ABHINANDAN JHA & ORS. versus DINESH MISHRA

Citation: [1967] 3 S.C.R. 668 · Decided: 17-04-1967 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Appeal(s) allowed

Cited by 19 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

ABHINANDAN JHA & ORS. 
v. 
DINESH MISHRA 
(With Connected Appeal) 
April 17, 1967 
[M. HIDAYATULLAH AND C. A. VAIDIALINGAM, JJ.] 
Code of Criminal Procedure (Act S of 1898), ss. 169, 170, 173 and 
·190(1)-Report ·tc police of cognir.able 
offence-Report by police to 
magistrate after investigation that 
offence not made out-If magistrate 
can direct police ro file charge-sheet. 
On the question whether a magistrate could direct the police to sub· 
mil a charg~heet1 when the police, after investigation into a cognizable 
offence, had sublllltted a report of the action taken under s. 169, Cr. 
P.C., that there was no case made out for sending up the accused for 
trial, 
HELD : There was no such power conferred on a magistrate either 
expressly or by implication. 
When a cognizable offence is reported to the police they may after 
investigation take action under s. 169 or s. 170 Cr. P.C. If the police 
think there is not sufficient evidence against the accused, they may, under 
s. 169 release the accused from custody on his executing a bond to ap-
pear before a competent magistrate if and when so required; or, if the 
police think there IS sufficient evidence, they may, under s. 170, forward 
the accused under custody to a competent magistrate or release the 
accused on bail in cases where the offences are bailable. In either case 
the police should submit a report of the action taken, under s. 173, to 
the competent magistrate who considers it judicially under s. 190 and 
takes the following action : 
(I) If the report is a charge-sheet under s. 170 it is open to the 
magistrate to agree with it and take cognizance of the offence under 
s. !90(! )(b); or to take the view that the facts disclosed do not make out 
an offeeee and decline to. take cognizance. But he cannot call upon the 
police to submit a report that the accused need not be proceeded against 
on the ground that there was not sufficient evidence. 
(2) If the report is of the action taken under s. 169, then the magis-
trate may agree with the report and close the proceeding. If he disagrees 
with the report he can give directions to the police under s. 156(3) to 
make a further investigation. If the police, after 
further investigation 
submit a charge.,.heet, the magistrate may follow 
the procedure where 
the char~heet under s. 170 is filed; but if the police are still of the 
opinion that there was not sufficient evidence against the accused, the 
ma~strate may agree or disagree 
with it Where he agrees, the case 
agamst the accused is closed. Where the magistrate disagrees and forms 
the opinion that the facts set out in the report constitute an offence, he 
can take cognizance under s. 190(1) (c). The provision in s. 169 enabl· 
ing the police to take a bond for the appearance of the accused· before a 
magistrate if so required, is to meet such a contingeilcy of the magistrate 
Jaking cognizance of the offence notwithstanding the contrary opinion of 
the police. 
The power under s. 190(l)(c) was intended to secure that 
A 
B 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
ABINANDAN v. DINESH (Vaiaialingam, J.) 
66~ 
offences may not go unpunished and justice may· be invoked even wh-
persons individually aggrieved are unwilling or unable to prosecute, or 
the police either wantonly or through a balW fide error do not submit a 
charge-sheet. 
But the magistrate cannot direct the polioe to submit a 
charge-sheet, because the submission of the report depends entirely upon 
the opinion formed by the police and not on the opinion of the map· 
Irate. The magistrate, if he disagrees with the report of the police, caa 
himself take cogniZance of the offence under s. 190(1)(a) or (c), but, 
he cannot compel the police to form a particular opinion on inveatlp· 
tion and submit a report according to such opinion. [672F-H; 673B; 676H; 
677B-H: u78A-fJ: (j79A-C. E-H] 
Slate af Gujarat v. Sh<·h Lakhamshi, A.I.R. 1966 Gujarat 283 (F.B.); 
Vcnkatu.rnbha v. Anianayulu, A.LR. 1932 Mad. 673; Abdul Rahim v. 
Abdul Muktadin, A.I.R. 1953 
Assam 
112; Amar Premanand v. Stal•, 
A.I.R. 1960 M.P. 12 and A. K. Ray v. 
State of West Bengal, A.I.R. 
1962 Cal. 135 (F.B.), approved. 
State v. Murlidhar Gavardhan, A.I.R. 
1960 Bom. 240 and Ram· 
Nandan v. State, A.I.R, 1966 Pat. 438, disapproved. 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
218 of 1966. 
Appeal by special leave from the order dated August 5, 1966 
of the Patna High Court in Criminal Revision No. 1020 of 
1966, 
A

Excerpt shown. Read the full judgment & AI analysis in Lexace.