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1969 Supreme(Ori) 177
IN THE HIGH COURT OF ORISSA
A. Misra, J.
SIBARAM NAIK - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Criminal Revision No. 226 of 1967
Decided On : 24-11-1969
D. Sahu, for the Appellant; S. Misra, for the Respondent
A Magistrate cannot call for a charge-sheet after the police have submitted a final report.
Headnote:
CRIMINAL PROCEDURE - Cognizance - Final Report - Magistrate cannot call for charge-sheet after final report - Cognizance on protest petition - Procedure not followed.
Fact of the Case:
Police submitted a final report under Section 173(1) of the Code of Criminal Procedure, stating that there was no sufficient evidence to send up the accused for trial. The informant filed a protest petition, but the Magistrate did not examine her on solemn affirmation. Subsequently, the Magistrate directed a judicial enquiry and, after receipt of the enquiry report, directed the police to file a charge sheet under Section 436 of the Indian Penal Code.
Finding of the Court:
The Magistrate had no jurisdiction to call for a charge-sheet after the police had submitted a final report. The Magistrate did not take cognizance before passing the order directing the judicial enquiry. The Magistrate did not treat the protest petition as a complaint and did not adopt the suitable procedure indicated in the Code for taking cognizance on the basis of a complaint.
Issues: Whether the Magistrate had jurisdiction to call for a charge-sheet after the police had submitted a final report.
Ratio Decidendi: There is no power expressly or impliedly conferred under the Code, on a Magistrate to call upon the police to submit a charge-sheet when they have sent a report u/s 169 of the Code, that there is no case made out for sending up an accused for trial.
Final Decision: The revision is allowed and the proceeding in G.R. Case No. 60,of 1966 is quashed.
JUDGMENT :
A. Misra, J. - The revision has been filed by the accused in G.R. Cape No. 60 of 1966 for quashing the proceeding.
2. One Majhia Tara of village Nusasahi lodged an F.I.R. at the P.S. alleging that Petitioner set fire to her house at about 11.30 P.M. on 23-5-1966. After investigation, police submitted a final report u/s 173(1), Code of Criminal Procedure on 21.6.1966 to the effect that the evidence was insufficient to put the accused on trial. This report was put up before the learned S.D.O. on 9-7-1966 when directed the same to be put up on 16-7-1966. In the mean while, on 14.7.1966, the informant filed a protest petition, but the learned S.D.O. did not examine her on solemn affirmation. Subsequently, after calling for a note from the C.S.J. and perusing the case diary, the learned S.D.O. directed Shri D.C. Das, Magistrate, 1st Class to cause a judicial enquiry and send his report. After receipt of the enquiry report from the learned Magistrate, the learned S.D.O. passed an order on 16-12-1966 calling upon the police to file a charge sheet u/s 436, Indian Penal Code. In compliance with this order, the police submitted a charge-sheet on 11-2-1967 and the learned S.D.M. (Judl.) passed the following order:
C.S. received. Cognizance u/s 436 Indian Penal Code is taken against accused Gibaram Naik. Summon him fixing 1.3.1967.
3. When the learned S.D.M. wanted to proceed with the committal enquiry u/s 207-A, Code of Criminal Procedure on 6-4-1967, Petitioner filed an application for making a reference to the High Court to quash the proceeding alleging that as it was commenced on a police report u/s 190(1)(b), Code of Criminal Procedure, the committal enquiry cannot be proceeded with u/s 207-A, Code of Criminal Procedure. The learned S.D.M. in an elaborate order referred to the Executive Instructions issued in connection with the separation scheme and came to the conclusion that the learned S.D.O. must be deemed to have taken cognizance u/s 190(a)(1), Code of Criminal Procedure treating the protest petition as a complaint and ordering an enquiry u/s 202, Code of Criminal Procedure prior to calling for a charge-sheet from the officer-in-charge of the police station and taking cognizance u/s 190(a)(1), Code of Criminal Procedure. Therefore, it was observed that the natural consequence was to follow the procedure laid down u/s 202, Code of Criminal Procedure and the subsequent provisions. However, as the Court had already followed the procedure u/s 207-A, Code of Criminal Procedure, he was of the view that it was not possible at that stage to change over to the procedure laid down u/s 202, Code of Criminal Procedure .
4. The only point for consideration is whether the cognizance for an offence u/s 436, Indian Penal Code taken against the Petitioner is legal. Learned Counsel appearing for Petitioner contends that once a final report u/s 173(1), Code of Criminal Procedure had been submitted by the police, the learned S.D.O. had DO jurisdiction to call for a charge-sheet. It is also pointed out that he has not chosen to treat the protest petition as a complaint and adopted suitable procedure indicated in the Code in Cases where cognizance is taken on a complaint.
5. The position of law has been authoritatively laid down by the Supreme Court in the decision reported in Abhinandan Jha v. Dinesh Misra 1967 S.C.D. 985. After examination of the various provisions contained in Chapter XIV of the Code of Criminal Procedure dealing with information to the police and power to investigate, it has been observed:
There is no power expressly or impliedly conferred under the Code, on a Magistrate to call upon the police to submit a charge-sheet when they have sent a report u/s 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the magistracy and the police are entirely different, and though the Magistrate mayor not accept the report and take suitable action according to law, he cannot infringe upon t
