J.C Gupta, J.:— Doubting the correctness of a Single Judge decision in the case of Moahabbat Ali v. State of U.P reported in 1985 UP Cri R 264 : (1984 All LJ NOC 31). Hon'ble S. Harkauli, J. has referred the following question for consideration by a larger Bench:
“Whether the view taken in the aforesaid case of Mohabbat All is correct?’
2. By the order of the Hon'ble the Chief Justice, the matter has been assigned to this Bench.
3. Before we start our discussion on the aforesaid question, We may first put in brief facts of this case. On an application moved by Smt. Vimala Devi, the Magistrate in exercise of powers under Section 156(3), Cr. P.C directed the police to register the case and investigate the same. Consequently an F.I.R under Sections 467/468/419/420/364 and 392, I.P.C was registered and investigated. On completion of investigation, police for warded a final report to the Court of the concerned Magistrate. Feeling aggrieved, the complainant Smt. Vimala Devi filed objections in the form of ‘Protest Petition’ against the acceptance of final report. Along with the said petition, she also filed her own affidavit and affidavits of witnesses Ram Charan and Mata Prasad. It further appears that the learned Magistrate, on the basis of material on record came to the conclusion that there was sufficient ground to proceed against the applicants and issued process against them under Section 204 of the Code of Criminal Procedure. Thereafter, an application on behalf of the applicants was moved before the Magistrate for recalling the summoning order dated 7-7-97. This application was however rejected by the learned Magistrate by the order dated 21-10-99 holding that the applicants had no right of hearing before passing of the summoning order and as cognizance has been taken under Sec tion 190(1)(b). Cr. P.C the order of summoning was amenable to revision. The applicants then preferred before the Session Judge against the aforesaid order dated 29-10-99. The revision has also been dismissed by the learned Session Judge by the impugned order dated 15-5-2000. The applicants have now approached this Court for invoking in herent powers of the Court under Section 482, Cr. P.C seeking quashing of the sum moning order dated 7-7-97.
4. When this application was taken up for admission on 25-5-2001 by this Court, it was urged on behalf of the applicants that they have been summoned under Section 364, I.P.C also which offence is triable ex clusively by the Court of Session, yet before issuing process the learned Magistrate did not record statements of all the witnesses as required by the proviso to Section 202(2), Cr. P.C In support of this contention reliance was placed upon a single Judge decision of this Court in Mohabbat All's case, (1984 All LJ NOC 31) (supra). The facts of that case were that one Mohammad Sharif filed a complaint under Section 395/397, I.P.C against Mohabbat Ali. After investigation final report was submitted by the police. On receipt of Protest application from the complainant, the learned Magistrate summoned the accused persons to stand their trial under Section 395/397, I.P.C The learned Single Judge allowed the said revision and quashing the order of summoning on the holding that charge under Section 395/397. I.P.C is exclusively triable by the Court of Session and as proviso to Section 202(2) of the Code of Criminal Procedure lays down that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath but that procedure was not adopted by the learned Magistrate before passing the order of summoning.
5. Hon'ble S. Harkauli, J. hearing the present application expressed the view that Section 202 (falling under Chapter XV) ap plied only to a case instituted upon a complaint and cognizance taken under Section 190(1)(a) and not to cases covered by Section 190(1)(b), Cr. P.C and thus found him self unable to agree with the view expressed in Mohabbat All's case, (1985 UP Cri R 264 : 1984 All LJ NOC 31) (supra). Accordingly the Hon'ble Judge has referred the above said question for consideration by a larger Bench.
6. Chapter XTV of the Code of Criminal Procedure deals with the conditions requisite for initiation of proceedings. For the purpose of this case, we are concerned with Section 190(1) alone which is reproduced below:
“190. Cognizance of offences by Magistrate:— (1) Subject to the provisions of this Chapter, and Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (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.”
7. There are four more methods of taking cognizance of offences by the Court competent to try the same. The Court called upon to take cognizance of the offence must ap ply its mind to the facts placed before it either upon a police report or upon a complaint or in some other manner the Court came to know about it and in the case of Court of Session upon commitment of the case by the Magistrate. [vide A.R Antulay v. R.S Nayak, (1984) 2 SCC 500 : (AIR 1984 SC 718)].
8. When a Magistrate receives a com plaint or an application under Section 156(3), Cr. P.C which otherwise tantamounts to complaint under Clause (d) of Section 2 of the Code, there are two courses open to him. He may take cognizance under Section 190(1)(a) by applying his mind to the facts of the case. In that event he has to proceed in the manner provided in Sections 200 and 202, Cr. P.C By virtue of Section 200 he is required to examine the complainant and the witnesses present, if any. If the Magis trate finds that there is sufficient ground for proceeding, he may issue process under Section 204. However, if the Magistrate is not satisfied, he may either dismiss the complaint under Section 203, Cr. P.C or post pone the issue of process and take recourse to Section 202 which provides that he may inquire into the case himself or may direct an investigation to be made by a police of ficer or such other person as he thinks fit for the purpose of deciding whether or not there are sufficient grounds to proceed. But if the offence is triable exclusively by a Court of Session, the Magistrate cannot make a direction for investigation. It is only where the Magistrate decides to hold the inquiry himself that the proviso to sub-section (2) of Section 202, which we extract below, would come into operation:
“Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.”
9. The other course open to the Magistrate is that instead of taking cognizance, he may send the complaint/application under Section 156(3), Cr. P.C for police investigation. If the course is adopted, the police will have to investigate the matter as per the procedure laid down in Section 157 onwards. If upon investigation the police came to the conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify the forwarding of accused for trial and submitted final report for dropping the proceedings, following courses are open to the Magistrate and he may adopt any one of them as the facts and circumstances of the case may require:
(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant;
(II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed;
(III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or
(IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr. P.C and thereafter decide whether complaint should be dismissed or process should be issued.
10. The Apex Court in Abhinandan Jha v. Dinesh Misra, AIR 1968 SC 117 held that on receiving final report it was not within the powers of the Magistrate to direct the police to submit a charge sheet but it is open to him to agree or disagree with the police report. If he agrees that there is no case made out for issuing process, he may accept the report and drop the proceedings. He may come to the conclusion that further investigation is necessary in that event he may pass an order to that effect. If ultimately the Magistrate is of the opinion that the facts set out in the police report constitute an offence, he can take cognizance of the offence, notwithstanding the contrary opinion, expressed in the police report. It was observed there in that the Magistrate in that event could take cognizance under Section 190(1)(c) of the Code. The reference to Section 190(1)(c) was a mistake for Section 190(1)(b) and this has been pointed out in a later decision of H.S Bains v. State, (1980) 4 SCC 631 : AIR 1980 SC 1883.
11. In H.S Bains, ((1980) 4 SCC 631 : AIR 1980 SC 1883) (supra) it was held by the Supreme Court that the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses expressed in the police report submitted to the Magistrate under Section 173(2), Cr. P.C The Magistrate 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. In that case it was observed : “If a complainant states the relevant facts in his compliant and alleges that the accused is guilty of an offence under Section 307, Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under Section 324, Indian Penal Code only and he may take cognizance of an offence under Section 324 in stead of Section 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 Magis trate 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 go, it would be on the basis of the statement 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 con clusions arrived at by the police.”
12. In another decision in India Carat Pvt. Ltd. v. State of Karnataka, (1989) 2 SCC 132 : AIR 1989 SC 885 (890), it was held as under:
The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusions arrived at by the investigation officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropplltan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.”
13. In the case of Tularam v. Kishore Singh, (1977) 4 SCC 459 : AIR 1977 SC 2401, it was held that if the police, after making an investigation, sent a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of the case under Section 190(1)(b) on the basis of material collected during investigation and issue process or in the alternative he could take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he was of opinion that the case should be proceeded with.
14. From the aforesaid decisions, it is thus clear that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:—
(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or
(II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or
(III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or.
(IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr. P.C and thereafter decide whether complaint should be dismissed or process should be issued.
15. Where the Magistrate decides to take cognizance of the case under Section 190(1)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, In such a situation the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code, and consequently the proviso to Section 202(2), Cr. P.C will have no application. It would however be relevant to mention that for forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present if any under Section 200.
16. A plain reading of sub-section (2) of Section 202 with the proviso attached there to makes it clear that question of applying the proviso will arise only in cases where the Magistrate before taking cognizance of the case opts to hold the inquiry. This matter was thoroughly examined by the Apex Court in the latest decision in Rosy v. State of Kerala, (2000) 1 JT (SC) 84 : ((2000) 2 SCC 230 : AIR 2000 SC 637).
17. It was observed as under in paragraph 37:
“Therefore, the question of complying with the proviso to sub-section (2) of Section 202 would arise only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry and secondly in such inquiry by him, If he decides to take evidence of witnesses on oath. But the object and purpose of holding inquiry or investigation under Section 202 is to find out whether there is sufficient ground for proceeding against the accused or not and that holding of inquiry or investigation is not an indispensable course before issue of process, against the accused or dismissal of the complaint. It is an enabling provision to form an opinion as to whether or not process should be issued and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath.”
18. It was further observed as under in paragraph 40 of the report;
“In this view of the matter it is apparent that the High Court erred in holding that there was breach of mandatory provisions of the proviso to Section 202(2) of the Code and the order of committal is vitiated and, therefore, requires to be set-aside. The High Court failed to consider proviso to Section 200, particularly proviso (a) to the said section and also the fact that inquiry under Section 202 is discretionary for deciding whether to issue process (under Section 204) or to dismiss the complaint (under Section 203). Under Section 200, on receipt of the complaint, Magistrate can take cognizance and issue process to the accused. If the case is exclusively triable by the Sessions Court, he is required to commit the case to the Court of Sessions.”
19. From the above it is absolutely clear that proviso to sub-section (2) of Section 202 of the Code will apply only to a case where the Magistrate has taken cognizance under Section 190(1)(a) and has opted to hold inquiry under Section 202 after examining the complainant and witnesses present, if any, under Section 200, Cr. P.C
20. From the facts stated in the report of Mohabbat Ali's case (1985 UP Cri R 264 : 1984 All LJ NOC 31) “it appears that the learned Magistrate had not adopted the procedure laid down for complaint cases after receiving the final report and had issued process. The Magistrate thus appears to have taken cognizance under Section 190(1)(b) of the Cr. P.C If the cognizance was taken under said provision there was no question of applicability of relevant provisions applicable to complaint cases including proviso to Section 202(2), Cr. P.C The Magistrate was thus not bound to call upon the complainant to produce all his witnesses and examine them on oath. Even otherwise also in view of Apex Court decision in Rosy, ((2000) 2 SCC 230 : AIR 2000 SC 637) (supra) no room for doubt is left to hold that the question of complying with the proviso to sub-section (2) of Section 202 arises only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry under Section 202 and secondly in such inquiry by him, if he decides to take evidence of witnesses on oath. The inquiry under Section 202 is discretionary for deciding whether to issue process under Section 204 or to dismiss the complaint under Section 203, Cr. P.C In view of what we have stated above the question referred to by the learned single Judge is answered as follows:—
“Where cognizance has been taken under Section 190(1)(b), Cr. P.C only on the basis of material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to sub-section (2) of Section 202, Cr. P.C shall have no application. The contrary view expressed in Mohabbat All's case is not a correct proposition of law.”
21. Let the case now be listed before the appropriate Bench for deciding the matter finally.
22. Order accordingly.