RAM NARESH PRASAD v. STATE OF JHARKHAND & ORS

Citation: [2009] 2 S.C.R. 369

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, MUKUNDAKAM SHARMA

Case summary

RAM NARESH PRASAD v. STATE OF JHARKHAND & ORS.pdf

Judgment text

[2009] 2 S. C. R. 369 RAM NARESH PRASAD v. STATE OF JHARKHAND & ORS. Criminal Appeal No. 290 of 2009 FEBRUARY 12, 2009 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ. ] )> Code of Criminal Procedure, 1973 : s. 319 - Four accused - Application for summoning of appellant as accused rejected by trial Court and attained finalty - Conviction of 4 accused - After investigation, final report was submitted relating to appellant which was accepted-After two years, stranger filed revision against the order accepting final report - Sessions Judge allowed revision and directed ·• ;-" CJM to hear the case - CJM ordered conviction of appellant - Revision thereagainst dismissed - Writ petition also dismissed - On appeal, held: The case raises the questions whether stranger could file a revision and if same is filed late by 2 years could it be entertained without condonation of delay - Case remitted for deciding these questions - Revision. An FIR was lodged against unknown persons.

The allegation was theft of five idols. The investigation was carried out but in the absence of definite clue, final report was submitted which was accepted by Magistrate. After about week, four persons were arrested. Police submitted supplementary final form against them. Final form was filed against the appellant. Magistrate convicted all the four accused persons. During trial, an application under s. 319 Cr. P. C. was filed by prosecution for summoning the ·- - 8. It is now only necessary to refer to Section 190, occurring in Chapter XV, relating to jurisdiction of Criminal Courts in -~ inquiries and trials.

That section is to be found under the heading "Conditions requisite for initiation of proceedings" and sub-section (1) is as follows: "(1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offencet (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police-officer; (c) upon information received from any person other than 0 "' ~ a police-officer, or upon his own knowledge or suspicion, that such offence has been committed. " 9.

From the foregoing sections, occurring in Chapter XIV, it will be seen that very elaborate provisions h-ave been made for securing that an investigation does take place into a reported offence and the investigation is carried out " within the limits of the law, without causing any harassment ' to the accused and is also completed without unnecessary or undue delay. But the point to be noted is that the manner and method of conducti. ng the investigation,. are left entirely to the police, and the·Magistrate, so far as we can see, has no power under any of these provisions, to interfere with the same. If, on investigation, it appears to the officer, in-charge of a police station, or to the officer making an investigation, that, there is no sufficient evidence or ...

reasonable grounds of suspicion justifying the forwarding -41 of an accused to a Magistrate, Section 169 says that the officer shall release the accused, if in custody, on his executing a bond to appear before the Magistrate. Similarly, if, on the other hand, it appears to the officer, in- -! charge of a police station, or to the officer making the investigation, under Chapter XIV, that there is sufficient ~ evidence or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, under Section 170, to forward the accused to a Magistrate; or, if the offence is bailable, to take security from him for his appearance before such Magistrate. But, whether a case comes under Section 169, or under Section 170, of the Code, on the completion of the investigation, the police "' officer has to submit a repo. rt to the Magistrate, under ... Section J73, in the manner indicated therein, containing ~~ the various details.

The question as to whether the Magistrate has got power to direct the police to file a charge-sheet, on receipt of a report under Section 173 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report. r '-:'- 10. In this connection, we may refer to certain observations, made by the Judicial Committee in King Emperor v. Khwaja Nazir Ahmed (AIR 1945 PC 18) and by this Court, in H. N. Rishbud and lnder Singh v. State of Delhi (AIR 1955 SC 196). In Nazir Ahmed case (supra), Lord Porter observes, at p. 212, as follows: ~ "Just as it is essential that every one accused of a crime ... should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the juqiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry.

In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable I>- ,. crime without requiring any authority from the judicial authorities, and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the court's functions begin when a charge is preferred before it, and not until then.

" These observations have been quoted, with approval, by this Court, in State of West Bengal v. S. N. Basak (AIR 1963 SC 447). This Court in Rishbud and lnder Singh case (AIR 1955 SC 196) observes, at p. 1156, as follows: "Investigation usually starts on information relating to the commission of an offence given to an officer in-charge of a police station and recorded under Section 154 of the ,,, ""9' Code. If from information so received or otherwise, the officer in-charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment or the facts and circumstances of the .. case. By definition, it includes all the proceedings under the Code for the collection of evidence conducted by a police officer.

" Again, after a reference to some of the provisions in Chapter XIV of the Code, it is observed at p. 1157: "Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) . >< __. , Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search qf places of seizure of things considered necessary for the ·investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet under Section 173.... It is also clear that the final step in the investigation viz.

the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in-charge of the police station. " 11. We are referring to these observations for the purpose of emphasizing that the scheme of Chapter XIV, clearly l 1shows that the formation of an opinion as to whether or not there is a case to place the accused on trial, has been left to the officer in-charge of a police station. Bearing in mind r these principles referred to above, we have to consider ¥"' the question that arises for consideration, in this case. The High Courts which have held that the Magistrate has no jurisdiction to call upon the police to file a chargesheet, under such circumstances, have rested their decision on two principles viz. (a) that there is no express provision in the Code empowering a Magistrate to pass such an order; and (b) such a power, in view of the scheme ,loof Chapter .

XIV, cannot be inferred vide Venkata Subba v Anjanavulu (AIR 1932 Mad 673), Abdul Rahim v. Abdul Muktadin (AIR 1953 Assam 112); Amar Premanand v. State (AIR 1960 Madh. Pra 12); the majority view in A. K. Roy v. State of W. 8. 2; and State of Gujarat v. Shah Lakhamshi1. On the other hand, the High Courts which have recognised such a power, rest their decision again on two grounds viz. (a) where a report is submitted by the police, after investigation, the Magistrate has to deal with r ,,.. it judicially, which -will mean that when the report is not accepted, the Magistrate can give suitable directions to the police; and (b) the Magistrate is given supervision over the conduct of investigation by the police, and therefore. such a power can be recognised in the Magistrate vide State v. Murlidhar Goverdhan; and Ram Nandan v. State. 12.

Though it may be that a report submitted by the police may have to be dealt with judicially, by a Magistrate, and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to . agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. But, we may make it clear, that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him to take cognizance of an offence and proceed, according to law. We do not also find any such power, under Section ~ ... 173(3), as is sought to be inferred, in some of the decisions cited above. As we have indicated broadly the approach made by the various High Courts in coming to different conclusions, we do not think it necessary to refer to those decisions in detail.

" 8. Accordingly we set aside the impugned order of the High Court and remit the matter to it to consider the following aspects .. (a) Whether the revision petition before the Sessions . , Judge was maintainable at the instance of Respondent No. 2 and that too after considerable length of time; (b) Whether the appellant needs to be heard; and . )< (c) whether the informant has to be given the notice. .. 9. Appeal is allowed to the aforesaid extent. O. G. Appeal Partly allowed.