RAGHUNATH SHARMA Vs. STATE

JUDGEMENT

(1.) This application in revision is directed against the order dated the 20th of December, 1961 passed by the Sub-Divisional Magistrate Monghyr, Sadar, taking cognizance of a case against the petitioners under Sections 144 and 379 of the Indian Penal Code.

(2.) It appears that, on a first information report filed by one Parmeshwari Singh on the 2nd of April, 1961 the, police officer of Barahiya police station registered a case and took up investigation. It is not necessary to state in any detail the allegations made in the first information report. After completing the investigation, the police, at the first instance, submitted final report false. That final report is dated the 21st of September, 1961. On the 1st of November 1961, the police, however, submitted a charge-sheet against the petitioners under Sections 144 and 379 of the Indian Penal Code. It appears from the order sheet of the Sub-Divisional Magistrate that the final report which had been submitted by the police did not reach him till the 15th of November, 1961, and, on that date, the Magistrate adjourned the case for the 1st of December, 1961. On the 1st of December 1961, the Sub-Divisional Magistrate passed the following order:

(3.) Learned counsel appearing for the petitioners raised only one contention, namely, that the order of the Sub-Divisional Magistrate taking cognizance is bad in law because the police had no authority to submit a charge-sheet when the investigation had been closed and a final report had already been submitted. It was submitted that after that, after completing the investigation, the police has submitted the final report on the 21st of September, 1961 tinder Section 173 of the Code of Criminal Procedure. Thereafter, the police had absolutely no power to submit the charge sheet on the basis of which the Sub-Divisional Magistrate took cognizance in the case. It appears that the charge-sheet was subsequently submitted by the officer in charge of Barahyia police station on the direction of the Superintendent of Police. The question, therefore, which falls for consideration is whether the Superintendent of Police, who was an officer superior In rank to the officer in charge of the police station, had the authority to direct the submission of a charge-sheet when the officer In charge of the police station had already submitted the final report as directed by the Divisional Inspector of Police. In support of his contention that the Superintendent of Police had no such power, Mr. Sinha cited the cases of Umesh Chunder Roy v. Satish Chundra Roy, 22 Cal WN 69 : (AIR 1918 Cal 485), Shukadeva Sahay v. Hamid Miyan, AIR 1928 Pat 585, Hanuman v. Raj, AIR 1951 Raj 131 and Emperor v. Air, AIR 1932 Lah 611. Mr. Sinha also relied on certain observations In the case of H. N. Rishbud v. State of Delhi. (S) AIR 1955 SC 196. In my opinion, none of the cases cited by learned counsel Is directly on the point In the Calcutta case, 22 Cal WN 69 : (AIR 1918 Cal 485), there was only an observation that It was doubtful whether the discretion vested in the investigating officer by the provisions of Section 170 of the Code of Criminal Procedure could be controlled by the Superintendent of Police, or could be controlled after the discretion had been exercised, in that case, after the submission of the charge-sheet by the Police, cognizance was taken. Subsequently on an application tiled by the Public Prosecutor, the prosecution was allowed to be withdrawn under Section 494 (a) of the Code of Criminal Procedure. Probably, one of the reasons which the Magistrate gave for allowing the prayer of the Public Prosecutor was that the Superintendent of Police had moved in the matter. Certainly, the High Court, on the facts of that case, rightly took the view that that was not a valid reason for allowing the prayer for withdrawal. In the Patna case, AIR 1928 Pat 585, referred to above, It was held that the District Magistrate had no power under the Code of Criminal Procedure to call for a charge-sheet after the final report was put up before a Magistrate empowered to take cognizance of the offence under Section 173 of the Code of Criminal Procedure and was disposed of by him. Reference was made to the following observation made in that case: