IMPORTANT POINT
In exercise of powers u/s 482 Cr.P.C. Court would be justified to quash any proceedings if it finds that initiation of it amounts to abuse of the process of Court or quashing of proceedings would otherwise serve ends of justice.

Headnote:Criminal Procedure Code, 1973—Sections 156(3), 169, 173, 178 and 190—Cognizance of offence against accused not charge-sheeted by police—Inherent power of High Court to quash proceedings—Offences u/s 341, 323 and 435 r/w 34 I.P.C. were registered in FIR—Police submitted charge sheet wherein appellants though named in FIR were found not involved in the case and accordingly charge sheeted two accused—Magistrate while taking cognizance directed issuance of process against charge-sheeted accused as well appellants on the application of appellants, Magistrate ordered to strike their names—Sessions Judge set aside the order holding that Magistrate did not have power to recall or review his order—Appellants filed petition u/s 482 Cr.P.C. which was dismissed on ground that Magistrate could not have recalled its own order u/s 362 Cr.P.C.—Appeal—Three circumstances under which inherent jurisdiction might be exercised—It would be abuse of process of Court to allow any action which would result in injustice and prevent promotion if justice—Since police had not found any material against appellants, Magistrate without following the procedure could not have directed issuance of summons—No indication that Magistrate disagreed with opinion of investigating agency and rather which ordering to strike of names of appellants, Magistrate noted that it was mistake—Impugned order was liable to be set aside.
Held : 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 proceeding, 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 proceeding, 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 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 of 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. (Para 11)
When the factual scenario is considered in the background of legal principle set out above, the inevitable conclusion is that the High Court was not justified in rejecting the application in terms of Section 482 of the Code. This is a case when the cognizance was taken, summons were issued by mistake and the names of the appellants were also mentioned in the order dated 15.2.1999. Since the police have not found any material against the appellants, the learned CJM without following the procedure as indicated above could not have directed issuance of summons so far as they are concerned. There was no indication that learned CJM disagreed with the opinion of the investigating agency and therefore ordered issuance of summons. On the contrary, as noted by learned CJM later that was a mistake and, therefore, he had ordered to strike of the names of the appellants. The High Court’s order is set aside. The names of the appellants shall be struck of from the array of accused persons.(Para 21)

JUDGMENT

Arijit Pasayat, J.—Leave granted.

2. Challenge in this appeal is to the legality of order passed by a learned Single Judge of the Patna High Court rejecting the petition filed by the appellants in terms of Section 482 of the Code of Criminal Procedure, 1973 (in short of ‘Code’).

3. Factual position in essence is as follows:

On the written report of informant Dhrup Narain Dubey, father of respondents 2 and 3 case for alleged commission of offences punishable under Sections 341, 323 and 435 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’) was registered vide Raghunath Pur P.S. case No. 7/99 dated 20.8.1999. It was alleged that accused persons named in the FIR assaulted the informant and others. However, the police after investigation submitted charge sheet wherein three of the ladies accused were found to be not involved in the case. The police submitted charge sheet only against Harendra Dubey and Sheo Kumar Dubey. The charge sheet was placed before the learned Chief Judicial Magistrate (in short the ‘CJM’) who by his order dated 15.2.1999 took cognizance of the offence and directed issuance of processes against accused Sheo Kumar Dubey, Harendra Dubey, and appellants Minu Kumari and Ranjhun Kumari on the ground that there is a prima facie case against them for the offences punishable u/s 341, 323 and 435 read with Section 34 IPC. The learned CJM also ordered for issuance of summons and made over the case to the court of Judicial Magistrate, 1st Class for favour of disposal.

4. However, on behalf of appellants Minu Kumari and Ranjhun Kumari a petition was filed before the Court of learned CJM praying therein that due to clerical error the names of the appellants have also been mentioned in the order dated 15.2.1999 and cognizance was also taken and issuance of summons was also ordered so far as they are concerned. The learned CJM on the above petition got a miscellaneous case No. 37/99 registered and by order dated 5.5.1999 he called for the record from the court of the Magistrate, where the Trial No. 795/1999 was pending. The learned CJM heard learned counsel for the appellants and ordered to strike of their names.

5. The order passed by learned CJM was assailed before learned First Additional District and Sessions Judge, Siwan who set aside the order holding that the learned CJM did not have any power, muchless inherent power to recall or review his order. With reference to Section 362 of the Code it was held that the Court is not empowered to alter the judgment save as otherwise provided by the Code or by any other law for the time being in force. It was further held that the order passed by learned CJM amounted to review. Accordingly, the order passed by learned CJM was set aside.

6. Appellants questioned correctness of the order by filing a petition under Section 482 of the Code which came to be dismissed on the ground that the Subordinate Court could not have recalled its own order under Section 362 of the Code on the pretext that there was correction of clerical and arithmetical errors.

7. In support of the appeal, learned counsel for the appellants submitted that approach of the High Court is clearly erroneous. Even if it is conceded for the sake of argument that the Subordinate Court could not have recalled or review its order, on the facts of the case the High Court should have exercised power under Section 482 of the Code.

8. In spite of service of notice respondents 2 and 3 have not entered appearance.

9. Learned counsel for the State of Bihar submitted that technically the learned 1st Additional District and Sessions Judge was correct. But the High Court should have exercised power under Section 482 of the Code.

10. In Abhinandan Jha and another v. Dinesh Mishra (AIR 1968 SC 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, under the Code, on a Magistrate to call upon the police to s

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2006 Supreme(SC) 344

IMPORTANT POINTIn exercise of powers u/s 482 Cr.P.C. Court would be justified to quash any proceedings if it finds that initiation of it amounts to abuse of the process of Court or quashing of proceedings would otherwise serve ends of justice.

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IMPORTANT POINT
In exercise of powers u/s 482 Cr.P.C. Court would be justified to quash any proceedings if it finds that initiation of it amounts to abuse of the process of Court or quashing of proceedings would otherwise serve ends of justice.