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Section 173 in The Code Of Criminal Procedure, 1973
Section 156(3) in The Code Of Criminal Procedure, 1973
The Code Of Criminal Procedure, 1973
Section 200 in The Code Of Criminal Procedure, 1973
Section 190 in The Code Of Criminal Procedure, 1973

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Andhra High Court
P.V. Krishna Prasad vs K.V.N. Koteswara Rao And Anr. on 6 August, 1990
Equivalent citations: 1991 CriLJ 341
Bench: B Rao

ORDER

1. This is a petition filed to quash the proceedings against the petitioner, who is accused No. 1 in C.C. 82/89 on the file of the Munsif Magistrate, Chilakalaripet.

2. The facts in brief are : The Ist respondent filed a private complaint against the petitioner and another for different offences before the Munsif Magistrate, Chilakaluripet, on 2-5-1988. After receiving the complaint, the Magistrate referred the same to the Police for investigation under Section 156(3) Cr.P.C. The police after investigation filed a final report under section 173 stating the complaint to be 'false' on 19-5-1988. Thereupon, the Magistrate issued proceedings closing the case by accepting the report of the police. Copy of the report of the police was served, according to the complainant (Ist respondent), on 15-11-88 and thereafter on 2-1-1989 the Ist respondent filed a protest petition. After hearing the complainant, the Magistrate made an order on 10-3-89 holding that the Court has ample jurisdiction and power to take cognizance of the private complaint in spite of the proceedings issued closing the case and accepting the report filed under section 173 Cr.P.C. Thereafter, the Magistrate examined the complainant and the witnesses and took cognizance of the offence by order dated 30-3-1989.

3. The main submission of Mr. Pattabhi, the learned counsel for the petitioner, is that the Court on receipt of the report under Section 173 pursuant to the reference under Section 156(3) to the effect that the complaint is 'false', has accepted it and issued proceedings closing the case. This means, that the Court declined to take cognizance of the offence by exercising its power under Section 190 Cr.P.C., which is judicial in nature. Therefore, when once it made an order - judicial in nature - it cannot review the same even by resorting to Sections 200 to 204 Cr.P.C., by virtue of the absolute prohibition envisaged by Section 362 Cr.P.C.

4. Mr. T. Bali Reddy, the learned counsel for the Ist respondent, on the other hand submitted that the acceptance of the report filed by the police under Section 173 Cr.P.C., is an administrative function and therefore the bar imposed by Section 362 Cr.P.C., is not attracted for purposes of taking cognizance of a private complaint after following the procedure under sections 200 to 204 Cr.P.C.

5. The short question, therefore, that falls for consideration is, whether the criminal Court has jurisdiction to take cognizance of an offence after accepting the final report under Section 173 filed by the police consequent upon reference under Section 156(3) Cr.P.C., and issuing proceedings closing the case.

6. It is Section 190 Cr.P.C., that deals with taking cognizance of an offence. Sub-section (1)(a) relates to taking cognizance upon a private complaint, (1)(b) upon a police report (charge-sheet) and (1)(c) upon information received from any person other than police or suo motu. On receipt of a private complaint, there are two courses open to the Magistrate to procure material for purposes of exercising his jurisdiction under Section 190 Cr.P.C. They are (i) resorting to Sections 200 to 204 Cr.P.C. or (ii) directing investigation by the police under section 156(3) Cr.P.C. or by some other agency. On receipt of the report, in cases of reference under Section 156(3), if it discloses an offence he may take cognizance of the offence under Section 190(1)(b) and issue process. This he may do without being bound in any manner by the conclusion arrived at by the police in their report, if there are sufficient grounds in the light of the material. He may even decide that there are no sufficient grounds for proceeding further and drop action. It is equally open to the Magistrate to take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint after following the procedure covered by Sections 200 to 204 Cr.P.C. These are the different courses open, as laid down by the Supreme Court in H. S. Bains v. State (1980 Cri LJ 1308), to the Magistrate on receipt of a report under Section 173 pursuant to the reference under Section 156(3) Cr.P.C. These are all, thus, different alternatives available to the Magistrate. The question that confronts in the instant case is, whether the Magistrate having chosen one alternative can have resort to the other alternative, inasmuch as the Magistrate having accepted the report under Section 173 to the effect that the complaint is 'false' and issued the proceedings closing the case has resorted to Sections 200 to 204 and took cognizance of the offence under Section 190(1)(a) Cr.P.C.

7. Mr. Bali Reddy, the learned counsel for the Ist respondent, has taken me through a decision of the Full Bench of Lahore High Court in Emperor v. Hayat Feteh Din (1949 Cri LJ 531), in support of his contention that the order made on a report filed under Section 173 is administrative in nature and therefore even after acceptance of the report that the complaint is 'false' the Magistrate has jurisdiction to resort to the provisions covered by Sections 200 to 204 and take cognizance of the offence under section 190(1)(a) Cr.P.C. That is a case where a report was made direct to the police and after investigation the police filed a report under Section 173 Cr.P.C. that the complaint is 'false' and this was accepted by the Magistrate. Later thereto, the police sought to prosecute the complainant under Section 211 IPC. The complainant in those circumstances sought to invoke the aid of Section 195(1)(b) Cr.P.C., contending that the order accepting the police report under Section 173 is by the Court exercising its judicial powers and therefore if at all it is for the Court to initiate prosecution and not for the police. Dealing with that contention, the Full Bench held that the order accepting the police report under Section 173 Cr.P.C., is administrative in nature and therefore police are as well competent to prosecute under Section 211 IPC.

8. Mr. Pattabhi, the learned counsel for the petitioner, submitted that this decision of the Full Bench was cited before a Division Bench of this Court in Subba Reddy v. State (1969 Cri LJ 1025) and after making a reference to the same, this Court held at page 1031, Cri LJ 1969 : "Where, therefore, on a false complaint the accused was arrested but was released by the Magistrate on a report by the Police under Section 173, and later the accused filed a complaint under Section 211 of the Penal Code against the complainant, the complaint of the accused cannot be taken cognizance of under Section 195(1)(b) because the Magistrate acted in a judicial capacity in releasing the accused and hence, the complainant by the accused in relation to a proceeding in a Court for which a complaint by Magistrate is necessary."

9. It is further pointed out by Mr. Pattabhi that the Supreme Court in Kamalapathi v. State of W.B. (1979 Cri LJ 679) rejected the view of the Full Bench of the Lahore High Court in paragraph 35 and held that the orders passed by the Magistrate on a report filed under Section 173 Cr.P.C. cannot be given a character different from the entire judicial process. I have gone through the decision of the Supreme Court and satisfied that Mr. Pattabhi has made the submission rightly since that is the view taken by majority of the learned Judges and accordingly hold that the order of the Magistrate accepting the report filed under S. 173 Cr.P.C., is one made by applying the judicial mind and therefore not an order of administrative nature.

10. Mr. Bali Reddy drawing my attention to the observations of Chinnappa Reddy, J. in Bains's case supra namely at page 1312 Cri LJ 1980 :

"the mere fact that he (Magistrate) had earlier order an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint ........."

sought to contend that in spite of acceptance of the report under Section 173 and issuance of the proceedings closing the case, the complaint made under Section 200 Cr.P.C. survives and does not get effaced thereby warranting some orders for disposal of the complaint. The contention is obviously misconceived since the proceedings issued closing the case patently refer to the complaint. Apart from this, the very preceding sentence to the observation quoted supra runs : "The Magistrate after receiving the police report, may without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him ........."

When once the proceedings are closed or dropped while accepting the report filed under Section 173 Cr.P.C. it cannot be said that the complaint will not have the effect of total effacement and survives for being disposed of.

11. Mr. Bali Reddy, next invited my attention to a decision of the Patna High a Court in Ram Ekabal v. Kapildeo Rai 1984 Cri LJ 945 in support of his contention that the complaint filed under S. 200 Cr.P.C., survives in spite of the orders passed on the report filed under Section 173 Cr.P.C. That is a case where the Magistrate while accepting the police report under Section 173 Cr.P.C. to the effect that the 'case is of insufficient evidence' had simultaneously directed registration of the protest petition filed by the complainant as a complaint petition. That is not a case where the Magistrate had resorted to the provisions of Sections 200 to 204 Cr.P.C. in pursuance of the original complaint referred to for investigation to the police under Section 156(3). This decision, therefore, is of no help to the Ist respondent.

12. The proposition of law laid down and relied upon by Mr. Bali Reddy in Tula Ram v. Kishore Singh (1978 Cri LJ 8) that in spite of the negative report filed by the police under Section 173 pursuant to the reference under Section 156(3) the Magistrate has power to issue notice to the complainant, record his statement and of other witnesses and issue process under Section 204 Cr.P.C., is beyond controversy and well settled. Equally so is the decision in M/s. India Carat Pvt. Ltd. v. State of Karnataka holding that the Magistrate is not bound by the report and in spite of that on the basis of the material disclosed during the course of investigation he can take cognizance of the offence under Section 190(1)(b).

13. Looking the matter even from a different angle, taking cognizance of an offence or refusing to take cognizance is an action to be done under the provisions of Section 190 Cr.P.C. The Magistrate will begin applying judicial mind from the stage a charge-sheet if filed, or a report under Section 173 Cr.P.C., is submitted pursuant to a reference made under Section 156(3) on the basis of a private complaint. While exercising the judicial function as to or not to take cognizance of the offence in either case basing on the chargesheet or on the report under Section 173 Cr.P.C., he goes through the material submitted along thereto. While so applying the mind in discharge of the judicial function, the Magistrate may or may not take cognizance and the moment he records his order, he is ceased of that matter and the remedy open to the aggrieved party is only by way of a revision or appeal. Neither acceptance nor non-acceptance of the police report can be termed as an administrative function since it is after application of judicial mind and examination of the material submitted along with the report under S. 173 Cr.P.C., the Magistrate makes the order under Section 190 Cr.P.C. After exercising the jurisdiction under Section 190 Cr.P.C. the Magistrate has no power to review the order in view of the provisions covered by S. 362 Cr.P.C.

14. Mr. Bali Reddy pointed out that as per Section 173(2)(ii) the Ist respondent-complainant is entitled to be communicated of the action taken by the police in pursuance of the reference under Section 156(3) Cr.P.C. Apart from Section 173(2)(ii) as submitted by Mr. Bali Reddy, the Supreme Court has laid down in Bhagwant Singh v. Commr. of Police that the Magistrate must give notice to the informant, injured or relative of the deceased and provide him an opportunity to be heard at the time of consideration of the report filed under Section 173 (2), which may be resultant of a report made direct to the police or consequent to the reference under Section 156(3) Cr.P.C. that is a case where the report of the police is the resultant of a report made direct to the police and surely that benefit to the complainant cannot be denied even if it is one consequent upon the reference under Section 156(3) Cr.P.C. Any failure to comply with this is definitely a matter to be agitated before a revisional or appellate forum, and absolutely not before the Magistrate that failed in this regard.

15. For the foregoing reasons, I hold that the Magistrate has no power or jurisdiction to take cognizance of an offence on the basis of a private complaint that resulted in submission of the report under Section 173 consequent upon reference under Section 156(3) when once he has accepted the negative police report and issued proceedings closing the case. However, the aggrieved party is at liberty to take recourse to a revision or appeal as the case may be according to law. The Criminal petition is accordingly allowed.

16. Petition allowed.