GANGADHAR JANARDAN MHATRE v. STATE OF MAHARASHTRA AND ORS

Citation: [2004] SUPP. 4 S.C.R. 772

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, C.K. THAKKER

Case summary

GANGADHAR JANARDAN MHATRE v. STATE OF MAHARASHTRA AND ORS.pdf

Judgment text

GANGADHAR JANARDAN MHATRE v. STATE OF MAHARASHTRA AND ORS. SEPTEMBER 28, 2004 [ARJJIT PASAYAT AND C. K. THAKKER, JJ. ] Code of Criminal Procedure, 1973: Section 190(1)-Cognizance ofoffences-Magistrate's power to take- Notice·to informant-Necessity of- Held: Where the Magistrate decides not to take cognizance ofan offence on a police report under S. 173(2)(i) and decides to drop the proceedings against some ofthe accused, the Magistrate has to give notice to the informant and provide an opportunity to be heard _at the time ofconsideration ofthe report-The said right is conferred on the informant and none else-Ifthe informant is not aware as to when the matter is to be considered, he cannot be faulted, even ifprotest petition in reply to the notice issued by the police has been filed belatedly. Sections 169,' 173(2), 190(1), 200 and 202-Cognizance ofoffences- Magistrate's power to take-Police report under S.

173(2)(i) made out no case against the accused-Effect of-Held: The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging ji·om the investigation and take cognizance ofthe case and, ifhe thinks fit, exercise his powers under S. 190(l)(b)-The Magistrate is not bound to follow the procedure laid down in Ss. 200 and 202 for taking cognizance ofa case under S. 190(l)(a) though it is open to him to act under Ss. 200 or 202 also. Section 154-Jnformation in cognizable cases-Failure ofpolice to take action-Remedies available to the compla_inant-Held: Complainant is given the power under S. 190 rlw S. 200 to lay the complaint before the Magistrate havingjurisdiction to take cognizance ofthe case-Thereupon, the MagistratPis required to enquire into the complaint as provided in Chapter XV.

Constitution of India, 1950: Article 226-Writ petition-Maintainability of-Informant filed a writ petition seeking transfer of investigation from State CID to any other impartial investigating agency-Informant levelled serious allegations about the competence and fairness of not only the investigating officers but also some of the judicial officers-High Court dismissed the writ petition-Correctness of-Held: The Magistrate is empowered to take cognizance ofa case under S. 190(/)(b) Cr. P. C. even ifthe police report has made out no case against the accused-Informant has power under S. 190 r/w S. 200 Cr. P. C. to lay the complaint before the Magistrate even ifpolice has failed to take action-Further, informant is also entitled to a notice when the Magistrate decides to drop the proceedings against the accused on the basis ofthe police report-Therefore, without availing the remedies under the Cr. P. C.

, the informant could not have approached the High Court by filing a writ application-Hence, writ application rightly dismissed. Words & Phrases: "Charge sheet" and "final report"-:-Meaning of-In the context ofSs. 169, 170 and 173(2) of the Code of Criminal Procedure, 1973. The appellant's grievance primarily was that respondent Nos. 2 to 9 had allegedly killed his brother and caused grievous injuries to his nephew. The appellant in this regard registered the first information report. The appellant filed a writ petition before the High Court praying for transfer of the ihvestigation from ~ate CID to any other impartial· investigating agency. The High Court noted that the case had been committed under the orders passed by the Magistrate and was pending in the Court of Sessions. The High Court, therefore, was of the view that when the case was· pending before the Sessions Court, there was no question of transferring investigation to some other agency.

The High Court also noticed that a charge sheet was also filed against the appellant. In that view of the matter the High Court found that there was no scope for entertaining the ~rievances as raised by the appellant. Originally, the investigating agency had filed a petition for closing the matter pursuant to the FIR lodged by the appellant. The Judicial Magistrate, First Class, had passed orders accepting the prayer made by the Police CommissiQner to release respondents Nos. 2 to 9. This order was assailed in revision before the Additional Sessions Judge who set aside the aforesaid order. Direction was given to the Magistrate to refer the matter to the concerned Investigating Officer for further investigation under Section 156(3) of the Code of Criminal Procedure, 1973. Pursuant to that order several proceedings in several courts had taken place and the matter was travelling from one court to another. Hence the appeal.

On behalf of the appellant, it was contended that when there had been total failure of justice on account of laxity of the Investigating Agency there was need for change of the Investigating Agency for further and better investigatJon; that some of the judicial officers did not act within the four corners of law and did not take note of the observations made by the Additional Sessions Judge; and that when the Investigating Agency and judicial officers had not acted rationally and in accordance with law, the High Court should have accepted the prayers made. Dismissing the appeal, the Court HELD: 1. There is no provision in tht; Code of Criminal Procedure, 197. 3 to file a protest petition by tlie informant who lodged the First Information Report. However, there is no shadow· of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report.

However, the position is different so far as an injured person or a relative of the deceased, who is not an informant, is concerned. They are not entitled to any notice. This right is conferred on the informant and none else. If the informant is not aware as to when the matter is to be considered, he cannot be faulted, even if pr:otest petition in reply to the notice issued by the Police has been filed belatedly. (779-A, E, F; 781-G-H; 782-A] . Bhagwant Singh v. Commissioner of Police, AIR (1985) SC 1286, relied on. 2. It is well settled that upon receipt of a police report under Section 173(2) of the Code 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.

T~e Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the pffence complained of and order the issue of process to the accused. Section 190(l)(b) does noflay 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 lnvestigatimg Officer and independently apply his mind to the facts emerging from the investigation and take 1cognizance of the case; and, if he thinks fit, exer. cise his powers under Sec,tion 190(1)(b) and direct the issue of process 1to 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 200 or Section 202 also. (780-E, F, G, H; 781-A] Abhinandan Jha v.

Dinesh Mishra, AIR (1968) SC 117 and Mis. India Carat Pvt. Ltd. v. State of Kera/a, AIR (1989) SC 885, ~elied on. 3. When the report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him and where the Magistr. ate decides not to take cognizance and to drop the proceedings or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the infom1ant and grant of opportunity of being heard in the matter becomes mandatory. In such a case, the Magistrate has to give the notice to the informant and provide an opportunity to be heard at the time of consideration of the report. (779-D, El Bhagwant Singh v. Commissioner of Police, AIR (1985) SC 1286, relied on. 4. The expressi.

ons 'charge sheet' or 'final report' are not used in the Code, but it is understood in Police Manuals of several State~• containing the Rules and the Regulations to be a report by the Police filed under Sectio1;1 170 of the Code, described as a "charge sheet". In case of reports sent under Section 169. i. e. , where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate, it is termed variously i. e. , referred charge, final report or summary. (781-D, E] 5. 1. When the information is laid with the police, but no action in that behalf is taken, the complainant is given the power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurrisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie ca.

se, instead of issuing process to the accused, he is ·~ empowered to direct the police concerned to investigate into the offmce 776 SUPREME COURT l\EPORTS [2004] SUPP. 4 S. C. R. under Chapter ~II of the Code and to sqbmit a report. If he finds that the complaint dfes not disclose any offence to take further action, he is empowered to d! smiss the complaint under Section 203 of the Code. In case he finds th~t the com plaint/evidence irecorded prima facie discloses an offence, he is empowered to take cognifance of the offence and would issue process t ffence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (i) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investig~tion under Section 156(3) and require the police to make a further report.

The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option ofadopting one ofthe three cor. irses open i. e. , (I) he may accept the report and drop the proceedin"g'; or (2) he may disagree with the report and take the view that there is sufficient ground for furth\:r proceeding, take cognizance of the offence and issue process; or ·{3) he may direct further investigation to be made by the police under Section 156(3). 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(I)(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(l)(b) does not lay down that a Magistrate can take cognizance of an offence only if the . Investigati_ng Officers 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 ofthe case, ifhe thinks fit, exercise of his powers under Section l90(l)(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. (See Mis. lndia Sarat Pvt.

ltd v. State of Karnataka and Another, AIR (1989) SC 885. The infonnant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged: becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh 's case (supra) that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for I proceeding against some of the persons mentioned in the First Infonnation Report, notice to the Infonnant and grant of opportunity of being heard in - the matter becomes mandatory.

As indicated above, there is no provision in the Code of issue of a notice in that regard. We may addhere that the expressions 'charge-sheet' or 'final report' are not used in the Code, but it is understood in Police Manuals of several States containing the Rules and the Regulations to be a report by the Police filed under Section 170 of the Code, described as a "charge-sheet". In case of reports sent under Section 169, i. e. , where there is no sufficiency of evidence to justify forwarding ofa case to a Magistrate, it is,termed variously i. e. , referred charge, final report or summary. Section 173 in terms does not refer to any notice to be given to raise any protest to the report submitted by the police. Though the notice issued under some of the Police Manuals states it to be a notice under Section 173 ofthe Code, though there is nothing jn Section 173 specifically providing for such a notice.

As decided by this Court in Bhagwant Singh 's case (supra), the Magistrate has to give the notice to the infonnant and provide an opportunity to be heard at the time of consideration ofthe report. It was noted as follows: "..... the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report... " Therefore, the stress is on the· issue of notice by the Magistrate at the ·. time of consideration of the report. Ifthe informant is not aware as to when the matter is to be considered, obviously, he cannot be faulted, even ifprotest petition in reply to the notice issued by the police has been filed belatedly. But as indicated in Bhagwant Singh 's case (supra) the right is conferred on the informant and none else. When the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section . B 200 ofthe Code to lay the complaint before the.

Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process tc. the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recordedprimafacie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted t>:Y this Court in All India Institute of Medical Sciences . ' . Employees' Union (Reg. ) through its President v. Union ofIndia and Others, (1997] Supreme Court Cases (Crl. )·303.

It was specifically observed that a writ petition in·such cases is not to be entertained. . . . The inevitable conclusion is that the High Court's order does not suffer ' ' ·from any infirmity. The writ application was not the proper remedy, and without availing the remedy available under the code. the appellant could not have approached the High Court by filing a Writ application. . Appeal is dsmissed. v. s. s. Appeal dismissed. . ·