Holding

The Supreme Court held that the informant must be given notice and a hearing when the magistrate decides not to take cognizance, and that the magistrate may independently take cognizance under Section 190(1)(b) even if the police report finds no case, rendering the writ petition improper.

Summary

The appellant, Gangadhar Janardan Mhatre, filed a writ petition under Article 226 seeking transfer of the investigation of a FIR in which his brother was allegedly killed. The High Court dismissed the petition, holding that the case was already before the Sessions Court and that the writ was not the appropriate remedy. On appeal, the Supreme Court examined whether an informant must be given notice and a hearing when a magistrate, on receipt of a police report under Section 173(2)(i), decides not to take cognizance of the offence. The Court affirmed that the informant is entitled to such notice, and that a magistrate may independently take cognizance under Section 190(1)(b) even if the police report concludes no case against the accused, without being bound by Sections 200 and 202. It also held that the writ petition was improper because the complainant could avail remedies under Sections 190 and 200 of the CrPC. Consequently, the appeal was dismissed.

Issues considered

Whether an informant is entitled to notice and an opportunity of hearing when a magistrate decides not to take cognizance of an offence on the basis of a police report under Section 173(2)(i).
Whether a magistrate can take cognizance of an offence under Section 190(1)(b) of the CrPC despite a police report stating that no case is made out against the accused, and whether he must follow the procedure of Sections 200 and 202.
Whether a writ petition under Article 226 is maintainable when specific remedies under the CrPC (Sections 190/200) are available to the complainant.
Whether the terms 'charge sheet' or 'final report' have any statutory basis in the CrPC.
Whether a protest petition by the informant is required or permissible under the Code.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 169, s. 170, s. 173(2)(i), s. 190(1)(a), s. 190(1)(b), s. 190(1)(c), s. 200, s. 202, s. 203
Constitution of Indias. Article 226

Subjects

cognizancepolice reportnotice to informantSection 190Section 173writ petitionArticle 226criminal procedureprotest petitioncharge sheetmagistrate's powers

Judgment

A GANGADHAR JANARDAN MHATRE
v.
STA TE OF MAHARASHTRA AND ORS.

SEPTEMBER 28, 2004

B [ARJJIT PASAYAT AND C.K. THAKKER, JJ.]

Code of Criminal Procedure, 1973:

Section 190(1)-Cognizance of offences-Magistrate's power to take-

c Notice·to informant-Necessity of- Held: Where the Magistrate decides not
to take cognizance of an offence on a police report under S. 173(2)(i) and
decides to drop the proceedings against some of the accused, the Magistrate
has to give notice to the informant and provide an opportunity to be heard
_at the time of consideration of the report-The said right is conferred on the
informant and none else-If the informant is not aware as to when the matter
D is to be considered, he cannot be faulted, even if protest petition in reply to
the notice issued by the police has been filed belatedly.

Sections 169,' 173(2), 190(1), 200 and 202-Cognizance of offences-
Magistrate's power to take-Police report under S. 173(2)(i) made out no
case against the accused-Effect of-Held: The Magistrate can ignore the
E conclusion arrived at by the Investigating Officer and independently apply
his mind to the facts emerging ji·om the investigation and take cognizance
of the case and, if he thinks fit, exercise his powers under S. 190(l)(b)-The
Magistrate is not bound to follow the procedure laid down in Ss. 200 and
202 for taking cognizance of a case under S. 190(l)(a) though it is open to
F him to act under Ss.200 or 202 also.

Section 154-Jnformation in cognizable cases-Failure ofpolice to take
action-Remedies available to the compla_inant-Held: Complainant is given
the power under S. 190 rlw S. 200 to lay the complaint before the Magistrate
havingjurisdiction to take cognizance ofthe case-Thereupon, the MagistratP-
G is required to enquire into the complaint as provided in Chapter XV.

Constitution of India, 1950:

Article 226-Writ petition-Maintainability of-Informant filed a writ
H petition seeking transfer of investigation from State CID to any other
772
G.J. MHATRE v. STATE 773

impartial investigating agency-Informant levelled serious allegations about A
the competence and fairness of not only the investigating officers
but also some of the judicial officers-High Court dismissed the writ
petition-Correctness of-Held: The Magistrate is empowered to take
cognizance ofa case under S. 190(/)(b) Cr.P.C. even if the police report has
made out no case against the accused-Informant has power under S. 190 B
r/w S. 200 Cr.P.C. to lay the complaint before the Magistrate even if police
has failed to take action-Further, informant is also entitled to a notice when
the Magistrate decides to drop the proceedings against the accused on the
basis of the police report-Therefore, without availing the remedies under
the Cr.P.C., the informant could not have approached the High Court by
filing a writ application-Hence, writ application rightly dismissed. C

Words & Phrases:

"Charge sheet" and "final report"-:-Meaning of-In the context of Ss.
169, 170 and 173(2) of the Code of Criminal Procedure, 1973.
D
The appellant's grievance primarily was that respondent Nos. 2 to
9 had allegedly killed his brother and caused grievous injuries to his
nephew. The appellant in this regard registered the first information
report. The appellant filed a writ petition before the High Court praying
for transfer of the ihvestigation from ~ate CID to any other impartial·
E
investigating agency. The High Court noted that the case had been
committed under the orders passed by the Magistrate and was pending
in the Court of Sessions. The High Court, therefore, was of the view that
when the case was· pending before the Sessions Court, there was no
question of transferring investigation to some other agency. The High
Court also noticed that a charge sheet was also filed against the appellant. F
In that view of the matter the High Court found that there was no scope
for entertaining the ~rievances as raised by the appellant.

Originally, the investigating agency had filed a petition for closing
the matter pursuant to the FIR lodged by the appellant. The Judicial
Magistrate, First Class, had passed orders accepting the prayer made
G
by the Police CommissiQner to release respondents Nos. 2 to 9. This
order was assailed in revision before the Additional Sessions Judge who
set aside the aforesaid order. Direction was given to the Magistrate to
refer the matter to the concerned Investigating Officer for further
investigation under Section 156(3) of the Code of Criminal Procedure, H
774 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A 1973. Pursuant to that order several proceedings in several courts had
taken place and the matter was travelling from one court to another.
Hence the appeal.

On behalf of the appellant, it was contended that when there had
been total failure of justice on account of laxity of the Investigating
B Agency there was need for change of the Investigating Agency for further
and better investigatJon; that some of the judicial officers did not act
within the four corners of law and did not take note of the observations
made by the Additional Sessions Judge; and that when the Investigating
Agency and judicial officers had not acted rationally and in accordance
C with law, the High Court should have accepted the prayers made.

Dismissing the appeal, the Court

HELD: 1. There is no provision in tht; Code of Criminal Procedure,
197.3 to file a protest petition by tlie informant who lodged the First
D Information Report. However, there is no shadow· of doubt that the
informant is entitled to a notice and an opportunity to be heard at the
time of consideration of the report. However, the position is different so
far as an injured person or a relative of the deceased, who is not an
informant, is concerned. They are not entitled to any notice. This right
is conferred on the informant and none else. If the informant is not
E
aware as to when the matter is to be considered, he cannot be faulted,
even if pr:otest petition in reply to the notice issued by the Police has
been filed belatedly. (779-A, E, F; 781-G-H; 782-A]

. Bhagwant Singh v. Commissioner of Police, AIR (1985) SC 1286,
F relied on.

2. It is well settled that upon receipt of a police report under Section
173(2) of the Code a~Magistrate is entitled to take cognizance of an
offence 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. T~e Magistrate
G can take into account the statements of the witnesses examined by the
police during the investigation and take cognizance of the pffence
complained of and order the issue of process to the accused. Section
190(l)(b) does noflay down that a Magistrate can take cognizance of an
offence only if the Investigating Officer gives an opinion that the
H investigation has made out a case against the accused. The Magistrate
G.J. MHATRE v. STATE 775

can ignore the conclusion arrived at 'by the lnvestigatimg Officer and A
independently apply his mind to the facts emerging from the investigation
and take 1cognizance of the case; and, if he thinks fit, exer.cise his powers
under Sec,tion 190(1)(b) and direct the issue of process 1to the accused.
The Magistrate is not bound in such a situation to follow the procedure
laid down in Sections 200 and 202 of the Code for taking cognizance of B
a case under Section 200 or Section 202 also. (780-E, F, G, H; 781-A]

Abhinandan Jha v. Dinesh Mishra, AIR (1968) SC 117 and Mis. India
Carat Pvt. Ltd. v. State of Kera/a, AIR (1989) SC 885, ~elied on.

3. When the report forwarded by the police to the Magistrate under c
Section 173(2)(i) is placed before him and where the Magistr.ate decides
not to take cognizance and to drop the proceedings or takes a view that
there is no sufficient ground for proceeding against some of the persons
mentioned in the First Information Report, notice to the infom1ant and
grant of opportunity of being heard in the matter becomes mandatory.
In such a case, the Magistrate has to give the notice to the informant D
and provide an opportunity to be heard at the time of consideration of
the report. (779-D, El

Bhagwant Singh v. Commissioner of Police, AIR (1985) SC 1286,
relied on. E
4. The expressi.ons 'charge sheet' or 'final report' are not used in
the Code, but it is understood in Police Manuals of several State~•
containing the Rules and the Regulations to be a report by the Police
filed under Sectio1;1 170 of the Code, described as a "charge sheet". In
case of reports sent under Section 169. i.e., where there is no sufficiency F
of evidence to justify forwarding of a case to a Magistrate, it is termed
variously i.e., referred charge, final report or summary. (781-D, E]

5.1. When the information is laid with the police, but no action in
that behalf is taken, the complainant is given the power under Section
190 read with Section 200 of the Code to lay the complaint before the
G
Magistrate having jurrisdiction to take cognizance of the offence and the
Magistrate is required to enquire into the complaint as provided in
Chapter XV of the Code. In case the Magistrate after recording evidence
·~
finds a prima facie ca.se, instead of issuing process to the accused, he is
empowered to direct the police concerned to investigate into the offmce H
776 SUPREME COURT l\EPORTS [2004] SUPP. 4 S.C.R.

A under Chapter ~II of the Code and to sqbmit a report. If he finds that
the complaint dfes not disclose any offence to take further action, he is
empowered to d!smiss the complaint under Section 203 of the Code. In
case he finds th~t the com plaint/evidence irecorded prima facie discloses
an offence, he is empowered to take cognifance of the offence and would
issue process t<;l the accused. (782-A, B, /C, DJ
B
I \ I
All India institute of Medical Sciences Employees' Union v. Union of
India, [1997) Stl'p~eme Court Cases (Crl;) 303, relied on.
l.
5.2. Thewrit application was not the proper remedy, and without
C availing the :i"em'eCly available under the Code, ,the appellant could not
have appro1ched the High Court by filing a writ application. [782-E)

CRU~HNAL APPELLATE JURISDICTION : Criminal Appeal No. 639
of 1999.

D Fr(jTI the Judgment and Order dated 16.3.98 of the Bombay High Court
in Crl. N.P. No. 1013 of 1997 .

.,{jay Majithia, Shekhar K. Sinha and S.B. Upadhyay for the Appellant.

E . Sushil Karanjakar, Vishwajit Singh and R.K. Adsure for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAYA T, J. : The appellant calls in question legality of the
.order passed by a Division Bench of the. Bombay Hig~;Court dismissing the
F . Criminal Writ Petition No. 1013 of 1997 filed by the appellant. The writ
petition under Article 226 of the Constitution of Inc\ifl, 1950 (in short the
"Constitution") was filed with the following prayers :

"To call for record and proceedings of S~ssions Case No. 62/
89 in Cr. No. 257/87 pending before J.M.F.C. Vasai for consideration.
G
To issue writ of mandamus and not any other writ, order or
direction to transfer the investigation of Cr. Np. 257/87 from State
CID to any other impartial investigating agency and/or to Senior P.I.
Manickpur Police Station, Vasai under\ the supervision of
H Superintendent of Police, Thane (Rural). .I
G.J. MHATRE v. STATE [PASAYAT, J.] 777

To issue a writ of mandamus and/or any other writ, order or A
direction in the nature of writ of mandamus calling upon the
Sessions Judge, Palghar to try and dispose of Sessions Case No. 621
89 within 3 months from the date of committing the case to Sessions
Court.

To direct the learned J.M.F.C. Vasai tu discharge the four
B
adivasis accused in the Sessions Case No. 303/89 and commit the
present Respondent Nos. 2 to 9 to Sessions Court for trial.

If it is found just and proper the concerned authorities may be
directed to take disciplinary action against the judicial and police C
officer to avoid the miscarriage of justic~ in future.

Petitioner may be awarded the costs of this petition.

To pass any other order which Your Lordship deem fit in the
interest of justice." D
The High Court had originally issued noticed before admission to the
Inspector of Police State CID, who filed an affidavit on 10th March, 1998.
Appellant's grievance primarily was that the respondent Nos. 2 to 9 herein
(who were the respondents before the High Court in the Writ Petition) had
allegedly killed his brother and caused grievous injuries to nephew. The first
E
information report in this regard was registered on 29.6.1987 bearing C.K
No. 257 of 1987. The High Court noted that the case had been committed
under order passed by learned Magistrate and was pending in the Court of
Sessions, Palghar as Sessions Case No. 303 of 1989. The High Court,
therefore, was of the view that when the case was pending before the Session F
Court, there was no question of transferring investigation to some other
agency. It also noticed that C.R. No. 258of1987 of the Vasai Police Station
where the appellant figured as an accused is the subject matter of Criminal
Case No. 32 of 1990 pending before the Learned J.M.F.C. Vasai, pursuant
to which charge sheet was filed. In that view of the matter the High Court G
found that there was no scope for entertaining the grievances as raised by
the appellant.

In the present Appeal the appellant has made serious allegations about
the competence and fairness of not only the· Investigating Officers but also
some of the judicial officers. It appears that originally the investigating H
778 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A agency had filed a petition for closing the matter pursuant to the FIR lodged
by the appellant. Learned Judicial Magistrate, First Class, Vasai had passed
orders accepting the prayer made by the Police Commissioner, C.l.D.
Bombay Division to release the present respondent Nos. 2 to 9 as per the
provisions of the Section 169 of the Code of Criminal Procedure 1973, (in
short the 'Code'). The order was assailed in revision before the learned IV
B
Additional Sessions Judge, Thane, who by order dated 19th February, 1996,
in Criminal Re~ision Application No. 103 of 1999, set aside the order.
Director was given to fhe learned Magistra!e to refer the. matter to the
concerned Investigating Officer for further investigation under sub-section
(3) of Section 156 of the Code. Pursuant to the order several proceedings in
c several courts have taken place and the matter is travelling from one court
to another. Learned J.M.F.C. Vasai on 23.6.1997 directed the investigating
officer to further investigate as per the dire~ticins given. It appears that on
4.4.1997 learned Additional Sessions Judge, Palghar, passed order on the
report of the Investigating Officer dated 28,·l.1997 and the matter was sent
to the Judicial Magistrate. Vasai with direction of passing necessary order.
D
The Investigating Officer had reported that certain action, pursuant to the
direction given, has been taken. Considering the circumst~nces, the writ
petition was dismissed.
•
Learned counsel appearing for the appellant submitted that when there
E has been. total failure of justice on account of laxity of the Investigating
Agency there was need for change of the Investig~t!ng Agency for further
and better investigation. It was also submi~ed that some of the judicial
officers did not act within the four corners of law and did not take note of
the observations made by the learned Additional Sessions Judge. It was
submitted that when Investigating Agency and judicial officers had not acted
F
rationally and i~ accordance with law, the High Court should have accepted
the prayers made.

In response, learned counsel appearing for the respondents submitted
that the _appellant has unnecessarily prolonged the proceedings · and
G investigating officers and/or the judicial officers were not supposed to act in
the manner the appellant desires, they have to act as provided in law. It is
also submitted that course available to be adopted in case final report is
submitted, has been indicated by this Court in several cases and if the
appellant has any grievance the s;ime can be redres~ed in the manner provided
in law and not the way appella~t desires, and certainly not in a wtit petition.
H
G.J. MHATRE v. STATE [PASAYAT, J.] 779

He can file a protest petition if permissible in Jaw. A
There is no provision in the Code to file a protest petition by the
informant who lodged the first information report. But this has been the
· practice. Absence of a provision in the Code relating to filing of a protest
petition has been considered. This Court was Bhagwant Singh v. Commissioner
of Police and Another, AIR (1985) SC 1285, stressed on the desirability of B
intimation being given to the information when a report tinder Section 173(2)
is under consideration. The Court held as follows :

" .... There can, therefore, be no doubt that when, on a
consideration of. the report made by the officer in charge of a police
station under Sub-Section (2)(i) of Section 173, the Magistrate is not
c
inclined to take cognizance of the offence and issue process, the
informant must be given ar opportunity of being heard so that he
can make his submission to persuade the Magistrate to take cognizance
of the offen~e and issue process. We are accordingly of the view
that in a case where the Magistrate" to whom a report is forwarded D
under Sub-section (2)(i) of Section 173 decides not to take cognizance
of the offences and to drop the proceeding or takes the view that
there is no sufficient ground for proceeding against some of the
persons mentioned in the First Information Report, the Magistrate
must give notice to be heara at the time of consideration of the E
report..... "

Therefore, there is no shadow of doubt that the informant is entitled to
a notice and an opportunity to be heard at the time of consideration of the
report. This Court further hold that the position is different so far as an injured
person or a relative ~f the deceased, who is not an informant, is concerned. F
They are not entitled to any notice. This Court felt that the question relating
to issue of notke and grant of opportunity as afore-described was of general
importance and directed that copies of the jµdgment b~ sent to the High
Courts in all the States so that the High Courts in their tum l}lay circulate
the same among the Magistrates within their respectiv; jurisdictions. 0
In Abhinandan Jha and Another v. Dinesh Mishra, A1R(1968) SC 117,
this Court while considering the provisions of Sections 156(3), 169, 178 and
190 of the Code held that 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 under Section l 69of the Code, that there I-
780 SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.

·A is no case made out for sen din~ up an accused for trial. The functions of the
Magistracy and the police are entirely different, and the Magistrate ,cannot
impinge upon the jurisdiction of the police, by compelling them to change
their opinion so as to accord with his view. However, he is not deprived of
the power to proceed with the matter. There is no obligation on the Magistrate
to accept the report ifhe does not agree with the opinion formed by the police.
B The power to take cognizance notwithstanding formation of the opinion by
the police which is the final stage in the investigation has been provided for
in Section 190(1 )(c).

When a report forwarded by the police to the Magistrate under Section
c l 73(2)(i) is placed before him several situations arise. The report may
conclude that an l'.'>ffence appears to have been committed by a particular
person or persons and in such a case, the Magistrate may either (i) accept
the report and take cognizance of the offence and issue process, or (2) may
disagree with the report and drop the proceeding, or (3) may direct further
investig~tion under Section 156(3) and require the police to make a further
D
report. The report may on the other hand state that according to the police,
no offence appears to have been committed. When such a report is placed
before the Magistrate he has again option of adopting one of the three cor.irses
open i.e., (I) he may accept the report and drop the proceedin"g'; or (2) he
may disagree with the report and take the view that there is sufficient ground
E for furth\:r proceeding, take cognizance of the offence and issue process; or
·{3) he may direct further investigation to be made by the police under Section
156(3). The position is, therefore, now well-settled that upon receipt of a
police report under Section 173(2) a Magistrate is entitled to take cognizance
of an offence under Section 190( I )(b) of the Code even if the police report
is to the effect that no case is made out against the accused. The Magistrate
F
can take into account the statements of the witnesses examined by the police
during the investigation and take cognizance of the offence complained of
and order the issue of process to the accused. Section 190(l)(b) does not lay
down that a Magistrate can take cognizance of an offence only if the .
Investigati_ng Officers gives an opinion that the investigation has made out
G a case against the accused: The Magistrate can ignore the conclusion arrived
at by the Investigating officer and independently apply his mind to the facts
emerging from the investigation and take cognizance of the case, ifhe thinks
fit, exercise of his powers under Section l 90(l)(b and direct the issue of
process to. the accused. The Magistrate is not bound in such a situation to
follow the procedure laid down in Sections 200 and 202 of the Code for
H
G.J. MHATRE v. STATE [PASAYAT, J.) 781

taking cognizance of a case under Section 190( 1)(a) though it is open to him A
to act under Section 200 or Section 202 also. (See Mis. lndia Sarat Pvt. ltd
v. State of Karnataka and Another, AIR (1989) SC 885. The infonnant is
not prejudicially affected when the Magistrate decides to take cognizance and
to proceed with the case. But where the Magistrate decides that sufficient
ground does not subsist for proceeding further and drops the proceeding or B
takes the view that there is material for proceeding against some and there
are insufficient grounds in respect of others, the informant would certainly
be prejudiced as the First Information Report lodged: becomes wholly or
partially ineffective. Therefore, this Court indicated in Bhagwant Singh 's
case (supra) that where the Magistrate decides not to take cognizance and
to drop the proceeding or takes a view that there is no sufficient ground for
I
C

- proceeding against some of the persons mentioned in the First Infonnation
Report, notice to the Infonnant and grant of opportunity of being heard in
the matter becomes mandatory. As indicated above, there is no provision in
the Code of issue of a notice in that regard.

We may addhere that the expressions 'charge-sheet' or 'final report' D
are not used in the Code, but it is understood in Police Manuals of several
States containing the Rules and the Regulations to be a report by the Police
filed under Section 170 of the Code, described as a "charge-sheet". In case
of reports sent under Section 169, i.e., where there is no sufficiency of
evidence to justify forwarding of a case to a Magistrate, it is,termed variously E
i.e., referred charge, final report or summary. Section 173 in terms does not
refer to any notice to be given to raise any protest to the report submitted
by the police. Though the notice issued under some of the Police Manuals
states it to be a notice under Section 173 of the Code, though there is nothing
jn Section 173 specifically providing for such a notice.
F
As decided by this Court in Bhagwant Singh 's case (supra), the
Magistrate has to give the notice to the infonnant and provide an opportunity
to be heard at the time of consideration of the report. It was noted as follows:

". .... the Magistrate must give notice to the informant and G
provide him an opportunity to be heard at the time of consideration
of the report ... "

Therefore, the stress is on the· issue of notice by the Magistrate at the
·. time of consideration of the report. If the informant is not aware as to when
the matter is to be considered, obviously, he cannot be faulted, even if protest H
782 SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A petition in reply to the notice issued by the police has been filed belatedly.
But as indicated in Bhagwant Singh 's case (supra) the right is conferred on
the informant and none else.

When the information is laid with the Police, but no action in that behalf
is taken, the complainant is given power under Section 190 read with Section
.B 200 of the Code to lay the complaint before the.Magistrate having jurisdiction
to take cognizance of the offence and the Magistrate is required to enquire
into the complaint as provided in Chapter XV of the Code. In case the
Magistrate after recording evidence finds a prima facie case, instead of
issuing process tc. the accused, he is empowered to direct the police
c concerned to investigate into offence under Chapter XII of the Code and to
submit a report. If he finds that the complaint does not disclose any offence
to take further action, he is empowered to dismiss the complaint under
Section 203 of the Code. In case he finds that the complaint/evidence
recorded primafacie discloses an offence, he is empowered to take cognizance
of the offence and would issue process to the accused. These aspects have
D
. ' .
been highlighted t>:Y this Court in All India Institute of Medical Sciences
Employees' Union (Reg.) through its President v. Union ofIndia and Others,
(1997] Supreme Court Cases (Crl.)·303. It was specifically observed that a
.
writ petition in·such cases is not to be entertained.
. .
E The inevitable conclusion is that the High Court's order does not suffer ' '
·from any infirmity. The writ application was not the proper remedy, and
without availing the remedy available under the code. the appellant could not
have approached the High Court by filing a Writ application.

. Appeal is dsmissed.
F
v.s.s. Appeal dismissed.

.·