TMI Blog1965 (12) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... efore Magistrates and that is why the Revision Applications have been referred to a Full Bench by Bakshi and Vakil JJ. before whom they originally came up for hearing. The facts of each revision application are different but it is not necessary to set them out in detail for the purpose, of deciding the Revision Applications. It is sufficient to point out that in each case the police investigating the offence -- a cognizable one -- took the view on completion of the investigation that there was not sufficient evidence or reasonable ground of suspicion to justify putting up of the accused for trial and accordingly submitted a final report to the Magistrate asking for a B Summary to the effect that the case was maliciously false. The Magistrate on a consideration of the final report and other police papers did not agree with the recommendation of the police and declined to grant B Summary. The Magistrate took the view that the facts disclosed in the final report and the police paper? constituted an offence and there was a case for putting up the accused on trial and he therefore directed the police to submit a charge-sheet against the accused. This was the order passed by the Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us and we shall have to consider them. But before we refer to these decisions, it would be desirable to examine the question on principle and to do that we must see what is the scheme of the Code relating to investigation of offences. 3. The provisions relating to the power of the police to investigate into offences and the procedure to be adopted by them are to be found in Chapter XIV which falls in Part V headed: Information to the Police and their powers to investigate . An officer-in-charge of a police station may investigate into any cognizable offence 'without the order of a Magistrate (Section 156 (1)), but no police officer can investigate a non- cognizable case without an order from a Magistrate specified in Section 155(2). Under Section 156 (3) any Magistrate empowered under Section 190 may order the police to investigate into a cognizable case. Section 157 prescribes the procedure to be followed where from information received or otherwise, an officer-in-charge of a police-station has reason to suspect the commission of an offence which he is empowered under Section 156 to Investigate and declares that in such a case the officer must forthwith send a repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused to a Magistrate, such officer shall, says Section 169, release the accused, if in custody, on his executing a bond, to appear, if and when required, before a Magistrate empowered to take cognizance of the offence on a police-report and to try the accused or commit him for trial. If on the other hand if appears to the officer in charge of the police-station, upon an investigation under Chapter XIV, that there is sufficient evidence or reasonable ground to justify the forwarding of the accused to a Magistrate, such officer is required under Section 170 to forward the accused to a Magistrate empowered to take cognizance of the offence and try the accused or commit him for trial or, if the offence is bailable, take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate. In either case, on the completion of the investigation, the officer in charge of the police station has to submit a report to the Magistrate under Section 173 in the prescribed form furnishing various details. Sub-section (1) of that Section provides that every investigation under the Chapter shall be completed without unnecessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn to the Bombay Police Manual which contains inter alia Rules and Regulations made by the Inspector General of Police, we find that a distinction is made between the two types of cases. The report to be made by the police in a case falling within Section 170 -- where there is sufficient evidence to justify the sending of the accused to the Magistrate -- is called a charge sheet in Rule 218 and that Rule says that the charge-sheet shall be in Form C. P. C. 20 and shall comply with the requirements specified in that Rule where the case falls within Section 169--that is, there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, the report to be submitted by the police is termed as final report and Rule 219 directs that such final report shall be submitted by the Police Station Officer through the Superintendent of Police or the Sub Divisional Officer and while forwarding such final report, a request should be made to the Magistrate to classify the case and to issue an appropriate summary of his order. There are three kinds of summary which can be asked for by the Investigating Officer when he is of the opinion that there is no sufficient evidence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate, District Magistrate or Sub-divisional Magistrate and any other Magistrate specially empowered in this behalf may take cognizance of any offence- (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 a police-officer, or upon his own knowledge or suspicion, that such offence has been committed. Section 190(1)(b) covers the case of a report under Section 173 and we shall, therefore, for the time being be concerned only with that provision. Under Section 190(1)(b) a Magistrate may take cognizance of an offence on a report under Section 173 disclosing facts which constitute such offence. The word may imports the exercise of judicial discretion and the Magistrate receiving the report under Section 173 would have to consider the report and decide judicially whether or not to take cognizance of the offence. It is, therefore, apparent that where the police has submitted a charge-sheet under Section 173, the Magistrate is not bound to accept the opinion of the police that there is a case for placing the accused on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion of the police that there is no case for putting up the accused on trial. He is not bound to issue the kind of Summary asked for by the police. As observed by a Division Bench of the Bombay High Court in State v. Shankar Bhaurao: AIR1959Bom437 , a Magistrate who is invited to give B Summary may on the evidence give A Summary. The Magistrate has to apply his mind judicially to the final report and decide what kind of Summary is justified on the facts and circumstances of the case. The Magistrate may also refuse to issue any Summary at all if on a consideration of the final report and the police papers he is of the view that the request of the police is not well grounded. The Magistrate may take the view that the opinion formed by the police is not based on full and complete investigation and he may direct the police to make further investigation under Section 156 (3). This power of the Magistrate is now recognized by all High Courts barring only the erstwhile Court of the Judicial Commissioner of Kutch which took the view in State of Kutch v. Budhgar Dharamgar AIR 1954 Guj 26 that a Magistrate receiving a final report cannot direct further investigation even if he is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpowers a Magistrate to take cognizance of an offence on a report under Section 173 containing facts constituting such offence and a final report is as much a report under Section 173 as a charge-sheet and, therefore, if the final report contains facts which according to the Magistrate constitute an offence, the Magistrate can take cognizance of the offence on the final report under Section 190(1)(b). That is why Section 169 provides that even though on investigation the police station officer or the investigating officer forms the opinion that there is no case for proceeding against the accused, he shall while releasing the accused take a bond from him to appear if and when so required, before a Magistrate empowered to take cognisance of the offence on a police report and to try him or to commit him for trial. This provision has been obviously enacted to meet the contingency that on judicially considering the final report the Magistrate may not accept the opinion of the police station officer or the investigating officer and may choose to take cognizance of the offence if he finds that the facts disclosed by the final report constitute such offence notwithstanding the opinion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainly take cognizance of the offence, but can the Magistrate, in such a case instead of taking cognizance of the offence call for a charge-sheet from the police as a preliminary step to taking cognizance of the offence? This question may also arise where the Magistrate finds on a consideration of the final report and the police papers that an offence does appear to have been committed and that there is reasonable ground for proceeding against the accused but the fads set out in the final report do not make out such offence with the result that the magistrate is unable to take cognizance of the offence on the final report under Section 190(1)(b). Can the Magistrate in such a case call for a charge-sheet from the police so that he can take cognizance of the offence on the charge-sheet? Now obviously this power, if it exists, must be as a result ol conferment by express enactment or by necessary implication. So far as express enactment goes, we do not find any provision in the Code which expressly confers such power on the Magistrate. Even Shah, I. in Murlidhar's Case and Bhattacharya J., one of the minority Judges in A. K. Roys Case AIR1962Cal135 , who took the same view as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can mean only an order in reference to the bond otherwise than for the discharge of the bond. Such an order may well be an order requiring the production of the accused but it cannot include an order calling for a charge-sheet from the police. The latter order would have no relation to the bond and would not, therefore, fall within the category of orders which can be made by the Magistrate under the power conferred by the use of the word otherwise . Moreover, even if the word otherwise were to be wrested from its context and given a broad and expansive meaning so as to confer a carte blanche power on the Magistrate to make any kind of order which he thinks fit under the circumstances of the case, it cannot still be construed as authorizing the Magistrate to make an order calling for a charge-sheet from the police for such an order would, as we, shall presently point out, be not only contrary to the scheme of the Code but also opposed to the language of Sections 169, 170 and 173 and it is elementary that a power confined in general terms cannot be construed to authorize the doing of something which is contrary to or inconsistent with some other specific provision of the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate under the Code which would be rendered meaningless or futile if the power to call for a charge-sheet from the police is not held to be vested in the Magistrate. The Magistrate has the power to direct further investigation under Section 156(3) if the investigation is incomplete or unsatisfactory and he has also the power to take cognizance of the offence under Section 190(1) (b), if he finds, despite the opinion of the police to the contrary, that an offence has been committed and there is reasonable ground to proceed against the accused. Neither of these two powers is rendered ineffectual or futile without the aid of the power to call for a charge-sheet from the police. Of course, as pointed out above, where the facts set out in the final report do not make out an offence but it appears to the Magistrate on a consideration of the final report and the police papers that an offence has been committed and there is reasonable ground for proceeding against the accused, the Magistrate would be unable to take cognizance of the offence under Section 190(1)(b) but that would be by reason of the fact that the final report being deficient in setting out facts constituting the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police officer, for even the statements of witnesses recorded under Sections 162 and 164 would be received by the Magistrate from the police and the information contained in those statements might plausibly be said to be information received from the police and not from the witnesses so far as the Magistrate is concerned. The Magistrate may not, therefore, be able to take cognizance of the offence under the first part of Section 190(1)(c) but he can certainly take cognizance of the offence under the second part of that Section on the ground that having regard to the final report and the police papers he has reason to suspect that an offence has been committed. The final report and the police papers can in such case be relied on as affording ground for suspicion that an offence has been committed and acting on such suspicion the Magistrate can take cognizance of the offence under Section 190(1) (c). This conclusion would seem to follow logically and indisputably from the language of Section 190(1)(c) but we find that it is also supported by the decision of a Full Bench of the Calcutta High Court in Queen Empress v. Sham Lall ILR (1887) Cat 707. This being the true legal position th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to submit a charge-sheet. Whether the report to be submitted under Section 173 should be a charge-sheet or a final report depends on the opinion of the police and not on the opinion of me Magistrate. The Magistrate cannot compel the police to form a particular opinion on the investigation and to submit a report according to such opinion. The formation of the opinion, as observed by the Supreme Court in Bishbud's Case: 1955CriLJ526 (supra) is to be that of the police and the Magistrate cannot be permitted to encroach on the sphere of the police and to decide according to his opinion whether the report under Section 173 should be a charge-sheet or a final report. That function is assigned by the Legislature to the police and the Magistrate cannot usurp that function: to hold that he can do so would be to fly in the face of Sections 169, 170 and 173 and Rules 218 and 219 of the Bombay Police Manual. Moreover it must be remembered that the functions of the judiciary and the police under the Code are ' complementary not overlapping and each is entitled to exercise its own functions without interference by the other. This proposition emerges clearly from the decision of the J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the Magistrate. Investigation under the Code consists generally of several stages ending with the formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and the submission of a charge-sheet or a final report dependant on the opinion so formed. The formation of the opinion as to whether there is or not a case for placing the accused on trial is, as observed by the Supreme Court in Rishbud's Case: 1955CriLJ526 ((supra), the final step in the investigation and that final step is to be taken by the officer in charge of the police station. See also Parulbala Sen v. State: AIR1957Cal379 . The formation of the opinion whether or not there is a case for placing the accused on trial and the submission of a charge-sheet or final report dependent on such opinion being a stage in the investigation, though the last stage, the Magistrate clearly cannot in view of the observations of the Privy Council, approved as they are by the Supreme Court, interfere with the formation of such opinion by the police or require the police to submit a charge-sheet instead of a final report or a final report instead of a charge- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. The first was the decision in Shukadeva Sahay v. Hamid Miyan but this decision does not help, for the only point involved in this decision was whether the Sub-Divisional Magistrate having disposed of the final report by accepting the recommendation of the police, the District Magistrate had power to call for a charge-sheet and it was held that the District Magistrate had no such power. The question as to whether the Sub-Divisional Magistrate was entitled to call for a charge-sheet if he disagreed with the recommendation contained in the final report was not in issue and there was no decision on that question. The second decision was that reported in. In this case a single Judge of the Patna High Court undoubtedly held that a Magistrate to whom a final report is made under Section 173 -- can if he disagrees with the recommendation of the police contained in the final report direct the police to submit a charge-sheet but he took this view on the basis that calling for a charge-sheet from the police was merely an irregular mode of issuing process for compelling the attendance of the accused on taking cognizance of the of Fence. This view, with the greatest respect to the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under Section 190(1)(e) and taking cognizance under that Section, he may call for a charge-sheet, but if the Magistrate takes cognizance under Section 190(1)(c), he must proceed under Section 204 and cannot possibly call for a charge-sheet and in any event there would be no point in calling for a charge-sheet for he cannot take cognizance of the offence over again on the charge-sheet submitted by the police. Probably the Division Bench held the Magistrate to have the power to call for A charge-sheet on the view that on taking cognizance of the offence under Section 190(1)(c), the Magistrate was entitled to issue process and calling for a charge-sheet from the police was an irregular mode of issuing process, but this view is, for reasons we have already stated, plainly incorrect. This decision of the Division Bench of the Patna High Court also cannot, therefore, induce us to take a view different from the one which we are taking. 13. It is, therefore, clear that in both the cases which are before us the Magistrate had no power to call for a charge-sheet from the police. The order calling for a charge-sheet from the police would, therefore, have to be set aside, but the q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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