Holding

A magistrate may take cognizance of an offence under Section 190(1)(b) based on the facts disclosed in a police report and is not bound by the police’s conclusions; thus, the magistrate’s issuance of process was lawful.

Summary

The appellant H.S. Bains was alleged to have entered the complainant’s house armed with a revolver and threatened to kill him and his son. The magistrate, on receipt of the complaint, ordered a police investigation under Section 156(3) of the Code of Criminal Procedure, 1973, and the police submitted a report under Section 173 stating that the allegation was false and that the appellant was elsewhere at the relevant time. Disagreeing with the police conclusion, the magistrate took cognizance of offences under Sections 448, 451 and 506 of the Indian Penal Code and issued process against the appellant. The appellant challenged the magistrate’s jurisdiction, arguing that a magistrate could not take cognizance under Section 190(1)(b) when the police report indicated no offence. The Supreme Court held that a magistrate is not bound by the police’s conclusions and may (i) drop the case, (ii) take cognizance under Section 190(1)(b) based on the facts disclosed in the police report and issue process, or (iii) take cognizance under Section 190(1)(a) on the original complaint and proceed under Sections 200, 202 and 203. Consequently, the magistrate’s action was within his jurisdiction and the appeal was dismissed.

Issues considered

Whether a magistrate can take cognizance of an offence and issue process under Section 190(1)(b) of the CrPC despite a police report under Section 173 concluding that no offence was made out.
Whether the magistrate is bound by the police’s conclusions in a report filed under Section 173.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 169, s. 170, s. 173, s. 190(1)(a), s. 190(1)(b), s. 190(1)(c), s. 200, s. 202, s. 203, s. 204
Indian Penal Code, 1860s. 448, s. 451, s. 506

Subjects

criminal proceduremagistrate jurisdictionSection 190police reportcognizance of offenceinvestigation under Section 156(3)process issuance

Judgment

935

H. S. BAINS DIRECTOR SMALL SAVING-CUM-DEPUTY A
,...._ .
SECRETARY, FINANCE, PUNJAB, CHANDIGARH

v.

THE STATE (UNION TERRITORY OF CHANDIGARH) B
October IO, 1980

[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.)
Code of Criminal Procedure 1898-Section 190(1)(b) and (c}-Scope of-
Mlllgistrate ordered invesPigation under section 156(3}-Police submitted report c
under section 173-Disagreeing with police report Magistrate directed issue of
process-Magistrate if comperent to take cognizance of complaint under sec-
tion 190(1)(b).
On a complaint by the complainant that the appellant, armed with a re-
volver and accompanied by two persons, trespassed into his house and threa-
tened to kill him, the Magistrate ordered investigation by the police under
D
~ection 156(3) of the Code of Criminal Procedure. In their report under sec-
tion 173 the police stated that the complaint was false in that on the date and
time mentioned therein, the appellant was at a different place far away from
the place where the complainant alleged that the appellant had threatened to
kill him. Disagreeing with the conclusion of the police the Magistrate took
cognizance of the case under sections 448, 451 and 506 I.P.C. and directed the
issue of process to the appellant. The appellant's petition seeking to quash E
the. proceedings before the Magistrate was dismissed by the High Court.
In appeal to this Court, it was contended on behalf of the appellant that
the Magistrate was not competent to take cognizance of the case as if it was
upon a police report since the report under section 173 by the police did not
disclose any offence having been committed by the appellant.
Dismissing the appeal
HELD : Where the Magistrate, on receiving a complaint orders investiga- F
tion under section 156(3) and rece.ives a report under section 173 to the effect
that no offence was disclosed against the accused, the Magistrate might either
(i) decide that there is no sufficient ground for proceeding further and drop
action or (ii) he may take cognizance of the offence under section 190(1)(b)
and issue process without being bound in any manner by the conclusion of the
police or (iii) he may take cognizance of the offence under section 190(1)(a) on
G
the basis of the original complaint and proceed to examine upon oath the
complainant and his witnesses under section 200. If he adopts the third alter-
native, he may hold or direct an enquiry under section 202 if he thinks fit.
Thereafter he may dismiss the complaint or issue process as the case may be.
[940E-G]
In any event, it is impossible to say that the Magistrate, who takes cogni-
zance of an offence on the bas,is of the facts disclosed in the police report, H
936 SUPREME COURT REPORTS [1981] 1 S.C.R.

A must be said to have taken cognizance of the offence "on suspicion" and not
upon police report, merely because he and the police arrived at different con-
clusions from the facts. The Magistrate is not bound by the conclusions of
the police: if he ignores their conclusions and takes cognizanee of the offence
himself, he does so upon the facts disclosed by the police report though not
on the conclusions arrived at by them. In such a case, it cannot be said that
he was taking cognizance "on suspicion". [942E·H]
B

J.
In Abhinandan Iha & ors. v. Dinesh Mishra [1967] 3 SCR 668, where this
Court stated that the Magistrate could take, cognizance of the offence under ·'
section 190(1)(c) notwithstanding the contrary opinion of the police, the refer·
ence to sub-clause (c) therein was a mistake for sub-clause (b). The argument
of the appellant that the Court, in this case, had apparently taken the view
that the Magistrate could take cognizance of the offence not under section 1.90
c (i)(b) as if it was a police report but under section !90(1)(c) as if it was "on
suspicion" is not sustainable, because section !90(1)(c) was never intended to
apply to cases where there was a police report under section 173(1). [942C:D]

CRIMINAL APPELLATE JuRISDICTION : Criminal Appeal No. 687
of 1980.

D Appeal by Special Leave from the Judgment and Order dated
18-4-1980 of the Punjab and Haryana High Court in Crl. Misc.
No. 26-M/1980.

Mrs. Urmila Sirur for the Appellant.
Mrs. Shobha Dixit a,nd M. N. Shroff for the Respondent.
E
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J.-On August 13, 1979, Gurnam Singh
a resident of Chandigarh submitted a complaint to the Judici:al Magfa-
.trate 1st Class Chandigarh, alleging that the appellant H. S. Bains
F accompanied by two persons had come to his house in a car on the
morning of August 11, 1979, at about 8 a.m., tress-passed into the
house and threatened to kill him and his natural son if he di:d not
take away his natural son Aman Deep Singh from the house of his
sister Bakshish Kaur, who had taken the boy in adoption as she was
issueless. Bakshish Kaur was the widow of the brother of the appel-
G lant and the adoption made by Bakshish Kaur was not to the liki:ng
of the appellant. It was alleged in the complaint that the appellant
was armed with a revolver which he pointed at the complainant. The
complainant raised a hue and cry. The accused and his companions
fled away in their car. As August 11, 1979 and August 12, 1979
were holidays, he was able to file the complaint only on 13th August,
H 1979. The learned Magi:strate to.whom the complaint was &ubmitted
ordered an investigation by the police under Sec. 156(3) of the Code
of Criminal Procedure. The police after completing the investigation.
fl, s. BAINS v. STATE (Chinnappa Reddy, J.) 937

submitted a report tothe Magistrate under Sec. 173 of the Code of
Criminal Procedure stating that the case against the appellant was not
true and that rt might be dropped. The police arrived at the conclu-
sion that the case against the appellant was not true as their investiga-
tion revealed, according to them, that the appellant was at Amritsar
with Shri Jai Singh, District Magistrate of Amritsar at 9 a.m. on
August 11, 1979 and it was, therefore, i:mpossible for him to have B
been at Chandigarh at 8 a.m. ori August 11, 1979. The learned
Magistrate after perusing the report submitted by the police disagreed
. with the conclusion of police, took cognizance of the case under Sec-
tions 448, 451 and 506 of the Indian Penal Code and directed the
issue of process to the appellant. Aggrieved by the i:ssue of process,
the appellant filed Criminal Miscellaneous Case No. 26-M of 1980, in
c
the High Court of Punjab and Haryana to quash the proceedings
before the Magistrate. , The application was dismissed by the High
Court and the appellant filed a petition for the grant of speci:al leave
to appeal against the order of the High Court. We. granted Special
Leave and straightaway heard the appeal with the consent of the D
parties.

· Shri Kapil Sibal urged that the Magistrate had issued process to
the accused without recording the statement, on oath, of the com-
plainant and the wi:tnesses under Sec. 200 Criminal Procedure Code
and therefore, he must be taken to have taken cognizance of the case E
under Sec. 190(l)(b), as if upon a police report. Shri Sibal submitted
that the Magistrate was not competent to take cognizance of the
case as if it was upon a police report as the report under Sec. 173
Criminal Procedure Code submitted to him di:sclosed that no offence
had been committed by the accused. According to Shri Sibal, in the
circumstances of the case, the Magistrate, on receipt of the report F
under Sec. 173 Criminal Procedure Code to the effect that the case
against the accused was not proved, had only two options before hi:m.
He could either order a further investigation or he could take
cognizance of the case as if upon a complaint, record the statements
of the complainant and witnesses under Sec. 200 Criminal Procedure
Code and then proceed to issue process if he was satisfied that process G
ought to be issued. In any case Shri Sibal submitted ~hat the order
of the Ist Class Magistrate taking cognizance of the case was so
unjudicial that it ought to be struck down. Shri Sibal invited our
attention to two decisions of this Court : Abhinandan !ha & Ors. v.
Dinesh Mishra( 1 ); and Tula Ram & Ors. v. Kishore Singh(2).
H
(I) [1967] 3 SCR 668.
(2) [1978] l SCR 615.
18-645 S. C. Tndia/80
938 SUPREME COURT REPORTS [1981) 1 S.C.R.

Chapter XII of the Code of Criminal Procedure 1973 deals with
information to the Police, and their powers to investigate. Sec. 156
(1) vests in an officer incharge of a Police Station the power to
investigate any cogni:zable case, without the order of a Magistrate.
Sec. 156(3) authorises a Magistrate, empowered under Sec. 190, to
order an investigation as mentioned in Sec. 156(1). The provisions
B from Sec. 157 onwards are concerned with the power and procedure
for investigation. Sec. 169 prescribes that if upon an investigation \

c
it appears to the officer incharge of the Police Station that there is no
sufficient evidence or reasonable ground of suspicion to justify the
forwarding of the accused to a Magistrate, such officer shall, if such
person is in custody, release him on his executing a bond (with or
without sureties) to appear if and when required, before a Magistrate
J
empowered to take cognizance of an offence on a police report and
to try the accused or commit him for trial. Sec. 170 prescribes that
if upon investigation it appears to the officer incharge of the Police
Station that there is· sufficient evidence or reasonable ground of suspi-
cion to justify the forwarding of the accused to a Magi'strate, such
D
officer shall forward the accused under custody to a 'Magistrate
empowered to take cognizance of an offence on a police report and
to try the accused or commit him for trial. If the offenct<. is bailable
the officer shall take security from him for his appearance before such
Magistrate on a day fixed and for his attendance from day to day
E before such Magistrate until otherwise directed. Sec. 173(1) casts a
duty upon the police officer to complete the investigation without
unnecessary delay. Sec. 173 (2) prescribes that as soon as the investi-
gation is completed the officer incharge of the police station shall
a
forward to Magistrate empowered to take cognizance of an offence
on. a police report, a report h1 the prescribed form stating the various
F particulars mentioned in that 5·ub-section.

Sec. 190(1) which occurs in Chap. XIV (Conditions requisite
for initiation of proceedings) may be extracted at this stage. It is as
follows:

G "190(1) Subject to the provisions -of this Chapter, any
Magistrate of the first class, and any Magistrate of the second
class specially empowered in this behalf under sub-section (2),
may take cognizance of any offence-

(a) upon receiving a complaint of facts which consti-
H tute such offence;

(b) upon a police report of such facts;
H. s. BAINS v. STATE (Chinnappa Reddy, J.) 939

(c) upon information received from any person other A
than a police officer, or upon his own knowledge, that such .
offence has been committed".
What has been extracted is Sec. 190 as it stands at present. Sec. 190
of the previous Code was slightly different. Clause (l)(b) read as
"upon a report in writing of such facts made by any police-officer". B
In clause ( 1)( c) after the word 'knowledge', the words 'or suspicion'
'Occurred, and these words have now been omitted.
Chapter XV (Sections 200 to 203) of the Code deals with
"complaints to Magistrates". A Magistrate taking cognizance of an
· offence on complaint is required by Sec. 200 to examine the com..- c
plainant and the witnesses present, if any. Sec. 202 provides that a
Magistrate taking cognizance of a case upon complaint, may, if he
tbinks 'fit, postponei the issue of process against the accused, and
either inquire into the case himself or direct an investigation to be
made by a police officer or by such other person as he thinks fit, for
the purpose of deciding whether or not there is sufficient ground for D
proceeding. Sec. 203 empowers the Magistrate to dismiss the com-
plaint, if, after considering the statements· on oath (if any) of the
complainant and of the witnesses and the result of the enquiry or
investigation (n any) under Sec. 202, the Magistrate is of the
opinion that there is no sufficient ground for, proceeding. Chapter
XVI deals with "commencement of proceedings before Magistrate" E
and Sec. 204 enables a Magistrate to issue summon& or a warrant
as the case may be to secure the attendance of the accused if in the
-opinion of the Magistrate taking cognizance of the offence there is
,sufficient ground for proceeding.
It is seen from the provisions to which we have referred in the F
-preceding paragraphs that on receipt of a complaint a Magistrate has
·several courses open to him. He may take cognizance of the offence
·and proceed to record the statements of the complainant and the
witnesses present under Sec. 200. Thereafter, n in his opinion there
is no sufficient ground for proceeding he may dismiss the complaint
under Sec. 203. If in his opinion there is sufficient ground for pro- G
ceeding he may issue process under Sec. 204. However, if he thinks
·fit, he may postpone the issue of process and either enquire info the
·case himself or direct an investigation to be made by a Police Officer
·or such ·other person as. he thinks fit for the purpose of deciding
whether or not there is ~ufficient ground for proceeding. He may
·then issue process if in his opini:on there is sufficient ground for H
·proceeding or dismiss the complaint if there is no sufficient ground
for proceeding. On the other hand, in the first instance, on receipt
940 SUPREME COURT REPORTS [1981] l S.C.R.

A of a complaint, the Magistrate may, instead of taking cognizance of
the offence, order an investigation under Sec. 156(3). The police
will then investigate and submit a report under Sec. 173(1). On
receiving the police report the Magistrate may take cognizance of
the offence under Sec. 190(1)(b) and straightaway issue process.
This he may do irrespective of the view expressed by the police in
B their report whether an offence has been made out or not. The
Police report under Sec. 173 will contain the facts discovered or
unearthed by the police and the conclusion drawn by the police
therefrom. The Magistrate is not bound by the conclusions drawn
by the Police and he may decide to issue process even if the Police
recommend that there is no sufficient ground for proceeding further.
c The Magistrate after receiving the Police report, may, without
issuing process or dropf:>ing the proceeding decide to take cognizance
of the offence on the basis of the complaint originally submitted to-
him and proceed to record the statements upon oath of the com-
plainant and the witnesses present under Sec. 200 Criminal Proce-
D dure Code and thereafter decide whether to dismiss the complaint
or issue process. . The mere fact that he had earlier ordered an
investigation under Sec. 156(3) and received a report under Sec. 173
will not have the effe,ct of total effacement of the complaint and
therefore the Magistrate will not be barred from proceeding under
Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a
E complaint, orders an investigation under Sec. 156(3) and receives a
police report under Sec. 173(1), may, thereafter, do one of three
things : ( 1 ) he may decide that there is no sufficient ground for
proceeding further and drop action; (2) he may take cognizance of
the offence under Sec. 190(1) (b) on the basis of the
police report and issue process; this he may do without being bound
F in any manner by the conclusion arrived at by the police in their
report : ( 3) he may take cognizance of the offence under Sec.
190(1)(a) on the basis of the original complaint and proceed to
examine upon oath the complainant and his witnesses under Sec. 200.
If he adopts the third alternative, he may hold or direct an inquiry
under Sec. 202 if he thinks fit. Thereafter he may dismiss the
G complaint or issue process, as the case may be.
In Abhinandan !ha & Ors. v. Dinesh Mishra, (supra) the ques- +
tion arose whether a Magistrate to whom a report under Sec. 173(1)
had been submitted to the effect that no ca~e had been made out
against the accused, could direct the police to file a charge~Slieet, on
ff his disagreeing with the report submitted by the Police. This Court
held that the Magistrate had no jurisdiction to direct the police to
submit a charge-sheet. It was open to the Magistrate to agree or
H. s.. BAINS v. STATE (Chinnappa Reddy, !.) 941

.(lisagree with the police report. If he agreed with the report that A
there was no case made out for issuing process to the accused, he
might accept the report and close the proceedings. If he caine to
the! conclusion that further investigation was necessary he might
make an order to that effect under Sec. 156(3). If ultimately the
Magistrate was of the opinion that the facts set out in the police
report constitnted an offence he could take cognizance of the offence,· B
notwithstanding the contrary opinion of the police expressed in the
report. While expressing the opinion that the Magistrate could take
:cognizance of the offence notwithstanding 1the contrary opinion of the
·police the Court observed that the Magistrate could take cognizance
under Sec. '190(1)(c)'. We do not have any' doubt that the refer-
~nce to 'Sec. 190(1) (c)' was a mistake for 'Sec. 190(1)(b)'. That
c
appears 'to be obvious to us. But Shri Kapil Sibal urged that the
reference was indeed to Sec. 190 (1) ( c) since at that time Sec.
190(1)(c) included the words 'or suspicion' and the Court had
:apparently taken the view that the Magistrate could take cogniz-
ance of the offence not under Sec. 190(1 )(b) as if on a police D
report but under Sec. 190(1)(c) as if 'on suspicion'. We do not
agree with this submission. Sec. 190(1)(c) was never intended to
apply to cases where there was a police report under Sec. 173(1).
We find it impossible to say that a Magistrate who takes cognizance
'Of an offence on the basis of the facts disclosed in a police report
must be said to have taken cognizance of .the offence on suspicion E
and not upon a police report merely because the Magistrate and the
Police arrived at different .conclusions from the facts. The Magis-
trate is not bound by the conclusions· arrived at by the police even
as he is not bound by the conclusions arrived at by the complaipant
.in a complaint. If a complainant states the relevant facts in his
·complaint and alleges that the accused is guilty of an offence under F
:Sec. 307 Indian Penal Code the Magistrate is not bound by the
;conclusion of the complainant. He may think that the facts disclose
an offence under Sec. 324 Indian Penal Code only and he may
take cognizance of an offence under Sec ..324 instead of Sec. 307.
Similarly if a police report mentions that half a dozen persons exa-
mined by them claim to be eye witnesses to a murder but that for G
'Various reasons the witnesses could not be believed, the Magistrate
is not bound to accept the opinion of the police regarding the
eredibiJi,ty of the witnesses. He may prefer to ignore the conclu-
sions of the police regarding the credibility of the witnesses and take
cognizance of the offence. If he does so, it would be on the basis of H
the statements of the witnesses as revealed by the police report. He
woul.d be taking cognizance upon the facts disclosed by the police
942 SUPREME COURT REPORTS [1981] 1 S.C.R.

A report though not on the conclusions arrived at by the police. It
could not be said in such a case that he was taking cognizance on
suspicion.
In Tula Ram & Ors. v. Kishore Singh (supra) the Magistrate,
on receiving a complaint, ordered an investigation under Sec. 156(3).
B The Police submitted a report indicating that no case had been made
out against the accused. The Court, however, recorded the state-
ments of the complainant and the witnesses and issued process
against the accused. It was contended that the Magistrate acted
wrthout jurisdiction in taking cognizance of the case as if upon a
J'
complaint when the police had submitted a report that no case had
c been made out against the accused. This Court held that the Magis-
trate acted within his powers and observed that the complaint did
not get exhausted as soon as the Magistrate ordered an investigation
under Sec. 156(3). We are, therefore unable to a:gree with the sub- ~
mission of Shri Sibal that the Magistrate acted without jurisdiction
in taking cognizance of the offence and issuing process to the
D accused notwithstanding the fact that .the police report was to the
effect that no case had been made out.
We do not propose to say a word about the merits of the case
since it was entirely a matter for the learned Magistrate to take
cognizance or not to take cognizance of the several offences. We
E however wish to observe that it was wholly unnecessary for the
Magistrate to write such an elaborate order as if he was weighing
the evidence and finally disposing of the case. We also desire to
say that some of the observations of the learned Magistrate about the 'ft
Dis.trict Magistrate were wholly uncalled for as the latter was yet
to appear before him as a witness. We are told that the case ha-s
F already been transferred to some other Magistrate. It is, therefore, ~;
unnecessary to say anything further in the matter. The appeal is,
therefore, dismissed.

P.B.R. Appeal dismissed.