Decided on April 01,1968



- (1.) ON 22nd July 1967 a person by name Damodara Pillai lodged a first information statement (a complaint) against the three petitioners, four others whose names were also mentioned in the complaint and 12 more who could be identified but whose names were not known under Section 395 of the Penal Code. The police registered a ease and started investigation. Ultimately, on 9th October 1967 the police filed a charge-sheet against the four other persons mentioned by name in the complaint, dropping the petitioner, under Section 379 of the Penal Code road with Section 31 thereof. The petitioners were mentioned as witnesses 5, 6 and 7. When the trial commenced, the counsel of the four accused persons who were accused persons 1. 5. 0 and 7 in the complaint, contended that the dropping of the petitioners from the array of accused persons was mala fide and illegal. The counsel also contended that the real culprits were the petitioners. Alter hearing arguments of the counsel including the Public Prosecutor, the Sub-Divisional magistrate directed that the petitioners be also arrayed as accused persons 5 to 7 and summonses issued to them. The revision petition is against that order of the sub-Divisional Magistrate.
(2.) I may at the very outset state that the Public Prosecutor has also agreed with the contention of the counsel of the petitioners, so that I have had no help from him. The Public Prosecutor has stated that since the informant (the complainant)did not have any objection to the course adopted by the police the Sub-Divisional magistrate should not have directed that the petitioners be arrayed as accused persons; that the charge-sheet or the records in the case did not disclose any case against the petitioners; and that by the course adopted by the Sub-Divisional magistrate, the prosecution is deprived of three of its witnesses. I may straightway dispose of these objections pointed out by the Public Prosecutor. The complainant having given a first information statement to the police, and the police having investigated the case and filed a charge-sheet, the fact that the complainant thereafter did not protest against the course adopted by the police is not relevant in considering the question whether the action taken by the Sub-Divisional magistrate is legal. The third ground pointed out by the Public Prosecutor has also no force because this is not the method of securing witnesses to speak in support of the case of the prosecution. If the police felt that without getting some of the accused persons as witnesses the prosecution case could not be proved, there are legal methods of achieving the purpose; and this is not a method contemplated by law. The second objection, whether the records in the case disclosed offences against the petitioners, is a matter which will be considered by me in the course of the judgment hereinafter.
(3.) THE counsel of the petitioners urges that the court has no power to interfere with the investigation by the police or direct them to file a charge-sheet. He has drawn my attention to the recent decision of the Supreme Court in Abhinandan jha v. Dinesh Mishra AIR 1963 SC 117, wherein Vaidialingam J. , speaking for the court, has stated: "there is no power expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code that there is no case made out for sending up an accused for trial. " vaidialingam J. has also stated: "the functions of the Magistracy and the police are entirely different, and though the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view. " In that case, what happened was that the respondent before the Supreme Court lodged a first information statement before the police that he saw a thatched house situated on the northern side of his house burning and the petitioners before the Supreme Court running away from the scene. The police made investigation and submitted what was called a 'final report' under Section 173 (1)of the Code to the effect that the offence complained of was false. The Sub-Divisional Magistrate received this report, but in the meanwhile, the respondent had filed what was termed 'a protest petition', challenging the correctness of the report of the police. The magistrate then perused the police diary, heard the counsel of the respondent and the Public Prosecutor and passed an order directing the police to submit a charge-sheet. These were the facts of one of the cases before Supreme Court; and in the other two cases the facts were similar.;

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