Horil Sao & Ors. (In 26631) v. Raju Mandal Rajeev Ranjan (In 149)

1. In all these applications common question of law and fact arise and as such they are being disposed of by this common order.

2. Facts lie in a narrow compass. On the basis of information given to the police disclosing cognizable offence, First Information Reports were registered for commission of the offence, exclusively triable by the Court of Sessions. Police after investigation submitted reports as provided under section 173 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) and found the allegation against the petitioners to be false. When the reports, so submitted were placed before the respective Magistrates, they differed with the conclusion arrived at by the investigating officer and having found that there are sufficient material collected during the course of investigation, which prima facie, shows complicity of the petitioners in the crime, took cognizance of the offence against the petitioners also. Aggrieved by such an order of the learned Magistrates, petitioners have come up before this Court and pray for quashing of the orders by which the learned Magistrate have taken cognizance of the offence differing with the conclusion of the investigating agency.

3. Learned counsel for the petitioners contend that in a case triable exclusively by the Court of Sessions, the Magistrate can not differ with the police report and take cognizance of the offence and the point stands concluded by the judgment of the Supreme Court in the case of Kishori Singh v. State of Bihar (2001 Cr. L.J 123).

4. However, learned counsel appearing on behalf of the State contends that the learned Magistrate is not bound by the report of the investigating officer submitted under section 173 of the Code and though the investigating officer has not sent up petitioners for trial, in a case where material collected during the course of investigation, prima facie shows complicity of such accused persons in the crime, nothing prevents the learned Magistrate from taking cognizance of the offence.

5. Neither on principle nor on precedent I am inclined to endorse the stand taken on behalf of the petitioners. This needs examination of scheme of the Code.

6. Section 154 of the Code provides for recording of information of a cognizable offence by the police officer of a police station, commonly known as an FIR. The wheel of criminal prosecution begins with this. Section 156 of the Code confers power to the police officer to investigate cognizable cases and Section 161 of the Code confers power to police officer making investigation, to examine orally person, acquainted with the facts and circumstances of the case. After the completion of the investigation, under section 173 of the Code, the officer incharge of the police station is required to forward to a Magistrate, empowered to take cognizance of the offence, a report in the prescribed form. section 173 of the Code further casts an obligation on the officer incharge of the police station submitting the report, to indicate the name of the person who appears to be acquainted with the circumstances of the case and whether any offence has been committed and if so by whom. Generally speaking when the case is found to be true, the report so submitted is known as the chargesheet. However, after investigation when the officer incharge comes to the conclusion that the case is false, report submitted by him is known as final report. Report under section 173 of the Code is required to be placed for consideration before the Magistrate under section 190 of the Code. Thus under the scheme of Code, the wheel for criminal investigation is set on motion by registration of the First Information Report and culminates with submission of the report. The police has statutory right to investigate and its right is unfettered, subject of course to limitation known in law.

7. Power to the Magistrate, empowered to take cognizance of the offence is now required to be seen. Section 190 of the Code confers on the Magistrate the power to take cognizance of the offence, same reads as follows:

“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-section (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) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

8. In my opinion, a Magistrate dealing with the final report has three options. The first option to the Magistrate is that he may agree with the final report and accept it and close the proceeding. But there may be a case, where the Magistrate may take the view on consideration of the final report that the opinion formed by the police is not based on full and complete investigation, in which case, in my opinion, the Magistrate shall have ample jurisdiction to give direction to the police under section 156(3) to make further investigation. This is the second option available to the learned Magistrate. The third course open to the Magistrate is to take cognizance of the offence under Section 190(1)(b) of the Code, if in its opinion the facts set out in the final report constitute an offence, notwithstanding contrary conclusion of the police in the final report. I am fortified in my view from the judgment of the Supreme Court in the case of India Carat Pvt. Ltd. v. State of Karnataka, (1989) 2 SCC 132 : AIR 1989 SC 885, wherein it has been held as follows:

“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 conclusion arrived at by the investigating 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 Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.

9. Now reverting to the precedents counsel for the petitioners have placed strong reliance on a judgment of the Supreme Court in the case of Kishori Singh (supra). My attention has been drawn to paras 9 and 10 of the judgment which read as follows:

“9. After going through the provisions of the Code of Criminal Procedure and the aforesaid two judgments and on examining the order dated 10.6.1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the FIR as accused persons, but not chargesheeted in the chargesheet that was filed by the police under section 173 of Cr. P.C

“10. So far as those persons against whom chargesheet has not been filed, they can be arrayed as “accused persons” in exercise of powers under Section 319 Cr. P.C when some evidence or materials are brought on record in course of trial or they could also be arrayed as “accused persons” only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the material, comes to the conclusion that sufficient materials exist against them even though the police might not have filed chargesheet, as has been explained in the latter three Judge Bench decision. Neither of the contingencies has arisen in the case in hand.”

10. At the first glance, the judgment referred to above seems to support the contention of the petitioners but on deeper scrutiny I am of the opinion the same is clearly distinguishable. In the said case chargesheet under section 173 of the Code was filed as regards some accused but final report was submitted in respect of some accused persons. The Magistrate by order dated 10.6.97 came to the conclusion that there appears sufficient ground to proceed against the accused persons and as such cognizance was taken under sections 302/34, 324 and 448 of the Indian Penal Code and section 27 of the Arms Act. The order of the learned Magistrate taking cognizance was against the accused persons, which would obviously mean those accused persons, against whom the police has filed the chargesheet. Thus, at the time when the learned Magistrate exercised its power under section 190 Cr. P.C he did not differ with the report submitted under section 173 Cr. P.C Later on, however, a prayer was made before the learned Magistrate for issuing non bailable warrant of arrest against those accused persons who were not chargesheeted by the police, while filing the report under section 173 Cr. P.C The learned Magistrate by order dated 20.2.1997 acceeded to the prayer and issued non bailable warrant of arrest against such accused persons; who were although named in the FIR but were not chargesheeted by the police in the report submitted under section 173 Cr. P.C Thus, at the first instance when the report was laid before the learned Magistrate he in exercise of power under section 190 Cr. P.C did not take cognizance against such accused persons who although were named in the FIR, but were not chargesheeted but later on non bailable warrant of arrest was issued. In the background of the aforesaid fact the Supreme Court held that those persons against whom chargesheet has not been filed can be arrayed as accused persons only in exercise of the power under Section 319 Cr. P.C when some evidence and material are brought on record in course of trial. In the present case the learned Magistrate has not exercised its power under Section 319 Cr. P.C but have chosen to take cognizance of the offence in exercise of its power under Section 190(1)(b) of the Cr. P.C upon a police report of such fact. In view of the aforesaid the judgment relied on by the learned counsels is clearly distinguishable.

11. Another decision on which reliance has been placed is the judgment of Supreme Court in the case of Raj Kishore Prasad v. State of Bihar, (1996) 4 SCC 495 : 1996 (1) PLJR (SC) 123. It is relevant to state here that the Supreme Court while rendering its judgment in the case of Kishori Singh (supra) has also placed reliance on this judgment. In the case of Raj Kishore Prasad (supra) the question was as to whether a Magistrate under section 209 of the Code could associate another person an accused in sessions trial in exercise of the power under Section 319 Cr. P.C While considering the aforesaid question the Supreme Court answered the same in the following words:

“Thus we come to hold that the power under Section 209 Cr. P.C to summon a new offender was not vested with a Magistrate on the plain reading of its text not being an ‘inquiry’ and material before him not being ‘evidence’. When such power was not so vested, his refusal to exercise it cannot be corrected by the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Sessions can, in any event, summon the accused to stand trial, along with the accused meant to be committed for trial before it. Presently it is plain that the stage for employment of Section 319 Cr. P.C has not arrived. The order of the Court of Sessions requiring the Magistrate to arrest and logically commit the appellant along with the accused proposed to be committed to stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused under Section 319 Cr. P.C when handling a matter under Section 209 Cr. P.C, the Court of Sessions, in purported exercise of revisional powers cannot obligate, it to do so. The question posed at the out set is answered accordingly in this light. When the case comes after commitment to the Court of Session and evidence is recorded, it may then in exercise of its powers under Section 319 Cr. P.C on the basis of the evidence recorded by it, if circumstances warranting, proceed against the appellant, summon him for the purpose, to stand trial along with the accused committed, providing him the necessary safeguards envisaged under sub-section (4) of Section 319. Such course is all the more necessary in the instant case when expressions on merit have extensively been made in the orders of the Magistrate, the Court of Sessions and that of the High Court. Any other course would cause serious prejudice to the appellant. We order accordingly.”

12. Here in the present case the Magistrate has exercised its power under section 190 of the Code and having found that the materials collected during the course of investigation and incorporated in the report submitted under section 173 of the Code prima facie disclose complicity of the petitioners in the crime and as such differing with the conclusion of the investigating officer took cognizance of the offence. He has not exercised his power under section 319 of the Code and as such this decision also in no way supports the case of the petitioners.

13. Yet another decision on which reliance has been placed is the judgment of the Supreme Court in the case of Ranjit Singh v. State Of Punjab., (1998) 7 SCC 149. It is worth mentioning that the Supreme Court; while laying down the law in the case of Kishori Singh (supra) has placed reliance on this case. In this case also; the question before the Supreme Court was not with reference to the power of the learned Magistrate, vis-a-vis section 190 of the Code but at a later stage and for the reasons stated above, same is clearly distinguishable.

14. To put the record straight, it is relevant here to state that a learned Single Judge of this Court, while disposing of Cr. Misc. No. 14580 of 2000 (Birendra Singh v. The State), relying on the case of Kishori Singh (supra) quashed the order taking cognizance and issuance of summons in respect of the accused persons, who were not charge-sheeted, although named in the First Information Report. In the words of the learned Judge, he had no option than to quash the order in view of the judgment of the Supreme Court in Kishori Singh (supra). Special features of Kishori Singh has not been taken into consideration in this judgment and same having been rendered wholly relying on Kishori Singh case (supra), which I have distinguished. I am not inclined to accept the petitioner's submission that accused named in the first information report and not charge-sheeted cannot be proceeded against and the Magistrate cannot disagree with the report, while exercising its power under section 190 of the Code.

15. The question falling for consideration in this case has squarely been answered by the Supreme Court in the case of Swil Ltd. v. State of Delhi, 2001 (2) PCCR 187 : 2001 (4) PLJR (SC) 163 and in the said case it has been held as follows:

“Further, in the present case there is no question of referring to the provisions of Section 319 Cr. P.C That provision would come into operation in the course of any inquiry into or trial of an offence. In the present case, neither the Magistrate was holding inquiry as contemplated under section 2(g) Cr. P.C nor the trial had started. He was exercising his jurisdiction under section 190 of taking cognizance of an offence and issuing process. There is no bar under section 190 Cr. P.C that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet.”

16. For the reasons stated above I do not have slightest doubt in mind that the learned Magistrate while exercising its power under section 190 of the Code is not bound by the conclusion arrived at by the officer incharge of the police station in a case exclusively triable by Court of Sessions while submitting the report under section 173 of the Code and in a case in which the materials collected during the course of investigation and forming part of the report under section 173 Cr. P.C, prima facie, suggest complicity of the accused persons in the crime although named in the FIR but not chargesheeted, still the Magistrate can differ with the conclusion and take cognizance of the offence. The Magistrate has such power under section 190 of the Code. I hasten to add that although the police is master of investigation but what treatment has to be given to the report is in the domain of the Magistrate. It is relevant to state here that the materials collected during the course of the investigation and forming part of the report under section 173 Cr. P.C indicate prima facie complicity of the petitioners in the crime and challenge to the order taking cognizance is not made on the ground that no such material exists.

17. For the reasons stated above, I do not find any merit in these applications. The applications stand dismissed.