D. Siva Subramanian and Others vs State and S. Sivakami

G. Rajasuria, J.—This petition has been filed to quash the charge sheet filed in unnumbered P.R.C. of 2009 in Cr. No. 70 of 2008 pending

on the file of the learned Judicial Magistrate No. 1, Tirunelveli.

Compendiously and concisely, the relevant facts absolutely necessary for the disposal of this petition would run thus:

The police registered a case in Cr. No. 70 of 2008 for the offences punishable under Sections 498(A), 313 I.P.C. and Section 4 of Dowry

Prohibition Act and Section 4 of Women Harassment Act, as against several persons on the complaint lodged by the defacto complainant alleging

dowry harassment and other offences, whereupon the police investigated into he matter and laid the charge sheet which was returned by the

learned Magistrate concerned for rectifying certain defects as found enunciated in the report submitted by the learned Magistrate to this Court.

The learned Counsel for the petitioners would make a supine submission to the effect that he is not insisting for quashment of the charge sheet,

but he prays for a direction to the learned Magistrate to act as per law by using his own discretionary powers.

Heard the learned Government Advocate (Criminal Side) for the first respondent.

Considering the facts and circumstances of the case, I would like to recollect the following decisions of the Honourable Apex Court:

(i) Abhinandan Jha and Others Vs. Dinesh Mishra, .

(ii) H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), . An

excerpt from it, would run thus:

It is seen from the provisions to which we have referred in the preceding paras that on receipt of a complaint a Magistrate has several courses

open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present u/s 200.

Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint u/s 203. If in his opinion there is sufficient

ground for proceeding he may issue process u/s 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the

case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or

not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the

complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may,

instead of taking cognizance of the offence, order an investigation u/s 156(3). The police will then investigate and submit a report u/s 173(1). On

receiving the police report the Magistrate may take cognizance of the offence u/s 190(1)(b) and straight away issue process. This he may do

irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report u/s 173 will contain

the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions

drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The

Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on

the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present

u/s 200 of the Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier

ordered an investigation u/s 156(3) and received a report u/s 173 will not have the effect of total effacement of the complaint and therefore the

Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an

investigation u/s 156(3) and receives a police report u/s 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient

ground for proceeding further and drop action; (2) he may take cognizance of the offence u/s 190(1)(b) on the basis of the police report and issue

process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of

the offence u/s 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses u/s 200. If he

adopts the third alternative, he may hold or direct an inquiry u/s 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as

the case may be.

In Abhinandan Jha v. Dinesh Mishra, the question arose whether a Magistrate to whom a report u/s 173(1) had been submitted to the effect that

no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the

police. This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet. It was open to the Magistrate to agree

or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept

the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect u/s

156(3). If ultimately the Magistrate was of the opinion that the fact set out in the police report constituted an offence he could take cognizance of

the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take

cognizance of the offence notwithstanding the contrary opinion of the police the court observed that the Magistrate could take cognizance under

section 190(1)(c)"". We do not have any doubt that the reference to ""section 190(1)(c)"" was a mistake for ""section 190(1)(b)"" That appears to be

obvious to us. But Shri Kapil Sibal urged that the reference was indeed to Section 190(1)(c) since at that time Section 190(1)(c) included the

words ''or suspicion"" and the court had apparently taken the view that the Magistrate could take cognizance of the offence not u/s 190(1)(a) as if

on a police report but u/s 190(1)(c) as if ""on suspicion"". We do not agree with this submission. Section 190(1)(c) was never intended to apply to

cases where there was a police report u/s 173(1). We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis

of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely

because the Magistrate and the police arrived at different conclusions from the facts. The Magistrate is not bound by the conclusions arrived at by

the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant states the relevant facts in his

complaint and alleges that the accused is guilty of an offence u/s 307 of the Indian Penal Code the Magistrate is not bound by the conclusion of the

complainant. He may think that the facts disclose an offence u/s 324 of the Indian Penal Code only and he may take cognizance of an offence u/s

324 instead of Section 307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eyewitnesses to a murder

but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the

credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of

the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking

cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. It could not be said in such a case

that he was taking cognizance on suspicion.

In Tula Ram v. Kishore Singh the Magistrate, on receiving a complaint, ordered an investigation u/s 156(3). The police submitted a report

indicating that no case had been made out against the accused. The court, however, recorded the statements of the complainant and the witnesses

and issued process against the accused. It was contended that the Magistrate acted without jurisdiction in taking cognizance of the case as if upon

a complaint when the police had submitted a report that no case had been made out against the accused. This Court held that the Magistrate acted

within his powers and observed that the complaint did not get exhausted as soon as the Magistrate ordered an investigation u/s 156(3). We are,

therefore, unable to agree with the submission of Shri Sibal that the Magistrate acted without jurisdiction in taking cognizance of the offence and

issuing process to the accused notwithstanding the fact that the police report was to the effect that no case had been made out.

(iii) Tula Ram and Others Vs. Kishore Singh, .

(iv) Ram Lal Narang Vs. State (Delhi Administration), .

The learned Magistrate also may keep in mind the following precedents:

(i) State of M.P v. Mishrilal reported in 2003 SCC (Cri.) 1829.

(ii) Sudhir and Others etc. Vs. State of M.P. etc., .

(iii) Nathilal and Ors. v. State of U.P. and Anr. reported in 1990 SCC (Crl.) 638.

A mere perusal of the above said decisions would amply make the point clear that in matters of this nature, the crucial role to be played is by the

learned Magistrate concerned.

Accordingly, the learned Judicial Magistrate concerned shall deal with the matter as per law untrammelled or uninfluenced by any of the

observations made by this Court and process it as expeditiously as possible.

With the above observations, this petition is disposed of. Consequently, the connected Miscellaneous Petitions are closed.