STATE Vs. BHIM SINGH

JUDGEMENT

(1.) THIS contempt petition arises out of the report sent to this Court by the Chief Judicial Magistrate, Kulu against the respondent who happens to be Assistant Public Prosecutor appearing before the learned Magistrate. The facts relevant to this reference are that police investigated an offence under Section 436 I. P. C. in State v. Khubu and ultimately submitted a report which is known as "cancellation report". The learned Magistrate perused the case papers and came to the conclusion that there was enough evidence against the accused for the offence in question. She, therefore, took cognizance of the offence under Section 190 of the Cr. P. C. According to the learned Magistrate, she could take cognizance of the matter in spite of the "cancellation report" under Clause (b) of Section 190 (1) of the Code, She thereafter asked the respondent to furnish a copy of the challan to the accused. The respondent, however, did not supply the said challan and informed the court that as the case was submitted to the Court for cancellation of the challan, he was not bound to make appearance in the Court and to conduct the prosecution. On this, the learned Magistrate thought that the respondent had committed the contempt. The learned Magistrate has considered the relevant provisions of law including the decision given by the Supreme Court in Abhinandan Jha v. Dinesh Mishra reported in wherein the Supreme Court has made an observation that if ultimately the Magistrate forms the opinion that the facts set out in the final report constitute an offence, he could take cognizance of the offence under Section 190 (1) (b) of the Cr. P. C. notwithstanding the contrary opinion of the police expressed In the final report. According to the learned Magistrate, therefore, the matter fell within the purview of Clause (b) of Section 190 (1) of the Cr. P. C. and, therefore, the respondent could not have refused to assist the Court and could not have also refused to conduct the case on behalf of the prosecution.

(2.) IT is not necessary to discuss whether the cognizance taken by the learned Magistrate fell within Clause (b) or Clause (c) of Section 190 (1) of the Code, because we are of the opinion that in either of the cases it was the duty of the Assistant Public Prosecutor to assist the Court in the conduct of the case. In the above referred decision of Abhinandan Jha (1968 Cri LJ 97) (SC) the Supreme Court has observed that in such cases the matter falls within Clause (b) of Section 190 (1) of the Code. It was contended that reference to Clause (b) of Section 190 (1) was a printing mistake because really speaking the matter falls within Clause (c) which says that the Magistrate can take cignizance of any offence "from information received from any person other than a police officer or upon his own knowledge that such offence has been committed". It was pointed out that when the Magistrate refuses to act on the police report, and proceeds with the matter after taking cognizance, he does take cognizance "upon his own knowledge" which he has gathered after perusing the police papers, and therefore, the cognizance would be under Clause (c) of Section 190 (1 ). Be that as it may, the question which is involved in this matter is whether the respondent could have refused to assist the Court even if the case was covered by Clause (c) of Section 190 (1) of the Code.

(3.) THE Assistant Public Prosecutors are appointed under Section 25 of the Cr. P. C. Sub-section (1) of this section says that they are appointed "to conduct prosecutions in Courts of Magistrates" by the State Government. Sub-section (3) of Section 26 says that where no Assistant Public Prose" cutor is available for the purpose of any particular case, the District Magistrate may appoint any other person to be the Assistant public Prosecutor in charge of that case.