Holding

A magistrate may take cognizance of an offence under section 190(1)(b) and issue process even when the police report under section 173(2) states that no case is made out, and is not bound to follow sections 200 or 202.

Summary

India Carat Pvt Ltd filed a complaint alleging cheating and criminal breach of trust by its Divisional Manager, who misappropriated Rs 13.69 lakh. The police investigated and sent a ‘B’ report stating the matter was civil and no offence was made out. The Second Additional Chief Metropolitan Magistrate, ignoring the report, registered a calendar case under IPC sections 408 and 420 and issued summons under CrPC section 204. The respondent challenged this order under CrPC section 482; the Karnataka High Court set it aside, holding the magistrate should have followed sections 200/202 and examined the complainant before issuing process. On appeal, the Supreme Court held that a magistrate may take cognizance of an offence under section 190(1)(b) upon a police report even if the report concludes no case, and may issue process without being bound by the police’s conclusion or the procedures of sections 200/202. Consequently, the High Court’s order was set aside and the magistrate’s order restored.

Issues considered

Whether a magistrate can take cognizance of an offence and issue process under CrPC section 190(1)(b) on the basis of a police report that concludes no offence, without complying with the procedures of sections 200 and 202.
Whether the magistrate had jurisdiction to register a case and issue summons despite the police ‘B’ report.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 173(2), s. 190, s. 200, s. 202, s. 203, s. 204, s. 482
Indian Penal Code, 1860s. 408, s. 420

Subjects

magistrate cognizancesection 190police reportB reportsection 200section 204section 482cheatingcriminal breach of trustjurisdictionprocess issuanceCriminal Procedure CodeSupreme Courtappeal

Judgment

A INDIA CARAT. PVT. LTD.
v.
STATE OF KARNATAKA & ANR.

FEBRUARY 15, 1989

B [R.S. PATHAK, CJ, S. NATARAJAN )I, )o

AND M.N. VENKATACHALIAH, JJ.)

Criminal Procedure Code 1973: Sections 190, 200, 202, 203, 204
and 482-Magistrate directing registration of calendar case under ~/-
Sections 408, 420 !PC and issue of summons-Jurisdiction of Magistrate
c to deal with such complaints-High Court setting aside the Magistrate'"
order-Validity of ·-
~
The appellant gave a report to the Commissioner of Police against
the second respondent, alleging that he had committed the ofll"e11ces of
cheating and criminal breach of trust. It was alleged that th'e :!eCOnd .
D respondent, who was employed by the appellant as its Divisional
Manager (Export-Import) had negotiated on behalf of the eippellant
with an Italian firm for supply of quality granite stones and had
obtained a letter of credit and availing the credit facility, had drawn a
sum of Rs.13,69, 750 and misappropriated the amount. ;.-- '
E A case was registered and investigated, but subsequently the
a
police sent 'B' Report to the Court, stating that further inve:sti:gation
was not required as the case was of a civil nature. Aggrieve1d by the
.
report, the appellant approached the Second Additional Chle:f Metro-
politan Magistrate for quashing the report and for permission to prove

F
the commission of offences by the second respondent. The Magistrate
passed an order for<a calendar case being registered against the :iecond
(
~-
I
-./ -
respondent for offences punishable under Sections 408 and 420 I.P.C.
and for issuing summons to him.

Thereupon the second respondent filed a petition under Section
482 of the Code before the High Court and sought the quashing of the
G order of the Magistrate. The High Court allowed the petitio11 and set
aside the order of the Magistrate on the ground that the Magistrmte had -f..
not followed the procedure for taking cognizance of the case and ussuing
process to the accused after the police had sent a 'B' report in the case.
According to the High Court, the Magistrate should have is8ued notice
to the appellant to find out whether he was disputing the correctness of
H the 'B' report and if so, to comply with the requirements of Section 200 ~

718
INDIA CARAT v. STATE OF KARNATAKA 719

·-..:• ofthetheappellant
Code. The High Court further stated that only after examining
on oath and his witnesses, the Magistrate should have
A
decided whether a case should be registered and process issued to the
accused.

Aggrieved by the High Court's order, the appellant has preferred
~. X this appeal by special leave. B

On behalf of the appellant, it was contended that the second
respondent had no locus to question the order of the Magistrate and
• ":..' · 'that the Magistrate was justilied in taking cognizance of the offence and
\ directing the issue of process to the second respondent.

On behalf of the respondent, it was argued that since the Magis- c
+ trate had not followed the procedure laid down in Section 200 or Section
202, the second respondent was entitled to seek quashing the order of
the Magistrate, and the High Court was right in setting aside the order
of the Magistrate.
D
Allowing the appeal,

HELD: I. On receipt of a complaint a Magistrate has several
. , -+ courses open to him. The Magistrate may take cognizance of the offence
at once and proceed to record statements of the complainant and the
witnesses present under Section 200. After recording those statements, if E
in the opinion of the Magistrate there is no sufficient ground for pro-
ceeding, he may dismiss the complaint nuder Section 203. On the other
hand if in his opinion there isI sufficient ground for proceeding he may
issue process under Section 204. If, however, the Magistrate thinks lit,
---·· . Jlie may postpone the issue of pl"OfesS and either inquire into the case
himself or direct an investigation to be made by the police officer or F
such other person as he thinks fit, for the purpose of deciding whether
or not there is sufficient ground for proceeding. He may then issue
process if in his opinion there is sufficient ground for proceeding or
dismiss the complaint if there is no sufficient ground for proceeding.
Yet another course open to the Msgistrate is that instead of taking
cognizance of the offence and. following the procedure laid down under G
)r Section 200 or Section 202, he may order an investigation to be made by
· the police under Section 156(3). When such an order is made, the police
will have to investigate the matter and submit a report under Section
173(2). On receiving the police report the Magistrate may take cogni-
zance of the offence under Section 190(1)(0) and issue process straight-
away to the accused. The Magistrate may exercise his powers in this H
720 SUPREME COURT REPORTS [1989) 1 S.C.R.

A
behalf irrespective of the view expressed by the police in tl~eir report
whether an offence has been made ont or not. This is because the police
r
report nuder Section 173(2) will contain the facts dismvered or
unearthed by the police as well as the conclusion drawn by the police
therefrom. If the Magistrate is satisfied that upon the facts di1scovered
or unearthed by the police there is sufficient material for him to take
B cognizance of the offence and issue process, the Magistrate may do '](. "
so without reference to the conclusion drawn by the Inv.,stigating
Officer because the Magistrate is not bound by the opinion of the police
officer as to. whether an offence has been made out or no,t. Alter-
nately the Magistrate, on receiving the police report, may without- / ,..
issuing process or dropping the proceeding proceed to act under Section ~
200 by taking cognizance of the offence on tbe basis of the complaint
c originally submitted to him and proceed to record the statement
upon oath of the complainant and the witnesses present and U1ereatler +
decide whether the complaint should be dismissed or process i:bould be
issued. [725D-H; 726A-C)

D 2.1 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(1)(b) of the Code eyen if the
police report is to the effect that no case is made out against the accused.
The Magistrate can take into account the statements of the witnesses +- .-
examined by the police during the investigation and take cognizance of
E the offence complained of and order the issue of process to the accused.
Section 190(1)(b) does not lay down that a Magistrate can take cogni-
zance of an offence only if the investigating officer gives an opinion that -
the investigation has made out a case against the accused. 1rhe Magis-
trate can ignore the conclusion arrived at by the investigatirng officer
and independently apply his mind to the facts emerging 1rrom the(
F investigation and take cognizance of the case, if he thinks lit, in exercise;-- - '>~
of his powers under Section 190(1)(b) and direct the issue of p·rocess to
the accused. The Magistrate is not bound in such a situation to follow
the procedure laid down in Section 200 and 202 of the Code for taking
cognizance of a case under Section 190(l)(b) though it is open to him to
act under Section 200 or Section 202 also. The High Court w11s, there-
G fore, wrong in taking the view that the Second Additio111al Chief
Metropolitan Magistrate was not entitled to direct the registration of a .'f
case against the second respondent and order the issue of summons to
him. [728C-F] ,,

2.2 The fact that in this case the investigation had not originated
H from a complaint preferred to tbe Magistrate but had been made
11
INDIA CARAT v. STATE OF KARNATAKA [NATARAJAN, J.[ 721

pursuant to a report-given to the police would not alter the situation in
A
any manner. Even if the appellant had preferred a complaint before
the Magistrate and the Magistrate had ordered investigation under
Section 156(3), the police would have had to submit a report under
Section 173(2). l728G-H]

K. Sham Rao v. A.R. Diwakar, 11979] 2 Kamataka Law Journal B
441; Nagawwa v. S. Konja/gi, [1976] 3 SCC 736; Abhinandan Jha and
Ors. v. Dinesh Mishra, [1967] 3 SCR 668; H.S. Bains v. State, [1981] l
SCR 935 and Tula Ram & Ors. v. Kishore Singh, 11978] l SCR 615
rflkdon.

Setting aside the order of the High Court and restoring the order
of the Magistrate, this Court directed that the case against the Second C
Respondent shall proceed in accordance with law. [729B-C I
+
I

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 105 of 1989.
D
From the Judgment aud Order dated 31.10.1987 (If the Karna·
taka High Court in Criminal Petition No. 400 of 1986.

M.V. Goswami and B.R.G.K. Achar for the Appellant.

B. Krishna Prasad and P.K. Rao for the Respondents. E

- \
The Judgment of the Court was delivered by

NATARAJAN, J. Special Leave granted.

--· ·f-.. This appeal by special leave is directed against an order of the r
High Court of Karnataka under Sec. 482 Criminal Procedure Code
(For short the Code) setting aside the order ofthe Second Additional
Chief Metropolitan Magistrate, Bangalore directing the registration of
a calendar case against the second respondent under Sections 408 and
420 of the Indian Penal Code and the issue of summons to him under
Section 204 of the Code. G

,:Y So far as the facts are concerned, they are as follows. The appel-
lant gave a report to the Commissioner of Police, Bangalore on
20.2.1980 against the second respondent alleging that he had commit·
ted the offences of cheating and criminal breach of trust. lt was
averred that the second respondent, was its Divisional Manager H
722 SUPREME COURT REPORTS 11989] 1 S.C.R.
A (Export-Import) and had negotiated on its behalf with an Italian firm
in July 1979 for supply of quality granite stones and had obtained a
letter credit. Availing the credit facility, he had drawn a sum of
Rs. 13,59,750 but failed to supply granite stones to the Italian fiirm and
instead had misappropriated the amount.
B /
On the foot of the report, a case was registered against the
second respondent in Ulsoor Police Station as Crime No. 145/1980
under Sections 408 and 420 of the Indian Penal Code and the case was
investigated by Shri Bayar, Inspector of Police. When Shri Bayar went
away on pormotion, his successor took over the investigation but sub-
sequently he sent a "B" Report to the Court stating that further
C investigation was not required as the case was of a civil nature.

Aggrieved by the report sent by the police, the appellant
approached the Second Additional Chief Metropolitan Magistrate,
Bangalore for the report being quashed and permission granted to him
+
D to prove the commission of offences by the second respondent. The
learned Magistrate, after perusing the investigation records came to the
view that a prima-facie case was made out against the second respon-
dent and consequently he passed an order for a calendar case being
registered against him for offences punishable under Sections 408 and
420 of the Indian Penal Code and for summons being issued to him
E under Sec. 204 of the Code.

-
Thereupon, the second respondent filed a petition undler Sec.
482 of the Code before the High Court and sought the quashing of the
order of the Magistrate. The High Court allowed the petition and set
aside the order of the Magistrate on the ground the Magistrate had not
F followed the procedure laid down by the Code for taking cognisance of 1
the case and issuing process to the accused after the police had sent a ...:--
'B' report in the case. The High Court has held that on receipt of th.e
'B' report, the Magistrate should have issued notice to the appellant to
find out whether he was disputing the correctness of the 'B" report
and, if so, to comply with the requirements of Sec. 200 of the Code.
G The High Court has further stated that only after examining the appel-
lant on oath and his witnesses, the Magistrate should have decided
whether a case should be registered and process issued to the accused.
The High Court has referred to the ratio laid down in an earlier case K.
Sham Rao v. A.R. Diwakar, 11979] 2 Kamataka Law Journal 441 and
followed it. Aggrieved by the order of the High Court, the appellant
Jr has come forward with this appeal.

>\,_~
INDIA CARAT v. STAlEOFKARNATAKA [NATARAJAN, J.J 723

Mr. B.R.G.K. Achar, learned counsel for the appellant conten-
A
ded that the second respondent had no locus to question the order of
the Second Additional Chief Metropolitan Magistrate and therefore,
the High Court was in error in entertaining the petition filed by him
under Section 482 of the Code and setting aside the order of the
learned Magistrate. In support of this contention he placed reliance on
the decision in Nagawwa v. S. Konjalgi, [1976] 3 SCC 736. He further B
submitted that .the Second Additional Chief Metropolitan Magistrate
was entitled to take cognizance of the offences alleged to have been
committed by the second respondent and order the issue of process to
him and that the Magistrate's power under Sections 190 and 204 of the
Code could well be exercised without advertance to any possible de-
fence the second respondent may have. The learned counsel also
stated that since the police had made a perfunctory investigation and c
sent a 'B' report stating that the case was of a civil nature, the Magis-
trate was perfectly justified, in the facts and circumstances of the case
in taking cognizance of the offence and directing the issue of process to
the second respondent.
D
Controverting these arguments, the learned counsel for the
respondent submitted that since the police had sent a 'B' report stating
that the investigation disclosed that the dispute between the parties
was only of a civil nature and that no offence has been made out
against the second respondent, the Second Additional Chief Metro-
politan Magistrate, ought to have called upon the appellant to find-out E
whether he was· challenging the police report and if so, to make a
sworn statement and also examine his witnesses and thereafter only
the learned Magistrate should have decided whether cognizance
should be taken of the offences and process issued to the second
respondent. The learned counsel, therefore, argued that since the
----r -.-f .magistrate had not followed the procedure laid down in Section 200 or F
' Section 202, the second respondent was entitled to seek quashing of
the order of the Magistrate and as such the High Court hac. acted
correctly in allowing the second respondent's petition and setting aside
the order of the Magistrate.

Before we examine the contentions of the learned counsel for the G
appellant and the second respondent, we may briefly refer to some of
the provisions in Chapter XII, XIV, XV and XVI of the Code. Section
155 in Chapter XII pertains to information laid to the police regarding
non-cognizable cases and Sub-Section (2) lays down that no police
officer shall investigate a non-cognizable case without the order of a
Magistrate having power to try such case or commit the case for trial. H
724 SUPREME COURT REPORTS [1989] · l S.C.R.

Section 156(1) confers power on an officer in charge of a police station
A
to invetigate any cognizable case without the order of a Magistrate.
Section 156(3) authorises a Magistrate, empowered under Section 190
to order the police to make an investigation as provided for in Section
156(1). The other provisions in the Chapter from Section 157
onwards set out the powers of investigation of the police and the
B procedure to be followed. Section 169 prescribes the procedure to be
followed by an officer in charge of a police station if it appears to him
upon investigation of a case that there is no sufficient evidence or
reasonable ground of suspicion to justify the forwarding of the accused
to a Magistrate. Section 170 prescribes the procedure to be followed
by the officer in charge of a police station if it appears to him upon
investigation that there is sufficient evidence or reasonable ground of
c suspicion
.I
to justify the forwarding of the accused to a Magistrate.
Section 173(1) enjoins a Police Officer to complete the investigation
without unnecessary delay. Section 173(2) lays down that as soon as +
the investigation is completed the officer in charge of a police station
should forward to a Magistrate empowered to take cognizance of an
D offence on a police report, a report in the prescribed form stating the
various particulars mentioned in that Sub-Section.

Chapter XIV deals with the conditions requisite for initiation of
proceedings and as to the powers of cognizance of a Magist1rate. For
our purpose it is enough if we extract Section 190(1) alone.
E
"Section 190(1). Cognizance of offences by Magistrates-
Subject to the provisions of this Chapter, any Magistrate of
the first class, and any Magistrate of the second class spe-
cially empowered in this behalf under sub-section (2), may
talce cognizance of any offence-
F .,,-+- . >--
(a) upon receiving a complaint of facts which consti- ·
tute such offence;

{b) upon a police report of such facts;

G (c) upon information received from any person other
than a police officer, or upon his own knowledge,
that such offence has been committed."

Chapter XV which contains Section 200 to 203 deals with "Com-
plaints to Magistrate". A Magistrate taking cognizance of an offence
H on complaint is required by Section 200 to examine the complaint and
INDIA CARAT v. STATE OF KARNATAKA [NATARAJAN, J.J 725

the witnesses present, if· any. Section 202 provides that a Magistrate
taking cognizance of a case, upon complaint, may, if he thinks fit, A
postpone the issue of process against the accused, and either inquire
into the case himself or direct 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 proceeding.
Section 203 empowers the Magistrate to dismiss the complaint, if after B
considering the statements on oath (if any) of the complainant and of
the witnesses and the result of the inquiry or investigation (if any)
under Section 202, the Magistrate is of opinion that there is no suffi-
cient ground for proceeding.

Chapter XVI deals with "Commencement of Proceedings before
Magistrates" and Section 204 empowers a Magistrate to issue sum- c
mons 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.

From the provisions referred to above, it may be seen that on D
receipt of a complaint a Magistrate has several courses open to him.
The Magistrate may take cognizance of the offence at once and pro-
ceed to record statements of the complainant and the witnesses present
under Section 200. After recording those statements, if in the opinion
of the Magistrate there is no sufficient ground for proceeding, he may
dismiss the complaint under Section 203. On the other hand if in his E
opinion there is sufficient ground for proceeding he may issue process
under Section 204. If, however, the Magistrate thinks fit, he may
postpone the issue of process and either inquire into the case himself
·lor direct an investigation to be made by the police officer or such other
---4· ·rperson as he thinks fit, for the purpose of deciding whether or not
there is sufficient ground for proceeding. He may then issue process if F
in his opinion there is sufficient ground for proceeding or dismiss the
complaint if there is no sufficient ground for proceeding. Yet another
course open to the Magistrate is that instead of taking cognizance of
the offence and following the procedure laid down under Section 200
or Section 202, he may order an investigation to be made by the police
under Section 156(3). When such an order is made, the police will have G
_\-- to investigate the matter and submit a report under Section 173(2). On
receiving the police report the Magistrate may take congnizance of the
offence under Section 190(1)(c) and issue process straightaway to the
accused. The Magistrate may exercise his powers in this behalf irres-
pective of the view expressed by the police in their report whether an
offence has been made out or not. This is because the police report H
726 SUPREME COURT REPORTS [1989] 1 S.C.R.

under Section 173(2) will contain the facts discovered or un-earthed by
A
the police as well as the conclusion drawn by the police thereform. If
the Magistrate is satisfied that upon the facts discovered or unearthed
by the police there is sufficient material for him to take cognizance of
the offence and issue process, the Magistrate may do so without refer-
ence to the conclusion drawn by the Investigating Officer because the
B Magistrate is not bound by the opinion of the police officer as to
whether an offence has been made out or not. Alternately the Magis-
trate, on receiving the police report, may without issuing process or
dropping the proceeding proceed to act under Section 200 by taking
cognizance of the offence on the basis of the complaint miginally
submitted to him and proceed to record the statement upon oath of the
complaint and the witnesses present and thereafter decide whether the
c complaint should be dismissed or process should be issued.
t
Since in the present case the Second Additional Chief Metropoli-
tan Magistrate has taken cognizance of offences alleged to have been
committed by the second respondent and ordered issue of process
D without first examining the appellant and his witnesses, the question
for consideration would be whether the Magistrate is entitled under
the Code to have acted in that manner. The question need not detain
us for long because the power of a Magistrate to take cognizance of
an offence under Section 190(1)(b) of the Code even when the police
report was to the effect that the investigation has not made out any
E offence against an accused has already been examined and s,et out by
this Court in Abninandan Iha & Ors. v. Dinesh Misra, [1967] 3 SCR
668 and H.S. Bains v. State, [1981] 1 SCR 935. In Abhinandan Iha &
Ors. v. Dinesh Misra, (supra) the question arose whether a Magistrate
-
to whom a report under Section 173(2) had been submitted to the
effect that no case had been made out against the accused, could direc~..
F the police to file a charge-sheet, on 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 but it was
open to the Magistrate to agree or disagree with the police report. If he
agreed with the report that there was no case made out for issuing
process to the accused, he might accept the report and close the pro-
G ceeclings. If he· came to the conclusion that further investigation was
necessary he might. make an order to that effect under Section 156(3)
and if ultimately the Magistrate was of the opinion that the facts set
out in the police report constituted an offence he could take cogni-
zance of the offence, notwithstanding the contrary opinion of the
police expressed in the report. While expressing the opinion that ·the
H Magistrate could take cognizance of the offence, notwithstanding the
INDIA CARAT v. STATE OF KARNATAKA [NATARAJAN, J.I 727

contrary opinion of the p()lice, the Court observed that the Magistrate
A
could take cognizance under Section '190(l}(c)'. The reference to Sec-
tion 190(1)(c) was a mistake for Section 190(l}(b} and this.has been
pointed out in H.s.· Bains (supra).

In the case of H.S Bains (supra) one Gumam Singh submitted a
complaint to the Judicial Magistrate 1st Class, Chandigarh alleging B
that H.S. Bains trespassed into his house along with two others on
11-8-1979 at about 8 a.m. and threatened to kill him and his son. The
-. Magistrate directed the police under Section 156(3) of the Code to
f. make an investigation. After completing the investigation, the police
! submitted _a report to the Magistrate under Section 173(2) of the Code
stating that the case against the accused was not true and that the case
may be dropped. The learned Magistrate disagreed with the conclu-
c
t sion of the police and took cognizance of the case under Sections 448
and 506 of the Indian Penal Code and directed the issue of process to
the accused. Thereupon, the accused moved the High Court for quash-
ing the proceedings before the Magistrate. As the High Court declined
to interfere, the accused approached this Court by way of appeal by D
special leave. Various contentions were advanced on behalf of the
accused and one of them was that the Magistrate was not competent to
,,, -f take cognizance of the case upon the police report sing: the report was
to the effect that no offence had been committed by the accused. It was
further urged that if the Magistrate was not satisfied with the police
report, there were only two courses open to him, viz. either to order a E
further investigation of the case by the police or to take cognizance of
the case himself as if upon··a complaint and record the statements of
the complainant and his witnesses under Section 200 of the Code and
). then issue process if he was satisfied that the case should be proceeded
~..., ---r with. Repelling those contentions this Court held as follows:
F
"The Magistrate is not bound by the conclusions arrived at
by the police evert as he is not bound by the conclusions
arrived at by the complainant in a complaint. If a complain-
ant states the relevant facts in his complaint and alleges
that the accused is giiilty of an offence under Section 307
Indian Penal Code the magistrate is not bound by the con- G
clusion of the complainant. He may think that the facts
disclose an offence under Section 324 Indian Penal Code
only and he may take congnizance of an offence under
Section 324 instead of Section 307. Similarly if a police
report mentions that half a dozen persons examined by
them claim to be eye witnesses to a murder but that for H
728 SUPREME COURT REPORTS [1989) 1 S.C.R.

various reasons the witnesses could not be believed, the
A
Magistrate is not bound to accept the opinion of the police
'regarding the credibility of the witnesses. He may prefer to
ignore the conclusions of the police regarding the credibi-
lity of the witnesses and take cognizance of the offence. If
he does so, it would be on the basis of the st.atements of the
B witnesses as revealed by the police report. He would be
taking cognizance upon the facts disclosed by the police
report though not on the conclusions arrived at by the
police."

The position is, therefore, now well settled that upon receipt of a
police report under Section 173(2) a Magistrate is entitled to take
c 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. The Magistrate 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
D to the accused. Section 190(l)(b) does not lay down that a Magistrate
can take cognizance of an offence only if the investigating officer gives
an opinion that the investigation has made out 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, if he
E thinks fit, in exercise of his powers under Section 190(1)(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 Section 200 and 202 of ..
the Code for taking cognizance of a case under Section 190(1)(b)
though it is open to him to act under Section 200 or Section 202 also.
The High Court was, therefore, wrong in taking the view that the
F Second Additional Chief Metropolitan Magistrate was not entitled to
direct the registration of a case against the second respondent and
order the issue of summons to him.

The fact that in this case the investigation had not originaled
from a complaint preferred to the Magistrate but had been made
G pursuant to a report given to the police would not alter the situation in
any manner. Even if the appellant had preferred a complaint before -j.
the learned Magistrate and the Magistrate had ordered investigation
under Section 156(3), the police would have had to submit a report
under Section 173(2). It has been held in Tula Ram & Ors. v.. Kishore
Singh, [1978] 1 SCR 615 that if the police, after making an investiga-
H · tion, send a report that no case was made out against the accused, the
INDIA CARAT v. STATE OF KARNATAKA [NATARAJAN, J.] 729

Magistrate could ignore the conclusion drawn by the police and take A
cognizance of a case under Section 190(1)(b) and issue process or in
the alternative he can take cognizance of the original complaint and
examine the complainant and his witnesses and thereafter issue
process to the accused, if he is of opinion that the case should be pro-
ceeded with.
B
In the light of our conclusion, the appeal succeeds and the order
of the High Court is set aside. The order of the Second Additional
Chief Metropolitan Magistrate, Bangalore will stand restored and the
case against the second resondent will be proceeded further in accor-
dance with law.
c
G.N. Appeal allowed.
t

...