:- This revision is directed against order dt. 30-1-1985 recorded by Sri R. D. Pandey, learned Judicial Magistrate, Kanpur Dehat in Criminal Case No. 132 of 1985 arising out of Crime No. 27 of 1984 by which the learned Magistrate took the cognizance of the offence under S. 190(1)(c) of Cr. P.C. and summoned the revisionist to face trial under S. 306, I. P. C. The impugned order runs as below : -

"This is an F. R. in.case Crime No. 27 of 1984 u/s. 306, I. P. C. P. S. Sheorajpur against accused Ravish Chandra, Kishori Lal, Smt. Vindansni, Km. Prem Sakhi and Satish Chandra.

The complainant Balak Ram of aforesaid F. R. has moved a protest note along with affidavit. It is alleged the F. R. has been submitted collusively by police.

Taking into consideration the F. I. R., medical report and protest note, I am of the opinion that there exists a prima facie case against accused u/s. 306, IPC and F. R. is not fit to be accepted.

Hence Rejected.

Taking cognizance u/s. 190(1)(c) of Cr. P. C. against accused Ravish Chandra, Kishori Lal, Smt. Vindvasni, Km. Prem Sakhi and Satish Chandra u/s. 308, I hereby summon above-mentioned accused. Let a case be registered u/s. 306, I. P. C.

Issue summons to accused. Fixing 16-3-85 for appearance."

2. On behalf of revisionist, it was argued that it was not open to the learned Magistrate to have taken the cognizance of the offence against revisionist under S. 190(1)(c) of Cr. P. C. (Act No.2 of 1974) without examination of complainant under S. 200, Cr. P.C. and of the witnesses under S. 202, Cr. P.C. Section 190 of Cr. P. C. reads as below : -

"190. Cognizance of offences by Magistrate : -

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-sec. (2) may take cognizance of any offence : -

(a) Upon receiving a complaint of facts which constitute such offence :

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) ......................."

3. The contention was that in the instant case, cognizance cannot be treated to have been taken by the Magistrate on a 'police report' but upon 'information received from any person other than a police officer' or 'upon his own knowledge'.

4. In case the cognizance is taken by Magistrate on a "police report", he was not under the necessity to have examined the complainant or the witnesses under S. 200 or 202 of Cr. P. C. prior to the summoning of the accused. The argument further developed was that the police did not submit a challani report as contemplated by S. 173(2) of Cr. P. C. A mere look at S. 173(2), Cr. P. C. shows the requirements of any report in the prescribed form mentioned therein which need not be repeated here.

5. 'Police report' has been defined in S. 2(r) of the said Code to mean a report forwarded by a police officer to a Magistrate under sub-sec. (2) of S. 173 of aforesaid Code. It does not contemplate a report under S. 169, Cr. P. C which empowers the investigator to release me accused when evidence is deficient. Such report may be accepted or rejected by the Magistrate concerned but it could not constitute a report on which cognizance could be taken by the Magistrate under S. 190(1)(b) of Cr. P. C.

6. The Magistrate, on perusal of police report under S. 169, Cr. P. C., medical report and protest petition dt. 18-1-1985 of informant Balak Ram along with his affidavit, summoned the revisionist and his co-accused straightway. Such procedure was illegal was pointed out by this Court in Shaukat Ali v. State of U. P., 1978 All Cri C 391 : (1978 All LJ 988). In that case also the police had submitted a final report (report under S. 169, Cr. P. C.) and the complainant filed a protest petition assailing the correctness of the final report. The Magistrate took the cognizance of the offences under Ss. 420/468, IPC and ordered the police to make further investigation in the matter. Such order was upheld on the ground that while exercising the powers under S. 202, Cr. P. C. the Magistrate could postpone the issue of process and direct the investigation into the matter by police also in order to decide as to whether there was sufficient ground for proceeding against the accused or not. In that event, an obligation was cast on the Magistrate to follow the procedure prescribed under Ss. 200 and 202 of Cr. P. C.

7. It appears that in that case the report of the police submitted under S. 169, Cr. P. C., was accepted by the Magistrate but on the protest petition by complainant, Chief Judicial Magistrate directed a reinvestigation of the matter.

8. The next authority relied upon by learned Advocate for revisionist has been reported in Chandra Shekhar v. State of U. P., 1979 All Cri C 38 : (1978 All LJ 1286) (DB). In that case also the police submitted a report under S. 169, Cr. P. C. and forwarded it to the Magistrate along with F. I. R. (under S. 154, Cr. P. C.), the medical report. However, the Magistrate took cognizance of the offence under S. 190(1)(c), Cr. P. C. It was further held that S. 190(1)(b), Cr. P. C. contemplates the police report under S. 173(2), Cr. P. C. If the Magistrate takes cognizance on a report under S. 169, Cr. P. C. and the papers sent by police officer along with that report, cognizance could have been taken by the Magistrate only under S. 190(1)(c), Cr. P. C.

9. Such matter came up for consideration in Ram Adhar v. State reported in 1981 All WC 570 : (1981 Cri LJ 1321) when the aforesaid view was dissented from. It was observed that the word 'police report' under S. 190(1)(b) could not be restricted to the police report as mentioned in the definition clause of S. 2(r) of Code of Criminal Procedure i.e. the report under S. 173(2), Cr. P. C. The functions of the Magistrate and police were different. Police could be influenced by so many considerations other than judicial. Even in a case where the police submitted a final report under S. 169, Cr. P. C., if the Magistrate after perusing the facts found in the course of investigation from the case diary, he could reach a conclusion different from that of the investigating agency. It was clearly open to the Magistrate not to agree with the conclusion in the final report and to take cognizance of the case. Reliance was placed upon Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 : (1968 Cri LJ 97). It was laid down in that case that even if the Magistrate, after perusal of final report submitted by police, opined that the facts constitute an offence, he could take cognizance of the offence under S. 190(1)(b) of Cr. P. C. A similar view was taken by the Supreme Court in H. S. Bains v. The State (Union Territory of Chandigarh), 1980 All WC 619 : (1980 Cri LJ 1308). In that case also, it was held that on receiving police report, Magistrate could take cognizance of the offences under S. 190(1)(b) and straightway issue process. The earlier authorities of this Court were not followed as good law.

10. In Qasim v. State of U. P., 1984 UP Cr R 169 : (1984 Cri LJ 1677), the police submitted a report under S. 169 of Cr. P. C. Investigator opined that it was not a fit case to send the accused for trial. However, the Magistrate disagreed with that view and after perusal of the case diary, protest petition and other papers, he issued process against the accused under Ss. 147, 148, 324, 323, 307, IPC. The contention that the order was illegal and without jurisdiction as complainant was not examined before issuing the warrant was repelled. Learned Judge also relied upon Phulgend v. State, 1978 All Cri C 380 where it was held that Magistrate was not bound to treat the protest petition as a complaint. Gajadhar Singh v. Mahesh Chandra, 1981 All Cri R 218 : (AIR 1981 NOC 206) was also cited in support of the view that even though there may be a protest petition against the police report under S. 169, Cr. P. C. the case was cognizable by Magistrate under Ss. 190(1)(b) and not 190(1)(a).

11. In Basudeo v. State of U. P., 1984 UP Cr R 57 : (1984 All LJ 364), it was held that even assuming that the protest petition filed in the instant case fulfilled the requirement of the definition of word 'complaint' under the Cr. P. C. and the Magistrate applied his mind to the contents of the petition, it could not be said that he has taken cognizance under S. 190(1)(a), Cr. P. C. as he had not followed the procedure for proceeding in a particular way as indicated in the subsequent provisions of Chap. XV of Cr. P. C. R. R. Chari v. State of U. P., AIR 1951 SC 207 : (1951 (52) Cri LJ 775), was cited in support of that view.

12. In the instant case, the protest petition did not satisfy the requirement of a complaint as defined in S. 2(d) of Cr. P. C. which reads as below : -

"(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."

13. Petitioner did not mention the names of all the accused nor of the witnesses etc. in the petition. The mere fact that the Magistrate wrongly observed in the order that he was taking cognizance under S. 190(1)(c) of Cr. P. C. could not vitiate the proceedings when the case clearly falls under S. 190(1)(b) of Cr. P.C.

14. In H. S. Bains v. State (Union Territory of Chandigarh), 1980 All WC 619 : (1980 Cri LJ 1308) (supra) proceedings were initiated on a complaint. Magistrate did not take cognizance on that complaint but ordered investigation by police under S. 156(3) of Cr. P. C. On completion of investigation, police reported that the case of complainant was not true and must be dropped. However, the Magistrate disagreed with the conclusion of the police and took cognizance of the case under Ss. 448, 451 and 506, IPC and directed the issue of precess straightway without examination of the complainant or witnesses. This procedure was upheld. It was further observed at page 622 (of All WC) : (at Pp. 1311-12 of AIR) :-

"..............S. 190(1)(c) was never intended to apply to cases where there was a police report under S. 173(1). We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the Magistrate and the police arrived at different conclusions from the facts. The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under S. 307, IPC the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under S. 324, IPC only and he may take cognizance of an offence under S. 324 instead of S. 307. Similarly, if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. It would not be said in such a case that he was taking cognizance on suspicion."

15. In Bhagwant Singh v. Commr. of Police, reported in AIR 1985 SC 1285 : (1985 Cri LJ 1521) it was pointed out that in cases initiated on first information report lodged by informant under S. 154(2) of Cr. P. C., if the officer in charge of the police station refuses to take cognizance, he was obliged to inform the first informant that his case would not be investigated under S. 173(2)(ii) of Cr. P. C. The investigator was obliged to communicate the information, the action taken by him, and the report forwarded by him to the Magistrate. If the Magistrate refuses to take cognizance on such first information report and the report of investigator, the informant has a right to be heard at the time of consideration of such report. It was further held that on the principles of natural justice even an injured person who not be an informant, could appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. When the investigation is not complete on a report as sent to the Magistrate by investigator under S. 170, Cr. P. C., the Magistrate could take cognizance of the offence under S. 190(1)(b) of Code of Criminal Procedure. Similarly, when the facts disclosed by a police report to constitute an offence, the case is neither covered by S. 190(1)(a) nor S. 190(1)(c) and must fall under S. 190(1)(b) even though such report may not be a report within the meaning of S. 173(3)(ii) of Cr. P. C.

16. So, there was nothing illegal on the part of Magistrate in issuing a process straightway on perusal of case diary, medical report and other papers.

17. Thus, the revision is devoid of force and is dismissed. Ad interim order dt. 26-3-1985 is vacated herewith.

18. Send the record expeditiously to the Court concerned for a quick disposal.

Revision dismissed.