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1970 Supreme(Raj) 62
Rajasthan High Court
KAN SINGH
Badarmal - Appellant
Versus
Roshanlal - Respondent
Criminal Revns.. Nos. 216 and 369 of 1969
Decided On : 04/17/1970
D.S. Shisodia, for Petitioners; A.L. Mehta with B.P. Dave, for Respondent No. 1; A.K. Mathur, Dy. Govt. Advocate.
A Magistrate can take cognizance of an offense under Section 190(1)(b) of the CrPC based on a police report, including a final report, even if the police have expressed a contrary opinion in the report.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 190(1)(B) - COGNIZANCE OF OFFENCE - POLICE REPORT - FINAL REPORT - MAGISTRATE'S POWER TO TAKE COGNIZANCE - INTERPRETATION OF SECTION 190(1)(B) AND (C) - DISTINCTION BETWEEN POLICE REPORT AND FINAL REPORT - ROLE OF PROSECUTING SUB-INSPECTOR.
Fact of the Case:
The case involved a dispute over the Magistrate's authority to take cognizance of an offense despite a contrary opinion expressed by the police in their final report submitted under Section 173 of the Criminal Procedure Code (CrPC). The Magistrate, upon reviewing the facts presented in the final report, formed a different opinion and issued processes against the accused, leading to two revision applications challenging the Magistrate's actions.
Finding of the Court:
The court held that the Magistrate was within his authority to take cognizance of the offense under Section 190(1)(b) of the CrPC, despite the police's contrary opinion expressed in the final report. The court interpreted Section 190(1)(b) to include both challans (charge sheets) and deferred charge sheets or "Iktami" submitted by the police, considering them all as police reports.
Issues: 1. Whether the Magistrate could take cognizance of the offense under Section 190(1)(b) of the CrPC despite the police's contrary opinion expressed in the final report. 2. Whether the Prosecuting Sub-Inspector could be directed to conduct the prosecution and furnish copies of relevant statements to the accused.
Ratio Decidendi: 1. The court interpreted Section 190(1)(b) of the CrPC to include both challans and deferred charge sheets or "Iktami" submitted by the police, considering them all as police reports. Therefore, the Magistrate was authorized to take cognizance of the offense under Section 190(1)(b) despite the police's contrary opinion. 2. The court held that the Prosecuting Sub-Inspector, as a public functionary discharging the duties of a Public Prosecutor, could be directed to conduct the prosecution and furnish copies of relevant papers to the accused.
Final Decision: The court dismissed both revision applications, upholding the Magistrate's authority to take cognizance of the offense under Section 190(1)(b) of the CrPC and the direction to the Prosecuting Sub-Inspector to conduct the prosecution.
ORDER :- The revision applications before me raise a short question though, by no means, an easy one about the mode of proceeding where the Magistrate does not accept the final report made by the police under Section 173 Criminal Procedure Code and takes cognizance of the offence by not agreeing to the final report.
2. On 9-7-67, one Roshanlal lodged information with the police station Doongla against the 8 accused petitioners alleging that they had committed an offence of rioting. On this report the police registered a case against all the accused for the offence under" Section 147 Criminal Procedure Code and investigated the matter. On 15-1-68 the police submitted a final report in the case to the Munsif Magistrate, Doongla, under Section 173 Criminal Procedure Code to the effect that there was no case for putting up a challan. Roshanlal then filed a protest petition. On consideration of the facts found in the final report and after hearing the prosecuting Sub-Inspector and the counsel for Roshanlal the learned Magistrate formed the opinion that the facts set out in the final report constituted offences under Sections 147, 452 and 323 Indian Penal Code. The learned Magistrate, therefore, took cognizance of the said offences and issued processes against the accused. He called upon the police to produce the documents referred to in Section 173 Criminal Procedure Code and directed the Prosecuting Sub-Inspector to conduct the case. Against this order of the learned Magistrate the prosecution filed a revision application before the learned Sessions Judge which was No. 38 of 1968. The accused persons also presented another revision application on 17-6-68 contending that the final report having not been accepted the Magistrate should be treated to have taken cognizance on a complaint and consequently the Prosecuting Sub-Inspector could not have been asked to conduct the prosecution. According to the accused the case has to proceed as a complaint case in accordance with Section 252 Criminal Procedure Code and not as a case on a police report under Section 251-A Criminal Procedure Code. The learned Sessions Judge after hearing the parties, came to the conclusion that there was no ground to interfere with the order passed by the learned Magistrate. It is in these circumstances that the accused have filed these two revision applications.
3. In revision application No. 216 of 1969 it is urged that the learned Magistrate could not have taken cognizance of the offence taking a view contrary to the final report made by the police. The contention raised in the other revision is that the learned Magistrate was required to proceed with the case as a complaint case in accordance with Section 252 Criminal Procedure Code.
4. Now I may read Section 190 Criminal Procedure Code :-
"S. 190. Cognizance of offence by Magistrates :- (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.
(2) The State Government, or the District Magistrate subject to the general or special orders of the State Government, may empower any Magistrate to take cognizance under sub-section (1), clause (a) or clause (b), of offences for which he may try or commit for trial.
(3) The State Government may empower any Magistrate of the first or second class to take cognizance under sub-section (1), clause (c) of offences for which he may try or commit for trial."
This section shows that there are three ways in which cognizance of an offence is taken. The one is on the basis of a complaint. The term 'complaint' has been defined in the Crimin
