Commencement of

Judicial Proceedings
Konina Mandal, Assistant Professor, JGLS
Cognizance of offences by Magistrates

190. Cognizance of offences by Magistrates. 2(d) " complaint" means any

(1) Subject to the provisions of this Chapter, any Magistrate of the allegation made orally or in writing
first class, and any Magistrate of the second class specially to a Magistrate, with a view to his
empowered in this behalf under sub- section (2), may take taking action under this Code, that
cognizance of any offence- some person, whether known or
(a) upon receiving a complaint of facts which constitute such unknown, has committed an offence,
offence; but does not include a police
(b) upon a police report of such facts; report.
(c) upon information received from any person other than a police Explanation.- A report made by a
officer, or upon his own knowledge, that such offence has been police officer in a case which
committed. discloses, after investigation, the
(2) The Chief Judicial Magistrate may empower any Magistrate of commission of a non- cognizable
the second class to take cognizance under sub- section (1) of such offence shall be deemed to be a
offences as are within his competence to inquire into or try. complaint; and the police officer by
whom such report is made shall be
deemed to be the complainant;
Meaning of Cognizance
• Cognizance has not been defined in the code.

• In general, "cognizance" is defined as "knowledge or notice," while "taking

cognizance of offences" is defined as "taking cognizance of the alleged
commission of an offence i.e. to take note judicially.

• Before beginning to conduct the trial, the judicial officer must take cognizance of
the offence. Taking cognizance does not entail any formal actions; rather, it
happens as soon as a magistrate applies his or her judgement to the alleged
commission of an offence in order to initiate legal action subsequently under s.
200,202,204 towards inquiry and trial.
• Therefore, taking cognizance is referred to as applying the judicial mind.
• However, when a Magistrate applies his mind not for the purpose of proceeding to take
subsequent steps but for taking action of some kind for example ordering investigation
under 156(3) / issuing a search warrant for investigation purposes he cannot be said to
have taken cognizance of the offence.
• Taking cognizance includes INTENTION OF INITIATING a judicial proceeding against
an offender in respect of an offence to see whether there is a BASIS for initiating a
judicial proceeding.
• A private citizen has two ways of initiating a proceeding –FIR / Complaint.
• When a complaint is filed before the Magistrate, the Magistrate may order an investigation.
In such a situation a question arises as to whether the Magistrate had taken cognizance of
offence on COMPLAINT before sending it to investigation or whether the case was sent to
police before cognizance and cognizance was taken on the police report submitted?
• It is well settled that when a complaint has been filed and whether the magistrate has taken
cognizance of the offence u/s 190(1)(a) depends on the PURPOSE for which he applies his
mind.
• If the purpose is to proceed with the complaint under 200-203, he must've taken cognizance.
But if he applies his mind for ordering investigation under 156(3) or for issuing search
warrant under 93 he cannot be said to have taken cognizance.
What can the Magistrate do upon receiving
complaint? Cognizance under 190(1)(a) - Complaint
• On receiving the complaint – Magistrate MAY take cognizance and examine the
complainant on oath under s.200 or instead of taking cognizance may order
investigation under 156(3). Police then investigates and submits a report under 173.
• On receiving the police report, the Magistrate may take cognizance of the offence under
190(1)(b) and straightaway issue process. This he may do irrespective of the view
expressed by the police in the police report whether offence has been made out or not.
• Magistrate is NOT BOUND by the conclusions drawn by the police and he may decide
to issue process irrespective of police recommending that there is no ground for
proceeding further.
• NOTE: Magistrate does not have the power to call upon the police to submit a challan
when they have sent a report saying no case made out for sending accused to trial.
Reject the police report and direct inquiry under s. 202 and take action under 203.
Or
He can take cognizance under 190 at once after disagreeing with the police report. He also has
power to have inquiry under s.200.
Or
The Magistrate after receiving the police report, may without issuing process or dropping the
proceedings, decide to take cognizance of the offence on the original complaint and proceed to
record statements upon oath of complainant and witness under 200 and decide whether to dismiss
the complaint or issue process.
NOTE: The mere fact that he had earlier ordered an investigation under 156(3) and received a
report under 173 does not have the effect of effacement of the complaint and therefore the
Magistrate will not be barred from proceeding under 200,203,204.

Also, the Magistrate taking cognizance of an offence is becoming aware of the commission of that
offence and that awareness continues. So, a magistrate would be entitled to take cognizance of a
complaint case after having taken cognizance of the case of the police report. Even if this involves
taking cognizance twice, there is no harm as no provision in the code prohibits it.
 Cognizance under 190(1)(b) – Police report
• If cognizance is to be taken on the police report(173(2)) under 190(1)(b) – he must
take it on a complete challan not ay other report. It is for the magistrate to decide
whether the report is complete the police cannot control that.
• On receiving the police report, the Magistrate may take cognizance and
straightway issue process. This he may do irrespective of the view expressed by
the police. The Magistrate has not to proceed mechanically in agreeing with the
opinion of the police but apply his mind to all details laid out in the police report.
This order of the Magistrate has to reflect his application of mind.
• NOTE- The Magistrate takes cognizance of the offence NOT offender.
• It is open to the Magistrate to take cognizance under 190(1)(b) even though the
police may have recommended otherwise.
 Cognizance under 190(1)(c)
• Magistrate can take cognizance of any offence upon information received from
any person other than the police or upon his own knowledge.
• The object of this provision is to enable a magistrate to see justice is vindicated
notwithstanding that the persons individually aggrieved are unwilling to or unable
to prosecute. Hence the proper use of the power conferred is to proceed under it
when the Magistrate has reason to believe the commission of the crime, but is
unable to proceed in the ordinary way owing to absence of complainant or police
report.
• However if Magistrate takes cognizance under this section without jurisdiction –
trial would be vitiated.
• The taking of cognizance does not depend upon the presence f accused
in court. The accused has no role in this stage. There is no question of
giving him a hearing when final report is being considered. Remember,
at this stage the cognizance is being take of the offence not offender –
who the offender is has to be decided pos-cognizance.
• It must be noted that a magistrate can take cognizance of any offence
only within the time limits prescribed by law for the purpose. S467-473
deal with provisions relating to the periods of taking cognizance of
certain categories of offences. However, even after the period of
limitation cognizance can be taken if delay is condoned prior to taking
cognizance.
Section 191 - Transfer on application of the
accused.
• When a Magistrate takes cognizance of an offence under clause (c) of
sub- section(1) of section 190, the accused shall, before any evidence
is taken, be informed that he is entitled to have the case inquired into
or tried by another Magistrate, and if the accused or any of the
accused, if there be more than one, objects to further proceedings
before the Magistrate taking cognizance, the case shall be transferred
to such other Magistrate as may be specified by the Chief Judicial
Magistrate in this behalf.
Section 192 - Making over of cases to
Magistrates
• (1) Any Chief Judicial Magistrate may, after taking cognizance of an
offence, make over the case for inquiry or trial to any competent
Magistrate subordinate to him.
• (2) Any Magistrate of the first class empowered in this behalf by the
Chief Judicial Magistrate may, after taking cognizance of an offence,
make over the case for inquiry or trial to such other competent
Magistrate as the Chief Judicial Magistrate may, by general or special
order, specify, and thereupon such Magistrate may hold the inquiry or
trial.
Section 193 - Cognizance of offences by
Courts of Session.
Except as otherwise expressly provided by this Code 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.

Section 194
Additional and Assistant Sessions Judges to try cases made over to
them. An Additional Sessions Judge or Assistant Sessions Judge shall
try such cases as the Sessions Judge of the division may, by general or
special order, make over to him for trial or as the High Court may, by
special order, direct him to try.
Abhinandan Jha v Dinesh Mishra
(1968 AIR 117)

• Whether a Magistrate can direct the police to submit a charge-sheet, when the
police, after the investigation into a cognizable offence, had submitted a final
report, under S. 173 ??

• The High Courts of Madras, Calcutta, Madhya Pradesh, Assam and Gujarat have
taken the view that the Magistrate has no such power, whereas, the Patna and
Bombay High Courts have held a contrary view
• There were two criminal appeals in this case :-
FIRST APPEAL :-
• The respondent, Dinesh Mishra, lodged an FIR, at the Rajoun Police Station, that
he saw a thatched house, of one Uma Kant Misra, situated on the northern side of
his house, burning, and the petitioners herein., running away from the scene.
• The police made an investigation and submitted what is called a 'final report',
under s. 173 to the effect that the offence complained of, was false.
• The respondent had filed what is termed 'a protest petition', challenging the
correctness of the report submitted by the police.
• The Magistrate appears to have perused the police diary and, after
hearing the counsel for the respondent and the public prosecutor, passed
an order, directing the police to submit a charge-sheet, against the
petitioners, herein.
• The petitioners challenged this order, without success, both before the
learned Sessions Judge, Bhagalpur, and the Patna High Court.
• It was held by the High Court, following its previous decision, that
the Magistrate has jurisdiction to call for a charge-sheet, when he
disagrees with the report submitted by the police, under 173.
• Similarly, in THE SECOND APPEAL - the second respondent therein,
had lodged a written report before the police, at Malsalami police
station, that his daughter, Hiramani, was missing and that the appellants
in that appeal, had kidnapped her.
• A case was registered against them. The police, after investigation,
submitted a final report to the Magistrate to the effect that the girl
concerned, had been recovered and that she bad stated that she had, of
her own accord, eloped; and therefore the police stated that the case
might be treated as closed
• The second respondent filed a 'protest petition' in Court, challenging
the statements of the police and he also filed a complaint, under s.
498 I.P.C.
• The Magistrate, after a perusal of the case diary of the police, and
hearing the lawyer for the appellants and the second respondent, as also
the public prosecutor, passed an order directing the investigating officer
to submit a charge-sheet, against the accused persons.
• This order has been confirmed by the, learned Sessions Judge, as well
as the Patna High Court. Here also, the Patna High Court, in accordance
with its previous decision, held that the Magistrate had jurisdiction
to pass the order, in question. All these orders are challenged by the
appellants, in this appeal.
• On behalf of the appellants it was pointed out that when a final report is submitted
by the police, under S. 173(1) of the Code, stating that no case is made out, the
Magistrate has no jurisdiction to direct the police to file a charge-sheet.

• It may be open, counsel points out, to the Magistrate, to direct further

investigation to be made by the police, or to treat the protest petition filed by
the second respondent, as a complaint, and take cognizance of the offence and
proceed, according to law.
• In these two appeals, which are from the State of Bihar, the reports, under s. 169,
are referred to as 'final report’.
• s. 190, which is the first section in the group of sections headed 'Conditions
requisite for Initiation of Proceedings.' Sub-s. (1), of this section, will cover a
report sent, under s. 173. The use of the words 'may take cognizance of any
offence', in sub-s. (1) of s. 190 in the SC’s opinion imports the exercise of a
'judicial discretion', and the Magistrate, who receives the report, under s.. 173, will
have to consider the said report and judicially take a decision, whether or not to
take cognizance of the offence. From this it follows that it is not as if that the
Magistrate is bound to accept ,,the opinion of the police that there is a case
for placing the accused, on trial. It is open to the Magistrate to take the view
that the facts disclosed in the report do not make out an offence for taking
cognizance or he may take the view that there is no sufficient evidence to
justify an accused being put on trial. On either of these grounds, the
Magistrate will be perfectly justified in declining to take cognizance of an
offence, irrespective of the opinion of the police
• On the other hand, if the Magistrate agrees with the report, which is a charge-sheet
submitted by the police, no difficulty whatsoever is caused, because he will have
full jurisdiction to take cognizance of the offence, under s. 190(1)(b) of the Code.
This will be the position, when the report under s. 173, is a charge-sheet.

• What is the position, when the Magistrate is dealing with a report submitted
by the police, under s. 173, that no case is made out for sending up an accused
for trial, which report, as we have already indicated, is called, in the area in
question, as a 'final report'?
• Even in those cases, if the Magistrate agrees with the said report, he may accept the
final report and close the proceedings.
• But there may be instances when the Magistrate may take the view, on a consideration of
the final report, that the opinion formed by the police is not based on a full and complete
investigation, in which case in our opinion the Magistrate will have ample jurisdiction
to give directions to the police, under s. 156 ( 3 ), to make a further investigation.
That is, if the Magistrate feels, after considering the final report, that the investigation is
unsatisfactory, or incomplete, or that there is scope for further investigation, it will be
open to the Magistrate to decline to accept the final report and direct the police to make
further investigation, under s. 156(3). The police, after such further investigation, may
submit a charge-sheet, or,, again submit a final report, depending upon the further
investigation made by them.
• If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report,
constitute an offence, he, can take cognizance of the offence under s. 190(1) (c),
notwithstanding the contrary opinion of the police, expressed in the final report.
• In this connection, the provisions of S. 169 of the Code, are relevant. They
specifically provide that even though, on investigation, a police officer, or other
investigating officer, is of the opinion that there is no case for proceeding against
the accused, he is bound, While releasing the accused,, to take a bond from him to
appear, if and when required, before a Magistrate

• This provision is obviously to meet a contingency of the Magistrate, when he

considers the report of the investigating officer, and judicially takes a view
different from the police.
• whether or not there is a case to place the accused on trial before a
Magistrate, is 'left to the officer in-charge of the police station. There is
no express power, so far as we can see, which gives jurisdiction to pass
an order of the nature under attack; nor can any such powers be implied.
There is certainly no obligation, on the Magistrate, to accept the report,
if he does not agree with the opinion formed by the police. Under those
circumstances, if he still suspects that an offence has been committed,
he is entitled, notwithstanding the opinion of tile police, to take
cognizance, under S. 190(1)(c) of the Code.
• Therefore, a very wide power is conferred on the Magistrate to take cognizance of
an offence not only when he receives information about the commission of an
offence from a third person, but also where he has knowledge or even suspicion
that the offence has been committed. It is open to the Magistrate to take
cognizance of the offence, under s. 190(1) (c), on the ground that, after having
due regard to the final report and the police records placed before him, be
has reason to suspect that an offence has been committed.
• Therefore, these circumstances will also clearly negative the power of a
Magistrate to call for a charge-sheet from the police, when they have
submitted a final report.
• The entire scheme of Chapter XIV clearly indicates that the formation of the
opinion, as to whether or not there is a case to, place the accused for trial, is that
of the officer in-charge of the police station and that opinion determines whether
the report is to be under s. 170, being a 'charge- sheet', or under S. 169, 'a final
report’.
• It is no doubt open to the Magistrate, as we have already pointed out, to accept or
disagree with the opinion of the police and, if he disagrees, he is entitled to adopt
any one of the courses indicated by us. But he cannot direct the police to submit
a charge-sheet, because, the submission of the report depends upon the
opinion formed by the police, and not on the opinion of the Magistrate.
• The Magistrate cannot compel the police to form a particular
opinion, on the investigation, and to submit a report, according to
such opinion. This will be really encroaching on the sphere of the
police and compelling the police to form an opinion so as to accord with
the decision of the Magistrate and send a report, either under s. 169, or
under s. 170, depending upon the nature of the decision. Such a function
has been left to the police, under the Code.
Can Magistrate differ from the police and call
upon them to submit a final report, under s.169 ?
• The Magistrate has no such power. If he has no such power, in law,
it also follows that the Magistrate has no power to direct the police to
submit a charge-sheet when the police have submitted a final report
that no case is made out for sending the accused for trial.
• The functions of the Magistracy and the police, are entirely different,
and though, in the circumstances mentioned earlier the Magistrate may
or may not accept the report, and take suitable action, according to
law, he cannot certainly infringe upon the jurisdiction of the police, by
compelling them to change their opinion, so as to accord with his view
• To conclude, there is no power, expressly or impliedly conferred, under the
Code, on a Magistrate to call upon the police to submit a charge-sheet, when
they have sent a report under s. 169 of the Code, that there is no case made
out for sending tip an accused for trial.

• Therefore, while holding that the orders of the Magistrate, in each of these cases,
directing the police to file charge-sheets, is Without jurisdiction, we make it
clear that it is open to the Magistrate to treat the respective protest petitions,
as complaints, and take further proceedings, according to law, and in the
light of the views expressed by us, in this judgment.
 Bhagwant Singh v. Comm’r of Police
(1985) 2 SCC 537
• Gurinder Kaur died as a result of burns received by her and allegedly she was burnt by
her husband and his parents on account of failure to satisfy their demand for dowry. The
circumstances in which Gurinder Kaur met with her unnatural death were investigated
by the Central Bureau of Investigation and a report was filed by the Central Bureau of
Investigation in the court of the Chief Metropolitan Magistrate on 11th August, 1982
stating that in their opinion in respect of the unnatural death of Gurinder Kaur no offence
appeared to have been committed.
• The petitioner was however not aware that such a report had been submitted by the
Central Bureau of Investigation and he, therefore, brought an application for initiating
proceedings for contempt against the Central Bureau of Investigation on the ground that
the Central Bureau of Investigation had not completed their investigation and submitted
their report within the period stipulated by the Court by its earlier order.
 Issues
• 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.
• Whether in a case where First Information Report is lodged and after completion
of investigation initiated on the basis of the First Information Report, the police
submits a report that no offence appears to have been committed, the Magistrate
can accept the report and drop the proceeding without issuing notice to the first
informant or to the injured or in case the incident has resulted in death, to the
relatives of the deceased.
• Sub-section (2)(i) of Section 173 provides that as soon as investigation is
completed, the officer in charge of a police station shall forward to the magistrate
empowered to take cognizance of the offence on a police report, a report in the
form prescribed by the State Government setting out various particulars including
whether, in the opinion of the officer, as offence appears to have been committed
and if so, by whom

• Sub-section (2)(ii) of Section 173 states that the officer shall also communicate, in
such manner as may be prescribed by the State Government, the action taken by
him to the person, if any, by whom the information relating to the
commission of the offence was first given.
• When an informant lodges the First Information Report with the officer-
in- charge of a police station he does not fade away with the lodging of
the First Information Report.
• He is very much concerned with what action is initiated by the officer in
charge of the police station on the basis of the First Information Report
lodged by him. On sooner he lodges the First Information Report, a
copy of it has to be supplied him, free of cost, under sub- section (2)
of Section 154.
• If notwithstanding the First Information Report, the officer-in-charge of a police
station decides not to investigate the case on the view that there is no sufficient
ground for entering on an investigation, he is required under sub-section (2)
of Section 157 to notify to the informant the fact that he is not going to
investigate the case because it to be investigated.
• Then again, the officer in charge of a police station is obligated under sub-
section(2)(ii) of Section 173 to communicate the action taken by him to the
informant and the report forwarded by him to the magistrate under sub- section
(2)(i) has therefore to be supplied by him to the informant
• The question immediately arises as to why action taken by the officer in charge
of a police station on the First Information Report is required to be
communicated and the report forwarded to the Magistrate under sub-section
(2)(i) of Section 173 required to be supplied to the informant.
• When the report forwarded by the officer-in charge of a police station to the
Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by
the Magistrate, one of two different situations may arise. The report may
conclude that an offence appears to have been committed by a particular person
or persons and in such a case, the Magistrate may do one of three things:
• he may accept the report and take cognizance of the offence and issue process
• he may disagree with the report and drop the proceeding
• he may direct further investigation under sub-section (3) of Section 156 and
require the police to make a further report.
 When police report states no offence appears
to have been committed
The Magistrate again has an option to adopt one of three courses :
• (1)he may accept the report and drop the proceeding or
• (2) he may disagree with the report and taking the view that there is sufficient
ground for proceeding further, take cognizance of the offence and issue process or
• (3) he may direct further investigation to be made by the police under sub-section
(3) of Section 156
• If the Magistrate decides to take cognizance of the offence and to issue process, the
informant is not prejudicially affected nor is the injured or in case of death, any
relative of the deceased aggrieved, because cognizance of the offence is taken by the
Magistrate and it is decided by the Magistrate that the case shall proceed.

• But if the Magistrate decides that there is no sufficient ground for proceeding further
and drops the proceeding or takes the view that though there is sufficient ground for
proceeding against some, there is no sufficient ground for proceeding against others
mentioned in the First Information Report, the informant would certainly be
prejudiced because the First Information Report lodged by him would have failed
of its purpose, wholly or in part.
• Moreover, when the interest of the informant in prompt and effective action being
taken on the First Information Report lodged by him is clearly recognised by the
provisions contained in sub-section (2) of Section 154, sub- section (2) of Section
157 and sub-section (2)(ii) of Section 173, it must be presumed that the
informant would equally be interested in seeing that the Magistrate takes
cognizance of the offence and issues process, because that would be
culmination of the First Information Report lodged by him.
• 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)(i) 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 submissions to persuade the Magistrate to take cognizance of
the offence and issue process. (PROTEST PETITION)
HELD
• The SC was accordingly of the view that in a case where the magistrate to whom a report
is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of
the 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
• the First Information Report has to be communicated to the informant and a copy of the
report has to be supplied to him under sub-section (2) (i) of Section 173 if that be so, we
do not see any reason why it should be difficult to serve notice of the consideration of
the report on the informant.
• The difficulty of service of notice on the informant cannot possibly provide any
justification for depriving the informant of the opportunity of being heard at the time
when the report is considered by the Magistrate.
Whether the injured person or a relative of the deceased, who is
not the informant, is entitled to notice when the report comes up
for consideration by the Magistrate?
• The injured person or any relative of the deceased, though not entitled to notice
from the Magistrate, has locus to appear before the Magistrate at that time of
consideration of the report, if he otherwise comes to know that the report is going
to be considered by the Magistrate and if he wants to make his submissions in
regard to the report, the Magistrate is bound to hear him.
HS Bains v. State(1980) 4 SCC 631
• Gurnam Singh a resident of Chandigarh submitted a complaint to the JMFC
Chandigarh, alleging that the appellant H. S. Bains accompanied by two persons
had come to his house in a car on the morning of August, trespassed into the house
and threatened to kill him and his natural son if he did not take away his natural
son Aman Deep Singh from the house of his sister Bakshish Kaur, who had taken
the boy in adoption as she was issueless.
• Bakshish Kaur was the widow of the brother of the appellant and the adoption
made by Bakshish Kaur was not to the liking of the appellant
• It was alleged in the complaint that the appellant was armed with a revolver which
he pointed at the complainant. The complainant raised a hue and cry. The accused
and his companions fled away in their car.
• As August 11, 1979 and August 12, 1979 were holidays, he was able to file the
complaint only on 13th August, 1979.
• The learned Magistrate to whom the complaint was submitted ordered an
investigation by the police under Sec. 156(3) Cr.PC
• The police after completing the investigation, submitted a report to the Magistrate
under Sec. 173 stating that the case against the appellant was not true and that it
might be dropped.
• The police arrived at the conclusion that the case against the appellant was not true
as their investigation revealed, according to them, that the appellant was at
Amritsar with Shri Jai Singh, District Magistrate of Amritsar at 9 a.m. on August
11, 1979 and it was, therefore, impossible for him to have been at Chandigarh at 8
a.m. on August 11, 1979.
• The learned Magistrate after perusing the report submitted by the police
disagreed with the conclusion of police, took cognizance of the case
under Sections of the Indian Penal Code and directed the issue of process to the
appellant.
Aggrieved by the issue of process, the appellant filed Criminal
Miscellaneous Case, in the High Court of Punjab and Haryana to quash
the proceedings before the Magistrate.

The application was dismissed by the High Court and the appellant
filed a petition for the grant of special leave to appeal against the
order of the High Court.

The SC granted Special Leave and straightaway heard the appeal with the
consent of the parties.
 Appellant Contentions
• The Magistrate had issued process to the accused without recording the statement,
on oath, of the complainant and the witnesses under Sec. 200 and therefore, he
must be said to have taken cognizance of the case under Sec. 190(1)(b), as if
upon a police report.

• It was submitted that the Magistrate was not competent to take cognizance of
the case as if it was upon a police report as the report under Sec.
173 submitted to him disclosed that no offence had been committed by the
accused.
• In the circumstances of the case, the Magistrate, on receipt of the report under Sec.
173 to the effect that the case against the accused was not proved, had only two
options before him. He could either :
• order a further investigation or
• he could take cognizance of the case as if upon a complaint, record the statements
of the complainant and witnesses under Sec. 200 and then proceed to issue process
if he was satisfied that process ought to be issued

• It was submitted that the order of the Ist Class Magistrate taking cognizance of
the case was so unjudicial that it ought to be struck down.
SC OBSERVATIONS ON whether
cognizance judicial
On receipt of a complaint a Magistrate has several courses open to him :

• He may take cognizance of the offence and proceed to record the statements of the
complainant and the witnesses present under Sec. 200.Thereafter, if in his opinion
there is no sufficient ground for proceeding he may dismiss the complaint
under Sec. 203.
• If in his opinion there is sufficient ground for proceeding he may issue process
under Sec. 204.
• However, if he thinks fit, he may postpone the issue of process and either enquire
into the case himself or direct an investigation to be made by a Police Officer
or such other person as he thinks fit for the purpose of deciding whether or not
there is sufficient ground for proceeding. He may then issue process if in his
opinion there is sufficient ground for proceeding or dismiss the complaint if there
is no sufficient ground for proceeding.
• On the other hand, in the first instance, on receipt of a complaint, the Magistrate
may, instead of taking cognizance of the offence, order an investigation under
Sec. 156(3).
• The police will then investigate and submit a report under Sec. 173(1). On
receiving the police report the Magistrate may take cognizance of the offence
under Sec. 190(1)(b) and straightaway issue process.
• This he may do irrespective of the view expressed by the police in their report
whether an offence has been made out or not. The Police report under Sec. 173
will contain the facts discovered or unearthed by the police and the conclusion
drawn by the police therefrom.
• The Magistrate is not bound by the conclusions drawn by the Police and he may
decide to issue process even if the Police recommend that there is no sufficient
ground for proceeding further.
• The Magistrate after receiving the Police report, may, without issuing
process or dropping the proceeding decide to take cognizance of the
offence on the basis of the complaint originally submitted to him and
proceed to record the statements upon oath of the complainant and the
witnesses present under Sec. 200 Criminal Procedure Code

• and thereafter decide whether to dismiss the complaint or issue process.

The mere fact that he had earlier ordered an investigation under Sec.
156(3) and received a report under Sec. 173 will not have the effect
of total effacement of the complaint and therefore the Magistrate
will not be barred from proceeding under Sections
200, 203 and 204.
Thus, a Magistrate who on receipt of a complaint, orders an investigation under
Sec. 156(3) and receives a police report under Sec. 173(1), may, thereafter, do
one of three things:
(1) he may decide that there is no sufficient ground for proceeding further and drop
action;
(2) he may take cognizance of the offence under Sec. 190(1)(b) on the basis of the
police report and issue process; this he may do without being bound in any manner
by the conclusion arrived at by the police in their report:
(3) he may take cognizance of the offence under Sec. 190(1)(a) on the basis of the
original complaint and proceed to examine upon oath the complainant and his
witnesses under Sec. 200 If he adopts the third alternative, he may hold or direct an
inquiry under Sec. 202 if he thinks fit. Thereafter he may dismiss the complaint or
issue process, as the case may be.
Sec. 190(1)(c) was never intended to apply to cases where there was a police report
under Sec. 173(1).The SC found it impossible to say that a Magistrate who takes
cognizance of an offence on the basis of the facts disclosed in a police report must
be said to have taken cognizance of the offence on suspicion and not upon a
police report merely because the Magistrate and the Police arrived at different
conclusions from the facts.

The Magistrate is not bound by the conclusions arrived at by the police even as he is
not bound by the conclusions arrived at by the complainant in a complaint. If a
complainant states the relevant facts in his complaint and alleges that the accused is
guilty of an offence under Sec. 307 Indian Penal Code the Magistrate is not bound
by the conclusion of the complainant. He may think that the facts disclose an
offence under Sec. 324 Indian Penal Code only and he may take cognizance of an
offence under Sec. 324 instead of Sec. 307.
• Similarly if a police report mentions that half a dozen persons examined by them
claim to be eye witnesses to a murder but that for various reasons the witnesses
could not be believed, the Magistrate is not bound to accept the opinion of the
police regarding the credibility of the witnesses.
• He may prefer ignore the conclusions of the police regarding the credibility of the
witnesses and take cognizance of the offence. If he does so, it would be on the
basis of the statements of the witnesses as revealed by the police report. He
would be taking cognizance upon the facts disclosed by the police report
though not on the conclusions arrived at by the police. It could not be said in
such a case that he was taking cognizance on suspicion.
• SC was therefore unable to agree with the submission of the appellant that
the Magistrate acted without jurisdiction in taking cognizance of the offence
and issuing process to the accused notwithstanding the fact that the police report
was to the effect that no case had been made out.
 Kishun Singh v. State of Bihar
(1993) 2 SCC 16
• On the evening of 27th February, 1990 Uma Kant Thakur, younger brother of the
informant, was attacked by twenty persons including the present two appellants with
sticks, etc.
• A First Information Report was lodged at about 9.30 p.m. on the same day in which all
the twenty persons were named as the assailants. The injured Umakant Thakur died in
the Patna Hospital on the next day.
• In the course of investigation statements of the informant as well as others came to be
recorded and a charge-sheet dated 10th June, 1990 was forwarded to the Court of the
learned Magistrate on 17th June, 1990 wherein eighteen persons other than the two
appellants were shown as the offenders.
• The names of the present two appellants were not included in the said report as in the
opinion of the investigating officer their involvement in the commission of the crime
was not established
• A final report to that effect was submitted on 4th September, 1990 to the Chief Judicial
Magistrate on which no orders were passed. The concerned Magistrate committed the
eighteen persons named in the report to the Court of Session, Dharbanga,
under Section 209 of the Code to stand trial.

• When the matter came up before the learned Sessions Judge, Dharbanga, an application
was presented under Section 319 of the Code praying that the material on record
annexed to the report under Section 173 of the Code revealed the involvement of the
two appellants also and hence they should be summoned and arraigned before the
Court as accused persons along with the eighteen already named in the charge-sheet.

• Thereupon a show cause notice was issued to the present two appellants in response
whereto they contended that though they were not present at the place of occurrence,
they were falsely named in the First Information Report and the investigating officer had
rightly omitted their names from the charge-sheet filed in Court.
• The learned Sessions Judge rejected the plea put forth by the appellants and
exercised the discretion vested in him under Section 319 of the Code by
impleading the appellants as co- accused along with the eighteen others.
Indisputably this was done before any evidence was recorded i.e. before the
commencement of the actual trial.

• The appellants thereupon filed a Criminal Revision Application before the High
Court of Patna assailing the order passed by the learned Sessions Judge taking
cognizance against them. The High Court after hearing counsel for the parties
dismissed the Revision Application.

• It is against this order passed by the learned Single Judge of the High Court that
the appellants have moved this Court by special leave under Article 136 of the
Constitution of India.
ISSUE
• Whether a Court of Session to which a case is committed for trial
by a Magistrate can, without itself recording evidence, summon a
person not named in the Police Report presented under Section
173 of the Code of Criminal Procedure, 1973,to stand trial along
with those already named therein, in exercise of power conferred
by Section 319 of the Code ?
• Appellants contended unless evidence was recorded during the course of trial
the Sessions Judge had no jurisdiction under Section 319 of the Code to take
cognizance and implead the appellants as co- accused solely on the basis of the
material collected in the course of investigation and appended to the report
forwarded under Section 173 of the Code in view of the clear mandate of Section
193 of the Code.
• The question which arises for consideration in the backdrop of the aforestated
facts is :
• Whether the learned Sessions Judge was justified in law in invoking Section
319 of the Code at the stage at which the proceedings were pending before
him solely on the basis of the documents including statements recorded
under Section 161 of the Code during investigation without commencing trial
and recording evidence therein?
• Counsel for the appellants also contended that section 319 being a self
contained provision, the power thereunder can be exercised strictly
in terms of the section which permits the exercise of power only if
'it appears from the evidence' in the course of the inquiry or trial of
an offence, that any person, besides the accused already put up for trial,
has committed any offence arising from the incident in question.
• Counsel submitted that the power cannot be exercised before 'evidence' is led as
the involvement of the person must appear from the evidence tendered at the
trial because it is at that stage that the court must apply its mind about the
complicity of the person not arraigned before it in the commission of the
crime.
• Therefore it was submitted that in the present case since the trial had not
commenced and the prosecution had not led any evidence, the stage for the
exercise of the power had not reached.
• Appellants submitted that once a Court of Session takes cognizance in the power
to summon or arrest a person not named in the police report can be exercised
under Section 319 of the Code only if the condition precedent, namely, the
commencement of the trial and recording of evidence, is satisfied.
• It may immediately be noticed that under the old provision a Court of Session
could not take cognizance of an offence as a Court of original jurisdiction unless
the accused was committed to it.
• Whereas under the recast section (Section 190 )as it presently stands the
expression the accused has been replaced by the words the case.
• Under section 190 cognizance has to be taken for the offence and not the
offender: so also under section 193 the emphasis now is to the committal of the
case and no more on the offender.
• So also section 209 speaks of committing the case to the Court of Session. On a
conjoint reading of these provisions it becomes clear that while under the Old
Code in view of the language of section 193 unless an accused was committed to
the Court of Session the said court not take cognizance of an offence as a court of
original jurisdiction; now under section 193 as it presently stands once the case is
committed the restriction disappears.
This Court after considering the relevant provisions of the Code concluded as under :
"Section 319 empowers the court to proceed against persons not being the accused
appearing to be guilty of offence. Sub-sections (1) and (2) of this section provide for a
situation when a court hearing a case against certain accused person finds from A the
evidence that some person or persons, other than the accused before it, is or are also
connected in this very offence or any connected offence; and it empowers the court to
proceed against such person or persons for the offence which he or they appears or appear
to have committed and issue process for the purpose.

It provides that the cognizance against newly added accused is deemed to have been
taken in the same manner in which cognizance was first taken of the offence against
the earlier accused. It naturally deals with a matter arising from the course of the
proceeding already initiated.
• On a plain reading of sub-section (1) of Section 319 there can be no
doubt that it must appear from the evidence tendered in the course of
any inquiry or trial that any person not being the accused has
committed any offence for which he could be tried together with
the accused. This power, it seems clear to us, can be exercised only
if it so appears from the evidence at the trial and not otherwise.

• Therefore, this sub-section contemplates existence of some evidence

appearing in the course of trial wherefrom the Court can prima facie
conclude that the person not arraigned before it is also involved in the
commission of the crime for which he can be tried with those already
named by the police.
• Even a person who has earlier been discharged would fall within the sweep of the
power conferred by Section 319 of the Code. Therefore, stricto sensu, Section
319 of the Code cannot be invoked in a case like the present one where no
evidence has been led at a trial wherefrom it can be said that the appellants
appear to have been involved in the commission of the crime along with those
already sent up for trial by the prosecution.
• It must be conceded that Section 319 covers the post-cognizance stage where in
the course of an inquiry or trial the involvement or complicity of a person or
persons not named by the investigating agency has surfaced which necessitates the
exercise of the discretionary power conferred by the said provision.

• Section 319 can be invoked both by the Court having original jurisdiction as well
as the Court to which the case has been committed or transferred for trial.
• The sweep of Section 319 is, therefore, limited, in that, it is an enabling
provision which can be invoked only if evidence surfaces in the
course of an inquiry or a trial disclosing the complicity of a person
or persons other than the person or persons already arraigned
before it. If this is the true scope and ambit of Section 319 of the Code,
the question is whether there is any other provision in the Code which
would entitle the Court to pass a similar order in similar circumstances.
• Section 319 deals with only one situation, namely, the complicity
coming to light from the evidence taken and recorded in the course
of an inquiry or trial. This may happen not merely in cases where
despite the name of a person figuring in the course of investigation the
investigating agency does not send him up for trial but even in cases
where the complicity of such a person comes to light for the first time in
the course of evidence recorded at the inquiry or trial
• Once the purport of Section 319 is so understood it is obvious that the
scope of its operation or the area of its play would also be limited to
cases where after cognizance the involvement of any person or
persons in the commission of the crime comes to light in the course
of evidence recorded at the Inquiry or trial. Thus the Section does
not apply to all situations and cannot be interpreted to be
repository of all power for summoning such person or persons to
stand trial along with others arraigned before the Court.
• The question then is whether dehors Section 319 the Code, can
similar power be traced to any other provision in the Code or can
such power be Implied from the scheme of the Code?

• After cognizance is taken under section 190(1) of the Code, in warrant

cases the Court is required to frame a charge containing particulars as
to the time and place of the alleged offence and the person (if any)
against whom, or the thing (if any) in respect of which, it was
committed.
• But before framing the charge section 227 of the Code provides that if, upon a
consideration of the record of the case and the documents submitted therewith,
the Sessions Judge considers that there is not sufficient ground for proceeding
against the accused, he shalt for reasons to be recorded, discharge the accused

• It is only when the Judge is of opinion that there is ground for presuming that the
accused has committed an offence that he will proceed to frame a charge and
record the plea of the accused (vide, section 228). It becomes immediately clear
that for the limited purpose of deciding whether or not to frame a charge
against the accused, the judge would be required to examine the record of the
case and the documents submitted therewith, which would comprise the
police report, the statements of witnesses recorded under section 161 of the
Code, the seizure-memoranda, etc., etc
• If, on application of mind for this limited purpose, the Judge finds that
besides the accused arraigned before the him the complicity or
involvement of others in the commission of the crime prima facie
surfaces from the material placed before him, what course of action
should he adopt?

• Once the court takes cognizance of the offence (not the offender) it becomes
the court's duty to find out the real offenders and if it comes to the
conclusion that besides the persons put up for trial by the police some
others are also involved in the commission of the crime, it is the court's
duty to summon them to stand trial along with those already named,
since summoning them would only be a part of the process of taking
cognizance.
• Under the old Code the Court of Session was precluded from taking
cognizance of any offence as a Court of original jurisdiction unless the
accused was committed to it whereas under the present Code
the embargo is diluted by the replacement of the words the
accused by the words the case.

• Thus, on a plain reading of section 193 as it presently stands once

the case is committed to the Court of Session by a magistrate
under the Code, the restriction placed on the power of the Court
of Session to take cognizance of an offence as a court of original
jurisdiction gets lifted
• On the magistrate committing the case under section 209 to the Court
of Session the bar of section 193 is lifted

• thereby investing the Court of Session complete and unfettered

jurisdiction of the Court of original jurisdiction to take cognizance
of the offence which would

• include the Summoning of the person or persons whose complicity

in the commission of the crime can prima facie be gathered from
the material available on record.
• Submission of the learned counsel for the appellants that the stage for
the exercise of power under section 319 of the Code had not reached,
inasmuch as, the trial had not commenced and evidence was not led,
since the Court of Session had the power under section 193 of the
Code to summon the appellants as their involvement in the
commission of the crime prima facie appeared from the record of
the case,
• SC saw no reason to interfere with the impugned order as it is well-
settled that once under it is found that the power exists the exercise
of power under a wrong provision will not render the order illegal
or invalid. We, therefore, dismiss this appeal.
DL Reddy v. VN Reddy (1976) 3 SCC 252 (

Whether in view of Clause (a) of the First Proviso to s, 202(1) of the Code of
Criminal Procedure, 1973, a Magistrate who receives a complaint, disclosing
an offence exclusively triable by the Court of Session, is debarred from sending
the same to the police for investigation under s. 156(3) of the Code ?
• Respondent 1 herein made a complaint on July 26" 1975 before the Judicial Magistrate, First Class, Dharamavaram
against the appellants herein alleging that. On account of factions existing village Thippapalli the appellants formed
themselves into an unlawful assembly, armed with deadly weapon, such as axes, spears and sticks, on the night of
June 20,1975 and entered the houses of several persons belonging to the opposite party, attacked the inmates and
forcibly took way jewels, paddy, ground-nuts and other valuables of the total value of two lakhs of rupees. It was
further alleged that the miscreants thereafter went to the fields and removed parts of machinery worth over Rs.
40,000/-, installed at the wells of their enemies. On these facts it was alleged that the accused had committed
offences under s147, 148, 149, 307, 395, 448, 378 and 342 of the Penal Code. The offences under ss.
307 and 395 are exclusively triable by the Court of Session.
• The Magistrate on receiving the complaint forwarded it to the Police for investigation with this endorsement:
"Forwarded under s. 156(3), Cr. Procedure Code to the Inspector of Police, Dharmavaram for investigation and report
on or before 5-8-1975.“
• The appellants moved the High Court of Andhra Pradesh by petition under s. 482 of the Code of Criminal
Procedure, 1973 (which corresponds to s. 561-A of the old Code) praying that the order passed by the
Magistrate be quashed inasmuch as "it was illegal, unjust and gravely prejudicial to the petitioners". The
learned Judge of the High Court. who heard the petition., dismissed it by an order dated October 20, 1975.
• According to the Counsel, under the new Code, if a complaint discloses an offence
triable exclusively be court of Session, the Magistrate is bound to proceed with
that complaint himself before issuing process to the accused. The point pressed
into argument is that clause (a) of the first Proviso to s. 202(1), the new Code
peremptorily prohibits the Magistrate, to direct investigation of such a complaint
by the Police or any other person.
• As against this, Mr. Ram Reddy, whose arguments have been adopted by Mr.
Chaudhary, submits that the powers conferred on the Magistrate under s. 156(3) of
the Code are independent of his power to send the case for investigation under. s.
202 of the Code; that the power under s. 156 (3) can be invoked at a stage when
the Magistrate has not taken cognizance of the case while s. 202 comes into
operation after the Magistrate starts dealing with the complaint in accordance with
the Provisions of Chapter XV.
• It is urged that since in the instant case, the Magistrate had sent the complaint for
police investigation without taking such cognizance s. 202 including the bar
enacted therein, was not attracted. In the alternative, it is submitted that the ban in
the 1st Proviso to s. 202, becomes operative only when the Magistrate after
applying his mind to the allegations in the com plaint and the other material"
including the statement of the complainant and his witnesses, if any, recorded
under s. 200,, is prima facie satisfied that the offence complained of is triable
exclusively by the Court of Session.
• The point sought to be made out is that a mere allegation in the complaint
that the offence committed is one exclusively triable by the Court of Session,
does not oust the jurisdiction of the Magistrate to get the case investigated by
the police or other person. The word "appears" according to Counsel, imports a
prerequisite or condition precedent, the existence of which must be objectively
and judicially established before the prohibition in the 1st Proviso to s.
202 becomes operative. It is added that in the instant case,, the existance of this
condition precedent was not, and indeed could not he established.
• It is well settled that when a Magistrate receives a complaint, he is not bound to
take cognizance if the facts alleged in the complaint, disclose the commission of
an offence. This is clear from the use of the words "may take cognizance" which
in the context in which they occur cannot be equated with must take cognizance".
The word "may" gives a discretion to the Magistrate in the matter. If on a reading
of the complaint he finds that the allegations therein disclose a cognizable
offence and the forwarding of the complaint to the police for investigation
under s. 156(3) will be conducive to justice and save the valuable time of the
Magistrate from being wasted in enquiring into a matter which was primarily
the duty of the police to investigate, he will be justified in adopting that
course as an alternative to taking cognizance of the offence, himself.
• This raises the incidental question: What is meant by "taking cognizance of an
offence`' by a Magistrate within the contemplation of s. 190?
• Whether the Magistrate has or has not taken cognizance of the offence will depend
on the circumstances of the particular case including the mode in which the case is
sought to be instituted and the nature of the preliminary action, if any, taken by the
Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate
applies his mind for the purposes of proceeding under s. 200 and the succeeding
sections in Chapter XV of the Code of 1973, he is said to have taken cognizance
of the offence within the meaning of s. 190(l)(a). If, instead of proceeding under
Chapter XV, he has in the judicial exercise of his discretion, taken action of some
other kind, such as issuing a search warrant for the purpose of investigation, or
ordering investigation by the police under s. 156(3), he cannot be said to have
taken cognizance of any offence.
• The distinction between a police investigation ordered under s. 156(3) and the one
directed under s. 202, has also been maintained under the new Code; but a rider
has been clamped by the 1st Proviso to s. 202(1) that if it appears to the Magistrate
that an offence triable exclusively by the Court of Session has been committed, he
shall not make any direction for investigation.
• Section 156(3) occurs in Chapter XII, under the caption: "Information to the
Police and their powers to investigate"; while s. 202 is in Chapter XV which bears
the heading "Of complaints to Magistrates". The power to order police
investigation under s. 156(3) is different from the power to direct
investigation conferred by s. 202(1). The two operate in distinct spheres at
different stages. The first is exercisable at the pre cognizance stage, the
second at the post-cognizance stage when the Magistrate is in seisin of the
case.
• 'That is to say in the case of a complaint regarding the commission of a cognizable offence, the
power under s. 156(3) can be invoked by the Magistrate before he takes cognizance of the
offence under s. 190(1)(a). But if he once takes such cognizance and embarks upon the
procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance
stage and avail of s. 156(3).
• It may be noted further that an order made under sub-section (3) of s. 156, is in the nature of a
peremptory reminder or intimation to the police to exercise their plenary powers of investigation
under s. 156(1). Such an investigation embraces the entire continuous process which begins
with the collection of evidence under s. 156 and ends with a report or chargesheet under s. 173.
• On the other hand s. 202 comes in at a stage when some evidence has been collected by the
Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a
decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is
empowered under s. 202 to direct within the limits circumscribed by that section, an
investigation "for the purpose of deciding whether or not here is sufficient ground for
proceeding ". Thus the object of an investigation under s. 202 is not to initiate a fresh case on
police report but to assist the Magistrate in completing proceedings already instituted upon a
complaint before him.
• In the instant case the Magistrate did not apply his mind to the complaint for
deciding whether or not there is sufficient ground for proceeding; but only for
ordering an investigation under s. 156(3). He did not bring into motion the
machinery of Chapter XV. He did not examine the complaint or his witnesses
under s. 200, Cr.P.C., which is the first step in the procedure prescribed under that
Chapter. The question of taking the next step of that procedure envisaged in s.
202 did not arise. Instead of taking cognizance of the offence he has., in the
exercise of his discretion, sent the complaint for investigation by police
under s. 156.
• This being the position, s. 202(1), 1st Proviso was not attracted. Indeed, it is
not necessary for the decision of this case to express any final opinion on the
ambit and scope of the 1st Proviso to s. 202(1) of the Code of 1973. Suffice it to
say, the stage at which s. 202 could become operative was never reached in this
case.
• For the foregoing reasons, we answer the question posed" in the negative, and
dismiss this appeal.
Vinubhai Malaviya v. State of Gujarat (2019 14 SCALE 1)

• This case arises out of a First Information Report (hereinafter referred to as “FIR”) that was lodged on 22.12.2009. The FIR is by one
Nitinbhai Mangubhai Patel, Power-of-Attorney holder of Ramanbhai Bhagubhai Patel and Shankarbhai Bhagubhai Patel, who are
allegedly residing at “UK or USA”. The gravamen of the complaint made in the FIR is that one Vinubhai Haribhai Malaviya is
blackmailing these two gentlemen with respect to agricultural land which is just outside the city of Surat, Gujarat and which
admeasures about 8296 square meters.
• The FIR alleges that Ramanbhai Patel and Shankarbhai Patel are 2 absolute and independent owners of this land, having obtained it
from one Bhikhabhai Khushalbhai and his wife Bhikiben Bhikhabhai in the year 1975 together with Vinubhai Haribhai Malaviya and
Manubhai Kurjibhai Malaviya have hatched a conspiracy in collusion with each other, and published a public notice under the caption
“Beware of Land-grabbers” in a local newspaper on 07.06.2008.
• Sometime thereafter, Vinubhai Haribhai Malaviya then contacted an intermediary, who in turn contacted Nitinbhai Patel (who lodged
the FIR), whereby, according to Nitinbhai Patel, Vinubhai Malaviya demanded an amount of Rs. 2.5 crores in order to “settle” disputes
in respect of this land. It is alleged in the said FIR that apart from attempting to extort money from the said Nitinbhai Patel, the heirs of
Bhikhabhai and Bhikiben together with Vinubhai Haribhai Malaviya and Manubhai Kurjibhai Malaviya have used a fake and bogus
‘Satakhat’ and Power-of-Attorney in respect of the said land, and had tried to grab this land from its lawful owners Ramanbhai and
Shankarbhai Patel.
• The background to the FIR is the fact that one Khushalbhai was the original tenant of agricultural land, bearing Revenue Survey
No.342, admeasuring 2 Acres, 2 Gunthas, situated at Puna (Mauje), Choriyasi (Tal), District Surat. Khushalbhai died, after which his
son Bhikhabhai became tenant in his place. Bhikhabhai in turn died on 23.12.1984 and his wife Bhikiben died on 18.12.1999. A public
notice dated 07.06.2008 was issued in ‘Gujarat Mitra’ and ‘Gujarat Darpan Dainik’ by the heirs of Bhikhabhai, stating that Ramanbhai
and Shankarbhai Patel are land-grabbers, and are attempting to create third-party rights in the said property. This led to the legal heirs of
Bhikhabhai, through their Power-of-Attorney holder, applying on 12.06.2008 to the Collector, Nanpura (Surat), to cancel revenue
entries that were made way back in 1976.
• Pursuant to the filing of the FIR, investigation was conducted by the police,
which resulted in a charge-sheet dated 22.04.2010 being submitted to the
Judicial Magistrate (First Class), Surat. On 23.04.2010, the said Magistrate
took cognizance and issued summons to the accused regarding offences
under Sections 420, 465, 467, 468, 471, 384 and 511 of the Indian Penal Code,
1860 (hereinafter referred to as “IPC”).
• Pursuant to the summons, the accused appeared before the said Magistrate. On
10.06.2011, an application (Exhibit 28) was filed by Accused No.1 Vinubhai
Haribhai Malaviya for further investigation under Section 173(8) of the Code
of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) and another
application (Exhibit 29) for discharge. Likewise, on 14.06.2011, applications
for further investigation (Exhibit 31) and for discharge (Exhibit 32) were filed
by accused 2 to 6. By an order dated 24.08.2011, the Magistrate dismissed the
applications that were filed for further investigation (i.e. Exhibits 28 and 31),
stating that the facts sought to be placed by the applicants were in the nature of
evidence of the defence that would be taken in the trial. Likewise, on
21.10.2011 the learned Magistrate also rejected the discharge applications that
were made (i.e. Exhibits 29 and 32).
• Meanwhile, on 26.07.2011, Criminal Miscellaneous Application No.816 of
2011 was moved by Vinubhai Haribhai Malaviya and the other accused to
register an FIR, or for the Magistrate to order investigation under Section
156(3) of the CrPC into the facts stated in their applications. This was
rejected by the learned Magistrate by an order dated 09.09.2011.
• Separate criminal revision applications were filed before the Sessions Court,
Surat, being Revision Application Nos. 376 and 346 of 2011, insofar as the
dismissal by the learned Magistrate of further investigation and the order
rejecting registration of the FIR were concerned. Both these revision
applications were decided by the learned Second Additional Sessions Judge,
Surat by a common order dated 10.01.2012. By this order, the learned
Second Additional Sessions Judge went into details of facts that were
alleged in the application under Section 173(8) and found that a case had
been made out for further investigation.
• Pursuant to this order, the investigation was handed over to Investigating
Officer R.A. Munshi (hereinafter referred to as “IO Munshi”) on
06.03.2012, who then submitted two further investigation reports – one
within three days, dated 09.03.2012 and a second one dated 10.04.2012, in
which the IO Munshi went into the facts mentioned in the 173(8)
applications that were filed. On 13.06.2012, the original accused withdrew
Special Criminal Application No.727 of 2012 filed in the High Court, which
was filed challenging the order by which the learned Revisional Court had
confirmed the order rejecting the discharge applications, with liberty to
move an appropriate application for discharge before the Magistrate. The
High Court heard Criminal Revision Application No.44 of 2012 together
with Criminal Miscellaneous Application No.1746 of 2012, and arrived at
the conclusion that, as a matter of law, the Magistrate does not possess any
power to order further investigation after a charge-sheet is filed and
cognizance is taken.
• Shri Dushyant Dave, learned Senior Advocate, appearing on behalf of
the Appellants, has forcefully argued, placing reliance on a number of
provisions of the CrPC, and a number of our judgments, that the High
Court was wholly incorrect as a matter of law, in holding that post-
cognizance a Magistrate would have no power to order further
investigation into an offence.
• The question of law that therefore arises in this case is whether, after a
charge-sheet is filed by the police, the Magistrate has the power to
order further investigation, and if so, up to what stage of a criminal
proceeding?
• The statutory scheme contained in the CrPC therefore puts “inquiry” and
“trial” in water-tight compartments, as the very definition of “inquiry”
demonstrates. “Investigation” is for the purpose of collecting evidence by
a police officer, and otherwise by any person authorised by a Magistrate
in this behalf, and also pertains to a stage before the trial commences.
Investigation which ultimately leads to a police report under the CrPC is
an investigation conducted by the police, and may be ordered in an
inquiry made by the Magistrate himself in “complaint” cases.
• With the introduction of Section 173(8) in the CrPC, the police
department has been armed with the power to further
investigate an offence even after a police report has been
forwarded to the Magistrate.
• Quite obviously, this power continues until the trial can be
said to commence in a criminal case.
• The vexed question before us is as to whether the Magistrate
can order further investigation after a police report has
been forwarded to him under Section 173.
• 5. Section 156(3) provides for a check by the Magistrate on the police
performing its duties under Chapter XII CrPC. In cases where the Magistrate
finds that the police has not done its duty of investigating the case at all, or has
not done it satisfactorily, he can issue a direction to the police to do the
investigation properly, and can monitor the same.
• 16. The power in the Magistrate to order further investigation under Section
156(3) is an independent power and does not affect the power of the
investigating officer to further investigate the case even after submission of
his report vide Section 173(8). Hence the Magistrate can order reopening of
the investigation even after the police submits the final report, vide State of
Bihar v. J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272 : AIR 1980
SC 326] (SCC : AIR para 19).
• In our opinion Section 156(3) CrPC is wide enough to include all such powers
in a Magistrate which are necessary for ensuring a proper investigation, and it
includes the power to order registration of an FIR and of ordering a proper
investigation if the Magistrate is satisfied that a proper investigation has not
been done, or is not being done by the police. Section 156(3) CrPC, though
briefly worded, in our opinion, is very wide and it will include all such
incidental powers as are necessary for ensuring a proper investigation.