Palok Basu, J.
1. The substantial issue in the instant six matters is whether a Magistrate/Court before rejecting a "Final-Report" filed by an Investigating Officer, has to hear the accused on his appearing voluntarily or after notice irrespective of the fact whether or not the informant is proposed to be heard with or without a protest petition challenging the said Final Report.
2. However, the history of listing of these cases is reprehensible if not condemnable. As early as on 21-7-1994, the Hon'ble the Chief Justice constituted a Full Bench to decide a reference to a Larger Bench made by one of us (Hon. G. P. Mathur J.) in Ranjeet Singh's matter because the Hon'ble the Chief Justice considered the matter to be of general importance. Strangely, it was not listed for nearly three years whereafter the Hon'ble the succeeding Chief Justice passed an order dated 19-6-1997 constituting this Full Bench. The matter however, came to be listed only on 7-9-1999 when it transpired that the aforesaid four criminal miscellaneous applications and one writ petition raising same points were also pending decision by Larger Bench.
3. In Ranjeet Singh's referring order it has been noted that in an earlier judgment delivered by Hon. G. P. Mathur, J., reported in Pratap v. State of U.P. 1991 Criminal Law Journal 1669 : (1991 All LJ 688) a view had been expressed that:-
The accused has got no right to be heard at a stage prior to issue of process against him. Neither under the Code of Criminal Procedure nor under principles of natural justice the Magistrate is required to issue notice or afford an opportunity of hearing to an accused in a case where the police has submitted final report but on consideration of the material on record the Magistrate takes cognizance of the offence in exercise of his powers under Section 190(l)(b) and directs issue of process to the accused.
But, a learned single Judge has in the case of Gajendra Kumar Agarwal v. State of U.P. 1994 ACC 341 preferred a contrary view that:
Once a final report is submitted then before rejecting the same the accused should be heard because it may be that he may be able to persuade the Magistrate that the final report was justified and no case is made out against him and it will be unfair to hear only the person filing the protest petition but not the accused.
4. In Ranjeet Singh's matter the order of the 1st ADJ, Aligarh dated 29-3-1994 upholding the summoning order passed against the accused-applicants by the VACJM, Aligarh in case No. 397/92 is under challenge. Opposite party No. 2 Kallu Singh had lodged a cross report giving rise * to case crime No. 285A of 1990 under Sections 147, 148, 149 and 307, I.P.C. on 28-8-1990 at P. S. Sikandra Rao in which a final report was submitted under Section 173, Cr. P. C. by the police upon which Magistrate issued notice to Kallu Singh when he filed a protest petition whereafter the ACJM took cognizance, rejected the final report and summoned the applications vide his order dated 14-9-1992 under Sections 147, 148, 149, 307, IPC. The Sessions Judge upheld the summoning order. Hence, Ranjeet Singh and others are aggrieved by the summoning order on the principal ground that the Magistrate has not heard them even though he has permitted protest petition to be filed and went on to hear the informant Kallu Singh. The accused have an interim order from the Bench concerned staying further proceedings in the Court below.
5. In Mohd. Khalil's referring order dated 21-8-1997, Hon'ble S. K. Phaujdar, J. desired that it be heard along with Ranjeet Singh's matter. It was recorded in the referring order that if the Courts engage themselves for hearing the accused even before issuing summons, it would amount to holding a parallel trial before the actual trial, which is perhaps not the intention of law.
6. In Mohd. Khalid's matter the entire proceedings in the Court of the Metropolitan Magistrate III, Kanpur Nagar in Case No. 2/96 Panna Begum v. Mohd. Khalid and Ors. has been challenged on the ground that the FIR dated 29-3-1995 filed by Smt. Panna Begum opposite party No. 2 was investigated and a final report was submitted by the Investigating Officer in case Crime No. 115/95 on 30-6-1995 which was registered under Sections 147, 448, 504, 506 and 427, IPC. The Metropolitan Magistrate vide his order dated 16-12-1996 rejected the final report and summoned the accused applicants. It is said that having not issued any notice to the accused applicants, the order summoning them is bad. The Bench concerned has stayed further proceedings in the Court below.
7. In Ramadhin Sharma's matter one of us (Palok Basu, J.) in his order dated 21-6-1988 took note of a decision of a learned single Judge in Hardeo Sandhu v. State of Rajasthan 1986 Criminal Law Journal 1515 and considering the observations of the Hon'ble Supreme Court in Bhagwant v. Commissioner of Police 1985 ACC 246 : (AIR 1985 SC 1285) referred the entire matter for decision before a Larger Bench raising a query whether the accused will be having right to put in appearance to thwart the issue of process by a Court when considering a final report submitted by Investigating Officer. It was expressed in the referring order that the question was of paramount importance and required determination at the earliest. This referring order has been adverted to in his referring order by Hon. G. P. Mathur, J. in Ranjeet Singh's matter. It is after more then eleven long years that this case has seen the light of the day and that too after repeated enquiry about it, which was not shown listed along with other listed matters. In Ramadhin Sharma's matter opposite party No. 2 Bhoop Singh lodged an F.I.R. under Sections 395, 397, IPC, police station, Bapwan. After investigation a final report was submitted before the Special Judge, Etawah (this district being a Dacoity affected area cognizance was to be taken by the Special Judge under the particular law). Bhoop Singh filed a protest petition praying rejection of the final report. The applicants Ramadheen Sharma and others voluntarily appeared and sought a hearing in opposition to the protest petition filed by the informant. The objection was raised by the informant that no opportunity of hearing could be afforded to the accused at that stage. The Special Judge vide his order dated 16-6-1988 held that there was no right with the accused to be heard at that stage and consequently rejected the application of the Ramadhin Sharma and others. Simultaneously he fixed a date for considering the protest petition relating to the rejection of the final report. Aggrieved by the aforesaid order of the Special Judge, accused applicants have preferred the petition under Section 482, Cr. P. C. for a direction that the Special Judge should afford an opportunity to the applicants before taking any decision on the final report.
8. In criminal Misc. Application of Paggal and others it has been directed by learned single Judge that those be connected with one or the another of the aforesaid two referred cases.
9. In Paggal's matter the position is similar to that of Mohd. Khalid's. The 1st Additional Munsif Magistrate rejected the final report vide his order dated 15-10-1987 and proceeded to summon the accused applicants under Section 436, IPC rejecting the final report dated 2-3-1987 in the case crime No. 28/86 police station Chilh District, Mirzapur. The Revision of the accused was also dismissed by the Sessions Judge in Revision vide his order dated 2-3-1987. The accused has obtained an interim stay order of lower Court proceedings from the Bench concerned.
10. In Naubahar Singh's matter the final report submitted by the police in case crime No. 342/90 under Sections 420, 328, 506, IPC P. S. Dhampur District, Bijnor was rejected by the ACJM II and he proceeded to summon the accused applicants Nau Bahar Singh and five others under Sections 420, 328, 506, IPC. In this case the FIR was lodged by opposite party No. 2 Shafiq Ahmad. The aforesaid summoning order of the Magistrate was passed after allowing the protest petition and without issuing any notice to the accused applicants, is under challenge by accused who have obtained an interim order staying the Lower Court proceedings by the Bench concerned.
11. In the writ petition of Yunus and others it has been alleged that similar questions have arisen, whereupon another learned Judge has connected it with the aforesaid criminal miscellaneous applications.
12. In the writ petition of Yunus and others, the Sessions Judge, Moradabad has dismissed the Revision of the petitioners by his order dated 7-9-1992 upholding the order of summoning the petitioners passed on 8-6-1992 by the ACJM, Moradabad in case crime No. 39(A)/92 under Sections 147, 148, 452, 324 and 307, IPC, P. S. Bhajpur, District, Moradabad. In this case also opposite party No. 4 informant Muzaffar has lodged the FIR indicating the cross version in which the Investigating Officer filed a final report after Investigation on 8-5-1992. The informant filed his protest before the Magistrate against the said final report and also affidavits of the witnesses. The ACJM rejected the final report and on the material collected by the Police summoned the petitioners vide his order dated 8-6-1992 as stated above. Challenge has been extended to the summoning order on the ground that the Magistrate should have issued notice to the petitioner-accused and a hearing should have been afforded to them just as the informant was heard before rejecting the final report. The accused have an interim stay order by Bench concerned regarding proceedings before the Lower Court.
13. Learned counsel for the parties are agreed that all the six aforesaid matters be finally disposed of on merits as no useful purpose will be served by sending those back to the respective learned single Judge or Division Benches who made the referring orders.
14. Coming now to the main question, it may be pointed out that as already noticed in Abhinandan Jha AIR 1968 SC 117: (1968 All LJ 373), whenever an informant found fault with a Final Report being filed by the Investigating Officer, he would file protest petition before the Court of the Magistrate. On hearing the informant on the protest petition, the Court could pass an order of summoning the accused by rejecting the Final Report, or, direct further investigation, or accept the Final Report and reject the protest petition. It should be useful to notice here that in none of the Criminal Procedure Codes that is the one now in vogue, Cr. P. C. of 1973 or the repealed Cr. P. C. of 1898 or the earlier Cr. P. Cs. of 1982 or of 1872 or the earliest one that is Cr. P. C. of 1861 is there any provision permitting an informant to file any objection against Final Report filed by an Investigating Officer. The practice of hearing an informant through the mode of protest petition was permitted because it was carrying forward the true spirit behind the very purpose of as investigation undertaken by Police upon a grievance of an informant regarding commission of an alleged offence. The best precedence on the permissibility of preferring protest petition is reported in the decision in Abhinandan Jha supra wherein the practice of filing protest petition against Final Report has been specifically noted and countenanced by the Hon'ble Supreme Court. Both the appeals which were up before the Hon'ble Supreme Court arose from the orders which were passed by Courts on considering protest petition by each informant against Final Reports filed by respective Investigating Officers.
15. The point to be emphasized is that till that stage the issue of truthfulness of allegations of the informant is confined between the informant on the one hand and the Investigating Officer on the other. Invariably only one issue has to be determined whether the named or unnamed accused, as may apparently emerge from the allegations in the FIR, has or has not to be challaned to Court for trial. No other issue opens up before the Investigating Officer. All steps of the Investigating Officers are directed towards that single goal. In order to arrive at the said conclusion, the Investigating Officer may take all steps indicated in Chapter V for 'arrest of persons', in Chapter VI for process to compel appearance and Chapter VII for process to compel the production of things. It may be stated here, just as a reminder that arrest of an accused or suspect at one point of time by the Investigating Officer does not necessarily mean that a charge sheet is bound to be filed against him at the conclusion of the investigation and likewise and arresting an accused or suspect by the Investigating Officer would not mean that final report is bound to be filed in his favour.
16. Some relevant legal provisions were examined by the Hon'ble Supreme Court while deciding Bhagwant Singh's case, reported in AIR 1985 SC 1285 : (1985 Cri LJ 1179) and those are contained in Sections 154, 156, 157, 173 and 190, Cr. P. C. It so happened in Bhagwant Singh's case that Bhagwant Singh had lodged a First Information Report relating to the death of his daughter Gurinder Kaur with the allegation that her husband and his parents committed the murder of the informant's daughter by causing burn injuries to her. The CBI investigated the matter and submitted a report before C.M.M. stating that no offence appeared to have been committed. The informant nonetheless was prosecuting his petition before the Hon'ble Supreme Court without having known that such a Final Report had been forwarded already by the CBI. Consequently the Supreme Court by its interim order dated 21-11-1983 directed the Magistrate to hear the informant before accepting the Final Report of the CBI. Thereafter the Apex Court went on to decide the following issue :-
Since the question whether in cases of this kind, the first informant or any relative of the deceased or any other aggrieved person is entitled to be heard at the time of consideration of the report by the Magistrate and whether the Magistrate is bound to issue notice to any such person is a question of general importance which is likely to arise frequently in criminal proceedings, we thought that it would be desirable to finally settle this question so as to afford guidance to the Courts of Magistrates all over the Country and we accordingly proceeded to hear the arguments on both sides in regard to this question.
17. It is relevant to mention here that Bhagwant Singh's decision has been followed by the Hon'ble Supreme Court with some added reasons in the case of Union Public Service Commission v. S. Papaiah 1997 SCC (Cri) 1112: (AIR 1997 SC 3876). The Hon'ble Supreme Court, speaking through the Senior Member of the Division Bench (as My Lord the Chief Justice of India then was), has held that where the informant brought to the notice of the Magistrate the shortcomings in the investigating processes and prayed for an order of further investigation, the refusal of the Magistrate on the ground that he does not have power to review was totally wrong because such matter was not a case of reviewing any order but was only an exercise of powers conferred upon such a Magistrate by the provisions contained in Section 173(8), Cr. P. C. In paragraph 10 of the reported decision the Hon'ble Supreme Court has reprimanded the erring Magistrate and the Revisional Court by observing:-
As per the law laid down in Bhagwant Singh's case the issuance of a notice by the Magistrate to the informant at the time of consideration of the Final Report is a "Must". This binding precedent which is law of the land, has not been followed by the V Chief Metropolitan Magistrate and was wrongly ignored by the Revisional Court also.
18. Reverting back to the decision in Bhagwant Singh, it may be noticed that after considering the various provisions contained in the Cr. P. C. the Hon'ble Supreme Court has held (in Bhagwant Singh) that (at Page 1287) :
Then informant having taken the initiating in lodging the First Information Report with a view to initiating investigation by the police for the purpose of ascertaining whether any offence has been committed and, if so, by whom, is, vitally interested in the result of the investigation and hence the law required that the action taken by the Officer-In charge of a police station on the First Information Report should be communicated to him and the report forwarded by such officer to the Magistrate under Sub-section (2)(1) of Section 173 should also be supplied to him.
and after considering the three options which are open before the Magistrate that is :-
(1) He may accept the report and drop the proceeding, or
(2) He may disagree with the report and take the view that there is sufficient ground for proceeding further take cognizance of the offence and issue proceeds, or
(3) He may direct further investigation to be made by the Police under Sub-section (3) of Section 156.
It was finally concluded in Bhagwant Singh's case as under :-
There can therefore be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Sub-section (2) (1) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submission to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2) (1) of Section 173 decides not to take cognizance of offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.
19. In the penultimate paragraph of the judgement in Bhagwant Singh the Apex Court has held as under :
We may also observe that even though the Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may in the exercise of his discretion, if he so think fit, give such notice to the injured person or to any particular relative or relatives of the deceased but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report.
20. The aforesaid quotation from the penultimate paragraph been noted in order to refer to it subsequently to meet one the arguments, which was raised in one of the petition before this Bench.
21. It is common knowledge that in the Cr. P. C. there is only one section of issuing processes to an accused by a Magistrate and that is Section 204 which empowers the Magistrate taking cognizance of an offence to issue summons in a summons case, a warrant in a warrant case but only a list of witnesses is forwarded under Sub-section (1) of Cr. P. C. and if such summons or warrant is issued in a complaint case, it shall be accompanied by copy of such complaint and if the relevant law requires under its provisions that processes-fees or other fees are payable processes shall not be issued unless the said fee is paid within a reasonable time which may be allowed by the Magistrate. Sub-section (5) of Section 204 Cr. P. C. protects the right of the Magistrate to act under Section 87 Cr. P. C. entitling him to issue warrant even in cases where summons for appearance may be issued after recording reasons for such an action.
22. It may be pointed" out that the Cr. P. C. has empowered Magistrate issuing process to dispense with the personal attendance of an accused and permit him to appear through pleader reserving the right of the Magistrate to call the accused personally whenever necessary in the proceedings. Further, Section 206 Cr. P. C. has provided the Magistrate to issue such summons in matters covered generally for summary disposal under Section 260 Cr. P. C. where paying some fine may be enough to finally dispose of the offence which have been denoted as "petty offence."
23. At this very stage mention may be made to the various types of trials permissible under the provisions of the Cr. P. C. part from summary trials to which reference has just been made above. The necessity for noting the different type of trials envisaged under the Cr. P. C. has arisen in order to deal with some of the arguments cropping up by making reference to the Hon'ble Supreme Court's decision in K. M. Mathew vs. State of Kerala (1992)-1-SCC 217 : (AIR 1992 SC 2206) and as interpreted by a learned Single Judge of this Court in Kailash Choudhary v. State 1993 ACC 664 (1994 All. LJ 174) which view has been partly followed and partly dissented from in the Division Bench decision of this Court in Uma Kant Pandey v. State 1996 (3) ACC
24. As already noted above SUMMARY TRIAL is permissible under Chapter 21 vide the provisions contained in Section 260 Cr. P. C. only CJMS, Metropolitan Magistrates and any Magistrate in the 1st class specially empowered by the High Court is permitted under those provisions to try in a summary way six substantial petty offences or their abatement of their attempt, apart from an offence under Section 20 of the Cattle Trespass Act.
25. It may be noted here specifically that there is no scope for any other offence being tried summarily under Section 260 Cr. P. C. except those mentioned therein.
26. TRIAL OF SUMMONS CASES by Magistrate is dealt with in Chapter XX. It is notable that no formal change is to be framed in summons cases and the accused can be orally told of the allegations against him (See Section 251 Cr. P. C.) It should be clarified here that "Summons case" is defined in Section 2(w) which says that it means a case relating to offence, and not being a warrant case. The aforesaid Section 2(x) defines "WARRANT CASE " to mean a case relating to a case PUNISHABLE WITH DEATH, IMPRISONMENT FOR LIFE OR IMPRISONMENT FOR A TERM EXCEEDING TWO YEARS.
27. There is no provision under which a "Charge" has to be framed in Summons Cases against an accused. But there is specific provision contained in Section 258 Cr. P. C. which empowers a Magistrate to "stop the proceeding at any stage without pronoucing any judgement" and, subject to the type of evidence which may have been recorded, it can pronounce a judgement of acquittal or in other cases direct release of the accused which shall have the effect of discharging the accused. It is true that the power to stop the proceedings in a summons case is exer-cisable by Magistrate only in matters brought to him otherwise than through a complaint, the power to discharge the accused "at any stage" through a judgement of acquittal or an order of automatic discharge is exercisable in all types of Summons cases.
28. TRIAL OF WARRANT CASES is dealt with in Chapter XIX of the Cr. P. C. Section 240 Cr. P. C. provides that in a case instituted on a police report, after hearing the accused and the prosecution under Section 239 charge may be framed against an accused. It is not permissible under the warrant trial cases to write a judgement of acquittal unless entire trial evidence is over or unless the Magistrate writes his reasons going to the extent of disclosing that the charge against the accused is found by him to be groundless.
29. What is notable is that Section 239 Cr. P. C. permits the accused to raise the question of discharge when he appears on service of the process against him. It also entitles the Magistrate even to examine the papers which may have been forwarded along with the police report or the documents sent to him under Section 173 Cr. P. C. and after hearing the accused and the prosecution, discharge the accused by writing reasons for the charge being groundless.
30. TRIAL BEFORE A COURT OF SESSIONS is to be held in accordance with the provisions contained in Chapter XXXVIII of the Cr. P. C. The basic difference in the trial of a Session's case from other trials before Magistrate is that it has to be committed to the Court of Sessions by a Magistrate under Section 209 in Chapter XVI Cr. P. C. and it has to be conducted by public prosecutor before a Court of Sessions. It may be mentioned that by provisions contained in 301 Cr. P. C. a Public Prosecutor incharge of case may appear and plead without any written authority before any Court in which that case is under enquiry, trial or appeal. It has been specifically provided by Sub-section (2) of Section 301 Cr. P. C. that 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.
31. It has been provided through Section 302 Cr. P. C. that any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector ; but no person, other than the Advocate-General or Government Advocate or Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission :
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. Sub-section (2) of Section 302 provides that any person conducting the prosecution may do so personally or by a pleader.
32. Since the relevant provisions have already been noted here with regard to the respective rights of parties to be heard at the time of framing of the charge it may simultaneously be noted that Section 303 Cr. P. C. is the provision following which is very important from the point of view of the right of accused to be defended. Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice. In fact it is a fundamental right through Article 22 of the Constitution, which has been incorporated in the aforesaid Section.
33. Having examined the material provisions in the Cr. P. C. relating to trials, it is interesting to note that no trial would begin without cognizance of the offence being taken by a Magistrate. Except the provisions contained in Section 190 Cr. P. C. there is no other provision under which a Magistrate may take cognizance which provides that subject to the provisions contained in Chapter XIV, any Magistrate of the first class or any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence ;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed .
34. It has been provided by Section 193 Cr. P. C. that except as otherwise expressly provided by the Cr. P. C. or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.
35. But there are few exceptions to the general rule of taking cognizance by Magistrate under the Cr. P. C. Prohibitions exist for some offences. Sees. 195, 196, 197, 198(a) and 199 create bar on the Courts in taking cognizance of acts / omissions / offences in matters covered by those sections. In the very nature of the provisions contained in Sees. 195 to 199 it is clear that the concerned Court is prohibited from taking cognizance and issuing process; It should follow that an accused may raise questions about illegality etc. in taking cognizance of matter by the Court concerned by applying the bar created by Section 195 to Section 100 Cr. P. C. but only after he has been summoned as an accused.
36. Before proceeding further it should be noted here that in the case of Mansukh Lal V. Chauhan v. State of Gujarat JT 1997 (7) SC 695 : (AIR 1997 SC 3400) the Apex Court has held that one of the guiding principles for sanctioning authority would be the public interest and therefore the protection followed under Section 6 Cr. P. C. Act cannot be said to be absolute. In observing so it relied upon its earlier decision in Anti Corruption Bureau v. K. K. Jaglani 1996 (4) JT SC 495 and then ultimately concluded that :
The sanctioning authority in the cited case was left with no choice except to sanction the prosecution and in passing the order of sanction it acted mechanically in obedience to the mandamus issued by the High Court by putting its signature on a pro forma drawn up by the office. Since the correctness and validity of the sanction order was assailed before us we had to consider the High Court judgment and its impact on the sanction. The so called finality cannot shut out the scrutiny of the judgment in terms of actus anriac nemineum gravabit as the order of the Gujarat High Court in directing the sanction to be granted besides being erroneous was harmful to the interest of the appellant, who had a right, a valuable right, of fair trial at every stage, from the initiation till the conclusion of the proceedings.
37. It has been noted in foregoing paragraphs of the cited decision that a company M/s RC Kalathia and Company reported the bribe demand of Rs. 20,000/- by M.V. Chauhan upon which a report was lodged on 4-4-1983 and M.V. Chauhan was allegedly caught red handed by the raiding party and documents about the recovery were prepared. The accused M. C. Chauhan applied for an investigation by an independent officer which was thus handed over to orie Baghela and the Secretary of the Vigilance Commissioner prayed for sanction against M.V. Chauhan matter was being lingered upon which R, L. Kalathia moved the High Court of Gujarat under Article 226 of the Constitution of India for direction to the State to sanction prosecution upon which the High Court directed :-
In the result this petition is partly allowed. Respondent No.7 (newly added) is directed to accordingly sanction under the relevant provisions of the P. C. Act to prosecute M.V. Chauhan .... Prosecution will be for offence punishable under the relevant provisions of law. Respondent No.7 is directed to accord sanction within one month from the receipt of the writ of this Court.
38. On the above noted statement of facts it was held that even though the said judgment of the High Court was not challenged by the appellant, he could still challenge the sanction order even after conviction was recorded in the trial following that sanction order. The aforesaid decision in M.V. Chauhan therefore makes it permissible for an accused to challenge the correctness of an order of sanction after such an order is passed and the bar in taking of cognizance is removed by the grant of sanction.
39. It should be at once noted that the Hon'ble Supreme Court has again gone into the issue as to whether under the Prevention of Corruption Act as amended, a conviction can be set aside for want of valid sanction if raised for the first time after conviction. In Central Bureau of Investigation v. V.K. Sehgal 1999 (8) JT (SC) 170 it has been so candidly laid down by the Hon'ble Supreme Court that under Section 30(2) of the P. C. Act, 1988 that any action taken under or in pursuance of the repealed Act such action will be deemed to have been taken under the corresponding provisions of the new Act. Under Section 19(3)(a) no order of conviction and sentence can be reversed or altered by a Court of appeal or revision even. "On the ground of the absence of sanction" unless in the opinion of that Court a failure of justice has been occasioned thereby. By adding the Explanation the said embargo is further widened to the effect that even if the sanction was granted by an authority which was not strictly competent to accord such sanction, then also the appellate as Well as revisional Courts are debarred from interfering with the conviction and sentence merely on that ground.
40. It is obvious, therefore, that the law laid down by the Hon'ble Supreme Court in the aforesaid two decisions either in Mansukh Lal (supra) or in CBI v.' V.K. Sehgal (supra) the possibility of an accused raising an objection after being summoned has been permitted but not until he has been summoned.
41. Likewise the other prohibition regarding cognizance is found in Chapter XXXVI which consists of only seven Sections that is from 467 to 473 which again creates a bar upon the Court in taking cognizance of matters after the period of limitation as is provided by Section 468 Cr. P. C. expires. How the period of limitation will commence, under what circumstances time may be extended in certain cases, what offences may be termed as continuing offence and some special circumstances for extending the period of limitation have been dealt with in the aforesaid Chapter.
42. There was some controversy as to what should be done when question arises before the Magistrate as to whether a proceeding to be initiated is barred by the provisions contained in Chapter XXXVI. Unfortunately various conflicting views of different High Courts came to be expressed with regard to the right, if any, of the accused to be heard before taking cognizance in apparently time barred matters but all the controversy has been settled now by the Hon'ble Supreme Court. If one refers to the decision of the Apex Court in Arun Vyas vs. Anita Vyas, reported in 1999 S. C. C, 247 : (AIR 1999 SC 2071) two questions were posed by the Hon. Supreme Court on the facts of the cited case : (1) Whether the Magistrate can discharge an accused after taking cognizance of an offence by him but before the trial of the case ? (ii) Whether the Magistrate was right in discharging the appellants on the ground that the complaint was barred by limitation under Section 468 Cr. P. C. ?
43. Answering the first question the Hon. Supreme Court held that:-
Section 239 has to be read along with Section 240 Cr. P. C. If the Magistrate finds that there is prima facie evidence or the material against the accused in support of the charge (allegations) he may frame charge in accordance with Section 290 Cr. P. C. But if he finds that the change (allegation or imputations) made against the accused do not take out a prima facie case and do not furnish basis for framing charge it will be a case of charge being groundless so he has no option but to discharge the accused. Where the magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like Section 468 Cr. P. C, the complaint being barred by limitation, so he cannot frame the charge he has to discharge the accused. Indeed in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 Cr. P. C. the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of trial. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing charge if the facts so justify.
44. On the second point noted above the Hon. Supreme Court after discussing the relevant provision in the Cr. P. C. concludes on the facts of the said case thus :
For the reasons stated above, the High Court, was not correct in so far as the order of the Magistrate relates to Section 406 I.P.C. But in regard to offence under Section 498A IPC no exception can be taken to the impugned order under appeal as the Magistrate did not take note of Section 473 Cr. P. C. while ordering discharge of the appellants. Now the learned Magistrate shall consider the question of limitation taking note of Section 473 Cr. P. C. in the light of observations made hereinabove. Accordingly, the appeal is allowed in part.
45. The analysis of the fact and the aforesaid answer of the Hon'ble Supreme Court to the two questions posed in the cited case indicate that while the first question was relating to the question which may arise in some other cases, the second question related to the facts of the cited case. Therefore, the law laid down by the Hon'ble Supreme Court in answering the first question now to be followed by all courts in India is that where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law like Sec-468 Cr. P. C. the complaint being barred by limitation, he is unable to frame the charge on that ground, he has to discharge the accused. Where the Magistrate takes cognizance of an offence without taking note of Sec 468 Cr. P. C., the most appropriate stage at which the accused has to plead for his discharge is the stage of framing the charge.
46. Fortunately, the latest case in Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandaha Maharaj v. State of A.P. 1999(4) JT 537 : (AIR 1999 SC 2332) to a great extent, if not fully, the questions arising in this bunch of matters. In Sri Bhagwan Samardha (supra) there was an FIR by one Venkatakrishna Reddy against the appellant Sri Bhagwan under Section 420 IPC on various allegations of misrepresentation of facts alluring the informant to part with substantial cash amount from time to time on the false assurance that informant's dumb child will be cured. The police filed a Final Report saying that there was "mistake of fact" mainly on the ground that this is a kind of religious belief "prevalent in India among devotees of God". According to the appellant, this was not a case of cheating or breach of trust. But the Magistrate was not prepared to give accord to the said report. The Magistrate directed reinvestigation of the case and did not accept the Final Report. In the subsequent report of the police after reinvestigation the accused appellant in the cited case was charged sheeted under Sec 420 IPC. The Magistrate took cognizance and summoned the accused by warrant of arrest against him. The summoning order was challenged before the High Court and it being dismissed, the matter went up to the Apex Court. While dismissing the appeal filed by the accused-appellant therein it has been held by the Hon. Supreme Court that "the power of the police to conduct further investigation after laying final report, is recognized under Section 173(8) of the Code of Criminal Procedure. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State AIR 1979 SC 1791 : (1979 Cri. LJ 1346). The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the Court and seek formal permission to make further investigation."
In such a situation the power of the Court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the Court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard.
(Emphasis by this Court)
47. The only other provision in the Cr. P. C. wherein the Court is empowered to summon an accused is 319 Cr. P. C. It has been provided therein that: where, in the course of any inquiry into, or trial of an offence it appears from the evidence that any person not being the accused has committed any offence for which such, person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. It stands also provided that where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. It has further provided that any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of the offence which he appears to have committed. Byway of safeguard to the aforesaid Sub-section (1) it provides that where the Court proceeds against any person under Sub-section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard: (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
48. In this connection the Hon'ble Supreme Court has held in Municipal Corporation v. Ram Kishore Singh reported in 1985 (1) SCC 1 : (AIR 1985 SC 4) that even an accused against whom the process has been issued and against whom proceeding have been quashed, may be summoned under Section 319 Cr. P. C. and the aforesaid quashing of the order could not stand as a bar to the said summoning.
49. No useful purpose is likely to be served by repeating here as to when and how a Trial Court can be said to have taking cognizance of a matter calling upon the accused to appear by notice summons or warrant, as the facts may demand, to answer the allegation against him. Suffice it to say that in Chandra Deo Singh v. P.C. Bose (AIR 1963 SC 1430) it has been held that (at Page 1433)
Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under Section 202 can in no sense be characterized as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry.
50. Similarly in Smt. Nagawwa v. S. Nonjalgi 1976 ACC 224 it has been held that:
The scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (1) on the materials placed by the complaint before the Court: (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complaint without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not
51. It should be relevant to note here that in Smt. Nagawwa, the first information report was lodged by Smt. Nagawwa relating to the murder of her son in which she had named respondents Veramma and another has having abated the offence of murder but the police wrongly left them from being made accused. Though Nagappa and seven others were chargesheeted by the police under Section 302 and allied sections, it was alleged by Smt. Nagawwa that Veranna and other persons, were influential persons and therefore the police had omitted their names in the report as well as in the dying declaration. The Magistrate held an enquiry and recorded some evidence, since the matter related to old Cr. P. C. prosecution witnesses in the committing Court were examined. The case was transferred from that Magistrate's Court to another in the meantime. He directed some further enquiry to be made by the SSP. A third Magistrate came over. Smt. Nagawwa therefore challenged before him the order of the second Magistrate by which he had directed the investigation by the SSP, primarily on the ground that his predecessor was thinking of issuing process under Section 204 Cr. P. C. While the Revision petition of Smt. Nagawwa before the High Court was pending, the alleged abettors moved an application before High Court for vacating the stay order along with some documents. High Court issued certain directions to the Magistrate to record evidence himself. By subsequent order the documents filled by the two abettors before the High Court, also were directed to be forwarded to the Magistrate. When the matte, went back to the Magistrate Smt. Nagawwa informed him she did not want to produce any further evidence. After hearing Smt. Nagawwa the Magistrate issued process against the two abettors under Section 204 Cr. P.C. The said process was challenged in Revision by the said two abettors and also by application under Section 482 Cr. P. C. (561 A old Cr. P. C). Praying for quashing of the summoning order of the Magistrate. The High Court allowed the Revision of the abettors hence Smt. Nagawwa went in appeal to the Apex Court. While deciding Nagawwa, the Apex Court approved the decision in Chandra Deo Singh (supra).
52. From the aforesaid facts what is apparent is that the police had submitted chargesheet against the aforesaid Nagawwa and seven others but had reported the matter with regard to the two alleged abettors and hence Smt. Nagawwa had filed the complaint, which may be akin to protest petition. Since the Magistrate proceeded to issue process under Section 204(1)(b) of the Cr. P. C, as if it was a complaint case, the aforesaid observations of the Hon'ble Supreme Court came to be made.
53. Shri Devendra Dhana learned counsel for the petitioners argued that principles of natural justice should be invoked and therefore went on to argue that the view expressed by the learned Single Judge while deciding the case of Gajendra Kumar Agarwal should be upheld. He relied upon the Basdeo Tewari, JT 1998 SC Page 644 which is a case relating to a complaint of a labourer in a University and is absolutely no bearing with the facts of the present case. He also cited Ashok Chaturvedi v. Shitul H. Chanchani which is an authority for the proposition that if and when a complaint does not disclose my offence the High Court can exercise power under Section 482 Cr. P. C. for quashing the same. The aforesaid ruling also, therefore, does not extend any help to Sri Dhana, Lastly, he relied upon a decision in M.C. Mehta v. Union of India 1999(5) JT SC 114 : (AIR 1999 SC 2583). It is notknown how this case can support Sri Dhama because the cited decision dealt with the question as to how far the orders of the Hon. Supreme Court relating to the allottees and dispute between B. P. C. and HPCL was put of or stood resolved. It was held that on admitted facts only one conclusion is possible and permissible and that is the Court need not issue any writ, only because there is violation of natural justice. In concluding paragraph the Court placed reliance on its earlier decision in S. L. Kapoor's case, 1980 (4) SCC 379 : (AIR 1981 SC 136). This case also, therefore, does not help any of the contentions advanced by Shri Dhama. Shri Dhama then cited Gulzar Singh v. S.D.M. 1999(5) SC 216 : (1999 AIR SCW 3871). In the cited case the petitioner was able to get a Caste certificate declaring him to be a S.C. candidate but subsequently on enquiry it was found that he was a Christian and, therefore, the said certificate was cancelled without calling any explanation from him. It was held that the materials used against him should have been put to the petitioner before the cancellation, therefore, the Hon'ble Supreme Court interfered with the cancellation order and quashed the same. This ruling also does not go to help the instant petitioners at all because nothing was to follow after the cancellation order and interference by the Hon. Supreme Court was based on the facts involved in that case upon which it was held that notice to him was necessary. This case, therefore, does not lend support to Sri Dhama's arguments. Shri Dhama in this additional written statement referred to the decision of the Supreme Court in Joginder Kumar v. State of U. P. AIR 1994 SC 1349 and has argued that if an accused can challenge his involvement by invoking writ jurisdiction on the ground that his fundamental rights were to be affected, he should be permitted to approach the Magistrate in opposition to the protest petition or objection which should have been filed by the informant opposing the Final report submitted by the Investigating Officer. A few words require to be said about Joigirider Singh's case because the said decision is invariably cited whenever an accused approaching a Court for one relief or the other during investigation. This will be dealt with towards the close of this discussion.
54. Shri Dilip Kumar has placed reliance on the view of the learned Single Judge as reported in Kailash Chaudhary v. State of U. P. and others ACC 1993 (30) 665 and said that since it has been held in the cited case that an order taking cognizance and issuing process under Section 190 read with 204 Cr. P.C. can be varied, rescinded or recalled by Magistrate and further that since it has been interpreted that Sections 204 and 397 Cr. P.C. impliedly, provide a judicial discretion upon a Magistrate to recall an ex parte order issuing process, therefore, it was held that an accused when summoned can appear before the Magistrate through the said effective and alternative remedy of approaching the Magistrate for recall of the order issuing process under Section 204 on the ground that the process in the case ought not to have been issued, thus, applying the said principle, the Magistrate / Courts should afford an opportunity to the accused before accepting a Final report. In any case Sri Dilip Kumar vehemently argued that as has been permitted for the victim or the relative of the informant by the Hon'ble Apex Court in Bhagwant Singh (Supra), if and when the accused voluntarily appears, the accused should also be permitted to participate in the proceedings and he should be heard in opposition to the protest petition and, therefore, avail the chance of convincing the Magistrate that a Final report is correct and protest petition is wrong. In this connection it was pleaded that in Bhagwant Singh it has been made permissible to permit the informant or the victim also apart from the informant and, therefore, that analogy may be extended so as to apply even to the accused for the purpose of deciding the question whether the Final report should be accepted or not. He also cited the Division Bench decision in Uma Kant Pandey v. Addl. C.J.M. Karvi 1996 ACR 888 in which the aforesaid decision of the learned Single Judge in Kailash Chaudhary was partially upheld so as to permit the accused to challenge the summoning order by application before the Court of Magistrate which issued process. Sri Dilip Kumar placed reliance on the decision of the Supreme Court in K. M. Mathew v. State of Kerala 1992 (1) SCC 217 : (AIR 1992 SC 2206) which decision has been noted by the learned Single Judge in Kailash Chaudhary (supra) as well as Division Bench in Uma Pandey (supra). No other case was cited by Sri Dilip Kumar.
55. Sri Tejpal has argued that "due process of Law" should include the opportunity to the accused to challenge the Final report and cited Mithu v. State AIR 1983 SC 473 :(1983 Cri LJ 811) and A.K. Roy v. U.O.I. AIR 1982 SC 710 : (1982 Cri. LJ 340). Placing reliance on the decision of the Hon. Supreme court in AIR 1969 SC 659 State Bank v. Rajender Kumar Sri Tejpal argued that accused is an affected party and he should be given an opportunity to be heard. He also placed reliance on the provisions U/s 468 Cr. P. C. and said that since in matter where the prosecution is barred a right shall be deemed to have been given to the accused, there is no reason why the accused should not be permitted to appear in the case to oppose the protest petition and support the Final report in his favour as may have been submitted by the Investigating Officer. He relied upon the language of Section 167(6) Cr. P. C. and also the provisions contained in Police Regulations, Para-107 and he concluded his arguments by saying that since in the decision in Raj Deo v. State of Bihar 1998 (7) SCC 507 : (AIR 1998 SC 3281) the Hon'ble Supreme Court has held that Article 21 will apply from the stage of investigation and would also apply during the enquiry, trial and other proceedings under the Cr.P.C. there is no reason that principles of natural justice be not attracted to the very initial stage and the accused be permitted to oppose the protest petition or objection of informant and support the Final report submitted in his or their favour by the Investigating Officer.
56. Sri Kamal Krishna learned counsel for the petitioner argued that the accused's rights to challenge a summoning order is already secured by the provisions of the Cr.P.C. and what can be done after the actual summoning order may also be referable to the proceedings just before passing of the order and, therefore, the accused can appear and raise the issue that they should not be summoned and the Final report be accepted. He elaborated his argument by saying that just as an informant is a honourable citizen of this country, an accused is also not less. He also placed reliance on the decision of the learned Single Judge in Kailash Chaudhary (supra).
57. Sri A. M. Zaidi argued that since in the writ petition of Yunus and others summoning order has been passed by the Magistrate, the petitioners are entitled to challenge the same on the ground that it has been wrongly passed. He placed implicit reliance on the decision of Kailash Chaudhary and Uma Kant Pandey (both supra). He further argued that since there was false report, the petitioners should be taken to be informant in the cross version and from that point of view he should have been heard because the informant in one case is accused in the other and likewise the accused in the other is informant in the earlier.
58. Having thus noted all the arguments of the learned counsel for the petitioners which have been placed before the Court orally as well as through arguments, the Court records its appreciation for the valued assistance rendered by the learned counsel for the parties. Sri Jagdish Tewari, learned Govt. Advocate assisted by Sri Surendra Singh have also been heard at length for the State whose arguments have been of great assistance. Sri H. N. Singh appearing for the informant elaborately dealt with the provisions of the Cr.P.C. and argued that none of his arguments should be taken to be curtailing any of the accused's rights enshrined through the Constitution of India or the Cr. P. C. but simultaneously the informant's rights also should be safeguarded. He drew the analogy of how and when an accused if arrested during the investigation can be sent to jail on police remand or judicial remand since in such event the police papers and the result of the investigation can be seen only by the Court so as to find out whether Section 167 Cr. P. C. has been complied with or not, no such right is vested in any accused whether or not he is under arrest during investigation. Therefore, he drew a distinction in the different stages of cases and argued that in a matter where the accused is not under arrest, no right is conferred upon him to be heard prior to the issuance of the process by the Court.
59. The argument of learned counsel for the respective parties have been noted at length so as to highlight the various aspects of investigation, enquiry and trial in the criminal cases and that was the reason why specific reference has been made above to the manner in which the investigation may begin, cognizance of the case is taken, trials are held and a conclusion through its judgment is arrived at by the concerned Court in accordance with the provisions of the Cr. P. C.
60. Since several counsel have relied upon the decision of the learned Single Judge's decision in Kailash Chaudhary which has been partially upheld by the Division Bench in Uma Kant Pandey, the aforesaid two decisions have to be first dealt with before going into the other arguments, for, the learned State counsel and Sri H. N. Singh have challenged the conclusion in those two decisions that is the one in Kailash Chaudhary to the effect that:
The petition is accordingly disposed of with the observations that in case the applicant appears before the learned Magistrate in response to the processes and challenge the order issuing processes on the ground that in the facts and circumstances of the case, the processes ought not to have been issued, the learned Magistrate shall re-examine the matter in accordance with law, made and in the light of the observations in the body of judgment and until the learned Magistrate passes a reasoned order stating that there are sufficient grounds for proceeding against the applicants the operation of the order issuing processes shall remain in abeyance." and that of the Division Bench in Uma Kant Pandey to the effect that:
Brother S. R. Singh, J. thereafter relying upon the judgment of Hon'ble Supreme Court in the case of K. M. Mathew (supra) further held that process issued under Section 204 Cr. P. C. is an interim order and since it can be varied, rescinded or recalled by the Magistrate and the proceedings could be dropped if the Magistrate found that no offence was disclosed, hence Section 397(2) of the Code creates an express bar, so far as the revision before the High Court was concerned. He further held that under Section 397(2) of the Cr. P. C. the inherent powers of the High Court to quash the complaint could not be invoked until the accused has first approached the Magistrate to dismiss the complaint. In view of what we have discussed hereinabove we find that barring the observations of Hon. S. R. Singh, J. that order issuing the process under Section 204 Cr. P. C. is an interlocutory order against which no revision could lie in the High Court in view of the bar under Section 317(2) Cr. P. C. rest of the judgment of Brother S. R. Singh, J. in the case of Kailash Chaudhary and others, meets our full approval.
The argument proceeded that leaving aside whether the issuance of summons is an interlocutory order or not, which primarily was the matter to be considered in Uma Kant Pandey, the view expressed in the case of Kailash Chaudhary that the issuance of the process should remain in abeyance if the accused appears in response to the said process and approaches the Magistrate through an application challenging the said issue of process on the ground that in the facts and circumstances of the case the process ought not to have been issued, the Magistrate should first decide the issue with a reasoned order and only then the process issued by that Magistrate in pursuance of taking cognizance of the matter shall remain in abeyance,is contrary to all provisions contained in the Cr. P. C. and is not in accordance with the scheme of enquiry and trial as envisaged through the provisions of the Cr. P. C. Therefore, it was further contended that in case it is held that the law laid down in Kailash Chaudhary is not correct the observations of the Division Bench noted above upholding Kailash Chaudhary decision to the extent should also be held to be not correct.
61. This Court has in the foregoing provisions dealt with the three modes where, after issuing the process, trial begins. Those are summons trials, warrant trials or sessions trials. It has already been noted above that it is only in regard to the offences triable as summons trials that no formal charge requires to be framed and put to the accused before proceeding to record evidence. The other two trials, that is, warrant trials and Sessions trials specifically provide framing of the charge and the accused appearing in response to the process being asked to answer whether he admits the charge or not. Relevant provisions have already been noted in short while discussing the three types of trials. It has already been noted that summary procedure may be applicable to trials with regard to the offences excepted by the provisions contained in Section 260 Cr. P. C. One may recall that Chapter XVII of the Cr. P. C. deals with only "THE CHARGE" inasmuch as Sees. 211 to 214 Cr. P. C. provide ample opportunity to the accused to rebut the actual accusation against him so that no hindrance is caused in the accused defending himself. This formality of framing of charge has been done away with in summons trials and the accused has only to be asked about the allegations against him. The departure on the part of the legislature to omit the formal framing of charge on the accused's responding to the process for the specific offence alleged against him, apparently looks to be contrary to the principles of natural justice and may be violative of the safeguards of human rights of accused, but, being conscious of that possible criticism it has been more than repaired by providing in Section 258 Cr. P. C. that :
In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other judicial magistrate, may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage or proceedings is made after the evidence of the principal witnesses has been recorded, proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case,release the accused and such release shall have the effect of discharge.
62. Therefore, what is not towards the accused by framing formal charge is more than done by ordering acquittal or discharge as soon as such occasion arises and, therefore, it pre-supposes that the accused can in summons trials raise that issue of not proceeding any time on appearance in response to the process initiated against him.
63. There is a difference in the warrant cases procedure to be applied on cases instituted upon the police report and cases instituted otherwise than on police report. Chapter-XIX, therefore, has carved out two parts, i.e. (A) for cases instituted otherwise on police reports and (B) for cases instituted otherwise than on police report. Section 239 Cr. P. C. falls in Part-A and calls upon the Magistrate to discharge the accused if upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless. By Section 240 Cr. P. C. it is provided that otherwise charge has to be framed. If the accused pleads guilty he can be convicted on that statement. In case he requires to be tried evidence for the prosecution will be recorded and if so desired thereafter evidence for defence will be produced by the accused. This is the procedure provided under Sees. 241, 242 and 243 Cr. P. C. in warrant cases instituted on police report.
63A. In cases instituted otherwise than on police report it is specifically provided by Section 244 Cr. P. C. that Magistrate shall proceed to hear the prosecution and take all such evidence as has been produced in support of the prosecution. If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted would warrant his conviction, the Magistrate shall discharge him. This is what Sub-section(1) of Section 245 Cr. P. C. provides. The more important provision to appreciate the points being considered in this bunch of petitions, is contained in Sub-section(2) of Section 245 Cr. P. C, It authorises the Magistrate to discharge the accused at any previous stage of the case if for the reasons to be recorded by such Magistrate, he considers the charge to be groundless. The distinction between-239 Cr. P. C. both empowering the Magistrate to discharge an accused, is that in police cases the papers under Section 173 will be examined and on that basis after hearing the accused and the prosecution an accused can be discharged whereas under Section 245 Cr. P. C. an accused can be discharged if upon taking all the evidence referred in Section 244 Cr. P. C. the Magistrate considers that no case against accused has been made out, he will discharge him on recording reasons.
64. It is notable that Section 246 Cr. P. C. provides how the evidence will be recorded after framing of the charge if the accused is not discharged under Section 245 Cr. P. C. Remaining witnesses for the prosecution shall next be taken whereafter it has been provided through Section 247 Cr. P. C. that accused shall then be called upon to enter upon his defence.
65. Part-C of Chapter -XIX contains provisions which are applicable to both the types of cases covered by Part-A and Part-B. The said Part-C is headed "Conclusion of trial". It provides how acquittal or conviction shall be recorded, what will happen in the absence of complainant and how compensation for accusation without reasonable cause shall be payable to the accused.
66. The point, therefore, to be emphasized is that in warrant trials once the charge is framed in matters covered by Part-A, that is cases instituted on police report, the Magistrate shall be bound to proceed with the trial in accordance with the provisions contained in Sees. 241, 242 and 243 Cr. P. C. whereafter he will have to follow the provisions contained in Sees. 248, 249, 250 Cr. P. C. whereas the provisions contained in Section 245 Cr. P. C. that is in cases instituted otherwise than on police report as also in the provisions contained in Section 258 in Summons cases empower the Magistrate, either to discharge the accused or to stop the proceedings by a reasoned order in summons cases even before writing a final judgment.
67. Before proceeding further it may be pointed out that in Nilamani Routry v. Bennett Coleman & Co. Ltd. reported in (1998) 8-S.C.C.594, the Hon'ble Supreme Court has made observations for reconsidering the decision propounded in K. M. Mathew. It has been observed that:
K.K. Mathew case requires reconsideration for it is settled law that a power of Review has to be conferred by law specifically...and Cr. P. C. does not confer such power...it is desirable that the matter be heard by a Bench of three Judges....
68. The learned Single Judge as also the Division Bench in Kailash Chaudhary and Uma Kant Pandey respectively has relied upon K. M. Mathew case as such this Court shall have per force to deal with the subject matter which had engaged the attention of the Hon'ble Supreme Court. A complaint was filed by an Advocate under Section 500 IPC read with Section 34 IPC in which the Editor of the Newspaper from where it was published as also the Chief Editor whose seat of working was the Central Office or Head Office of the press, were made accused. The Magistrate summoned the Editor as also the Chief Editor by issuing process under Section 204 Cr. P. C.under Sees. 500/34 I.P.C. summonses were issued to the accused. The accused entered appearance after service of summonses and pleaded not guilty. The Chief Editor applied for dropping of the proceedings against him on the ground that there was no allegation whatsoever against him. After hearing, the Magistrate accepted the plea of the Chief Editor and stopped the proceedings against him. Aggrieved, the complainant took the matter up to the Hon. High Court of Kerala and his petition was allowed. K. M. Mathew the Chief Editor, went as appellant before the Hon. Supreme Court challenging the High Court" order. From the reported decision it appears that the Kerala High Court had observed in its judgment that the Magistrate had no jurisdiction to drop the proceedings after issuance of the process and the Magistrate was bound to proceed under Chapter XX of the Cr. P. C. after accused enters appearance and held that the question of conviction of acquittal will arise only after recording evidence of the parties. There was no question of discharging the accused at an intermediate stage as no provision in the Code authorised dropping of the proceedings against any accused.
69. The observations of the Hon'ble Supreme Court in para-9 related to presumption under Section 7 of the Press and Registration of Books Act, 1867. The Hon'ble Supreme Court has observed in Para-7 that:
But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused.
70. With profound respect and absolute regard for the Hon'ble Supreme Court as well as the Hon. Kerala High Court it appears that the provisions of Section 258 Cr. P. C. were not referred to at the Bar with the result that the Hon'ble Supreme Court did not make a reference to the aforesaid Section. In fact, there is specific power with the Magistrate for reasons to be recorded by him, to stop the proceedings at any stage about which discussion has already been made above by this Court. Therefore, the observation of the Hon'ble Supreme Court in Para-8 that:
The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment, it can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.
appears to have been made to protect the Chief Editor K. M. Mathew who had an order in his favour from the Magistrate dropping the proceedings as against him. Consequently, there was neither any lack of power in the Magistrate to pass the order as K. M. mathew wanted on the facts of the case nor was there any need for the appellant K. M. Mathew to support the said order by referring to supposed inherent powers of the Magistrate. It may be repeated here that according to the observations made in para-9 of the judgment, made on the basis of its earlier decisions in State of Maharashtra v. Dr. R. B. Chowdhary AIR 1968 SC 110 D. P. Mishra v. Kamal Narain Sharma AIR 1971 SC 856, Narasingh Charan Mohanty v. Surendra Mohanty AIR 1974 SC 47 and Haji C. H. Mohammad Koya v. T. K. S. M. A. Muthukoya AIR 1979 SC 154 it was held that the Chief Editor did not come to be associated with the alleged offences in any manner whatsover even if all that was stated was true.
71. The decision in K. M. Mathew, therefore, is so long as it holds field, an authority for the proposition that in summons cases insituted on a complaint the Magistrate has the power to drop the proceedings if after appearance in response to the process issued the accused raises an objection saying that no offence is made out and the proceedings should be dropped. In other words, if a favourable order is passed by the Magistrate on the facts and circumstances of a given case in which such objection is raised by the accused, it shall be deemed to have been passed by the Magistrate in exercise of his power under Section 258 Cr. P. C.
72. Now, in Kailash Chaudhary, the rulings cited need be looked into which are as follows :
1. A bridge Investment Ltd. v. Minister of Housing and Local Government 1965 WLR 1320 is a ruling propounded by Lord Denning which has been referred to in the celebrated Book on Administrative Law penned by HWR Wade (IV Edn) Page-379. It has been held that "If the Minister had acted on no evidence or unreasonably or has gone wrong in law" that could be interfered with in judicial scrutiny.
2. Punjab National Bank" v. Surendra Prasad Singh AIR 1992, SC 1815. It has held in the aforesaid case that the judicial process should not be an instrument of oppression or harassment. In this case the Hon. Supreme Court has laid down the mode and extent of judicial Mind's application when process is issued by the magistrate and it has been observed that indication of majesty of justice and maintenance of law and other in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance.
3. Nagawwa v. Veeranna AIR 1976 SC 1947. This case has already been discussed above at length by this Court and lays down it is not within the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case while issuing process.
4. Kewal Kishan v. Suraj Bhan AIR 1980 SC 1780. In this case it is laid down that "All that the magistrate has to see is whether or not there is sufficient ground for proceeding against the accused" and further that "at this stage the Magistrate is not called upon to weigh the evidence meticulously as if he were the trial Court itself."
5. Mohinder Singh v. Gulwant Singh AIR 1992 SC 1894 (1992 Cri. LJ 3161). It has been observed that the scope of enquiry under Section 202 is extremely restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 of the Code. The enquiry at that stage does not partake the character of a full dressed trial which could only take place after process is issued under Section 204 of the Code.
6. K. M. Mathew v. State of Kerala 1991 (4) JT, SC 464 (AIR 1992 SC 2206). This case has been discussed above at length by this Court and need not be repeated again except that it was a summons trial in which on the appearance of the accused and praying dropping of proceedings, the Magistrate exercised powers conferred upon him by the provisions of Section 258 Cr. P. C.
7. Amar Nath v. State AIR 1977 SC 2185. In this case the question decided by the Hon Supreme Court was as to whether a summoning order should be taken to be an interlocutory order or not. The learned Single Judge has interpreted Amar Nath's case in his own words which are to the effect that:
The view in Amar Nath's case that it is not an interlocutory order was taken in the peculiar fact of that case. The Magistrate in that case although required to hold fresh enquiry, issued process straightway without complying with the order of remand.
8. M.V. Elisabeth v. Harwan Investment and Trading Pvt. Ltd. 1992 (2) JT SC 65 (AIR 1993 SC 1014) was primarily considering admiralty jurisdiction and the Hon'ble Supreme Court has observed as under :-
The High Courts in India are superior Courts of record. They would have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers.
9. R. P. Kapoor v. State of Punjab AIR 1960 SC 866. This case lays down the law when inherent powers of the High Court as conferred by Section 482 Cr. P. C. (Sec. 561-A of the Cr.P. C. of 1998) may be exercised.
10. Mrs. Dhana Laxmi v. R. Prasanna Kumar 1990 ACC-39. In this case Hon'ble Supreme Court set aside the High Court order on the ground that it was clearly in error in assessing the material before it and concluding that the complaint cannot be proceeded with as it may not ultimately fetch an order of conviction.
11. Padam Sen v. State of U. P. AIR 1969 SC 218 is an authority for the proposition that inherent powers of the Courts are in addition to the powers specifically conferred on the Courts by Section 151 CPC.
12. Manohar Lal v. Seth Hira Lal AIR 1962 SC 527 is the case in which Hon'ble Supreme Court has observed that there is no inherent power with the Court to circumvent the express provisions of law.
73. As noted above the decision in Mr. Ellasabeth, R. P. Kapoor, Mrs. Dhana Laxmi, Padam Sen and Manohar Lal are totally besides the issue because extent of the High Courts inherent powers whether in civil or Criminal cases, has been the subject matter of discussion in those Rulings. Likewise, the observations of Lord Denning, J. as is referred in the HWR Wade on Administrative Law obviously refers to the principles, which are attracted in dealing with the question on Administrative law. In administering criminal law, where power to issue process after taking cognizance is determinable from the language used in various Sections of Cr. P. C. it is not necessary to search the meaning of simple words used therein by referring to the principles of Administrative law. It is common knowledge that by and large most of the principles of Administrative law have been settled on the factual and legal contingency in each matter where there was no written or codified law. However if for the sake of argument the principles of Administrative Law are attracted to the pro-visions contained in Sees. 100, 200, 201, 202, and 203 or 204 Cr. P. C. it may be pointed out that its applicability would depend upon the facts which may be involved in given case. In Kailash Chaudhary's case, admittedly, Kailash Chaudhury and others were named as accused in a complaint filed by Ranjit Chaudhary for the alleged offences under Sees. 147, 452, 323, 504, 506
1.P.C. The Magistrate had taken cognizance of the offences under Section 190 Cr. P. C. and issued process under Section 204 Cr. P. C. by the order dated 11-2-1993. The said complaint was sought to be quashed on the ground that it was baseless, vexatious and concocted and that it disclosed no offence against the applicants, Kailash Chaudhary and others. It may be pointed out that though there is reference in the first paragraph in Kailash Chaudhary to an argument that the Magistrate had passed the summoning order dated 11-2-1993 in a mechanical manner without application of mind and that issue of process by the magistrate amounted to an abuse of process of law/Court, there is however, no discussion or finding in the judgment as to the aforesaid argument and what has been concluded in paras-30 and 31 has already been referred to above. The accused was permitted to comply with the directions contained in para-31 that in case.-
The accused appeared before the magistrate in response to the processes and challenge the order issuing processes on the ground that in the facts and circumstances of the case, the processes ought not to have been issued, the learned Magistrate shall re-examine the matter in accordance with law and in the light of the observations made in the body of judgment and until the Magistrate passes a reasoned order stating that there are sufficient grounds for proceedings against the applicants the operation of the order issuing processes shall remain in abeyance.
74. Before recording the aforesaid conclusion in the case of Kailash Chaudhary the learned Single Judge held in Para 2 as follows:
That being the position of law, Section 397(2) of the Code would create express bar to interference in revision against an interlocutory order and that being so the High Court should not, as a matter of sound exercise of judicial discretion, invoke its inherent jurisdiction under Section 482 of the Code to quash the complaint unless the accused has first approached the Magistrate for the purpose of dismissing the complaint on the ground that there was no sufficient ground to proceed in the matter. The accused must be relegated to his remedy under Section 204 of the Code of approaching the Magistrate and satisfy him that the process in the case ought not to have been issued. Needless to say that if the Magistrate is so satisfied may recall the order issuing the process under Section 204 and dismiss the complaint under Section 203 of the Code.
75. With greatest respect it may be pointed out that the aforesaid conclusion is not backed up by any provision in the Cr. P. C. and it amounts to reversing the procedure for trial which is not permissible under the Cr. P. C. challenging the order of issuing process before the Court issuing the said process is in fact requiring the arms of the clock to move anti-clockwise which does not happen or at least should not happen. A parallel trial should not commence before the actual trial begins. The complainant and or the informant also have equal rights to proceed against the guilty person through the Code of Criminal Procedure just as those who are accused have their rights to be protected under relevant provisions of the Cr. P. C. The line of demarcation must be clearly drawn. The view that interlocutory order cannot be challenged in Revision before the High Court by an accused, cannot be a reason to support the conclusion that the same interlocutory order will again be subject matter of re-adjudication by relegating the accused summoned to pre-summoning procedure. The said conclusion would even otherwise be unwelcome as it would result in starting a new procedure of pre-trail before start of actual trial. There is available to all concerned, supervisory or appellate or revisional jurisdiction of superior courts and if the said new procedure is thrust upon Magistrate / Courts, there will be no end to the litigative process, which is so avowedly bounded by the provision of the Cr. P. C.
76. One may have desired to go into more details on the issue as to when an order can become an order of moment, what is an interlocutory order for the purposes of appellate or revisional remedy or what may be termed as final orders between the parties. The said course is obviated for the simple reason that the complainant allegations in Kailash Chaudhary made it a warrant trial case and in view of the aforesaid discussion it was not permissible for the Magistrate to invoke summons case procedure as provided by Section 258 Cr. P. C. If Kailash Chaudhary and others accused wanted an order of discharge, they should have had to wait till the stage of Section 245 Cr. P. C. was reached. In Kailash Choudhary, none of the Sections of the Cr. P. C. such as Sees. 195, 197 or Sees. 319 or 467, 468 Cr. P. C. which in some circumstances put a bar on the Court in taking cognizance regarding the acts of omissions which may be punishable under some law was attracted. Therefore, with profoundest respect, it has to be held that the decision in Kailash Chaudhary is neither correct on facts nor in law and does not lay down the correct law.
77. Coming to the Division Bench decision in Uma Kant Pandey and the observetions in the case referred to in the earlier part of this discussion, it may be pointed out that whether or not summoning order should be treated as an interlocutory order, is not the point in issue in any of the matters up for consideration before this Full Bench, consequently, no opinion has to be expressed by it on that point. But the observations of the Division Bench in Uma Kant Pandey relating to the other part of the order of learned Single Judge in Kailash Chaudhary cannot be countenanced. Relevant paragraph in the Division Bench decision in Uma Kant Pandey has already been noted above but requires repetition here :-
In view of what we have discussed herein before, we find that barring the observation of Hon. S. R. Singh, J. that order issuing the processes under Section 204 Cr. P. C. is an interlocutory order against which no revision would lie in the High Court in view of bar under Section 397(c) Cr. P. C. REST OF THE JUDGEMENT OF BROTHER S. R. SINGH. J. IN THE CASE OF KAILASH CHAUDHARY AND OTHERS MEETS OUR FULL APPROVAL.
78. For the reasons stated above, the observations in the aforesaid para of the Division Bench which stand emphasized by this Full Bench in capital letters, do not lay down the correct law. The remaining part of the observations are not being commented upon because that part of the observation has not been an issue in this bunch of cases.
79. In view of having thus gone into all possible details and giving anxious consideration to every aspect involved the decision in Kailash Chaudhary and also on the aforesaid observation in that connection the Division Bench decision in Uma Kant Pandey, the decision in Kailash Chowdhary (supra) and the aforesaid observations in Umakant (supra) are also hereby over-ruled.
80. Now reverting back to the initial questions arising in the instant matters, the only course open to an accused against whom process has been issued by a competent Court in accordance with the provisions of the Cr. P. C. is to appear before the said Court subject to the procedure of bail, etc. as are contained in the Cr. P. C. for securing his future attendance in the trial or enquiry, as the case may be. Challenge to the process issued or summoning order passed has already been dealt with in very many decisions of the Hon. Supreme Court a few of which have already been noted above by learned Single Judge in Kailash Chaudhary and need not to be referred to at this stage in these bunch of petitions and in a given case accused may exercise the right of approaching a Superior Court under such provisions as may be lawfully available to the accused for challenging the summoning order.
81. It may be re-emphasized here that a decision on substantive right of party is one thing and a fair decision on those substantive rights is another and the principle of hearing is not applicable to the latter class of cases. Whether or not a full-fledged enquiry is to follow becomes a relevant question. Existence of a prima facie case has to be determined before even investigation begins after lodging of an F.I.R. No police officer is expected to call the accused before registering a FIR on the ground that action against an accused starts by as stated in the earlier part of this discussion the concerned parties till the stage of summoning are the informant and the police and the Magistrate has to take cognizance or refuse it or take steps as he is entitled under the law. Principle of applying Audi alteram partem rule stands excluded by the provisions of Cr. P. C. itself till the stage to which the hearing of the accused becomes necessary which provisions have already been noted above.
82. Relevant observations of the Hon. Supreme Court in Union of India v. W.N. Chaudhary AIR 1993 SC 1082 practically closes the issue with regard to the accused's rights to be heard before final report is rejected by the Magistrate on allowing the protest petition with or without hearing the informant. The following observations are relevant: (at Page 1103)
Moreso, the accused has no right to have any say as regards the manner and method of investigtion. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the Investigation culminates in filing of final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in case where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions the accused has no right to have participation till the process is issued ....
True there are certain rights conferred on an accused to be enjoyed at certain stages under the Code of Criminal Procedure such as Section 50 whereunder the person arrested is to be informed of the grounds of his arrest and of his right of bail and under Section 57 dealing with person arrested not to be detained for more than 24 hours and under Section 167 dealing with the procedure if the investigation cannot be completed in 24 hours which are all in conformity with the 'Right of Life" and 'Personal Liberty' enshrined in Article 21 of the Constitution and the valuable safeguards ingrained in Articles 22 of the Constitution for the protection of an arrestee or detenue in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impringe upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the Code of Criminal Procedure.
If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self-defeating. Further, the scheme of the relevant provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.
83. The latest case law of the Hon. Supreme Court in Shri Bhagwan (supra) has already been noted above. It has been held that there is nothing in Section 173(8) to suggest that the Court is obliged to hear the accused before any direction of further investigation is made. "Causing of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard."
84. It is also to be noted here that the Hon. Mr. Justice J. C. Gupta in Karan Singh v. State 1997 ACC 163 (1997 AIHC 376) Hon. Mr. Justice R. R. K. Trivedi in S. C. Misra v. State 1996 AWC (Supp)318. Hon. Mr. Justice K. Narain in S. K. Sharma reported in 1994 ACC, 748 and Hon. N. B. Asthana in Anil Kumar v. State 1994, ACC 535 have held that the Magistrate is not required under the law to hear an accused before rejecting a final report submitted by the Investigating Officer or while hearing an informant in opposition of filing of such final report.
85. In view of the aforesaid observations there is absolutely no scope to uphold the argument of the learned counsel for the petitioners that the accused should be afforded an opportunity by the Magistrate / Court before accepting or rejecting a final report submitted by the police after investigation of a First Information Report. The learned Single Judge's view in Gajendra Kumar Agrawal 1991 ACC 314 does not lay down the correct law and is hereby over ruled.
86. In earlier part while noting the argument of petitioner's counsel reference to Joginder Kumar (supra) has been specifically noted. A few sentences about Joginder Kumar's case should be put down right now. From the statement of fact contained in paragraph-7 of the decided case it is clear that Joginder Kumar was not an accused at all and he was detained by the police illegally but with the objective of getting some information in an abduction case and in-fact Joginder Kumar did help the police. It appears that Joginder Kumar was released after five days detention and the Habeas Corpus petition had become infructuous on facts but the Hon'ble Apex Court posed the following question for answer :-
The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?
87. After discussing the views of Justice Cardozo and also referring to the case in Re_ Fried and taking note of the decision Couch v. United States after having also noted Miranda's case (1986) 334 US 436 and the Nandini Satpathy v. P.L. Dani AIR 1978 SC 1025 between paragraphs 9 and 22 the Hon'ble Supreme Court referred to the report of the National Police Commission in Paragraph 23 of the reported decision. Having noted the consequences of arrest and again adverting to Section 56(1) of the Police and Criminal Evidence Act 1984 in England (Civil Actions against Police-Richard Clayton and Hugs Tomlinson; Page 313) the guidelines have been laid down in paragraph 26 and they are as follows:
1. An arrested person being held in custody is entitled, if he so requests to have one friend relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.
2. The Police Officer shall inform the arrested person when he is brought to the Police station of this right.
3. An entry shall be required to be made in the Diary as to who was informed of the arrest.These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
Having done so two directions have been specifically issued which are contained in paragraphs 27 and 28 which require the Magistrate to satisfy himself about the aforesaid requirement which have been directed to be over and above any other rights found in Police Manuals.
88. Since petitioner's counsel placed reliance on the observations contained in paragraph 24 to the effect that :-
No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so....
No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the persons's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter ....
It has to be stated that all the Courts are to follow the guidelines in paragraph 26 but there is no justification to interpret the aforesaid observations in paragraph-24 to mean that the Investigating Officer or the Police Officer concerned shall not arrest an accused who prima-facie appears to be responsible for a crime registered at the police station or comes to the knowledge of the police. It is undisputely true and it goes without saying that in our Country which is governed by the Rule of Law, the Human Rights consideration are of paramount importance and have to be adhered to at all possible stages during investigation or a trial. This Court cannot do better than respectfully adopt the observations of the Hon. Apex Court in D. K. Basu-1997 (1) JT SC (AIR 1997 SC 610) speaking through Hon. Dr. Justice A. S. Anand(as Hon'ble the C.J.I, then was) to the effect that:
We are conscious of the fact that the police in India have to perform a difficult and delicate task particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities and among others the increasing number of under world and armed gangs and criminals. Many hard-core criminals like extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society. It is being said certain quarters that with more and more liberalization and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft paddling interrogation. It is felt in those quarters that if we lay too much of emphasis on protection of their fundmental rights and human rights, such criminals may go scot free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot however, be worst than the disease itself.
89. My Lord Hon'ble the C.J.I, then draws the line of caution by observing in State of Punjab v. Baldeo Singh 1999(39) . ACC 349 in the following words :-
There is indeed a need to protect society from criminals. The society intent in safety will suffer if persons who commit crime are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed.
90. In the result all the five Miscellaneous Criminal Applications and the one Writ petition are dismissed. Interim orders are discharged. The concerned Courts below are directed to proceed with the matter very ex-peditiously in accordance with law.