Receipt and recording of an information report is not a condition precedent to setting in motion of a criminal investigation.

In King Emperor v. Khwaja Nazir Ahmed AIR 1945 PC
18, the Privy Council said :
But, in any case, the receipt and recording of an
information report is not a condition precedent to
the setting in motion of a criminal investigation.
No doubt, in the great majority of cases, criminal
prosecutions are undertaken as a result of
information received and recorded in this way, but
their Lordships see no reason why the police, if in
possession through their own knowledge, or by
means of credible though informal intelligence
which genuinely leads them to the belief that a
cognizable offence has been committed, should
not of their own motion undertake an investigation
into the truth of the matters alleged. Section 157
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of the Cr.P.C. when directing that a Police
Officer, who has reason to suspect from
information or otherwise that an offence which he
is empowered to investigate under Section 156 has
been committed, shall proceed to investigate the
facts and circumstances, supports this view.
In truth, the provisions as to an information report
(commonly called a first information report), are
enacted for other reasons. Its object is to obtain
early information of alleged criminal activity, to
record the circumstances before there is time for
them to be forgotten or embellished, and it has to
be remembered that the report can be put in
evidence when the informant is examined if it is
desired to do so.
The provision for giving information, therefore, is not to
provide the police with the power of investigation, but to enable an
unembellished   version   of   the   incident   to   be   given   at   the   earliest
opportunity, so that the prosecution case at the trial may be tested.
Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1849 OF 2010
Shri Sandeep Indravadan Sagar .. Petitioner.
Versus
State of Maharashtra and others .. Respondents.
Citation;2013 CR l J1147 Bombay



1. All these matters can be conveniently disposed of by this
common order, as all of them raise questions about the nature of the
offence punishable under Section 185 of the Motor Vehicles Act, 1988
(hereinafter 'M.V. Act' for the sake of brevity), and the procedure for
the investigation and the trial thereof.  Though the facts of each case
are   different,   and   even   the   contentions   raised   by   the
petitioner/applicants   are   different,   the   discussion   on   these   aspects
would necessarily be common.
2. Before proceeding further, the provisions of Section 185 of
the M.V. Act may be reproduced here :­
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185. Driving by a drunken person or by a person
under the influence of drugs.
Whoever, while driving or attempting to drive, a motor
vehicle, -
(a) has, in his blood, alcohol exceeding 30 mg. Per 100
ml. of blood detected in a test by a breath analyser, or
(b) is under this influence of a drug to such an
extent as to be incapable of exercising proper control
over the vehicle, shall be punishable for the first
offence with imprisonment for a term which may extend
to six months, or with fine which may extend to two
thousand rupees, or with both; and for a second or
subsequent offence, if committed within three years of
the commission of the previous similar offence, with
imprisonment for a term which may extend to two
years, or with fine which may extend to three thousand
rupees, or with both.
3 A reference may now be made to the facts of each case.
The   petitioner   in   Writ   Petition   No.1849   of   2010   was
arrested by  the Charkop Division of Malwani Police Station on 17th
April   2010,   on   the   allegation   of   having   committed   the   offence
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punishable under Section 185 of the M.V. Act.  He was released on a
cash bond of Rs.2,000/­.  As per the terms of the bond, the petitioner
appeared before the Special Metropolitan Magistrate, Borivali.  That,
on   that   day,   the   police   filed   “charge­sheet”   against   the   petitioner.
According to the petitioner, a rubber stamp had already been put on
the back side of  the “charge­sheet”,  the impression whereof read as
under:  
Charge explained
Accused pleads guilty voluntarily
ORDER
On his plea of guilt, Accused is
convicted and sentenced to pay fine of
Rs........... In default S.I for … .... days.
The petitioner is challenging the said charge­sheet and the prosecution
against him, vide case No.6480/H/2010, pending before  the Special
Metropolitan Magistrate on various grounds.   He is basically raising
the following points which, according to him, need determination.
(i) Can charge­sheet be filed sans First Information Report ?
(ii) Can in a summons triable case, charge­sheet be filed ?
(iii) Can in a trial, order be stamped even before proceedings 
have been initiated ?
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Mukund  Shankar Renake, Assistant  Police  Inspector  has
filed his affidavit in reply in the matter.
4 The petitioner in Criminal Writ Petition No.2003 of 2012
was   arrested   on   21   October   2010   by   the   Traffic   Control   Branch,
Andheri, in connection with the offence punishable under Section 185
of the M.V. Act.  The petitioner was subjected to a Breath Analyser Test,
the  result whereof  shows  that  there was  alcohol in  the  petitioner's
blood, in a quantity more than  the permissible.   The petitioner was
apprehended and released on his executing a cash bond of Rs.2,500/­.
On the next day, the petitioner was directed to remain present before
the  Special Metropolitan Magistrate  at  Andheri  and  when  he  went
there,  the Magistrate asked him whether he pleaded guilty.   As  the
petitioner did not plead guilty, the case (9610/PS/2010) was sent to
'Regular Court' for conducting trial.  The petitioner has approached this
Court, seeking to quash his prosecution vide the said case by raising
various   grounds.     According   to   him,   the   following   questions   need
determination. 
(i) Whether the offence punishable under Section 185 of
the M.V. Act, is a cognizable offence ?
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(ii)Whether compliance of the provisions of Section 154 of
the Code of Criminal Procedure (hereinafter 'the Code' for
brevity) is  necessary  prior  to  prosecuting  a  person,  with
respect to the said offence ?
(iii)Whether   a   police   report   under   Section   173(2)   in
absence of compliance of Section 154 of the Code, is null
and void in the eyes of law ?  
(iv)Whether it is incumbent upon a Magistrate empowered
to pass an order of issuance of process upon receipt of a
police report ?
5. The Applicant in Criminal Application No.268 of 2009 was
apprehended  by  the Worli  (Traffic)  Police  Station  on  27 December
2008, while  he was  driving  a motor  cycle.   He was  put  to  Breath
Alcohol Analysis Test, after which he was released on depositing a sum
of   Rs.2,000/­   and   executing   a   bond   to   appear   before   the   Special
Metropolitan   Magistrate,   Dadar   on   12   January   2009.     His   driving
licence was taken charge of by the officers of the Worli Traffic Police
Station.  On 12 January 2009, when the applicant attended the Court
of  the  Special Metropolitan Magistrate, Dadar,  the  applicant's name
was called out, and he was asked whether he pleaded guilty  to the
charge of an offence punishable under Section 185 of  the M.V. Act.
The applicant pleaded not guilty after which the case was adjourned.
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By the said application under Section 482 of the Code of
Criminal Procedure (hereinafter “the Code” for the sake of brevity)  the
applicant prays for quashing of the prosecution against him, raising a
number of contentions.  According to him, the trial pending before the
Special Metropolitan Magistrate, Dadar, is not being held as per the
procedure laid  down  by  the Code  and,  therefore, it  deserves  to  be
quashed.  One Digambar Ramchandra Shinde, Sub Inspector of Police,
attached to Bandra Traffic Division has filed affidavit in reply, in the
matter.     Subsequently,   one   Nandkumar   Anant   Chaugule,   Deputy
Commissioner  of  Police,  Traffic Control  Branch, Worli,  has  filed  an
additional affidavit in reply, in the matter.
6. The applicant in Criminal Application No.42 of 2012 was
arrested on 2 November 2011, while he was driving a motor car and
was   subjected   to   Breath   Alcohol   Analysis   Test.     Thereafter,   the
applicant was released on cash bail of Rs.2,500/­ and was directed to
appear   before   the   Special   Metropolitan   Magistrate,   Andheri,   on   4
November 2011.  His driving licence was taken charge of.  When he
attended the Court of Special Metropolitan Magistrate, his name was
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called out, and he was asked whether he pleaded guilty.   When he
replied   in   negative,   he   was   directed   to   attend   the   Court   of
Metropolitan Magistrate, Railway Mobile Court, Andheri on 22 August
2012.
By  this  application under  Section  482  of  the Code,  the
applicant challenges his prosecution, and prays that the charge­sheet
filed against him, be quashed.  According to him, the trial against him,
not being as per the procedure laid down under the Code and M.V. Act,
deserves to be quashed.
7   The  applicant in Criminal Application  No.690  of  2012
was   apprehended   by   the   Traffic   Control   Branch,   Juhu,   on   the
allegation of having committed an offence punishable under Section
185   of   the  M.V.   Act.     He   was   also   subjected   to   a   Breath   Alcohol
Analysis Test, which resulted in showing that there was alcohol in his
blood,   in   a   quantity   excess   than   the   permissible   limit.     He   was,
therefore, apprehended and released on bail on executing a cash bond
of Rs.2,000/­, with a direction  to  remain present before  the Special
Executive Magistrate,  at Andheri,  on  the next  day.   When  he went
there,  the learned Magistrate  asked  him  as  to whether  he  pleaded
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9 Cr.WP 1849-10
guilty, to which he replied in negative.  Thereafter, the case was sent to
the 'Regular Court' for conducting the trial.  According to the applicant,
his trial is bad in law.  He has posed the following questions :
(i) Whether the offence punishable under Section 185
of the M.V. Act, is a cognizable offence ?
(ii) Whether compliance of provisions of Section 154 of
the Code is necessary  prior  to  Section  185  of  the M.V.
Act ?
(iii) Whether the police report under Section 173(2) in
absence of compliance of Section 154 of the Code is null
and void in the eyes of law ?
(iv) Whether   it   is   incumbent   upon   a   Magistrate
empowered to pass an order of issuance of process upon
receipt of a police report ?
8 I have heard the learned counsel appearing for the parties,
at length.  I have also heard Smt.Usha Kejriwal, APP for the State.  I
have gone through the case law relied upon by the learned counsel for
the petitioners / applicants.
Even   after   the   arguments   were   heard   and   the   matters
were closed for orders, it was felt that some clarification was needed
from  the prosecution with respect  to  the  form of  the “charge­sheet”
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10 Cr.WP 1849-10
that is used in the cases under the M.V. Act, and as such, Mrs.Kejriwal,
learned APP was heard even thereafter, and consequently, the learned
counsel for the petitioners/applicants were also heard in that regard.
9  One of the contentions raised in these matters is, that 'the
offence punishable under Section 185 of the M.V. Act being cognizable, it
was necessary to have a First  Information Report registered before the
same could be investigated into'.  The contention is that without there
being  an  FIR,  as contemplated under  Section 154  of  the Code,  the
police could not have investigated into the offence, and filed a charge­
sheet   against   the   accused   persons.    There   is   no   substance   in   this
contention.
10 That the investigation of, or into a cognizable offence must
be preceded by registration of the First Information Report, is not a sound
proposition of law.  It is true that ordinarily, it would only be on the
basis of the First Information Report that the police machinery would
be made aware of the offence and, therefore, ordinarily there would be
a First Information Report recorded in accordance with the provisions
of Section 154 of the Code, before the investigation into a cognizable
offence or case commences.   However,  to suggest that the power to
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investigate flows from the registration of the First Information Report,
would   be   totally   incorrect.     The   receipt   and   recording   of   First
Information Report is not a condition precedent for investigation into a
cognizable offence.  It is clear from the provisions of Section 157 of the
Code,   which   speaks   of   the  procedure   for   investigation,  that   the
investigation can commence, if the officer in charge of a police station
has  reason to suspect  the commission of a cognizable offence;  and this
reason can be formed from the information received or otherwise.
11 In King Emperor v. Khwaja Nazir Ahmed AIR 1945 PC
18, the Privy Council said :
But, in any case, the receipt and recording of an
information report is not a condition precedent to
the setting in motion of a criminal investigation.
No doubt, in the great majority of cases, criminal
prosecutions are undertaken as a result of
information received and recorded in this way, but
their Lordships see no reason why the police, if in
possession through their own knowledge, or by
means of credible though informal intelligence
which genuinely leads them to the belief that a
cognizable offence has been committed, should
not of their own motion undertake an investigation
into the truth of the matters alleged. Section 157
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of the Cr.P.C. when directing that a Police
Officer, who has reason to suspect from
information or otherwise that an offence which he
is empowered to investigate under Section 156 has
been committed, shall proceed to investigate the
facts and circumstances, supports this view.
In truth, the provisions as to an information report
(commonly called a first information report), are
enacted for other reasons. Its object is to obtain
early information of alleged criminal activity, to
record the circumstances before there is time for
them to be forgotten or embellished, and it has to
be remembered that the report can be put in
evidence when the informant is examined if it is
desired to do so.
The provision for giving information, therefore, is not to
provide the police with the power of investigation, but to enable an
unembellished   version   of   the   incident   to   be   given   at   the   earliest
opportunity, so that the prosecution case at the trial may be tested.
Again, in Uttar Pradesh v. Bhagwant Kishore Joshi 1964
SC 221, the Supreme Court of India observed as follows :
Though ordinarily investigation is undertaken on
information received by a police officer, the
receipt of information is not a condition precedent
for investigation. Section 157 prescribes the
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procedure in the matter of such an investigation
which can be initiated either on information or
otherwise. It is clear from the said provision that
an officer in charge of a police station can start
investigation either on information or otherwise.
These  decisions  have   been   given  with  reference  to  the
provisions in  the  old Code.   The  relevant  provisions in  the  present
Code of Criminal Procedure being identical, there is no change in the
legal position that has been laid down by Their Lordships. 
12 This contention, therefore, must fail.
13 The next question that needs consideration is whether the
offence punishable under Section 185 of  the M.V. Act, is a  cognizable
offence, or whether it is a non­cognizable offence.  
14 It would be necessary to refer to the relevant provisions in
the   Code   of   Criminal   Procedure   (Code)   and   also   the   relevant
provisions in the Motor Vehicles Act.
15 Cognizable   offence   has   been   defined   in   clause   (c)   of
Section 2 of the Code, thus :­
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(c) “cognizable offence” means an offence for
which, and “cognizable case” means a case in which, a
police officer may, in accordance with the First
Schedule or under any other law for the time being
in force, arrest without warrant; (Emphasis supplied)
16 In view of this, one has to turn to the First Schedule to the
Code,  Part  I whereof  deals with  the  offences  punishable  under  the
Indian  Penal   Code   and  Part­II  whereof   deals  with  offences  against
other laws.    It shows  that if an offence  falling under other laws, is
punishable with imprisonment  for less  than  three  years,  then  such
offence   would   be   non­cognizable.     The   offence   punishable   under
Section 185 of  the M.V. Act, is punishable with imprisonment  for a
period of six months, in case of the first offence, and with an enhanced
punishment   of   imprisonment   upto   two   years   for   the   second   or
subsequent offence.  Therefore, going by the First Schedule, it would
be 'non­cognizable'.
17 However, the definition in clause (c) of Section 2 of the
Code also says that the power to arrest without warrant, conferred on
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a police officer (which would make the offence in question cognizable)
may be in accordance with the First Schedule, or under any other law
(for the time being in force).
18 Section  202  of  the M.V.  Act,  provides  for  arrest  of  the
offender committing an offence punishable under Section 184 or 185
or 197 of the M.V. Act.  It reads as under :
202. Power to arrest without warrant.
(1) A police officer in uniform may arrest without
warrant any person who in his presence commits an
offence punishable under Section 184 or Section 185 or
Section 197:
Provided that any person so arrested in connection with
an offence punishable under Section 185 shall, within two
hours of his arrest, be subjected to a medical
examination referred to in Sections 203 and 204 by a
registered medical practitioner failing which he shall be
released from custody.
[(2) A police officer in uniform may arrest without
warrant any person, who has committed an offence under
this Act, if such person refuses to give his name and
address.]
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(3) A police officer arresting without warrant the
driver of a motor vehicle shall if the circumstances so
require take or cause to be taken any steps he may
consider proper for the temporary disposal of the
vehicle.
19 Now, the question is whether since the section gives power
to the police officer to arrest an offender without a warrant, can the
said offence be said to be cognizable ?  It cannot be doubted that if any
law other than the IPC which creates an offence specifically provides
that it would be cognizable, then, irrespective of the provisions of Part
II of  the First Schedule, such offence would be cognizable.    If such
other law provides that a police officer may arrest without a warrant
for such offence, it would be cognizable irrespective of the punishment
provided for such offence.  Thus, there are offences under various laws
which are cognizable even though they are punishable with sentences
far less than three years, and sometimes even with fine alone.  They
are cognizable because the law creating them provides specifically that
they would be cognizable, or that the police officer may arrest a person
committing such offence.  However, the power to arrest given to the
police officer under Section 202 of the M.V. Act, is not an unqualified
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power.    It may be exercised  only if  the offence is committed in  the
presence of the police officer.   Further,  the police officer must be in
uniform at that time.   This gives rise to a peculiar situation.    If the
offence punishable under Section 185 of the M.V. Act, is committed in
the presence of a police officer in uniform, the offender can be arrested
by   such   officer   without   a   warrant.     However,   if   it   would   not   be
committed in  the presence of  a police  officer in uniform,  then,  the
offender cannot be arrested.  It has already been seen that going by the
First Schedule to the Code, the offence punishable under Section 185
of the M.V. Act, would be non­cognizable.
20 It   is   clear   that   the   power   to   arrest   for   an   offence
punishable u/s.185 of the M.V. Act conferred on a police officer is not
unqualified.  It can be exercised only if two conditions are fulfilled viz :
(i)  the offence must have been committed in the presence of
the police officer.
(ii)  when such police officer must be in uniform at that time.
The   question   is   whether   the   power   to   arrest   for   an   offence
u/s.185 of the M.V. Act given to a police officer would make the said
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offence cognizable, as defined in clause (c) of section 2 of the Code,
irrespective of the fact that such power can be exercised only under
certain circumstances.      In my opinion, the answer has  to be in the
negative.    If  the offence u/s.185 of  the M.V. Act is  to be  treated as
cognizable on  the basis of such limited and circumscribed power  to
arrest for such offence, then it would result into anomalous situations.
It would mean that when the offence takes place in the presence of a
police officer in uniform, it becomes cognizable and in other cases, it
remains non­cognizable.   It would not be possible to accept that the
same offence can be  'cognizable' in certain circumstances  and  'non­
cognizable' in certain circumstances.   It is because the procedure for
dealing with a cognizable offence, and the procedure for dealing with
a non­cognizable offence would be entirely different.  If a view that the
offence u/s.185 of the M.V. Act is cognizable is taken, then it should be
possible  for  anyone  to  go  to a police station  and lodge  a  report in
respect   of   commission   of   such  an   offence   which  the   police   officer
concerned would be required to record  as per the provisions of section
154  of  the  Code  and  commence investigation  as laid  down in  the
subsequent sections in Chapter XII of the Code. 
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Even   if   the   power   to   arrest   with   respect   to   a   certain
offence   is  given,   or  is limited  to   any  particular   category  of   police
officers,   still   such   offence   has   been   held   to   be   cognizable.     The
divergence of judicial opinion in that regard has been resolved by the
decision of the Supreme Court of  India in  State of Gujarat Vs. Lal
Singh AIR 1981 S.C 368.   In the said decision, Their Lordships held
that whether an offence was cognizable or non­cognizable would not
depend on which police officer could arrest the accused.  However, the
things will not be the same where the restriction or limitation is not
with respect to the class or category of the police officers empowered
to arrest, but with respect to the circumstances and conditions in which
the arrest can be effected.
The   question   whether   the   offences   punishable   under
section 184 and 185 of the M.V. Act are cognizable or non­cognizable
fell   directly   for   the   consideration   of   the   Kerala   High   Court   in
Mehaboob   Vs.   The   State,   Represented   by   the   City   Traffic
(Crl.M.C.No.702 of 2011)  decided on 30 March 2011.   The Kerala
High Court after referring to the decisions of the Madras High Court in
Public Prosecutor Versus. A.V. Ramiah (1958 Crl. M.C.No. 702 of
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2011) and of the Calcutta High Court in State of West Bengal Versus
Joginder Mallic  (1979 Crl.L.J.539), came  to  the conclusion  that  a
limited power to arrest without a warrant given to a police officer in
uniform did not make the offences punishable under section 184 and
185 of the M.V.Act, cognizable.  I am in respectful agreement with this
view.  In my opinion also, the offence punishable u/s.185 of the M.V.
Act is 'non­cognizable'.
21 Since this aspect came up in the course of arguments, and
when the view of the Court that the offence punishable under Section
185 of the M.V. Act, cannot be said to be a 'cognizable offence' was
expressed, it was  submitted  that, in  that  case,  the police could not
have investigated the same without the order of Magistrate, in view of
the  bar provided by sub­section (2) of Section 155 of the Code.  The
argument is that the Breath Alcohol Analysis Test would be a step in
investigation,   and   if   the   offence   is   'non­cognizable',   then   such
investigation could not be carried out  and “charge­sheet” could not
have been filed.
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22   In  the context of  the arguments advanced, it would be
proper to refer to the provisions of Section 4 of the Code, which reads
as under :­
4. “Trial of offences under the Indian Penal Code
and other laws (1) All offences under the Indian Penal
Code (45 of 1860) shall be investigated, inquired into,
tried, and otherwise dealt with according to the
provisions hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt
with according to the same provisions, but subject to any
enactment for the time being in force regulating the
manner or place of investigating, inquiring into, trying or
otherwise dealing with such offences.” (emphasis
supplied)
23 Sub­section   (2)   makes   the   provisions   of   the   Code
applicable even to the offences  under law other than the Indian Penal
Code.     It,   however,   makes   it   clear   that   the   applicability   of   the
provisions   of   the   Code   to   such   offences,   would   be   subject   to   any
enactment for the time being in force, regulating the manner or place
of investigating, etc.  In other words, if the manner etc.of investigating
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into such offences has been provided in any enactment, such manner
etc.will prevail over the provisions in the Code, in case of a conflict
between the two. 
 Section 5 of the Code also is worth noting.
5. Saving – Nothing contained in this Code shall,
in the absence of a specific provision to the contrary,
affect any special or local law for the time being in
force, or any special jurisdiction or power conferred, or
any special form of procedure prescribed, by any other
law for the time being in force. (Emphasis supplied)
Thus, the  position  that  emerges is  that  the  provisions  of  the  Code
would apply even with respect to the investigation of offences under
the Motor Vehicles Act but, such application would be subject to the
provisions   of   any   other   law   regulating   the   manner   of   such
investigation.    It is also clear  that any  special jurisdiction or power
conferred by any special or local law or any special form of procedure
prescribed by any other law for the time being in force, shall not be
affected by the provisions of the Code.
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23 Cr.WP 1849-10
24. Let   us   now   see   the   provisions   with   respect   to   the
investigation, and trial of the offences punishable under Section 185 of
the M.V. Act,   laid down in  the Act itself.   Section 202  thereof, has
already been reproduced earlier, and it has been seen that it provides
for the arrest of the offender, if such offence is committed in the presence
of a police officer in uniform.  The proviso to sub­section (1) of Section
202 of the M.V. Act mandates that the person so arrested by the police,
in connection with an offence punishable under Section 185 of  the
M.V.   Act,   shall,   within   two   hours   of   his   arrest,   be   subjected   to   a
medical   examination   referred   to   in   Section   203   and   204   by   a
registered   medical   practitioner.     It   also   provides   that  failing   such
subjection   to   a   medical   examination,   the   person   arrested   shall   be
released from custody.
25. Section 203 of the M.V. Act reads as under :­
203. Breath tests.
[(1) A police officer in uniform or an officer of the
Motor Vehicles Department, as may be authorized in
this behalf by that Department, may require any person
driving or attempting to drive a motor vehicle in a public
place to provide one or more specimens of breath for
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breath test there or nearby, if such police officer or
officer has any reasonable cause to suspect him of
having committed an offence under section 185;
Provided that requirement for breath test shall be
made (unless, it is made) as soon as reasonably
practicable after the commission of such offence.]
(2) If a motor vehicle is involved in an accident in a
public place and a police officer in uniform has any
reasonable cause to suspect that the person who was
driving the motor vehicle at the time of the accident
had alcohol in his blood or that he was driving under the
influence of a drug referred to in Section 185 he may
require the person so driving the motor vehicle, to
provide a specimen of his breath for a breath test -
(a) in the case of a person who is at a hospital as an
indoor patient, at the hospital, 
(b) in the case of any other person, either at or near
the place where the requirement is made, or if the
police officer thinks fit, at a police station specified by
the police officer :
Provided that a person shall not be required to provide
such a specimen while at a hospital as an indoor patient
if the registered medical practitioner in immediate
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25 Cr.WP 1849-10
charge of his case is not first notified of the proposal
to make the requirement or objects to the provision of
a specimen on the ground that its provision or the
requirement to provide it would be prejudicial to the
proper care or treatment of the patient. 
(3) If it appears to a police officer in uniform, in
consequence of a breath test carried out by him on any
person under sub-section (1) or sub-section (2) that the
device by means of which the test has been carried out
indicates the presence of alcohol in the person's blood,
the police officer may arrest that person without
warrant except while that person is at a hospital as an
indoor patient. 
(4) If a person, required by a police officer under
sub-section (1) or sub-section (2) to provide a specimen
of breath for a breath test, refuses or fails to do so
and the police officer has reasonable cause to suspect
him of having alcohol in his blood, the police officer may
arrest him without warrant except while he is at a
hospital as an indoor patient.
(5) A person arrested under this section shall while
at a police station, be given an opportunity to provide a
specimen of breath for a breath test there. 
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(6) The results of a breath test made in pursuance of
the provisions of this section shall be admissible in
evidence.
26 Sub­section (1) of Section 203 empowers a police officer
in   uniform,   or   an   officer   of   the   Motor   Vehicle   department,   duly
authorized in that behalf, to require any person driving a motor vehicle
in  a  public  place,  to  provide  one  or more  specimens  of  breath  for
Breath Alcohol Analysis Test.  Sub­section (3) of Section 203 speaks of
the power of the police officer to arrest the person subjected to Breath
Analysis test, if it appears to the police officer in consequence of the
Breath test carried out by him on that person, that the test indicates
the presence of alcohol in the person's blood.  Section 204 of the M.V.
Act deals with the laboratory test and collection of a specimen of the
blood of the person arrested under Section 203 of M.V. Act.  Elaborate
provisions are found in the said section as to under what circumstances
and in what manner, the laboratory test should be carried out. 
27 The position that emerges on a reading of the aforesaid
provisions is as follows :­
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i)That if the offence punishable under Section 185 of the
M.V. Act, popularly called as 'drunken driving' is committed
by a person in the presence of a police officer in uniform,
such police officer can arrest such person without a
warrant.
ii) Such police officer, after the arrest, is required to
subject such person to a medical examination referred to in
Sections 203 and 204 of the M.V. Act i.e. the Breath
Alcohol Analysis Test within two hours of his arrest. If
the police officer fails to subject the arrested person to
such test within two hours, such person shall be released
from custody.  
iii) If the result of the Breath Test indicates that the
person subjected to the Breath Test had alcohol in his
blood, the police officer may arrest that person without
warrant.
28 It   is   interesting   to   note   that   Section   202   speaks   of
arresting a person and subjecting him to the Breath Test.  Sub­section
(3) of Section 203 also speaks of the arrest of a person, if the report of
the   Breath  Test  carried   out   on   a  person   indicates   the   presence   of
alcohol in the person's blood.  Ordinarily, such a person must already
be in custody of the police by virtue of the provisions of Section 202 of
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the M.V. Act.  It is after his arrest that he would be subjected to Breath
Test and, therefore, after the result of the Breath Test, that he should
again   be   arrested,   is   little   queer.     If   both   these   provisions   are
considered together, the proper interpretation would be that the initial
arrest under Section 202 of the M.V. Act, is only  for  the purpose of
restricting the movements of the offender and for subjecting him to the
Breath Test.   It is after the result of the Breath Test, that he can be
placed under arrest as contemplated under Section 203 of the M.V. Act,
which would be the real arrest in respect of the said offence i.e. the
arrest as an offender. 
29 Indeed, the holding of Breath Test and Laboratory Test, is
a process of collection of evidence.  It has to be accepted that it is a
part of investigation. However,  the contention  that  'if  the offence is
held to be non­cognizable then, investigation into it cannot be carried
out without an order from the Magistrate, in view of the bar created by
sub­section (2) of Section 155 of the Code', is not acceptable.  It has
already been noticed that the procedure with respect to investigation
of offences, as laid down in  the Code, is applicable  to  the offences
punishable even under a special law (like the Motor Vehicles Act) but,
subject to any special procedure prescribed thereunder (or any other
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29 Cr.WP 1849-10
law for the time being in force) for the investigation or trial of such
offences.  A reading of Sections 4 and 5 of the Code, leaves no manner
of doubt that where a different procedure than one prescribed in the
Code, is laid down for the investigation, inquiry or trial of any offences
under   any   law   other   than   the   Indian   Penal   Code,   such   special
procedure shall prevail over the provisions in the Code, with respect to
the investigation  of  offences.    Thus,  the  provisions in  the M.V.  Act
regarding the investigation of the offences punishable under Section
185 of the M.V. Act, will prevail over the provisions in the  Code, which
prohibit investigation into a non­cognizable offence without an order
of a Magistrate.   There is,  therefore, no illegality committed by  the
police   in   subjecting   the   persons   apprehended   on   the   allegation   of
having  committed  the offence  punishable under  Section 185  of  the
M.V.   Act   to   Breath   Test,   and   in   having   collected   'evidence'   of   the
offences.
30 The   aforesaid   discussion   leads   to   the   following
conclusion.  
(i) Since the power conferred on a police officer to arrest
a person who has committed an offence punishable under
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Section 185 of the M.V. Act, is not an unqualified power, and is
conditioned by two requirements: 
(a) That such offence must have been committed in
the presence of such police officers. 
(b) That such police officer, at that time, must be in
uniform. 
The offence punishable u/s.185 of the M.V. Act cannot be said
to be a 'cognizable' offence. 
(ii) However, though the offence is 'non-cognizable', still, in
view of the special procedure for the investigation into such
offences, provided under the M.V. Act itself, it would be
perfectly legitimate to carry out investigation into such
offences in accordance with the said provisions – and only to
the extent provided therein – without any order from the
competent Magistrate. The special procedure prescribed in
the M.V. Act for the investigation into such offences, would
override the bar created by section 155(2) of the Code in
view of the provisions of Sections 4 and 5 of the Code.
31 Having   held   so,   the   only   question   that   requires   to   be
determined is whether the procedure for trial that is being adopted in
case of such offences, is proper or legal.
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32 In   all   these   cases,   the   accused   persons   are   being
prosecuted on the basis of a document, called as 'charge­sheet'.
33 Smt.Kejriwal, learned APP   in  the course of  arguments,
attempted   to   suggest   that   what   is   submitted   by   the   police   to   the
Magistrate, is not a 'charge­sheet' at all.  According to her, the police
are merely 'reporting the matter' to the Magistrate.   This submission
was made for countering the contention that if the offence u/s.185 of
the M.V.Act is held to be 'non­cognizable' then the police had no power
to investigate into it without an order of the Magistrate and to file a
'charge­sheet'.    The term 'charge­sheet' is not defined, or even used in
the Code.  It is, however, found in the police manual and it denotes a
report filed by the police on completion of investigation, after having
formed   an   opinion   that   the   persons   or   persons   named   therein   as
accused, have committed the offence mentioned in the said report.  
34 In   the   context   of   this   contention   advanced   by
Smt.Kejriwal, APP, I have examined the so­called 'charge­sheets' which
are filed by the police in the Court of Magistrates.  The contention that
'it  was  only  a  report made  to  the Magistrate,  in  respect  of  a  non­
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cognizable offence'  and seeking further orders', cannot be accepted, as
the same is absolutely contrary to the record.  First of all, the so­called
reports themselves show that they are styled as 'charge­sheet'.  It is so
printed  on  those  reports.   Moreover,  the  police,  admittedly,  take  a
bond, cash bond or surety bond from an accused person, requiring him
to appear before a particular court on a given date.     The so­called
'report'  also mentions  the name  of witnesses  and  the  particulars of
offence.  It is, certainly, not a report seeking permission to investigate
into the matter. The   printed   proforma   of   these   charge­sheets
indicates that the form thereof has been approved vide G.R.No.276/6
dated  13.2.1950  of the Home Department.   Apparently, this form of
the charge­sheet had been approved for prosecution of offenders with
respect to the offences punishable under The City of Bombay Police Act
1902.  The said Act has been repealed by the Bombay Police Act 1951.
It appears that the State is, however,  still using the proforma of the
charge­sheet   which   was   approved   for   prosecuting   the   offenders
committing   offences   under   the   City   of   Bombay   Police   Act   1902.
Moreover,   the   same   form   of   the   “charge­sheet”   is   being   used   for
offences under other Acts also, including the offences under the Motor
Vehicles Act, for which the form was not intended to be used.
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35 As earlier observed, the word 'charge­sheet' is not found in
the Code.     However,  the police  report under section 173(2) of  the
Code   is   popularly   known   as   'charge­sheet'   in   common   parlance.
Obviously,   such   a   police   report   can   be   filed   only   in   respect   of
cognizable offences.  The form of the ''charge­sheet” that is being used
in connection with the offences punishable under section 185 of the
Motor   Vehicles   Act   has   been   approved   for  cognizable   offences
punishable under  the City of Bombay Police Act.   Since  the offence
punishable  under  section  185  of  the Motor  Vehicles Act  cannot  be
called as a 'cognizable' offence, there would be no question of filing a
police report,  in respect of such an offence.
36 This needs consideration as to what is the legal status of
of the so­called 'charge­sheets' submitted to the Magistrate on which,
cognizance of the alleged offence is taken by the Magistrate, and the
offenders are prosecuted with respect to the offences punishable under
section 185 of the Motor Vehicles Act.   Since the offence punishable
under section 185 of  the Motor Vehicles Act cannot be  termed as a
'cognizable' offence, the 'charge­sheet' cannot be construed as a 'police
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34 Cr.WP 1849-10
report' as defined in section 2(r) of the Code.  After having considered
all  the  relevant  aspects  of  the matter, in my  opinion,  the  so  called
'charge­sheet'   falls in the category of a 'complaint' as defined under
section 2(d) of the Code.   Section 2(d) defines a complaint as under:­
(d) “complaint” means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include a
police report.
Explanation - A report made by a police officer in a case
which discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a complaint;
and the police officer by whom such report is made shall be
deemed to be the complainant; (Emphasis supplied)
37 There is some divergence of judicial opinion on whether
the report made by a police officer, after investigation which he was
not authorized to undertake, would amount to a complaint.  One view
is that since the very investigation would be illegal, the report based
on such an investigation would not be qualified even as a complaint.
However, in the instant case, as discussed earlier, the investigation that
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has   been   carried   out   cannot   be   termed   as   illegal.     It   has   been
authorized   by,   and   has   been   carried   out   in   accordance   with   the
provisions  of  the Motor  Vehicles  Act itself.    Thus, in my  view,  the
documents   (though   called   as   charge­sheets)   submitted   to   the
Magistrate by  the police alleging commission of offences punishable
under section 185 of the Motor Vehicles Act on the basis of which the
Magistrate takes cognizance, are deemed to be complaints, as defined
in section 2(d) of the Code.
38 In   any   case,   whether   the   documents   submitted   to   the
Magistrate is a police report,  or whether it is a complaint, has nothing
to do with the power, authority or jurisdiction of the Magistrate to take
cognizance of the alleged offence.   Section 190 of the Code provides
three  sources  from  which  a Magistrate may  take  cognizance  of  an
offence.  They are :­
(a) Upon a complaint of facts constituting such offence
(b) Upon a police report of such facts
                                 and
(c) (i) Upon information received from any person 
other than a police officer, or
(ii) upon his knowledge.
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Thus, even if termed as a 'charge­sheet',  the document forwarded to
the   Magistrate   in   that   regard   amounts   to   a  complaint,   and   the
Magistrate   would   be   competent   to   take   cognizance   of   the   alleged
offence on that basis.  Thus, on this ground, the prosecutions covered
by the present petitions/applications are not liable to be quashed.
39 Moreover,  the  procedure  for  trial  of  summons  cases  by
Magistrates as laid down in Chapter XX of the Code,  does not make
any distinction in the procedure to be followed in the trial depending
on   whether   the   case   has   been   instituted   on   a   police   report   or
otherwise.  Undoubtedly, the provisions of section 256 and 257 of the
Code apply only to the complaint cases and the provisions of section
258 apply only to cases instituted otherwise than upon a complaint,
but these provisions deal with the manner in which the proceedings
would be  terminated,  and  the procedure  to be observed during  the
trial   would   be   the   same   in   cases   instituted   on   a   complaint,   or
otherwise than upon a complaint.
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40 Smt.Kejriwal, the learned APP submitted that the form of
the  so  called  'charge­sheet' is  being  revived  and  that  the  change is
being made on the lines of the form of complaints that is being used in
Delhi,  for prosecution of offenders in  respect of offences punishable
under section 185 of the M.V. Act.
41 It is  therefore, clear  that  there is no basic  flaw or  fault
vitiating the prosecutions in the instant cases, and that there are no
grounds   for   quashing   any   of   the   prosecutions   which   have   been
launched against the present applicants/petitioners.
42 Coming to the contention that it was incumbent upon the
Magistrate  to pass an order of issuance of process upon receipt of  the
police report, and  that  in  the absence of an order issuing process, the
proceedings before him were bad in law, it has to be mentioned only for
rejecting it outright.  Undoubtedly,  section 204 of the Code stipulates
that if in the opinion of the Magistrate taking cognizance of an offence,
there is sufficient ground for proceeding, he shall issue a summons or a
warrant.  However, that does not mean that even if the accused would
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38 Cr.WP 1849-10
be already present before him, he would still be required to issue a
summons or warrant to procure the presence of such accused.  It is too
obvious that the issuance of process, as contemplated by section 204 of
the Code is for procuring the presence of an accused.  It is not that the
accused would always  remain present before  the Court only on  the
basis   of   a   summons   or   warrant   issued   by   a   Magistrate   taking
cognizance of  the offence, but  there could be a number of ways in
which he would be present before  the Magistrate even without  the
issuance of any such summons or warrant.   The issue of process, or
passing   an   order   directing   process   to   be   issued,   is   obviously
unnecessary in cases where the accused is already present in the Court.
In these cases, the accused persons had already been released on bond
by   the   police,   and   they   were   asked   to   attend   the   Court   of   the
Magistrate on a given date.   It was therefore, not at all necessary for
the Magistrate to have issued any process. 
43 There are, however,  some procedural aspects which need
discussion.    It is  because it  appears  that  in  all  these  cases  without
furnishing   the   copy   of   the   so­called   'charge­sheet',   the
applicants/petitioners were asked whether they were pleading guilty  to
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39 Cr.WP 1849-10
the   accusation   of   the   said   offence.     This   cannot   be   justified.     This
procedure will not be in accordance with law.
44 In the instant cases, the provisions of section 207 of the
Code, would not be applicable as the cases have not been instituted on
a   police   report.     However,   the   special   provisions   regarding
investigation  appearing in  the Motor  Vehicles Act  create  a  peculiar
situation   inasmuch,   as   though   there   would   be   no  police   report  in
respect of such offences, there would be some material which has been
collected by the Investigating Agency, i.e. police.  Such material is sent
to  the Magistrate alongwith  the complaint (termed as charge­sheet)
and this material is proposed to be used against the accused.  It would
be necessary  for  the accused  to know what  that material is, and  to
have   copies   of   the   so­called   'charge­sheet',   and   the   accompanying
documents   without   delay   and   free   of   cost.    In   spite   of   the
inapplicability   of   the   provisions   of   section   207   of   the   Code,   it   is
impossible to hold that the accused need not be given copies of the
relevant documents before his plea is recorded. 
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45 The  procedure  for  trial  of  offenders  has  to  be just  and
reasonable.     It   must   afford   an   opportunity   to   the   accused   to
understand the nature of case against him, and the evidence by which
it is proposed to be proved.  The accused must be given a  reasonable
opportunity of defending himself.   For these reasons, it is absolutely
necessary that, as soon as an accused appears before the Magistrate,
the   Magistrate   should   furnish   a   copy   of   the   'charge­sheet',
accompanied by the report of the Breath Alcohol Analysis Test and/or
Laboratory Test, and any other documents on which reliance is placed
by the prosecution.  It is after a copy of the 'charge­sheet' accompanied
by   the   Breath   Analysis   Test   /   Laboratory   Test   and   other   relevant
documents, that are relied upon by the prosecution is furnished to an
accused, he  should be  asked  as  to whether  he  pleads  guilty  to  the
accusation or not.  Once this is done, the trial can proceed further in
accordance with law.
46 A contention has also been raised in some of the petitions/
applications   that   the   trial   proceedings   are   not   proper   because   the
rubber stamp impression of the order that would ultimately be passed
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in the proceedings had already been put on the charge­sheet.  Such a
question   has   been   specifically   raised   in   some   of   the   petitions/
applications  and it is  contended  that  this  shows  non­application  of
mind on the part of the Magistrate.    It is attempted to suggest that
putting   of   a   rubber   stamp   indicates   that   a  Magistrate   has  already
decided   to   hold   the   accused   guilty.     I   find   no   substance   in   this
contention.  The Criminal Manual which has been issued by the High
Court exercising its  power  of  superintendence  and control  over  the
sub­ordinate Courts in  the State of Maharashtra, permits  the use of
rubber stamps in certain cases.   Paragraph no.7 of Chapter VI of the
Criminal Manual lays down the following with respect to the use of
rubber stamp.
“Use of Rubber Stamp
The use of the following rubber stamps only (and no printed
or cyclostyled form in vogue) are permitted in the judicial
proceedings
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Sr.No.
 (1)
 Nature of Cases
 (2)
 Stamps
 (3)
 1 Remand Applications Accused is ordered to be released
on bail in the sum of Rs......... with one
surety in the like amount in default
remanded to Police/Jail Custody
till..............
 2 N.C. Cases or Summary
Cases in which the
accused plead guilty
 Judgment-On the plea of the
accused. I convict him to pay a fine
of Rs. ............ in default to suffer
…........... days/months simple/
rigorous imprisonment. Bail bond
cancelled.
 3 Surety Bond Order – The surety is accepted 
Date J.M.F.C.
(1) The Judicial Magistrate, First Class (and not Civil Judgecum-Judicial Magistrate) at District Headquarters and the
Special Judicial Magistrates (Railways, Motor Vehicles and
Municipal or Corporation) are permitted to use the rubber
stamps for passing judicial orders in N. C. Cases, summary
cases in which the accused persons plead guilty, remand
cases and for accepting the sureties. In no other case
they should use rubber stamps even for putting formal
questions to the accused persons.
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(2)So far as the Judicial Magistrates at Taluka places are
concerned, they should not make use of the rubber stamps
even to the limited extent as stated above, because the
number of N. C. Cases, Summary Cases and remand orders
is very small. However, in case a Judicial Magistrate at
Taluka place wants to avail himself of this facility, he
should make out a case giving the number of institutions
and disposals of N.C.Cases and Summary Cases to the
District Judge who should in turn examine the proposal and
make a suitable recommendation to the High Court for
authorising such Magistrate or Magistrates to make the
use of the rubber stamps. 
The Magistrates are permitted to use the aforesaid
rubber stamps on condition that they exercise proper care
and due attention in striking out unnecessary words and in
filling the gaps, that these rubber stamp orders are
recorded by them personally and not by their Judicial
Clerks and that they personally strike out unnecessary
words and fill in the gaps in their own handwriting.” 
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47 It appears that in order to save time, such rubber stamps
were already put on the said 'charge­sheets', but from this it cannot be
suggested   that   the   Magistrate   thereby   committed   any   illegality.
Certainly,   if   an   accused   would   plead   not   guilty,   the   rubber­stamp
impression would have no meaning and would be cancelled by  the
Magistrate.  There is nothing illegal in the use of such rubber stamps,
provided such use in accordance with the provisions of the Criminal
Manual.
48 Thus, there is no substance in the contention of any of the
petitioners / applicants that their prosecution is bad in law and/or that
it is in contravention of the legal provisions, except to the extent that it
must be laid down that it would be mandatory for the Magistrate to
supply a copy of the “charge­sheet” and the documents relied upon the
prosecution   to   the   accused,   as   soon   as   he   appears   before   the
Magistrate.  It would be for the Magistrate to decide whether the plea
of an accused should be recorded immediately thereafter, or whether it
should be postponed to some other date; but if the accused needs time
to  go  through  the  “charge­sheet”,  the Magistrate  should  grant  such
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time.  It would be unreasonable to insist on recording the plea of an
accused as soon as the copy of the “charge­sheet” is supplied to him.
This direction needs to be given to all the Magistrates in the State of
Maharashtra.
49 The various questions posed by the petitioners/applicants
are, therefore, answered as follows in view of the aforesaid discussion :
(i) Can   charge­sheet   be   filed  sans
First Information Report ?
(It   is   believed   that   the   term
'charge­sheet'  as  appearing in
this question refers to a police
report)
Yes, when  there would be no
First   Information   Report,   at
all.
(ii) Can in a summons  triable case,
charge­sheet be filed ?
(It   is   believed   that   the   term
'charge­sheet'  as  appearing in
this question refers to a police
report) 
Yes.    If  the  'summons  triable'
case   relates   to   a   cognizable
offence or is a cognizable case,
and if the police come  to the
conclusion   that   the
commission   of   offence   is
disclosed, a police  report, i.e.
commonly   called   as   “charge­
sheet” can be filed.
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(iii) Can in a trial, order be stamped
even   before   proceedings   have
been initiated ?
Yes,   provided   it   is   in
accordance   with   para   7   of
Ch.VI of the Criminal Manual
issued  by  the High Court  for
the   guidance   of   the   sub­
ordinate courts. 
(iv) Whether  the offence punishable
under   Section   185   of   the   M.V.
Act, is a cognizable offence ?
No.
(v) Whether   compliance   of   the
provisions of Section 154 of the
Code   of   Criminal   Procedure
(hereinafter   'the   code'   for
brevity)   is   necessary   prior   to
prosecute a person, with respect
to the said offence ?
No.
(vi) Whether   a   police   report   under
Section   173(2)   in   absence   of
compliance of Section 154 of the
code, is null and void in the eyes
of law ?
No.
(vii) Whether it is incumbent upon a
Magistrate   empowered   to   pass
an order of issuance of process
upon receipt of a police report ?
No. Not when  the person i.e.
the   accused   for   procuring
whose presence the process is
to be issued is already present
before the Magistrate.
50 The petitions / applications, therefore, fail.
51 However, it is  directed  that in  all  such  cases i.e.  cases
under the Motor Vehicles Act, the Magistrate concerned shall forthwith
furnish a copy of the “charge­sheet” and the documents on which the
prosecution  relies  to  an  accused  as  soon  as  he  appears  before  the
Tilak

Magistrate.     It   is   thereafter   that   the   Magistrate   shall   state   the
particulars  of   the   offence   (as  may  be   disclosed   from   the   so­called
'charge­sheet'   and   the   documents   accompanying   it,   if   any)   to   the
accused, and record his plea in terms of section 251 of the Code.
If the accused needs some time to go through the “charge­
sheet” and,  therefore, prays  for a postponement of  the  recording of
plea, the Magistrate should ordinarily grant such request.  
52 These directions must be scrupulously followed by all the
Magistrates in the State of Maharashtra.
53 The petitions / applications are dismissed, with the 
aforesaid observations.
Interim stay stands vacated.
The Learned Magistrates shall proceed further with the 
cases in accordance with law.
The petitioners/applicants shall appear before the 
respective Courts on 25 February 2013.
(ABHAY M. THIPSAY, J.)
Tilak

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