[2009] 2 S.C.R. 369

RAM NARESH PRASAD A v.

STATE OF JHARKHAND & ORS.

Criminal Appeal No. 290 of 2009

FEBRUARY 12, 2009 B

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

)> Code of Criminal Procedure, 1973 :

s. 319 - Four accused - Application for summoning of c appellant as accused rejected by trial Court and attained finalty

- Conviction of 4 accused - After investigation, final report was submitted relating to appellant which was accepted-After two years, stranger filed revision against the order accepting

• final report - Sessions Judge allowed revision and directed D ;-" CJM to hear the case - CJM ordered conviction of appellant - Revision thereagainst dismissed - Writ petition also dismissed - On appeal, held: The case raises the questions whether stranger could file a revision and if same is filed late by 2 years could it be entertained without condonation of delay E

- Case remitted for deciding these questions - Revision.

An FIR was lodged against unknown persons. The allegation was theft of five idols. The investigation was carried out but in the absence of definite clue, final report F was submitted which was accepted by Magistrate. After about week, four persons were arrested. Police submitted supplementary final form against them. Final form was filed against the appellant. Magistrate convicted all the four accused persons. During trial, an application under s.319 G ·- Cr.P.C. was filed by prosecution for summoning the -< appellant as an accused, which was dismissed. The same was not challenged before any higher Court but the investigation was kept alive, After investigation on 22.5.1999,

369 H

A final report was submitted so far as appellant was concerned. The same was accepted.

After 2 years, respondent no.2 who was neither the complainant nor having any connection with the alleged offence, filed a revision petition before the Sessions Judge 8 against the order dated 22.5.1999. By order dated

18.2.2002, revision ptition was allowed and CJM was directed to hear the informant or APP, peruse case diary both original as well as supplementary and then pass . order in accordance with law. c

On 29.8.2002, CJM passed an order taking cognizance for offences punishaple under ss. 413 and 414 IPC and non-bailable warrant was issued so far as the appellant was concerned. Aggrieved appellant filed a

0 revision petition before Sessions Judge which was dismissed. Questioning correctness of the orders, a writ petition was filed which was dismissed.

In, ppeal tg thi~ Gour~, ppellnt contended that

efor~ the orpr ws ps$ed by the Sessions Judge in E revision, the appellant was not heard; that the revision petitioner had no locus standi to file the petition f:lS he

wa~ not the jnfqrmClnt; anq that Sessions Judge did not

~q!e abol:'t the quetion qf maintainability of the revision

ptitip11 @~ fir§t jntane:

Partly allowing the appeal! the Court

li~LD: The matter is remitted to High Court to consid@r whether the re'(ision petitiPn befgr~ the SesslQns Judge was maintainable at the instance of Respondent G No.~ and that too after considerble length of time; whether the appellant needs to be heard; and whether the informant has to be given the notice. [Para 8] [361-E,

F, G]

Abhinandan Jha and Ors. v. Dinesh Mishra AIR (-1-968) H SC 117 - referred to.

Case Law Reference

AIR (1968) SC 117 referred to Para 6

CRIMINALAPPELLATE JURISDICTION: CriminalAppeai No.290 of 2009

From the final Judgement and Order dated 17/28.3.2006 B of the High Court of Jharkliand at Ranchi in WP (Crl) No. 284 of 2002.

Nagendra Rai, Surya Kant and Pranav Vyas, with him for the Appellant. c

Manish Kumar Saran, Nirmal Kumar Ambastha, Fuzail Khan, Akshaliya Kumar, Shefali Jain, Rajesh Prasad Singh and Ranjana Narayan, for the Respondent.

The Judgement of the Court was delivered by

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge of the Jharkhand High Court. Appellant filed writ E petition (Crl.) No. 284 of 2002 with the prayer to quash the order dated 18.2.2002 passed by learned Sessions Judge Palamau in Criminal Revision No. 53 of 2001. By the said order learned Sessions Judge set aside order of learned Chief Judicial Magistrate accepting the final report.submitted by the police F and directed him to pass a fresh order after perusing the case diary and after hearing the informant. Further prayer was to quash the oder passed by learned Chief Judicial Magistrate on remand taking cognizance of offences punishable under Sections 413 and 414 of the Indian Penal Code, 1860 (in short G the 'IPC').

3. Background facts in a nutshell are as follows:

One Arun Kumar Mishra (hereinafter referred to as the 'informant'- Respondent No.4) in the present appeal filed the H

-..,....

A First Information Report (in short the 'FIR') at the Bishrampur Police Station in Palamau District against unknown persons. It was stated that in the preceding night some unknown persons had stolen five idols from Thakur Bari. On the basis of the FIR police instituted case relating to offence punishable under

B Sections 457 and 380 IPC. Investigation was carried out but in the absence of any definite clue, the final report was submitted on 4.1.1997, which was accepted by learned Judicial Magistrate.

After about one week one Raghu Thakur was arrested on 12.1.1997 and he made an extra judicial confession before the c villagers. On the basis of the said extra judicial confession four persons were detained who were Raghu Thakur, Alak Singh, Dwarika Saw and Vijay Kumar Soni. On 12.3.1997 police submitted supplementary Final Form against the aforesaid four persons indicating commission of offences punishable under

D Sections 457, 380, 411 and 414 IPC. Final Form was filed so far as appellant is concerned. Learned Judicial Magistrate, First e- Class, by his judgment dated 27.1.1999 convicted all the four accused persons. During trial an application under Section 319 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C,')

was filed by prosecution with a prayer to summon the appellant 1as an accused. The said application was dismissed by the trial court. The same was not challenged before any higher court but the investigation was kept alive. Investigation was taken over by the CID Police from the district police. After investigation on • 22.5.1999 final report was submitted so far as the appellant F was concerned. The same was accepted. On 18.2.2002 after about two years, respondent No. 2, a practicing advocate who was neither the complainant nor having any connection with the alleged offence, filed a revision petition before the learned Sessions Judge, Palamau, against the order dated 22.5.1999.

G By order dated 18.2.2002 the revision petition was allowed and learned CJM was directed to hear the informant or APP, peruse ... r ... case diary both original as well as supplementary and then pass order in accordance with law.

H According to the appellant no notice was issued to the

' ·,

appellant nor was he heard. Though the revision petition was A highly belated, the same was admitted ex parte and that too without condonation of delay. The appellant had no knowledge about these subsequent events. On 29.8.2002 learned Chief Judicial Magistrate passed an order taking cognizance for

-i offences punishable under Sections 413 and 414 IPC and nonbailable warrant was issued so far as the appellant is concerned.

Aggrieved by the order dated 29.8.2002 of learned CJM,

\ ,._ appellant filed a revision petition before learned Sessions Judge

~ who dismissed the same. Questioning correctness of both the aforesaid orders, a writ petition was filed which was dismissed c by the impugned order.

4. Learned counsel for the appellant submitted that the course adopted by the revisional courts at the first instance is unknown to law. At no stage before the order was passed by

the learned Sessions Judge in revision, the appellant was heard.

D -T The revision petitioner had no locus standi to file the petition as • --f he was not the informant. Learned Sessions Judge did not decide about the question of maintainability of the revision petition at first instance. The question of limitation was also not examined.

E ,

5. The respondent No.2 had appeared in person and

' according to him the State was taking the sides of the appellant, " and he was forced to file the revision petition.

6. Learned counsel for the State accepted that if under F Section 319 Cr.P.C. the petition was rejected, no further steps were required to be taken by the State to question the correctness of the order on that behalf.

7. In Abhinandan Jha and Ors. v. Dinesh Mishra (AIR 1968 SC 117) it was observed as under: G

- ....

"5. On behalf of the appellants, in Criminal Appeal No. 218 of 1966, Mr. Jha, learned counsel, pointed out that when a final report is submitted by the police, under Section 173(1) of the Code, stating that no case is made H

expressed by the dissenting Judges, in A.K. Roy v. State A of WB. (AIR 1962 Cal 135 (FB) and by the Bombay and Patna High Courts, in the decisions reported as State v.

Murlidhar Govardhan (AIR 1960 Bom 240), and Ram Nandan v. State (AIR 1966 Pat. 438), respectively.

7. In order, properly, to appreciate the duties of the police, 8

in the matter of investigation of offences, as well as their powers, it is necessary to refer to the provisions contained .. in Chapter XIV of the Code. That chapter deals with "Information to the Police and their Powers to investigate"; and it contains the group of sections beginning from c

-4 Section 154, and ending with Section 176. Section 154 deals with information reiating to the commission of a cognizable offence, and the procedure to be adopted in respect of the same. Section 155, similarly, deals with information in respect of non-cognizable offences. Sub- D ' section (2), of this section, prohibits a police officer from investigating a non-cognizable case, without the order of a Magistrate. Section 156 authorises a police officer, incharge of a police station, to investigate any cognizable case, without the order of a Magistrate. Therefore, it will E be seen that large powers are conferred on the police, in the matter of investigation into a cognizable offence. Sub-

_. section (3), of Section 156, provides for any Magistrate, empowered under Section 190, to order an investig_ation.

In cases where a cognizable offence is suspected to have F been committed, the officer in-charge of a police station, after sending a report to the Magistrate, is entitled, under Section 157, to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender. Clause (b), of the proviso to Section G • 157(1 ), gives a discretion to the police officer not to 1 investigate the case, if it appears to him that there is no sufficient ground for entering on an investigation. Section 158 deals with the procedure to be adopted in the matter of a report to be sent, under Section 157. Section 159 H

A gives power to a Magistrate, on receiving a report under + ~· Section 157, either to direct an investigation or, himself or through another Magistrate subordinate to him, to hold a

preliminary enquiry into the mattr. or otherwise dispose of the case, in accordance with .the Code. Sections 160

B to 163 deal with the power of.the police to require attendance of witnesses, examine witnesses and record statements. Sections 165 and 166 deal with the power of police officers, in the matter of conducting searches, during

~ an investigation, in the circumstances, mentioned therein.

Section 67 provides for the procedure to be adopted by c the police, when investigation cannot be completed in 24 hours. Section 168 provides for a report being sent to the ~

offic.r in charge of a police station, about the result of an investigation, when such investigation has been made by a subordinate police officer, under Chapter XIV. Section

~· D 169 authorises a police officer to release a person from custody, on his executing a bond, to appear, if and when r:

so required, before a Magistrate, in cases when, on investigation under Chapter XIV, it appears to the officer in-charge of the police station, or to the police officer

E making the investigation, that there is no sufficient evidence or reasonable ground of suspicion, to justify the forwarding ,,

of the accused to a Magistrate. Section 170 empowers .

. the officer, in charge of a police station, after investigation "' under Chapter XIV, and if it appears to him that there is

F sufficient evidence, to forward the accused, under custody, to a competent Magistrate or to take security from the accused for his appearance before the Magistrate, in cases where the offence is bailable. Section 172 makes it obligatory on the police officer making an investigation, to maintain a diary recording the various particulars therein G and in the manner indicated in that section. Section 173 • provides for an investigation, under Chapter XIV, to be

completed, without unnecessary delay and also makes it I

' obligatory, on the officer in charge of the pqlice ta.ti on, to send a report to the Magistrate concerned, in the manner

H provided for therein, containing the necessary particulars.

8. It is now only necessary to refer to Section 190, occurring A

-~ in Chapter XV, relating to jurisdiction of Criminal Courts in inquiries and trials. That section is to be found under the heading "Conditions requisite for initiation of proceedings" and sub-section (1) is as follows:

"(1) Except as hereinafter provided, any Presidency B

Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offencet

(a) upon receiving a complaint of facts which constitute c 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 0 "' a police-officer, or upon his own knowledge or suspicion, ~

that such offence has been committed."

9. From the foregoing sections, occurring in Chapter XIV, it will be seen that very elaborate provisions h-ave been made for securing that an investigation does take place E "

into a reported offence and the investigation is carried out

within the limits of the law, without causing any harassment to the accused and is also completed without unnecessary or undue delay. But the point to be noted is that the manner and method of conducti.ng the investigation,.are left entirely F to the police, and theMagistrate, so far as we can see, has no power under any of these provisions, to interfere with the same. If, on investigation, it appears to the officer, in-charge of a police station, or to the officer making an investigation, that, there is no sufficient evidence or G ... reasonable grounds of suspicion justifying the forwarding -41

of an accused to a Magistrate, Section 169 says that the officer shall release the accused, if in custody, on his executing a bond to appear before the Magistrate.

Similarly, if, on the other hand, it appears to the officer, in- H

A charge of a police station, or to the officer making the -!

investigation, under Chapter XIV, that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, under Section 170, to forward the accused to a Magistrate; B or, if the offence is bailable, to take security from him for his appearance before such Magistrate. But, whether a case comes under Section 169, or under Section 170, of the Code, on the completion of the investigation, the police "' officer has to submit a repo.rt to the Magistrate, under Section J73, in the manner indicated therein, containing ... c

~~ the various details. The question as to whether the

Magistrate has got power to direct the police to file a charge-sheet, on receipt of a report under Section 173 really depends upon the nature of the jurisdiction exercised

D by a Magistrate, on receiving a report. r

10. In this connection, we may refer to certain observations, '-:'-

made by the Judicial Committee in King Emperor v.

Khwaja Nazir Ahmed (AIR 1945 PC 18) and by this Court, in H.N. Rishbud and lnder Singh v. State of Delhi (AIR E 1955 SC 196). In Nazir Ahmed case (supra), Lord Porter observes, at p. 212, as follows: ~

"Just as it is essential that every one accused of a crime ... should have free access to a court of justice so that he

F may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the juqiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to G investigate the circumstances of an alleged cognizable

I>- ,. crime without requiring any authority from the judicial authorities, and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent H jurisdiction of the court. The functions of the judiciary and

the police are complementary, not overlapping, and the A combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code B to give directions in the nature of habeas corpus. In such a case as the present, however, the court's functions begin when a charge is preferred before it, and not until then."

These observations have been quoted, with approval, by this Court, in State of West Bengal v. S.N. Basak (AIR c 1963 SC 447). This Court in Rishbud and lnder Singh case (AIR 1955 SC 196) observes, at p. 1156, as follows:

"Investigation usually starts on information relating to the commission of an offence given to an officer in-charge of a police station and recorded under Section 154 of the D

""9'

,,,

Code. If from information so received or otherwise, the officer in-charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case E and if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment or the facts and circumstances of the .. case. By definition, it includes all the proceedings under the Code for the collection of evidence conducted by a F police officer."

Again, after a reference to some of the provisions in Chapter XIV of the Code, it is observed at p. 1157:

"Thus, under the Code investigation consists generally of G the following steps: (1) Proceeding to the spot, (2) .>< Ascertainment of the facts and circumstances of the case, __.,

(3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their H

A statements into writing, if the officer thinks fit, (b) the search - qf places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is case to place the accused before a

B Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet under Section 173 ....

It is also clear that the final step in the investigation viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the c officer in-charge of the police station."

11. We are referring to these observations for the purpose of emphasizing that the scheme of Chapter XIV, clearly l shows that the formation of an opinion as to whether or not 1there is a case to place the accused on trial, has been left

D to the officer in-charge of a police station. Bearing in mind these principles referred to above, we have to consider r ¥"' the question that arises for consideration, in this case.

The High Courts which have held that the Magistrate has no jurisdiction to call upon the police to file a chargesheet, under such circumstances, have rested their E decision on two principles viz. (a) that there is no express provision in the Code empowering a Magistrate to pass such an order; and (b) such a power, in view of the scheme of Chapter .XIV, cannot be inferred vide Venkata Subba v

, lo-

Anjanavulu (AIR 1932 Mad 673), Abdul Rahim v. Abdul F Muktadin (AIR 1953 Assam 112); Amar Premanand v.

State (AIR 1960 Madh. Pra 12); the majority view in A. K.

Roy v. State of W.8.2; and State of Gujarat v. Shah Lakhamshi1. On the other hand, the High Courts which have recognised such a power, rest their decision again

G on two grounds viz. (a) where a report is submitted by the police, after investigation, the Magistrate has to deal with r ,,.. it judicially, which -will mean that when the report is not accepted, the Magistrate can give suitable directions to the police; and (b) the Magistrate is given supervision

H over the conduct of investigation by the police, and

...

.)< ..

therefore. such a power can be recognised in the A Magistrate vide State v. Murlidhar Goverdhan; and Ram Nandan v. State.

12. Though it may be that a report submitted by the police may have to be dealt with judicially, by a Magistrate, and B although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to .agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file c a charge-sheet. But, we may make it clear, that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him to take cognizance of an offence and proceed, according to law. We do not also find any such power, under Section D 173(3), as is sought to be inferred, in some of the decisions cited above. As we have indicated broadly the approach made by the various High Courts in coming to different conclusions, we do not think it necessary to refer to those decisions in detail." E

8. Accordingly we set aside the impugned order of the High Court and remit the matter to it to consider the following aspects

(a) Whether the revision petition before the Sessions F Judge was maintainable at the instance of Respondent No.2 and that too after considerable length of time;

(b) Whether the appellant needs to be heard; and

(c) whether the informant has to be given the notice.

9. Appeal is allowed to the aforesaid extent.

O.G.

Appeal Partly allowed.