What is the object of examination of an accused under Section 313 of the Code?

LATEST SUPREME COURT JUDGMENTS

The section itself declares the object in explicit language that it is “for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him”. In Jai Dev v. State of Punjab, AIR 1963 SC 612, Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:

“The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.”

Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the Court in reaching the final conclusion.

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Court`s Power to issue warrant against an accused on his failure to attend on the date of hearing

Issuing Non-bailable Warrant by the Criminal Court to secure the attendance of the Accused

It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted.

The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is No. gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual’s rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Justice Cardozo puts it “on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.” Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter-alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding. Also See: State of U.P. v. Poosu and Anr., (1976) 3 SCC 1

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Power to summon material witness or examine person present by Criminal Court u/s 311 of Cr.P.C

Cr.P.C Sec 311- Power to summon material witness, or examine person present

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person if his evidence appears to it to be essential to the just decision of the case.”


Anatomy of the section 

  1. Any Court [Not Judge/Magistrate]
  2. Power to summon material witness
  3. or examine person present
  4. Any Stage
  5. Any Inquiry
  6. Any Trial
  7. Other Proceeding
  8. Essential for the case
  9. Just decision
  10. For evidence

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Section 231 of Cr.P.C- Evidence for prosecution

Code of Criminal Procedure

Cr.P.C

231. Evidence for prosecution

(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.

(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.


COMMENT

Before commencing a trial, a Sessions Judge must satisfy himself that all necessary evidence is available. If it is not, he may postpone the case, but only on the strongest possible ground and for the shortest possible period. Once the trial commences, he should, except for a very pressing reason which makes an adjournment inevitable, proceed de die in them until the trial is concluded [AIR 1984 SC 618]

In trials before a Court of Session the prosecution “shall be conduced by a Public Prosecutor.” Section 226 of the Code enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused. If he knew at that stage itself that certain persons cited by the investigating agency as witnesses might not support the prosecution case he is at liberty to state before the Court that fact. Alternatively, he can wait further and obtain direct information about the version which any particular witness might speak in Court. If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.

When the case reaches the stage envisaged in S. 231 of the Code the Sessions Judge is obliged “to take all such evidence as may be produced in support of the prosecution.” It is clear from the said Section that the Public Prosecutor is expected to produce evidence “in support of the prosecution” and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the Court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution for relieving itself of the strain of adducing repetitive evidence on the same point but also helps the Court considerably in lessening the workload. Time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice[(2000) 7 SCC 490 ]

In Masalti vs. State of Uttar Pradesh, AIR 1965 SC 202. It is contextually apposite to extract the following observation of the Bench: “It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court.”

In Shivaji Sahabrao Bobade vs. State of Maharashtra (1973) 2 SCC 793, Krishna Iyer J., speaking for a three Judge Bench had struck a note of caution that while a Public Prosecutor has the freedom to pick and choose witnesses he should be fair to the Court and to the truth.

Further Investigation

It is settled law that carrying out further investigation even after filing of the charge-sheet is a statutory right of the Police, (vide K. Chandrasekhar vs. State of Kerala and Others, (1998) 5 SCC 223.) The material collected in further investigation cannot be rejected only because it has been filed at the stage of trial. The facts and circumstances show that the trial Court is fully justified to summon witnesses examined in the course of further investigation. It is also clear from Section 231 of the Cr.P.C. that the prosecution is entitled, to produce any person as witness even though such person is not named in the earlier charge-sheet.

Section 408 of Cr.P.C: Power of Sessions Judge to transfer cases and appeals

408. Power of Sessions Judge to transfer cases and appeals

(1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.

(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested or on his own initiative.

(3) The provisions of sub-sections (3), (4), (5), (6), (7) ,and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub­section (1) of section 407, except that sub-section (7) of that section shall so apply as if for the words “one thousand” rupees occurring therein, the words “two hundred and fifty rupees” were substituted.

General Rules applicable to Criminal Trials

36. Defence at State expense: – (1) Sessions Judges and Magistrates shall inform every accused person who appears before them and who is not represented by an Advocate on account of his poverty and indigence, that he is entitled of free legal service at the cost of the State, unless he is not willing to take advantage of it. It is not necessary that the accused should apply for legal aid. If the Court is satisfied that the accused has no sufficient means to engage an Advocate, it shall assign an Advocate for his defence at the expense of the State.

(2)(a) The Sessions Judge shall prepare a panel of Advocates to defend the accused, who has no sufficient means to engage an Advocate in a trial before the Court of Session from among the Advocates practising in the Court of Session.

(b) The panel of Advocates shall be known as “State Brief Panel” and consists of the following two categories, viz.,

Category No. 1: – Advocates of not less than 5 years standing in the Bar to defend an accused, who is charged with an offence punishable with death or life imprisonment or any complicated or sensational case.
Category No. 2: – Advocates with not less than 2 years standing in the Bar to defend the accused person, who has been charged with an offence punishable with a sentence other than death or imprisonment for life.
(c) In the Court of Additional Sessions Judges or Assistant Judges working at outlying stations or Magistrates, a State Brief Panel shall be prepared by such Judge or Magistrate, subject to the approval of the Sessions Judge.

(d) The “State Brief Panel” shall be prepared once in a year in the order of seniority of Advocates.

(3) Court to decide as to the number of Advocates to be engaged: – Where in a trial there are several accused not represented by an Advocate or Advocates, only one Advocate shall be assigned for the defence of all such accused:

Provided that, if the Court having regard to the nature of the defence of the different accused persons considers that it would not be desirable in the interests of justice to entrust the defence of all the accused persons to a single Advocate, as many Advocates as the Court considers necessary may be assigned.

(4) Facilities to be allowed to Advocates:- Advocates assigned by the Court to defend an accused shall be furnished with all the necessary papers and records and allowed sufficient time to prepare the case for the defence of the accused.

(5) (1) Fees Payable to the Advocates: – The Sessions Judge may sanction payment of fee to each Advocate so assigned at the following rates:-
(i) not exceeding Rs. 50/- for each day of the trial, where an accused is charged with an offence punishable with death or imprisonment for life. Provided that the fee payable to an advocate for the whole case shall not in the aggregate exceed Rs. 500/-.

(ii) not exceeding Rs. 25/- for each day of the trial, where an accused is charged with an offence other than an offence punishable with death or imprisonment for life. Provided that the fee payable to an Advocate for the whole case shall not in the aggregate exceed Rs. 250/-.

(5) (2) The Additional Sessions Judge or the Assistant Sessions Judge or the Magistrates working in the outlaying stations shall exercise the powers mentioned in sub-rule (1) in respect of Advocates before them.

37. One of the accused may be permitted to represent the other: – Criminal Courts may in cases where there are more accused than one, permit anyone of them to be authorised by any other to represent that other in any Criminal Proceeding ; but the authorisation shall be in writing and shall contain the signature of the person giving it and shall be filed in Court.

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CHARGE SHEET OF MUMBAI TERROR ATTACK CASES 26TH NOVEMBER 2008

FINAL FORM / REPORT

(Under Section 173 Cr.P.C.)

IN THE COURT OFADDL. CH. M.M., 37TH COURT, ESPLANADE, MUMBAI

The Chief Investigating Officer of the sensational and diabolic attacks by the terrorists at different iconic locations in Mumbai on 26th November 2008, hereby submits a report under Section 173 of Criminal Procedure Code, 1973 as under.A heinous criminal conspiracy has beenplanned and hatched in Pakistan by the internationally banned Lashkar-e-Taiba to execute a series of attacks at prominent places in Mumbai, the financial capital of the country on 26thNovember 2008. This was with the express intention to destabilize India, wage war against this country, terrorize its citizens, create financial loss and issue a warning to other countries whose citizens were also targetted , humiliated and cold-bloodedly killed. This Fidayeen Mission was part of a larger criminal conspiracy planned in Pakistan for attacking the commercial capital of India with intent to wage war, to weaken India economically and to create terror and dread amongst the citizens of the Mumbai metropolis in particular and India in general and, thereby, through the said unlawful activities its perpetrators committed terrorist acts.

Lashkar-e-Taiba (Lashkar-e Tayyiba; literally means Army of the Good, translated as Army of the Righteous, or Army of the Pure) — also pronounced and spelt as Lashkar-i-Tayyaba, Lashkar-e-Tayyaba, Lashkar-e-Tayyiba, Lashkar-i-Taiba, or LeT — is one of the largest, most active and lethal militant organizations in South Asia.Lashkar-e-Taiba – “The Army of the Pure” is a militant offshoot of Markaz-ud-Dawa-wal- Irshad (MDI), an Islamic fundamentalist organization. Markaz-ud-Dawatul-wal- Irshad has since been renamed as Jamaat-ud-Dawa.It was founded by Hafiz Muhammad Saeed and Zafar Iqbal in the Kunar province of Afghanistan in 1989. It has its headquarter at Muridke near Lahore, Pakistan. It operates numerous training camps in Pakistan occupied Kashmir as well as in other parts of Pakistan. Lashkar has forged cooperative and operational ties with religious militant groups throughout the Middle East, South East Asia and also in other parts of the world.The Militant group’s defining objective is to Islamicise South Asia with its main aim being freedom for Muslims in India-administered Kashmir.The Lashkar-e-Taiba is banned as a terrorist organization by India, Pakistan, the United States, the United Kingdom, the European Union, Russia, Australia besides a host of other countries. Hafiz Saeed has been listed as the leader of the Lashkar-e-Taiba. The United Nations Security Council has also listed Zaki-ur-Rehman Lakhvi, Haji Mohammad Ashraf, and Mahmoud Mohammad Ahmed Bahaziq as senior members of the Lashkar-e-Taiba.Zaki-Ur-Rehman Lakhvi is listed as the terror group’s chief of Anti-India operations. Haji Mohammed Ashraf is the group’s chief of finance whereas Mahmoud Mohammed Bahaziq, a Saudi national who served as the leader of Lashkar-e-Taiba in Saudi Arabia, is a senior financier. Jamaat – Ud – Dawa has been recently declared as a terrorist front group by the United Nations (UN) as per its Resolution 1267. UN believes that this organization also supports Al-Qaeda and the Taliban.

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Supreme Court redefined and explained the role of Public and Private prosecutors in case of Sessions Trial

The scope of the role of Public prosecutor and Private prosecutor in case of sessions Trial

we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872.

Rekha Murarka Versus The State of West Bengal and Anr-20/11/2019

ACT: Section 301(2) read with 24(8) of Criminal Procedure Code

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1727 OF 2019 [Arising out of SLP (Crl.) No. 7848 of 2019]

Rekha Murarka …..Appellant

Versus

The State of West Bengal and Anr. …..Respondents

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

1. Leave granted.

2. This appeal arises out of judgment dated 29.07.2019 passed by the Hon’ble High Court of Calcutta in revisional application C.R.R. No. 2357 of 2018, affirming the order dated 25.07.2018 passed by the Additional District and Sessions Judge, Fast Track Court, Calcutta rejecting an application filed by the Appellant herein, the de facto Complainant in Sessions Case No. 43 of 2014.

The brief facts giving rise to this appeal are as follows:

3.1 The Appellant herein is the widow of one Gyan Prakash Murarka (“the deceased”), who is alleged to have been stabbed and murdered by Respondent No. 2 herein on 16.01.2014. The Appellant is also said to have sustained serious injuries while trying to save her husband. Bowbazar Police Station Case No. 19 of 2014 came to be registered against Respondent No. 2 and on 18.12.2015, charges was framed against him for the commission of offences punishable under Sections 302 and 326 of the Indian Penal Code, 1860. Respondent No. 2 pleaded not guilty and the trial began before the Sessions Court.

3.2 While the evidence was being recorded, the Appellant sought an expeditious trial of the case vide C.R.R. No. 833 of 2016, which was allowed on 09.03.2016. Subsequently, on 10.07.2018, she filed another application under Section 301 read with the proviso to Section 24(8) of the Code of Criminal Procedure, 1973 (“the CrPC”) praying for the following reliefs:

“(a) to advance oral argument in support of question of law and fact only after the learned Public Prosecutor, if so required;

(b) to raise objection in case any irrelevant question is put to any prosecution witness, if so required;

(c) to examine the prosecution witnesses only after the learned Public Prosecutor, if so required;

(d) to cross­examine the defence witnesses, if adduced, only after the learned Public Prosecutor, if so required;

(e) to assist the process of justice in accordance with law;

(f) pass such further or other order(s) and/or direction(s) as it may deem fit and proper.”

3.3 Vide order dated 25.07.2018, the learned Additional District and Sessions Judge, Fast Track Court, Calcutta rejected the said prayer. This was done on the basis that the right of a victim or private individual to participate in the prosecution of a Sessions trial is restricted, and the prosecution is subject to the control of the Public Prosecutor. It was observed that Section 301 of the CrPC does not have an overriding effect over Section 225, which mandates that the prosecution be conducted by the Public Prosecutor. However, in view of Section 301(2) of the CrPC, the learned Judge gave permission to the de facto Complainant to furnish written arguments after the completion of the arguments of the prosecution.

3.4 This order was challenged before the Hon’ble High Court of Calcutta in C.R.R. No. 2357 of 2018. Vide the impugned judgment dated 29.07.2019, the High Court affirmed the order of the Sessions Judge, discussing the crucial role played by the Public Prosecutor in a Sessions trial. Alluding to Section 225 of the CrPC, it was held that the mandate therein that a Sessions trial shall be conducted by a Public Prosecutor is unequivocal and cannot be diluted by the proviso to Section 24(8), which allows the victim to engage a counsel to assist the prosecution. Drawing a distinction between assisting the prosecution and conducting it, the High Court took note of instances where allowing a free hand to the victim’s counsel may hamper the prosecution’s case and impact the fairness of the trial. In view of this, it was held that the request of the victim’s counsel to cross­ examine the defence witnesses after the Public Prosecutor could not be allowed. Accordingly, C.R.R. No. 2357 of 2018 was dismissed. Hence, this appeal.

4. Learned Senior Counsel for the Appellant drew our attention to the relevant provisions in the CrPC, i.e. Sections 301 and 302, the proviso to Section 24(8) and Section 2(w)(a). He argued that these provisions should be read together, and Section 301 should not be read as a bar to Section 24(8) so as to limit the role of the victim’s counsel to mere filing of written arguments. Alluding to the Report of the Malimath Committee on Reforms of Criminal Justice System, 2003 and that of the Madhav Menon Committee on Victim Orientation to Criminal Justice, 2007, he emphasized how victims had been neglected in the criminal justice system. He argued that the 2009 amendment introducing the proviso to Section 24(8) to the CrPC was made in this context, so as to account for instances where the Public Prosecutor may shirk his responsibility or make an omission by oversight.

Relying on the  decisions of several High Courts in Sathyavani Ponrani v. Samuel Raj & Ors. 2010 (2) MWN (Cr.) 273, Shankar v. State of Karnataka & Ors. (2013) 2 AIR Kant R 265, Lokesh Singh v. State of Uttar Pradesh (2013) 83 ACC 379, Uma Saha v. State of Tripura 2014 SCC OnLine Tri 859, Suneel Kumar Singh v. State of Uttar Pradesh 2019 SCC OnLine All 957, and Khumukcham Nikita Devi v. State of Manipur (2017) 176 AIC 839, he argued that the role of the victim’s counsel should extend to putting questions to victims, raising objections to irrelevant questions put by the Public Prosecutor, and making oral arguments in addition to those made by the Public Prosecutor.

5. Per contra, learned Senior Counsel for Respondent No. 1, the State of West Bengal, emphasized that a crucial role has been envisaged for a Public Prosecutor under the scheme of the CrPC. He submitted that the Public Prosecutor is an officer of the Court and a minister of justice, as evident from the mandate placed upon him under Section 225 of the CrPC to conduct a Sessions trial. He argued that the role of such a person cannot be diluted by allowing the victim’s counsel, who may be relatively inexperienced at times, to conduct the prosecution with a free hand. Further, he argued that the use of the words “under this sub­section” in the proviso to Section 24(8) implies that the engagement of a victim’s counsel is only with respect to a Special Public Prosecutor, which is the subject matter of Section 24(8), and not beyond. As regards the Committee Reports mentioned supra leading to the 2009 amendment, he submitted that the replacement of the initially proposed phrase “cooperate with the prosecution” in the proviso to Section 24(8) with “assist the prosecution” indicates a deliberate intention to have a limited role for the victim’s counsel. At the same time, acknowledging the reasons for ensuring greater participation of the victim in the prosecution, he submitted that the extent of the counsel’s assistance should be limited and subject to the permission of the Public Prosecutor. In this regard, he relied on the decision of the Tripura High Court in Uma Saha v. State of Tripura, 2014 SCC OnLine Tri 859 and submitted that in instances where an issue of importance is raised by the victim’s counsel, such as the Public Prosecutor failing to examine or cross­examine a witness properly, the victim’s counsel can suggest some questions to the Court, which may then pose them to the witness, if deemed necessary.

6. Heard learned Senior Counsel representing both the parties.

7. In light of the arguments advanced, the main question to be considered is the extent to which a victim’s counsel can participate in the prosecution of a case. Since this is closely tied with the role that is envisaged for the Public Prosecutor, we will first deal with the same.

8. In our criminal justice system, the Public Prosecutor occupies a position of great importance. Given that crimes are treated as a wrong against the society as a whole, his role in the administration of justice is crucial, as he is not just a representative of the aggrieved person, but that of the State at large. Though he is appointed by the Government, he is not a servant of the Government or the investigating agency. He is an officer of the Court and his primary duty is to assist the Court in arriving at the truth by putting forth all the relevant material on behalf of the prosecution. While discharging these duties, he must act in a manner that is fair to the Court, to the investigating agencies, as well to the accused. This means that in instances where he finds material indicating that the accused legitimately deserves a benefit during the trial, he must not conceal it. The space carved out for the Public Prosecutor is clearly that of an independent officer who secures the cause of justice and fair play in a criminal trial.

9. In light of this exposition, we find it useful to advert to certain provisions of the CrPC that highlight the role of a Public Prosecutor and the prerequisites for a person holding that office, most significant amongst which is Section 24:

“24. Public Prosecutors– (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be…

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor…

only if he has been in practice as an advocate for not less than seven years.

(8) The Central Government or the State Government may appoint, for the purpose of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub­section.”

(emphasis supplied)

Other important provisions are as follows:

“225. Trial to be conducted by Public Prosecutor– In every trial before a Court of Session, the prosecution shall be conducted by a Public

Prosecutor.

x x x

301. Appearance by Public Prosecutors– (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case

is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

302. Permission to conduct prosecution– (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than police officer below the rank of Inspector; but no person, other than the Advocate­General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission…

(2) Any person conducting the prosecution may do so personally or by a pleader.”

10. From a reading of these provisions, it is clear that a Public Prosecutor is entrusted with the responsibility of conducting the prosecution of a case. That this is a crucial role is evident from conditions such as in Section 24(7), which stipulates a minimum legal experience of seven years for a person to be eligible to be a Public Prosecutor. It is further clear from a joint reading of Section 301 and the proviso to Section 24(8) that the two provisions are mutually complementary. There is no bar on the victim engaging a private counsel to assist the prosecution, subject to the permission of the Court.

11. Contrary to the argument made by learned Senior Counsel for Respondent No. 1, we do not find that the use of the words “under this sub­section” in the proviso to Section 24(8) implies that a victim’s counsel can only be engaged to assist a Special Public Prosecutor. Such an interpretation would go against Section 301(2), which makes the pleader instructed by a private person subject to the directions of the Public Prosecutor or the Assistant Public Prosecutor.

In our considered opinion, a harmonious reading should be given to these provisions to give them full effect. Furthermore, credence should be given to the overall emphasis on victimology underlying the 2009 Amendment Bill, as reflected in its Statement of Objects and Reasons:

“Statement of Objects and Reasons.– The need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite sometime. The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th Report and its recommendations have been found very appropriate, particularly those relating to provisions concerning… victimology…

2. … At present victims are the worst sufferers in a crime and they don’t have much role in the Court proceedings. They need to be given certain rights and compensation so that there is no distortion of the criminal justice system.”

In view of this context and the provisions of the CrPC, there appears to be no justifiable basis for applying the provision only with respect to Special Public Prosecutors. Thus, we find that the assistance given by the victim’s counsel is meant to be given to the prosecution in general.

12. In light of this, we now proceed to consider the extent to which such assistance can be accorded. As mentioned supra, learned Senior Counsel for the Appellant has argued that there may be instances where the Public Prosecutor may fail to perform his functions properly, whether deliberately or due to oversight, which may obstruct justice instead of furthering it. To meet the ends of justice in such cases, he submitted that the role of the victim’s counsel should not be limited to filing of written arguments as provided with respect to pleaders engaged by private parties under Section 301(2). Instead, it should extend to making oral arguments and examining witnesses as well. On a perusal of the arguments advanced and the decisions relied on by both the parties, we find that such a broad mandate for the victim’s counsel cannot be given effect, as it is not rooted in the text of the Cr.PC.

12.1 The use of the term “assist” in the proviso to Section 24(8) is crucial, and implies that the victim’s counsel is only intended to have a secondary role qua the Public Prosecutor. This is supported by the fact that the original Amendment Bill to the CrPC had used the words “co­ordinate with the prosecution”. However, a change was later proposed and in the finally adopted version, the words “co­ordinate with” were substituted by “assist”. This change is reflective of an intention to only assign a supportive role to the victim’s counsel, which would also be in consonance with the limited role envisaged for pleaders instructed by private persons under Section 301(2). In our considered opinion, a mandate that allows the victim’s counsel to make oral arguments and cross­examine witnesses goes beyond a mere assistive role, and constitutes a parallel prosecution proceeding by itself. Given the primacy accorded to the Public Prosecutor in conducting a trial, as evident from Section 225 and Section 301(2), permitting such a free hand would go against the scheme envisaged under the CrPC.

12.2 In some instances, such a wide array of functions may also have adverse consequences on the fairness of a trial. For instance, there may be a case where the Public Prosecutor may make a strategic call to examine some witnesses and leave out others. If the victim’s counsel insists upon examining any of the left out witnesses, it is possible that the evidence so brought forth may weaken the prosecution case. If given a free hand, in some instances, the trial may even end up becoming a vindictive battle between the victim’s counsel and the accused, which may further impact the safeguards put in place for the accused in criminal trials. These lapses may be aggravated by a lack of advocacy experience on the part of the victim’s counsel. In contrast, such dangers would not arise in the case of a Public Prosecutor, who is required to have considerable experience in the practice of law, and act as an independent officer of the Court. Thus, it is important to appreciate why the role of a victim’s counsel is made subject to the instructions of the Public Prosecutor, who occupies a prime position by virtue of the increased responsibilities shouldered by him with respect to the conduct of a criminal trial.

12.3 At the same time, the realities of criminal prosecutions, as they are conducted today, cannot be ignored. There is no denying that Public Prosecutors are often overworked. In certain places, there may be a single Public Prosecutor conducting trials in over 2­3 courts. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted. A victim­centric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps. To this extent, we agree with the submission made by the learned Senior Counsel for the Appellant that the introduction of the proviso to Section 24(8) acts as a safety valve, inasmuch as the victim’s counsel can make up for any oversights or deficiencies in the prosecution case. Further, to ensure that the right of appeal accorded to a victim under the proviso to Section 372 of the Cr.P.C. is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim’s counsel while assisting the prosecution. However, while doing so, the balance inherent in the scheme of the CrPC should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted.

12.4 In this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. Though we cannot detail and discuss all possible scenarios that may arise during a criminal prosecution, we find that a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross­examine witnesses. As stated in Section 301(2), the private party’s pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim’s counsel under the proviso to Section 24(8), as it adequately ensures that the interests of the victim are represented. If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the CrPC, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim’s counsel.

12.5 However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872.

In this regard, we agree with the observations made by the Tripura High Court in Smt.Uma Saha v. State of Tripura (supra) that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.

13. In view of the foregoing discussion, we find that the High Court was correct in dismissing the application made by the Appellant seeking permission for her counsel to cross­examine witnesses after the Public Prosecutor. However, in future, if the Sessions Judge finds that the assistance of a private counsel is necessary for the victim, he may permit it keeping in mind the observations made supra. The instant appeal is dismissed accordingly.

J. (Mohan M. Shantanagoudar)

J. (Deepak Gupta)

New Delhi;

November 20, 2019.

Jyotsna Roy -VS- State of West Bengal & Ors [CHC] 15/11/2019

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

SL-3 15.11.2019
Court No.1
KB/G.S.D

Calcutta High Court
In the Circuit Bench at Jalpaiguri
WPA 201 of 2019

CAN 1 of 2019

Jyotsna Roy -VS- State of West Bengal & Ors.

Appearance: 

Mr. Arjun Chowdhury
… for the petitioner

Mr. Subir Kr. Saha
Mr. Bikramaditya Ghosh
… For the State

Mr. Samir Pal

    … For the Respondent Nos. 2 and 6

Party/Parties is/are represented in the order/orders of their name/names as printed above in the cause title.

Abundant documents are placed on behalf of both the petitioner and the Investigating Officer, i.e. the State respondents, connected to the alleged cause of death of the writ petitioner.

This Court also notices the order of the Hon’ble Single Bench dated September 11, 2019 directing, inter alia, the Investigating Agency to file a complete Report on the investigation on November 5, 2019 before the Hon’ble Bench.

Today, Mr. Chowdhury, Learned Advocate, appears for the petitioner and assails the Report of the Investigating Officer of the Siliguri (T), GRP dated September 9, 2019 as filed before Court.

However, Mr. Ghosh, Learned State Counsel, points out that the Report dated September 9, 2019 has since been superseded by filing a Final Report under the Code of Criminal Procedure dated 14th November, 2019 again by the self-same Investigating Officer, without being able to draw a conclusion with regard to the investigation. This Court has also heard Mr. Pal, Learned Counsel, appearing for the RPF.

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

For the above reasons, the parties and, particularly the petitioner, is permitted to revert to the Court with appropriate instructions on the next date.

Let this matter appear before the next available Circuit Bench, subject to its convenience, along with the connected application.

(SUBRATA TALUKDAR  J. )

15.11.2019


Original order :

Jyotsna Roy -VS- State of West Bengal & Ors.[PDF]

Abhinandan Jha and others Vs Dinesh Mishra-17/04/1967

SUPREME COURT OF INDIA JUDGMENTS

It will be seen that the Code, as such does not use the expression ‘charge-sheet’ or ‘final report’. But is understood in the Police Manual containing Rules and Regulations, that a report by the police, filed under Section 170 of the Code(Old), is referred to as a ‘charge-sheet’. But in respect of the reports sent under Section 169(old) 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’.

AIR 1968 SC 117 : (1967) 3 SCR 668 : (1968) CriLJ SC 97

SUPREME COURT OF INDIA

Abhinandan Jha and others Versus Dinesh Mishra

AND

Roopchand Lal and another
Appellant

Versus

State of Bihar and another
Respondent

(Before : M. Hidayatullah And C. A. Vaidialingam, JJ.)

Criminal Appeals Nos. 218 and 238 of 1966, Decided on : 17-04-1967

Final report—Disagreement by Magistrate—Procedure—Magistrate has no power to direct the Police to submit charge sheet—He can only either direct further investigation or take cognizance of offence.

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 Section 190(1)(c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed.

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 Section 156(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 Section 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 Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report.

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 169 of the Code, that there is no case made out for sending up an accused for trial.

Counsel for the Parties:

M/s B. P. Jha and Subhag Mal Jain, Advocates, for Appellants (In Cr. A. No. 218 of 1966)

M/s. Nuruddin Ahmed and R. C. Prasad, Advocates, for Appellants (In Cr. A. No 238 of 1966)

Mr. U. P. Singh, Advocate, for the Respondents (In both the Appeals) .

Judgment

Vaidialingam, J—The common question, that arises for consideration, in these two criminal appeals, by special leave, is as to whether a Magistrate can direct the police to submit a charge-sheet, when the police, after investigation into a cognizable offence, had submitted a final report, under Section 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.

2. In Criminal Appeal No. 218 of 1966, the respondent, Dinesh Mishra, lodged a first information report, on June 3, 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 Section 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 Oct. 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 Section 173 (1) of the Code. The petitioners in this appeal challenge these orders.

3. Similarly, in Criminal Appeal No. 238 of 1966, the second respondent therein, had lodged a written report, on February 24, 1964, before the police, at Malasalami 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 Section 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 had stated that she had, of her own accord, eloped; and therefore the police stated that the case might be treated as closed.

4. The second respondent filed a ‘protest petition’ in Court, challenging the statements of the police and he also flied a complaint, under Sec. 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 Section 366 1. 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.

5. 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 Section 173 (1) of the Code, stating that no case is made out, the Magistrate has no 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 Chap. 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 been 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.

6. 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 vs. Shah Lakhamsi, AIR 1966 Guj 283 (FB) . 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 vs. State of W. B., AIR 1962 Cal 135 (FB) and by the Bombay and Patna High Courts, in the decisions reported as State vs. Murlidhar Govardhan, AIR 1960 Bom 240 and Ram Nandan vs. State. AIR 1966 Pat 438, respectively.

7. 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 Sections beginning from Section 154, and ending with Section 176. Section 154 deals with information relating to the commission of a cognizable offence, and the procedure to be adopted in respect of the same. Section 155, similarly deals with information in respect of non-cognizable offences. Sub-section (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 will be seen that large powers are conferred on the police, in the matter of investigation into a cognizable offence. Sub-section (3) , of Section 156, provides for any Magistrate, empowered under Section 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 Section 157 to investigate the 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 Section 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 Section 157. Section 159 gives power to a Magistrate, on receiving a report under Section 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, in-charge 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 security 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 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 in charge of the police station to send a report to the Magistrate concerned in the manner provided for therein, containing the necessary particulars.

8. It is now only necessary to refer to Section 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 sub-section (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 offence has been committed.”

9. 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 there is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Magistrate, Section 169 says that the officer shall release the accused, if in custody, on his 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 Section 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 Section 169, or under Section 170 of the Code, on the completion of the investigation, the police officer has to submit a report to the Magistrate, under Section 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 Sec. 173 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report.

10. In this connection, we may refer to certain observations, made by the Judicial Committee in King Emperor vs. Nazir Ahmed, 71 Ind App 203 and by this Court in H. N. Rishbud vs. State of Delhi, (1955) 1 SCR 1150 . In Nazir Ahmad’s case, (supra) , Lord Porter observes, at page No. 212 (of Ind App) 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 duo observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the court to intervene in an appropriate case when moved under Section 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 vs. S. N. Basak, AIR 1963 SC 447. This Court in Rishbud and Inder Singh’s case, (supra) , observes at page No. 1156 of SCR as follows:

“Investigation usually starts on information relating to the commission of an offence given to an officer in-charge of a police station and recorded under Section 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 of 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 page No. 1157 of SCR :

“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 of the investigation and to be produced at the trial and (5) Formation of the opinion as to whether on the material collected there is 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 173 . . . It is also clear that the final step in the investigation, viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in-charge of the police station.”

11. 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 case to place the accused on trial, has been left to the officer in-charge of a police station. Bearing in mind these principles referred to above, we have to consider the question that arises for consideration, in his 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 rested 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 Chapter XIV, cannot be inferred vide Venkata Subba vs. Anjanayulu, AIR l932 Mad 673; Abdul Rahim vs. Abdul Muktadin, AIR 1953 Assam 112; Amar Premanand vs. State, AIR 1960 Madh Pra 12; the majority view in AIR 1962 Cal 135 and ILR (1966) Guj 285 (FB) . On the other hand, the High Courts which have recognised such a power, rest their decision again on two grounds viz., (a) when a report is submitted by the police after investigation, the Magistrate has to deal with it judicially, which will mean that when 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 therefore, such a power can be recognised in the Magistrate vide AIR 1960 Bom 240; and AIR 1966 Pat 438.

12. 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 to take cognizance of an offence and proceed, according to law. We do not also find any such power under Section 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.

13. It will be seen that the Code, as such does not use the expression ‘charge-sheet’ or ‘final report’. But is understood in the Police Manual containing Rules and Regulations, that a report by the police, filed under Section 170 of the Code, is referred to as a ‘charge-sheet’. But in respect of the reports sent under Section 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’.

14. In these two appeals, which are from the State of Bihar, the reports, under Section 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 Section 173, will have to be considered. That report may be in respect of a case, coming under Section 170, or one coming under Section 169. We have already referred to Section 190, which is the first Section in the group of Sections headed ‘Conditions requisite for Initiation of Proceedings.’ Sub-section (1) , of this Section, will cover a report sent, under Section 173. The use of the words ‘may take cognizance of any offence’, in sub-section (1) of Section 190, in our opinion, imports the exercise of a ‘judicial discretion’, and the Magistrate, who receives the report, under Section 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 Section 190 (1) (b) of the Code. This will be the position, when the report, under Section 173, is a charge-sheet.

15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 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. 156 (3) , to make a further investigation. That is, 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 Section 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 Section 190 (1) (b) , notwithstanding the contrary opinion of the police, expressed in the final report.

16. In this connection, the provisions of Section 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.

17. 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 XIV, as well as the observations of this Court in Rishbud and Inder Singh’s Case AIR 1955 SC 196 that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is 1eft 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 the police, to take cognizance, under Section 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 invoked 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 Section 190 (1) (c) , on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed. Therefore, these circumstance 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 Section 170, being a ‘chargesheet,’ or under Section 169, ‘a final report’. It is no 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. That 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 Section 170, depending upon the nature of the decision. Such a function has been left to the police under the Code.

18. 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.

19. The question can also be considered from another point of view. Supposing the police send a report, viz., a charge-sheet, under Section 170 of the Code. As we have already pointed 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 final report, under Section 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 (sic. impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.

20. Therefore, to conclude, 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 169 of the Code, that there is no case made out for sending up an accused for trial.

21. 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 those 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 those 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.

22. 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 had 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 of, by this Court, at this stage.

23. 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.