IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-5343 of 2008. Date of Decision : September 01 , 2009. Gurdip Singh son of Jagat Singh son of Boor Singh, and others, all residents of Village Thatta Nawa, Tehsil Sultanpur Lodhi, District Kapurthala ...... Petitioners. Versus. State of Punjab, and another. ...... Respondents. CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. Padam Jain, Advocate, for the petitioners. Mr. Aman Deep Singh Rai, A.A.G. Punjab, for the respondent No. 1-State. Ms. Jatinder Jit Kaur, Advocate, for the respondent No. 2-complainant. AUGUSTINE GEORGE MASIH, J. This petition is for quashing of order dated 03.10.2007 (Annexure-P-6), passed by the learned Sub Divisional Judicial Magistrate, Sultanpur Lodhi, whereby the cancellation report submitted by the police was rejected and taking cognizance of the matter in F.I.R. No. 63 dated 15.08.2006 (Annexure-P-1) and complaint dated 12.05.2007 (Annexure-P-4), had summoned the petitioners-accused to face trial under Sections 452/324/354/148/149 I.P.C., orders dated 24.12.2007 (Annexure-P-7), 09.01.2008 (Annexure-P-8) and 14.01.2008 (Annexure-P-9), whereby the Crl. Misc. No. M-5343 of 2008. police had been directed to file charge-sheet in the case and also the order dated 06.02.2008 (Annexure-P-10), ordering framing of charges under Sections 148/323/324/452 read with Section 149 I.P.C. and all other consequential proceedings arising therefrom. Counsel for the petitioners contends that respondent No. 2- Kamla Rani/complainant in order to pressurise the petitioners and to falsely implicate them, coined a false story and lodged F.I.R. No. 63, dated 15.08.2006 (Annexure-P-1) under Sections 452,354,323,324,148,149 I.P.C. at Police Station Talwandi Chaudharian, District Kapurthala. During the investigation of the case, respondent No. 2/complainant approached this High Court for seeking directions to the police to present the challan. The petition was disposed of with directions to the Senior Superintendent of Police, Kapurthala, vide order dated 02.03.2007 (Annexure-P-2), to ensure that the investigation be completed at the earliest, preferably within four months from the date of receipt of certified copy of the order. Feeling still not satisfied with the investigation, respondent No. 2/complainant further got an inquiry done by Deputy Superintendent of Police, Sub Division, Sultanpur Lodhi, who found that the case was false and recommended for cancellation of the F.I.R. The said recommendation was accepted by the Senior Superintendent of Police, Kapurthala, vide order dated 20.07.2007 and accordingly cancellation report dated 18.07.2007 (Annexure-P-3) under Section 173 Cr.P.C. was submitted before the Illaqa Magistrate, Sultanpur Lodhi. In the meanwhile, respondent No. 2/complainant filed a private complaint under Section 452, 354, 323, 324, 148, 149 I.P.C. before the Illaqa Magistrate, Sultanpur Lodhi, on 12.05.2007. In the private complaint, respondent No. 2/complainant examined herself as C.W.1 as her -2- Crl. Misc. No. M-5343 of 2008. own evidence as well as medical evidence, where Dr. Ajay Khosla, Medical Officer, E.S.I. Dispensary No. 3, Jalandhar, who conducted the medico legal examination of the respondent No. 2/complainant and found five injuries on her person deposed before the Court and proved the M.L.R. as Ex. C.A. and pictorial diagram Ex.C.A.1. The learned Magistrate issued notice to respondent No. 2/complainant on submission of cancellation report by the police. Respondent No. 2/complainant in response to the said notice appeared before the Court on 03.10.2007 and made a statement before the Court that the cancellation report was not acceptable to her. After recording the statement of respondent No. 2/complainant, the learned Sub Divisional Judicial Magistrate, Sultanpur Lodhi passed an order, rejecting the cancellation report and further taking into consideration the statement given by the respondent No. 2/complainant in the private complaint filed by her as also other statements and evidence led by her in the said private complaint, proceeded to take cognizance of the matter and summoned the petitioners as accused under Sections 452, 324, 323, 354, 148, 149 I.P.C. for 07.11.2007 (Annexure-P-6). Accordingly, the petitioners appeared before the Court and furnished their bail bonds. Thereafter, on the request of prosecution, the case was adjourned to 09.01.2008, vide order dated 24.12.2007 for filing the challan. On 09.01.2008, the challan was not presented and the case was fixed for 14.01.2008 and then the challan having not been presented, the case was adjourned to 21.01.2008. Ultimately, report under Section 173 Cr.P.C. was presented by S.H.O., Police Station Sultanpur Lodhi, wherein after narration of the facts, it was prayed that the F.I.R. be cancelled. However, the Magistrate proceeded to frame charges against the petitioners-accused, -3- Crl. Misc. No. M-5343 of 2008. vide order dated 06.02.2008. The order framing charge and the charge- sheet are placed on record as Annexure-P-10 as Annexure-P-11 respectively. Counsel for the petitioners submits that due to pressure of the Court, S.H.O. had presented the challan. However, it contained old narration regarding the cancellation report and the last prayer in the said challan was for cancellation of the F.I.R. Copy of cancellation report under Section 173 Cr.P.C. is annexed as Annexure-P-12. He on the basis of above facts, submits that the impugned orders, passed by the Magistrate are not sustainable and deserve to be set aside on the factual aspect only. That apart, counsel for the petitioners contends that the learned Magistrate had taken cognizance of the case according to Section 190(1)(c) Cr.P.C. He submits that in such like cases, when cognizance is taken by the Magistrate under Section 191 Cr.P.C., the case is one, which is instituted otherwise than on police report and, therefore, the procedure as provided for under Sections 244, 245 and 246 Cr.P.C. is required to be followed and the learned Magistrate had totally ignored those provisions and had proceeded with the case as if the case was instituted upon police report, which is not the case in hand. He contends that the learned Magistrate had proceeded to take cognizance and thereafter, by forcing the police to file a report under Section 173 Cr.P.C., which again although filed by the police, contained a request for cancellation of the F.I.R., the learned Magistrate proceeded to frame the charges against the petitioners, vide order dated 06.02.2008, totally ignoring the fact that the criminal complaint, which was clubbed together and was also made the basis for issuing summoning orders, the provisions as contained in Sections 204 to -4- Crl. Misc. No. M-5343 of 2008. 210 Cr.P.C., would apply. He further submits that the said procedure having not been followed, the charges framed against the petitioners deserve to be quashed. In support of his contentions, counsel for the petitioners has relied upon the judgments of Hon'ble the Supreme Court in the cases of Pravin Chandra Mody Versus State of Andhra Pradesh, A.I.R. 1965 Supreme Court 1185 and Sanjay Bansal and another Versus Jawaharlal Vats and others, 2007 (4) R.C.R. (Criminal) 955. On the other hand, counsel for the respondent No. 2/complainant submits that the Magistrate had proceeded to take cognizance on the police report i.e. cancellation report (Annexure-P-3) Although, this report is stated to have been filed under Section 173 Cr.P.C. but even if it is taken as one submitted under Section 169 Cr.P.C., it still would be a police report and, therefore, provisions of Sections 244, 245 and 246 Cr.P.C. would not be applicable as it is a case not instituted otherwise than on police report as has been asserted by counsel for the petitioners. She further submits that perusal of the order dated 24.12.2004 (Annexure-P-7), 09.01.2008 (Annexure-P-8) and 14.01.2008 (Annexure-P- 9) do not indicate that direction was issued by this Court to the prosecution to file challan against the petitioners-accused as has been asserted by counsel for the petitioner. She further submits that perusal of the order dated 24.12.2007 (Annexure-P-7) clearly shows that a request was made by the prosecution for filing the challan. On this basis, she contends that the assertion made by counsel for the petitioners, cannot be sustained. In view of the above submissions, she prays for dismissal of the present petition. -5- Crl. Misc. No. M-5343 of 2008. I have heard counsel for the parties and have gone through the records of the case. In the present case, the powers of the Magistrate under Section 190 of the Code of Criminal Procedure, 1973, is required to be looked into and, therefore, the said provision is reproduced hereunder :- “190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first 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; (c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.” There is no force in the contention raised by counsel for the petitioners that the Magistrate had, vide its orders dated 24.12.2007 (Annexure-P-7), 09.01.2008 (Annexure-P-8) and 14.01.2008 (Annexure-P- 9), pressurised or forced the police to present the challan in the case as the perusal of the order dated 24.12.2007 (Annexure-P-7) clearly depicts that it was the prosecution which had sought time for filing the challan. However, there can be no dispute with regard to contention raised by counsel for the petitioners that there is no power, expressly or impliedly conferred under the Code of Criminal Procedure upon the Magistrate to call upon the police to submit charge-sheet, when they had sent a report under Section 169 Cr.P.C. stating that there is no case made -6- Crl. Misc. No. M-5343 of 2008. out for sending up the accused for trial. It is also not in dispute that the jurisdiction of the Magistrate and the police are entirely different and the Magistrate cannot impinge upon jurisdiction of police by compelling them to change their opinion and put in line with a view of the Magistrate. Having said so, once a report either under Section 169 Cr.P.C. or Section 173 Cr.P.C. is submitted by the police, the Magistrate is not bound to accept the same. The Magistrate has to apply its own independent mind and form an opinion. He is not deprived of the power to proceed with the matter, if he does not agree with the opinion formed by the police. He has the powers to either accept the said report or reject the same. On a report submitted for cancellation of the F.I.R., the final decision and power to take cognizance, is with the Magistrate and such power is vested in the Magistrate under Section 190(1)(b) Cr.P.C., notwithstanding the opinion of the police The contention of counsel for the petitioners that, where the cognizance is taken by the Magistrate other than on the police report, the provisions as contained in Chapters XV and XVI of the Code of Criminal Procedure would apply, cannot be disputed with and the same has been held by Hon'ble the Supreme Court in the case of Pravin Chandra Mody (supra), but in the present case it is a case, where the cognizance had been taken by the Magistrate on police report, which was submitted to her. Hon'ble the Supreme Court in the case of Sanjay Bansal and another (supra), in paras No. 7, 8 and 9 held as follows :- “7. In Abhinandan Jha and Another v. Dinesh Mishra, A.I.R. 1968 S.C. 117, this Court while considering the provisions of Sections 156(3), 169, 178 and 190 of the Code held that there is no power, expressly or impliedly conferred, -7- Crl. Misc. No. M-5343 of 2008. under the Code, on a Magistrate to call upon the police to submit a charge sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistrate and the police are entirely different and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190 (1) (c). 8. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation under Section 156 (3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding ; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceedings, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156 (3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take -8- Crl. Misc. No. M-5343 of 2008. cognizance of an offence under Section 190(1)(b) 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 190(1)(b) 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, exercise his powers under Section 190 (1)(b) 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 Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. [See M/s India Sarat Pvt. Ltd. v. State of Karnataka and another, 1989 (1) R.C.R. (Criminal) 395 : (A.I.R. 1989 S.C. 885)]. The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh's case (supra) that where the Magistrate decides not to take cognizance and to drop the proceedings or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First -9- Crl. Misc. No. M-5343 of 2008. Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard. 9. We may add here that the expressions 'charge-sheet' or 'final report' are not used in the Code, but it is understood in Police Manuals of several States containing the Rules and the Regulations to be a report by the police filed under Section 170 of the Code, described as a “charge-sheet”. In case of reports sent under Section 169 i.e., where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate, it is termed variously i.e., referred charge, final report or summary. Section 173 in terms does not refer to any notice to be given to raise any protest to the report submitted by the police. Though the notice issued under some of the Police Manuals states it to be a notice under Section 173 of the Code, though there is nothing in Section 173 specifically providing for such a notice.” A perusal of the above, leaves no manner of doubt that the Magistrate is entitled to form a different opinion from that of the police and can proceed to take cognizance of an offence under Section 190 (1)(b) Cr.P.C., even if the report is to the effect that no case is made out against the accused. The Magistrate can take into account the evidence of 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. It has further been held that the Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 Cr.P.C. for taking cognizance of the case under Section 190 (1)( (a) though it is open to him to take cognizance under Section 200 and 202 Cr.P.C. -10- Crl. Misc. No. M-5343 of 2008. Section 210 Cr.P.C. provides for the procedure to be followed when there is a complaint case and a police investigation in respect of the same offence. There is no dispute that present is a case where police investigation was conducted and in respect of same offence, there was a complaint case. The police on completion of the investigation submitted report before the Magistrate and in exercise of the powers under Section 210, the Magistrate clubbed the two cases and on consideration of the police report, the complaint and statements and evidence lead thereunder proceeded to reject the police report of cancellation and took cognizance of the offences under Section 190(1)(b) Cr.P.C. There is no bar that the Court cannot consider the complaint and the statements and evidence lead thereunder together with the police report. The object of the Section is to mitigate the harassment of a person so that he is not forced to face two trials for offence(s) arising out of one occurrence or incident or event. This is a protection to a person from double jeopardy. The consequence of clubbing of the complaint case and the police case is that the complaint case also will be treated as a case instituted on a police report and both will be treated as if instituted on a police report. The statements recorded under Section 200 and Section 202 Cr.P.C. will become part and parcel of the police report and will be looked into in the same way as the documents/statements submitted under Section 169 or 173 Cr.P.C. by the police. The two cases would be tried together and the procedure to be followed is that applicable to cases instituted on a police report. In view of the above position in law, the order passed by the Magistrate, taking cognizance of the offence on the report submitted by the -11- Crl. Misc. No. M-5343 of 2008. police, is in accordance with law and, therefore, does not call for any interference by this Court. Finding no merit in the present petition, the same stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE September 01, 2009. sjks. Whether referred to the Reporter : _____________. -12-