H.S. BAINS v. THE STATE (UNION TERRITORY OF CHANDIGARH) AIR 1883, 1981 SCR (1) 935, 1980 (4) SCC 631

CASE NAME:	H.S. BAINS v. THE STATE (UNION TERRITORY OF CHANDIGARH)
EQUIVALENT CITATION:	1980 AIR 1883; 1981 SCR (1) 935; 1980 SCC (4) 631
DATE OF JUDGEMENT:	10th OCTOBER 1980
COURT:	SUPREME COURT OF INDIA
CASE NUMBER:	CRIMINAL APPEAL NO. 687 of 1980
CASE TYPE:	CRIMINAL APPELLATE JURISDICTION ( Appeal by Special Leave from the Judgement and Order dated 18-04-1980 of the Punjab and Haryana High Court in Crl. Misc. No. 26-M/1980)
PETITIONER (APPELLANT):	H.S. BAINS DIRECTOR SMALL SAVING-CUM-DEPUTY SECRETARY, FINAN
RESPONDENT:	THE STATE ( UNION TERRITORY OF CHANDIGARH)
BENCH:	DIVISIONAL BENCH : JUSTICE CHINNAPPA O. REDDY AND JUSTICE RANJIT SINGH SARKARIA
STATUTE AND SECTION:	CODE OF CRIMINAL PROCEDURE, 1898INDIAN PENAL CODE, 1860
CASES REFERRED:	ABHINANDAN JHA & ORS. v. DINESH MISHRA AIR 1968 SC 117TULA RAM & ORS. v. KISHORE SINGH AIR 1977 SC 2401

FACTS OF THE CASE:

On 13th August, 1979 a complaint was made by Mr. Gumnam Singh to the Class 1 Judicial Magistrate of Chandigarh against the appellant of this case (H.S. Bains) that the appellant along with two other people had trespassed into his house on the morning of 11th August 1979 at 8 am. The Complainant Gumnam Singh also alleged them to have threatened to kill him and his natural son if he did not take away his natural son Aman Deep Singh from the house of his sister Bakshish Kaur. Bakshish Kaur was a widow and had no child of her own so she adopted the son of her brother Gurnam Singh but this adoption made by her was not accepted by the appellant HS. Bains. Further the complaint also contained the allegations that the appellant was armed with a revolver which he pointed at the complainant. After the complainant started crying all the accused ran away. Since there was a holiday on both 11 and 12 August, 1979 the complainant could file the case on 13th August 1979 only. Post the receipt of the complaint, the learned Magistrate ordered a probe and asked the police to investigate, under Section 156(3) of the Code of Criminal Procedure, the case further. The police after completing its investigation submitted a report to the Magistrate under Sec. 173 of the CrPC, the report stated that the complaint against the appellants was false and that the proceedings might be dropped now. The reason for the police to say that the complainant was not true was that the appellant, as per the investigation of the police, was at Amritsar with Shri Jai Singh, the District Magistrate of Amritsar at 9:00 am on August 11, 1979 and thus it was impossible for him to have been at Chandigarh at 8:00 am on 11th August 1979.

     The learned Magistrate after carefully going through the report of the police arrived at the conclusion which completely disagreed with the police, took cognizance of the case under Sections 448, 451 and 506 of the Indian Penal Code and directed the issue of process to the appellant. Aggrieved by the magistrates decision the appellant filed in High Court of Punjab and Haryana but the application was dismissed by the High Court. Thus the Special Leave Petition was allowed and the appellant filed an appeal in the Supreme Court.

ISSUES RAISED:

What is the scope of Magistrate ordered investigation under Section 156(3)- Police Submitted report under Section 173: Disagreeing with police report Magistrate directed the issue of process. Whether the Magistrate is competent to take cognizance of complaint under Section 190(1)(b)?

CONTENTION OF THE PARTIES(Contention of the Appellant):

1. Mr. Kapil Sibal on behalf of the appellant stated that the Magistrate has taken the cognizance of the case under Section 190(1)(b), i.e., on the basis of the police report, since the Magistrate didn’t record the statement of either the complainant or the witnesses under Section 200 of CrPC.
2. Shri Sibal also submitted that the Magistrate was not competent to take cognizance of the case based upon the police report since the report submitted by the Police under Section 173 of CrPC clearly stated that no offence was committed by the accused since he was not there at the place of offence.
3. Further Shri Kapil Sibal also argued that in the current case, as per the circumstances of the case, the Magistrate had only two options available to him after the receipt of the report that the Magistrate may either order a further investigation or the Magistrate could take cognizance of the case after recording the statements of the complainant and the witnesses, after being satisfied regarding the issuance of the process.
4. Thus Shri Kapil Sibal submitted that the order of the 1st Class Magistrate taking the cognizance of the case was so non-judicial that it ought to be struck down.

JUDGEMENT OF THE COURT:

1. The Supreme Court stated that on the receipt of a complaint, the Magistrate shall have several options or courses open to him.
   1. The Magistrate may take cognizance of the case under Section 190 of CrPC and record the statements of the complainant and the witnesses under Section 200. After this if the Magistrate finds that there is no sufficient ground for proceeding then he may dismiss the complaint under Section 203. If he finds that there is sufficient ground for proceeding further he may issue the process under Section 204.

However he may also postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue a process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding.

2. On receiving the complaint, the Magistrate may order an investigation under Section 156(3). The police shall then conduct its investigation and submit its report under Section 173(1). After the receipt of the police report the Magistrate shall take cognizance and issue the process under Section 190 (1)(b) irrespective of the view of police in their report.

2. The Police report under Section 173 contains the facts discovered by the police and the conclusion thus drawn by the police.
3. The Magistrate may decide to issue a process even if the Police recommend that there is no sufficient ground for proceeding further. 
4. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 of CrPC and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204.
5. A Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1) may, thereafter, do one of the three things:
   1. He may decide that there is no sufficient ground for proceeding further and drop action;
   2. He may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;
   3. He may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and the witnesses under Section 200. If he adopts the third alternative, he may hold or direct an enquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.
6. Shri Kapil Sibal invited the Court’s attention to the two decisions of the Court as follows:

• ABHINANDAN JHA & ORS. v. DINESH MISHRA AIR 1968 SC 117 : 

The question arose Whether a Magistrate to whom a report under Section 173(1) 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? 

              The Court held that the Magistrate had no jurisdiction to direct the police to submit a chargesheet. 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 the 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). 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 that 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 Supreme Court says that they do not have any doubt that the reference to ‘Section 190(1)(c)’ was a mistake for ‘Section 190(1)(b)’.

• Shri Kapil Sibal urged that the reference was indeed to Section 190(1)(c) since at that time Section 190(1)(c) included the words ‘or suspicion’ and the Court had apparently taken the view that the Magistrate could take cognizance of the offence not under Section 190(1)(b) as if on a police report but under Section 190(1)(c) as if on suspicion. 

The honorable Supreme Court did not agree with the contention of Mr. Sibal. Section 190(1)(c) was never intended to apply to cases where there was a police report under Section 173(1). It is impossible to say whether the Magistrate took cognizance on the basis of the police report or on the basis of suspicion just merely based on the facts that the Magistrate and the Police arrived at different conclusions from the facts. The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If the complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307 of IPC,  the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under Sec 324 instead of Sec. 307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eyewitnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. 

• TULA RAM & ORS. v. KISHORE SINGH AIR 1977 SC 2401: 

The Magistrate,  on receiving a complaint, ordered an investigation under Section 156(3). The Police after investigation submitted a report indicating that no case had been made out against the accused. The Court, however, recorded the statements of the complainant and the witnesses and issued proceedings against the accused.  It was hence contended that the Magistrate acted without jurisdiction in taking cognizance of the case as if upon a complaint when the police submitted a report that no case had been made out against the accused.  

The Supreme Court held that the Magistrate acted within his powers and observed that the complaint did not get exhausted as soon as the Magistrate ordered an investigation under Section 156(3). 

7. The Court was therefore unable to agree with the submission of Shri Sibal that the Magistrate acted without jurisdiction in taking cognizance of the offence and issuing process to the accused notwithstanding the fact that the police report was to the effect that no case had been made out.

8. The Court declines to say a word about the merits of the case since it was entirely a matter for the learned Magistrate to take cognizance or not.
9. It was unnecessary for the Magistrate to write such an elaborate order as if he was weighing the evidence and finally disposing of the case. 
10. Some of the observations of the learned Magistrate about the District Magistrate were wholly uncalled for as the latter was yet to appear before him as a witness. 
11. Since the case was already transferred to another Magistrate. It was therefore unnecessary to say anything further in the matter and therefore the appeal was dismissed by the Court.

CONCLUSION 

In the conclusion to the case discussed above ,that is, H.S. Bains v. The State (Union Territory of Chandigarh)1980 AIR 1883, 1981 SCR (1) 935, 1980 (4) SCC 631, it can be established that it has been one of the landmark judgements in the jurisdiction of Code of Criminal Procedure (CrPC). The case quite briefly but also intrinsically discusses upon the Power of the Magistrate with regard to Cognizance as under Section 190 of the CrPC. The Magistrate as per Section 190 can take up cognizance of an offence committed if it has either been brought to his notice by the Police or by the receipt of any complaint and also if he by his own knowledge gets to know that such an offence has been committed. The scope of section 190 of CrPC has been discussed by the honorable Supreme Court and the Magistrate has been given the power to continue to proceed further or drop action in any matter on his own will even after receiving the final report on the matter by the Police.

written by : SHRIKRISHNA GOYAL, BA.LLB. 6th Semester, IMS LAW COLLEGE, NOIDA