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Supreme Court Of India
ARIJIT PASAYAT,MUKUNDAKAM SHARMA
RAM NARESH PRASAD
Versus
STATE OF JHARKHAND
Decided On : 02/12/2009
AIR 1968 SC 117 – Referred
(b) Code of Criminal Procedure, 1973 – Chapter XIV – Formation of opinion as to sending an accused for trial or not – In other words, decision to file charge sheet or not – Prerogative of Police. (Para 11)
AIR 1945 PC 18; AIR 1955 SC 196; AIR 1963 SC 447 – Relied upon
(c) Code of Criminal Procedure, 1973 – Section 173(3) – Where police submits final report stating that no case is made out, court has no power to direct police to file charge sheet – However after taking cognizance, court can proceed in accordance with law – Instantly, matter remitted back to High Court for considering whether (a) maintainability of revision petition before the Sessions judge at the instance of respondent No. 2 more so after considerable length of time; (b) appellant needs to be heard; and (c) informant has to be given notice. (Para 12)
Facts of the case:
One Arun Kumar Mishra (the ‘informant’-Respondent No. 4) filed FIR against unknown persons stating that in the preceding night some unknown persons had stolen five idols from Thakur Bari.
Case relating to offence punishable under Sections 457 and 380 IPC was instituted. Investigation was carried out but in the absence of any definite clue, the final report was submitted which was accepted by learned Judicial Magistrate. After about one week one Raghu thakur was arrested and on the basis of his extra judicial confession four persons were detained. Police submitted supplementary Final form against the aforesaid four persons indicating commission of offences punishable under Sections 457, 380, 411 and 414 IPC. Final Form was also filed so far as appellant is concerned. All the four accused persons were convicted.
During trial an application under Section 319 of the Code of Criminal procedure, 1973 was filed by prosecution for summoning the appellant as 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.
Final report was submitted so far as the appellant was concerned. The same was accepted.
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 which 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.
The Chief Judicial Magistrate passed an order taking cognizance for offences punishable under Sections 413 and 414 IPC and non-bailable warrant was issued so far as the appellant is concerned.
Aggrieved, 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 by the impugned order.
Finding of the Court:
Decision to file charge sheet or not is the prerogative of Police. Court cannot direct so.
Result:
Appeal partly allowed.
Certainly. Based on the provided legal document, here are the key points:
The court clarified that when police submit a final report stating that no case is made out, the court does not have the authority to direct the police to file a charge sheet. The decision to file a charge sheet or not is a prerogative of the police, depending on the nature of the jurisdiction exercised by the magistrate upon receiving a report under section 173 of the Criminal Procedure Code (CrPC) (!) (!) .
The formation of an opinion regarding whether an accused should be sent for trial is primarily the responsibility of the police, and the magistrate's role is limited to taking cognizance based on the report received. The magistrate cannot compel the police to file a charge sheet if they have submitted a final report indicating no case (!) (!) .
The magistrate's power to interfere with the police investigation is limited; the magistrate may only take cognizance of the case after the police have completed their investigation and submitted a report under section 173. The magistrate does not have the authority to direct the police to file a charge sheet when the police have already submitted a final report stating no case is made out (!) (!) .
The investigation process and the decision to charge are distinct. The police are responsible for investigation and forming an opinion about the case, while the magistrate's role is to take cognizance and proceed with the trial if a case is established (!) (!) .
The court emphasized that judicial interference in police investigation should be minimal and that the police's statutory rights to investigate cognizable offenses should be respected. The judiciary's role begins when a charge is filed and the case is before the court (!) (!) .
The court highlighted that the power to direct the police to file a charge sheet is not explicitly provided in the law and cannot be inferred from the existing provisions. The power of the magistrate is limited to taking cognizance of the case based on the report or complaint (!) .
The court remitted the matter for further consideration on whether the revision petition was maintainable, whether the accused needed to be heard, and whether the informant should be given notice, emphasizing procedural fairness and the importance of hearing the accused before proceeding further (!) .
Overall, the legal principles reinforce that the police have the exclusive authority to decide whether to file a charge sheet after investigation, and courts cannot direct them to do so once a final report indicating no case is submitted, unless the magistrate chooses to take cognizance based on other grounds (!) (!) .
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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 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 and directed him to pass a fresh order after perusing the case diary and after hearing the informant. Further prayer was to quash the order 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 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 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 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 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 Sections 457, 380, 411 and 414 IPC. Final Form was filed so far as appellant is concerned. Learned Judicial Magistrate, First 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 as 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 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. By order dated 18. 2. 2002 the revision petition was allowed and learned 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. According to the appellant no notice was issued to the appellant nor was he heard. Though the revision petition was 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 offences punishable under Sections 413 and 414 IPC and non-bailable 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 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 la
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