In Abhinandan Jha and Another v. Dinesh Mishra (AIR 1968 SC
117), the Supreme Court while considering the provisions of Sections 156(3), 169,178 and 190 of the Code held that there is no power, expressly or impliedly
conferred, under the Code, on a Magistrate to call upon the police to submit
a charge sheet, when they have sent a report under Section 169 of the Code,
that there is no case made out for sending up an accused for trial. The
functions of the Magistrate and the police are entirely different, and the
Magistrate cannot impinge upon the jurisdiction of the police, by
compelling them to change their opinion so as to accord with his view.
However, he is not deprived of the power to proceed with the matter. There
is no obligation on the Magistrate to accept the report if he does not agree
with the opinion formed by the police. The power to take cognizance
notwithstanding formation of the opinion by the police which is the final
stage in the investigation has been provided for in Section 190(1)(c).
When a report forwarded by the police to the Magistrate under
Section 173(2)(i) is placed before him several situations arise. The report
may conclude that an offence appears to have been committed by a
particular person or persons and in such a case, the Magistrate may either
(1) accept the report and take cognizance of the offence and issue process,
or (2) may disagree with the report and drop the proceeding, or (3) may
direct further investigation under Section 156(3) and require the police to
make a further report. The report may on the other hand state that according
to the police, no offence appears to have been committed. When such a
report is placed before the Magistrate, he has again the option of adopting
one of the three courses open i.e., (1) he may accept the report and drop the
proceeding; or (2) he may disagree with the report and take the view that
there is sufficient ground for further proceeding, take cognizance of the
offence and issue process; or (3) he may direct further investigation to be
made by the police under Section 156(3). The position is, therefore, now
well-settled that upon receipt of a police report under Section 173(2) a
Magistrate is entitled to take cognizance of an offence under Section
190(1)(b) of the Code even if the police report is to the effect that no case is
made out against the accused. The Magistrate can take into account the
statements of the witnesses examined by the police during the investigation
and take cognizance of the offence complained of and order the issue of
process to the accused. Section 190(1)(b) does not lay down that a
Magistrate can take cognizance of an offence only if the Investigating
Officer gives an opinion that the investigation has made out a case against
the accused. The Magistrate can ignore the conclusion arrived at by the
Investigating Officer and independently apply his mind to the facts
emerging from the investigation and take cognizance of the case, if he
thinks fit, exercise of his powers under Section 190(1)(b) and direct the
issue of process to the accused. The Magistrate is not bound in such a
situation to follow the procedure laid down in Sections 200 and 202 of the
Code for taking cognizance of a case under Section 190(1)(a) though it is
open to him to act under Section 200 or Section 202 also. [See M/s. India
Sarat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885)]. The
informant is not prejudicially affected when the Magistrate decides to take
cognizance and to proceed with the case. But where the Magistrate decides
that sufficient ground does not subsist for proceeding further and drops the
proceeding or takes the view that there is material for proceeding against
some and there are insufficient grounds in respect of others, the informant
would certainly be prejudiced as the First Information Report lodged
becomes wholly or partially ineffective. Therefore,
where the Magistrate decides not to take
cognizance and to drop the proceeding or takes a view that there is no
sufficient ground for proceeding against some of the persons mentioned in
the First Information Report, notice to the informant and grant of
opportunity of being heard in the matter becomes mandatory. As indicated
above, there is no provision in the Code for issue of a notice in that regard.
It may be added here that the expressions `charge-sheet' or `final report'
are not used in the Code, but it is understood in Police Manuals of several
States containing the Rules and the Regulations to be a report by the police
filed under Section 170 of the Code, described as a "charge-sheet". In case
of reports sent under Section 169, i.e., where there is no sufficiency of
evidence to justify forwarding of a case to a Magistrate, it is termed
variously i.e., referred charge, final report or summary. Section 173 in terms
does not refer to any notice to be given to raise any protest to the report
submitted by the police. Though the notice issued under some of the Police
Manuals states it to be a notice under Section 173 of the Code, though there
is nothing in Section 173 specifically providing for such a notice.
As decided by the Supreme Court in Bhagwant Singh v. commissioner of police (AIR 1985 SC 1285), the
Magistrate has to give the notice to the informant and provide an
opportunity to be heard at the time of consideration of the report. It was
noted as follows:-
"....the Magistrate must give notice to the
informant and provide him an opportunity to be heard at
the time of consideration of the report..."
Therefore, the stress is on the issue of notice by the Magistrate at the
time of consideration of the report. If the informant is not aware as to when
the matter is to be considered, obviously, he cannot be faulted, even if
protest petition in reply to the notice issued by the police has been filed
belatedly. But as indicated in Bhagwant Singh's case (supra) the right is
conferred on the informant and none else.
(See, Criminal Appeal no 964/2007, Chitaranjan mirdha v. dulal Ghosh decided by supreme court on may 8, 2009)
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