Full Judgment
P.N. Bakshi, J.
1. This application under Section 482, Cr.P.C. arises in the following circumstances. It appears that a report was lodged at the Police Station Kanuj and registered as Crime No. 365 of 1977 under Section 307 Indian Penal Code against the accused. Investigation was conducted and police submitted its final report. The Magistrate did not accept this report and passed the following order on 29th May, 1977. 'Register. Prepare copies. Issue Summons to the accused persons fixing 16-6-1979 for appearance.' Aggrieved thereby the instant application has been filed under Section 482, Cr.P.C.
2. I have heard learned Counsel for the parties and have also perused the impugned order.
3. Learned Counsel for the applieant has argued that a Magistrate is bound in law to accept the final report, which is submitted to him by the Investigating Agency under Section 173(3), Criminal P. C. To my mind the Expression 'Final Report' has been misunderstood as a report whereby the police merely recommends the dropping of proceedings. If Section 173, Cr.P.C. is considered in detail, one would find that under Sub-clause (2) of that Section seven particulars are required to be given, which have been shown as Sub-clauses (2)(i)(a) to (g). This indicates that all these details must be given in the final report, so that the the Magistrate may apply his own mind on the question, before he accepts the report, or refuses to accept it, Merely because the Investigating Agency expresses an opinion in that report, that it is not a fit case where cognizance should be taken by the Magistrate under Section 190, Cr.P.C. is by itself no ground for drawing the inference that, that opinion alone must be taken into consideration as final and the Magistrate must completely shut his eyes to all the rest of the details, which have been embodied in the final report, as required under Section 173(a) to (g).
4. In this connection, it may also be mentioned that Sub-clause (5)(a) of Section 173 also requires that along with the report of investigation, the police officer shall forward to the Magistrate all documents or relevant extracts thereof on which the prosecution proposes to rely. Not only that, Sub-clause (5)(b) of Section 173, Criminal P. C. mentions that even the statements recorded under Section 101, Cr.P.C. of all the persons, whom the prosecution proposes to rely, as its witnesses, must be sent. This clearly) indicates that Section 173, Cr.P.C. places a mandatory duty upon the Investigating Officer to place all detailed materials, both oral and documentary, before the Magistrate, so that he may consider the same and decide for himself whether it is a fit case for taking cognizance or not. Merely because the police advices or expresses a view that it is not a fit case for taking cognizance is therefore, hardly of much relevance. If the Investigating Agency is given such a long rope and if the advice of the police 'that no case is made out' is to be accepted as final and as depriving the Magistrate of his judicial discretion to decide the question whether cognizance should be taken or not, it would be a travesty of justice opening the flood gates of corruption and choking of legitimate litigation.
5. The view that I have expressed is supported also by a decision of the Supreme Court, reported in : 1968 CriLJ97 viz. Abhinandan Jha v. Dinesh Mishra, in para 15 of which their lordship of Supreme Court have held that cognizance can be taken under Section 190(1)(b) after the submission of the final report or further investigation by the police. Not only that in the latest case of the Supreme Court reported in AIR 1980 SC Cri 347 : 1979 Cri LJ 679 again the Supreme Court has observed that the following three courses are open to the Magistrate before whom a final report is submitted.
(1) Agree with the report of the police and file the proceedings; or
(2) not agree with the police report, and
(a) order further investigation, or (b) hold that the evidence is sufficient to justify forwarding of the accused to the Magistrate and take cognizance of the offence, complained of.
Even if these observations are taken as obiter of the Supreme Court, it is binding upon me and have to be accepted.
6. In this view of the matter, I am of the opinion that the question raised Is now finally concluded by the highest authority of the land, which has held that in the circumstances stated above, the Magistrate is fully competent to take cognizance of the offence under Section 190(i)(b), Cr.P.C. despite the adverse report of the Investigating Agency.