N Criminal Appeal No 687 of 1980
Appeal by Special Leave from the Judgment and Order dated 18 4 1980 of the Punjab and Haryana High Court in Crl
No 26 M1980
Mrs Urmila Sirur for the Appellant
Mrs Shobha Dixit and M N Shroff for the Respondent
The Judgment of the Court was delivered by CHINNAPPA REDDY J
On August 13 1979 Gurnam Singh a resident of Chandigarh submitted a complaint to the Judicial Magistrate 1st Class Chandigarh alleging that the appellant H section Bains accompanied by two persons had come to his house in a car on the morning of August 11 1979 at about 8 am tress passed into the house and threatened to kill him and his natural son if he did not take away his natural son Aman Deep Singh from the house of his sister Bakshish Kaur who had taken the boy in adoption as she was issueless
Bakshish Kaur was the widow of the brother of the appellant and the adoption made by Bakshish Kaur was not to the liking of the appellant
It was alleged in the complaint that the appellant was armed with a revolver which he pointed at the complainant
The complainant raised a hue and cry
The accused and his companions fled away in their car
As August 11 1979 and August 12 1979 were holidays he was able to file the complaint only on 13th August 1979
The learned Magistrate to whom the complaint was submitted ordered an investigation by the police under Sec
1563 of the Code of Criminal Procedure
The police after completing the investigation 937 submitted a report to the Magistrate under Sec
173 of the Code of Criminal Procedure stating that the case against the appellant was not true and that it might be dropped
The police arrived at the conclusion that the case against the appellant was not true as their investigation revealed according to them that the appellant was at Amritsar with Shri Jai Singh District Magistrate of Amritsar at 9 am on August 11 1979 and it was therefore impossible for him to have been at Chandigarh at 8 am on August 11 1979
The learned Magistrate after perusing the report submitted by the police disagreed with the conclusion of police took cognizance of the case under Sections 448 451 and 506 of the Indian Penal Code and directed the issue of process to the appellant
Aggrieved by the issue of process the appellant filed Criminal Miscellaneous Case No 26 M of 1980 in the High Court of Punjab and Haryana to quash the proceedings before the Magistrate
The application was dismissed by the High Court and the appellant filed a petition for the grant of special leave to appeal against the order of the High Court
We granted Special Leave and straightaway heard the appeal with the consent of the parties
Shri Kapil Sibal urged that the Magistrate had issued process to the accused without recording the statement on oath of the complainant and the witnesses under Sec
200 Criminal Procedure Code and therefore he must be taken to have taken cognizance of the case under Sec
1901b as if upon a police report
Shri Sibal submitted that the Magistrate was not competent to take cognizance of the case as if it was upon a police report as the report under Sec
173 Criminal Procedure Code submitted to him disclosed that no offence had been committed by the accused
According to Shri Sibal in the circumstances of the case the Magistrate on receipt of the report under Sec
173 Criminal Procedure Code to the effect that the case against the accused was not proved had only two options before him
He could either order a further investigation or he could take cognizance of the case as if upon a complaint record the statements of the complainant and witnesses under Sec
200 Criminal Procedure Code and then proceed to issue process if he was satisfied that process ought to be issued
In any case Shri Sibal submitted that the order of the Ist Class Magistrate taking cognizance of the case was so unjudicial that it ought to be struck down
Shri Sibal invited our attention to two decisions of this Court Abhinandan Jha  Ors
vs Dinesh Mishra and Tula Ram  Ors
vs Kishore Singh
938 Chapter XII of the Code of Criminal Procedure 1973 deals with information to the Police and their powers to investigate
156 1 vests in an officer incharge of a Police Station the power to investigate any cognizable case without the order of a Magistrate
1563 authorises a Magistrate empowered under Sec 190 to order an investigation as mentioned in Sec
1561
The provisions from Sec
157 onwards are concerned with the power and procedure for investigation
169 prescribes that if upon an investigation it appears to the officer incharge of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate such officer shall if such person is in custody release him on his executing a bond with or without sureties to appear if and when required before a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial
170 prescribes that if upon investigation it appears to the officer incharge of the Police Station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial
If the offence is bailable the officer shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed
1731 casts a duty upon the police officer to complete the investigation without unnecessary delay
1732 prescribes that as soon as the investigation is completed the officer incharge of the police station shall forward to a Magistrate empowered to take cognizance of an offence on a police report a report in the prescribed form stating the various particulars mentioned in that sub section
1901 which occurs in Chap
XIV Conditions requisite for initiation of proceedings may be extracted at this stage
It is as follows 1901 Subject to the provisions of this Chapter any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf under sub section 2 may take cognizance of any offence a upon receiving a complaint of facts which constitute such offence b upon a police report of such facts 939 c upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed
What has been extracted is Sec 190 as it stands at present
190 of the previous Code was slightly different
Clause 1b read as upon a report in writing of such facts made by any police officer
In clause 1c after the word knowledge  the words or suspicion  occurred and these words have now been omitted
Chapter XV Sections 200 to 203 of the Code deals with complaints to Magistrates
A Magistrate taking cognizance of an offence on complaint is required by Sec 200 to examine the complainant and the witnesses present if any
Sec 202 provides that a Magistrate taking cognizance of a case upon complaint may if he thinks fit postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding
203 empowers the Magistrate to dismiss the complaint if after considering the statements on oath if any of the complainant and of the witnesses and the result of the enquiry or investigation if any under Sec 202 the Magistrate is of the opinion that there is no sufficient ground for proceeding
Chapter XVI deals with commencement of proceedings before Magistrate and Sec 204 enables a Magistrate to issue summons or a warrant as the case may be to secure the attendance of the accused if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding
It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him
He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Sec 200
Thereafter if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Sec
If in his opinion there is sufficient ground for proceeding he may issue process under Sec 204
However if he thinks fit he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding
He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding
On the other hand in the first instance on receipt 940 of a complaint the Magistrate may instead of taking cognizance of the offence order an investigation under Sec 1563
The police will then investigate and submit a report under Sec 1731
On receiving the police report the Magistrate may take cognizance of the offence under Sec
1901b and straightaway issue process
This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not
The Police report under Sec
173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom
The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further
The Magistrate after receiving the Police report may without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Sec
200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process
The mere fact that he had earlier ordered an investigation under Sec 1563 and received a report under Sec
173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200 203 and 204
Thus a Magistrate who on receipt of a complaint orders an investigation under Sec
1563 and receives a police report under Sec 1731 may thereafter do one of three things 1 he may decide that there is no sufficient ground for proceeding further and drop action 2 he may take cognizance of the offence under Sec
1901b on the basis of the police report and issue process this he may do without being bound in any manner by the conclusion arrived at by the police in their report 3 he may take cognizance of the offence under Sec
1901a on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Sec 200 If he adopts the third alternative he may hold or direct an inquiry under Sec 202 if he thinks fit
Thereafter he may dismiss the complaint or issue process as the case may be
In Abhinandan Jha  Ors
vs Dinesh Mishra supra the question arose whether a Magistrate to whom a report under Sec
1731 had been submitted to the effect that no case had been made out against the accused could direct the police to file a charge sheet on his disagreeing with the report submitted by the Police
This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge sheet
It was open to the Magistrate to agree or 941 disagree with the police report
If he agreed with the report that there was no case made out for issuing process to the accused he might accept the report and close the proceedings
If he came to the conclusion that further investigation was necessary he might make an order to that effect under Sec
1563
If ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence notwithstanding the contrary opinion of the police expressed in the report
While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police the Court observed that the Magistrate could take cognizance under Sec
1901c 
We do not have any doubt that the reference to Sec
1901c  was a mistake for Sec
1901b 
That appears to be obvious to us
But Shri Kapil Sibal urged that the reference was indeed to Sec
1901c since at that time Sec
1901c included the words or suspicion  and the Court had apparently taken the view that the Magistrate could take cognizance of the offence not under Sec
1901 b as if on a police report but under Sec
1901c as if on suspicion 
We do not agree with this submission
1901c was never intended to apply to cases where there was a police report under Sec 1731
We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the Magistrate and the Police arrived at different conclusions from the facts
The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint
If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Sec
307 Indian Penal Code the Magistrate is not bound by the conclusion of the complainant
He may think that the facts disclose an offence under Sec
324 Indian Penal Code only and he may take cognizance of an offence under Sec 324 instead of Sec 307
Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses
He may prefer ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence
If he does so it would be on the basis of the statements of the witnesses as revealed by the police report
He would be taking cognizance upon the facts disclosed by the police 942 report though not on the conclusions arrived at by the police
It could not be said in such a case that he was taking cognizance on suspicion
In Tula Ram  Ors
vs Kishore Singh supra the Magistrate on receiving a complaint ordered an investigation under Sec
1563
The Police submitted a report indicating that no case had been made out against the accused
The Court however recorded the statements of the complainant and the witnesses and issued process against the accused
It was contended that the Magistrate acted without jurisdiction in taking cognizance of the case as if upon a complaint when the police had submitted a report that no case had been made out against the accused
This Court held that the Magistrate acted within his powers and observed that the complaint did not get exhausted as soon as the Magistrate ordered an investigation under Sec
1563
We are therefore unable to agree with the submission of Shri Sibal that the Magistrate acted without jurisdiction in taking cognizance of the offence and issuing process to the accused notwithstanding the fact that the police report was to the effect that no case had been made out
We do not propose to say a word about the merits of the case since it was entirely a matter for the learned Magistrate to take cognizance or not to take cognizance of the several offences
We however wish to observe that it was wholly unnecessary for the Magistrate to write such an elaborate order as if he was weighing the evidence and finally disposing of the case
We also desire to say that some of the observations of the learned Magistrate about the District Magistrate were wholly uncalled for as the latter was yet to appear before him as a witness
We are told that the case has already been transferred to some other Magistrate
It is therefore unnecessary to say anything further in the matter
The appeal is therefore dismissed


Summary:
On a complaint by the complainant that the appellant armed with a revolver and accompanied by two persons trespassed into his house and threatened to kill him the Magistrate ordered investigation by the police under section 1563 of the Code of Criminal Procedure
In their report under section 173 the police stated that the complaint was false in that on the date and time mentioned therein the appellant was at a different place far away from the place where the complainant alleged that the appellant had threatened to kill him
Disagreeing with the conclusion of the police the Magistrate took cognizance of the case under sections 448 451 and 506 IPC and directed the issue of process to the appellant
The appellant s petition seeking to quash the proceedings before the Magistrate was dismissed by the High Court
In appeal to this Court it was contended on behalf of the appellant that the Magistrate was not competent to take cognizance of the case as if it was upon a police report since the report under section 173 by the police did not disclose any offence having been committed by the appellant
Dismissing the appeal  HELD Where the Magistrate on receiving a complaint orders investigation under section 1563 and receives a report under section 173 to the effect that no offence was disclosed against the accused the Magistrate might either i decide that there is no sufficient ground for proceeding further and drop action or ii he may take cognizance of the offence under section 1901b and issue process without being bound in any manner by the conclusion of the police or iii he may take cognizance of the offence under section 1901a on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under section 200
If he adopts the third alternative he may hold or direct an enquiry under section 202 if he thinks fit
Thereafter he may dismiss the complaint or issue process as the case may be
940E G In any event it is impossible to say that the Magistrate who takes cognizance of an offence on the basis of the facts disclosed in the police report 936 must be said to have taken cognizance of the offence on suspicion and not upon police report merely because he and the police arrived at different conclusions from the facts
The Magistrate is not bound by the conclusions of the police if he ignores their conclusions and takes cognizance of the offence himself he does so upon the facts disclosed by the police report though not on the conclusions arrived at by them
In such a case it cannot be said that he was taking cognizance on suspicion
942E H In Abhinandan Jha  ors
vs Dinesh Mishra   where this Court stated that the Magistrate could take cognizance of the offence under section 1901c notwithstanding the contrary opinion of the police the reference to sub clause c therein was a mistake for sub clause b
The argument of the appellant that the Court in this case had apparently taken the view that the Magistrate could take cognizance of the offence not under section 190 1b as if it was a police report but under section 1901c as if it was on suspicion is not sustainable because section 1901c was never intended to apply to cases where there was a police report under section 1731
942C D