S.S Sandhawalia, C.J:— Can a Magistrate, even after accepting the final report filed by the police, still take cognizance of an offence upon a complaint or a protest petition on the same or similar allegations of fact? Is the somewhat tangled common question of law in this set of four cases necessitating this reference to the Division Bench.
2. As is manifest, the issue aforesaid being pristinely legal facts would pale into relative insignificance. These may, therefore, be noticed with relative brevity from Criminal Misc. No. 4865 of 1980 Munilal Thakur v. Naval Kishore Thakur. A first information report alleging offences under Ss. 448, 323 and 436 of the Penal Code was recorded against the petitioners in Police station section. After investigation, the police submitted a final report to the court of the Magistrate on 27th March, 1979 with an endorsement that the case was false. It is however common ground that much earlier a protest petition has been filed by the informant complainant on 8th Dec. 1978 in the court. After the receipt of the final report, the learned Magistrate accepted the same on 3rd Jan. 1980. Later however, the informant complainant was examined on solemn affirmation on 28th Jan. 1980 and the protest-cum-complaint petition was also inquired into under S. 202 of the Cr. P.C (hereinafter referred to as the ‘Code’) and six witnesses were also examined, on behalf of the complainant. By a detailed order dated 29th Aug. 1980 the learned Additional Chief Judicial Magistrate opined that sufficient ground for proceeding against the petitioners for alleged offences under Ss. 147, 148, 149, 323 and 436 I.P.C had been made out and, accordingly, he took cognizance thereof and issued processes against the petitioners. Aggrieved thereby, the present criminal petition was preferred challenging the cognizance itself. These cases originally came up separately before two learned single Judges of this Court before whom firm reliance was placed on Chandra Shekhar Chaudhary v. Raj Kishore Jha, 1982 BLJ 627 for contending that even after the acceptance of a final report the Magistrate was not in any way debarred from taking cognizance on the complaint-cum-protest petition, alleging similar facts and circumstances. Expressing some doubts about the view in Chandra Shekhar Chaudhary's case and noticing a continuing conflict of precedents in the Court, the matter was referred to a larger Bench.
3. At the very outset, I may perhaps notice that the legal issue before us already suffers from such a plethora of precedents that it is unnecessary and, indeed, it would be wasteful to now launch off a dissertation on first principles or on the language of any of the relevant sections of the Code of Criminal Procedure. This would be the more so as I am inclined to the view that the matter is now concluded by a recent binding precedent.
4. Now adverting to the case law of the final Court itself, one need not delve beyond Abdhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 : (1968 Cri LJ 97). That was a case from this Court wherein their Lordships set at rest the then raging controversy on the point as to whether the Magistrate could direct the police to submit a charge sheet when the police, after investigation into a cognizable offence, has submitted a final report under S. 173 of the ‘Code’. While answering that question in the negative by holding that the Magistrate had no such power to compel the filing of a charge sheet, their Lordships were, however, careful in pointing out that the Magistrate's power to himself take cognizance of the offence was in no way fettered. It was observed as under (Para 7):
“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 the 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 invoked 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 an offence has been committed.”
5. What, however, calls for pointed notice is that their Lordships particularly observed as under with regard to complaints or protest petitions:
“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 those cases, has chosen to treat the protest petitions, filed by the respective respondent 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”
6. The aforesaid observation would leave no manner of doubt that even in cases where the police choose to file a final report, the Magistrate's power to take cognizance of the offence on a complaint or protest petition is in no way affected or cut down. Yet, again in Tula Ram v. Kishore Singh, (1977) 4 SCC 459 : AIR 1977 SC 2401 : (1978 Cri LJ 8) a closely analogous question, namely, whether or not a Magistrate, after receiving a complaint and after directing investigation under S. 156(3) of the Code, in which the police filed a final report that no offence was made but, could still proceed to take cognizance of the offence on the basis of the complaint and the statements of witnesses made in support thereof. After exhaustive discussion of principle and precedent, their Lordships, amongst others laid down the following proposition;
“4. Where a Magistrate orders investigation by the police before taking cognizance under S. 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under S. 190 as described above.”
7. In Tulla Ram's case the police had submitted a final report that no case was made out against the accused. Yet their Lordships held that the case was governed by the aforesaid proposition and, the Magistrate's power to examine witnesses on the complaint and thereafter to issue process against the accused under S. 204 was squarely within the four corners of the law.
8. It would thus be plain that, if not directly, but strongly, by way of analogy the authoritative exposition goes wholly in favour of the opposite party's stand. This tenor is further buttressed by H.S Bains v. State (Union Territory of Chandigarh), (1980) 4 SCC 631 : AIR 1980 SC 1883 : (1980 Cri LJ 1308). Therein, Chinnappa Reddy, J., speaking for the Court summarised the law as under (Para 6):
“Thus, a Magistrate who on receipt of a complaint, orders an investigation under S. 156(3) and receives a police report under S. 173(1), may thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under S. 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under S. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under S. 200. If he adopts the third alternative, he may hold or direct an inquiry under S. 202 if he thinks fit thereafter, he may dismiss the complaint or issue process, as the case may be.”
9. In this Court the question came up for a detailed consideration before the Division Bench in Chandra Shekhar Chaudhary's case (1982 BLJ 627) (supra). In a lucid and an exhaustive judgment, P.S Sahay, J., speaking for the Bench, answered the question in the affirmative and overruled the contrary view, in Bindeshwari Singh v. State (Criminal Misc. No. 2672 of 1979 decided on 23rd May, 1980).
10. Since doubts have yet again been raised against the aforesaid view, it suffices to point out that these have now been set at rest by the dictum of their Lordships in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, (1982) 3 SCC 510. However, to arrive at the authoritative, meaningful import of the very brief observation therein, it is necessary to notice the context in which it is made. In Bhuneshwar Prasad Sinha v. State of Bihar, 1981 BLJ 336 : (1981 Cri LJ 795), a question identical with that before us was raised before a learned single judge. Whilst quashing the cognizance of the offence, he answered the question in the following terms:
“If the Magistrate takes cognizance on the basis of the complaint petition then in that case he should not accept the final form. If once he accepts the final form then on the same facts constituting the offence, he is not entitled to take cognizance on the basis of the complaint petition or protest petition because that will result in two inconsistent orders passed by the Judicial Officer.”
11. The rationale for the above finding, was given by the learned single Judge in the following terms by an apparent reliance on Abhinandan Jha's case (1968 Cri LJ 97) (supra):
“In that case it has been held by the Supreme Court that if-the Magistrate agrees with the opinion of the police he may accept the final report and close the proceedings. It will be deemed that the proceedings against the accused persons in respect of the facts constituting the offence have been closed by the Magistrate in a judicial proceeding. If it is so, such proceeding can only be set aside in revision by the higher authority. Unless and until the order is not set aside, the Magistrate is not entitled to take cognizance on the basis of the complaint petition or protest petition in respect of the same facts constituting the offence as mentioned in the final form. In the present case, it is clear from the order dt. 6th Dec. 1978, that the final form was accepted by the court earlier. If it is so, then the Magistrate was not justified in taking cognizance in respect of the same facts constituting the offence which were mentioned in the final form. In order to check the litigation, it is necessary that when a judicial order is passed by accepting the final form such order should not be set aside by the Magistrate by taking cognizance on the basis of the complaint petition.”
12. An appeal against this very judgment was taken to the Supreme Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha ((1982) 3 SCC 510) (supra) which came up before a Bench presided over by Chinnappa Reddy, J., who, as noticed, was a party to the judgment in the case of H.S Bains (1980 Cri LJ 1308) (supra). Categorically reversing the High Court's order and virtually assuming the matter to be axiomatic their Lordships summarily disposed of the matter as under:
“The High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a police report. The order of the High Court is set aside. The matter is remitted to the Chief Judicial Magistrate, Patna for disposal according to law. If the accused have any further objections to raise, they may do so before the Chief Judicial Magistrate.”
13. In the present references to the larger Bench, the tenor of the view expressed by the learned single Judges is in terms similar and identical with that of the learned single Judge of this Court in Bhuneshwar Prasad Sinha's case (1981 Cri LJ 795) (supra).
14. It seems to me to be somewhat plain that all dissentient voices on the point seem to have now been silenced by the authoritative though categoric dictum of the final Court in Gopal Vijay Verma's case (supra). Indeed, the learned counsel for the petitioners, when faced with the above, were somewhat despondent and lukewarm in their stand and no attempt even to distinguish the same was made.
15. To conclude, the answer to the question posted at the outset is rendered in the affirmative and it is held that a Magistrate, even after accepting the final report, can still take cognizance of the offence upon a complaint or a protest petition on same or similar allegations of fact.
16. Once it is held as above, all the four criminal miscellaneous petitions must fail. It is common ground that they are, as yet, directed merely against the cognizance taken by the respective Magistrates on complaint or protest petition. In view of the aforesaid conclusion, no challange can be laid thereto at the threshold stage and, consequently, the same are hereby dismissed.
17. Surendra Narain Jha, J.:— I entirely agree.
18. Petitions dismissed.
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