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  • Section 156(3) Cr.P.C Apart from Sec. 173(2) (ii)
  • provisions of Sections 200 to 204 Cr.P.C
  • Sections 200 to 204 Cr.P.C
  • Section 156(3) Cr.P.C
  • Section 190 Cr.P.C
  • Section 173 Cr.P.C
  • Section 200 Cr.P.C
  • Section 190(1) (b).15.
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Citation Codes
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citation codes
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  • Section 156(3) Cr.P.C Apart from Sec. 173(2) (ii)
  • provisions of Sections 200 to 204 Cr.P.C
  • Sections 200 to 204 Cr.P.C
  • Section 156(3) Cr.P.C
  • Section 190 Cr.P.C
  • Section 173 Cr.P.C
  • Section 200 Cr.P.C
  • Section 190(1) (b).15.
Smart Summary

Factual and Procedural Background

This petition was filed to quash proceedings against the petitioner, who is accused No.1 in CC. 82/89 on the file of the Munsif Magistrate, Chilkaluripet. A private complaint was filed by the 1st respondent on 2-5-1988. The Magistrate referred the complaint to the police under Section 156(3) Cr.P.C. The police investigated and, by a final report under Section 173 Cr.P.C dated 19-5-1988, stated that the complaint was "false." The Magistrate accepted that report and issued proceedings closing the case.

According to the complainant, a copy of the police report was served on 15-11-1988. On 2-1-1989 the 1st respondent filed a protest petition. On 10-3-1989 the Magistrate held that the Court had jurisdiction to take cognizance of the private complaint notwithstanding the earlier proceedings closing the case and acceptance of the s.173 report. The Magistrate then examined the complainant and witnesses and by order dated 30-3-1989 took cognizance of the offence. The petitioner seeks to quash those later proceedings.

Legal Issues Presented

  1. Whether a criminal Court (Magistrate) has jurisdiction to take cognizance of an offence on the basis of a private complaint after it has accepted a final police report under Section 173 Cr.P.C (filed pursuant to a reference under Section 156(3) Cr.P.C) and issued proceedings closing the case.
  2. Whether acceptance of a police report under Section 173 Cr.P.C is an administrative act (such that the prohibition in Section 362 Cr.P.C would not bar further proceedings), or a judicial act (such that once the Magistrate accepts the report and closes proceedings he cannot revisit the matter except by revision/appeal).

Arguments of the Parties

Petitioner's Arguments (Mr. Pattabhi)

  • The Magistrate, by accepting the police report under Section 173 and issuing proceedings closing the case, declined to take cognizance and exercised judicial power under Section 190 Cr.P.C.
  • Once an order of judicial character is made, it cannot be reviewed by the Magistrate via Sections 200 to 204 Cr.P.C because Section 362 Cr.P.C operates as an absolute prohibition against such review.
  • Authorities (including the Supreme Court in Kamalapathi v. State of W.B.) support the view that orders on a report filed under Section 173 are judicial in nature.

1st Respondent's Arguments (Mr. T. Bali Reddy)

  • Acceptance of the police report under Section 173 Cr.P.C is an administrative function and not a judicial one, therefore the bar under Section 362 Cr.P.C does not preclude the Magistrate from subsequently resorting to Sections 200 to 204 Cr.P.C and taking cognizance under Section 190(1)(a).
  • Relied upon the Full Bench decision in Emperor v. Hayat Fetehdin to support the administrative-character argument and cited other cases to show that, notwithstanding a negative police report, the Magistrate may follow Sections 200–204 or otherwise take cognizance on available material.
  • Also emphasised statutory and judicially articulated rights of an informant to be communicated with and heard when the police report is considered (relying on Section 173(2)(ii) and Bhagwant Singh v. Commissioner of Police).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
H.S. Bains v. State Describes alternatives available to a Magistrate on receipt of a report under Section 173 consequent to reference under Section 156(3): (i) take cognizance under s.190(1)(b) on the report; (ii) drop proceedings; or (iii) take cognizance under s.190(1)(a) after following Sections 200–204 Cr.P.C. The Court relied on this to explain that these alternatives exist but raised the question whether a Magistrate who has chosen one alternative (acceptance of the s.173 report and closing the case) can later resort to another (Sections 200–204) to take cognizance.
Emperor v. Hayat Fetehdin (Full Bench, Lahore High Court) Held that an order accepting a police report under Section 173 is administrative in nature; consequently police could prosecute under Section 211 IPC. Respondent relied on this decision to argue administrative character; the Court discussed it but found that the Supreme Court later rejected this approach in Kamalapathi.
Subba Reddy v. State (Division Bench of this Court) Interpreted the Lahore Full Bench decision and held that where a Magistrate released an accused on a police report under s.173 (i.e., acted judicially), a later complaint under s.211 could not be taken cognizance of under s.195(1). The decision was cited by the petitioner to support the judicial-character view; the Court recited the Division Bench's conclusion favorably for the petitioner's position.
Kamalapathi v. State of W.B. (Supreme Court) Rejected the view of the Lahore Full Bench and held that orders passed by a Magistrate on a report filed under Section 173 Cr.P.C form part of the judicial process (i.e., are judicial in character). The Court accepted this Supreme Court authority as correctly stating the law and used it to hold that acceptance of a s.173 report is judicial, not administrative.
Ram Ekabal v. Kapitdeo Rai (Patna High Court) In that case the Magistrate accepted a police report under Section 173 as insufficient and simultaneously directed registration of a protest petition as a complaint-petition. The Court held this case did not assist the 1st respondent because it was not a case where the Magistrate had resorted to Sections 200–204 after a s.156(3) reference; thus it was distinguishable.
Tula Ram v. Kishore Singh Affirms that despite a negative police report under Section 173 (pursuant to s.156(3)), the Magistrate has power to issue notice to the complainant, record statements of complainant and other witnesses and issue process under Section 204 Cr.P.C. The Court recognized this proposition as well-settled and not in controversy, but applied it within the framework that the Magistrate must not attempt to reopen a matter after having judicially closed it.
India Carat Pvt. Ltd. v. State of Karnataka Holds that a Magistrate is not bound by the police report and may take cognizance under Section 190(1)(b) on the basis of material disclosed during investigation. The Court relied on this to note that a Magistrate may take cognizance notwithstanding the police conclusion where material suffices, but distinguished that from revisiting a matter after judicially accepting and closing the case.
Bhagwant Singh v. Commissioner of Police Holds that when considering a police report under Section 173(2) the Magistrate must give notice to the informant/injured or relative and provide opportunity to be heard, including when the report is consequent to a reference under Section 156(3). The Court cited this to confirm that a complainant is entitled to notice and an opportunity to be heard when the police report is considered; failure to comply is a ground for revisional or appellate challenge, not for the Magistrate to reopen a closed matter.

Court's Reasoning and Analysis

The Court began by identifying the statutory framework: Section 190 Cr.P.C governs taking cognizance of offences, with sub-sections (1)(a), (1)(b) and (1)(c) dealing with cognizance on a private complaint, on a police report (charge-sheet) and on information from any person/suo motu respectively.

The Court explained the two procedural courses available to a Magistrate on receipt of a private complaint: (i) follow Sections 200–204 Cr.P.C to procure material and consider the complaint, or (ii) direct investigation by the police under Section 156(3). When the latter route is taken and a police final report under Section 173 is received, the Magistrate has several options: take cognizance under Section 190(1)(b) on the police report, decide there are insufficient grounds and drop proceedings, or take cognizance under Section 190(1)(a) after resort to Sections 200–204 on the original complaint. These alternatives were traced to H.S. Bains v. State.

The pivotal issue analysed was whether a Magistrate who has chosen one alternative (here, accepting the police report under Section 173 and issuing proceedings closing the case) may thereafter resort to another alternative (following Sections 200–204 and taking cognizance under Section 190(1)(a)). The 1st respondent argued acceptance of the s.173 report was administrative and thus reopenable; the petitioner contended the acceptance was judicial and therefore final vis-à-vis the Magistrate because Section 362 Cr.P.C bars review.

The Court examined competing precedents. It considered the Full Bench decision in Emperor v. Hayat Fetehdin, which treated acceptance of the report as administrative, but noted that the Supreme Court in Kamalapathi rejected that view and treated orders on s.173 reports as judicial. Accepting the Supreme Court's authority, the Court concluded that acceptance of a police report under Section 173 is an act performed after application of judicial mind and is judicial in character.

The Court further analyzed the proposition that a complaint survives despite the Magistrate accepting the police report and closing proceedings. Relying on the text and context of the proceedings, and on the description of the Magistrate's alternatives, the Court rejected the contention that the original complaint "survives" after the Magistrate has closed proceedings on acceptance of the s.173 report. The Court held that once proceedings are closed or dropped on acceptance of a s.173 report, the complaint is effectively effaced for purposes of further action by that Magistrate.

The Court also addressed procedural protections for complainants: Section 173(2)(ii) and the ruling in Bhagwant Singh require communication and an opportunity to be heard when the police report is considered; failure to comply with those requirements is a ground for revisional or appellate challenge, not for the Magistrate to reopen a case he has judicially closed.

Synthesizing the statutory scheme and authorities, the Court held that the acceptance of a negative police report and the issuance of proceedings closing the case are judicial acts. Once the Magistrate has exercised jurisdiction under Section 190 Cr.P.C and recorded an order accepting the report and closing proceedings, he is functus officio with respect to re-examining the same matter; any grievance must be pursued by revision or appeal. Section 362 Cr.P.C thus precludes the Magistrate from re-opening the matter by resort to Sections 200–204 after judicial closure.

Holding and Implications

CRIMINAL PETITION ALLOWED.

Holding: The Court held that the Magistrate had no power or jurisdiction to take cognizance of the offence on the basis of the private complaint after having accepted the negative police report under Section 173 Cr.P.C and having issued proceedings closing the case. The petition to quash the subsequent proceedings was allowed.

Implications: The direct consequence of this decision is that proceedings initiated by the Magistrate after he had accepted the police report and closed the case were quashed; the Magistrate could not reopen the matter by resort to Sections 200–204 Cr.P.C. Aggrieved parties retain the ordinary remedies of revision or appeal as available under law. The opinion applies existing authorities (including the Supreme Court's decision in Kamalapathi) to resolve the issue and does not purport to lay down a novel principle of law beyond that application.

    P.V Krishna Prasad v. K.V.N Koteswara Rao And Another

    1. This is a petition filed to quash the proceedings against the petitioner, who is accused No. 1 in CC. 82/89 on the file of the Munsif Magistrate, Chilkaluripet.

    2. The facts in brief are: The 1st respondent filed a private complaint against the petitioner and another for different offences before the Munsif Magistrate, Chilkaluripet, on 2-5-1988. After receiving the complaint, the Magistrate referred the same to the Police for investigation under Sec. 156(3) Cr.P.C The police after investigation filed a final report under Sec. 173 stating the complaint to be ‘false’ on 19-5-1988. Thereupon, the Magistrate issued proceedings closing the case by accepting the report of the police. Copy of the report of the police was served according to the complainant (Ist respondent), on 15-11-88 and thereafter on 2-1-1989 the 1st respondent filed a protest petition. After hearing the complainant, the Magistrate made an order on 10-3-89 holding that the Court has ample jurisdiction and power to take cognizance of the private complaint in-spite of the proceedings issued closing the case and accepting the report filed under Sec. 173 Cr.P.C Thereafter, the Magistrate examined the complainant and the witnesses and took cognizance of the offence by order dated 30-3-89.

    3. The main submission of Mr. Pattabhi, the learned counsel for the petitioner, is that the Court on receipt of the report under Sec. 173 pursuant to the reference under Sec. 156(3) to the effect that the complaint is ‘false’, has accepted it and issued proceedings closing the case. This means that the Court declined to take cognizance of the offence by exercising its power under Sec. 190 Cr.P.C which is judicial in nature. Therefore, when once it made an order-judicial in nature-it cannot review the same even by resorting to Sections 200 to 204 Cr.P.C by virtue of the absolute prohibition envisaged by Section 362 Cr.P.C

    4. Mr. T. Bali Reddy, the learned counsel for the 1st respondeat, on the other hand submitted that the acceptance of the report filed by the police under Sec. 173 Cr.P.C is an administrative function and therefore the bar imposed by Sec. 362 Cr.P.C is not attracted for purposes of taking cognizance of a private complaint after following the procedure under. Sections 200 to 204 Cr.P.C

    5. The short question, therefore, that falls for consideration is, whether the criminal Court has jurisdiction to take cognizance of an offence after accepting the final report under Sec. 173 filed by the police consequent upon reference under Sec. 156(3) Cr.P.C and issuing proceedings closing the case.

    6. It is Section 190 Cr.P.C that deals with taking cognizance of an offence. Sub-section (1) (a) relates to taking, cognizance upon a private complaint, (1) (b) upon a police report (charge-sheet) and (1) (c) upon information received from any person other than police or suo motu. On receipt of a private complaint, there are two courses open to the Magistrate to procure material for purposes of exercising his jurisdiction under Sec. 190 Cr.P.C They are (i) resorting to Sections 200 to 204 Cr.P.C or (ii) directing investigation by the police under Sec. 156(3) Cr.P.C or by some other agency. On receipt of the report, in cases of reference under Sec. 156(3), if it discloses an offence he may take cognizance of the offence under Sec. 190(1) (b) and issue process. This he may do without being bound in any manner by the conclusion arrived at by the police in their report, if there are sufficient grounds in the light of the material. He may even decide that there are no sufficient grounds for proceeding further and drop action. It is equally open to the Magistrate to take cognizance of the offence under Sec. 190(1) (a) on the basis of the original complaint after following the procedure covered by Sections 200 to 204 Cr.P.C These are the different courses open, as laid down by the Supreme Court in H.S Bains v. State (1), to the Magistrate on receipt of a report under Sec. 173 pursuant to the reference under Sec. 156(3) Cr.P.C These are all, thus, different alternatives available to the Magistrate. The question that confronts in the instant case is, whether the Magistrate having chosen one alternative can have resort to the other alternative, in as much as the Magistrate having accepted the report under Sec. 173 to the effect that the complaint is ‘false’ and issued the proceedings closing the case has resorted to Sections 200 to 204 and took cognizance of the offence under Sec. 190(1) (a) Cr.P.C

    7. Mr. Bali Reddy, the learned counsel for the 1st respondent, has taken me through a decision of the Full Bench of Lahore High Court in Emperor v. Hayat Fetehdin (2) in support of his contention that the order made on a report filed under Section 173 is administrative in nature and therefore even after acceptance of the report that the complaint is ‘false’ the Magistrate has jurisdiction to resort to the provisions covered by Sections 200 to 204 and take cognizance of the offence under Sec. 190(1) (a) Cr.P.C That is a case where a report was made direct to the police and after investigation the police filed a report under Section 173 Cr.P.C that the complaint is ‘false’ and this was accepted by the Magistrate. Later thereto, the police sought to prosecute the complainant under Section 211 IPC. The complainant in those circumstances sought to invoke the aid of Sec 195 (1) (b) Cr.P.C contending that the order accepting the police report under Section 173 is by the Court exercising its judicial powers and therefore if at all it is for the Court to initiate prosecution and not for the police. Dealing with that contention, the Full Bench held that the order accepting the police report under Section 173 Cr.P.C is administrative in nature and therefore police are as well competent to prosecute under Section 211 IPC.

    8. Mr. Pattabhi, the learned counsel for the petitioner, submitted that this decision of the Full Bench was cited before a Division Bench of this Court in Subba Reddy v. State(3) and after making a reference to the sa???re, this Court held:

    “Where, therefore, on a false complaint the accused was arrested but was released by the Magistrate on a report by the Police under Section 173, and later the accused filed a complaint under Sec. 211 of the Penal Code against the complainant, the complaint of the accused cannot be taken cognizance of under Section 195(1) (???) because the Magistrate acted in a judicial capacity in releasing the accused and hence, the complaint by the accused in relation to a proceeding in a Court for which a complaint by Magistrate is nece-sary.”

    9. It is further pointed out by Mr. Pattabhi that the Supreme Court in Kamalapathi v. State of W.B((4)) rejected the view of the Full Bench of the Lahore High Court in paragraph-35 and held that the orders passed by the Magistrate on a report filed under Sec. 173 Cr.P.C cannot be given a character different from the entire judicial process. I have gone through the decision of the Supreme Court and satisfied that Mr. Pattabhi had made the submission rightly since that is the view taken by majority of the learned Judges, and accordingly hold that the order of the Magistrate accepting the report filed under Sec. 173 Cr.P.C, is one made by applying the judicial mind and therefore not an order of administrative nature.

    10. Mr. Bali Reddy drawing my attention to the observations of Chinnappa Reddy, J., in Bains's case (1) supra namely,

    “the mere fact that he (Magistrate) had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint…..”

    11. Sought to contend that inspite of acceptance of the report under Sec. 173 and issuance of the proceedings closing the case, the complaint made under Section 200 Cr.P.C survives and does not get effaced thereby warranting some orders for disposal of the complaint. The contention is obviously misconceived since the proceedings issued closing the case patently refer to the complaint. Apart from this, the very preceding sentence to the observation quoted supra runs:

    “the Magistrate after receiving the police report, may without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him.”

    12. When once the proceedings are closed or dropped while accepting the report filed under Sec. 173 Cr.P.C it cannot be said that the complaint will not have the effect of total effacement and survives for being disposed of.

    13. Mr. Bali Reddy, next invited my attention to a decision of the Patna High Court in Ram Ekabal v. Kapitdeo Rai((5)) in support of his contention that the complaint filed under Section 200 Cr.P.C survives inspite of the orders passed on the report filed under Section 173 Cr.P.C That is a case where the Magistrate while accepting the police report under Section 173 Cr.P.C to the effect that the case is of insufficient evidence had simultaneously directed registration of the protest petition filed by the complainant at a complaint-petition. That is not a case where the Magistrate had resorted to the provisions of Sections 200 to 204 Cr.P.C in pursuance of the original complaint referred to for investigation to the police under Sec. 156(3). This decision, therefore, is of no help to the 1st respondent.

    14. The proposition of law laid down and relied upon by Mr. Bali Reddy in Tula Ram v. Kishore Singh (6) that inspite of the negative report filed by the police under Sec. 173 pursuant to the reference under Sec. 156(3) the Magistrate has power to issue notice to the complainant, record his statement and of other witnesses and issue process under Sec. 204 Cr.P.C is beyond controversy and well settled. Equally so is the decision in India Carat Pvt. Ltd. v. State of Karnataka (7) holding that the Magistrate is not bound by the report and inspite of that on the basis of the material disclosed during the course of investigation he can take cognizance of the offence under Section 190(1) (b).

    15. Looking the matter even from a different angle, taking cognizance of an offence or refusing to take cognizance is an action to be done under the provisions of Sec. 190 Cr.P.C The Magistrate will begin applying judicial mind from the stage a charge-sheet is filed, or a report under Sec. 173 Cr.P.C, is submitted pursuant to a reference made under Sec. 156(3) on the basis of a private complaint. While exercising the judicial function as to or not to take cognizance of the offence in either case basing on the charge-sheet or on the report under Sec. 173 Cr.P.C he goes through the material submitted along thereto. While so applying the mind in discharge of the judicial function, the Magistrate may or may not take cognizance and the moment he records his order, he is ceased of that matter and the remedy open to the aggrieved party is only by way of a revision or appeal. Neither acceptance nor non-acceptance of the police report can be termed as an administrative function since it is after application of judicial mind and examination of the material submitted along with the report under Sec. 173 Cr.P.C the Magistrate makes the order under Section 190 Cr.P.C After exercising the jurisdiction under Section 190 Cr.P.C the Magistrate has no power to review the order in view of the provisions covered by Sec. 362 Cr.P.C

    16. Mr. Bali Reddy pointed out that as per Sec. 173(2) (ii) the 1st respondent—complainant is entitled to be communicated of the action taken by the police in pursuance of the reference under Section 156(3) Cr.P.C Apart from Sec. 173(2) (ii) as submitted by Mr. Bali Reddy, the Supreme Court has laid down in Bhagwant Singh v. Commr. of Police ((8)) that the Magistrate must give notice to the informant, injured or relative of the deceased and provide him an opportunity to be heard at the time of consideration of the report filed under Sec, 173 (2), which may be resultant of a report made direct to the police or consequent to the reference under Section 156(3) Cr.P.C That is a case where the report of the police is the resultant of a report made direct to the police and surely that benefit to the complainant cannot be denied even if it is one consequent upon the reference under Section 156(3) Cr.P.C Any failure to comply with this is definitely a matter to be agitated before a revisional or appellate forum, and absolutely not before the Magistrate that failed in this regard.

    17. For the foregoing reasons, I hold that the Magistrate has no power or jurisdiction to take cognizance of an offence on the basis of a private complaint that resulted in submission of the report under Sec. 173 consequent upon reference under Sec. 156(3) when once he has accepted the negative police report and issued proceedings closing the case. However, the aggrieved party is at liberty to take recourse to a revision or appeal as the case may be according to law. The Criminal petition is accordingly allowed.

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    P.V Krishna Prasad v. K.V.N Koteswara Rao And Another
    (Aug 6, 1990)