a Magistrate empowered to take cognisance of the offence on a police report and to try him or to commit him for trial. This provision has been obviously enacted to meet the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here that the disagreement between the parties commences. When the Magistrate on a consideration of the final report disagrees with the opinion of the police and takes the view that the facts disclosed in the final report constitute an offence and there is a case for proceeding against the accused, the Magistrate can certainly take cognizance of the offence, but can the Magistrate, in such a case instead of taking cognizance of the offence call for a charge-sheet from the police as a preliminary step to taking cognizance of the offence? This question may also arise where the Magistrate finds on a consideration of the final report and the police papers that an offence does appear to have been committed and that there is reasonable ground for proceeding against the accused but the fads set out in the final report do not make out such offence with the result that the magistrate is unable to take cognizance of the offence on the final report under Section 190(1)(b). Can the Magistrate in such a case call for a charge-sheet from the police so that he can take cognizance of the offence on the charge-sheet? Now obviously this power, if it exists, must be as a result ol conferment by expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate shall make such order as he thinks (it for the discharge of the bond or otherwise. The order that is contemplated under the Section is clearly an order in reference to the bond. The, word "otherwise" does not give an unlimited discretion to the Magistrate to make any kind of order he likes such as an order calling for a charge-sheet. That word must be read in the context in which it occurs and so read it can mean only an order in reference to the bond otherwise than for the discharge of the bond. Such an order may well be an order requiring the production of the accused but it cannot include an order calling for a charge-sheet from the police. The latter order would have no relation to the bond and would not, therefore, fall within the category of orders which can be made by the Magistrate under the power conferred by the use of the word "otherwise". Moreover, even if the word "otherwise" were to be wrested from its context and given a broad and expansive meaning so as to confer a carte blanche power on the Magistrate to make any kind of order which he thinks fit under the circumstances of the case, it cannot still be construed as authorizin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be more convenient or desirable that such power should exist to imply power in the latter case would be to legislate and not to interpret the statute. This principle of construction applied in the present case clearly negatives the implication of any power in the Magistrate to call for a charge-sheet from the police. It is not at all necessary to imply such a power in the Magistrate for there is no jurisdiction or power conferred, on the Magistrate under the Code which would be rendered meaningless or futile if the power to call for a charge-sheet from the police is not held to be vested in the Magistrate. The Magistrate has the power to direct further investigation under Section 156(3) if the investigation is incomplete or unsatisfactory and he has also the power to take cognizance of the offence under Section 190(1) (b), if he finds, despite the opinion of the police to the contrary, that an offence has been committed and there is reasonable ground to proceed against the accused. Neither of these two powers is rendered ineffectual or futile without the aid of the power to call for a charge-sheet from the police. Of course, as pointed out above, where the facts set out in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third person but also where he has knowledge or even suspicion that the offence has been committed. Now in a case where the Magistrate finds on a consideration of the final report and the police papers such as the statements recorded under Sections 162 and 164 that an offence has been committed, it may not be possible to say that information relating to the commission of the offence is received by the Magistrate from any person or persons other than a police officer, for even the statements of witnesses recorded under Sections 162 and 164 would be received by the Magistrate from the police and the information contained in those statements might plausibly be said to be information received from the police and not from the witnesses so far as the Magistrate is concerned. The Magistrate may not, therefore, be able to take cognizance of the offence under the first part of Section 190(1)(c) but he can certainly take cognizance of the offence under the second part of that Section on the ground that having regard to the final report and the police papers he has reason to suspect that an offence has been committed. The final report and the police papers can in such case be relied on as aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce station and that opinion determines whether the report under Section 173 is to be a charge sheet or a final report. When the police station officer forms an opinion that there is no case for placing the accused on trial and in view of that opinion submits a final report instead of a charge-sheet, the Magistrate may disagree with the opinion of the police and adopt any one of the courses indicated above but we do not see how he can direct the police to submit a charge-sheet. Whether the report to be submitted under Section 173 should be a charge-sheet or a final report depends on the opinion of the police and not on the opinion of me Magistrate. The Magistrate cannot compel the police to form a particular opinion on the investigation and to submit a report according to such opinion. The formation of the opinion, as observed by the Supreme Court in Bishbud's Case: 1955CriLJ526 (supra) is to be that of the police and the Magistrate cannot be permitted to encroach on the sphere of the police and to decide according to his opinion whether the report under Section 173 should be a charge-sheet or a final report. That function is assigned by the Legislature to the police and the Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with such opinion. Even if we look at the question from a slightly different angle, we arrive at the same conclusion. The observations of the Privy Council to which we have just referred clearly show that the right to investigate the circumstances of an alleged cognizable offence without requiring any authority from the Magistrate is vested by the Code in the police and the police is entitled to carry on the investigation upto the end without any interference by the Magistrate. Investigation under the Code consists generally of several stages ending with the 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 the submission of a charge-sheet or a final report dependant on the opinion so formed. The formation of the opinion as to whether there is or not a case for placing the accused on trial is, as observed by the Supreme Court in Rishbud's Case: 1955CriLJ526 ((supra), the final step in the investigation and that final step is to be taken by the officer in charge of the police station. See also Parulbala Sen v. State: AIR1957Cal379 . The formation of the opinion whether or not there is a case f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, unable to agree with the judgment of the Division Bench in Murlidhar's Case 61 Bom LR 1656: (AIR 1960 Bom 240) and the minority judgments of Bhatta-charya and D. N. Das Gupta JJ. in A. K. Roy's Case: AIR1962Cal135 (supra). II. Before we close the discussion of this point, we must refer to three decisions of the Patna High Court which were cited at the bar as having some bearing on the determination of the question in dispute between the parties. The first was the decision in Shukadeva Sahay v. Hamid Miyan but this decision does not help, for the only point involved in this decision was whether the Sub-Divisional Magistrate having disposed of the final report by accepting the recommendation of the police, the District Magistrate had power to call for a charge-sheet and it was held that the District Magistrate had no such power. The question as to whether the Sub-Divisional Magistrate was entitled to call for a charge-sheet if he disagreed with the recommendation contained in the final report was not in issue and there was no decision on that question. The second decision was that reported in. In this case a single Judge of the Patna High Court undoubtedly held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge-sheet. Now in the first place we cannot agree that an order made by the Magistrate on a consideration of the report made to him under Section 173 is an administrative order: it is by its very nature a judicial order for the Magistrate has to apply his mind judicially to the report and decide on the course of action. Secondly, the ground on which it is held that the Magistrate can call for a charge-sheet is that the Magistrate may take cognizance of the offence under Section 190(1)(e) and taking cognizance under that Section, he may call for a charge-sheet, but if the Magistrate takes cognizance under Section 190(1)(c), he must proceed under Section 204 and cannot possibly call for a charge-sheet and in any event there would be no point in calling for a charge-sheet for he cannot take cognizance of the offence over again on the charge-sheet submitted by the police. Probably the Division Bench held the Magistrate to have the power to call for A charge-sheet on the view that on taking cognizance of the offence under Section 190(1)(c), the Magistrate was entitled to issue process and calling for a charge-sheet from the police was an irregular mode of issuing process, but this view i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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