Attam Parkash vs State

Shamsher Bahadur, J.—The facts relating to this petition for revision, directed against the order of the Additional Sessions Judge, Delhi, may be set out briefly. A report was lodged by one Jagan Nath on December 22, 1954, at the Police station Chandni Chowk u/s 381/406, Indian Penal Code, against his munim Gopal Dass, who it was alleged, had failed to account for gold weighing 37 tolas 5 mashas. Gopal Dass according to the report had given this gold to the present petitioner. Attam Parkash for making gajras and Gopal Dass, after receiving these ornaments from the petitioner, failed to restore them to his employer. Gopal Dass absconded and he could be proceeded against. Meanwhile the owner of the ornaments Gurdit Singh registered a case against Attam Parkash u/s 406/420, Indian Penal Code, at Police Station Pahar Ganj. On the recommendation of the Illaqa Magistrate Shri P.L. Sondhi, the case against the petitioner Attam Parkash was cancelled. Four years later in 1958 Gurdit Singh moved the police for reinvestigation and on the strength of fresh evidence the prosecution applied to the Court of Shri R.D. Joshi, Magistrate 1st Class, for reviewing the order of his predecessor. Shri P.L. Sondhi. The learned Magistrate declined to review the order and the matter was then taken to the Additional District Magistrate who by his order of the 4th of March, 1959 directed the police to proceed with the investigation. Another application was put in before the trial Magistrate Shri Shyam Behari Lal, to review the order of cancellation but he felt bound by the directions passed by the Additional District Magistrate and by his order of the 14th of December, 1959 decided to proceed with the case.

Attam Parkash them moved the Additional Sessions Judge, in the exercise of revisional jurisdiction, to make a recommendation to this Court that the orders of the Additional District Magistrate and the Magistrate 1st Class, dated the 4th of March, 1959 and the 14th of December 1959, respectively, should be quashed and the order of cancellation made by Shri P.L. Sondhi upheld. Aggrieved by the order of the Additional Sessions Judge, who declined to make the reference, Attam Parkash has come in revision to this Court.

The sole question for determination is whether Shri P.L. Sondhi passed an administrative or judicial order. It is common ground that if he passed an administrative order it could be reviewed at any time, while in case of a judicial order the position would be different. Chapter XIV of the Code of Criminal Procedure deals with information to police and investigation and u/s 173 under this Chapter a Magistrate may pass such order as be thinks fit on a report which is made by a police officer. All this is done before the enquiry or trial starts. The jurisdiction of Criminal Courts is dealt with in Chapter XV of the Code of Criminal Procedure and clause (b) of sub-section (1) of section 190 of this Chapter states that any Magistrate may take cognizance of any offence "upon a report in writing of such facts made by any police-officer". Till the matter reaches a Magistrate sitting as a Court the proceedings are within the peculiar province of the police and pertain to their powers of investigation. As held by their Lordships of the Privy Council in AIR 1945 18 (Privy Council) there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable 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......"

There is no specific provision for cancellation of an offence, but the Magistrate, to whom a report is made, generally acts u/s 173, which, as I have said before, is in Chapter XIV. The Magistrate is always to see the material which is placed before him when he passes the order. The possibility of further evidence is always there and to say that the Magistrate in cancelling a case acts judicially, on the evidence in possession of the police at that time would be to exclude for all time a revival of the case even it more evidence is forthcoming. An administrative order could be reviewed at any time while there are limitations placed on the review of a judicial order.

A direct authority on the point is a Division Bench judgment of the Patna High Court (Courtney Terrell C.J. and Scroope, J.) in Uma Singh and Others Vs. Emperor, It was held by the High Court of Patna that a Magistrate''s order directing a case, reported to him by the police u/s 173 of the Code of Criminal Procedure to be struck off, is a purely administrative or ministerial order and the principle of "autrefois acquit" cannot apply to it. Therefore, a Magistrate, having disposed of a police report u/s 173, is competent to revise his order and call for a charge sheet. At page 239 of the report Scroope J., who delivered the Judgment, considering the contention that the order so passed was judicial, stated thus "to accept this contention would mean, for instance, that if a Magistrate after disposing of a police report in this fashion, were to suspect or discover that the report was dishonest, his hands would be tied by his previous order." The matter was also considered in Full Bench of the Punjab High Court in Emperor v. Hayat Fateh Din AIR 1948 Lah. 184 . After a review of authorities Teja Singh J., who delivered the judgment of the Full Bench, observed that where the police after investigation finds that the report of offence made to it is false, and recommends to a Magistrate for cancellation of the report and the Magistrate cancels the report u/s 173, the Magistrate acts merely as an administrative or ministerial officer and not as a "Court". A judicial order envisages a dispute between rival parties and it cannot be said that an order of cancellation partakes such a characteristic. Their Lordships of the Supreme Court had occasion to deal with this aspect in Province of Bombay Vs. Kusaldas S. Advani and Others, . It was observed by the Chief Justice Kania that "when the executive" authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, "the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character." It was further observed by the learned Chief Justice that "it cannot be laid down broadly that in order that a determination may be a judicial or quasi-judicial one there must be a proposition and an opposition, or that a lis is necessary, or that it is necessary that there should be right to examine, cross-examine and re-examine witnesses. The true test is, whether the law, under which the authority is making a decision, itself requires a judicial approach. Prescribed forms are not necessary to make an inquiry judicial, provided in coming to the decision well recognised principles of approach are required to be followed." No one can say that in passing the order, which he did, the Magistrate was to consider anything but the facts which had been brought to his notice by the police. It could hardly be termed a judicial approach and much less could the order be called judicial.

Reliance for the petitioner is placed on a Single Bench authority of this Court in S.P. Jaiswal v. The State (1953) P.L.R. 77. It was observed, by Kapur J, (now Mr. Justice Kapur of the Supreme Court) at page-83 of this reported case that the Magistrate in passing the order on the report of the police officer u/s 173 is passing a judicial order. His Lordship was dealing with the question whether the proceedings, which had been brought against S.P. Jaiswal, should be quashed or not and he came to the conclusion that on the evidence on which the police had acted there was no material to support the prosecution. The point as such was not directly before this Court in Jaiswal''s case (1953) 55 P.L.R. 77.

On, a review of authorities, I am of the opinion, that there is preponderant weight of authority in favour of the view that the order cancelling a case passed by a Magistrate on the police report is primarily one of an administrative character. Such a matter could have been reviewed as has been done by the Additional District Magistrate, Delhi. The view taken by the learned Additional Sessions Judge appears to be correct. This revision accordingly fails and is dismissed.