Judgment Case ID: 2202

Judgment:
minal Appeal No. 218 of 1966. Appeal by special leave from the order dated August 5	 1966 of the Patna High Court in Criminal Revision No. 1020 of 966	 AND Criminal Appeal No. 238 of 1966. Appeal by special leave from the judgment and order dated September 13	 1966 of the Patna High Court in Criminal Revi sion No. 40 of 1965. B. P. Jha and Subhag Mal Jain	 for the appellants (in Cr. A. No. 218 of 1966). Nuruddin Ahmed and R. C. Prasad	 for the appellants (in Cr. A. No. 238 of 1966). U. P. Singh	 for the respondents (in both the appeals). The Judgment of the Court was delivered by Vaidialingam	 J. The common question	 that arises for con sideration	 in these two criminal appeals	 by special leave	 is as to whether a Magistrate can direct the police to submit a charge sheet	 when the police	 after the investigation into a congnizable offence	 had submitted a final report	 under section 173 of the Code of. Criminal Procedure (hereinafter called the Code). There is a conflict of opinion	 on this point between the various High Courts in India. The High Courts of Madras	 Calcutta	 Madhya Pradesh	 Assam and Gujarat have taken the view that the Magistrate has no such power	 whereas	 the Patna and Bombay High Courts have held a contrary view. In Criminal Appeal No. 218 of 1966	 the respondent	 Dinesh Mishra	 lodged a first information report	 on June 3	 670 1965	 at the Rajoun Police Station	 that he saw a thatched house	 of one Uma Kant Misra	 situated on the northern side of his house	 burning	 and the petitioners herein.	 running away from the scene	. The police made an investigation and submitted what is called a 'final report '	 under section 173 (1) of the Code	 to the effect that the offence complained of	 was false. The Sub Divisional Magistrate received this report on July 13	 1965	 but	 in the meanwhile	 the respondent had filed what is termed 'a protest petition '	 challenging the correctness of the report submitted by the police. The Magistrate appears to have perused the police diary and	 after hearing the counsel for the respondent and the public prosecutor	 passed an order on October 27	 1965	 directing the police to submit a charge sheet	 against the petitioners	 herein. The petitioners challenged this order	 without success	 both before the learned Sessions Judge	 Bhagalpur	 and the Patna High Court. It was held by the High Court	 following its previous decision	 that the Magistrate has jurisdiction to call for a charge sheet	 when he disagrees with the report submitted by the police	 under section 173(1) of the Code. The petitioners	 in this appeal	 challenge these orders. Similarly	 in Criminal Appeal No. 238 of 1966	 the second respondent therein	 had lodged a written report	 on February 24. 1.964	 before the police	 at Malsalami police station	 that his daughter	 Hiramani	 was missing from February 21	 1964	 and that the appellants in that appeal	 had kidnapped her. A case under section 366 I.P.C. was registered against them. The police	 after investigation	 submitted a final report to the Magistrate. to the effect that the girl concerned	 had been recovered and that she bad stated that she had	 of her own accord	 eloped; and therefore the police stated that the case might be treated as closed. The second respondent filed a 'protest petition ' in Court	 challenging the statements of the police and he also filed a complaint	 under section 498 I.P.C. The Magistrate	 after a perusal of the case diary of the police	 and hearing the lawyer for the appellants and the second respondent	 as also the public prosecutor	 passed an order directing the investigating officer to submit a charge sheet	 against the accused persons	 under section 366 I.P.C This order has been confirmed by the	 learned Sessions Judge	 as well as the Patna High Court. Here also	 the Patna High Court	 in accordance with its previous decision	 held that the Magistrate had jurisdiction to pass the order	 in question. All these orders are challenged by the appellants	 in this appeal. 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		 6 71 stating that no case is made out	 the Magistrate has no jurisdiction to direct the police to file a charge sheet. It may be open	 counsel points out	 to the Magistrate	 to direct further investigation to be made by the police	 or to treat the protest petition filed by the second respondent	 as a complaint	 and take cognizance of the offence and proceed	 according to law. 	 The scheme of Chapter XIV of the Code	 counsel points out	 clearly indicates that the formation of an opinion	 as to whether or not there is a case to place the accused on trial	 is that of the investigating officers	 and the Magistrate cannot compel the police to form a particular opinion on the 'investigation and to submit a report	 according to such opinion. In this case	 there is nothing to show that the protest petition	 filed by the second respondent	 has befell treated as a complaint	 in which case	 it may be open to the Magistrate to take cognizance of the offence	 but	 in the absence of any such procedure being adopted according to counsel	 the order of the Magistrate directing a charge sheet to be filed	 is illegal and not warranted by the provisions of the Code. These contentions have been adopted	 and reiterated	 by Mr. Nuruddin Ahmed	 on behalf of the appellants	 in Criminal Appeal No. 238 of 1966. Both the learned counsel pressed before us	 for acceptance	 the views	 as expressed by the Gujarat High Court	 in its Full Bench judgment	 reported as State of Gujarat vs Shah Lakhamshi(1). On the	 other hand	 Mr. U. P. Singh	 learned counsel for the respondent	 in Criminal Appeal No. 218 of 1966	 has pointed out that the Magistrate has jurisdiction	 in proper cases	 when he does not agree with the final report submitted by the police	 to direct them to submit a charge sheet. Otherwise	 counsel points out	 the position will be that the entire matter is left to the discretion of the police authorities	 and the Courts will be powerless	 even when 'they feel that the action of the police is not justified. Quite naturally	 counsel prays for acceptance of the views expressed by the dissenting Judges	 in A. K. Roy vs State of W. B. (2) and by the Bombay and Patna High Courts	 in the decisions reported as State vs Murlidhar Govardhan(3)	 and Ram Nandan vs State ( 4 ) 	 respectively. In order	 properly	 to appreciate the duties of the police	 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 section beginning from section 154 and ending with section 176. Section 154 deals with information relating to the commission of a cognizable R. 1966 Guj	 283. (2) A. 1. R. B.). (3) A. 1. R. (4) A. 1. R. 1966 Pat. 67 2 offence	 and the procedure to be adopted in respect of the same. Section 155	 similarly	 deals with information in respect of noncognizable offences. Sub section (2)	 of this section	 prohibits a police officer from investigating a non cognizable case	 without the order of a Magistrate. Section 156 authorizes a police officer	 in charge of a police station	 to investigate any cognizable case	 without the order of a Magistrate. Therefore	 it wilt 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 investigation. In cases where a cognizable offence is suspected to have 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 157(1)	 gives a discretion to the police officer not to 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 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 matter	 or otherwise dispose of the case	 in accordance with the Code. Sections 160 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 167 provides for the procedure to be adopted by the police	 when investigation cannot be completed in 24 hours. Section 168 provides for a report being sent to the officer	 incharge 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 169 authorises a police officer to release a person from custody	 on his executing a bond	 to appear	 if and when 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 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	 incharge of a police station	 after investigation under Chapter XIV	 and if it appears to him that there is sufficient evidence	 to forward the accused	 under custody	 to a competent Magistrate or to take securtiy 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 and in the 673 manner indicated in that section. Section 173 provides for an investigation	 under Chapter XIV	 to be completed	 without unnecessary delay and also makes it obligatory	 on the officer	 incharge of the police station	 to send a report to the Magistrate concerned	 in the manner provided for therein	 containing the necessary particulars. It is now only necessary to refer to section 190	 occurring 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 its sub section (1) is as follows : "(1) Except as hereinafter provided	 any Presidency Magistrate	 District Magistrate or Sub divisional Magistrate and any other Magistrate specially empowered in this behalf	 may take cognizance of any offence (a) upon receiving a complaint of facts which constitute 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 a police officer	 or upon his own knowledge or suspicion	 that such offence has been committed. " From the foregoing sections	 occurring in Chapter XIV	 it will be seen that very elaborate provisions have been made for securing that an investigation does take place 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 conducting the investigation	 are left entirely to the police	 and the Magistrate	 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 		here is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Magistrate		 section 169 says that the officer shall release the accused	 if in custody	 on hi 	 executing a bond to appear before the Magistrate. Similarly	 if on the other hand	 it appears to the officer	 in 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 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 L7SupCI/67 13 674 submit a report to the Magistrate	 under section 173	 in the manner indicated therein	 containing 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 by a Magistrate	 on receiving a report. In this connection	 we may refer to certain observations	 made by the Judicial Committee in King Emperor vs Khwaja Nazir Ahmed(1) and by this Court	 in H. N. Rishbud and Inder Singh vs The State of Delhi(2). In Nazir Ahmed 's Case(1)	 Lord Porter observes	 at 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 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 judiciary 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 investigate the circumstances of an alleged cognizable 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 jurisdiction of the court. The functions of the judiciary and the police are complementary	 not overlapping	 and the 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 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 vs section N. Basak(3). This Court in Rishbud and Inder Singh 's Case(1)	 observes	 at p. 1156	 as follows : "Investigation usually starts on information relating to the commission of an offence given to an officer incharge of a police station and recorded under sec (1) L. R. 71 1. A. 203. (2) (3) A. 1. R. 675 tion 154 of the 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 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 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 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 statements into writing	 if ' the officer thinks fit	 (b) the search of 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 a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge sheet under section 1 7 3. . It is also clear that the final step in the investigation viz.	 the formation of the opinion as to whether or no ' there is a case to place the accused on trial is to be that of the officer in charge of the police station. " We are referring to these observations for the purpose of emphasizing that the scheme of Chapter XIV	 clearly shows that the formation of an opinion as to whether or not there is a case to place the accused on trial	 has been left to the officer incharge of a police station. Bearing in mind these principles referred to above	 we have to consider 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 charge sheet	 under such circumstances	 have Tested their 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 L7SUPCI/67 14 676 Chapter XIV	 cannot be inferred vide Venkata Subha v Anjanayulu(1); Abdul Rahim vs Abdul Muktadin(2); Aman Premanand vs State(3); the majority view in A. K. Roy vs State of W. B.(1); and Stale of Gujarat vs Shah Lakhamshi(5). Or the other hand	 the High Courts which have recognised such a power	 rest their decision again on two grounds viz.	 (a) where a report is submitted by the police	 after investigation	 the Magistrate has to deal with it judicially	 which will mean that where the report is not accepted	 the Magistrate can give suitable directions to the police 	 and (b) the Magistrate is given supervision over the conduct of investigation by the police	 and there ore	 such a power can be recognised in the Magistrate vide State vs Murlidhar Goverdhan(6); and Ram Nandan vs State(7). Though it may be that a report submitted by the police may have to be dealt with	 judicially	 by a Magistrate	 and 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 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 lo take cognizance of an offence and proceed	 according to law. We do not also find any such power	 under section 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. It will be seen that the Code	 as such	 does not use the ex pression 'charge sheet ' or 'final report '. But it is understood	 in the Police Manual containing Rules and Regulations	 that a report by the Police	 filed under section 170 of the Code	 is referred to as a 'charge sheet '. But in respect of the reports sent under section 169	 i.e.	 when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate	 it is termed variously	 in different States	 as either 'referred charge '	 'final report '	 or 'Summary '. In these two appeals	 which are from the State of Bihar	 the reports	 under section 169	 are referred to as 'final report '. Now	 the question as to what exactly is to be done by a Magistrate	 on receiving a report. under section 173	 will have to be considered. That report may be inrespect of a case	 coming under section 170	 (1) A.I.R. 1932 Mad. 673. (2) A.I.R. 1953 Assam 112. (3) A.I.R. 1960 M P. 12. (4) A.I.R. 1962 Cal. (5) A.I.R. 1966 Guj. (6) A.I.R. 1960 Born. (7) A.I.R. 1966 Pat. 677 or one coming under section 169. We have already referred to section 190	 which is the first section in the group of sections headed 'Conditions requisite for Initiation of Proceedings. ' Sub section (1)	 of this section	 will cover a report sent	 under section 173. The use of the words 'may take cognizance of any offence '	 in sub section (1) of section 190 in our opinion imports the exercise of a 'judicial discretion '	 and the Magistrate	 who receives the report	 under section 173	 will have to consider the said report and judicially take a decision	 whether or not to take cognizance of the offence. From this it follows that it is not as if that the Magistrate is bound to accept 		the opinion of the police that there is a case for placing the accused	 on trial. It is open to the Magistrate to take the view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds	 the Magistrate will be perfectly justified in declining to take cognizance of an offence	 irrespective of the opinion of the police. On the other hand	 if the Magistrate agrees with the report	 which is a charge sheet submitted by the police	 no difficulty whatsoever is caused	 because he will have full jurisdiction to take cognizance of the offence	 under section 190(1)(b) of the Code. This will be the position	 when the report under section 173	 is a charge sheet. Then the question is	 what is the position	 when the Magis trate is dealing with a report submitted by the police	 under section 173	 that no case is made out for sending up an accused for trial	 which report	 as we have already indicated	 is called	 in the area in question	 as a 'final report '? Even in those cases	 if the Magistrate agrees with the said report	 he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view	 on a consideration of the final report	 that the opinion formed by the police is not based on a full and complete investigation	 in which case in our opinion the Magistrate will have ample jurisdiction to give directions to the police	 under section 1 5 6 ( 3 )	 to make a further investigation. That is	 if the Magistrate feels	 after considering the final report	 that the investigation is unsatisfactory	 or incomplete	 or that there is scope for further investigation	 it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation	 under section 156(3). The police	 after such further investigation	 may submit a charge sheet	 or		 again submit a final report	 depending upon the further investigation made by them. If	 ultimately	 the Magistrate forms the opinion that the facts	 set out in the final report	 constitute an offence	 he	 can take cognizance of the offence under section 190(1) (c)	 notwithstanding the contrary opinion of the police	 expressed in the final report. 678 In this connection	 the provisions of section 169 of the Code	 are relevant. They specifically provide that even though	 on investigation	 a police officer	 or other investigating officer	 is of the opinion that there is no case for proceeding against the accused	 he is bound	 While releasing the accused		 to take a bond from him to appear	 'If and. when required	 before a Magistrate. This provision is obviously to meet a contingency of the Magistrate	 when he considers the report of the investigating officer	 and judicially takes a view different from the police. We have to approach the	 question	 arising for consideration in this case	 in the light of the circumstances pointed out above. We have	 already referred to the scheme of Chapter XXIV	 as well as the observations of this Court in Rishbud and Inder Singh 's Case(1) that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate	 is 'left to the officer in charge of the police station. There is no express power	 so far as we can see	 which gives jurisdiction to pass an order of the nature under attack; nor can any such powers be implied. There is certainly no obligation	 on the Magistrate	 to accept the report	 if he does not agree with the opinion formed by the police. Under those circumstances	 if he still suspects that an offence has been committed	 he is entitled	 notwithstanding the opinion of tile police	 to take cognizance	 under section 190(1)(c) of the Code. That provision	 in our opinion	 is obviously intended to secure that offences may not go unpunished and justice may be in voked even where persons individually aggrieved are unwilling or unable to prosecute. or the police	 either wantonly or through bona fide error	 fail to submit a report	 setting out the facts constituting the offence. Therefore	 a very wide power is conferred on the Magistrate to take cognizance of an offence. not only when he receives information about the commission of an offence from a third person	 but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence	 under section 190(1) (c)	 on the ground that	 after having due regard to the final report and the police records placed before him	 be has reason to suspect that an offence has been committed. Therefore	 these circumstances will also clearly negative the power of a Magistrate to call for a charge sheet from the police	 when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion	 as to whether or not there is a case to	 place the accused for trial	 is that of the officer in charge of the police station and that opinion determines whether the report is to be under section 170	 being a 'charge sheet '	 or under section 169	 'a final report '. It is no (1) [1955]1 S.C.R. 1150. 67 9 doubt open to the Magistrate	 as we have already pointed out	 to accept or disagree with the opinion of the police and	 if he disagrees	 he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge sheet	 because	 the submission of the report depends upon the opinion formed by the police	 and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion	 on the investigation	 and to submit a report	 according to such opinion. Thai will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report	 either under section 169	 or under section 170	 depending upon the nature of the decision. Such a function has been left to the police	 under the Code. We have already pointed out that the investigation	 under the Code	 takes in several aspects	 and stages	 ending ultimately with the formation of an opinion by the police as to whether	 on the material covered and collected	 a case is made out to place the accused before the Magistrate for trial	 and the submission of either a charge sheet	 or a final report is dependent on the nature of the opinion	 so formed. The formation of 	the said opinion	 by the police	 as pointed out earlier	 is the final step in the investigation	 and that final step is to be taken only by the police and by no other authority. The question can also be consider from another point of view. Supposing the police send a report	 viz.	 a charge sheet	 under section 170 of the Code. As we have already pointed out	 the Magistrate is not bound to accept that report	 when he considers the matter judicially. But	 can he differ from the police. and call upon them to submit a final report	 under s.169 ? In our opinion	 the Magistrate has no such power. If he has no such power	 in law	 it also follows that the Magistrate has no power to direct the police to submit a charge sheet when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of the Magistracy and the police	 are entirely different	 and though	 in the circumstances mentioned earlier the Magistrate may or may not accept the report	 and take suitable action	 according to law	 he cannot certainly infringe upon the jurisdiction of the police	 by compelling them to change their opinion	 so as to accord with his view. Therefore	 to conclude	 there is no power	 expressly or im pliedly conferred	 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 tip an accused for trial. L7 Sup. CI/67 15 680 In these two appeals	 one other fact will have to be taken note of. It is not very clear as to whether the Magistrate	 in each of these cases	 has chosen to treat the protest petitions	 filed by the respective respondents	 as complaints	 because	 we do not find that the Magistrate has adopted the suitable procedure indicated in the Code	 when he takes cognizance of an offence	 on a complaint made to him. Therefore	 while holding that the orders of the Magistrate	 in each of these cases	 directing the police to file charge sheets	 is Without jurisdiction	 we make it clear that it is open to the Magistrate to treat the respective protest petitions	 as complaints	 and take further proceedings	 according to law	 and in the light of the views expressed by us	 in this judgment. Mr. Nuruddin Ahmed	 learned counsel for the appellants in Criminal Appeal No. 238 of 1966	 particularly urged that it is unnecessary to direct further proceedings to be continued	 so far as his clients are concerned. Learned counsel pointed out that the police report before the Magistrate clearly shows that the girl	 in question	 who is stated to be above 19 years of age	 has herself stated that she bad eloped	 of her own accord and that if that is so	 further proceedings against his clients	 are absolutely unnecessary	 to be continued. We are not inclined to accept these contentions of the learned counsel. As to whether an offence is made out or whether any of the appellants or both of them are guilty of the offences with which they may be charged	 are all matters which do not require to be considered	 by this Court	 at this stage. In the result	 subject to the directions contained above	 the orders of the Magistrate	 directing the police to file a charge	 will be set aside	 and the appeals allowed	 to that extent. V.P.S. Appeals allowed.

Summary:
On the question whether a magistrate could direct the police to submit a charge sheet	 when the police	 after investigation into a cognizable offence	 had submitted a report of the action taken under section 169	 Cr. P.C.	 that there was no case made out for sending up the accused for trial	 HELD : There was no such power conferred on a magistrate either expressly or by implication. When a cognizable offence is reported to the police they may after investigation take action under section 169 or section 170 Cr. If the police :think there is not sufficient evidence against the accused	 they may	 under section 169 release the accused from custody on his executing a bond to appear before a competent magistrate if and when so required; or	 if the police think there is sufficient evidence	 they may	 under section 170	 forward the accused under custody to a competent magistrate or release the accused on bail in cases where the offences are bailable. In either case the police should submit a report of the action taken	 under section 173	 to the competent magistrate who considers it judicially under section 190 and takes the following action : (1) If the report is a charge sheet under section 170 it is open to the magistrate to agree with it and take cognizance of the offence under section 190(1) (b); or to take the view that the facts disclosed do not make out an offence and decline to take cognizance. But he cannot call upon the police to submit a report that the accused need not be proceeded against on the ground that there was not sufficient evidence. (2) If the report is of the action taken under section 169	 then the magistrate may agree with the report and close the proceeding. If he disagrees with the report he can give directions to the police under section 156(3) to make a further investigation. If the police	 after further investigation submit a charge sheet	 the magistrate may follow the procedure where the charge sheet under section 170 is filed; but if the police are still of the opinion that there was not sufficient evidence against the accused	 the magistrate may agree or disagree with it. Where he agrees	 the case against the accused is closed. Where the magistrate disagrees and forms the opinion that the facts set out in the report constitute an offence	 he .can take cognizance under section 190(1)(c). The provision in section 169 enabling the Police to take a bond for the appearance of the accused before a magistrate if so required	 is to meet such a contingency of the magistrate taking cognizance of the offence notwithstanding the contrary opinion of the police. The power under section 190(1)(c) was intended to Secure that 66 9 offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute	 or he police either wantonly or through a bona	 fide error do not submit a charge sheet. But the magistrate cannot direct the Police to submit a charge sheet	 because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the magistrate. The magistrate	 if he disagrees with the report of the police	 can. himself take cognizance of the offence under section 19O(1)(a) or (c)	 but	 be cannot compel the police to form a particular opinion on investigation and submit a report according to such opinion. [672F H; 673B; 676H; 677B H; 678 A H; 679A C. E H] State of Gujarat vs Shah Lakhamshi	 A.I.R. 1966 Gujarat 283 (F.B.); Venkatusubha vs Anjanayulu	 A.I.R. 1932 Mad. 673; Abdul Rahim vs Abdul Muktadin	 A.I.R. 1953 Assam 112; Amar Premanand vs State	 A.I.R. 1960 M.P. 12 and A. K. Roy vs State of West Bengal	 A.I.R. 1962 Cal. 135 (F.B.)	 approved. State vs Murlidhar Govardhan	 A.I.R. 1960 Bom. 240 and Ram Wandan vs State	 A.I.R. 1966 Pat. 438	 disapproved.