- (1.) THIS is a reference by the Additional District Magistrate, Udaipur, recommending that the order of the Sub-Divisional Magistrate, Rajsamand, directing the police to submit a charge-sheet in a case under sec. 336 and 380 I. P. G. which they found to be true on enquiry, be set aside on the ground that there is no express provision for it in the Code of Criminal Procedure.
(2.) A complaint was filed in the court of the learned Sub-Divisional Magistrate, under secs. 366 and 380 I. P. C. by one Mohan Bhamohi. The learned Magistrate recorded the statement of the complainant under sec. 200 Cr. P. C. , postponed the issue of process for compelling the attendance of the persons complained against and directed a police enquiry for the purpose of ascertaining the truth or falsehood of the complaint as contemplated under sec. 202 Cr. P. C. The police delayed the submission of report for a long time, but after several reminders it was reported by them that the allegations made in the complaint were true. This S. D. M. then ordered the police to submit a charge-sheet against the accused persons. A revision application was then filed in the court of the Additional District Magistrate by the prosecution inspector on which the present reference has been made. The learned Additional District Magistrate is of the opinion that the proper course for the Magistrate was to issue process for the accused persons as provided under sec. 204 Cr. P. C. and proceed with the case upon complaint. The learned Magistrate could certainly have proceeded with the case after receiving the police report as a case instituted on a complaint. But there is nothing in the Code of Criminal Procedure to prevent him from direction the police to submit a charge-sheet in the case specially when the police had upon enquiry found that cognizable offences had in fact been committed. Under sec. 190 it is open to the Magistrate to take cognizance (a) upon receiving a complaint, (b) upon a police report or (c) upon information received by him. These three clauses of sec. 190 Cr. P. C. , are not mutually exclusive Cognizance of the same offence can be taken under more than one of these clauses. Thus when the Magistrate has before him a complaint and a police report about the same offence he can take cognizance of both. In this connection the decision of a Division Bench of this Court in Mukania vs. Achalia (1) may be referred to. See. 157 Cr. P. C. provides that if from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of a cognizable offence he shall forthwith investigate into the case. It was thus the duty of the police to have investigated into the present case and submitted a charge sheet as soon as it was brought to their knowledge that a cognizable offence had been committed. There can be no doubt that the learned S. D. M. could direct the police to do what sec. 157 C. P. C. prescribes to be their duty. In Piyarji vs. The State (2) it was held : - If a Magistrate suspects that an offence has been committed then in the interest of justice, he has been empowered by the Criminal Procedure Code to take cognizance himself But there is no provision as to how the Court will proceed in a matter like this. The duty of the Police is to help the Court, and. in the interest of justice, peace and order to book a person alleged to have committed an offence. In Ramsarup vs. The Slate (3) which was decided by a learned Single Judge of this Court the police submitted a final report to the S. D. M that no case was made out. This report was accepted by the S. D. M. and the case was struck off the file. The District Magistrate thereafter directed the police to submit a charge-sheet. The order of the District Magistrate was upheld. A decision of the Patna High Court in Uma Singh vs. Emperor (4) was approved by this Court in that case. The order of the learned S. D. M. , was not only legal but was a very proper one in the circumstances of the case. The intention underlying the Code of Criminal Procedure is that as far as possible cognizable cases should not only be investigated by the police but they should also be prosecuted by the State at its own expense. Where the police fail to do their duty the S. D. M. must direct them to carry it out. I accordingly reject the reference. Let the record be returned immediately to the court of the S. D. M. directly so that further action in the matter may not be delayed any longer. ;