H. S. BAINS DIRECTOR SMALL SAVING-CUM-DEPUTY SECRETARY, FINANCE, PUNJAB, CHANDIGARH versus THE STATE (UNION TERRITORY OF CHANDIGARH)

Citation: [1981] 1 S.C.R. 935 · Decided: 10-10-1980 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Dismissed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

,...._ . 
H. S. 
BAINS DIRECTOR SMALL SAVING-CUM-DEPUTY 
SECRETARY, FINANCE, PUNJAB, CHANDIGARH 
v. 
THE STATE (UNION TERRITORY OF CHANDIGARH) 
October IO, 1980 
[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.) 
Code of Criminal Procedure 1898-Section 190(1)(b) and (c}-Scope of-
Mlllgistrate ordered invesPigation under section 156(3}-Police submitted report 
under section 173-Disagreeing with police report Magistrate directed issue of 
process-Magistrate if comperent to take cognizance of complaint under sec-
tion 190(1)(b). 
On a complaint by the complainant that the appellant, armed with a re-
volver and accompanied by two persons, trespassed into his house and threa-
tened to kill him, the Magistrate ordered investigation by the police under 
~ection 156(3) of the Code of Criminal Procedure. In their report under sec-
tion 173 the police stated that the complaint was false in that on the date and 
time mentioned therein, the appellant was at a different place far away from 
the place where the complainant alleged that the appellant had threatened to 
kill him. 
Disagreeing with the conclusion of the police the Magistrate took 
cognizance of the case under sections 448, 451 and 506 I.P.C. and directed the 
issue of process to the appellant. 
The appellant's petition seeking to quash 
the. proceedings before the Magistrate was dismissed by the High Court. 
In appeal to this Court, it was contended on behalf of the appellant that 
the Magistrate was not competent to take cognizance of the case as if it was 
upon a police report since the report under section 173 by the police did not 
disclose any offence having been committed by the appellant. 
Dismissing the appeal 
HELD : Where the Magistrate, on receiving a complaint orders investiga-
tion under section 156(3) and rece.ives a report under section 173 to the effect 
that no offence was disclosed against the accused, the Magistrate might either 
(i) decide that there is no sufficient ground for proceeding further and drop 
action or (ii) he may take cognizance of the offence under section 190(1)(b) 
and issue process without being bound in any manner by the conclusion of the 
police or (iii) he may take cognizance of the offence under section 190(1)(a) on 
the basis of the original complaint and proceed to examine upon oath the 
complainant and his witnesses under section 200. If he adopts the third alter-
native, he may hold or direct an enquiry under section 202 if he thinks fit. 
Thereafter he may dismiss the complaint or issue process as the case may be. 
[940E-G] 
In any event, it is impossible to say that the Magistrate, who takes cogni-
935 
A 
B 
c 
D 
E 
F 
G 
zance of an offence on the bas,is of the facts disclosed in the police report, 
H 
936 
SUPREME COURT REPORTS 
[1981] 1 S.C.R. 
A 
must be said to have taken cognizance of the offence "on suspicion" and not 
upon police report, merely because he and the police arrived at different con-
clusions from the facts. 
The Magistrate is not bound by the conclusions of 
the police: if he ignores their conclusions and takes cognizanee of the offence 
himself, he does so upon the facts disclosed by the police report though not 
on the conclusions arrived at by them. 
In such a case, it cannot be said that 
B 
c 
he was taking cognizance "on suspicion". [942E·H] 
In Abhinandan Iha & ors. v. Dinesh Mishra [1967] 3 SCR 668, where this 
Court stated that the Magistrate could take, cognizance of the offence under 
·' 
section 190(1)(c) notwithstanding the contrary opinion of the police, the refer· J.
ence to sub-clause (c) therein was a mistake for sub-clause (b). The argument 
of the appellant that the Court, in this case, had apparently taken the view 
that the Magistrate could take cognizance of the offence not under section 1.90 
(i)(b) as if it was a police report but under section !90(1)(c) as if it was "on 
suspicion" is not sustainable, because section !90(1)(c) was never intended to 
apply to cases where there was a police report under section 173(1). [942C:D] 
CRIMINAL APPELLATE JuRISDICTION : Criminal Appeal No. 687 
of 1980. 
D 
Appeal by Special Leave from the Judgment and Order dated 
E 
F 
G 
H 
18-4-1980 of the Punjab and Haryana High Court in Crl. Misc. 
No. 26-M/1980. 
Mrs. Urmila Sirur for the Appellant. 
Mrs. Shobha Dixit a,nd M. N. Shroff for the Respondent. 
The Judgment of the Court was delivered by 
CHINNAPPA REDDY, J.-On August 13, 1979, 
Gurnam Singh 
a resident of Chandigarh submitted a compla

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