Harbir Singh vs The State and another

Teja Singh, C.J.—This application which purports to be u/s 561-A of the Criminal Procedure Code, and Section 226 of the Constitution of India, has arisen under the following circumstances.

On the strength of a report made against the petitioner by the Custodian of the Muslim Evacuee Property, a case u/s 409, I.P.C., was registered by the Police. After the case had been investigated the Police came to the conclusion that no offence had been made out against the petitioner and recommended that the case be cancelled. On 23-6-1950 the Magistrate, before whom the report was placed, ordered that the person (Brij Lal Palta) at whose instance the Custodian had started proceedings be summoned. Brij Lal Palta appeared on 10-7-1950 and requested the Court to grant him opportunity to adduce evidence in support of his allegations. On 11-8-1950 the Magistrate recorded Brij Lal Palta''s statement and then made an order sending for the record of a case. Three or four adjournments were given for this purpose. Inspite of the fact that no process was issued by the Magistrate to the petitioner, he appeared of his own accord in Court on 11-8-1950 and made an application which was rejected by the Magistrate. After that the case was adjourned from time to time and Brij Lal Palta was asked to produce his evidence. The application to this Court was made on 20-11-1950.

It is contended on behalf of the petitioner that the whole procedure adopted by the Magistrate was illegal and that he had no power to take any evidence and it is prayed that in the first place the Magistrate should be directed to decide the matter pending before him without taking into consideration the evidence that he has already recorded and without taking further evidence, or in the alternative that he should decide the case without delay.

After hearing the petitioners counsel and the learned Advocate General my opinion is that neither Article 226 of the Constitution of India nor Section 561-A Criminal Procedure Code has any application and since, however, the matter has come before us and it appears to me that the proceedings are being taken by the Magistrate in his judicial capacity it is desirable that we should pronounce our opinion on the points raised before us and afford proper relief u/s 439, Criminal Procedure Code.

Both sides are agreed that the report which was submitted to the Magistrate was u/s 173, Criminal Procedure Code. It was held by a Full Bench of the Lahore High Court, of which I was a member, in AIR 1948 184 (Lahore) that when a Police report is made to a Magistrate u/s 173, Criminal Procedure Code for the cancellation of the report and the Magistrate cancels the report, he acts merely as an administrative or ministerial officer and not as a Court. Relying upon this authority learned counsel for the petitioner contended that the Magistrate had no right to summon any evidence. He further contended that when a Magistrate takes evidence in a case he can do so only in his judicial capacity, that is to say, after he had taken jurisdiction of a case and jurisdiction of a case can be taken only u/s 190, Criminal Procedure Code, none of the conditions of which was satisfied here. Section 190 lays down that a Presidency Magistrate, a District Magistrate, a Sub-Divisional Magistrate or 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; and (c) Upon information received from any person other than a Police officer, or upon his own knowledge or suspicion, that such an offence has been committed.

Clause (a) does not apply, because there was no complaint before the Magistrate, nor was there any applicability of clause (c) because the Magistrate had before him a Police report and it was evidently on that report that he acted. As regards clause (b) the position of the learned counsel is that that too had no applicability because before cognizance can be taken of an offence on a police report it would be shown that the report amounts to a charge but in the present case the report was that no offence had been committed. In support of this contention counsel cited ''Sarba Mohaton v. Emperor'', 20 Ind Cas 211 (Cal). In that case a report had been lodged with the Police which was found to be false after investigation and the Police recommended that the case be cancelled. The Sub-Divisional Magistrate, before whom the report was placed for cancellation of the offence called upon the complainant to prove his case and then launched the prosecution against him u/s 476. It is not mentioned in so many words in the judgment but it is obvious that the complainant had been given an opportunity by the Magistrate to substantiate his allegations by evidence. It was observed by the learned Judges that there was no provision of law under which the Magistrate passed the order. They also observed that Section 202, Criminal Procedure Code under which a complainant can be asked to adduce evidence in support of his case before process is issued to the accused had no applicability for the reason that there was no complaint.

The other case cited before us is ''Benkata Subba Rao v. Naraharisetty Anjanayulu'', AIR 1932 Mad 673. The facts of that case were that a report was made to the Police about kidnapping. The Police after investigation sent in a referred charge-sheet to the Sub-Divisional Magistrate who ordered the Police to put in a charge sheet. In reply to this the Police again put in a referred charge-sheet. Meanwhile, the Sub-Divisional Magistrate who passed the order directing a charge-sheet to be put in was succeeded by another. The latter agreed with the Police and directed the case to be treated as one of a civil nature. An application to revise this order was made before the Sessions Judge who ordered further inquiry into the complaint. Against this order of the Sessions Judge the accused made a revision petition to the High Court. It was held that since the order of the Sub-Divisional Magistrate did not amount to taking cognizance of the offence it could not be revised by the Sessions Judge. This case does not therefore, exactly cover the point which has arisen in the present case, but it is an authority for the proposition that when a case comes to a Magistrate u/s 173, Criminal Procedure Code, it is not a judicial proceeding. It follows that all that a Magistrate has to do on receiving the police report is to make an order that the offence be cancelled, or to make a note that he does not accept the recommendation of the police and let the matter stand at that. The Section does not empower the Magistrate to call for any evidence.

The learned Advocate General drew our attention to a Bench decision of the Madras High Court ''Rangaswami Goundan v. Emperor'' AIR 1934 Mad 175 where a complainant whose case had been found to be false by the Police was asked to appear in Court and show cause why his complaint should not be struck off. No question of examining any evidence arose and accordingly the decision does not go counter to the contention of the petitioner''s counsel. Moreover, it was held by the Bench that the Court while giving notice to the complainant and asking him to show cause did not act judicially but only in an executive capacity.

The point stressed before us by the learned Advocate General was that when the police makes a final report in a case and that report comes to a Magistrate for action it becomes his duty to apply his mind to the facts and in order to be able to take a correct decision it may sometimes be necessary for him to hear the person at whose instance the Police started the investigation, or even to take evidence. I cannot accept this contention in its entirety. Section 173 deals with the final report of the Police and it can either amount to a charge or it may contain the recommendation that since no offence having been made out the case should be cancelled. If the report is that an offence had been committed the Magistrate can take cognizance of it u/s 190 (1) (b). If on the other hand, the report is that the case is false, clause (1) (b) of Section 190 does not apply and no cognizance of the offence can be taken by the Magistrate. I agree with the learned Advocate General that the Magistrate has every right to look into the Police Diaries, to carefully scrutinise the investigation and to make up his mind independently of what the Police has said, as to whether the recommendation made by them is well-founded. In fact, I would go further and say that it is the Magistrate''s duty to do all this. This means that it is open to the Magistrate to accept the Police recommendation or not. If he accepts it he is to cancel the case, but if he does not all that he can do is to make a note that he does not agree with the police and does not accept their recommendation. I also agree with the learned Advocate General that before making an order the Magistrate, if he so desires, may hear the complainant but he cannot call upon him to produce any evidence or to record evidence that may be produced before him either by the complainant or the alleged offender. I may point out that the Magistrate''s order that the offence be cancelled or his refusal to accept the Police recommendation cannot prejudice either party for the simple reason that the order is not judicial and the aggrieved party can always agitate the matter further. If the aggrieved party be the complainant he can put in a complaint in Court and the Magistrate after having taken cognizance of it can record preliminary evidence u/s 202, Criminal Procedure Code, but as pointed out in ''Sarba Mohaton''s case'', 20 Ind Cas 211 (Cal) section 202 has no applicability in the case of a Police report.

The result is that in exercise of the powers vested in this Court u/s 439, Criminal Procedure Code, I would set aside the lower Court''s order whereby he called upon or allowed the complainant to adduce evidence to quash the proceedings relating to the evidence that has already been recorded by him and to send back the case to him with the direction that he should make a proper order u/s 173, Criminal Procedure Code in the light of what has been said above. The record of the case shall be sent back to the Court below forthwith. The petitioner has been directed to appear before the Magistrate on 18th April, 1951.

It has been brought to my notice that the Magistrate concerned (S. Diali Ram) has now been transferred from Faridkot to Mansa. Since Mansa is in the same District and though stationed at Mansa S. Diali Ram''s jurisdiction extends to the whole District and it was he who initiated the proceedings for taking evidence etc. the case shall go to him for further proceedings.

Kesho Ram Passey, J.

I agree.