Criminal Appeal No 105 of 1989
From the Judgment and Order dated 31101987 of the Karnataka High Court in Criminal Petition No 400 of 1986
MV Goswami and BRGK Achar for the Appellant
B Krishna Prasad and PK Rao for the Respondents
The Judgment of the Court was delivered by NATARAJAN J
Special Leave granted
This appeal by special leave is directed against an order of the High Court of Karnataka under Sec
482 Criminal Procedure Code For short the Code setting aside the order or the Second Additional Chief Metropolitan Magistrate Bangalore directing the registration of a calendar case against the second respondent under Sections 408 and 420 of the Indian Penal Code and the issue of summons to him under Section 204 of the Code
So far as the facts are concerned they are as follows
The appellant gave a report to the Commissioner of Police Bangalore on 2021980 against the second respondent alleg ing that he had committed the offences of cheating and criminal breach of trust
It was averred that the second respondent was its Divisional Manager 722 Export Import and had negotiated on its behalf with an Italian firm in July 1979 for supply of quality granite stones and had obtained a letter credit
Availing the credit facility he had drawn a sum of Rs 1359750 but failed to supply granite stones to the Italian firm and instead had misappropriated the amount
On the foot of the report a case was registered against the second respondent in Ulsoor Police Station as Crime No 1451980 under Sections 408 and 420 of the Indian Penal Code and the case was investigated by Shri Bayar Inspector of Police
When Shri Bayar went away on promotion his succes sor took over the investigation but subsequently he sent a B Report to the Court stating that further investigation was not required as the case was of a civil nature
Aggrieved by the report sent by the police the appel lant approached the Second Additional Chief Metropolitan Magistrate Bangalore for the report being quashed and permission granted to him to prove the commission of of fences by the second respondent
The learned Magistrate after perusing the investigation records came to the view that a prima facie case was made out against the second respondent and consequently he passed an order for a calen dar case being registered against him for offences punisha ble under Sections 408 and 420 of the Indian Penal Code and for summons being issued to him under Sec 204 of the Code
Thereupon the second respondent filed a petition under Sec
482 of the Code before the High Court and sought the quashing of the order of the Magistrate
The High Court allowed the petition and set aside the order of the Magis trate on the ground the Magistrate had not followed the procedure laid down by the Code for taking cognisance of the case and issuing process to the accused after the police had sent a B  report in the case
The High Court has held that on receipt of the B  report the Magistrate should have issued notice to the appellant to find out whether he was disputing the correctness of the B  report and if so to comply with the requirements of Sec 200 of the Code
The High Court has further stated that only after examining the appellant
on oath and his witnesses the Magistrate should have decided whether a case should be registered and process issued to the accused
The High Court has referred to the ratio laid down in an earlier case K Sham Rao vs AR Diwakar and followed it
Aggrieved by the order of the High Court the appellant has come forward with this appeal
723 Mr BRGK Achar learned counsel for the appellant contended that the second respondent had no locus to ques tion the order of the Second Additional Chief Metropolitan Magistrate and therefore the High Court was in error in entertaining the petition filed by him under Section 482 of the Code and setting aside the order of the learned Magis trate
In support of this contention he placed reliance on the decision in Nagawwa vs
section Konjalgi  He further submitted that the Second Additional Chief Metropol itan Magistrate was entitled to take cognizance of the offences alleged to have been committed by the second re spondent and order the issue of process to him and that the Magistrate s power under Sections 190 and 204 of the Code could well be exercised without advertance to any possible defence the second respondent may have
The learned counsel also stated that since the police had made a perfunctory investigation and sent a B  report stating that the case was of a civil nature the Magistrate was perfectly justi fied in the facts and circumstances of the case in taking cognizance of the offence and directing the issue of process to the second respondent
Controverting these arguments the learned counsel for the respondent submitted that since the police had sent a B  report stating that the investigation disclosed that the dispute between the parties was only of a civil nature and that no offence has been made out against the second re spondent the Second Additional Chief Metropolitan Magis trate ought to have called upon the appellant to find out whether he was challenging the police report and if so to make a sworn statement and also examine his witnesses and thereafter only the learned Magistrate should have decided whether cognizance should be taken of the offences and process issued to the second respondent
The learned coun sel therefore argued that since the magistrate had not followed the procedure laid down in Section 200 or Section 202 the second respondent was entitled to seek quashing of the order of the Magistrate and as such the High Court ha acted correctly in allowing the second respondent s petition and setting aside the order of the Magistrate
Before we examine the contentions of the learned counsel for the appellant and the second respondent we may briefly refer to some of the provisions in Chapter X11 XIV XV and XVI of the Code
Section 155 in Chapter XII pertains to information laid to the police regarding non cognizable cases and Sub Section 2 lays down that no police officer shall investigate a non cognizable case without the order of a Magistrate having power to try such case or commit the case for trial
724 Section 1561 confers power on an officer in charge of a police station to investigate any cognizable case without the order of a Magistrate
Section 1563 authorises a Magistrate empowered under Section 190 to order the police to make an investigation as provided for in Section 1561
The other provisions in the Chapter from Section 157 onwards set out the powers of investigation of the police and the procedure to be followed
Section 169 prescribes the proce dure to be followed by an officer in charge of a police station if it appears to him upon investigation of a case that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate
Section 170 prescribes the procedure to be followed by the officer in charge of a police station if it appears to him upon investigation that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate
Section 1731 enjoins a Police Officer to complete the investigation without unnecessary delay
Section 1732 lays down that as soon as the investigation is completed the officer in charge of a police station should forward to a Magistrate empowered to take cognizance of an offence on a police report a report in the prescribed form stating the various particu lars mentioned in that Sub Section
Chapter XIV deals with the conditions requisite for initiation of proceedings and as to the powers of cognizance of a Magistrate
For our purpose it is enough if we extract Section 1901 alone Section 1901
Cognizance of offences by Magistrates Subject to the provisions of this Chapter any Magistrate of the first class and any Magistrate of the second class spe cially empowered in this behalf under sub section 2 may take cognizance of any of fence a upon receiving a complaint of facts which constitute such offence b upon a police report of such facts c upon information received from any person other than a police officer or upon his own knowledge that such offence has been commit ted Chapter XV which contains Section 200 to 203 deals with Complaints to Magistrate
A Magistrate taking cognizance of an offence on complaint is required by Section 200 to examine the complaint and 725 the witnesses present if any
Section 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 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
Section 203 empowers the Magistrate to dismiss the com plaint if after considering the statements on oath if any of the complainant and of the witnesses and the result of the inquiry or investigation if any under Section 202 the Magistrate is of opinion that there is no sufficient ground for proceeding
Chapter XVI deals with Commencement of Proceedings before Magistrates and Section 204 empowers 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 Magis trate taking cognizance of the offence there is sufficient ground for proceeding
From the provisions referred to above it may be seen that on receipt of a complaint a Magistrate has several courses open to him
The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under Section 200
After recording those statements if in the opinion of the Magistrate there is no sufficient ground for proceeding he may dismiss the complaint under Section 203
On the other hand if in his opinion there is sufficient ground for pro ceeding he may issue process under Section 204
If however the Magistrate thinks fit he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the 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
Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202 he may order an investigation to be made by the police under Section 1563
When such an order is made the police will have to investigate the matter and submit a report under Section 1732
On receiv ing the police report the Magistrate may take congnizance of the offence under Section 1901c and issue process straightaway to the accused
The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not
This is because the police report 726 under Section 1732 will contain the facts discovered or un earthed by the police as well as the conclusion drawn by the police therefrom
If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not
Alternately the Magistrate on receiving the police report may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cogni zance of the offence on the basis of the complaint original ly submitted to him and proceed to record the statement upon oath of the complaint and the witnesses present and thereaf ter decide whether the complaint should be dismissed or process should be issued
Since in the present case the Second Additional Chief Metropolitan Magistrate has taken cognizance of offences alleged to have been committed by the second respondent and ordered issue of process without first examining the appel lant and his witnesses the question for consideration would be whether the Magistrate is entitled under the Code to have acted in that manner
The question need not detain us for long because the power of a Magistrate to take cognizance of an offence under Section 1901b of the Code even when the police report was to the effect that the investigation has not made out any offence against an accused has already been examined and set out by this Court in Abninandan Jha  Ors
vs Dinesh Misra  and HS Bains vs State  In Abhinandan Jha  Ors
vs Dinesh Misra supra the question arose whether a Magistrate to whom a report under Section 1732 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 but it was open to the Magistrate to agree or 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 Section 1563 and 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 727 contrary opinion of the police the Court observed that the Magistrate could take cognizance under Section 1901c
The reference to Section 1901c was a mistake for Section 1901b and this has been pointed out in HS Bains supra
In the case of HS Bains supra one Gurnam Singh sub mitted a complaint to the Judicial Magistrate 1st Class Chandigarh alleging that HS Bains trespassed into his house along with two others on 11 8 1979 at about 8 am and threatened to kill him and his son
The Magistrate directed the police under Section 1563 of the Code to make an investigation
After completing the investigation the police submitted a report to the Magistrate under Section 1732 of the Code stating that the case against the accused was not true and that the case may be dropped
The learned Magistrate disagreed with the conclusion of the police and took cognizance of the case under Sections 448 and 506 of the Indian Penal Code and directed the issue of process to the accused
Thereupon the accused moved the High Court for quashing the proceedings before the Magistrate
As the High Court declined to interfere the accused approached this Court by way of appeal by special leave
Various contentions were advanced on behalf of the accused and one of them was that the Magistrate was not competent to take cognizance of the case upon the police report since the report was to the effect that no offence had been committed by the accused
It was further urged that if the Magistrate was not satisfied with the police report there were only two courses open to him viz either to order a further investigation of the case by the police or to take cognizance of the case himself as if upon a complaint and record the statements of the complainant and his witnesses under Section 200 of the Code and then issue process if he was satisfied that the case should be proceeded with
Repelling those contentions this Court held as follows The Magistrate is not bound by the conclu sions 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 Section 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 Section 324 Indian Penal Code only and he may take congni zance of an offence under Section 324 instead of Section 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 728 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 to 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 report though not on the conclusions arrived at by the police
 The position is therefore now well settled that upon receipt of a police report under Section 1732 a Magistrate is entitled to take cognizance of an offence under Section 1901b of the Code even if the police report is to the effect that no case is made out against the accused
The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused
Section 1901b does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused
The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case if he thinks fit in exercise of his powers under Section 1901b and direct the issue of process to the accused
The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under Section 1901b though it is open to him to act under Section 200 or Section 202 also
The High Court was there fore wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him
The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner
Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 1563 the police would have had to submit a report under Section 1732
It has been held in Tufa Ram  Ors
vs Kishore Singh  that if the police after making an investigation send a report that no case was made out against the accused the 729 Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 1901b and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused if he is of opinion that the case should be proceeded with
In the light of our conclusion the appeal succeeds and the order of the High Court is set aside
The order of the Second Additional Chief Metropolitan Magistrate Bangalore will stand restored and the case against the second respond ent will be proceeded further in accordance with law
GN Appeal allowed


Summary:
The appellant joined as a Lecturer in 1971 in a College affiliated to Pune University in the scale of Rs300 600 prescribed by the University Grants Commission
Earlier in 1967 the State Government accepted in principle the Govern ment of India Scheme based on recommendations of the Univer sity Grants Commission for improvement of pay scales of all university and college teachers and issued directions to all universities in the State
The Universities in turn directed all the affiliated colleges accordingly
The new scales were Rs300 25 600 Lecturers Junior Scale Rs400 30 640 40 800 Lecturers Senior Scale and Rs700 40 1100 Senior Lecturers and were to take effect from 141966
The number of Senior Lecturers and Lecturers Sr Scale was not to exceed 14 of the total strength of Lecturers
Again in 1978 it was decided to implement the next report viz the Third Pay Commissioner s report which prescribed a running scale of Rs700 1600 with effect from 111973
All the Universities in the State were directed to implement the same
A question was raised as to whether placement of teachers already made after 111973 in the pre 1973 scales would be valid on the implementation of the revised scale with effect from 111973
The Government clarified that such a placement would be valid and protect ed subject to the prescribed conditions
However the Pune University directed the College Managements to ignore the pay scales prescribed by the earlier Pay Commission in case of teachers who became entitled to the higher scale after 1173
Against this the appellant and two others ap proached the High Court by way of a Writ Petition
However the High Court felt that there was 737 nothing very inequitable about the decision taken by the University authorities and declined to interfere
This appeal by special leave is against the said judgment of the High Court
Before the Court the appellant argued that the High Court failed to appreciate the fact that the decision of the University authorities was highly prejudicial to the appel lant and others who were similarly situated as it resulted in substantial monetary loss
Allowing the appeal HELD 1
The decision of the university not only appears to be inequitable  but also discriminatory inasmuch as it sought to treat equals as unequals by protecting those who had secured the placement and denying the same to others whose names the college managements had failed to forward in good time
The appellant was entitled to placement in the higher scale of Rs700 1100 before being brought over to the revised scale of Rs700 1600
742B 2
The Lecturers whose names were recommended for place ment in the higher scale before October 4 1975 were enti tled to such placement before being brought over to the revised scale of Rs700 1600
The appellant was entitled to placement in the higher scale of Rs700 1600 wef
June 15 1975
The college authorities failed for no fault of the appellant and his companions to forward their names to the University in the prescribed proforma for reasons best known to them
To deny the benefit to which the appellant and his companions were entitled on account of the lapse on the part of the college authorities would be highly unfair and un just
The High Court however took the view that there was nothing very inequitable  about the decision of the Univer sity to deny such placement to the appellant and his compan ions but it is obvious that if they had been granted place ment on the due dates they would have been entitled to higher salary and allowances related to basic salary eg dearness allowance which is a certain percentage of basic salary would have gone up
741F H 742A 3
The respondents are directed to grant the benefit of placement in the higher scale of Rs700 1100 to the appel lant from the date he became entitled to the same ie June 15 1975 and thereafter fix his pay revised scale of Rs700 1600
The appellant will be entitled to the monetary benefit accruing to him on the implementation of the above 738 directive which should be worked out and paid to him within three months
742C D The Court expressed the hope that the authorities will extend the same benefit also to the two companions of the appellant notwithstanding their failure to approach this Court perhaps on account of cost constraint and not drive them to another round of litigation 742F