Judgment:
A. Pasayat, J.
1. A very unusual order passed by learned Sub- Divisional Judicial Magistrate, Bargarh (in short, 'SDJM') is the subject- matter of challenge in this application. By impugned order learned SDJM has directed for issue of summons to the petitioner who was informant in GR Case No. 132 of 1992. Cognisance of an offence punishable.Under Section 409 of the Indian Penal Code, 1860 (in short, MPC) was taken.
2. Factual position, almost undisputed, is as follows:
On 'he basis of written report submitted by petitioner, action as power of attorney holder of M/s.Priya Gas Sales and Services. Bargarh to the effect that 303 empty gas cylinders, 6 full and 2 detective gas Cylincders kept inside gas godown at. Saiyam on 6-3-1992 under lock and key were stolen from the gas godown, at Bargarh Police Station, Bargarh P.S. Case No 50 of 1992 was registered and investigation was under- taken. Final report submitted by the officer-jn-charge was to the effect 'that facts disclosed commission of offence Under Sections 457 and 385(b) IPC but there was no clue as to the petitioner. Learned SDJM was of the view that there was sufficient material to hold that the informant had lodged false allegation of theft of gas cylinders which were entrusted to him by Hindustan Petroleum Corporation Ltd in the capacity of power of attorney holder of the dealer with a view to commit criminal breach of trust. Accordingly he passed the order which is impugned.
3. Accordirg to petitioner the course adopted by learned SDJM is unknown in law. Ha has made presumotuous conclusions about the informant having lodged a false information. Learned counsel for the State submitted that the learned SDJM has passed order which though unusual, is intended to bring the real culprit to book.
4. The course available to a Magistrate on receipt of a report to the effect that no offence appears to have been committed are as follows :
(i) He may decide that there is no sufficient ground for proceeding ;
(ii) He may take cognizance of offence Under Section 190(1)(b) Cr PC on the basis of 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 ; and
(iii) He may take cognizance of offence under Sec 190(1) Cr PC on the basis of original complaint and proceed to examine the complainant and his witnesses Under Section 202 Cr PC.
5. The case at hand is one where informant has come under scrutiny. Clause (c) of Sub-section (1) of Section 190 refers to information received from any person other than a police officer. It obviously means such information must be such as does not constitute a complaint or a police report. The clause applies only to the case where private individual who is injured or aggrieved or someone on his part does not come forward to make a formal complaint, It is a provision of law for enabling a public official to take care that justice may be vindicated not withstanding the persons individually aggrieved are unwilling or unable to prosecute. Basic distinction between information under Clause (c) and complaint under Clause (a) is that a Magistrate acts on a complaint because the complainant has made a request to act, but in the case of information, a Magistrate acts of his own accord and initiative. The Magistrate deciding not to take cognizance or drop the proceeding against a person mentioned in the F.I.R. has to give notice and hear informant (See Bhagwant Singh v. Commissioner of Police and Anr., AIR 1385 SC 1285), In the case at hand, perusal of the order shows that learned Magistrate has proceeded on suspicion that informant has lodged F.I.R. with oblique motive. He has asumed that motive may be to get insurance money. Material collected during investigation does not show that any parts pointed on accusing linger at the petitioner There Is not even a shadow of material even to lend support to conclusion of learned SDJM that whole thing was faked to cover breach of trust.
6. As observed by apex Court in Abhinandan Jha and Anr. v. Dinesh Mishra, AIR 1968 SC 117 and by this Court in Srinibas Balabantaray v. Additional Sessions Judge, Koraput, Jeypore, and Anr., 1990 (I) OLR 179 conjoint reading of Sections 156(3), 169, 173 and 190, CrPC makes it clear that there is no power expressly or impliedly conferred under CrPC on a Magistrate to call upon the police to submit charge sheet, when they send a report Under Section 169, that there is no case made out for sending upon the accused for trial. Functions of Magistracy and police are entirely different, and Magistrate cannot impinge upon jurisdiction of police by compelling them to change their opinion so as to accord with his view. However, he is not deprived of power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with opinion formed by police. Power to take congnizance notwithstanding formation of opinion by police is final stage in the investigation has been provided for in Section 190(1)(c)Where a report forwarded by police to a Magistrate Under Section 173(2)(i) is placed before him, several situations may arise. The report may conclude that an offence appears to have been committed by a particular person and in such a case the Magistrate may either (i) accept report and take cognizance of offence and issue process, or, (ii) may disagree with the report and drop the proceeding, or, (iii) may direct further investigation Under Section 156(3) and require police to make further report. The report may on the other hand state that according to police no offence appears to have been committed. When such a report is placed before the Magistrate, he has again an option to adopt one of three causes, i e. (i) he may accept or drop the proceeding, (ii) he may disagree with the report and take a view that there is sufficient ground for further proceeding to take cognizance of the offence and issue process; or (iii) he may direct further investigation to be made by police Under Section 156(3). Section 173(2)(i)(d) provides that the report may state whether any offence appears to have been committed and if so by whom.
As in the instant case, the report may be to the effect that an offence has been committed without any material to show as to who is the offender. In the case at hand, accusation related to offence punishable Under Sections 457 and 380 IPC, but learned SDJM took cognizance of offence punishable Under Section 409 IPC. There is absolutely no material to show existence of ingredients essential to constitute such an offence There is no grievance by any body of breach of trust. it is not a case where there is any material to show that the agrieved and affected person is either unwilling or unable to prosecute. If the learned Magistrate felt that there was any deficiency in investigation, he could have directed investigation in terms of Section 156(3) CrPC. Instead of doing that he jumped into presumption conclusions, order dated 23-11-1993 passed in GR Case N.o. 132 of 1992 is accordingly set aside.