Rabindra Nath Chakrabarty vs The State

Sen, J.—These two revisional applications are directed Against the order of Shri D. Majumder, Subdivisional Magistrate, Kalna, dated October 30, 1958, directing the police to submit a charge-sheet against the accused Petitioners under Sections 147, 304/149 and 201, I.P.C.

The facts of the case are briefly as follows:

On May 28, 1958, one Naran Chandra Dutta of Dhatrigram refugee Camp lodged a first information report at Kalna Police station alleging that at 4-30 p.m. a goat belonging to an inmate the camp was grazing in the field, west of the camp but villagers of Belkuli village drove away the goat; and when the owner of the goat tried to catch hold of the goat, some villagers armed with bows and arrows chased the owner w(sic) returned to the camp and again went back to the field with 6 7 other refugees; but then the villagers gathered in large number and shot arrows towards the refugees, and one of the refugees, Matilal Bala was fatally wounded with an arrow. The police started investigation after recording the first information. report under Sections 147 and 304, I.P.C. but ultimately the police submitted a charge-sheet before Shri D. Dajumder, Sub-divisional Magistrate, Kalna, against 6 persons, namely, Sujan Nandi, Hrishikesh Ghosh, Nalini Mohan Ghose, Rasku Soren, Sambhu Chandra Ghose, Kamalakanta Roy alias Biswas (Petitioners Nos. 1 to 6 in Revision Case No. 921 of 1959) u/s 147, only stating that the charge u/s 304, I.P.C, was not established by satisfactory evidence against any person. There after the widow of the deceased Matilal Bala filed a narazi petition before the learned Magistrate. The learned Magistrate on receiving the charge-sheet and the narazi petition passed an order on October 4, 1958, holding over the charge-sheet and calling for the police case diary. On October 30, 1958, he passed the order that he had perused the case diary and that there was evidence against some of the accused under Sections 304/ 149 and 201, I.P.C, and that the Investigating Officer should not pre-judge the case and that the case should go to the Judge and the Jury for adjudication. With the above observation the learned Magistrate directed submission of charge-sheet under Sections 304/149, 201 and 147, I.P.C He did not, however, mention against whom the charge-sheet was to be submitted in addition to the 6 persons against whom the police had already submitted a charge-sheet. He left this to be decided by the Investigating Officer on the basis of evidence recorded by such Officer. There after the Investigating Officer on November 11, 1958 submitted supplementary charge-sheet against 12 accused including that 6 accused already sent up. This charge-sheet was submitted under Sections 147, 148, 304 and 149; I.P.C against accused NOP. 1 to 10, u/s 147, I.P.C, only against accused No. Rabindra Nath Chakraborty, who is the sole Petitioner Revision Case No. 898 of 1959 and u/s 201, I.P.C, ag. accused No. 12, Umapada Bhattacharjee.

It is against the order of the learned Magistrate, date October 30, 1958, that these revisional applications have filed. Rabindra Nath Chakrabarty alone has filed Revision Case No. 898 of 1959, and the remaining 11 accused have the other Revision Case No. 921 of 1959.

The main point urged by Mr. A.K. Dutta, appearing to Petitioner in Revision Case No. 898 of 1959, and Mr. Fanil Sohan Sanyal, appearing for the Petitioners in the other case, that the learned Magistrate acted without jurisdiction in acting the police to submit a charge-sheet, in respect of certain med offences, namely, Sections 304/149, 201 and 148, I.P.C., when police had already submitted a charge-sheet against some persons u/s 147, I.P.C. Under the provisions of the Criminal Procedure Code, in a cognizable case the police have the power of investigation independently of the order of any magistrate (vide Section 156(1) of the Code.) Section 169 of the Code provides that if upon an investigation by the police, it appears the Officer-in-charge of the Police Station or to the Police, Officer making the investigation that there is not sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to a Magistrate, such Officer shall release the accused on his executing a bond to appear before a Magistrate if and when so required. Section 170 of the Code. provides that if upon an investigation it appears to the Office-in-charge of the Police Station that there is sufficient evidence reasonable ground as aforesaid, such Officer shall forward the accused under custody to a Magistrate empowered to take, cognizance of the offence upon a police report. Section 173 of the Code provides that every investigation under Chapter 14 shall be completed without unnecessary delay, and as soon as it is completed the Officer-in-charge of the Police Station shall upward to a Magistrate empowered to take cognizance of the hence on a police report, a report in the form prescribed by State Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case. The charge-sheet or the final report by the police is submitted u/s 173, Code of Criminal Procedure, but the provisions of Sections 169 and 170 of the Code show that the police are to use their own judgment in submitting final report or a charge-sheet, because in both the sections it is provided that when it appears to the Officer-in-charge of the Police Station or the Police Officer making investigation that there is no sufficient evidence or reasonable ground of suspicion the Police Officer shall not proceed against the accused, and when it appears to the Police Officer that there is sufficient defence or reasonable ground as aforesaid he shall send up the caused for trial. There is no provision in the Code under which a Magistrate may interfere with the judgment or discretion of the Police Officer holding investigation, though u/s 156(3) of the Code, a Magistrate may order an investigation even in respect of a cognisable offence.

It is true that occasionally the Magistrates empowered to the cognizance of offences upon a Police report do direct the Police to submit a charge-sheet when the evidence recorded in the police diary appears to justify a charge-sheet. As to the legality of such a procedure, however, the different HIGH Courts have taken different views. Thus, the Patna High Court, the Orissa High Court and the Allahabad High Court have held that there is nothing illegal in the Magistrate thus asking the police to submit a charge-sheet. They have taken the view that although there is no special provision for ordering the police to submit a charge-sheet, there is nothing in the Code to prohibit it and, therefore, there does not appear to be any reason why in a proper case the Magistrate may not call for a charge-sheet if after scrutiny of the police report he finds sufficient materials for the trial of the accused. Reference may be made in this connect lion to the cases Raghunath Puri and Others Vs. Emperor, , Shukadeva Sahay Vs. Hamid Mian, and Mahabir Prasad Agarwala and Another Vs. The State, and Rama Sankar v. Emperor AIR (1958) All 525 . On the other hand, decisions of Assam, Madhya Pradesh and Madras High Courts are that the Magistrate has no jurisdiction to call for a charge-sheet. In this connection reference may be made to Rathina Gramany and Others Vs. Emperor, , Amar Premanand Vs. The State, and Abdul Rahim v. Abdul Muktadin and Ors. AIR (1953) Ass 112. There does not appear to be any definite ruling of this High Court on this point.

Mr. Harideb Chatterjee, appearing for the State has referred to an observation made by a Bench of this Court in Ganga Prasad Singh v. Emperor (1940) 45 C.W.N. 195. at page 196. In that case the Petitioner who was a Constable lodged an information at the thana that 5 persons had rescued a man whom he had arrested in execution of a warrant for arrest and so committed an offence u/s 225(b) of the Indian Penal Code. The Investigating Officer, however, did not submit a charge-sheet. In his opinion the case was a doubtful one, then one of the accused started a case u/s 211, I.P.C; against the Petitioner. It was held that the private complaint could not be entertained in view of the provisions of Sections 195 and 476. Code of Criminal Procedure. In the course of the judgment it was observed that when the police submitted fine report, it was open to the Magistrate to call for a charge-sheet. This is the remark that Mr. Chatterjee has relied upon; but this was only an obiter and necessarily the question whether it is within the competence of a Magistrate to call for a charge-sheet when the police have submitted a final report was not considered, though it was assumed that he has such power. Mr. Chatterjee as also referred to another Division Bench decision of this Court, namely, Jiban Krishna Samanta v. The State ILR (1950) (2) Cal. 66. It has held in that case that u/s 190(1) of the Code a Magistrate take cognizance of an offence and not against an offender; and when on receipt of a final report u/s 173 of the Code, a Magistrate recorded the order "enter true Section 302" and discharged the accused, but subsequently after perusing the police case diary issued summons on the accused u/s 304, I.P.C., the Magistrate must be deemed to have taken cognizance when he recorded the order "enter true Section 302" and there was nothing in the Code to prevent him from issuing process at a later stage on perusal of the police diary, in spite of the fact that he had passed an order of discharge at the time when the final report was submitted by the police.

This case, therefore, deals with the power of the Magistrate to take cognizance and summon the accused even when the police submits a final report. It does not deal with the question whether it is within the competence of the Magistrate to direct the police to submit a charge-sheet. Mr. Dutta has referred to certain observations of the Privy Council in the case of AIR 1945 18 (Privy Council) . in support of his contention that the Magistrate has no jurisdiction to call for a charge-sheet from the police. The High Court of Lahore had in exercise of inherent power u/s 561A of the Code quashed proceeding going on in pursuance of the two first information reports. The proceedings were stopped when the police investigation was going on. The High Court, therefore, purported to quash the investigation by the police. The Privy Council held that the High Court had no power to do so. In this connection also the following observations were made by Lord Porter who delivered the judgment of the Privy Council.

In India 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 unfortunate if it were 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, always, of course subject to the right of the Court to intervene in an appropriate case when moved u/s 491, Code of Criminal Procedure to give directions in the nature of habeas corpus. In such a case as the present, however, the Court''s functions begin when a charge is preferred before it and not until then.

The facts of the case before us are no doubt different, because we are now concerned not with the question whether Magistrate can intervene to stop a police investigation, but with the question whether the Magistrate can direct the police to submit a charge-sheet when the police have already submitted a final report or submitted a charge-sheet in respect of a different offence. The observation of Lord Porter, however, that the judiciary and the police should each be free to exercise its own functions, is of general application. It has already been pointed out that under Sections 169 and 170 the police have to submit a final report or a charge-sheet according to the satisfaction of the Officer-in-charge of the Police-Station or the Investigating Officer, that is, the police will submit a charge-sheet when he appears to the Officer-in-charge or the Investigating Officer that there is sufficient evidence or reasonable ground for proceeding and the police will submit a final report when it appear to the police officer that there is no sufficient evidence and no reasonable ground for suspicion. If the police are to be left to exercise their own functions it is clear that the judiciary should be held incompetent to direct the police to submit a report in a particular way. The Magistrate, however, has sufficient jurisdiction under the general provisions of the law to issue process if on a perusal of police diaries he is satisfied that there is a prima facie case against the accused. Therefore, the interest of justice do not require that the Magistrate should be held competent to interfere with the discretion of the police by directing the police to submit a charge-sheet in a case where the police have submitted a final report or to submit a charge-sheet different from what the police in the exercise of their discretion originally submitted.

It is well settled that a Magistrate takes cognizance of the offence and not of the offender. In the case of Sk. Saifar v. The State of West Bengal Criminal Revision Case No. 1072 of 1959 decided by us on November 22, 1960, we held that where the police had submitted a charge-sheet against some persons, and the Magistrate on perusal of the police papers and documents came to the conclusion that there was a prima facie case against certain other persons, the Magistrate was competent to summon such other persons, because on the basis of the charge-sheet submitted he had already taken cognizance, and he could summon all the persons who appeared to him to be concerned in the offence. Similarly, it is also well settled that where Magistrate has taken cognizance of an offence, but the facts that close other offences not mentioned in the petition of complaints or in the charge-sheet, the Magistrate is competent to frame charges in respect of such offences also, and is deemed to have taken cognizance of such offences which arise from the same facts, provided that for any of such offences there is no bar the taking of cognizance, e.g., under Sections 196 to 199 of the Code.

In respect of other offences for which sanctions under Sections 196 to 199 of the Code is not required, the Magistrate may frame charges even though the charge-sheet or the petition of complaint may not mention the offences, where such offences are disclosed by the facts or the evidence in the case.

Thus, in the present case, when the police submitted a charge-sheet against 6 accused persons u/s 147, I.P.C, only, and the learned Magistrate on perusal of the memo. of evidence and other documents submitted by the police u/s 173(4) of the Code came to the conclusion that offences under Sections 304/149 and 201, I.P.C; were also made out by the evidence recorded, it was open to the learned Magistrate to take cognizance accordingly, and also to summon the additional accused persons who appeared to tie concerned on the basis of the evidence recorded by the police. It is true that when the charge-sheet is submitted by the police in respect of offences u/s 147, I.P.C; normally the Magistrate would have to proceed u/s 251A of the Code, but Section 347 of the Code makes it clear that if in any enquiry or trial before the Magistrate it appears to him at any stage or the proceedings that the case is one which ought to be tried by court of Sessions, he may commit the accused to Sessions; that is, he may convert the enquiry from one u/s 251A to one u/s 207A of the Code. Even before he begins the actual enquiry, if on perusal of the police report and other papers he comes to the conclusion that the offence prima facie made out is not merely u/s 147, I.P.C; but also under Sections 304/149 and 201, I.P.C; he may record an order accordingly and adopt the procedure u/s 207A after summoning such additional accused as appear to him to be concerned in the offences on the basis on the materials before him. The facts that there was a narazi petition filed by the widow of the deceased is immaterial in this case, because the Magistrate may proceed suo motu on the examination of the police papers. Since there was a charge-sheet originally, the Magistrate must be deemed properly to have taken cognizance on such charge-sheet, and having taken cognizance of the offence he could take note of the other offences involved and summon all the offenders concerned; and the case not being started on the narazi petition treated as a petition of complaint, the question of examination of the complainant u/s 200 of the Code of Criminal Procedure could not arise.

Our conclusion, therefore, is that it is not competent for a Magistrate even when he is dissatisfied with the charge-sheet or the final report submitted by the police, to call for a charge-sheet whether generally or in respect of specified offences, but the proper course for him to adopt in a case where a final report is submitted is to take cognizance of the offence disclosed, if any, from the facts which appear from the final report of the police and summon the accused who on perusal of the police papers appear to him to be concerned in the offence; and in a case where the final report does not disclose an offence or the police papers do not reveal a prima facie case against any accused and there is a narazi petition he may treat it as a petition of complaint and in such case he must examine the complaint u/s 200, Code of Criminal Procedure; and then proceed in accordance with law, as held in Akshoy Kumar Dutta v. Jogendra Chandra Nandi (1955) 60 C.W.N. 3450. and when the police have submitted a charge-sheet in respect of some of the offences only which appear to the learned Magistrate to be disclosed by the facts or the evidence, the learned Magistrate must take cognizance on the charge-sheet as it is but it is open to him to record an order that certain other offences are disclosed by the evidence, and he will proceed u/s 251A or Section 207A according to the nature of the other offences and it is also open to him to summon additional accused it in his opinion the evidence and materials before him disclose a prima facie case against them in such a case, he takes cognizance on the police report even if there is a narazi petition, and does not need to examine the complainant on oaths. Accordingly, the order of the learned Magistrate, dated October 30, 1958, calling for a charge-sheet in respect of specified offences must be set aside; but it will be open to the learned Magistrate or His successor Magistrate to record an order that offences under Sections 304/149 and 201 are disclosed by the materials on the record, if after perusal of the police papers the learned Magistrate is of such opinion, and the learned Magistrate may also summon additional accused if on perusal of police papers he is of the opinion that there is a prima facie case against such other accused.

It has been mentioned before in stating the facts of the case that in pursuance of the order of the learned Magistrate, dated October 30, 1958, calling for a charge-sheet the police submitted a supplementary charge-sheet on November 11, 1958, and cognizance was taken thereon by the learned Magistrate. In the case of Narendra v. The State AIR (1956) Ass 127. it was held that a Magistrate had no power to call for a charge-sheet from the police, but at the time it was held when a charge-sheet had been submitted in consequence of the order of the Magistrate calling for a charge-sheet, it should be treated only as an irregular way of summoning the accused, and the irregularity in summoning would not justify the quashing of the charge-sheet. In our opinion, however, if the trial had proceeded to a conclusion the Irregularity in summoning the accused by way of a direction of the learned Magistrate for submission of a charge-sheet might he condoned u/s 537 of the Code of Criminal Procedure; but when the accused Petitioners have challenged the irregularity at the initial stage, before the case has proceeded to trial, we think it proper to interfere and set aside the supplementary charge-sheet which the police submitted in consequence of the order of the learned Magistrate, which we hold to be without jurisdiction. The position, therefore, is that the charge-sheet submitted by the police on October 4, 1958, stands good, but the learned Magistrate may proceed in the light of the observations made above.

The Rules are made absolute subject to the observations as above.

K.C. Sen, J.

I agree.