H S BAINS DIRECTOR SMALL SAVING CUM DEPUTY SECRETARY FINANCE PUNJAB CHANDIGARH Vs. STATE UNION TERRITORY OF CHANDIGARH

JUDGEMENT

(1.) On August 13, 1979, Gurnam Singh a resident of Chandigarh submitted a complaint to the Judicial Magistrate Ist Class Chandigarh, alleging that the appellant H. S. Bains accompanied by two persons had come to his house in a car on the morning of August 11, 1979, at about 8 a. m., trespassed into the house and threatened to kill him and his natural son if he did not take away his natural son Aman Deep Singh from the house of his sister Bakshish Kaur, who had taken the boy in adoption as she was issueless. Bakshish Kaur was the widow of the brother of the appellant and the adoption made by Bakshish Kaur was not to the liking of the appellant. It was alleged in the complaint that the appellant was armed with a revolver which he pointed at the complainant. The complainant raised a hue and cry. The accused and his companions fled away in their car. As August 11, 1979 and August 12, 1979 were holidays, he was able to file the complaint only on 13th August, 1979. The learned Magistrate to whom the complaint was submitted ordered an investigation by the police under Section 156 (3) of the Code of Criminal Procedure. The police, after completing the investigation, submitted a report to the Magistrate under Section 173 of the Code of Criminal Procedure stating that the case against the appellant was not true and that it might be dropped. The police arrived at the conclusion that the case against the appellant was not true as their investigation revealed, according to them, that the appellant was at Amritsar with Shri Jai Singh, District Magistrate of Amritsar at 9. a. m. on August 11, 1979 and it was, therefore, impossible for him to have been at Chandigarh at 8. a. m. on August 11, 1979. 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. Aggrieved by the issue of process, the appellant filed Criminal Miscellaneous Case No. 26-M of 1980 in the High Court of Punjab and Haryana to quash the proceedings before the Magistrate. The application was dismissed by the High Court and the appellant filed a petition for the grant of special leave to appeal against the order of the High Court. We granted special leave and straightway heard the appeal with the consent of the parties.

(2.) Shri Kapil Sibal urged that the Magistrate had issued process to the accused without recording the statement, on oath, of the complainant and the witnesses under Section 200 Criminal Procedure Code and therefore, he must be taken to have taken cognizance of the case under Section 190 (1) (b), as if upon a police report. Shri Sibal submitted that the Magistrate was not competent to take cognizance of the case as if it was upon a police report as the report under Section 173 Criminal Procedure Code submitted to him disclosed that no offence had been committed by the accused. According to Shri Sibal, in the circumstances of the case, the Magistrate, on receipt of the report under Sec. 173, Criminal Procedure Code to the effect that the case against the accused was not proved, had only two options before him. He could either order a further investigation or he could take cognizance of the case as if upon a complaint, record the statements of the complainant and witnesses under Section 200, Criminal Procedure Code and then proceed to issue process if he was satisfied that process ought to be issued. In any case Shri Sibal submitted that the order of the Ist Class Magistrate taking cognizance of the case was so unjudicial that it ought to be struck down. Shri Sibal invited our attention to two decisions of this Court:Abhinandan Jha v. Dinesh Mishra (1967) 3 SCR 668 and Tula Ram v. Kishore Singh, (1978) 1 SCR 615.

(3.) Chapter XII of the Code of Criminal Procedure 1973 deals with information to the Police, and their powers to investigate. Section 156 (1) vests in an officer in charge of a Police Station the power to investigate any cognizable case, without the order of a Magistrate. Section 156 (3) authorises a Magistrate, empowered under Section 190, to order an investigation as mentioned in Sec. 156 (1). The provisions from Section 157 onwards are concerned with the power and procedure for investigation. Section 169 prescribes that if upon an investigation it appears to the Officer in charge of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond (with or without sureties) to appear if and when required, before a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial. Section 170 prescribes that if upon investigation it appears to the officer in charge of the Police Station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial. If the offence is bailable the officer shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. Section 173 (1) casts a duty upon the police officer to complete the investigation without unnecessary delay. Section 173 (2) prescribes that as soon as the investigation is completed the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in the prescribed form stating the various particulars mentioned in that sub-section.