MUMTAZ Vs. STATE OF U P

JUDGEMENT

(1.) Against the appli cants, the first information report was lodg ed on November 2, 1979 under Section 147, 148, 149, 323, 324, 504 and 506 I. P. C. The injured was also medically exa mined on the same day. After investiga tion, the police came to the conclusion that it was not a fit case in which any charge- sheet should be submitted. A final report was, therefore, submitted before the Magis trate on December 26, 1979. The learned Magistrate did not agree with the report and by his order dated March 19, 1980 he summoned the accused to fact trial. Ag grieved by the order, the applicants went in revision but that too was dismissed by the Sessions Judge by his order dated October 30, 1980 relying upon a number of cases cited in his order. In these circumstances, the applicant have approached this court for quashing the order of the two courts below. For the applicants, main reliance has been placed upon a Division Bench decision of this Court reported in Nirmal Kumar v. State of U. P. and others 1979 A. C. C. 38, where it was held that the first information report and the injury report sent to the Magistrate along with the final report of the police did not amount to 'information received from a per son other than a police officer' within the meaning of Section 190 (1) (c) Cr. P. C. The contention here is that after the police had investigated the matter and submitted its report giving its opinion that no case is made out against the accused persons the Magistrate cannot take cognizance under sub-clause (b) of Section 190. It is con ceded that the Magistrate is not bound to accept the police report but it is contended that there must be some material brought before the Magistrate under sub-clause (c) of Section 190 Cr. P. C. which excludes any information given by the police officer and then only the Magistrate can come to a conclusion whether the accused should be summoned or not. Crux of the argument is that once the police report is submitted saying that no case is made out. the power of the Magistrate to take cognizance under Section 190 (b") Cr. P. C. comes to end and he must rely upon some other material ac ceptable under Section 190 (c) Cr. P. C. for summoning the accused. Reliance is also placed on the case of Ajai Singh v. Nathi Lal 1978 A. C. C. 134, for the same purpose. Relying on these very two cases is another case report ed in Gajadhar Singh v. State of U. P. 1980 Cr. Law Reports 87. Section 190, Cr. P. C. lays down the cir cumstances under which a Magistrate can take cognizance of any offence. Three dif ferent modes are provided namely, (i) up on receiving a complaint of facts which constitute offence i. e. on the basis of the complaint (ii) upon a police report of such facts and lastly (iii) upon information re ceived from any person other than the police officer or upon his own knowledge that such an offence has been committed. Fn this case, we are not concerned with the first condition as the proceedings were not stated on complaint by any one. Instead proceedings have been started on the basis of the first information report lodged with the police on November 2, 1979. After investigation, the police was of the opinion that it was not a fit case in which the charge-sheet should be submitted. However, in sub-clause (b) the relevant words are 'upon police report of such fact The word 'of such facts' refers to the facts which consti tute an offence of which the accused are charged with. The police report is defined in Section 2 sub-clause (r) Cr. P. C. as un der:- "the police report means a report for warded by a police officer to a Magis trate under sub-section (2) of Section 173. " Chapter XII deals with the information to the police and their powers to investigate. We have Section 169, which deals with those cases in which on investigation the police officer comes to the conclusion that sufficient evidence was not available and there was no reasonable ground of suspi cion to justify forwarding of the accused before the Magistrate. Later part of these sec tions deal with the procedure which the police and the Magistrates are supposed to observe when such a report is submitted by the police. Section 172 (2) lays down the pro cedure and requirements of police report which is submitted to the Magistrate after investigation by the police officer. The argument advanced on behalf of the respondent was that even when the police officer submits his report give an opinion that no offence is made out, it is still a "police report" within the meaning of Section 190 (b) and on the basis of the documents filed by the police along with its report, the Magistrate may, without agree ing with the opinion of the police, form a contrary opinion and may proceed to take cognizance of the offence. This argument however, does not take into consideration the words 'report of such facts' which to my mind are very material. These words only indicate that for entitling the magis trate to take cognizance of an offence the police report under sub-clause (b) must be of such facts which go to constitute an off ence with which the accused was charged. If the report does not say that an offence has been made out such a report cannot be said to be a 'police report of such facts' and it there fore, cannot be made basis for taking cogni zance under Section 190 (b) by the Magis trate. If that be the position the only en abling provision under which cognizance can be taken by the Magistrate was sub-clause (c ). The Magistrate has in this case relied upon the injury report filed along with the final report submitted by the police. This has been held by a Division Bench to be "an information received from a police officer", for the purpose of Section 190 (c ). Such an information is clearly excepted under sub-clause (c) of Section 190 and on its basis therefore the Magistrate was not competent to take cognizance of the offence. In my opinion the Magistrate acted beyond his jurisdiction in summoning the accused. The learned counsel for the opposite parties tried to defend the order of the Ma gistrate on the basis of some cases referred to by the sessions Judge also. Abhinandan Jhamd others v. Dinesh Misra 1968 S. C, 117, was a case based on the language used in the old Cr. P. C. whether in sub-clause (c), the words 'or on suspicion' also existed. In the case of Normal Singh v. State of V. P. and others 1979 A. C. C. 36 and 1979 U. P. Cr. Reports 221, a Division Bench was dealing with a case where the question before it was whether the court was acting as court while taking cognizance of an offence under Section 190 in Deep Chund and others v. Abdul Gaffar and others 1979 Cr Law Reports 459, the facts were slightly different. The final report was sub mitted and along with it the case diary was also filed. On the basis of this material, the Magistrate came to the conclusion that prima facie case has been made out and, therefore, he ignored the police report and summoned the accused for appearing before him. In the case the order passed by the Magistrate was held to be illegal and was quashed. From the above discussion, it is clear that a Magistrate cannot rely upon any ma terial submitted by the police officer along with his report under Section 173 (2) Cr. P. C. and on its basis no cognizance of the off ence can be taken under Section 190 (b) Cr. P. C. In some cases referred to by the Session Judge protest petitions had been filed and these were treated as 'other infor mation' received by the Magistrate from a person 'other than a police officer'. Those cases stand on different footing. In the result 1 find force in this application which is accordingly allowed and the order of the Magistrate dated March 19, 1980 and that of the Sessions Judge dated October 30, 1930 are hereby quashed. The matter will now be sent down to the Magis trate who after considering all the legal ma terial before him, will proceed afresh in the light of my observations made earlier. .