Shah, J.
(1) This reference raises a question of some importance about the jurisdiction of a magistrate to direct an investigation officer to submit a charge sheet when that officer in the investigation of a congnizable offence has not filed a charge sheet and has in submitting his report under S.173 of the Code of Criminal Procedure requested that Summary A, B, or C be issued.
(2) We may briefly set out the facts which give rise to this reference. Police constable Murlidhar Goverdhan Patel, attached to the Thana Prohibition Department, was foud drunk in the house of one Gunyabai, investigation was commenced in respect of this incident and a final report was submitted y the investigating officer to the judicial Magistrate F.C. Tnana, requesting that 'A' summary be issued. The reasons in support of the request were:
1. That the accused was not found in personal possession of illicit liqour.
2. That there was also no evidene to show if he was ound drunk in a public place.
3. That the main witnesses in the case were interested against the prosecution and they may turn hostile because they were themselves prosecuted for an offcence under Prohibition Act.
4. That there was no eveidence to connnect the accused with the liqour bottles that were found in the house of Gunyabai.
The Judicial Magistrate, First Class, Thana obseved that the facts of the case did not warrant the assumption made by the Investigating Officer in asking for 'A summary and directed that a charge sheet be sent up against the constable wihtout making 'the witnesses as hostile even before they were given a fair opportunity to come before the court and depose on oath.'
(3) Against this order a reision application was preferred by the State to the Court of Session at Thana. the learned Sessions Judge has made a reference to this court recommending thatthe order of the trial Magistrate be set aside and in the alternative, 'C' summary be granted on the repot made by the Investigating officer.
(4) The Government pleader ppearing in support of the reference contends tha a Magistrate has no power to call for a charge sheet from a police Officer who after investigating a cognizable cse has submitted a report that a summary 'A, B, or C' be issued. It is urged that the opinion of the investigating officer investigating a cognizable offence that the evidence does not warrant the submission of a charge sheet against the person accused of an offecne is binding on the magistrate and the latter is incompent to call upon the officer to submit a charge summary. The learned Government Pleader has in suport of his submisstion invited our attention to a number of decisions, but he has fairly conceded that some of these decisions contains the decision of these cases. Before we refer to these authorities, we may examine the scheme of the Code relating to the investigating of offences. Chapter XIV of the code falls in Part V which powers to investigate. A Police Officer is empowered to investigate into any cognizable offence without the order of a magistrate. In respect of a non cognizable offence, the Police Officer has no power without an order from a Magistrate to commence investigation. Where a Police Officer has received information about or has reason to suspect the commission of a cogbnizable offene, he must forthwith send a report of the same to a Magistrate empowered to take cognizable of such offence upon a police report and to proceed in person, or depute one of his ubordinate officers to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of offender (S.157) A Magistrate receiving a report from Police Officer relating to the commission of Cogniziable offence, may direct an investigation or if the case in manner provided by the dispose of, the case in manner provided by the code (S. 159) Power is also conferred upon certain Magistrates to record statements of confessions in the course of the investigation under Chapter XIV (S. 164) When a search is made by the Investigating Officer, the record of the search must be sent to the nearest Magistrate empowered to take cognizance of the offence. (S. 165) If an investigation cannot be completed within twenty-fur hours. the investigating Officer must send the accused forthwith to the of the entries in the diary relating to the case and power is conferred upon the Magistrate whether or not he has jurisdiction to try the case to authorise the detention of the accused in such custody as the Magistrate thinks fit (s. 167) It the investigating Officer, upon comes evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate if such person is in custody, to release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required. before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial (S. 170) An investigating officer must maintain a diary of his proceedings, setting forth the time at which the information reached investigation, the place or places visited by him, and a statement of the circumstances ascertained to the couse of a case under inquiry or trial in diaries for the purpose fo aiding it during such inquiry or trial (S. 1`72) It is also prescribed that every investigation shall be completed without necessary delay, and as soon as it is completed, the Investigation Officer shall forward to a Magisrate empowered to take cognizance of the names of the parties. the nature of the information and the names of the person who appear to be acquainted with the circumstances of the case (S. 173).
(5) From this resume of the relevant provisions of the code it is evident that at every share 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 produe the accused within 24 hourse 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 Magistratel; and after the investigation is completed, the police officer is bound to submit a report to the magistrate of his investigaion. 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 invstigation as to the complicity of a person charged with the commission of the offence, is conclusive and cannot be called in question by 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 are be ordered to be filled because the evidence does not warrnat 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 summries 'A', 'B', and 'C' A request for 'A' summary is to be made whtn the Police Officer investigating the case is of th view that the offence is true but undetected and where there is not 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 he complaint is neither true nor false, that is due to mistake of fats of being of a civil nature.
(6) An order passed by a Magistrate on areport 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 toa 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 judicially 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, 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 t discharge the man, the Magistrate is not bound to act upon the police view. H 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, : AIR1959Bom437 that a Magistrate who is invited to give 'B' summary may on the eveidence issue 'A' Summary. These authorities abundantly establish that a Magistrate dealing with a report of a Plice Office is not bound by the opinion formed by that Officer, and is not bound to issue summary merely because it is asked for, and that the magistrae is bound to deal with the report judicially.
(7) The learned Government Pleader contends that jurisdiction with which the Magistrate is invested to deal with and dispose of the report judicially. dos not import the power to order that a chargesheet be lodged against the accused. The sole argument urged in support of this contention is that there is not such power conferred by the Code upon a Magistrate. In our view, absence of a provision expressly conferring such a power is n0ot decisive. Upon a report of the facts which constitute an offence, by a police officer, a Magistrate has jurisdiction to take cognizance. The report may be one in the form of a chargesheet or ne inviting the magistrate to issue a summary. After taking cognizance the magistrate may in exercise of the powers under s.204 issue process, if in his view that course in warranted. Even though there is no express provision in that behlaf the magistrate if he is satisfied that process may not issue, he mauy discharge the accused. The learned Government Pleader concedes and in our judgment he is right in so doing that if a Magitrate. On a report made under S. 173, that a summary be issued, decides to take cognizance of the offence in exercise of the powers under S. 190(1)(b) the Police Officer will be bound to assist making availale the witnesses. If a police Officeris bound to assist the Magistrate in trying the case when the latter takes cognizance in exercise of power under S. 190(1)9b), we fail to appreciate why the Police Officer, is not bound to submit a charge sheet in a cognizable case when a report trate. Normally, a Magistrate to whom a report is submitted will give the fullest consideration to the opnion of a Police Officer who ha collected the evidence in the cousr of an investigation, and he may not to file one. But the Magistrate has in a proper case the power demand that a charge sheet be filed and in our judgment, there is nothing in the shceme of the code which justifies the view that the Magistrate who has power to supervise the investigation, has no power to correct the opinion of the Police Officer, though he has, as is conceded, power to ignore the police Officers opinion. We would require some strong indication in the Code which may justify the view which thelearned Govenment Pleader is asking us to adopt but none such is to be found in the Code.
(8) We may now briefly refer in Chronolgical sequence to the authorities to which our attention was invited. In Shukadeva Shay v,. Hamid Miyan ILR 7 Pat 561 : AIR 1928 Pat 585 it was assumed that a magistrate has power to call upon the investigating officer to submit a charge sheet and that such an order was a judicial order. In vekata subba Rao v. Narahari Setty Anjanayulu, : AIR1932Mad673 , it was observed that:
The Police must be allowed to form their own opinion of a case when submitting their report and a Magistrate cannot ask them to change their opinon merely because he does not agree with them.
It appears that in that case Counsel for the accused and counsel for the Prosecution,conceded that the order directing the Police who had put in a 'referred chargesheet' to submit a charge-sheet was not a lgal order. The decision, given without any reasons and on a concession made at the Bar, is of little assistance.
(9) The next case to whic our attention was invited is Raghunath Puri V. Emperor : AIR1932Pat72 In that case Mr. Justice Mohamad Noor observed that:
An order calling for a charge sheet on a report under S. 202 when the police drew up a first information report is an order under s.204 and in practice is an order for issue of process. The learned judge also observed that:
When such a report received by the Magistrate empwered under S. 190(b) he takes cognizance of the offence under that section. Even if the accused is not sent up i.e., not a charge sheet but a final report is sent the magistrate when he applies his mind to that report may take cognizance of the offence and if he wants to place the accused on trial he can issue his process.
This case does not support the view that a charge sheet cannot be demanded by a Magistrate when considering the report under Section 173 In fact, it is assumed that a charge sheet may be ordered to be filed by a Magistrate when a final report under S. 173 Cri.Pro Code is submitted to him. In Abdul Rahim v. Abdul Muktadin ILR (1952) GUA 273 : AIR 1953 Ass 112 a Division Bench of the Assam High court held that:
There is no provisions of law by which a Magistrate is emowered to direct the police to send up a charge sheet against an accused person whom an information has been lodgd. A magistrate is empowered to take cognizance of the case in accordance with S. `190 code of criminal Procedure.
In the view of the court there is no provision of law by which a Magistrate is empowered to direct the Police to send up a charge sheet against an accused person against whom an information has been lodged, and that the Magistrate is only empowered to take cognizance of cases in accordance with S. 190 cirminal Procedure Code. As we have already stated the absence of an express provison of this nature is not decisive of the competence of the magistrate to call for a charge sheet.
(10) The next case to which our attention was invited is Rama Shankar v. State of U.P. : AIR1956All525 In that case the Allhabad High Court took the view that:
An investigating officer is required by S. 173 of the Code to submit a charge sheet but this does not render his act of submitting a chargesheet a judicial act. A court has no judicial control over investigations and over the manner or the circumstances, in which an investigating officer makes his report under S. 173 and an investigating officer, act is wholly administrative and there is noting to prevent his submitting another report in supersession of an earier one.''
(11) This case is not an authority for the proposition that a Magistrate who is asked to issue a summary may not call for a charge sheet. The observations relating to the absence of judicial control over the investigation by a Police Officer were made over the investigation by a Police Officer were made in support of the view that even when a report has been made and accepted, another report may be made by the police in the same investigations. In Akshoy Kumar v. Jogesh chandra. : AIR1956Cal76 , it was observed by the Calcutta High Court that:
When a petition of complaint is filed before a Magistrate, he has two alternative courses open to him and can follow either of them at his option. He may examine the complainant on oath and proceed under Chapter 16 or he may simply direct investigation by the Police under S. 156 (3) and Proceed under Chapter 14.
It was further observed that:
'When the police finds the case to be false and reports accordingly. the magistrate has nothing further to do in the chain of that proceeding. He is in session of nothin and neither the police, nor any body else is complaining before him and he could not entertain a petition filed by the complainant. This case again has no bearing on the question under examination; and even the observations relied upon do not support the contention of the Government Pleader.
(12) In a recent judgmentof the Orrisa High Court in Hrushikesh v. Krushna Chandra, : AIR1958Ori104 , it was observed that his opinion and calls for a charge sheet from the police even if the final report of the police is once accepted by him. Narasimham C.J. observed that the consistent view of the Patna High Court was that the Magistrate has the power to call for a charge sheet after the final report has been accepted by him.
(13) In our view, the power to call for charge sheet from the investigating officer who has asked case is vested in the magistrate because the report made to him judically and also because the report made to him judicially and also because the magistrate has supervisory control over the investigation by a police officer in the course of the unable to agree with the view of the Assam and the madras High Courts that a Magistrate cannot order an ivestigating officer in a cogniziable offence to submit a charge sheet.
(14) We may however observe that a Magistrate may not, even though he has the power, lightly pass an order that a charge sheet be filed. t is only after a careful consideration of the materials placed by a police Officer in his report if a magistrate is satisfied that there are sufficiently compelling grounds which require him to disagree with the opinion of the Police Officer and to reject the prayer for a summary asked for that he willbe justified in calling for a charge - sheet.
(15) On the view taken by us, there will be no order; on the reference made by the learned sessions judge.
(16) Rule in Revision Applications Nos. 1247, 1248, 1250, 1553 and 1254 all of 1958 in which the identical question arises will be discharged.
B.D/D.H.Z.
(17) Rule discharged.