Patna High Court
Sarju Ram vs Harihar Ram Tewary And Ors. on 24 July, 1969
Equivalent citations: AIR1970PAT267, 1970CRILJ1117, AIR 1970 PATNA 267
Author: N.L. Untwalia
Bench: N.L. Untwalia
ORDER N.L. Untwalia, J.
1. According to the case of the petitioner, the opposite parties committed various kinds of offences in that they illegally arrested him and kept him under wrongful confinement under chain and handcuffs for a period of about 2 months commencing from the 29th of May, 1966 and ending on the 23rd of July, 1966. It is not necessary for me to state the facts in any detail. Suffice it to say that according to the case of the petitioner, when he was rescued by the police on 23-7-1966 from the wrongful confinement, he made a statement upon which a case was instituted and first information report was drawn up. In the said case being Birni P. S. Case No. 4 (7) 66 under Sections 147, 344 and 365 of the Penal Code after investigation the police submitted a final report on 9-1-1967. On the same date the petitioner filed a petition in the Court of the Sub-divisional Magistrate, Giridih. It is necessary to quote the contents of that petition in full-
"The humble petition of protest on behalf of the informant Sarju Ram against the F. R. in this case. Most respectfully sheweth:
(1) That the police has submitted Final report false in this case. (2) That the case of the informant was true. He was recovered by the D. I. Police from the house of the accused. (3) That the police has submitted F. R. false in collusion with the accused who are moneyed and influential men. (4) That a Judicial inquiry is necessary.
(5) That other grounds will be urged at the time of hearing.
In the circumstances it is earnestly prayed that your honour would be pleased to refuse to accept the F. R. and order a judicial inquiry.
And for this act of kindness the informant shall ever pray."
2. The learned Sub-divisional Magistrate, by his order dated 6-4-19G7, accepted the police report and discharged the accused from the operation of the bail bond. The petitioner filed Criminal Revision No. 31 of 1967 which was dismissed by the learned Additional Sessions Judge, 2nd Court, Hazaribagh. The learned Additional Sessions Judge also took the view that there was no illegality or irregularity committed by the learned Magistrate in accepting the final report submitted by the police. The petitioner has come up in revision to this Court.
3. The submission on behalf of the petitioner is that the protest petition filed by him on 9-1-1967 ought to have been treated as a petition of complaint, he ought to have been examined on solemn affirmation in accordance with Section 200 of the Code of Criminal Procedure (hereinafter called the Code) and thereafter the petition ought to have been dealt with in accordance with the other sections occurring in Chapter XVI of the Code. The contention on behalf of the opposite party is that the petition filed by the petitioner on 9-1-1967 was not a petition of complaint either in form or in effect or substance and hence the learned Sub-divisional Magistrate committed no error in not treating it as such.
4. Filing of the protest petitions in relation to investigation of a case instituted at a police station, if the investigation or the report by the police goes against the informant, has not been an unusual feature in this State. On the filing of a protest petition, generally 3 kinds of orders have followed. In some cases. Investigating Officer was directed to file a charge-sheet if on examining the materials and the case diary the Sub-divisional Magistrate was satisfied that the case was such that a charge-sheet should be submitted, in some cases further investigation was ordered and in some the protest petition has been treated as a petition of complaint; the persons filing the protest petition at times have been examined on solemn affirmation and then the petition has been disposed of in accordance with the provision of law contained in Chapter XVI of the Code. The Supreme Court in Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 has pointed out that the Magistrate has no power to call for a charge-sheet. If upon submission of the report by the police, which, if it is in favour of the accused, is commonly called a final report, the Magistrate thinks that on the facts stated in the report an offence is made out, he can take cognizance of the offence even though in the concluding portion of the report the police recommended that no action should be taken. If the Magistrate be of the opinion after considering the final report that the investigation is unsatisfactory or incomplete or that there is scope for further investigation, it is open to the Magistrate to decline to accept the final report and direct the police to make further investigation under Section 156 (3) of the Code. It has, however, been definitely laid down by the Supreme Court in the case of Abhinandan Jha, AIR 1968 SC 117 referred to above that the Magistrate has no power to direct the police to submit a charge-sheet. In my opinion, therefore, if a person is aggrieved by the police investigation or the final report and intends to move the Magistrate for taking cognizance of the offence on the facts stated in the police report or for directing further investigation then and then only in the proper sense of the term the petition filed by him should be characterised as a protest petition. If he intends to move the Magistrate by way of lodging a complaint before him then it is advisable and expedient that he should file a petition which should more fully comply with the requirements of Section 4(1) (h) of the Code. If a protest petition in the sense I have explained is filed, it will be for the Magistrate to dispose it of in the manner he thinks fit and proper. If, however, a petition is filed with a view to ask the Magistrate to proceed with the case as a complaint case, he should deal with that petition ordinarily and generally in the first instance by examining the complainant on solemn affirmation in accordance with Section 200 of the Code and thereafter by passing any of the 3 orders which he has power to pass, namely, (i) to dismiss it summarily, (ii) to issue processes straightway or (iii) to order an inquiry as envisaged in Section 202 of the Code.
5. In the petition filed by the petitioner on 9-1-1967, as has been often the practice on this State, he has made reference to what happened before the police. He has stated that he was recovered by the Divisional Inspector of Police from the house of the accused and after stating that a judicial inquiry is necessary, the prayer made is to refuse to accept the final report and order a judicial inquiry. I am, therefore, inclined to take the view that although the first portion of the prayer was superfluous in that there was no question of refusing to accept the final report as submitted by the police, the second portion of the prayer was with a view to ask the Magistrate to take action under the Code--presumably under Section 202. This view of mine finds some support from a decision of this Court reported in Emperor v. Makund Patel, 20 Cri LJ 389 = (AIR 1919 Pat 530). But as I have indicated my view earlier, that the persons aggrieved by the police investigation or the final report should be more cautious in choosing the language and the type of their petition which they intend to file before the Sub-divisional Magistrate, I think the petition filed by the petitioner on 9-1-1967 is not a complete petition of complaint. The proper order, therefore, in my opinion, to be made in this case is as stated below.
6. The order dated 6-4-1967 of the learned Sub-divisional Magistrate, Giridih, accepting the final report of the police is not being interfered with as it is not necessary to be interfered with. He is, however, directed to allow an opportunity to the petitioner to file a supplementary petition of complaint stating the facts more fully and bringing it more explicitly in accord with the requirements of the petition of complaint. If and when such a petition is filed, it is to be treated as being supplemental to, and a part of, the petition filed on 9-1-1967. In other words, both the petitions together will be treated as a full-fledged petition of complaint and then the petitioner will be examined on solemn affirmation. After his examination, it will be open to the Sub-divisional Magistrate to pass any of the 3 orders, which he is entitled to pass, as stated in my judgment earlier. I must not be supposed to have expressed any view in regard to the merit of the case one way or the other by any observation of mine in this judgment.
7. The application in revision is accordingly allowed in part to the extent and in the manner indicated above.