Satya Narain Dubey and Others vs Smt. Shanti Devi and Another

S.K. Dhaon, J.—The Magistrate concerned took cognizance of an offence under Sections 306/344/323 of the Indian Penal Code and issued summons to the applicants. The legality of the said order passed by the Magistrate is being questioned in the instant application u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code).

A first information report was lodged by Smt. Shanti Devi, the opposite party No. 1, stating therein, inter-alia that the applicants had committed an offence punishable under the aforesaid provisions of the Indian Penal Code. The police investigation followed, and a final report was submitted to the Magistrate concerned. Before the same could be accepted, Smt. Shanti Devi, opposite party No. 1, presented a protest petition. This petition was accepted and the learned Magistrate after rejecting the final report submitted by the police took cognizance of the offence and summoned the applicants. In his order the Magistrate observed that after looking into the papers filed by the opposite party No. 1 and the statements of the witnesses as found in the case diary he was satisfied that a prima facie case had been made out against the applicants.

Learned Counsel for the applicants has contended that the Magistrate acted illegally in passing an order summoning the applicants for more than one reasons. First, the Magistrate did not care even to record the statement of the complainant as required by the provisions of Section 200 of the Code. Secondly, the Magistrate observed the provisions of the It proviso to Section 202 of the Code in their breach in not calling upon the opposite party No. 1 to produce all her witnesses and examine them on oath. This was necessary as the offence u/s 306 of the Indian Penal Code was exclusively triable by the Court of Sessions. Obviously, the submission is founded on the premise that the learned Magistrate took cognizance of the offence u/s 190(1)(a) of the Code.

The crucial question is: Whether the learned Magistrate took cognizance of the offence u/s 190(1)(a) or Section 190(1)(b) of the Code ? It is now settled that a protest petition is akin to a complaint. The three situations under which a Magistrate can take cognizance of an offence are enumerated in Section 190 of the Code. They are not exclusive of each other. They may be used in the alternative. In other words, it is permissible to a Magistrate to adopt any one of the three courses for taking cognizance of an offence. He may take cognizance of an offence upon receiving a complaint of facts which constitute such offence. He may take cognizance of an offence upon a police report of such facts. Lastly, he may take cognizance of an offence upon information received from any person other than police officer, or upon his own knowledge that such an offence has been committed.

There may be a case where a Magistrate may have before him a complaint or a protest petition and also a police report and the police may have after conducting the investigation opined that no offence was made out. The Magistrate may decline to accept the police report and yet on the basis of the material contained in the report or forming part of the report take cognizance of the offence. In such a situation the Magistrate will take cognizance of the offence u/s 190(1)(b) of the Code. Again, the Magistrate may reject the police report and take cognizance of the offence on the facts mentioned in the complaint or the protest petition. Such an action will be taken by the Magistrate u/s 190(1)(a) of the Code.

In H.S. Bains v. State 1980 AWC 619 : 1980 A CR 423 the facts were these:A complaint was made to the Magistrate concerned that H.S. Bains accompanied by two persons had committed an offence. The learned Magistrate to whom the complaint was submitted ordered an investigation by the police u/s 156(3) of the Code. The police after completing the investigation submitted a report to the Magistrate u/s 173 of the Code stating that the case against the Appellant was not true and the same might be dropped. The learned Magistrate, after perusing the report submitted by the police disagreed with the conclusion of police, took cognizance of the case under Sections 448, 451 and 506 of the Indian Penal Code and directed the issue of process to the Appellant. Feeling aggrieved, H.S. Bains, the Appellant, preferred a criminal misc. application u/s 482 of the Code before the High Court to quash the proceedings before the Magistrate. This application was dismissed. The matter was taken to the Supreme Court by leave.

The argument before the Supreme Court was that, in the circumstances of the case, the cognizance of the offence could not be taken u/s 190(1)(b). The Magistrate had only two options. He could either order a further investigation or he could take cognizance of the offence as it on a complaint, record the statements of the complainant and the witnesses u/s 200 of the Code and then proceed to issue process, if he was satisfied that process ought to be issued. Reliance was placed upon two decisions: Abhinandan Jha and Others Vs. Dinesh Mishra, and Tula Ram and Others Vs. Kishore Singh, .

The Supreme Court referred to the provisions of Section 190 and analysed the provisions contained in Chapter XV (Sections 200 to 203) of the Code. Thereafter, the Supreme Court observed;--

... 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 the 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)(b) 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 H.S. Bains case (supra) two significant facts were that upon the receipt of the complaint the Magistrate directed investigation u/s 156(3) and after investigation of the matter the police submitted a report that no case had been made out againt Bains and others. As pointed out above, in the case at hand the police investigation took place on the basis of the First Information Report, the police submitted a report that no case against the applicants has been made out, a protest petition was filed, the Magistrate did not accept the police report and issued process against the applicants straightway. Therefore, the distinguishing feature in the case at hand is that the proceedings were not initiated on a complaint and investigation had not been ordered u/s 156(3). These facts cannot take the case at hand beyond the purview of H.S. Bains case. The police has to submit its report to the Magistrate concerned u/s 173 after completing the investigation. This investigation may be done by the police on its own accord on receipt of a first information report or upon the order passed by the Magistrate u/s 156(3). It will also be immaterial for applying the ratio of H.S. Bains case as to whether the matter was brought to the notice of the Magistrate initially on the basis of the complaint and thereafter he took cognizance of the offence on the basis of the facts contained in the police report or the matter was brought to the notice of the Magistrate for the first time by means of a police report u/s 173 and thereafter a protest petition or a complaint was filed before him. The only requirement of the law for the applicability of the provisions of Section 190(1)(b) of the Code was and is that the Magistrate should have before him a police report containing facts which may constitute an offence so as to enable him (the Magistrate) to take cognizance of the offence. The conclusion, therefore, is inevitable that the ratio of the decision given by the Supreme Court in H.S. Bains case (supra) squarely applies to the case at hand, and the learned Magistrate took cognizance of the offence u/s 190(1)(b) of the Code and summoned the applicants.

In Abhinandan Jha''s case (supra) a report u/s 173 of the Code had been submitted to the effect that no case had been made out against the accused. Disagreeing with the report submitted by the police, the Magistrate directed the police to file a charge sheet against the accused. It was 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 was the end of the matter. If he disagreed with the report he could only direct a further investigation u/s 156(3). If ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence, he could take cognizance of the offence. In such a situation the Magistrate could take cognizance u/s 190(1)(c). In Bains case the Supreme Court held that reference to Section 190(1)(c) in Abhinandan Jha''s case was a mistake. Really the reference was to Section 190(1)(c).

In Tula Ram''s case (supra) the Magistrate on receipt of a complaint ordered investigation u/s 173. The police submitted a report that no case had been made out against the accused. Nevertheless, the court recorded the statements of the complainant and the witnesses and issued process against the accused. The Supreme Court in that case repelled the contention 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. It was held that the Magistrate acted within his powers as the complaint did not stand exhausted merely because the Magistrate ordered an investigation u/s 173. It is apparent that in Tula Ram''s case the Magistrate acted upon a complaint and took cognizance of the offence u/s 190(1)(?).

Once it is found that in the case at hand the Magistrate took cognizance of the offence u/s 190(1)(b) of the Code and not u/s 190(1)(a) he acted well within his jurisdiction in issuing summons to the applicants straigtway without adverting to the provisions of Sections 200 and 202 of the Code. No occasion arose for the Magistrate to record the statements of the complainant and the witnesses present at the stage of Section 200. Likewise, there was no necessity on the part of the Magistrate to call upon the complainant, the opposite party No. 1, to produce all her witnesses as the case was triable exclusively by the Court of Sessions. Obviously, the provisions of Sections 200 and 202 are attracted only when the Magistrate takes cognizance of an offence either u/s 190(1)(a) or u/s 190(1)(c) of the Code. Therefore, the submissions made by and on behalf of the applicants that the Magistrate observed the provisions of Section 200 and 202 of the Code in their breach is misconceived.

No other point has been pressed in support of this application.

This application lacks merit and is rejected summarily.