Holding

The magistrate's order was passed on consideration of the police report under Section 173 CrPC, not on the protest petition, and therefore the High Court's decision stands.

Summary

The appellants contended that a false affidavit filed with a protest petition, after the informant's death, rendered the magistrate's order invalid. The Sessions Judge had held that the magistrate could not have proceeded, but the High Court reversed, finding that the magistrate's order was based on the police report filed under Section 173 of the CrPC, not on the protest petition. The Supreme Court examined the scope of a magistrate's powers under Sections 169, 170, 173 and 190 of the CrPC and held that the magistrate correctly acted on the police report. It further clarified that a magistrate cannot compel the police to file a charge‑sheet and may only take cognizance of an offence under Section 190(1)(c). Consequently, the High Court's view was affirmed and the appeal dismissed.

Issues considered

Whether a magistrate's order can be set aside on the ground that a false affidavit was filed with a protest petition.
Whether the magistrate acted on the protest petition or on the police report under Section 173 of the CrPC.
Whether a magistrate has the power to direct the police to file a charge‑sheet.

Legislation cited

Code of Criminal Procedure, 1973s. 169, s. 170, s. 173, s. 190

Subjects

false affidavitprotest petitionmagistrate jurisdictionCrPC Section 173CrPC Section 190police reportcharge-sheetcriminal procedure

Judgment

[2008] 2 S.C.R. 724

A HAR PRASAD AND ANR. )

v.
RANVEER SINGH AND ANR.
(Criminal Appeal No. 294 of 2008)
FEBRUARY 12, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Code of Criminal Procedure, 1973 - ss.173 and 190 -
· False affidavit filed with protest petition - Sessions Judge held
c that by reason thereof, the Magistrate could not have passed
any order - High Court set aside the order of Sessions Judge
- Correctness of - Held: Correct, since order passed by the
Magistrate was in consideration of the report submitted under
s. 173 CrPC and not relatable to the protest petition.
D The Sessions Judge, in criminal revision, held that
since a false affidavit had been filed with the protest
. petition, the Magistrate could not have been proceeded
in the matter and passed an order. High Court set aside
the order of Sessions Judge holding that the order passed
E by the Magistrate was not passed on the protest petition
but passed on consideration of the report submitted in
terms of s.173 of CrPC. Hence the present appeal.
Dismissing the appeal, the Court
F HELD: The factual position goes to show the order ).- "
passed by the Magistrate was in consideration of the
police report and was not relatable to the protest petition.
Hence, the view of the High Court does not suffer from
any infirmity and no interference is called for. [Para 8]
G [729-8, C]
Abhinandan Jha and Ors. v. Dinesh Mishra (AIR 1968
SC 117) - referred to.
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal

H 724
__.,r/
r
HAR PRASAD AND ANR. v. RANVEER SINGH 725
AND ANR. [DR. ARIJIT PASAYAT, J.]
.,.,
~
No. 294 of 2008. A
From the Judgment and Order dated 24.11.2006 of the
High Court of Allahabad in Criminal Revision No. 147 of 2001.

_,
Shakil Ahmed Syed for the Appellants.
} B
Shail Kumar Dwivedi, AAG. Debasis Misra, Anuvrat
.... Sharma, S.N. Pandey, Vandana Mishra and Vibha Dwivedi for
• the Respondents .
The Judgment of the Court was delivered by
___.,
Dr. ARIJIT PASAYAT, J. 1. Leave granted. c
2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Allahabad High Court allowing the
revision filed by respondent No.1. The revision was filed
questioning the legality of the order dated 18.11.2000 passed D
.J.. by XIII Additional District and Sessions Judge, Aligarh in
Criminal Revision No.272 of 2000 accepting the contention that
the informant of the case got a false affidavit filed alongwith
protest petition, and therefore no action could have been taken.
3. Stand taken before the learned Sessions Judge was E
that by the time the protest petition was filed the inform·ant had
died and false affidavit with a thumb impression was filed. Since
the informant had already died, the learned Magistrate could
not have been proceeded in the matter. This found acceptance
,; ~
by the learned Sessions Judge. The High Court by the impugned F
order had held that the order was not passed on the protest
petition and was in fact passed on consideration of the report
submitted in terms of Section 173 of the Code of Criminal
Procedure, 1973 (in short 'Cr.P.C.').
G
4. Learned counsel for the appellants submitted that the
~
High Court fell in grave error by holding that the filing of false
t
affidavit, if any, alongwith protest petition was immaterial.
According to him, when the learned Magistrate acted upon the
protest petition, the view that the affidavit alongwith the protest
H
726 SUPREME COURT REPORTS [2008] 2 S.C.R.

A petition was not of any consequence, cannot be maintained.
;
l
5. Learned counsel for the respondents on the other hand
submitted that a bare reading of the order passed by learned
Magistrate shows that the order did not have its foundation on
the protest petition, but was relatable to the report submitted
B under Section 173 Cr.P.C.
~
6. The only question that falls for consideration is whether ~
the order was passed by learned Magistrate on protest petition
or on the police report.
c 7. Reference may be made to a judgment of this Court in
Abhinandan Jha and Ors. v. Dinesh Mishra (AIR 1968 SC 117)
where it was held as follows:
"8. It is now only necessary to refer to Section 190, occurring
in Chapter XIV, relating to jurisdictio.n of Criminal courts in
D
inquiries and trials. That section is to be found under the A
heading "Conditions requisite for initiation of proceedings"
and sub-section (1) is as follows:
(1) Except as hereinafter provided, any Presidency
E Magistrate, District Magistrate or Sub-divisional
Magistrate, and any other Magistrate specially empowered
in this behalf, may take cognizance of any offence-·
(a) upon receiving a complaint of facts which constitute
such ,offence;
F
(b) upon a report in writing of such facts made by any
police-officer; r

(c) upon information received from any person other than '
b
a police-officer, or upon his own knowledge or suspicion, r-
G that such offence has been committed."
9. From the foregoing sections, occurring in Chapter XIV,
it will be seen that very elaborate provisions have been
made for securing that· an investigation does take place
into a reported offence and the investigation is carried out
H

T
HAR PRASAD AND ANR. v. RANVEER SINGH 727
AND ANR. [DR. ARIJIT PASAYAT, J.]

within the limits of the law, without causing any harassment A
to the accused and is also completed without unnecessary
or undue delay. But the point to be noted is that the manner
and method of conducting the investigation, are left entirely
to the police, and the Magistrate, so far as we can see,
has no power under any of these provisions, to interfere B
with the same. If, on investigation, it appears to the officer,
in-charge of a police station, or to the officer making an
investigation, that there is no sufficient evidence or
reasonable grounds of suspicion justifying the forwarding
of an accused to a Magistrate, s. 169 says that the officer c
shall release the accused, if in custody, on his executing
a bond to appear before the Magistrate. Similarly, if, on
the other hand, it appears to the qfficer, in-charge of a
police station, or to the officer making the investigation,
under Chapter XIV, that there is sufficient evidence or
0
reasonable ground to justify the forwarding of an accused
to a Magistrate, such an officer is required, under s. 170,
to forward the accused to a Magistrate or, if the offence is
bailable, to take security from him for this appearance
before such Magistrate. But, whether a case comes under
s. 169, or under s. 170, of the Code, on the completion of E
the rnvestigation, the police officer has to submit a report
to the Magistrate, under s. 173, in the manner indicated
therein, containing the various details. The question as to
whether the Magistrate has got power to direct the police .
to file a charge - sheet, on receipt of a report under s. 173 F
really depends upon the nature of the jurisdiction exercised
by a Magistrate, on receiving a report.

Xx xx xx
12. Though it may be that a report submitted by the police G
may have to be dealt with judicially, by a Magistrate, and
although the Magistrate may have certain supervisory
powers, nevertheless, we are not inclined to agree with
the further view that from these considerations alone it
can be said that when the police submit a report that no H
.11

-+ ~
728 SUPREME COURT REPORTS [2008] 2 S.C.R.

,.. ~
A case has been made out for sending up an accused for
trial, it is open to the Magistrate to direct the police to file
a charge-sheet. But, we may make it clear, that this is not
to say that the Magistrate is absolutely powerless,
because, as will be indicated later, it is open to him to
B take cognizance of an offence and proceed, according to
law. We do not also find any such power, under Section
173(3), as is sought to be inferred, in.some of the decisions
cited above. As we have indicated broadly the approach
made by the various High Courts in coming to different
c conclusions, we do not think it necessary to refer to those
decisions in detail.
13. It will be seen that the Code, as such, does not use the
expression 'charge-sheet' or 'final report'. But it is
understood, in the Police Manual containing Rules and
D Regulations, that a report by the police, filed under Section
A
170 of the Code, is referred to as a 'charge-sheet'. But in
respect of the reports sent under Section 169 i.e. when
there is no sufficient evidence to justify the forwarding of
the accused to a Magistrate, it is termed variously, in
E different States, as either 'referred charge', 'final report',
or 'summary'.
xx xx xx
17. We have to approach the question, arising for
F consideration in this case, in the light of the circumstances
pointed out above. We have already referred to.the scheme
of Chapter XIV, as well as the observations of this Court
in Rishbud and lnder Singh's Case (AIR 1955 SC 196)
that the information of the opinion as to whether or not
there is a case to place the accused on trial before a
G
Magistrate, is left to the officer in-charge of the police
station. There is no express power, so far as we can see,
which gives jurisdiction to pass an order of the nature
under attack; nor can any such powers be implied. There
is certainly no obligation, on the Magistrate, to accept the
H
+
HAR PRASAD AND ANR. v. RANVEER SINGH 729
·~
.AND ANR. [DR. ARIJIT PASAYAT, J.]
......
report, if he does not agree with the opinion formed by the A
police. Under those circumstances, if he still suspects that
an offence has been committed, he is entitled,
notwithstanding the opinion of the police, to take
cognizance, unders. 190(1) (c) of the Code. That provision,
in our opinion, is obviously intended to secure that offences B1
~
may not go unpunished and justice may be invoked even
Ii where persons individually aggrieved are unwilling or
unable to prosecute, or the police, either wantonly or
through bona fide error, fail to submit a report, setting out
the facts constituting the offence. Therefore, a very wide c
power is conferred on the Magistrate to take cognizance
of an offence, not only when he receives information about
the commission of an offence from a third person, but also
where he has knowledge or even suspicion that the offence
has been committed. It is open to the Magistrate to take
D
cognizance of the offence, under s. 190(1) (c), on the
ground that, after having due regard to the final report and
the police records placed before him, he has reason to
suspect that an offence has been committed. Therefore,
these circumstances will also clearly negative the power
of a Magistrate to call for a charge-sheet from the police, E
when they have submiited a final report. The entire scheme
of Chapter XIV clearly indicates that the formation of the
opinion, as to whether or not there is a case to place the
accused for trial, is that of the officer in-charge of the
.... """ police station and that opinion determines whether the F
report is to be under s. 170, being a 'charge-sheet', or
under s. 169, 'a final report'. It is no doubt open to the
Magistrate, as we have already pointed out, to accept or
disagree with the opinion of the police and, if he disagrees,
he is entitled to adopt any one of the courses indicated by G
us. But he cannot direct the police to submit a charge-
sheet, because, the submission of the report depends
upon the opinion formed by the police, and not on the
opinion of the Magistrate. The Magistrate cannot compel
the police to form a particular opinion, on the investigation, H
730 SUPREME COURT REPORTS [2008] 2 S. C.R.

A and to submit a report, according to such opinion. That
will be really encroaching on the sphere of the police and
compelling the police to form an opinion so as to accord
with the decision of the Magistrate and send a report,
either under s. 169, or under s. 170, depending upon the
8 nature of the decision. Such a function has been left to the
police, under the Code."
II

8. As the factual position goes to show the order passed
by learned Magistrate was in consideration of the police report
and was not relatable to the protest petition. That being so, the
C view of the High Court does not suffer from any infirmity and no
interference is called for.
9. The appeal is dismissed.
B.B.B. Appeal dismissed.
D