LexFAKHRUDDIN AHMAD versus STATE OF UTTARANCHAL AND ANR.
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A B [2008] 13 S.C.R. 66 FAKHRUDDIN AHMAD v. STATE OF UTTARANCHAL AND ANR. (Criminal Appeal No. 1408 of 2008) SEPTEMBER 5, 2008 [C.K. THAKKER AND D.K. JAIN, JJ.] Code of Criminal Procedure, 1973- s.482 - Powers under - Exercise of - Scope - Discussed - Held: On facts, c decision of the High Court to dismiss petition by Appellant u/ s.482 seeking quashing of charge sheet and consequent proceedings initiated against him by Respondent No. 2 for alleged commission of offences uls. 420, 467, 468 and 471 /PC was not in consonance with the broad parameters to be D applied while dealing with a petition u/s.482 for discharge - Matter remitted back to High Court for decision afresh - Penal" Code, 1860 - ss. 420, 467, 468 and 471. E Words and Phrases - "cognizance''- Meaning of - In context to s. 190, CrPC. Respondent No.2 statedly issued a cheque in favour of Appellant against balance payment due. When the cheque was presented for payment, it was returned unpaid by the Bank with the remarks 'no fund'. Appellant served a legal notice on Respondent No.2 and its partner F in terms of Section 138 of the Negotiable Instruments Act, 1881, calling upon them to make payment against the said cheque. On getting the said notice, Respondent No.2 took the s:and that he had issued a blank cheque bearing his signatures to one 'S' as security for money borrowed G by him from 'S'; that 'S' misplaced the blank cheque, which was fraudulently used by the Appellant and presented to the banker for encashment. Respondent No.2 lodged a complaint against the Appellant before the Judicial H Magistrate alleging commission of offences under 66 ·- FAKHRUDDIN AHMAD v. STATE OF 67 UTTARANCHAL AND ANR. Sections. 420, 467, 468 and 471 IPC. The Magistrate A directed the police to register the case and investigate it. Appellant moved the High Court for quashing of the proceedings before the Magistrate. High Court declined to interfere and dismissed the petition. Hence the present appeal. B Remitting back the matter to High Court for decision afresh, the Court HELD:1.1. On receipt of a complaint, the Magistrate has more than one course open to him to determine tt._ c procedure and the manner to be adopted for taking cognizance of the offence;' One of the courses open to the Magistrate is that instead of exercising his discretion and taking cognizance of a cognizable offence and following the procedure laid down under Section 200 or 0 Section 202 of the CrPC, he may order an investigation to be made by the police under Section 156(3), which the Magistrate did in the instant case. When such an order is made, the police is obliged to investigate the case and submit a report under Section 173 (2). On receiving the police report, if the Magistrate is satisfied that on the facts E discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence, he may take cognizance of the offence under Section 190 (1) (b) and issue process straightway to the accused. However, Section 190(1 )(b) does not lay down that a F Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation makes out a case against' the ai;:cused. Undoubtedly, the Magistrate can ignore the conclusion(s) arrived at by the investigating officer. [Paras 8,9] [74-F,G,H 75 A-C] G 1.2. The Magistrate is thus not bound by the opinion of the investigating officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether H 68 SUPREME COURT REPORTS [2008] 13 S.C.R. A an offence has been made out Oi not. This is because the purpose of the police report under s.173 (2) of the CrPC, which will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom is primarily to enable the Magistrate to satisfy B himself whether on the basis of the report and the material referred therein, a case for cognizance is made out or not. [Para 1 O] [7 5 D-E] 1.3. The expression 'cognizance' is not defined in the Code but is a word of indefinite import. Whether the C Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action. Nevertheless, before
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