2001 (4) Crimes 422
ALLAHABAD HIGH COURT
J.C. Gupta. J.
Harkesh & Ors. - Revisionists
versus
State of U.P. & Another - Opp. Parties
Criminal Revision No. 1210 of 2000
Decided on 31-8-2001
Counsel for the parties:
For the Revisionists: Mr. L.V. Singh. Advocate.
For the Respondents: Sri G.K. Singh and A.G.A.

IMPORTANT POINT
When police submits a final report after investigation of complaint, Magistrate can take cognizance by disagreeing with conclusion of police in report but cannot take any external material for that purpose.

Headnote:(i) Criminal Procedure Code, 1973 - Sections 190 and 200, 202 - Criminal complaint marked by Magistrate to police for investigation - Final report under Section 173 (2), Cr.P.C. submitted by police - Complainant filed Protest Petition supported by his affidavit and affidavits of witnesses Summoning Order passed by Magistrate on basis of material i.e. final report and affidavit of complainant and witnesses Legality - Whether Magistrate deciding to take cognizance under Section 190(1)(b), Cr.P.C. on receipt of final report could take, aid of external material or evidence in addition to material or facts collected during investigation? No.

       Held: The position is thus clear that when Magistrate receives police report under Section 173(2), he is entitled to take cognizance of an offence 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 investigation and other material collected during investigation and form it is own opinion independently without being bound by the conclusions arrived at by the investigating agency, and take cognizance under Section 190(1)(b) of the Code and direct the issue of process to the accused. However the Magistrate cannot make use of any material or evidence other than the investigation records while acting under Section 190(1)(b) of the Code. If he chooses to make use of any materials other than the investigation records, he will have to follow the procedure laid down in relation to complaint cases, on the basis of original complaint or application moved under Section 156(3), Cr.P.C. which otherwise tantamount to complaint or the Protest Petition filed against acceptance of final report treating the same as complaint. This proposition would be in consonance with the provision of Section 207 which inter-alia provides for supply of copy of statements recorded under sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses and any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173. (Para 15)

       In the present case the learned Magistrate while taking cognizance under Section 190(1)(b) of the Code has taken into consideration the affidavits of complainant and other witnesses filed alongwith Protest Petition, which was not permissible in law. He could take cognizance on the basis of the Protest Petition or the original complaint but in that event he was bound to follow procedure laid down for complaint cases. The distinction between two types of cognizance is apparent in as much as cognizance under Section 190(1)(b) is taken only on the basis of papers forwarded by police under Section 173(2), Cr.P.C. but when the Magistrate makes up his mind to take into consideration other material in evidence it would be a case of taking cognizance under Section 190(1)(a) of the Code and for that matter procedure prescribed for complaint cases under Sections 200 and 202, Cr.P.C. has to be followed. If the Magistrate was of the opinion that Investigating Officer had failed to record statements of material witnesses, it was open for the learned Magistrate to have sent back the case to police for a further investigation. For the above reasons, the impugned order of the learned Magistrate cannot be sustained. (Para 16)

       (ii) Criminal Procedure Code, 1973 - Sections 190 and 200 Complaint before Magistrate Investigation by police and submission of final report - Courses open to Magistrate.

       Held: Upon receiving final report the following four courses are open to the Magistrate and he may adopt any one of them as the facts and circumstances of the case may require:

       (I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or

       (II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police there is sufficient ground to proceed; or

       (III) he may order further investigation if he is satisfied that the investigation was made in a perfunctory manner; or

       (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202. Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

       This position of law is now well settled by various pronouncements of the Apex Court, such as (1) Abhinandan Jha v. Dinesh Misra, A.I.R. 1968.S.C. 117 (2) H.S. Bains v. State, A.I.R. 1980 S.C. 1883 (3) Tularam v. Kishan Singh, A.I.R. 1977 S.C. 2401 and (4) M/s. India Carat Pvt. Ltd. v. State of Karnataka, A.I.R. 1989 S.C. 890. (Para 7)

       Result: Revision allowed Matter remanded.