1989 (2) TMI 407 - SC - Indian Laws

Summary

Issues Involved:
1. Legality of the High Court's order setting aside the Magistrate's order.
2. Procedure for taking cognizance of an offense by the Magistrate.
3. The role and discretion of the Magistrate upon receiving a police report.

Summary:

Legality of the High Court's Order:
The appeal challenges the Karnataka High Court's order u/s 482 CrPC, which set aside the Second Additional Chief Metropolitan Magistrate's directive to register a calendar case against the second respondent u/s 408 and 420 IPC and issue summons u/s 204 CrPC. The High Court held that the Magistrate had not followed the procedure laid down by the Code for taking cognizance and issuing process after the police had sent a 'B' report.

Procedure for Taking Cognizance:
The High Court stated that upon receiving a 'B' report, the Magistrate should have issued notice to the appellant to ascertain if he disputed the report and, if so, complied with Sec. 200 CrPC by examining the appellant and his witnesses on oath before deciding whether to register a case and issue process. The High Court referred to the precedent in K. Sham Rao v. A.R. Diwakar, [1979] 2 Karnataka Law Journal 441.

Role and Discretion of the Magistrate:
The Supreme Court clarified that a Magistrate has several courses of action upon receiving a complaint. The Magistrate can take cognizance of the offense immediately, record statements u/s 200 CrPC, and decide to issue process u/s 204 CrPC or dismiss the complaint u/s 203 CrPC. Alternatively, the Magistrate can postpone the issue of process and direct an investigation u/s 202 CrPC or order a police investigation u/s 156(3) CrPC. Upon receiving the police report, the Magistrate can take cognizance of the offense u/s 190(1)(b) CrPC, irrespective of the police's conclusion, and issue process.

The Supreme Court emphasized that the Magistrate is not bound by the police's opinion and can independently assess the facts from the investigation. The Court cited Abhinandan Jha & Ors. v. Dinesh Misra, [1967] 3 SCR 668, and H.S. Bains v. State, [1981] 1 SCR 935, to support this view. The Magistrate can take cognizance of an offense even if the police report suggests no case against the accused.

Conclusion:
The Supreme Court held that the High Court erred in its view that the Magistrate was not entitled to direct the registration of a case and issue summons without following Sec. 200 and 202 CrPC. The appeal was allowed, the High Court's order was set aside, and the Magistrate's order was restored, directing the case against the second respondent to proceed in accordance with the law.