Thus it is undoubtedly true that even after the police report indicates that no case is made out against the accused, the magistrate can ignore the same and can take cognizance on applying his mind independently to the case. But in that situation, he has two options (i) he may not agree with the police report and direct an enquiry under Section 202 and after such enquiry take action under Section
He is also entitled to take cognizance under Section 190 Cr.P.C. at once if he disagrees with the adverse police report but even in this circumstance, he cannot straightway direct submission of the charge-sheet by the police.
and a vexatious prosecution in complaint cases. The relevance, legal efficacy and vitality of the enquiry enumerated under Section 200 Cr.P.C., therefore, cannot be undermined, ignored or underplayed as non compliance of enquiry under Section 200 Cr.P.C. is of vital importance and necessity as it is at this stage of the enquiry that the conflict between the finding arrived at by the investigating agency and enquiry by the Magistrate can prima facie justify the filing of the complaint and also offer a plank and a stage where the justification of the order of cognizance will come to the fore. This process of enquiry under Section 200 Cr.P.C. is surely not a decorative piece of legislation but is of great relevance and value to the complainant as well as the accused.
Supreme Court of India
Vasanti Dubey vs State Of M.P. on 17 January, 2012
2. The appellant herein has challenged the order dated 24.1.2011 passed by the High Court of Judicature at Jabalpur by which the Criminal Revision Petition No. 839/2004 was dismissed holding therein that the impugned order passed by the Special Judge (under the Prevention of Corruption Act, 1988) District Narsinghpur did not suffer from any apparent error of jurisdiction.
3. In the backdrop of the facts and circumstances of the case to be related hereinafter, the question inter alia which falls for determination by this Court is whether the Magistrate/Special Judge could straightway direct for submission of charge-sheet in case he refused to accept final report/closure report of the police/investigating agency and thereafter direct the police to submit charge-sheet in case he was of the opinion that the case was not fit to be closed and it required to be proceeded further. The question which also requires consideration is whether the Special Judge could refuse to accept closure report and direct reinvestigation of the case for the second time in order to proceed further although he was confronted with the legal impediment indicating lack of sanction for prosecution in the matter.
4. However, the question for determination is not a new or an extra-ordinary one as the question has cropped up time and again before this Court as to what course is left open for a Magistrate in a situation when the police submits final report under Section 173, Cr.P.C. or closure report is 2
submitted by any other investigating agency stating that the case is not made out on account of lack of evidence or for any other reason.
5. But before we proceed to deal with the question involved herein, it is essential to state the salient facts and circumstances of this matter which has reached upto this Court by way of this special leave petition. On perusal of the materials on record, it emerges that the appellant - Smt. Vasanti Dubey was posted as the Block Development Officer, Janpad Panchayat, Gotegon, Narsinghpur (M.P.) and in that capacity was competent to award a contract for constructing concrete road in the village Baroda. The contract was awarded to one Dinesh Kumar Patel who was the Sarpanch of village Baroda for constructing the concrete road in the village and was initially paid a sum of Rs.15,000/- vide cheque No. 101626 dated 27.2.2001 for execution of the contract. He was further paid a sum of Rs.15,000/- vide cheque No.101629 dated 8.5.2001 for execution of the contract which was awarded to him. The awardee Sarpanch - Dinesh Kumar Patel was still further paid Rs.10,000/- vide cheque No.101635 dated 23.5.2001 and the balance payment of Rs. 10,000/- 3
was also finally paid to him vide cheque No.319586 dated 1.8.2001 towards full and final settlement of the consideration for the above mentioned contract. Admittedly, all the afore- mentioned payments were made to the Sarpanch contractor - Dinesh Kumar Patel which were due to be paid to him and the cheques were duly encashed.
6. However, the Sarpanch/contractor after several days of receipt of the final payment, filed a complaint against the appellant/BDO - Smt. Vasanti Dubey in the Special Police Establishment, Lokayukta Office, Jabalpur stating inter-alia that the complainant - Dinesh Kumar Patel had been paid a sum of Rs.40,000/- only with respect to the contract awarded to him and when the balance payment of Rs.10,000/- was demanded by him, the appellant demanded a sum of Rs.3,000/- as commission. The complainant's further case is that he although paid a sum of Rs.500/-, he felt aggrieved and hence did not pay any further amount to the appellant but preferred to lodge a complaint on 7.8.2001 in regard to the illegal demand made by her. Since the alleged incident was falling within the jurisdiction of the Special Police Establishment, Lokayukta Office, Bhopal, a case was 4
registered against the appellant on the basis of the complaint on the same date i.e. 7.8.2001 under Sections 7 and 13(1)(d) read with Section 13(1)(2) of the Prevention of Corruption Act, 1988.
7. The Special Police Establishment, Lokayukta Office, proceeded to investigate the matter and carried out detailed investigation and also recorded statements of various persons including that of the complainant on 26.3.2002. In course of investigation, the complainant resiled from his earlier version and stated that he had made a false complaint at the instance of someone else whose name he did not divulge. Further statement of one Shankar Singh was also recorded that the complainant had paid Rs.2,500/- to the appellant when she had gone to the bathroom and the money thereafter was recovered from her. The police also seized various documents from the office of the BDO located in the office of Janpad Gotegaon which included the files containing the details of the cheques from which payment had been made to the complainant. After completion of the investigation by the Office of Lokayukta who was competent to get the matter investigated by the police and in view of the statement of the 5
complainant that he made false complaint at the instance of someone else as also on account of the fact that the entire payment except Rs. 10,000/- had been made by the appellant - Smt. Vasanti Dubey to the complainant prior to the date on which the complaint was filed, it was inferred that the complaint did not disclose commission of any offence and hence the Lokayukta directed that a closure report be filed in regard to the complaint lodged against Vasanti Dubey and appropriate action be initiated against the complainant for lodging a false complaint.
8. Accordingly, the closure report was submitted before the Special Judge, Narsinghpur but by order dated 5.8.2002, the Special Judge refused to accept the same. He thus rejected the closure report and thereafter directed the police to file charge-sheet in the case against the appellant against which the State Government filed a criminal revision bearing Criminal Revision No. 1206/2002 in the High Court challenging the order of the Special Judge who refused to accept the closure report and issued direction for submission of the charge-sheet against the appellant.
6
9. The learned single Judge of the High Court by order dated 14.1.2003 was pleased to allow the Revision Petition and quashed the order passed by the Special Judge who had refused to accept the closure report and had directed submission of charge-sheet against the appellant on the ground that 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 police had sent a report under Section 169 of the Code stating that there is no case made out for sending up an accused for a trial. The learned single Judge took this view relying upon the ratio of the authoritative pronouncement of this Court delivered in the matter of Abhinandan Jha & Ors. Vs. Dinesh Mishra1 wherein it was observed that the functions of the magistrate and the police are entirely different and though the magistrate may or may not accept the report and take 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 learned Judge also took notice of the observation of the Supreme Court which had further been pleased to hold therein that the magistrate however, while 1 AIR 1968 SC 117 = (1967) 3 SCR 668
7
disagreeing with a final report/closure report of a case can take cognizance under Section 190(1)(c) or order further investigation under Section 156(3) of the Code of Criminal Procedure but cannot straightaway direct for submission of charge-sheet to the police. Applying the aforesaid test as laid down by this Court in the case of Abhinandan Jha (supra), the impugned order passed by the Special Judge, Narsinghpur was held to be illegal and without jurisdiction and consequently was quashed. However, the learned single Judge had added an observation in the judgment and order that if the learned Special Judge thinks it fit and appropriate to take cognizance, the same can be taken under Section 190(c) of the Code of Criminal Procedure or he may direct the Lokayukta police for further investigation. As already stated the revision accordingly was allowed and the impugned order of the Special Judge dated 5.8.2002 was quashed.
10. The Special Police Establishment, Lokayukta Office, Jabalpur, thereafter again got the complaint examined in the light of the statement of the witnesses and the evidence and noticed that there were no materials against the appellant to proceed as she had made all payments from 27.2.2001 up to 8
2.8.2001 yet a complaint dated 7.8.2001 was subsequently filed by the complainant - Dinesh Kumar Patel alleging that the appellant had demanded commission/bribe of Rs.2,500/- from the complainant in order to clear his bills which complaint was found to be untrustworthy and hence unacceptable since all payments had already been received by the complainant prior to the lodgement of complaint specially in view of the subsequent version of the complainant that he had lodged a malicious complaint at the instance of a rival of the appellant.
11. The Special Police Establishment, Lokayukta Office, therefore, once again filed an application/closure report before the Special Judge, Narsinghpur but the Special Judge, Narsinghpur this time again rejected the closure report by order dated 18.5.2004 observing therein that it had been clarified by order dated 5.8.2002 that there is sufficient basis to take cognizance against the appellant - Smt. Vasanti Dubey and there is no change in the circumstance on the basis of which closure report can be accepted clearly overlooking that the High Court had already quashed the order dated 5.8.2002 passed by the Special Judge as it had 9
held that the Special Judge had no jurisdiction to direct the police to submit charge sheet in case he refuses to accept closure report although he could take cognizance under Section 190(C) of the Cr.P.C. or direct further investigation of the case. In pursuance of this, further investigation was done by the Special Police Establishment, Lokayukta Office and closure report was submitted after completion of reinvestigation. On this occasion, when the Special Judge refused to accept closure report, it was his statutory and legal duty to either pass a fresh order taking cognizance if he refused to dismiss the complaint and proceed with the enquiry under Section 200 Cr.P.C. by examining the complainant after which he had to record reasons why he disagreed with the closure report. But the Special Judge did not discharge this legal obligation and simply in a mechanical manner directed the investigating agency to obtain sanction to prosecute the appellant despite the fact that the investigating agency had consistently reported that sufficient evidence was not there to justify prosecution of the appellant. At this stage, if the Special Judge found that there were sufficient ground to proceed, it could have taken cognizance 10
but having been confronted with the legal impediment that it could not proceed without sanction for prosecution, the Special Judge directed to reinvestigate the matter once again for the second time and also directed the investigating agency to obtain sanction for prosecution.
12. Hence, the appellant assailed the order of the Special Judge dated 18.5.2004 by filing a criminal revision petition No. 839/2004 but the High Court on this occasion dismissed the revision petition and was pleased to hold that the order of the Special Judge who had refused to accept the closure report for the second time did not suffer from any apparent error of jurisdiction. The learned single Judge while dismissing the revision petition observed that it shall still be open to the appellant to raise all such pleas as are available to her under the law in case charge-sheet is filed against her.
13. However, the learned single Judge completely missed the ratio laid down in the case of Abhinandan Jha (supra) which had been relied upon by the learned single Judge of the High Court on an earlier occasion also when the order of the Special Judge refusing to accept closure report 11
and directing submission of charge-sheet was quashed and the entire legal position was summed up in unequivocal terms as follows:-
"There is no power, expressly or impliedly conferred under the Code, on a Magistrate
to call upon the police to submit a charge-
sheet, when they have sent a report under
Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the magistrate 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."
This position has been further reiterated and reinforced in a recent judgment of this Court delivered in the matter of Ram Naresh Prasad vs. State of Jharkhand2, wherein it has been held that when the police submitted a final report of investigation of the case which in colloquial term is called closure report, the magistrate cannot direct the police to submit the charge-sheet. However, on the basis of the material in the charge-sheet, he may take cognizance or direct further investigation. In fact, this position is clearly laid down 2 (2009) 11 SCC 299
12
under Section 190 read with Section 156 of the Cr.P.C. itself and the legal position has been time and again clarified by this Court in several pronouncements viz. in the matter of Bains vs. State3, wherein their lordships have summarised the position as follows:-
"1. When a Magistrate receives a complaint, he may, instead of taking cognizance at once
under Section 190(1)(a) direct a police investigation under Section 156(3) ante;
2. Where, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take any of the following steps :
"i. If he agrees with police report, and finds that there is no
sufficient ground for proceeding
further, he may drop the
proceeding and dismiss the
complaint.
ii. He may not agree with the police
report and may take cognizance
of the offence on the basis of the
original complaint, under Section
190(1)(a) and proceed to examine
the complainant under Section
200.
iii. Even if he disagrees with the police report, he may either take
cognizance at once upon the
complaint, direct an enquiry
under Section 202 and after such
3 AIR 1980 SC 1883 = 1980 (4) SCC 631
13
enquiry take action under Section
203. However, when the police
submits a final report or closure
report in regard to a case which
has been lodged by the informant
or complainant, the magistrate
cannot direct the police to
straightway submit the charge-
sheet as was the view expressed
in the matter of Abhinandan Jha
(supra) which was relied upon in
the matter of Ram Naresh
Prasad (supra)."
14. Thus it is undoubtedly true that even after the police report indicates that no case is made out against the accused, the magistrate can ignore the same and can take cognizance on applying his mind independently to the case. But in that situation, he has two options (i) he may not agree with the police report and direct an enquiry under Section 202 and after such enquiry take action under Section
203. He is also entitled to take cognizance under Section 190 Cr.P.C. at once if he disagrees with the adverse police report but even in this circumstance, he cannot straightway direct submission of the charge-sheet by the police.
15. In the light of the aforesaid legal position, when we examined the merit of the instant matter, we noticed that the order dated 18.5.2004 passed earlier by the Special Judge 14
straightway directing the police to submit charge-sheet was quashed by the learned single Judge of the High Court and liberty was left open to him either to take cognizance under Section 190(c) of the Cr.P.C. or direct the Lokayukta Police for further investigation. In spite of this order, the Special Judge did not pass an order taking cognizance which he could have done under Section 190(c) of the Cr.P.C. However, he chose to direct office of the Lokayukta to enter into further investigation which after further investigation assigned reasons given out hereinbefore, stating that in view of the statement of the complainant that he had complained at the instance of a rival of the accused as also the fact that entire payment had already been made by the complainant prior to the lodgement of complaint, no case was made out against the complainant. In spite of this, if the Special Judge considered it legal and appropriate to proceed in the matter, he could have taken cognizance upon the complaint and could have proceeded further as per the provision under Section 200 of the Cr.P.C. by examining the complainant and if there were sufficient ground for proceeding, he could have issued process for attendance of the accused. However, such p
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