Punjab-Haryana High Court
Sarwan Singh And Ors. vs State Of Punjab And Anr. on 21 April, 2004
Equivalent citations: 2004CRILJ4038
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
ORDER Satish Kumar Mittal, J.
1. The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for quashing of the order dated 12-3-2003 (Annexure P-14) passed by the learned Additional Sessions Judge, Ropar, whereby, while rejecting the cancellation report submitted by the police, a direction has been issued to file the challan in the Court.
2. The sole question involved in this petition is whether the Court can issue a direction to the police/investigating agency to file the challan in the Court while rejecting the cancellation report submitted by the police.
3. The brief facts of the case are that on 7-1-2000, a dead body was found floating in the village, Khad which was spotted by the inhabitants of the village. Petitioner No. 1, who was an ex-Sarpanch and whose daughter-in-law was the Sarpanch of the village, lodged a DDR to the police regarding the aforesaid dead body. Later on, respondent No. 2 (hereinafter referred to as 'the complainant') made a complaint to the Director General of Police alleging therein that the dead body was of the servant of petitioner Nos. 1 to 3 (petitioner Nos. 2 and 3 are the sons of petitioner No. 1) and they had done him to death along with petitioner No. 4, who is son of another Panch of the village. On the said complaint, FIR No. 43 dated 11-4-2000 under Sections 302/148 and 149, IPC was registered against the petitioners. In the said case, the investigation was done by the S.H.O. and D.S.P. of the area, and according to the said investigation, there was sufficient material for filing challan against the petitioners. However, during the said investigation, daughter-in-law of petitioner No. 1 represented to the Chief Minister and Director General of Police alleging that due to political rivalry in the village and due to the fact that petitioner No. 1 was a witness in a case against the complainant in FIR No. 32 dated 22-4-1999 under Sections 302/307/323/148 and 149, IPC, in which nine persons were arrayed as accused including the real brother of the complainant, a false case was got registered against the petitioners at the instance of the complainant in connivance with the local police. Therefore, a request was made that the matter be got re-investigated by the higher police officers. On that representation, the investigation was got done by the Additional Inspector General of Police.
4. After investigating the matter thoroughly, the Additional Director General of Police submitted his report dated 20-6-2000 by arriving to the conclusion that the death of a Nepali boy had occurred due to drinking of Methyl alcohol and in that case the petitioners have been falsely implicated due to village politics and due to the previous enmity between the complainant and the petitioners. It was further found that the SHO had not conducted investigation in the case properly and honestly. He had got involved the petitioners with a woven criminal conspiracy implicating the innocent persons illegally and got arrested them. A strong action against the S.H.O. was also recommended. On the basis of the aforesaid report, the Senior Supdt. of Police recommended for submission of cancellation report.
5. When the police was going to submit the final report, the complainant filed a petition in this Court under Section 482 of the Code for transferring the investigation of the case to some independent agency like C.B.I. or for re-investigation of the matter. On that petition, this Court vide its order dated 29-3-2001 directed that the matter shall be further investigated by the Inspector General of Police not below the rank of Deputy Inspector General of Police, Punjab, and the said investigation was directed to be completed within a period of three months.
6. In view of the aforesaid direction by this Court, the matter was re-investigated by Shri S. Chattopadhyaya, Deputy Inspector General (Crimes), Punjab. He conducted a detailed investigation and submitted his report dated 21-8-2001 (Annexure P-9). This officer again found that the petitioners have been falsely implicated in this case by the complainant due to village politics and the rivalry, and with object to pressurise them to withdraw the case registered against his brother and other relatives. He recommended that this false case should be cancelled and appropriate legal action should be taken against the complainant for giving false information. He also recommended that the roles of SHO of Police Station and the Inspector require to be probed through a departmental enquiry.
7. On the basis of the aforesaid report, the police submitted the final report for cancellation of the FIR against the petitioners. The said cancellation report was opposed by respondent No. 2 by filing protest petition. Since the case was triable by the Court of Session, the Judicial Magistrate 1st Class sent the cancellation report as well as the protest petition to the Sessions Judge, Ropar for adjudication. The Additional Sessions Judge, Ropar vide impugned order dated 12-3-2003 (Annexure P-14) did not accept the cancellation report submitted by the police while observing as under :--
"Keeping in view the above circumstances, in my opinion, it is not a fit case where cancellation of the report can be ordered at the instance of the police, who prepared the challan first, but condemned it at the asking of their Higher officers. As such the cancellation of FIR cannot be allowed, rather the challan be given in the Court of law for final decision on merits. The file complete in all respects be sent back to the SSP, Ropar for further necessary action in the matter. A copy of this order be retained in this office."
(underline added)
8. The petitioners have impugned the aforesaid order of alleging that the aforesaid direction is nothing but a direction to the investigating agency to file the challan in the Court, and the Court is having no jurisdiction to issue such direction to the investigating agency.
9. Learned counsel for the petitioners contended that when a report under Section 173 of the Code is forwarded by the investigating agency to the Magistrate, following three options are available to the Court.
(i) to accept the report;
(ii) to direct re-investigation; and
(iii) if not agreeing with the report, to take cognizance of the offence himself.
10. However, it is well-settled principle of law that in no circumstances the Court has the jurisdiction to issue direction to the investigating agency, who had filed the cancellation report, to submit the challan in the Court. In the instant case, the direction issued by the learned Additional Sessions Judge to the investigating agency to the effect that the challan be given in the Court of law for final decision on merits is totally without jurisdiction and liable to be quashed. In support of his contention, learned counsel for the petitioners has relied upon the decision of the Hon'ble Apex Court in Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 ; (1968 Cri LJ 97); H.S. Bains v. State, AIR 1980 SC 1883 ; (1980 Cri LJ 1308); State v. Raj Kumar Jain, (1998) 6 SCC 551 : (1998 Cri LJ 4051); R. Sarala v. T.S. Velu, (2000) 2 Rec Cri R (SC) 637 : (2000 Cri LJ 2453); Union of India v. Prakash P. Hinduja, AIR 2003 SC 2612 : (2003 Cri LJ 3117) and M.C. Abraham v. State of Maharashtra, (2003) 1 Rec Cri R 452 (SC).
11. On the other hand, learned counsel for the complainant submitted that it is well within the jurisdiction of the Court not to accept the cancellation report submitted by the police. He further submitted that in the instant case there is sufficient material available on the record which warrants the taking of the cognizance of the offence by the Court. He also submitted that the police submitted the cancellation report even after second investigation under the political influence. When the second cancellation report was prepared under the political influence, the complainant filed another Cri. Misc. No. 39148-M of 2001 in this Court which was disposed of on 26-4-2002 with the observation that the investigating agency shall file the final report in accordance with law within one month from the receipt of copy of that order. Further, all the relevant papers including the report which was earlier prepared was also to be filed along with the final report in the Court. It was also directed that it would be open for the parties to contest the matter before the trial Court thereafter in accordance with law. Learned counsel for the complainant submitted that in view of the said direction, the learned Additional Sessions Judge has rightly passed the order to file the challan in the Court while rejecting the cancellation report submitted by the police. Therefore, there is no illegality in the impugned order.
12. I have heard the arguments of the learned counsel for both the parties and perused the record of the case.
13. The position of law with regard to scope of the power of the investigating agency to investigate the offence and submit the final report, and the power of the Court either to accept such report or not to accept such report is well settled. In Chapter XIV of the Code, the police has been given ample powers for the purpose of registering the case involving a cognizable offence and its investigation. Section 173 of the Code provides for an investigation to be completed without unnecessary delay and also makes it obligatory on the Officer in-charge of the Police Station to send a report to the Magistrate concerned in the manner indicated therein, containing the various details. When a report forwarded by the police to the Magistrate under Section 173 of the Code is placed before him, several situations arise. If the report concludes that an offence appears to have been committed by the persons named in he report, the Magistrate has three options. Firstly, the Magistrate may either accept the report and take cognizance of the offence and issue process; secondly, he may disagree with the report and drop the proceedings; and thirdly, he may direct the investigating agency to further re-investigate the matter. On the other hand, if the police report indicates that no offence appears to have been committed by the person named in the FIR and the police recommends for cancellation of the FIR, in hat situation, the Magistrate is required to issue notices to the complainant intimating him about the cancellation report and the complainant is having a light to file the protest report and to argue the matter. Thereafter, the Magistrate has again three options open to him. Firstly, he may accept the report and drop the proceedings; secondly, he may direct further investigation to be made by the police under Section 156(3) of the Code; and thirdly he may disagree with the report and take the view that there is sufficient ground for proceeding and taking cognizance of the offence himself and issue the process. Though the Magistrate has the power to take cognizance of the offence himself under Section 190(1)(b) of the Code, even if the police report is to the effect that no case is made out against the accused. But the Magistrate has no power to issue direction to the investigating agency/police to file challan in the Court. Under the scheme of the Code, the investigating agency is the master of the investigation. It is the statutory right of the investigating agency to investigate the circumstances of an alleged cognizable offence without requiring any authority from the judicial authorities or the Court (Emperor v. Khwaja Nazir Ahmad. AIR 1945 PC 18 : (1945 (46) Cri LJ 413). It is the authority of the investigating agency to form an opinion whether on the material collected by it during the investigation warrants it to place the accused before the Magistrate for trial. The submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed by the investigating agency. The formation of the said opinion, by the police, is the final step in the investigation, and that final step is to be taken only by the police and not by any other authority. When a report is submitted by the police to the Magistrate under Section 173 of the code, the Magistrate is not bound to accept that report and he has three options open to him, as indicated above, but in case he differs from the police report opining that no case is made out against the accused, he has no power to-direct the police or the investigating agency to submit the charge-sheet. The functions of the Magistrate and the police are entirely different. The Magistrate may or may not accept the report and take a suitable action according to law, but he cannot certainly impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view (Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 : (1968 Cri LJ 97).
14. In State v. Raj Kumar Jain's case, (1998 Cri LJ 4051) (SC) (supra), the Hon'ble Supreme Court while dealing with the question as to whether the CBI is required to first obtain the sanction from the Sanctioning Authority in a relevant case before approaching the Court for accepting the report under Section 173(2) of the Code for discharge of the accused, observed that the Special Judge can only direct for further investigation, if it is found on consideration of the police report that the opinion formed by the Investigating Officer seeking discharge of the accused is not based on full and complete investigation.
15. Similarly, the Hon'ble Supreme Court in Union of India v. Prakash P. Hinduja's case, (2003 Cri LJ 3117) (supra) has held as under (paras 13, 14 and 19) :--
"The Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the FIR till the submission of the report by the officer of police station in Court under Section `173 Cr. P.C. this field being exclusively reserved for the investigating agency. Inherent powers under Section 482 cannot be exercised by Court.
The provisions occurring in Chapter XII of the Code show that detail and elaborate provisions have been made for securing that an investigation takes place regarding an offence of which information has been given and the same is done in accordance with the provisions of the Code. The manner and the method of conducting the investigation are left entirely to the officer in charge of the police station or a subordinate officer deputed by him. A Magistrate has no power to interfere with the same. The formation of the opinion whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to a Magistrate or not as contemplated by 1s 169 and 170 is to be that of the officer in charge of the police station and a Magistrate has absolutely no role to play at this stage. Similarly, after completion of the investigation while making a report to the Magistrate under Section 173, the requisite details have to be submitted by the officer in charge of the police station without any kind of interference or direction of a Magistrate and this will include a report regarding the fact whether any offence appears to have been committed and if so, by whom as provided by Clause (d) of Sub-section (2) of this Section. The Magistrate is no doubt not bound to accept a final report (sometimes called as closer report) submitted by the police and if he feels that the evidence and material collected during investigation justifies prosecution of the accused, he may not accept the final report and take cognizance of the offence and summon the accused but this does not mean that he would be interfering with the investigation as such. He would be doing so in exercise of powers conferred by Section 190, Cr. P.C. The statutory provisions are, therefore, absolutely clear that the Court cannot interfere with the investigation."
16. Again, the Hon'ble Supreme Court in M.C. Abraham v. State of Maharashtra's case, (2003 (1) Rec Cri R 452) (supra) has held as under :--
"The principle, therefore, is well settled and it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigation agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report what is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by he material collected during the course of investigation."
17. Therefore, from the aforesaid legal position, it is clear that the Magistrate has no power either expressly or impliedly under the Code to call upon the police to submit a charge-sheet when police has sent the report to the effect that no case is made out against the accused for sending them for trial.
18. In light of the aforesaid legal position, I have examined the impugned order passed by the learned Additional Sessions Judge wherein he has mentioned various reasons for not accepting the cancellation report submitted by the police. I need not comment on those reasons as it was within its jurisdiction to accept or not to accept the cancellation report. However, as far as the direction issued by the learned Additional Sessions Judge to give/file the challan in the Court of law, the same is absolutely without jurisdiction.
19. In view of the above, this petition is allowed and the impugned order dated 12-3-2003, is hereby quashed, and remit the matter to the learned Additional Sessions Judge, Ropar to again consider the cancellation report submitted by the police and take a decision in accordance with law within a period of three months after receipt of the copy of this order.