Now, it has been established by several decisions of our High Court, notably those mentioned inState v. Murlidhar Goverdhan (1960 Cri LJ 800) and Krishna Gundu Potjale v. State, ,
that even granting of B Summary is a judicial order and not an administrative order. This view has now been given a finality even by the Supreme Court in its decision in Abhinandan Jha v. Dinesh Mishra, . It is, thus, clear that grant of
summaries is a judicial function left to the exclusive province of the Magistrate and a Police Officer, or for that matter a Commissioner of Police, or an officer duly appointed by the him, has no role to play.
19. In this view of the matter, we are clearly of the view that the Commissioner or an officer duly nominated by the Commissioner has no jurisdiction to grant summaries, as has been done in the instant cases. The order granting summaries being a judicial function, the same can be impugned by an aggrieved party by filing either a revision application under the Code of Criminal Procedure or Writ Petition under Article 226 or 227 of the Constitution of India. Order granting summaries may lead the complainant to the consequences of facing a prosecution for lodging false or frivolous complaints. The same, if left to be performed by the Commissioner, will leave the party without a remedy, even though he may be faced with the prospect of being prosecuted in view of the finding in respect of the summaries issued. This has, therefore, advisedly not been left within the province of the Commissioner or his delegate and has been left to the discretion of a Magistrate whose orders can be tested in superior Courts before the parties are faced with the consequences of filing false prosecutions.
Bombay High Court
Sharavan Baburao Dinkar And Etc. vs N.B. Hirve, Additional Inspector ... on 25 September, 1996
Equivalent citations: 1997 (2) BomCR 51, (1996) 98 BOMLR 824, 1997 CriLJ 617
Bench: A Agarwal, R Khandeparkar
1. Both the petitions raise similar challenge and can, therefore, be disposed of by a common order. Petitioners in both the petitions have filed complaints in different police stations. The petitioner in Criminal Writ Petition No. 301 of 1996 filed complaint with the Senior Inspector of Police, Central Police Station, Ulhasnagar against the respondent No. 3 for the alleged offences under Section 3(1)(10) of the Scheduled Tribes Prevention of Atrocities Act. The case was registered vide C.R. No. II 69 of 1995. As far as this complaint is concerned, the Deputy Commissioner of Police, Ulhasnagar has passed an order granting 'B' Summary. Petitioner, in the said petition, has impugned has said order in Criminal Writ Petition No. 301 of 1996.
2. As far as the petitioner in Criminal Writ Petition No. 302 of 1996 is concerned, he filed a complaint at the Mahatma Phule Chowk Police Station, Kalyan alleging commission of an offence against employees of the Kalyan Municipal Corporation under Sections 380, 425 and 488 of the Indian Penal Code. By an order passed by the Deputy Commissioner of Police, Kalyan 'C' Summary is issued. The said order is impugned in Criminal Writ Petition No. 302 of 1996.
3. Both the petitions have challenged the vires of Section 96(1)(iii) of the Bombay Police Act, 1951 under which the aforesaid orders are sought to be justified. We, however, find that it is not necessary, in the facts and circumstances of the present case, to examine the challenge to the vires as, in our view, the petitions are liable to succeed on merits without going into the question of vires. Even if the provisions of Section 96 of the Bombay Police Act are taken into account, the same, in our view, do not clothe the Commissioner of Police with the power to grant summaries as has been sought to be done in respect of the complaints filed by the present petitioners.
4. Since the orders impugned are sought to be justified with reference to Section 96 of the Bombay Police Act, it may be useful, at this stage, to reproduce the relevant provision in so far as the same is necessary for resolving the controversy.
"96. (1) Notwithstanding anything contained in Sections 129, 130, sub-section (2) of Section 167, and Section 173 of the Code of Criminal Procedure, 1898:
(i) to (ii) ... ...
(iii) the officer in charge of the Police Station shall forward his report under Section 173 of the Code to the Commissioner or such other officer as the Commissioner may direct in that behalf."
5. It is contended on behalf of the petitioners that the aforesaid provision does not even remotely confer a power on the Police Commissioner or an officer designated by the Commissioner to pass orders granting summaries in respect of complaints filed at the police stations. It is, however, contended on behalf of the State that the report, which is submitted by an officer in charge of a Police Station, is a report under Section 173 of the Code of Criminal Procedure. Hence, the police commissioner or an officer designated by the Commissioner has the power to grant summaries as has been done in the present case.
6. A reference to the relevant provisions of the Criminal Procedure Code may now be made. The present Code has been enacted in 1973 and has replaced the Code of Criminal Procedure, 1898. The same has come into force with effect from 1st of April, 1974. Section 2(o) defines "officer in charge of a police station" to include when the officer in charge of the Police Station is absent from the station house or unable from illness or other cause to perform his duties, the Police Officer present at the station house, who is next in rank to such officer and is above the rank of constable or when the State Government so directs any other Police Officer so present. The aforesaid definition makes it clear that as far as the Commissioner of Police is concerned, he is not included within a definition of "officer in charge of police station" as defined in sub-section (o) of Section 2 of the Code.
7. Sub-section (r) of Section 2 has, for the first time in the 1973 Code, defined "police report" to mean a report forwarded by a 'police officer' to a Magistrate under sub-section (2) of Section 173.
8. Chapter XII of the Code deals with the information to the police and their powers to investigate. Section 154 deals with the information in respect of cognizable cases whereas Section 155 deals with information as to non-cognizable cases and investigation of such cases. Section 157 provides that if from information received or otherwise an officer in charge of the police station has reason to suspect a commission of an offence, which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person or shall depute one of his subordinate officers not being below such rank as the State Government may by general or special order prescribed in this behalf, to proceed to the spot, to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offenders. The Section 158 makes a provision for the manner in which such a report is to be submitted. Every report sent to a Magistrate under Section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf. Section 159 provides for the power of the Magistrate on receiving such report to direct an investigation or if he thinks fit at once to proceed or dispute any Magistrate subordinate to him to proceed to hold a preliminary enquiry into or otherwise to dispose of the case in the manner provided in the Code.
9. Section 168 of the Code provides for submission of report of investigation by a subordinate officer to the officer in charge of the police station. Section 170 provides that if upon an investigation it appears to the officer in charge of the police station to whom report of investigation has been submitted by a subordinate police officer under Section 168, if it appears to him that there is sufficient evidence or reasonable ground for holding that there is sufficient evidence he shall forward the accused to a Magistrate empowered to take cognizance of the offence and to try the accused or to commit him for trial.
10. Section 173 deals with report of police officer on completion of investigation. Sub-section (1) of Section 173 provides that every investigation shall be completed without unnecessary delay. Sub-section (2) of Section 173 provides, as under:
"173(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating -
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under Section 170."
Sub-section (6) of Section 173 provides as under :
"176(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request."
Sub-section (8) of Section 173 provides as under :
"173(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
11. Chapter XIV of the Code provides for conditions requisite for initiation of proceedings. Section 190, which appears in Chapter XIV, provides for taking cognizance of offence by Magistrate. It provides, as under :
"190. Cognizance of offences by Magistrate - (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence :-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed."
12. The aforesaid provision gives an indication in regard to the role of the investigating officer and that of a Magistrate. Police report, which is now defined under Section 2(r), provides that the police report is the one which is required to be forwarded by a police officer to a Magistrate under sub-section (2) of Section 173. The police officer who has to forward the report to the Magistrate is specified as "the officer in charge of the police station" under sub-section (2) of Section 173. Section 2(o) has defined the term officer in charge of the police station and this officer is distinct from the Magistrate to whom a report is required to be submitted under Section 173(2) of the Code. Police report under Section 2(r) is the report which a police officer submits to a Magistrate under sub-section (2) of Section 173. Section 173 deals with submission of report by a police officer after completion of investigation to a Magistrate empowered to take cognizance of the offence. Section 173(2)(i)(d) provides for the conveyance of an information by the police officer to the Magistrate whether any offence appears to have been committed and if so by whom. Sub-section (6) of Section 173 confers upon a Magistrate to exclude copies of parts of the copies from being granted to the accused and this function has advisedly been left to the discretion of the Magistrate. Sub-section (8) of Section 173 saves the right of further investigation in respect of an offence even after a report under sub-section (2) of Section 173 has been forwarded to a Magistrate. Further evidence collected during such further investigation is also required to be forwarded to a Magistrate. Section 190, provides for taking cognizance of offences by Magistrate. Such cognizance can be taken (a) upon receiving a complaint of facts which constitute an offence, (b) upon a police report and (c) upon information received from any person other than a police officer or upon the Magistrates' own knowledge that such an offence has been committed.
13. Coming to Section 96 of the Bombay Police Act, 1951, the same provides that "notwithstanding anything contained in Sections 129, 130, sub-section (2) of Section 167, and Section 173 of the Code of Criminal Procedure, 1898 the officer in charge of the police station shall forward his report under Section 173 of the Code to the Commissioner or such other officer as the Commissioner may direct in that behalf." The aforesaid provision, it is apparent, provides for forwarding of a report under Section 173 of the Code. Such a report is required to be forwarded to the Commissioner or such other officer as the Commissioner may direct in that behalf. The aforesaid provision does not provide as to what the "Commissioner is supposed to do with such a report submitted to him. The provisions, as we read it, is meant merely in order to keep the Commissioner informed about the various reports which are required to be submitted under Section 173 to the Magistrates. The reason is apparent; for to see the Commissionerate areas are known to be infested with large number of crimes. The Commissioner being in charge of maintaining law and order in the Commissionerate area is, therefore, required to take effective steps to ensure the maintenance of law and order by providing adequate police personnel at different centres having regard to the nature of offences which are seen to have been committed in different areas and having regard to the expertise of the police personnel at his command. Section 96 does not, and cannot, confer any further power on the Commissioner on the basis of the copy of the report submitted to him. As far as the Magistrates are concerned, Section 190 empowers them to take cognizance of the offences on the basis of the report submitted under Section 173(2) and (8) of the Act. Taking cognizance of offences is, therefore, left exclusively within the province of Magistrate. The same has not, and could not have been, left within the province of the Police Commissioner. This is particularly so in view of the provisions of Article 50 of the Constitution of India which finds a place in Part IV of the Constitution. The same provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. It is, with a view to achieve the object which finds a place in Article 50, that the Bombay Separation of Judiciary & Executive Functions Act, 1951 had come to be enacted. The same was brought into effect from the 5th of July, 1951, whereas the Bombay Police Act came into force with effect from the 11th of June, 1951.
14. The significance of separation of judicial functions from the executive functions are clear from the following observations of the Supreme Court in the case of Kartar Singh v. State of Punjab and Kripa Shankar Rai v. State of U.P., , wherein the Supreme Court has observed, as follows (Paras 416 to 419 of Cri LJ) :
"411. It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the legislatures to make the law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution. The Courts are intermediary between the people and the other organs of the State in order to keep the latter within the parameters delineated by the Constitution. There can be no liberty if the power of judging be not separated from the legislative and executive powers. Article 50 of the Constitution, therefore, enjoins the State and in fact separated the judiciary from the executive in the public services of the State. It is the constitutional duty of the judiciary to adjudicate the disputes between the citizen and the citizen; citizen and the State. The States inter se and the States and Centre in accordance with the Constitution and the law."
"412. Independent judiciary is the most essential attribute of rule of law and is indispensable to sustain democracy. Independence and integrity of the judiciary in a democratic system of Government is of the highest importance and interest not only to the Judges but to the people at large who seek judicial redress against perceived legal injury or executive excesses. Dispensation of justice by an impartial presiding Judge, without fear or favour, affection or ill-will, is the cardinal creed and is zealously protected by the Constitution. Judicial review is the basic structure and independent judiciary is the cardinal feature and an assurance of faith enshrined in the Constitution. Confidence of the people in impartial dispensation of justice is the binding force for acceptance of justice delivery system. Independence is not limited to insulating the Judges from executive pressures alone. Its sphere extends to many other impeccable zones of pressures or prejudices. Judges should be made of stern stuff unbending before the power, economic or political which alone would ensure fair and effective administration of justice. The officer exercising judicial power vested in him must be, of necessity, free to act upon his own conscience and without apprehension of personal consequences to himself or lure of retrial rehabilitation. The Judges should be made independent of most of their restraints, checks and punishments which are usually called into play against other public officers and he should be devoted to the conscientious performance of his duties. Therefore, he must be free from external as well as internal pressures. The need for independent and impartial judiciary manned by persons of sterling character, impeccable integrity, undaunting courage and determination, impartiality and independence is the command of the Constitution and call of the people. He would administer justice without fear or favour, affection or ill-will. His sanction and succor are nurtured and nourished from the Constitution itself. The ability and integrity of the Judge to make a decision free from external interference or influence or external cravings is an essential component and an in built assurance to shape the orderly life of the community. Independent and impartial judiciary thus sustain the faith of the people in the efficacy, effectivity and impartiality of judicial process. Independence of the judiciary has been secured by providing security of tenure and other conditions of service. Judicial independence means total liberty of the presiding Judge to try, hear and decide the cases that have come before him according to the set procedure and decide the cases and give binding decision on merits without fear or favour, affection or ill-will."
"413. The subordinate judiciary is complement to constitutional Courts as part of the constitutional scheme and plays vital part in dispensation of justice. Its decisions are subject to appeal or revision to the High Court which exercises control and supervision over the proceedings and decisions of subordinate Courts, tribunals and other bodies or persons who carry out administrative or quasi-judicial functions within its territorial jurisdiction. Judicial review is not only concerned with the merits of the decision but also of the decision-making process. It intends to protect the individual against the misuse or abuse of the power by a wide range of authorities. Judicial review is a protection to the individual and not a weapon. It, therefore, concerns with the manner in which the authority makes the decision. The Court of appeal though substitutes its own decision to that of the subordinate Courts or the tribunal etc. on merits, it is to ensure that the individual is given a fair treatment. Judicial review ensures that the authority acts fairly and the order is not vitiated by illegality, unreasonableness, irrationality or procedural impropriety. The civil rights and criminal justice are integral parts of judicial process. Procedure is the hand maid to substantive justice. Law, therefore has to be vigilant to ensure adequate safeguards for those whose rights are affected or to exercise their rights or acts. Equally the exercise of the executive power of the Government should be put under control. Judicial review, therefore, is the process by which the Constitutional Courts i.e. the Supreme Court and the High Court exercise supervisory jurisdiction over the proceedings and decisions of the subordinate Courts etc., tribunals or authority or persons entrusted or authority or persons entrusted with administrative or quasi-judicial acts or duties. Subordinate Courts also, as said earlier, exercise, in a small measure judicial review of administrative acts. Subordinate Courts are integral part of the judiciary and the Constitution. In Black's Law Dictionary, 6th Edn., Judicial power has been defined at p. 849 thus :
"The authority exercised by that department of Government which is charged with declaration of what law is and its construction. The authority vested in Courts and Judges, as distinguished from the executive and legislative power. Courts have general powers to decide and pronounce a judgment and carry it into effect between two persons and parties who bring a case before it for decision; .... A power involving exercise of judgment and discretion in determination of questions of right in specific cases affecting interests of persons or property, as distinguished from ministerial power involving no discretion. Inherent authority not only to bear and determine controversies between adverse parties, but to make binding orders or judgments. Power to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before Court for decision. Power that adjudicates upon and protects the rights and interests of persons or property, and to that end declares, construes and applies the law."
414. Judicial power, therefore, means the judicial power which every authority i.e. Courts i.e. High Court and subordinate judiciary, established under Chapters V and VI of Part VI and the Union Judiciary constituted in Chapter IV in Part V, 'the Supreme Court of India' must of necessity have to decide controversies between citizen and the citizen, citizen and the State or the States inter se, whether the rights relate to life, liberty or property. The Courts have power and authority to declare the law, apply the law and give a binding and authoritative decision between the parties before it and carry it into effect."
15. The scope and ambit of Section 173(2) of the Code was considered by the Supreme Court in the case of "Satya Narain Musadi v. State of Bihar", . In paragraphs 10 and 11 of the Judgment, the Supreme Court inter alia observed, as under :
"10. Section 173(2) thus provides what the report in the prescribed form should contain. In this case the report did contain the name of the accused and the nature of the offence. In fact Section 170 provides that if upon an investigation under Chapter XII it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground to proceed against the accused such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report, etc. If the accused is on bail that fact will be notified in the final report submitted under Section 173(2). Therefore, the statutory requirement of the report under Section 173(2) would be complied with if the various details therein prescribed are included in the report. This report is an intimation to the Magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court. In fact, the report under Section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient evidence for the trial of the accused by the Court and when he states in the report not only the names of the accused, but names of the witnesses, the nature of the offence and a request that the case he tried, there is compliance with Section 173(2). The report as envisaged by Section 173(2) has to be accompanied as required by sub-section (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by sub-section (5) from its accompaniments which are required to be submitted under sub-section (5). The whole of it is submitted as a report to the Court. .... ......"
"11.1 ... ... ... In fact on the introduction of Section 173 in its form in the Code of Criminal Procedure 1973, the police officer investigating into a cognizable offence is under a statutory obligation to submit along with his report under Section 173(2) documents purporting to furnish evidence collected in the course of the investigation and the statements of the witnesses and the Court before proceeding into the case is under a duty to inquire whether the accused has been furnished with copies of all relevant documents received under Section 173 by the Court, and the entire complexion of what should normally be styled as report submitted under Section 173(2) of the Code has undergone a change. Court can look at the report in prescribed form along with its accompaniments for taking cognizance of the offence."
16. In the case of "M/s. India Carat Pvt. Ltd. v. State of Karnataka", , the Supreme Court has observed, as under :
"13. ...... On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and issue process straightway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued."
"14. Since in the present case the Second Additional Chief Metropolitan Magistrate has taken cognizance of offences alleged to have been committed by the second respondent and ordered issue of process without first examining the appellant and his witnesses, the question for consideration would be whether the Magistrate is entitled under the Code to have acted in that manner. The question need not detain us for long because the power of a Magistrate to take cognizance of an offence under Section 190(1)(b) of the Code even when the police report was to the effect that the Investigation has not made out any offence against an accused has already been examined and set out by this Court in Abhinandan Jha v. Dinesh Mishra, and H. S. Bain v. State,
. In Abhinandan Jha v. Dinesh Mishra the question
arose whether a Magistrate to whom a report under Section 173(2) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the police. This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3) and if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police, the Court observed that the Magistrate could take cognizance under section '190(1)(c)'. The reference to Section 190(1)(c) was a mistake for Section 190(1)(b) and this has been pointed out in H. S. Bains."
"16. The position is, therefore, now well settled that upon receipt of a 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 and take cognizance of the cases, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also ............."
17. The aforesaid provisions, as also the decisions, make it clear that the functions of the police, being an executive limb, is distinct from the role assigned to the judiciary. One is not permitted to trample upon the province exclusively reserved for the other. Once a report under Section 173(2) is submitted by the police to a Magistrate, a Magistrate has the jurisdiction to take cognizance. A Magistrate is not entitled in the event of a police report, being a negative report, to direct the police to file a charge sheet. All that he is authorised to do is to direct a further investigation in the case. Similarly, once a report under Section 173 is submitted, taking of cognizance is the exclusive province of the Magistrate. The police has no role to play in this behalf. As far as Section 96 of the Bombay Police Act is concerned, the same does not override any of the provisions contained in the Code of Criminal Procedure including those found in Sections 173 and 190 of the Code. As far as grant of summaries is concerned, there is no provision to be found in regard to the same either under the Code of Criminal Procedure or under the Bombay Police Act. The only provision in that behalf is found in the Criminal Manual issued by the High Court in exercise of its powers conferred by Article 227(2) of the Constitution of India. The aforesaid provisions contained in the Manual came up for consideration before this Court in the case of "State v. Murlidhar Goverdhan" (AIR 1960 Bombay 240 : 1960 Cri LJ 800). It has, inter alia, been observed as under :
"(5) From this resume of the relevant provisions of the Code, it is evident that at every stage of investigation by a Police Officer in a cognizable offence, the Magistrate has the opportunity of supervising the investigation. The legislature has imposed a duty upon the Police Officer to give intimation to the Magistrate about the information received by him and to produce the accused within 24 hours after the commission of the offence, if the accused is arrested; if a search is made a report is required forthwith to be submitted to the Magistrate; and after the investigation is completed, the police officer is bound to submit a report to the Magistrate of his investigation. If during the course of the investigation by the police, in a cognizable case, a Magistrate has power to supervise the investigation, we are unable to accept the submission of the learned Government Pleader that the opinion formed by a Police Officer in the course of the investigation as to the complicity of a person charged with the commission of the offence, is conclusive and cannot be called in question by the Magistrate to whom a report is submitted under S. 173. The legislature has not used the expression "charge-sheet" anywhere in the Code. By Section 173, a final report is required to be made by a police Officer making an investigation in a cognizable offence or when so directed in a non-cognizable offence. By such a report, the investigation officer may report that action be taken against the accused for the offence alleged to have been committed and such a report is a charge-sheet or that the papers be ordered to be filed because the evidence does not warrant the initiation of a Judicial proceeding against the accused. The Bombay Police Manual classifies the orders which may be requested by the Investigating Officer when he is of the opinion that no judicial proceeding need be initiated as Summaries "A", "B" and "C". A request for "A" Summary is to be made when the Police Officer investigating the case is of the view that the offence is true but undetected and where there is no clue whatever about the culprits or property or where the accused is known but there is no evidence to justify his being sent up for trial. Request for "B" Summary is to be made when the complaint is maliciously false and for "C" Summary when the complaint is neither true nor false, that is, due to mistake of facts of being of a civil nature."
"(6) An order passed by a Magistrate on a report under S. 173(1) of the Criminal Procedure Code requesting that a Summary "A, B or C" be issued is in its very nature a judicial order and not an administrative order. When a report is submitted to a Magistrate under S. 173 of the Code of Criminal Procedure by a Police Officer praying that a Summary of the nature described in R. 203 of the Bombay Police Manual, may be issued the Magistrate must act judiciary and pass such order on the report as the circumstances may warrant. The Magistrate is not bound to issue the Summary which is asked for nor is he at all bound to issue a Summary. In Boywalla v. Sorab Rustomji Engineer, 43 Bom LR 529 : AIR 1941 Bom 294 : (1941 (42) Cri LJ 814), Beaumont C.J. observed :
"When, in the case of a man who has been arrested and released on bail the police-officer reports that there appears to be no case, and invites the Magistrate to discharge the man, the Magistrate is not bound to act upon the police view. He can undoubtedly say; "I will have a further inquiry in this matter, I think the police are wrong in suggesting that the accused should be discharged."
Again it was held in the state v. Shankar Bhaurao, that a Magistrate who is invited to give "B" summary may on the evidence issue "A" Summary. These authorities abundantly establish that a Magistrate dealing with a report of a Police Officer is not bound by the opinion formed by the Officer, and is not bound to issue a summary merely because it is asked for, and that the Magistrate is bound to deal with the report judicially."
18. In the case of "Bhaurao Sampatrao Tayade v. Tulsiram Sampatrao", 1981 Mah LJ 693, a Single Judge of this Court has observed, as under :
"15. The other material provision is in Section 173(2)(d) where the Police Officer in his report has to mention whether any offence appears to have been committed and, if so, by whom. This clearly shows that at the stage when he is making a report after investigation, the Police Officer has to give his opinion whether offence appears to have been committed or not and in case it appears to have been committed, then by whom it has been committed. Sub-section (5) of Section 173 is also material inasmuch it specifies when such report is in respect of a case to which Section 170 applies, i.e. when the Police Officer is of the opinion that there is sufficient evidence to prosecute the accused. It is, therefore, clear to my mind that whether the police report is on the basis of the information of the Police under Section 169 or 170 i.e. where upon the investigation the police finds sufficient evidence against the accused or not, the report has to be forwarded to the concerned Magistrate, under Section 173(2) of the Code. This is as far as the investigation and final report of the police is concerned."
"17. It is thus clear that the powers of the Judicial Magistrate are unhindered in the matter of taking cognizance of an offence. It is upto him to take cognizance of the offences within his jurisdiction either upon a complaint stating the fact which constitute an offence or upon a police report stating such facts. The Magistrate also can take cognizance upon his own knowledge or upon information received from any person other than police officers. It will thus be seen that whether the police investigating machinery finds insufficient evidence to prosecute the accused or finds sufficient evidence to prosecute the accused, a report has to be tendered under Section 173(2) of the Code before the Magistrate concerned and it is ultimately the judicial Magistrate; who has to apply his mind to the facts and circumstances as brought out in the report and he may take cognisance or he may refuse to take cognisance. It is in this light that B summary is granted by the Judicial Magistrate when he refused to take cognizance of the offence and all the proceedings are filed."
"18. Now, it has been established by several decisions of our High Court, notably those mentioned inState v. Murlidhar Goverdhan (1960 Cri LJ 800) and Krishna Gundu Potjale v. State, ,
that even granting of B Summary is a judicial order and not an administrative order. This view has now been given a finality even by the Supreme Court in its decision in Abhinandan Jha v. Dinesh Mishra, . It is, thus, clear that grant of
summaries is a judicial function left to the exclusive province of the Magistrate and a Police Officer, or for that matter a Commissioner of Police, or an officer duly appointed by the him, has no role to play.
19. In this view of the matter, we are clearly of the view that the Commissioner or an officer duly nominated by the Commissioner has no jurisdiction to grant summaries, as has been done in the instant cases. The order granting summaries being a judicial function, the same can be impugned by an aggrieved party by filing either a revision application under the Code of Criminal Procedure or Writ Petition under Article 226 or 227 of the Constitution of India. Order granting summaries may lead the complainant to the consequences of facing a prosecution for lodging false or frivolous complaints. The same, if left to be performed by the Commissioner, will leave the party without a remedy, even though he may be faced with the prospect of being prosecuted in view of the finding in respect of the summaries issued. This has, therefore, advisedly not been left within the province of the Commissioner or his delegate and has been left to the discretion of a Magistrate whose orders can be tested in superior Courts before the parties are faced with the consequences of filing false prosecutions.
20. As far as Section 96 of the Bombay Police Act is concerned, the same merely deals with the obligation of an officer in charge of a police station to forward his report under Section 173 of the Code of Criminal Procedure to the Commissioner or such other officer as the Commissioner may direct in that behalf. The said section nowhere provides that the Commissioner has the authority to issue summaries as has been done in the present case. Issuance or summaries is a function to be performed by Magistrates. The same has advisedly not been left for being performed by the Commissioner. This being a judicial function has to be performed by the Magistrate and Magistrate alone. Commissioner, has no authority to trample over these judicial functions of the Magistrate.
21. In the circumstances, we have no hesitation in holding that the impugned orders issued by the Deputy Commissioner of Police granting summaries in the instant cases are without the authority of law and are liable to be quashed. 22. In the result, rule is accordingly made absolute in terms of prayer Clause (b) in both the petitions. The Investigating Officers, in each of these cases, will submit their respective reports under Section 173(2) of the Code of Criminal Procedure to the Magistrate having jurisdiction and the concerned Magistrate will take steps in accordance with law.
23. On application of Shri Patil, the learned P.P., our order is stayed for a period of four weeks.
24. Order accordingly.
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