Case: State Of Maharashtra Vs. Sharadchandra Vinayak Dongre

and, if so, by whom;(e) whether the accused has been arrested;(f) whether he has been released on his bond and, if so, whether with or without sureties;(g) whether he has been forwarded in custody under Section 170. 7. The purpose of the submission of the police report with the details as mentioned above, is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed alongwith the police report, a case for taking cognizance has been made out or not. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1) (b) Cr.P.C. provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence. Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173(2) Cr.P.C. Merely, because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file ``supplementary charge-sheet. It could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him alongwith the charge-sheet that cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate.8. In the instant case, the Chief Judicial Magistrate was obviously satisfied with sufficiency of the material placed by the prosecution before him with the report for taking cognizance of the offence and he therefore proceeded further after taking cognizance and directed the issuance of process against the respondents. The prayer of the investigating agency seeking permission to further investigate and submit a `supplementary charge-sheet could not vitiate the cognizance taken by the Chief Judicial Magistrate nor denude him of his jurisdiction to take cognizance of the offence. The High Court while quashing the order dated 21.11.1986, did not record any finding to the effect that the exercise of discretion by the Magistrate in taking cognizance of the offence and issuing process was in any way improper or that the cognizance was taken on the basis of the material on which no reasonable person could have taken cognizance. The High Court quashed the order only because it was influenced by the application filed by the prosecution seeking permission to record additional evidence and file a `supplementary charge-sheet and from that it inferred that the report filed by the prosecution was `incomplete. High Court even over-looked the fact that the application filed by the prosecution had not even been allowed by the Chief Judicial Magistrate and had been only adjourned for orders. We cannot persuade ourselves to accept the view of the High Court that if the investigating officer term a police report as ``incomplete. It takes away the jurisdiction of the Magistrate to take cognizance of the offence, even if in the opinion of the Magistrate, the material is sufficient for him to be satisfied that it was a fit case for him to take cognizance of the offence. The Magistrate is not bound by the label given to the report or the charge-sheet by the investigating officer and it is for him to decide whether the report and the material on which it is based, is sufficient for him to take cognizance or not. It is pertinent to notice that the police report submitted before the Chief Judicial Magistrate did not even say that it was an ``incomplete charge-sheet or police report. The High Court was, therefore, not at all justified in opining that since the charge- sheet on the prosecutions own showing was ``incomplete, the Chief Judicial Magistrate could not have taken cognizance and quash the order of the CJM taking cognizance of the offence. We may also record at this stage that Shri Dholakia, the learned Senior counsel appearing for the appellant submitted before us that apart from the material already filed with the police report/charge-sheet, on the basis of which the Chief Judicial Magistrate took cognizance on 21.11.1986, the State does not intend to file any further material by way of any supplementary charge-sheet before the Trial Court. The statement of Shri Dholakia, adequately protects the interest of the respondents. In view of the statement of Mr. Dholakia, we are relieved of the necessity to deal with the effect of Section 173(8) Cr.P.C. in this case.9. Since the Chief Judicial Magistrate condoned the delay for launching the prosecution, without notice to the respondents and without affording any opportunity to the respondents to have their say, the case deserves to be remitted to the Chief Judicial Magistrate for deciding the application filed by the prosecution seeking condonation of delay, if any, afresh in accordance with law after hearing both the parties. It is after the decision of the application for condonation of delay that the Chief Judicial Magistrate shall proceed further in the matter. The finding of the High Court that the CJM could not take cognizance of the offence on the basis of `incomplete police report, for the reasons already recorded, is, however, set aside. The Chief Judicial Magistrate shall proceed further in accordance with law after deciding the application seeking condonation of delay. Nothing said therein above, shall, however, be construed as any expression of opinion on the merits of the case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the Trial Court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court, however, did not adopt that course and proceeded further to hold that the trial Court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a ``supplementaryon the basis of an `incompleteand quashed the order of the CJM dated 21.11.1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous.The purpose of the submission of the police report with the details as mentioned above, is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed alongwith the police report, a case for taking cognizance has been made out or not. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1) (b) Cr.P.C. provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence. Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173(2) Cr.P.C. Merely, because the prosecution had filed an application, after submission of theseeking permission to file ``supplementaryIt could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him alongwith thethat cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate.8. In the instant case, the Chief Judicial Magistrate was obviously satisfied with sufficiency of the material placed by the prosecution before him with the report for taking cognizance of the offence and he therefore proceeded further after taking cognizance and directed the issuance of process against the respondents. The prayer of the investigating agency seeking permission to further investigate and submit a `supplementarycould not vitiate the cognizance taken by the Chief Judicial Magistrate nor denude him of his jurisdiction to take cognizance of the offence. The High Court while quashing the order dated 21.11.1986, did not record any finding to the effect that the exercise of discretion by the Magistrate in taking cognizance of the offence and issuing process was in any way improper or that the cognizance was taken on the basis of the material on which no reasonable person could have taken cognizance. The High Court quashed the order only because it was influenced by the application filed by the prosecution seeking permission to record additional evidence and file a `supplementaryand from that it inferred that the report filed by the prosecution was `incomplete. High Court eventhe fact that the application filed by the prosecution had not even been allowed by the Chief Judicial Magistrate and had been only adjourned for orders. We cannot persuade ourselves to accept the view of the High Court that if the investigating officer term a police report as ``incomplete. It takes away the jurisdiction of the Magistrate to take cognizance of the offence, even if in the opinion of the Magistrate, the material is sufficient for him to be satisfied that it was a fit case for him to take cognizance of the offence. The Magistrate is not bound by the label given to the report or theby the investigating officer and it is for him to decide whether the report and the material on which it is based, is sufficient for him to take cognizance or not. It is pertinent to notice that the police report submitted before the Chief Judicial Magistrate did not even say that it was an ``incompleteor police report. The High Court was, therefore, not at all justified in opining that since the chargesheet on the prosecutions own showing was ``incomplete, the Chief Judicial Magistrate could not have taken cognizance and quash the order of the CJM taking cognizance of the offence. We may also record at this stage that Shri Dholakia, the learned Senior counsel appearing for the appellant submitted before us that apart from the material already filed with the policeon the basis of which the Chief Judicial Magistrate took cognizance on 21.11.1986, the State does not intend to file any further material by way of any supplementarybefore the Trial Court. The statement of Shri Dholakia, adequately protects the interest of the respondents. In view of the statement of Mr. Dholakia, we are relieved of the necessity to deal with the effect of Section 173(8) Cr.P.C. in this case.9. Since the Chief Judicial Magistrate condoned the delay for launching the prosecution, without notice to the respondents and without affording any opportunity to the respondents to have their say, the case deserves to be remitted to the Chief Judicial Magistrate for deciding the application filed by the prosecution seeking condonation of delay, if any, afresh in accordance with law after hearing both the parties. It is after the decision of the application for condonation of delay that the Chief Judicial Magistrate shall proceed further in the matter. The finding of the High Court that the CJM could not take cognizance of the offence on the basis of `incomplete police report, for the reasons already recorded, is, however, set aside. The Chief Judicial Magistrate shall proceed further in accordance with law after deciding the application seeking condonation of delay. Nothing said therein above, shall, however, be construed as any expression of opinion on the merits of the case.