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PETITIONER: ABHINANDAN JHA & ORS.

       Vs.

RESPONDENT: DINESH MISHRA(With Connected Appeal)

DATE OF JUDGMENT: 17/04/1967

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. HIDAYATULLAH, M.

CITATION:  1968 AIR  117            1967 SCR  (3) 668  CITATOR INFO :  RF         1977 SC2401  (13)  R          1979 SC 777  (15,32)  D          1980 SC1883  (7)  RF         1981 SC 379  (38)  RF         1991 SC1260  (44)  RF         1992 SC 604  (39)

ACT: Code  of Criminal Procedure (Act 5 of 1898), ss.  169,  170, 173 and 190(1)-Report to police of cognizable offence-Report by police to magistrate after investigation that offence not made  out-If  magistrate can direct police to  file  charge- sheet.

HEADNOTE: On the question whether a magistrate could direct the police to   submit   a  charge-sheet,  when   the   police,   after investigation  into  a cognizable offence, had  submitted  a report  of  the action taken under s. 169, Cr.   P.C.,  that there  was no case made out for sending up the  accused  for trial, HELD  :  There was no such power conferred on  a  magistrate either expressly or by implication. When a cognizable offence is reported to the police they may after  investigation take action under s. 169 or S. 170  Cr. P.C. If the- police :think there is not sufficient  evidence against  the  accused, they may, under s.  169  release  the accused  from  custody  on his executing a  bond  to  appear before  a competent magistrate if and when so required;  or, if the police think there is sufficient evidence, they  may, under  s.  170,  forward  the accused  under  custody  to  a competent magistrate or release the accused on bail in cases where the offences are bailable.  In either case the  police should submit a report of the action taken, under s. 173, to the competent magistrate who- considers it judicially  under s. 190 and takes the following action : (1)  If the report is a charge-sheet under s. 170 it is open to  the magistrate to agree with it and take  cognizance  of the  offence under s. 190(1) (b); or to take the  view  that the  facts disclosed do not make out an offence and  decline to  take cognizance.  But he cannot call upon the police  to submit  a  report  that the accused need  not  be  proceeded

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against  on  the  ground  that  there  was  not   sufficient evidence. (2)  If the report is of the action taken under s. 169, then the  magistrate  may  agree with the report  and  close  the proceeding.   If  he disagrees with the report he  can  give directions  to the police under s. 156(3) to make a  further investigation.   If the police, after further  investigation submit  a  charge-sheet,  the  magistrate  may  follow   the procedure where the charge-sheet under s. 170 is filed;  but if  the police are still of the opinion that there  was  not sufficient evidence against the accused, the magistrate  may agree  or  disagree  with it.  Where  he  agrees,  the  case against  the  accused  is  closed.   Where  the   magistrate disagrees  and forms the opinion that the facts set  out  in the  report constitute an offence, he .can  take  cognizance under  s. 190(1)(c).  The provision in s. 169  enabling  the Police  to  take a bond for the appearance  of  the  accused before  a  magistrate  if so required, is  to  meet  such  a contingency  of  the  magistrate taking  cognizance  of  the offence notwithstanding the contrary opinion of the  police. The power under s. 190(1)(c) was intended to Secure that 66 9 offences  may not go unpunished and justice may  be  invoked even  where persons individually aggrieved are unwilling  or unable to prosecute, or he police either wantonly or through a  bona, fide error do not submit a charge-sheet.   But  the magistrate  cannot  direct the Police to  submit  a  charge- sheet, because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the magistrate.  The magistrate, if he disagrees with the report  of the police, can. himself take cognizance  of  the offence under s. 19O(1)(a) or (c), but, be cannot compel the police  to  form a particular opinion on  investigation  and submit  a report according to such opinion.  [672F-H;  673B; 676H; 677B-H; 678 A-H; 679A-C.  E-H] State of Gujarat v. Shah Lakhamshi, A.I.R. 1966 Gujarat  283 (F.B.);  Venkatusubha v. Anjanayulu, A.I.R. 1932  Mad.  673; Abdul  Rahim v. Abdul Muktadin, A.I.R. 1953 Assam 112;  Amar Premanand  v.  State, A.I.R. 1960 M.P. 12 and A. K.  Roy  v. State of West Bengal, A.I.R. 1962 Cal. 135 (F.B.), approved. State v. Murlidhar Govardhan, A.I.R. 1960 Bom. 240 and Ram Wandan v. State, A.I.R. 1966 Pat. 438, disapproved.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 218  of 1966. Appeal by special leave from the order dated August 5,  1966 of  the  Patna High Court in Criminal Revision No.  1020  of 966,                             AND Criminal Appeal No. 238 of 1966. Appeal  by special leave from the judgment and  order  dated September 13, 1966 of the Patna High Court in Criminal Revi- sion No. 40 of 1965. B.   P. Jha and Subhag Mal Jain, for the appellants (in  Cr. A. No. 218 of 1966). Nuruddin Ahmed and R. C. Prasad, for the appellants (in  Cr. A. No. 238 of 1966). U. P. Singh, for the respondents (in both the appeals). The Judgment of the Court was delivered by Vaidialingam,  J. The common question, that arises for  con- sideration, in these two criminal appeals, by special leave, is  as  to  whether a Magistrate can direct  the  police  to

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submit   a   charge-sheet,  when  the  police,   after   the investigation  into a congnizable offence, had  submitted  a final  report,  under  S.  173  of  the  Code  of.  Criminal Procedure  (hereinafter  called  the  Code).   There  is   a conflict of opinion, on this point between the various  High Courts  in  India.   The High Courts  of  Madras,  Calcutta, Madhya  Pradesh, Assam and Gujarat have taken the view  that the  Magistrate  has no such power, whereas, the  Patna  and Bombay High Courts have held a contrary view. In  Criminal Appeal No. 218 of 1966, the respondent,  Dinesh Mishra, lodged a first information report, on June 3, 670 1965,  at the Rajoun Police Station, that he saw a  thatched house, of one Uma Kant Misra, situated on the northern  side of his house, burning, and the petitioners herein.,  running away from the scene,.  The police made an investigation  and submitted what is called a ’final report’, under s. 173  (1) of  the Code, to the effect that the offence complained  of, was  false.   The Sub-Divisional  Magistrate  received  this report on July 13,  1965,   but,  in  the   meanwhile,   the respondent had filed what     is   termed     ’a     protest petition’, challenging the correctness of        the   report submitted by the police. The Magistrate       appears to have perused   the   police  diary and,   after   hearing   the counsel for      the respondent and the  public  prosecutor, passed an order on October 27, 1965, directing the police to submit a charge-sheet, against the petitioners, herein.  The petitioners  challenged  this order, without  success,  both before the learned Sessions Judge, Bhagalpur, and the  Patna High  Court.  It was held by the High Court,  following  its previous  decision, that the Magistrate has jurisdiction  to call  for a charge-sheet, when he disagrees with the  report submitted  by the police, under S. 173(1) of the Code.   The petitioners, in this appeal, challenge these orders. Similarly,  in Criminal Appeal No. 238 of 1966,  the  second respondent therein, had lodged a written report, on February 24.  1.964, before the police, at Malsalami police  station, that  his daughter, Hiramani, was missing from February  21, 1964, and that the appellants in that appeal, had  kidnapped her.   A  case under S. 366 I.P.C.  was  registered  against them.   The police, after investigation, submitted  a  final report  to  the  Magistrate. to the  effect  that  the  girl concerned,  had been recovered and that she bad stated  that she had, of her own accord, eloped; and therefore the police stated that the case might be treated as closed. The  second respondent filed a ’protest petition’ in  Court, challenging the statements of the police and he also filed a complaint,  under  s.  498 I.P.C. The  Magistrate,  after  a perusal  of  the case diary of the police, and  hearing  the lawyer for the appellants and the second respondent, as also the  public  prosecutor,  passed  an  order  directing   the investigating officer to submit a charge-sheet, against  the accused  persons,  under S. 366 I.P.C This  order  has  been confirmed  by  the, learned Sessions Judge, as well  as  the Patna  High  Court.   Here also, the Patna  High  Court,  in accordance  with  its  previous  decision,  held  that   the Magistrate had jurisdiction to pass the order, in  question. All  these orders are challenged by the appellants, in  this appeal. On  behalf of the appellants, in Criminal Appeal No. 218  of 1966, Mr. Jha, learned counsel pointed out that when a final report  is submitted by the police, under S. 173(1)  of  the Code,, 6 71 stating  that  no case is made out, the  Magistrate  has  no

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jurisdiction  to direct the police to file  a  charge-sheet. It  may be open, counsel points out, to the  Magistrate,  to direct further investigation to be made by the police, or to treat  the protest petition filed by the second  respondent, as  a  complaint,  and take cognizance of  the  offence  and proceed, according to law., The scheme of Chapter XIV of the Code,  counsel  points  out,  clearly  indicates  that   the formation  of  an opinion, as to whether or not there  is  a case  to  place  the  accused  on  trial,  is  that  of  the investigating officers, and the Magistrate cannot compel the police  to form a particular opinion on  the  ’investigation and to submit a report, according to such opinion.  In  this case,  there is nothing to show that the  protest  petition, filed  by  the second respondent, has befell  treated  as  a complaint,  in which case, it may be open to the  Magistrate to  take cognizance of the offence, but, in the  absence  of any  such procedure being adopted according to counsel,  the order  of  the  Magistrate directing a  charge-sheet  to  be filed, is illegal and not warranted by the provisions of the Code.  These contentions have been adopted, and  reiterated, by  Mr.  Nuruddin  Ahmed, on behalf of  the  appellants,  in Criminal Appeal No. 238 of 1966. Both the learned counsel pressed before us, for  acceptance, the  views, as expressed by the Gujarat High Court,  in  its Full  Bench judgment, reported as State of Gujarat  v.  Shah Lakhamshi(1).  On the, other hand, Mr. U. P. Singh,  learned counsel  for the respondent, in Criminal Appeal No.  218  of 1966, has pointed out that the Magistrate has  jurisdiction, in  proper  cases,  when he does not agree  with  the  final report  submitted by the police, to direct them to submit  a charge-sheet.   Otherwise, counsel points out, the  position will be that the entire matter is left to the discretion  of the  police authorities, and the Courts will  be  powerless, even  when ’they feel that the action of the police  is  not justified.  Quite naturally, counsel prays for acceptance of the  views expressed by the dissenting Judges, in A. K.  Roy v.  State  of  W. B. (2) and by the Bombay  and  Patna  High Courts,  in  the decisions reported as  State  v.  Murlidhar Govardhan(3), and Ram Nandan v. State ( 4 ) , respectively. In order, properly, to appreciate the duties of the  police, in  the  matter of ’investigation of offences,  as  well  as their  powers,  it is necessary to refer to  the  provisions contained  in Chapter XIV of the Code.  That  chapter  deals with  ’Information  to  the  Police  and  their  Powers   to investigate’, and it contains the group of section beginning from s. 154 and ending with s. 176.  Section 154 deals  with information relating to the commission of a cognizable R. 1966 Guj, 283.       (2) A. 1. R. 1962 Cal. 135 (F.  B.). (3) A. 1. R. 1960 Bom. 240   (4) A. 1. R. 1966 Pat. 438. 67 2 offence,  and the procedure to be adopted in respect of  the same.   Section  155, similarly, deals with  information  in respect  of  noncognizable offences.  Sub-s.  (2),  of  this section,  prohibits  a police officer from  investigating  a non-cognizable  case,  without the order  of  a  Magistrate. Section  156  authorizes a police officer,  in-charge  of  a police station, to investigate any cognizable case,  without the order of a Magistrate.  Therefore, it wilt be seen  that large  powers are conferred on the police, in the matter  of investigation into a cognizable offence.  Sub-s. (3), of  s. 156, provides for any Magistrate empowered under S. 190,  to order an investigation.  In cases where a cognizable offence is suspected to have been committed, the officer,  in-charge of  a  police  station,  after  sending  a  report  to   the Magistrate,  is entitled, under S. 157, to  investigate  the

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facts  and circumstances of the case and also to take  steps for  the discovery and arrest of the offender.  Clause  (b), of  the  proviso  to s. 157(1), gives a  discretion  to  the police officer not to investigate the case, if it appears to him  that there is no sufficient ground for entering  on  an investigation.   Section 158 deals with the procedure to  be adopted in the matter of"a report to be sent, under S.  157. Section  159  gives power to a Magistrate,  on  receiving  a report  under S. 157, either to direct an investigation  or, himself or through another Magistrate subordinate to him, to hold  a  preliminary enquiry into the matter,  or  otherwise dispose of the case, in accordance with the Code.   Sections 160  to  163 deal with the power of the  police  to  require attendance  of  witnesses,  examine  witnesses  and   record statements.   Sections  165 and 166 deal with the  power  of police  officers,  in  the matter  of  conducting  searches, during  an  investigation, in the  circumstances,  mentioned therein.   Section  167  provides for the  procedure  to  be adopted   by  the  police,  when  investigation  cannot   be completed  in 24 hours.  Section 168 provides for  a  report being  sent  to the officer, incharge of a  police  station, about   the   result   of  an   investigation,   when   such investigation has been made by a subordinate police officer, under Chapter XIV.  Section 169 authorises a police  officer to  release a person from custody, on his executing a  bond, to appear, if and when so required, before a Magistrate,  in cases  when, on investigation under Chapter XIV, it  appears to  the officer, in-charge of the police station, or to  the police  officer making the investigation, that there  is  no sufficient  evidence or reasonable ground of  suspicion,  to justify  the  forwarding  of the accused  to  a  Magistrate. Section  170  empowers  the officer, incharge  of  a  police station,  after investigation under Chapter XIV, and  if  it appears to him that there is sufficient evidence, to forward the accused, under custody, to a competent Magistrate or  to take securtiy from the accused for his appearance before the Magistrate, in cases where the offence is bailable.  Section 172  makes  it obligatory on the police  officer  making  an investigation,  to  maintain a diary recording  the  various particulars therein and in the 673 manner indicated in that section.  Section 173 provides  for an  investigation,  under  Chapter  XIV,  to  be  completed, without  unnecessary delay and also makes it obligatory,  on the  officer,  incharge  of the police station,  to  send  a report  to the Magistrate concerned, in the manner  provided for therein, containing the necessary particulars. It  is now only necessary to refer to S. 190,  occurring  in Chapter  XV, relating to jurisdiction of criminal Courts  in inquiries and trials.  That section is to be found under the heading ’Conditions requisite for initiation of proceedings’ and its sub-S.               (1) is     as follows :               "(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

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             offence has been committed." From  the foregoing sections, occurring in Chapter  XIV,  it will  be seen that very elaborate provisions have been  made for  securing that an investigation does take place  into  a reported offence and the investigation is carried out within the limits of the law, without causing any harassment to the accused  and is also completed without unnecessary or  undue delay.   But  the point to be noted is that the  manner  and method of conducting the investigation, are left entirely to the police, and the Magistrate, so far as we can see, has no power  under any of these provisions, to interfere with  the same.  If, on investigation, it appears to the officer,  in- charge  of  a police station, or to the  officer  making  an investigation,  that  ,,here is no  sufficient  evidence  or reasonable grounds of suspicion justifying the forwarding of an  accused to a Magistrate,, S. 169 says that  the  officer shall release the accused, if in custody, on hi-,  executing a  bond to appear before the Magistrate.  Similarly,  if  on the  other hand, it appears to the officer, in-charge  of  a police station, or to the officer making the  investigation, under  Chapter  XIV, that there is  sufficient  evidence  or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, under S. 170,  to forward  the accused to a Magistrate or, if the  offence  is bailable,  to  take  security from him  for  his  appearance before such Magistrate.  But, whether a case comes under  S. 169, or under S. 170, of the Code, on the completion of  the investigation, the police officer has to L7SupCI/67-13 674 submit  a  report to the Magistrate, under s.  173,  in  the manner  indicated therein, containing the  various  details. The  question as to whether the Magistrate has got power  to direct  the police to file a charge-sheet, on receipt  of  a report  under s. 173 really depends upon the nature  of  the jurisdiction  exercised  by  a Magistrate,  on  receiving  a report. In  this connection, we may refer to  certain  observations, made  by  the Judicial Committee in King Emperor  v.  Khwaja Nazir Ahmed(1) and by this Court, in H. N. Rishbud and Inder Singh  v. The State of Delhi(2).  In Nazir Ahmed’s  Case(1), Lord Porter observes, at 212, as follows               "Just  as  it  is  essential  that  every  one               accused of a crime should have free access  to               a  court  of justice so that he  may  be  duly               acquitted  if found not guilty of the  offence               with  which  he is charged, so it is,  of  the               utmost  importance that the  judiciary  should               not interfere with the police in matters which               are  within their province and into which  the               law  imposes on them the duty of inquiry.   In               India, as has been shown, there is a statutory               right on the part of the police to investigate               the  circumstances  of an  alleged  cognizable               crime without requiring any authority from the               judicial  authorities, and it would, as  their               Lordships  think, be an unfortunate result  if               it  should be held possible to interfere  with               those  statutory rights by an exercise of  the               inherent  jurisdiction  of  the  court.    The               functions of the judiciary and the police  are               complementary,   not  overlapping,   and   the               combination  of individual liberty with a  due               observance  of  law and order is  only  to  be               obtained  by leaving each to exercise its  own

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             function,  always, of course, subject  to  the               right   of  the  court  to  intervene  in   an               appropriate case when     moved  under s.  491               of the Criminal Procedure Code to         give               directions in the nature of habeas corpus.    In               such  a  case  as the  present,  however,  the               court’s  functions  begin  when  a  charge  is               preferred before it, and not until then." These observations have been quoted, with approval, by  this Court,  in  State of West Bengal v. S.  N.  Basak(3).   This Court in Rishbud and Inder Singh’s Case(1), observes, at  p. 1156, as follows :               "Investigation  usually starts on  information               relating to the commission of an offence given               to an officer incharge of a police station and               recorded under sec- (1) L. R. 71 1. A. 203.       (2) [1955] 1. S. C. R. 115). (3)  A. 1. R. 1963 S. C. 447. 675               tion 154 of the Code.  If from information  so               received  or otherwise, the officer in  charge               of  the police station has reason  to  suspect               the commission of an offence, he or some other               subordinate  officer  deputed by him,  has  to               proceed  to the spot to investigate the  facts               and circumstances of the case and if necessary               to take measures for the discovery and  arrest               of the offender.  Thus investigation primarily               consists in the ascertainment or the facts and               circumstances of the case.  By definition,  it               includes  ’all the proceedings under the  Code               for the collection of evidence conducted by  a               police officer’." Again  after a reference to some       of the provisions  in Chapter XIV of the Code, it is observed       at p. 1157               "Thus,  under the Code investigation  consists               generally   of  the  following  steps  :   (1)               Proceeding  to the spot, (2) Ascertainment  of               the  facts and circumstances of the case,  (3)               Discovery   and   arrest  of   the   suspected               offender, (4) Collection of evidence  relating               to  the  commission of the offence  which  may               consist  of  (a) the  examination  of  various               persons   (including  the  accused)  and   the               reduction  of their statements  into  writing,               if’ the officer thinks fit, (b) the search  of               places   of  seizure  of   things   considered               necessary  for  the investigation  and  to  be               produced  at the trial, and (5)  Formation  of               the  opinion  as to whether  on  the  material               collected there is a case to place the accused               before a Magistrate for trial and if so taking               the necessary steps for the same by filing  of               a charge-sheet under section 1 7 3. . . . . It               is  also  clear  that the final  step  in  the               investigation  viz.,  the  formation  of   the               opinion  as to whether or no’ there is a  case               to place the accused on trial is to be that of               the officer in-charge of the police station." We  are referring to these observations for the  purpose  of emphasizing  that the scheme of Chapter XIV,  clearly  shows that the formation of an opinion as to whether or not  there is  a case to place the accused on trial, has been  left  to the  officer incharge of a police station.  Bearing in  mind these principles referred to above, we have to consider  the

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question  that arises for consideration, in this case.   The High  Courts  which  have held that the  Magistrate  has  no jurisdiction to call upon the police to file a charge-sheet, under such circumstances, have Tested their decision on  two principles  viz., (a) that there is no express provision  in the Code empowering a Magistrate to pass such an order;  and (b) such a power, in view of the scheme of L7SUPCI/67 14 676 Chapter  XIV,  cannot  be  inferred-vide  Venkata  Subha   v Anjanayulu(1);  Abdul  Rahim  v.  Abdul  Muktadin(2);   Aman Premanand  v.  State(3); the majority view in A. K.  Roy  v. State   of   W.  B.(1);  and  Stale  of  Gujarat   v.   Shah Lakhamshi(5).  Or the other hand, the High Courts which have recognised  such a power, rest their decision again  on  two grounds viz., (a) where a report is submitted by the police, after  investigation,  the Magistrate has to  deal  with  it judicially,  which  will mean that where the report  is  not accepted, the Magistrate can give suitable directions to the police-,  and (b) the Magistrate is given  supervision  over the  conduct of investigation by the police, and there  ore, such a power can be recognised in the Magistrate-vide  State v. Murlidhar Goverdhan(6); and Ram Nandan v. State(7). Though  it may be that a report submitted by the police  may have  to  be dealt with, judicially, by  a  Magistrate,  and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the  further view  that  from these considerations alone it can  be  said that  when the police submit a report that no case has  been made out for sending up an accused for trial, it is open  to the Magistrate to direct the police to file a  charge-sheet. But, we may make it clear, that this is not to say that  the Magistrate  is  absolutely powerless, because,  as  will  be indicated later, it is open to him lo take cognizance of  an offence and proceed, according to law.  We do not also  find any  such  power,  under  s. 173(3),  as  is  sought  to  be inferred, in some of the decisions cited above.  As we  have indicated  broadly  the, approach made by the  various  High Courts  in coming to different conclusions, we do not  think it necessary to refer to those decisions in detail. It will be seen that the Code, as such, does not use the ex- pression  ’charge-sheet’  or  ’final  report’.   But  it  is understood,  in  the  Police  Manual  containing  Rules  and Regulations, that a report by the Police, filed under s. 170 of  the  Code, is referred to as a ’charge-sheet’.   But  in respect  of the reports sent under s. 169, i.e., when  there is  no sufficient evidence to justify the forwarding of  the accused  to  a  Magistrate,  it  is  termed  variously,   in different  States,  as  either  ’referred  charge’,   ’final report’, or ’Summary’. In these two appeals, which are from the State of Bihar, the reports,  under s. 169, are referred to as  ’final  report’. Now,  the  question as to what exactly is to be  done  by  a Magistrate,  on receiving a report. under s. 173, will  have to be considered.   That report may be inrespect  of   a case, coming under s. 170, (1) A.I.R. 1932 Mad. 673.     (2) A.I.R. 1953 Assam 112. (3) A.I.R. 1960 M P. 12. (4) A.I.R. 1962 Cal. 135. (5) A.I.R. 1966 Guj. 283.     (6) A.I.R. 1960 Born. 240. (7)  A.I.R. 1966 Pat. 438. 677 or one coming under s. 169.  We have already referred to  s. 190,  which  is the first section in the group  of  sections headed ’Conditions requisite for Initiation of Proceedings.’ Sub-s. (1), of this section, will cover a report sent, under

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s.  173.  The use of the words ’may take cognizance  of  any offence’, in sub-s. (1) of s. 190 in our opinion imports the exercise of a ’judicial discretion’, and the Magistrate, who receives  the report, under s.. 173, will have  to  consider the  said report and judicially take a decision, whether  or not to take cognizance of the offence.  From this it follows that it is not as if that the Magistrate is bound to  accept ,,the opinion of the police that there is a case for placing the accused, on trial.  It is open to the Magistrate to take the view that the facts disclosed in the report do not  make out an offence for taking cognizance or he may take the view that  there is no sufficient evidence to justify an  accused being  put  on  trial.   On either  of  these  grounds,  the Magistrate will be perfectly justified in declining to  take cognizance of an offence, irrespective of the opinion of the police.   On the other hand, if the Magistrate  agrees  with the report, which is a charge-sheet submitted by the police, no  difficulty  whatsoever is caused, because he  will  have full  jurisdiction to take cognizance of the offence,  under s.  190(1)(b) of the Code.  This will be the position,  when the report under s. 173, is a charge-sheet. Then the question is, what is the position, when the  Magis- trate  is  dealing with a report submitted  by  the  police, under  s.  173, that no case is made out for sending  up  an accused  for  trial,  which  report,  as  we  have   already indicated,  is called, in the area in question, as a  ’final report’?  Even in those cases, if the Magistrate agrees with the  said report, he may accept the final report  and  close the  proceedings.   But  there may  be  instances  when  the Magistrate  may  take the view, on a  consideration  of  the final  report, that the opinion formed by the police is  not based  on a full and complete investigation, in which   case in  our opinion the Magistrate will have ample  jurisdiction to  give directions to the police, under s. 1 5 6 ( 3 ),  to make  a further investigation.  That is, if  the  Magistrate feels,   after  considering  the  final  report,  that   the investigation  is  unsatisfactory, or  incomplete,  or  that there is scope for further investigation, it will be open to the  Magistrate  to decline to accept the final  report  and direct  the police to make further investigation,  under  s. 156(3).   The police, after such further investigation,  may submit  a  charge-sheet, or,, again submit a  final  report, depending upon the further investigation made by them.   If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he,  can take  cognizance  of  the  offence  under  s.  190(1)   (c), notwithstanding   the  contrary  opinion  of   the   police, expressed in the final report. 678 In  this connection, the provisions of S. 169 of  the  Code, are  relevant.  They specifically provide that even  though, on  investigation, a police officer, or other  investigating officer,  is  of  the  opinion that there  is  no  case  for proceeding against the accused, he is bound, While releasing the  accused,, to take a bond from him to appear,  ’If  and. when  required,  before  a Magistrate.   This  provision  is obviously  to meet a contingency of the Magistrate, when  he considers  the  report  of the  investigating  officer,  and judicially takes a view different from the police. We have to approach the, question, arising for consideration in this case, in the light of the circumstances pointed  out above.   We have, already referred to the scheme of  Chapter XXIV,  as well as the observations of this Court in  Rishbud and Inder Singh’s Case(1) that the formation of the  opinion as to whether or not there is a case to place the accused on

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trial before a Magistrate, is ’left to the officer in-charge of the police station.  There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature  under  attack; nor can any such powers  be  implied. There  is  certainly no obligation, on  the  Magistrate,  to accept  the  report, if he does not agree with  the  opinion formed  by  the police.  Under those  circumstances,  if  he still  suspects  that an offence has been committed,  he  is entitled,  notwithstanding  the opinion of tile  police,  to take  cognizance,  under  S. 190(1)(c) of  the  Code.   That provision,  in our opinion, is obviously intended to  secure that  offences may not go unpunished and justice may be  in- voked   even  where  persons  individually   aggrieved   are unwilling  or  unable to prosecute. or  the  police,  either wantonly  or  through  bona fide error,  fail  to  submit  a report,  setting  out the facts  constituting  the  offence. Therefore, a very wide power is conferred on the  Magistrate to take cognizance of an offence. not only when he  receives information about the commission of an offence from a third person,  but also where he has knowledge or  even  suspicion that  the  offence has been committed.  It is  open  to  the Magistrate  to  take  cognizance of the  offence,  under  s. 190(1)  (c), on the ground that, after having due regard  to the  final report and the police records placed before  him, be has reason to suspect that an offence has been committed. Therefore,  these circumstances will also  clearly  negative the  power of a Magistrate to call for a  charge-sheet  from the  police, when they have submitted a final  report.   The entire  scheme  of Chapter XIV clearly  indicates  that  the formation  of the opinion, as to whether or not there  is  a case to, place the accused for trial, is that of the officer in-charge of the police station and that opinion  determines whether  the report is to be under s. 170, being a  ’charge- sheet’, or under S. 169, ’a final report’.  It is no (1)  [1955]1 S.C.R. 1150. 67 9 doubt  open  to the Magistrate, as we have  already  pointed out,  to accept or disagree with the opinion of  the  police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us.  But he cannot direct the police to submit a charge-sheet, because, the submission of the report depends  upon the opinion formed by the police, and  not  on the opinion of the Magistrate.  The Magistrate cannot compel the   police   to  form  a  particular   opinion,   on   the investigation,  and  to submit a report, according  to  such opinion.   Thai will be really encroaching on the sphere  of the  police and compelling the police to form an opinion  so as to accord with the decision of the Magistrate and send  a report, either under s. 169, or under s. 170, depending upon the  nature of the decision.  Such a function has been  left to the police, under the Code. We  have already pointed out that the  investigation,  under the  Code,  takes  in several aspects,  and  stages,  ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected, a case is made  out  to place the accused before  the  Magistrate  for trial,  and  the submission of either a charge-sheet,  or  a final  report is dependent on the nature of the opinion,  so formed.  The formation of ,the said opinion, by the  police, as   pointed  out  earlier,  is  the  final  step   in   the investigation,  and that final step is to be taken  only  by the police and by no other authority. The  question  can also be consider from  another  point  of view.   Supposing the police send a report, viz., a  charge- sheet, under s. 170 of the Code.  As we have already pointed

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out, the Magistrate is not bound to accept that report, when he considers the matter judicially.  But, can he differ from the  police.  and call upon them to submit a  final  report, under  s.169 ?  In our opinion, the Magistrate has  no  such power.   If  he has no such power, in law, it  also  follows that  the  Magistrate has no power to direct the  police  to submit a charge-sheet when the police have submitted a final report that no case is made out for sending the accused  for trial.  The functions of the Magistracy and the police,  are entirely   different,  and  though,  in  the   circumstances mentioned  earlier the Magistrate may or may not accept  the report,  and  take  suitable action, according  to  law,  he cannot  certainly  infringe  upon the  jurisdiction  of  the police, by compelling them to change their opinion, so as to accord with his view. Therefore, to conclude, there is no power, expressly or  im- pliedly  conferred, under the Code, on a Magistrate to  call upon  the  police to submit a charge-sheet, when  they  have sent  a  report under s. 169 of the Code, that there  is  no case made out for sending tip an accused for trial. L7 Sup.  CI/67- 15 680 In  these two appeals, one other fact will have to be  taken note of.  It is not very clear as to whether the Magistrate, in  each  of these cases, has chosen to  treat  the  protest petitions,   filed   by  the  respective   respondents,   as complaints, because, we do not find that the Magistrate  has adopted  the suitable procedure indicated in the Code,  when he  takes cognizance of an offence, on a complaint  made  to him.   Therefore,  while  holding that  the  orders  of  the Magistrate, in each of these cases, directing the police  to file  charge-sheets,  is Without jurisdiction,  we  make  it clear  that  it  is  open to the  Magistrate  to  treat  the respective  protest  petitions,  as  complaints,  and   take further  proceedings, according to law, and in the light  of the views expressed by us, in this judgment. Mr.  Nuruddin Ahmed, learned counsel for the  appellants  in Criminal Appeal No. 238 of 1966, particularly urged that  it is   unnecessary  to  direct  further  proceedings   to   be continued,  so  far as his clients are  concerned.   Learned counsel  pointed  out  that the  police  report  before  the Magistrate clearly shows that the girl, in question, who  is stated to be above 19 years of age, has herself stated  that she  bad eloped, of her own accord and that if that  is  so, further  proceedings  against his  clients,  are  absolutely unnecessary, to be continued.  We are not inclined to accept these contentions of the learned counsel.  As to whether  an offence is made out or whether any of the appellants or both of  them are guilty of the offences with which they  may  be charged,  are  all  matters  which  do  not  require  to  be considered, by this Court, at this stage. In  the result, subject to the directions  contained  above, the orders of the Magistrate, directing the police to file a charge, will be set aside, and the appeals allowed, to  that extent. V.P.S.                                    Appeals allowed. 681