K.L. Chawal vs S.M. Agarwal, Special Judge & Anr.
2000 Latest Caselaw 707 Del

ORDER

Arijit Pasayat, CJ.

1. Order passed by Special Judge, Delhi in Corruption Case No. 81/81 dated 25.2.1982 is the subject matter of challenge. According to petitioner (hereinafter referred to as 'accused' also), the order contained a direction to the investigating agency to file a charge-sheet which is impermissible.

2. Background facts in a nut-shell, as presented by the prosecution, are as follows:-

Accused while working as an Upper Division Clerk in office of the Land Development Officer, Nirman Bhawan, New Delhi allegedly accepted bribe for getting mutation work done in respect of a property in House No. 4/1, Subhash Nagar. Dr. Om Parkash Chandna of Subhash Nagar in his capacity as General Attorney-cum-owner of the said house had applied to Land and Development Officer for sale permission in July 1978. Accused visited doctor's clinic on 22nd February 1979 and gave him two copies of the sale permission. He had also brought the original file of the property, and demanded a sum of Rs. 400/- for getting the mutation work done. The deal was struck. Doctor confirmed on a telephone call made to accused that if he visits his clinic for the purpose of collecting the agreed sum on the evening of 6th March 1979, same would be paid. Doctor then lodged a written complaint with the Central Bureau of Investigation (in short the "CBI") on the morning of 6th March 1979. A trap was laid and the accused was caught red handed after receiving the amount. After investigation, CBI filed a petition to close the proceeding as mutation work was not pending with the accused at the relevant time and also because the doctor did not support the prosecution fully in the departmental proceedings. After making reference to certain factual aspects which the learned Special Judge thought to be relevant, it was observed that this was a fit case where prayer of CBI should not be acceded to. It was further observed as follows in the order which forms the foundation of challenge in this petition.

"I therefore feel that it is a fit case where the prayer of the CBI should not be acceded to. Before parting it is my duty to express my shock and surprise as to what impelled the Dy.S.P. Shri Sharma to shield an official of the Land and Development office who had been allegedly caught red handed while taking a bribe of Rs. 400/- on 6th March 79. Trust and hope that the CBI chief would initiate action for getting this sordid episode probed and for exploring the feasibility of filing a charge-sheet by taking appropriate steps. I further hope that necessary report in the matter be submitted to this court within a reasonable time." (underlined for emphasis)

3. The underlined portion in the quoted paragraph throws considerable light on the controversy. While learned counsel for the accused-petitioner submitted that it was direction for filing a charge-sheet, learned counsel for CBI submitted that it was in reality a direction for further enquiry.

4. Before dealing with that aspect it is necessary to take note of the position in law. As regards power of the Magistrate on receipt of a report, in Abhinandan Jha and Others Vs. Dinesh Mishra , it was observed with reference to Sections 173, 169, 156(3) and 190 of the Code of Criminal Procedure 1898 (hereinafter referred to as the "Old Code") pari materia provisions being sections 173, 169, 156 and 190 of Criminal Procedure Code, 1973 (in short the 'Code') with some changes that, there is no power expressly or impliedly conferred under the Old Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under section 169 of the said Code, that there is no case made out for sending up an accused for trial.

If the police on investigation finds that no case is made out against the accused, the provisions of the Code do not empower the Magistrate to ask the police to submit a charge-sheet, though, if he is of opinion that the report submitted by the police requires further investigation, he may order that further investigation under Section 156(3). But directing a further investigation is entirely different from asking the police to submit a charge-sheet. Section 190 of the Code does empower the Magistrate to take cognizance of an offence, notwithstanding a contrary opinion of the police. But he cannot call upon the police to submit a charge-sheet. Though in Abhinandan Jha's case (Supra) at once place it has been stated that Magistrate can take cognizance, disagreeing with opinion of police, under Section 190(1)(c), in H.S. Bains Vs. State it has been clarified that reference to Section 190(1)(c) was a mistake for Section 190(1)(b).

5. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him, several situations 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 either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate, he has again an option of adopting one of the three courses open i.e. (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 further proceeding, take cognizance of the offence and issue process, or (3) he may direct further investigation to be made by police under Section 156(3). The position is therefore now well-settled that upon receipt of police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation, take cognizance of the offence, if he thinks fit, by exercise of powers under Section 190(1)(6), and direct issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance under Section 190 though it is open to him to act under Section 200 or Section 202 also. see M/s. India Surat Pvt. Ltd. Vs. State of Karnataka and another AIR 1989 S.C. 685 . But the delineated powers do not include power to direct filing of charge-sheet.

6. The functions of the Magistracy and the police are entirely different, and though, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view. The investigation under the Code, takes in several aspects, and stages, ending ultimately with formation of an opinion by the police as to whether on the material covered and collected, a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority. In a recent case in R. Sarala Vs. T.S. Velu and Others, 2000 Supreme Court Cases (Cri) 823, the Apex Court again reiterated the position.

7. After dealing with various aspects of the investigation from Section 154 to 168 of the Code, the statute says in the next two sections regarding the subsequent step. Section 169 of the Code enjoins on the office in charge of the police station concerned to release the accused from custody on executing a bond if it appears to him that "there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate". Section 170 of the Code directs that if upon investigation "it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report".

Section 173(1) casts an obligation for completing the investigation without unnecessary delay and sub-section (2) enjoins on the officer in charge of the police station to forward to the Magistrate a report in the form prescribed by the State Government, on completion of such investigation. The aforesaid power of the officer in charge of the police station is subjected only to the supervision of superior police officers in rank as envisaged in Section 36 of the Code.

There is no material difference regarding general powers of investigation by the police as between the Code and the corresponding provisions contained in Chapter XIV of the Old Code.

8. In H.N. Rishbud Vs. State of Delhi, a three-Judge Bench of the Apex Court, after delineating the different steps in investigation as contemplated in the Code, has pointed out that the formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else. The following observations are to be noted in this context:

"The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for everyone of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation, viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under Section 551."

9. In the background of legal provisions as set out above, factually it has to be examined whether the direction was for further enquiry as contended by the learned counsel for the CBI or was for filing a charge-sheet as contended by learned counsel for accused. According to the learned counsel for the CBI the direction was "I further hope that necessary report in the matter be submitted......"But if this portion is read with the preceding lines in the quoted portion, obviously it relates to the exploring feasibility of filing a charge-sheet by taking appropriate steps. The direction therefore was for exploring the feasibility of filing a charge-sheet. Said power did not lay with the learned Special Judge. Present case is similar in concept to State Vs. Raj Kumar Jain, 1998(6) SCC, it was observed in the said case by the Apex Court that CBI was under no obligation to place the material available before the sanctioning authority when they found that no case was made out. To put it differently if CBI had found on investigation that a prima facie case was made out against the respondent to place him on trial and accordingly prepared a charge-sheet (challan) against him, then only the question of obtaining sanction of the authority under Section 6(1) of the Act would have arisen for without that the Court would not be competent to take cognizance of the charge-sheet. In that case both the learned Special Judge and this Court observed that CBI was required to obtain sanction from the prosecuting authority before approaching the Court for accepting the report under Section 173(2) of Cr. P.C. for discharge of the respondent. In the said case CBI had indicated in its report that allegations made against the respondents were unsubstantiated. Notwithstanding this conclusion of the CBI, learned Special Judge directed CBI to conduct further investigation after approaching the sanc-tioning authority. This Court did not interfere with said directions. But as indicated above, Apex Court interfered with it and found the view untenable.

10. Inevitable conclusion is that learned Special Judge exceeded his jurisdiction by directing CBI to explore possibility of submitting a charge-sheet. The intention was unmistakable and clear that a charge-sheet was desired to be filed. Substance of the directions quoted above makes the position clear. Such a power was not available to him.

11. Application is allowed.