Madan Mohan Punchhi, J. - (1.) THE question of law which falls for consideration in these two petitions - -Crl. Misc. No. 26 -M of 1980 (H.S. Bains v. Union Territory of Chandigarh and Anr.) and Crl. Revision No. 755 of 1977 (Rattan Chand and Ors. v. The State of Punjab) mainly under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), is by no means simple. It requires spelling out from the provisions of the Code, as to what is a Magistrate entitled to do, if he differs from the police report prepared under Section 173(2) of the Code and placed before him by the police, after investigation of a crime reported.
(2.) THE first case in hand is Crl. Misc. No. 26 -M of 1980. The Petitioner, H.S. Bains, Director, Small Saving -cum -Deputy Secretary, Finance, Punjab, Chandigarh, prays for quashing of the order dated November 23, 1979, passed by Shri B. C. Rajput, Judicial Magistrate 1st Class, Chandigarh, whereby the learned Magistrate took cognizance of offences under Sections 448/451/506 of the Indian Penal Code against the Petitioner in exercise of his powers under Section 190(1) of the Code, differing with the line of investigation. Broad facts were that Gurnam Singh complainant -Respondent filed a complaint on August 13, 1979, against the Petitioner for the aforesaid offences under the Penal Code before the Judicial Magistrate 1st Class, Chandigarh, alleging that the accused -Petitioner had come in his car on the morning of August 11, 1979, to the residential house of the complainant at Chandigarh, effected criminal trespass and threatened to kill him and his natural son, who had been taken in adoption by the complainant's sister. This lady was stated to be the widow of the deceased brother of the accused -Petitioner and the adoption was to his distaste. The complaint was referred to the local police by the Magistrate under Section 156(3) for investigation and registration of the case. The police conducted the investigation, during the course of which, it came to be handled by two police officers, one after the other. The police investigation disclosed that the accused had an alibi in the statement of Shri Jai Singh, I.A.S. District Magistrate -cum -Deputy Commissioner, Amritsar, who claimed that the accused -Petitioner was with him a, Amritsar at the relevant time when the alleged offence took place. Thus, the police came to the conclusion that the case against the accused was false and while submitting report under Section 173(2) of the Code, recommended the case to be dropped. The Judicial Magistrate differed from the report and issued process against the Petitioner by observing as follows: I am constrained to observe on the basis of the record that the police in this case has been greatly influenced by the status of the accused and the statement of the District Magistrate and took this uncalled for stand. The proper course for the police was to seek the judicial verdict when the commission of the offence was apparent from the record and it was for the accused to take up the plea of alibi and prove the same in the court. Every one is equal before the law. The courts are meant to do justice not only when two parties are equal but also when two parties are unequal in their status. Therefore, I do not adopt the line of investigation. This is a fit case for taking cognizance and I take cognizance of the offence under Section 190(1) in order that the accused be summoned for facing the trial under Sections 448/451/506 of the Indian Penal Code. The summons be issued for his appearance for 17th December, 1979. The second case in hand is Crl. Revision No. 755 of 1978. which arose out of a First Information Report lodged by P.S. Dewan, Assistant Excise and Taxation Officer, Ludhiana, at Police Station Division No. 2, Ludhiana. Broadly stated, the said Shri P.S. Dewan alleged therein that in the normal exercise of his duties, he came to the business premises of Messrs Oswal Woollen Mills, Ludhiana, and while he had impounded accounts books of the said firm, Rattan Chand and Vijay Kumar Petitioners, along with five or ten other persons over -powered him and forcibly snatched the impounded documents from him. On the basis of the said First Information Report, the police investigated the case and submitted a police report under Section 173(2) of the Code before Shri Sharnagat Singh, Judicial Magistrate 1st Class, Ludhiana, indicating therein that Vijay Kumar and Ashok Kumar Petitioners were participants in the crime and that Rattan Chand Petitioner had an established alibi in Delhi, and thus the police had not sent up a challan against him. The learned Magistrate, differing with the police report, ordered Rattan Chand Petitioner to be summoned as well, as an accused, along with Ashok Kumar and Vijay Kumar Petitioners. Besides the individual grouse of Rattan Chand Petitioner, as to why he was summoned, all the three Petitioners lay emphasis in their petition that the proceedings could not go on against them as the entry of the Assistant Excise and Taxation Officer was illegal and in excess of his powers, and hence so case under Section 352 or 353 of the Indian Penal Code was made out against the Petitioners in view of the dictum of this Court in Parshotam Dass Lajja Ram and Ors. v. The State : AIR 1965 P&H. 264. However, at the bar arguments alone were confined to the powers of the Magistrate to issue process against Rattan Chand, and thus the debate remained common in both the cases.
(3.) MR H.L. Sibal, the learned Counsel for the Petitioners in both the cases, contended that the respective Magistrates in both the cases had to jurisdiction to issue straightway process against the affected Petitioners, differing with the views expressed and reported to them by the police in their police reports. It was his firm stand that the Magistrates could not take cognizance of the offences in either of the sub -clauses of Section 190(1) of the Code, which is in the following terms: 190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub -section (2), may take cognizance of any offence: (a) upon receiving a complaint of facts which constitutes such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.;