Procedure to be followed by Magistrate after receipt of B Summary Report

The above stated two judgments of 
the   Hon'ble   Supreme   Court   are   based   on   the   judgment   of   the   Hon’ble 
Supreme   Court   in   the   matter   of  M/s.   India   Carat   Pvt.   Ltd.   Vs.   State   of  
Karnataka, reported at AIR 1989 SC 885.  The observations made in the said 
judgment of  India Carat  can be found at paragraph No.16, which read as 
under :
“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 cognisance 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   cognisance   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 cognisance 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 case, 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. ...”

(Emphasis supplied)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
  
               
CRIMINAL APPLICATION (APL) NO. 761 OF 2012

Prakash Banduji Mundale, Vs State of Maharashtra, 

                             CORAM : M.L. TAHALIYANI, J.
    Dated; 29th april 2014.
Citation; 2014 AllMR(cri) 2414
                  
The   applicant   is   aggrieved   by   the   order   passed   by   Judicial 
3.
       
Magistrate   First   Class   on   23rd  April,   2012   and   the   judgment   passed   by 
Additional Sessions Judge, Akot on 27th  August, 2012 in Criminal Revision 
Application No. 25 of 2012.
The   applicant   had   filed   complaint   for   seeking   orders   under 
4.

Section 156(3) of the Code of Criminal Procedure from the learned Judicial 
Magistrate First Class.  The applicant had prayed for directions to the police 
to investigate into the complaint filed by him against the accused named in 
the   said   complaint.     The   Magistrate   granted   prayer   and   forwarded   the 
complaint   to   the   police   for   investigation.     The   police   registered   First 
Information  Report bearing  Crime  No.  M­33/2011  on  28th  July,  2011  and 
investigated the case.
5.
It   appears   that   the   applicant   was   not   satisfied   with   the 
investigation   carried   out   by   the   Investigating   Officer   and   he,   therefore, 
approached   the   Sub   Divisional   Police   Officer.     The   Sub   Divisional   Police 
Officer herself recorded statements of the witnesses and forwarded the same 
to   the   Investigating   Officer.     The   Investigating   Officer   took   statements 
recorded   by   him   into   consideration   and   also   considered   the   statements 
recorded by the Sub Divisional Police Officer and submitted ‘B’ summary in 
the Court of the Magistrate.

6.
               
The applicant was not satisfied with the report submitted by the 
police and therefore, he filed Protest Petition in view of the judgment of the 
Hon’ble Supreme Court in the matter of Bhagwant Singh Vs. Commr. of Police, 
reported at AIR 1985 SC 1285.  The said Protest Petition was dismissed and 
‘B’ summary submitted by the police was accepted.  The applicant therefore, 

filed revision petition against the said order passed by the Magistrate.   The 
revision petition has also been dismissed.  Therefore, the applicant is before 
this Court and seeks indulgence of this Court to invoke powers under Section 
482 of the Code of Criminal Procedure.   
7.
In   the   first   place,   let   it   be   stated   here   that   the   statements 
recorded by the Sub Divisional Police Officer were signed by the witnesses 
and therefore, they could not be treated as the statements recorded under 
Section 161 of the Code of Criminal Procedure.  Those statements could not 
have been considered by the Investigating Officer for the purposes of filing a 
report under Section 173 of the Code of Criminal Procedure.   As such the 
Investigating Officer was left with the statements recorded by him only.  The 
applicant   was   not   satisfied   with   the   investigation   carried   out   by   the 
Investigating Officer.  That has been stated in the protest petition also.  The 
question, therefore, arises as to what the Magistrate could have done in these 
circumstances.

Learned counsel Mr. Gandhi has submitted that the Magistrate 
8.
could have proceeded under Section 200 of the Code of Criminal Procedure 
despite the fact that the police had submitted ‘B’ summary after investigation 
of the first information report.  Mr. Gandhi has relied upon a judgment of the 
Hon’ble   Supreme   Court   in   the   matter   of  Gangadhar   Janardan   Mhatre   vs.  
State of Maharashtra, reported at AIR 2004 SC 4753. The observations made 

by the Hon’ble Supreme Court in this regard can be found at paragraph 9 of 
the said judgment.  The view expressed by the Supreme Court in the case of 
Gangadhar  Mhatre  was reiterated  in the  case  of  Minu Kumari  vs.  State  of  
Bihar, reported at 2006 Cri.L.J. 2468.   The above stated two judgments of 
the   Hon'ble   Supreme   Court   are   based   on   the   judgment   of   the   Hon’ble 
Supreme   Court   in   the   matter   of  M/s.   India   Carat   Pvt.   Ltd.   Vs.   State   of  
Karnataka, reported at AIR 1989 SC 885.  The observations made in the said 
judgment of  India Carat  can be found at paragraph No.16, which read as 
under :
“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 cognisance 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   cognisance   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 cognisance 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 case, 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. ...”
(Emphasis supplied)

As such in the peculiar facts and circumstances of this case, the 
Magistrate instead of giving a finding that there are contradictions  in the 
statements   recorded   by   the   Investigating   Officer   and   the   Sub­Divisional 
Police   Officer   should   have   proceeded   under   Section   200   of   the   Code   of 
Criminal Procedure.   The learned Magistrate should have realised that the 
statements   recorded   by   the   Sub   Divisional   Police   Officer   were   not   the 
statements recorded under Section 161 of the Code of Criminal Procedure 
and could not have been taken into consideration while submitting report 
under Section 173 of the Code of Criminal Procedure.  Keeping in view this 
legal situation, it was just and proper for the Magistrate to proceed under 
Section 200 of the Code of Criminal Procedure. 
9.
As such, the order passed by both the Courts below will have to 
be set aside and it is necessary to direct the learned Magistrate to proceed 
with the complaint under Section 200 of the Code of Criminal Procedure. 
Hence, I pass the following order.

i. The order passed by learned Magistrate on 23rd April, 2012 in 
Regular Criminal Case No. 133 of 2011 is set aside.
ii. The judgment and order passed by learned Additional Sessions 
Judge in Criminal Revision Application No. 25 of 2012 is also 

set aside. 
iii. Learned   Judicial   Magistrate   First   Class,   Akot   is   directed   to 
consider the complaint of the applicant under Section 200 of 
the Code of Criminal Procedure. 

The application stands disposed of accordingly.   

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