JAMUN PASWAN Vs. MOHD YUAUS

JUDGEMENT

(1.) This is a revision petition by the complainant, Jamun Paswan, for further enquiry into his complaint which was dismissed on the 6th December, 1978, by the learned S. D. J M., Muzaffarpur West. It appears that on 29-11-1977, a complaint was made by the petitioner. Without taking cognizance, the complaint was sent to the police for investigation under Section 156 (3) of the Code of Criminal Procedure. A police case was then instituted the same being Kurhani P. S. Case No. 4 (12)-77 under Sections 384/342/147/392 of the Indian Penal Code. Final report dated 1-2-1978 was submitted by the police.

(2.) During the pendency of the police investigation several protest petitions were filed by the complainant. The first protest petition was filed on 19-12-1977 complaining against the police. From the order dated 9-8-1978 passed by the S. D. J. M, Muzaffarpur West, it appears that another protest petition dated 23-1-1978 was also filed but that protest petition is not on the record. The third protest petition was filed on 15-3-1978 and the fourth was filed on 11-8-1978. The learned Sub-divisional Judicial Magistrate while dismissing the complaint petition on 6-12-1978 has not clearly specified in his order as to whether he was dismissing the original complaint petition filed on 29-11-1977 or any of the four other protest petitions. Para 6 of his order dated 6-12-1978 indicates that he was dismissing the complaint petition dated 29th November, 1977, but it is not very clear. In para 3 of that order the Magistrate refers to the earlier fact that the final report was rejected and the protest petition which had been filed during the course of investigation was accepted. That had been done on 9-8-1978 but there the two protest petition mentioned are dated 19-12-77 and 23-1-78. It thus, appears that though he was dismissing one of the protest petitions which was treated as complaint it is not clear which protest petition was actually dismissed. The order of dismissal passed by the learned Magistrate, therefore, must be held to be vague.

(3.) Another point which arises in this case is that when the original complaint dated 29-11-1977 was sent to the police under Section 156 (3) of the Code for investigation and final report dated 14-2-1978 was submitted, the same was rejected by the Magistrate by his order dated 9-8-1978. He said in that order that he was rejecting the final report and was accepting the protest petition. Now it is a well settled principle that when a final report is submitted by the police that no case is made out for sending a case for trial, it is open to the Magistrate to agree with the final report and close the proceedings and discharge the accused. Equally it is open to him to take a different view and to order further investigation under Section 156 (3) and after submission of the final report he my take cognizance of the case. Under the Old Code he could do so under the provisions of Section 190 (1) (c) on suspicion : vide Abhinandan Jha v. Dinesh Mishra, AIR 1961 SC 117: (1967) 3 SCC 668 and even under clause (b) of Section 190(1) if in his opinion the facts stated in the report of the police constituted an offence but now he can do it only under Section 190 (1) (b) of the new Cr. P. Code, 1973 : See the Full Bench case Kuli Singh v. The State of Bihar, 1971 B.B.C.J 400. In the present case the Magistrate rejected the final report. He could have taken cognizance of an offence if he formed an opinion on the facts stated therein that they constituted an offence and this he could do notwithstanding the opinion of the police expressed in the final report. The question as to how a Magistrate should deal with the final report submitted under Section 173 of the Code of Criminal Procedure was raised in the case of Abhinandan Jha v. Dinesh Mishra, AIR 1968 Supreme Court 117 (supra). It was held in that case by the Supreme Court : "Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report that the opinion formed by the police is not based on a full and complete investigation, in which case, the Magistrate will have ample jurisdiction to give directions to the police under Section 156 (3) to make a further investigation That is, if the Magistrate feels after considering the final report that the investigation is unsatisfactory or incomplete or that there is scope for further investigation it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation under Section 156 (3). The police after such further investigation may submit charge-sheet or again submit a final report depending upon further investigation made by them. If ultimately the Magistrate forms the opinion that the facts sit out in the final report constitute an offence, he can take cognizance of the offence under Section 190 (i)(b) notwithstanding the contrary opinion of the police expressed in the final report."