PUBLIC PROSECUTOR Vs. RATNAVELU CHETTY

JUDGEMENT

(1.) This is an appeal by the Public Prosecutor against the order of acquittal of the Assistant Sessions Judge of Salem. The accused was committed to the Court of Session under Section 211, Indian Penal Code. The Assistant Sessions Judge held that the proceedings were started on a police report before the Magistrate and the proceedings were void and therefore the committal to the Sessions Court was illegal and acquitted the accused. The contention of the Public Prosecutor is that the initiation of the proceedings was not illegal and the committal therefore was right.

(2.) The simple question for decision is whether the charge sheet in a non-cognizable case is a report or not. Section 190 of the Criminal Procedure Code empowers a Magistrate to take cognizance of a case "(a) upon receiving a complaint of facts which constitute such offence, (b) upon a report in writing of such facts made by any police officer, (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed." Does the report of a police officer come within Clause (b) of Section 190 of the Criminal Procedure Code? The police are empowered to investigate the commission of a cognizable offence. When information is given of the commission of a non-cognizable offence, the police should refer the informant to the Magistrate. Under Section 155, Clause (2), no police officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class, or a Presidency Magistrate. A police officer therefore is incompetent to investigate a non-cognizable case unless he is ordered to do so by a Magistrate of the first or second class, or a Presidency Magistrate. When a police officer does anything which he is not empowered to do, he cannot be said to act under the colour of his office. The investigation by a police officer of a non-cognizable case is 119 better than an investigation by a private individual. When a police officer investigates the commission of a cognizable offence, he has to send a report under Section 173, which lays down what particulars it should contain. The police are also ordered to report under Section 174 in cases of suicide, etc. A report under Clause (b), therefore, is a report which a police officer is authorized to make. Any information given to a Magistrate by a police officer in a case which is not cognizable by the police cannot be said to be a report. The contention of the Public Prosecutor is that when any police officer reports about a non-cognizable case, he reports as a police officer and therefore it must be considered to be a report. Such an argument, if upheld, would mean that a police officer can report about any offence, cognizable or otherwise. Supposing a police officer reports about the commission of adultery or enticing away a married woman, though under Section 199, the husband alone is competent to complain of such an offence, could it be said that the report is a proper report simply because the police officer came to know of the commission of the offence in his official capacity? The law requires that certain formalities should be gone through before criminal proceedings could be initiated. It would be doing violence to Section 190 to hold that a Magistrate is entitled to initiate proceedings upon the report of a police officer as regards a non-cognizable offence.

(3.) A Magistrate has power to initiate proceedings upon receiving a complaint, but when a person presents a complaint, certain formalities have to be gone through. A sworn statement has to be taken and if the Magistrate thinks that the police should be asked to enquire into it, he may act, under Section 202 and he may dismiss the complaint after examining the complainant on oath under Section 203 if in his opinion no offence has been committed. But in the case of a police report no such formality need be gone through. Though it is open to a Magistrate not to take any action upon a report of the police, I am yet to see a Magistrate who has the temerity to do so. When the police send a charge sheet, there is a presumption that the police have investigated the matter and that there is a case to be enquired into by the Court and no Magistrate would think of dismissing a charge sheet after perusal on the ground that no offence has been made out. In fact there is no provision in the Act for dismissing a charge sheet without enquiry, whereas a Magistrate can dismiss a complaint after examining the complainant and after satisfying himself that the complaint does not disclose a criminal offence, or that he does not believe the complainant. The charge sheet in a non-cognizable case does not come within the meaning of Section 190, Clause (b) of the Procedure Code.