TMI Blog1989 (2) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... re on 20.2.1980 against the second respondent alleg- ing that he had committed the offences of cheating and criminal breach of trust. It was averred that the second respondent, was its Divisional Manager (Export-Import) and had negotiated on its behalf with an Italian firm in July 1979 for supply of quality granite stones and had obtained a letter credit. Availing the credit facility, he had drawn a sum of ₹ 13,59,750 but failed to supply granite stones to the Italian firm and instead had misappropriated the amount. On the foot of the report, a case was registered against the second respondent in Ulsoor Police Station as Crime No. 145/1980 under Sections 408 and 420 of the Indian Penal Code and the case was investigated by Shri Bayar, Inspector of Police. When Shri Bayar went away on promotion, his succes- sor took over the investigation but subsequently he sent a B Report to the Court stating that further investigation was not required as the case was of a civil nature. Aggrieved by the report sent by the police, the appel- lant approached the Second Additional Chief Metropolitan Magistrate, Bangalore for the report being quashed and permission granted to him to prove t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvertance to any possible defence the second respondent may have. The learned counsel also stated that since the police had made a perfunctory investigation and sent a 'B' report stating that the case was of a civil nature, the Magistrate was perfectly justi- fied, in the facts and circumstances of the case in taking cognizance of the offence and directing the issue of process to the second respondent. Controverting these arguments, the learned counsel for the respondent submitted that since the police had sent a 'B' report stating that the investigation disclosed that the dispute between the parties was only of a civil nature and that no offence has been made out against the second re- spondent, the Second Additional Chief Metropolitan Magis- trate, ought to have called upon the appellant to find out whether he was challenging the police report and if so, to make a sworn statement and also examine his witnesses and thereafter only the learned Magistrate should have decided whether cognizance should be taken of the offences and process issued to the second respondent. The learned coun- sel, therefore, argued that since the magistrate had not followed the procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class spe- cially empowered in this behalf under sub- section (2), may take cognizance of any of- fence-- (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 commit- ted. Chapter XV which contains Section 200 to 203 deals with Complaints to Magistrate . A Magistrate taking cognizance of an offence on complaint is required by Section 200 to examine the complaint and the witnesses present, if any. Section 202 provides that a Magistrate taking cognizance of a case, upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Section 203 empowers the Magistrate to dismiss the com- plaint, if after considering the statements on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cogni- zance of the offence on the basis of the complaint original- ly submitted to him and proceed to record the statement upon oath of the complaint and the witnesses present and thereaf- ter decide whether the complaint should be dismissed or process should be issued. Since in the present case the Second Additional Chief Metropolitan Magistrate has taken cognizance of offences alleged to have been committed by the second respondent and ordered issue of process without first examining the appel- lant and his witnesses, the question for consideration would be whether the Magistrate is entitled under the Code to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reed with the conclusion of the police and took cognizance of the case under Sections 448 and 506 of the Indian Penal Code and directed the issue of process to the accused. Thereupon, the accused moved the High Court for quashing the proceedings before the Magistrate. As the High Court declined to interfere, the accused approached this Court by way of appeal by special leave. Various contentions were advanced on behalf of the accused and one of them was that the Magistrate was not competent to take cognizance of the case upon the police report since the report was to the effect that no offence had been committed by the accused. It was further urged that if the Magistrate was not satisfied with the police report, there were only two courses open to him, viz. either to order a further investigation of the case by the police or to take cognizance of the case himself as if upon a complaint and record the statements of the complainant and his witnesses under Section 200 of the Code and then issue process if he was satisfied that the case should be proceeded with. Repelling those contentions this Court held as follows: The Magistrate is not bound by the conclu- sions arrived at by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 202 also. The High Court was, there- fore, 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. The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2). It has been held in Tufa Ram Ors. v. Kishore Singh, [1978] 1 SCR 615 that if the police, after making an investigation, send 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 a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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