R. N. CHATTERJI versus HAVILDAR KUER SINGH

R. N. CHATI'ERJI

HA VILDAR KUER SINGH February 19, 1970 [A. N. RAY AND I. D. DUA, JJ.]

Criminal Procedure Code 1898 Section 156(3) and 190(1) (c)-Scope of-Investigating Police Officer submitting report of insuf!icient evidence -If Magistrate cari direct Police to file charge sheet.

After investigation °of complaint filed by the Respondent against the Appellant making certain allegations, the Deputy Superintendent of Police who carried out the investigation. submitted repdrt to the Deputy Inspector·Gencral under whom the investigation was carried on, to the effect that there was insufficient evidence against the Appellant and further-more that the Respondent's case against the Appellant was false. On "protest petition" filed by the Respondent, the Sub-Divisional Magist'rate passed an order directing the Police to submit charge sheet. The High Court rejected an application in revision filed against this order

On appeal to this Court,

HELD : Allowing the appeal : The provisions of the Criminal Proce-dure Code do not empower the Magisfrate to ask the police to submit charge-sheet. Tf, however, the Magistrate is of opinion that the report submitted by the police requires further investigation, the Magistrate may order investigation under section 156(3) of the Criminal Procedure Code Directing further investigation is entirely different from asking the police to submit charge-sheet. Furthermore, section 190(1) (c) of the Crimi-nal Procedulre Code empowers the Magistrate to take cognizance of an offence notwithstanding contrary opinion of the police. [718 G]

Emperor v. Nazir Ahmed 71 I.A. 203; H. N. Rishbud v. State of Delhi [19,5] I S.C.R. ll 50; Ahliinandan !ha and Ors. v. Dinesh Mishra, A.LR. I 968 S.C. 117: referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 89 of 1967.

Appeal from the judgment and order dated February 18, 1967 of the Patna High Court in Criminal Revision No. 44 of 1965.

D. Goburdhun, for the appellant.

The respondent did not appear.

The Judgment of the Court was delivered by

Ray, J. This is an appeal from the Judgment dated 18 Nov-ember, 1967 of the High Court at Patna.

The question for consideration is whether Sub-Divisional llfogistrate could after submission of final report by the· pohce

direct the police on what is described as protest petition having-been filed by the opposite party to submit charge-sheet.

The facts in short are that on account of an occurrence at the platform of Muzaffarpur Railway Station on 24 March, i 964 two cases were instituted before the Railway Police.

One of these was instituted by the appellant against the res-pondent and the other was instituted by the respondent against the appellant.

The appellant in the case instituted by him alleged that the respondent wanted to entrain two of his men in an unauthorised way in one of the compartments and the appellant objected to the same, whereupon the respondent pulled the appellant on tho platform and assaulted him. charge-sheet was submitted against the respondent in that case.

The present appeal relates to the case instituted by the res-0 pondent against the appellant on these allegations. The appellant at the material time was Travelling Ticket Examiner while the· respondent was police havildar. The respondent alleged· that while he was on duty at the railway platform on the relevant date, he found few smugglers were travelling in particular compartment. The respondent \'"anted to enter the compartment. The appellant pushed him back. The appellant and three other Ticket Examiners assaulted the respondent.The Deputy Superintendent of Railway Police who carried on the investigation submitted report to the Deputy Inspector General (C.l.D.), Crime Branch and Railways under whom the-investigation was carried on, to the effect that th~re was insuffi. cient evidence against the appellant and further that the respon-dent's case against the appellant was palpably fal~e story about the smugglers' and the case was therefore to be· returned a; 'TR.T. insufficient evidence".

On 2 April, 1964 the respondent filed "protest petition" against the final report of the police. _On I September, 1964 the Sub-Divisional Magistrate called for the case diary, super-vision and progress. report of the police case as prayed for by the respondent. On 14 November, 1964 the Sub-Divisional· Magistrate passed an order directing the police to submit the charge-sheet under sections 353/379 of the Indian Penal Code.

The appellant went up before the Sessions Judge of Muzaffar-H pur in revision against the order of the Sub-Divisional Magistrate and asked for reference to the High Court. The appeilant's application was rejected by the Sessions Judge, Thereafter. the·

appellant filed an application in revision before the High Court at Patna. The appellant c,ontended that the Sub-Divisional Magistrate acted without jurisdiction in asking the police to sub-mit the charge-sheet and therefore the order dated 14 November, 1964 passed by the Sub-Divisional Magistrate >hould be quashed.

The High Court at Patna held that calling for charge-sheet by Magistrate means- taking cognizance of the. case and then summoning the accused through the police, and, therefore, it did not amount to interference with the police investigation. The High Court at Patna referred to two divergent views expressed by the.High Courts. The views of the High Courts at Calcutta and Madras are that the Magistrate has no such power whereas the views of the High Courts at Bombay and Patna are to the contrary. The High Court at Patna did not see any reason to depart from the view of that Court.

It has been emphasised in several decisions that it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the. law imposes on. them the duty of enquiry. (See Emperor v. Nazir Ahmed)(').

Th'is Court in the case of H. N. Rishbud v. State of De/hi(2) said that investigation is primarily an ascertainment of facts _and circmhstances of case and the proceedings in an investigation are conducted by the police officer. Chapter XlV of the Criminal Procedure Code relates to information to the police and their powers to investigate. The investigation carried on by the .police results either in release of accused when evidence is deficient or sending the case to the Magistrate when the evidence is sufficient. It should also be remembered that when person is released by the police because there is not sufficient evidence to justify the forwarding of the accused to magistrate bond is taken to the effect that if and when so required he will appear before magis-lrate empowered to take cognizance of the offence on police ·report.

The provisions of the Criminal Procedure Code do not em-power the magistrate to ask the police to submit charge-sheet. If, however, the magistrate is of opinion that the report submitted by the police requires fqrther investigation the magistrate n1ay order investigation under section 156(3) of the Criminal Pro-cedure Code. Directing further investigation is entirely different from asking the police to submit charge-sheet. Furthermore, section 190 ( 1 )( c) of the Criminal Procedure Code empbwers

(2) [1955] 1 S. C. R. 1150.

the magistrate to take cognizance of an offence notwithstanding contrary opinion of the police.

These provisions in the Criminal Procedure Code, to which I have referred, indicate two broad features; first, the formation of an opinion in an investigation is left to the police; and, secondly, the magistrate exercises judicial functions in dealing with the report submitted by the police.

This question came up for consideration in the case of Abhi11andan Jha and Ors. v. Dinesh Mishra(') where it was held that it was for the police to form their opinion and the final step in the investigation was to be taken only by the police and no other authority. As to the powers of the magistrate it is said that he cannot call upon :he police to >ubmit charge-sheet when they have sent report, that there is no case for sending up the accused for trial because that would be dictating to the police to fom1 opinion in accordance with that of the magistrate. Such course is not desirable. That is why the Magistrate can call for further investigation ..

The decision of the High Court is erroneous. The order of the Sub-Divisional Magistrate dated 14 November, 1964 is quashed. The appeal is allowed.

R.K.P.S.

Appeal allowed.