RAJU ALIAS RAJENDRA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision is preferred against the order dated 21.8.1974 of learned Judicial Magistrate, Bikaner, dismissing the petitioner's application for revoking the order of taking cognizance dated 16.7.1973, against him under Section 304A IPC.

(2.) THE facts brifly stated are these : that in a case under Section 304A, IPC the police presented a final report before the Judicial Magistrate, Bikaner. The learned Magistrate dis -agreeing with the opinion of the SHO took cognizance of the offence under Section 304A, IPC, against the accused petitioner, on 16.7.1963 who, thereafter, presented an application that the Magistrate has no jurisdiction to take cognizance of offence under the Code of Criminal Procedure, 1973 (hereinafter referred to as the new code) and therefore, the order should be revoked The learned Magistrate rejected this application of the accused petiiior.fr while holding that even under the new Code, he has the power rand jurisdiction to take cognizance of the offence under Section 190(1)(a) of it.

(3.) I have considered the rival contentions very carefully. It is no more upon to doubt that in such cases the Magistrate could take cognizance under the Code of Criminal Procedure, 1898 (hereinafter referred to at the old Code'), as has beer, held by their Lordships of the Supreme Court in Abhinandan Jhe and Ors. Appellants v. Dinesh Mishra respondent AIR 1968 SC page 117. The relevant observation reads as under: Para 15 : Then the question is, what is the position, when the Magistrate it dealing with a report submitted by the Police, under Section 173, that no case is m de out for sending up an accused for trial which report as we have already indicated, is called in the area in question, as a 'final report'? 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 p lice is not based on a full and complete investigation, in which ease, in our opinion, 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 a charge -sheet, or, again submit a final report, depending upon the further investigation made by them If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b) notwithstanding the contrary opinion of the police expressed in the final report. Para 16 : In this connection, the provisions of Section 169 of the Code are relevant. They specifically private that even though, on investigation a police officer, or other investigating officer, is of the opinion that there is no case for proceeding against the accused, he is bound, while releasing the accused, to take bond from him to appear, if and when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate, when the considers the report of the investigating officer, and judicially takes a view different from the police. Para 17 : We have to approach the question, arising for consideration in this case, in the light of the circumstances pointed out, above We have already referred to the scheme of Chapter XIV, as well as the observations of this Court in Rishbud and Inder Singh's case AIR 1955 SC 196 that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is left to the Officer in -charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled not withstanding the opinion of the police, to take cognizance, under Section 190(1)(c) on the Cede. That provision in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either want only or through bonafide error, fail to submit a report setting out the facts constituting the offence, Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance, of the offence, under Section 190(1)(c), on the ground that, after having due regard to the final if port and the police records placed before him, he has reason to suspect that an offence has been committed. Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a charge -sheet from the police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to who her or not there is a case to place the accused for trial, is that of the Officer in charge of the police station and that the opinion determines whether the report is to be under Section 170, being a charge -sheet or under Section 169, 'a final report'. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us, But he cannot direct the police to submit a charge sheet, because the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compal the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. That will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate & send a report either under Section 189, or under lection 170, depending upon the naturex of the decision. Such a function has been left to the police under the Code. It may be noted that in the original judgment 190(1)(c) exists and that Section 190(1)(b) has been wrongly reported in para 15 See Ramchandra v. State of U.P. AIR 1971 Allahabad Page 155.