Mumtaz and Others vs State of U.P. and Another

N.N. Mithal, J.—Against the applicants, the first information report was lodged on 2-11-79 under Sections 147, 148, 149, 323, 324, 504 and 506 IPC. The injured was also medically examined on the same day. After investigation, the police came to the conclusion that it was not a fit case in which any chargesheet should be submitted. A final report was, therefore, submitted before the Magistrate on 26-12-1979. The learned Magistrate did not agree with the report and by his order dated 19-3-80 he summoned the accused to face trial. Aggrieved by the order, the applicants went in revision but that too was dismissed by the Sessions Judge by his order dated 30-10-80 relying upon a number of cases cited in his order. In these circumstances, the applicant have approached this Court for quashing the order of the two courts below.

For the applicants, main reliance has been placed upon a Division Bench decision of this Court reported in Nirmal Kumar v. State of U.P. 1979 ACC 38 (Editor''s note : It appears to be 1978 ACR 455 instead of Nirmal Kumar v. State of U.P.) where it was held that the first information report and the injury report sent to the Magistrate along with the final report of the police did not amount to "information received from a person other than a police officer" within the meaning of Section 190(1)(c) Code of Criminal Procedure. The contention here is that after the police had investigated the matter and submitted its report giving its opinion that no case is made out against the accused persons the Magistrate cannot take cognizance under Sub-clause (b) of Section 190. It is conceded that the Magistrate is not bound to accept the police report but it is contended that there must be some material brought before the Magistrate under sub Clause (c) of Section 190 Code of Criminal Procedure which excludes any information given by the police officer and then only the Magistrate can come to a conclusion whether the accused should be summoned or not. Crux of the argument is that once the police report is submitted saying that no case is made out, the power of the Magistrate to take cognizance u/s 190(b) Code of Criminal Procedure comes to end and he must rely upon some other material acceptable u/s 190(c) Code of Criminal Procedure for summoning the accused. Reliance is also placed on the case of Ajai Singh v. Nathi Lal 1978 AWC 225 : 1978 ACR 140 for the same purpose. Relying on these very two cases is another case reported in Gajadhar Singh v. State of U.P. 1980 CLR 87.

Section 190 Code of Criminal Procedure lays down the circumstances under which a Magistrate can take cognizance of any offence. Three different modes are provided namely, (i) upon receiving a complaint of facts which constitute offeree i.e. on the basis of the complaint (ii) upon a police report of such facts and lastly (iii) upon information received from any person other than the police officer or upon his own knowledge that such an offence has been committed. In this case, we are not concerned with the first condition as the proceedings were not started on complaint by any one. Instead proceedings have been started on the basis of the first information report lodged with the police on 2-11-79. After investigation, the police was of the opinion that it was not a fit case in which the chargesheet should be submitted. However, in sub Clause (b) the relevant words are ''upon police report of such facts''. The word ''of such facts, refers to the facts which constitute an offence of which the accused are charged with. The police report is defined in Section 2 sub Clause (r) Code of Criminal Procedure as under:

The police report means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173.

Chapter XII deals with the information to the police and their powers to investigate. We have Section 169, which deals with those cases in which on investigation the police officer comes to the conclusion that sufficient evidence was not available and there was no reasonable ground of suspicion to justify forwarding of the accused before the Magistrate. Section 170 deals with those cases in which on investigation police officer finds that there was sufficient evidence or reasonable ground of suspicion to justify sending of the accused for trial before the Magistrate. Later part of these sections deal with the procedure which the police and the Magistrate are supposed to observe when such a report is submitted by the police. Section 172(2) Jays down the procedure and requirements of police report which is submitted to the Magistrate after investigation by the police officer.

The argument advanced on behalf of the Respondent was that even when the police officer submits his report giving an opinion that no offence is made out, it is still a "police report" within the meaning of Section 190(b) and on the basis of the documents filed by the police along with its report, the Magistrate may, without agreeing with the opinion of the police, form a secondary opinion and may proceed to take cognizance of the offence. This argument however, does not take into consideration the words ''report of such facts'' which to my mind are very material. These words only indicate that for entitling the Magistrate to take cognizance of an offence the police report under Sub-clause (b) must be of such facts which go to constitute an offence with which the accused was charged. If the report does not say that an offence has been made out much a report cannot be said to be a ''police report of such facts'' and it therefore, cannot be made basis for taking cognizance u/s 190(b) by the Magistrate. If that be the position the only enabling provision under which cognizance can be taken by the Magistrate was Sub-clause (c). The Magistrate has in this case relied upon the injury report filed along with the final report submitted by the police. This has been held by a Division Bench to be "an information received from a police officer" for the purpose of Section 190(c). Such an information is clearly excepted under sub-clause (c) of Section 190 and on its basis therefore the Magistrate was not competent to take cognizance of the offence. In my opinion the Magistrate acted beyond his jurisdiction in summoning the accused,

The learned Counsel for the opposite parties tried to defend the order of the Magistrate on the basis of some cases referred to by the Sessions Judge also. Abhinandan Jha v. Dinesh Misra 1968 SC 117 was a case based on the language used in the old Code of Criminal Procedure whether in sub Clause (c), the words "or on suspicion" also existed. In the case of Nirmal Singh Vs. The State of Uttar Pradesh and Others, a Division Bench was dealing with a case where the question before it was whether the court was acting as a court while taking cognizance of an offence u/s 190. In Deep Chand v. Abdul Gaffar 1979 ACR 315, the facts were slightly different. The final report was submitted and along with it the case diary was also filed. On the basis of this material, the Magistrate came to the conclusion that prima facie case has been made out and, therefore, he ignored the police report and summoned the accused for appearing before him. In this case the order passed by the Magistrate was held to be illegal and was quashed.

From the above discussion, it is clear that a Magistrate cannot rely upon any material submitted by the police officer along with his report u/s 173(2) Code of Criminal Procedure and on its basis no cognizance of the offence can be taken u/s 190(b) Code of Criminal Procedure. In some cases referred to by the Sessions Judge protest petitions had been filed and these were treated as "other information" received by the Magistrate from a person "other than a police officer". Those cases stand on different footing.

In the result I find force in this application which is accordingly allowed and the order of the Magistrate dated 19-3-80 and that of the Sessions Judge dated 30-10-80 are hereby quashed. The matter will now be sent down to the Magistrate who after considering all the legal material before him, will proceed afresh in the light of my observations made earlier.