Rajendra Ardhvaryu vs Sheikh Raees

Narain Singh "Azad", J.

The petitioner seeks quashment of order dated 14-8-2002 passed by Shri Ashok Sharma, JMFC, Tikamgarh, in unregistered complaint filed by, respondent against this petitioner for offences publishable under sections 406, 409, 420, 467 and 468 of the Indian Penal Code, in addition to the aforesaid complaint itself along with this direction that the learned JMFC be restrained from taking any action in the matter.

On 10-12-2001, the respondent filed the aforesaid complaint marked as Annexure P/9 against this petitioner in the Court of CJM Tikamgarh, for offences punishable under sections 406, 409, 420, 467 and 468 of the Indian Penal Code. The learned CJM transferred the complaint to the Court of Shri Ashok Sharma, JMFC, Panna, who on the same day, forwarded a copy of the aforesaid complaint to police station Kotwali Tikamgarh, in exercise of powers conferred by subsection (3) of section 156 of the Criminal Procedure Code (hereinafter referred to as the "Code"), for investigation and report. Photo-copy of this order is marked as Annexure P/10. The learned JMFC received report from Kotwali Tikamgarh. On consideration of the report of police station Kotwali, Tikamgarh, dated 6-8-2002, the learned JMFC passed the following order (certified copy of which is on record), which is sought to be quashed:-

Referring to Abhinandan Jha vs. Dinesh Mishra and Abhinandan Jha and Others Vs. Dinesh Mishra, and R. Sarala Vs. T.S. Velu and Others, and Prabhanshu Kamal and others vs. Awadhesh Singh Bhadoriya and another, it is argued on behalf of the petitioner that a Magistrate has no jurisdiction to direct police to file a police report (chalan) u/s 173 Criminal Procedure Code.

In R. Sarala vs. T.S. Velu (supra) the opinion of public prosecutor was ordered to be taken on the point if challan has to be filed and in that position it is dictated by their Lordships of the Supreme Court that "the formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer incharge of the police station and none else." In the present case, the Investigating Officer is not found directed to take opinion of any Officer for forming his opinion whether the charge-sheet (challan) is to be filed, therefore, the cited authority is not applicable in this case.

In Prabhanshu Kamal vs. A.S. Bhadoriya (supra), without going through the contents of the compliant, the learned Special Judge, directed that the complaint filed against public servant, be investigated by S.P. (Lokayukta), Gwalior, which is not an authority to whom the complaint may be sent for investigation under the provisions of the Criminal Procedure Code and hence, this Court deprecated the aforesaid action. But in this case, the facts are different, because on receipt of unsatisfactory report the learned JMFC is found to have sent a copy of complaint to S. P. with intent to ensure that investigation is properly done, as contemplated in sub-section (1) of section 156 of the Code, therefore, the above pronouncement also does not come to the rescue of the petitioner.

In Suresh Chand Jain Vs. State of Madhya Pradesh and Another, also, it is found dictated by their Lordships of Supreme Court that before taking cognizance, the Magistrate may forward the complaint to police for registering the first information report and then to conduct the investigation. It is also further found explained by their Lordships that even if a Magistrate does not direct for registration of first information report and forwards the complaint for investigation only, the police has to register the first information report, because after registering the first information report only, the police officer may take further steps contemplated in Chapter 12 of the Code. The relevant para 10 of the aforesaid judgment, runs as under:-

The position is thus clear, any judicial Magistrate, before taking cognizance of the Offence, can order investigation u/s 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in-charge of the police station as indicated in section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation u/s 156(3) of the Code that an FIR should be registered, it is the duty of the Officer-in-Charge of the police station to register the FIR regarding the cognizable offence disclosed by complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.

Then, in Abhinandan Jha vs. Dinesh Mishra (supra), the police had already sent a final report u/s 169 of the Code, therefore, it is explained by Hon''ble the Supreme Court that there is no expressly or impliedly conferred power under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report u/s 169 of the Code, stating that'' there is no case made out for sending up an accused for trial. The functions of the Magistracy and the police are entirely different, and though, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view. The relevant part runs as under:-

Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to place the accused for trial, is that of the Officer-In-Charge of the police station and that opinion determines whether the report is to be u/s 170, being a ''charge-sheet'', or u/s 169, a ''final report''. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by as. But he cannot direct the police to submit a charge-sheet, because the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. That will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report either u/s 169, or u/s 170, depending upon the nature of the decision. Such a function has been left to the police under the Code.

It is also found dictated by their Lordships of Supreme Court in para No. 115 at page 122 of the aforesaid judgment, that:-

Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, u/s 156(3) to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, u/s 156(3). The police, after such further investigation may submit a charge-sheet, or again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, u/s 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report.

In the present case also, when the learned Magistrate did not feel satisfied with the report dated 6-8-2002 sent by Kotwali Tikamgarh, in connection with his order dated 10-12-2001, wherein he forwarded respondent''s complaint to police station Kotwali, Tikamgarh, under sub-section (3) of section 156 of the Code, and hence by impugned order dated 14-8-2002, he is found to have directed T.I. Kotwali Tikamgarh, for further investigation with information to S.P. Tikamgarh to ensure that investigation is properly done. Thus, the learned JMFC is not found to have committed any illegality in passing impugned order. Then, still on receipt of this order dated 14-8-2002, the S.H.O. is not bound to file the police report (challan) u/s 173 of the Code, if on investigation, he forms an opinion that no case is made out for sending up the accused for trial.

In result, in the absence of any illegality in the impugned order dated 14-8-2002, passed by JMFC, Tikamgarh, the exercise of inherent powers, is not found to have been necessitated and hence, this petition does not merit, which is, accordingly disallowed and rejected.