Ramasubramanian vs The State

G. Rajasuria, J.—This petition has been filed to transfer the investigation in Cr. No. 184 of 2009 from the file of the first respondent to the third respondent.

The nut-shell facts would run thus:

The police registered a case in Cr. No. 184 of 2009 for the offences punishable under Sections 143, 465, 467, 468, 469, 471 and 500 I.P.C., on the ground that the accused persons fabricated false documents so as to usurb the temple Nanthavanam property. Even when the investigation was pending, the defacto complainant approached this Court and necessary directions were obtained from this Court for speedy investigation and to file the final report within a period of two months from the date of receipt of a copy of the order as per order dated 19.03.2010 in Crl. O.P.(MD) No. 3145 of 2010, whereas the accused filed Crl. O.P(MD) No. 3809 of 2010 u/s 482 Cr.P.C. to get quashed the F.I.R. In that petition, on 26.04.2010, this Court directed that it is open for the accused to air their grievance before the Investigating Officer and consider the same on merits.

It so happened that the police referred the case as ''action dropped as civil in nature''.

The grievance of the petitioner/defacto complainant is that even R.C.S notice was not served on him, whereas the learned Counsel for the accused/intervener as well as the learned Government Advocate (Criminal Side) would submit that R.C.S notice was served on the petitioner.

Be that as it may, it would be unnecessary to probe into the fact that whether R.C.S notice is served or not. I would like to give one more opportunity to the petitioner/defacto complainant to air his grievance. The very registration of F.I.R itself resulted on the complaint having been referred to u/s 156(3) Cr.P.C., after the learned Magistrate convinced that there is a prima facie case. However, the learned Government Advocate (Criminal Side) would submit that after investigation, they referred the case as civil in nature. In such a case, the defacto complainant is having a right to file a protest petition and in this connection, 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), .

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. It is for the petitioner to file necessary protest petition before the learned Magistrate within a period of ten days from the date of receipt of a copy of this order expressing his grievance, whereupon the learned Magistrate has to resort to any one of the procedures contemplated in the aforesaid decisions and accordingly, deal with the matter, cutting across the limitation point.

Accordingly, this petition is disposed of.