Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. Learned counsel for the respondent No. 1, on the other hand, supported the judgment of the High Court.
11. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court in Bhagwant Singh v. Commissioner of Police and ;. ' Another (AIR 1985 SC 1285), stressed on the desirability of intimation being given to the informant when a report made under Section 173 (2) is under consideration. The Court held as follows: CHITIARANJAN MIRDHA v. DULAL GHOSH AND ANR. [DR. ARIJIT PASAYAT, J.] " …. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Sub-Section (2)(i) of Section 173, ihe Magistrate is not inclined to-take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submission to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop c the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the rt II repo …
12. Therefore, there is no shadow of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report. This Court further held that the position is different so far as an injured person or a relative of the deceased, who is not an informant, is concerned. They are not entitled to any notice. This Court felt that the question relating to issue of notice and grant of opportunity as afore-described was of general importance and directed that copies of the judgment be sent to the High Courts in all the States so that the High Courts in their turn may circulate the same among the Magistrates within their respective jurisdictions.
13. In Abhinandan Jha and Another v. Dinesh Mishra (AIR 1968 SC 117), this Court while considering the provisions of Sections 156(3), 169, 178 and 190 of the Code held that there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge sheet, when they have sent a report under Section 169 of _the Code, A that there is no case made out for sending up an accused for )r. trial. The functions of the Magistrate and the police are entirely different, and the Magistrate cannot impinge .upon the jurisdiction -0f the police, by compelling them to change their opinion so as to accord with his view. However, he is not B deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the ….. police which is the final stage in the investigation has been c provided for in Section 190(1)(c).
14. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. E The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate, he has again the option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may F disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3).
The position is, therefore, now well-settled that upon receipt of a police report G 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 H investigation and take cognizance of the offence complained CHITTARANJAN MIRDHA v. DULAL GHOSH AND ANR. [DR. ARIJIT PASAYAT, J.] '4 of and order the issue of process to the accused. Section .190(1)(b) does not lay down that a Magistrate can take 9ognizance of an offence only if the Investigating Officer gives ~n 9pinion that the investigation has made out a case against the ii!CGllSe~. The Magistrate can ignore the conclusion arrived c:it py the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cogniz;ance of the CC!Se, if he thinks fit, exercise of his powers under Section 190(1)(b) gnd dirElct the issue of process to the accused.
The Magistrate is not bound in such a situation to follow the proceqljre laid down in Sections 200 and 202 of the c 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. [See Mis. India Saraf Pvt. Ltd. v: State of Kamataka and another (AIR 1989 SC 885)]. The iilformant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwan{ Singh's case (supra) that where the ….
"' Magistrate decides not to take cognizance and to drop the – proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard. -4
15. We may add here that the expressions ·charge-sheet' or "final report' are not used in the Code, but it is understood in Police Manuals of several States containing the Rules and the Regulations to be a report by the police filed under Section 170 of the Code, described as a "charge-sheet". In case of A reports sent under Section 169, i.e., where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate, it is termed variously i.e., referred charge, final report or summary. Section 173 in terms does not refer to any notice to be given to raise any protest to the report submitted B by the police. Though the notice issued under some of the Police Manuals states it to be a notice under Section 173 of the Code, though there is nothing in Section 173 specifically providing for such a notice. c
16. As decided by this Court in Bhagwant Singh's case (supra), the Magistrate has to give the notice to the informant and provide an opportunity to be heard at the time of consideration of the report. It was noted as follows:- " …. the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report … "
17. Therefore, the stress is on the issue of notice by the Magistrate at the time of consideration of the report. If the informant is not aware as to when the matter is to be E considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly. But as indicated in Bhagwant Singh's case (supra) the right is conferred on the informant and none else.
18. The aforesaid position was highlighted by this Court F in Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. (2004 (7) sec 768).
19. It is not explained as to how the order of the High Court is prejudicial to the appellant. The High Court has directed all G procedural safeguards to be followed. It has also referred to applicability of Section 319 of the Code in appropriate cases.
20. That being so we find no merit in this appeal which is dismissed. H B.B.B. Appeal dismissed.