Final report and charge sheet

In Abhinandan Jha and Another v. Dinesh Mishra (AIR 1968 SC

117), the Supreme Court while considering the provisions of Sections 156(3), 169,178 and 190 of the Code held that 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. The

functions of the Magistrate and the police are entirely different, and the

Magistrate cannot impinge upon the jurisdiction of the police, by

compelling them to change their opinion so as to accord with his view.

However, he is not deprived of the power to proceed with the matter. There

is no obligation on the Magistrate to accept the report if he does not agree

with the opinion formed by the police. The power to take cognizance

                                  
notwithstanding formation of the opinion by the police which is the final

stage in the investigation has been provided for in Section 190(1)(c).

         When a report forwarded by the police to the Magistrate under

Section 173(2)(i) is placed before him several situations arise. The report

may conclude that an offence appears to have been committed by a

particular person or persons and in such a case, the Magistrate may either

(1) accept the report and take cognizance of the offence and issue process,

or (2) may disagree with the report and drop the proceeding, or (3) may

direct further investigation under Section 156(3) and require the police to

make a further report. The report may on the other hand state that according

to the police, no offence appears to have been committed. When such a

report is placed before the Magistrate, he has again the option of adopting

one of the three courses open i.e., (1) he may accept the report and drop the

proceeding; or (2) he may disagree with the report and take the view that

there is sufficient ground for further proceeding, take cognizance of the

offence and issue process; or (3) he may direct further investigation to be

made by the police under Section 156(3). The position is, therefore, now

well-settled that upon receipt of a police report under Section 173(2) a

Magistrate is entitled to take cognizance of an offence under Section

                                 
190(1)(b) of the Code even if the police report is to the effect that no case is

made out against the accused. The Magistrate can take into account the

statements of the witnesses examined by the police during the investigation

and take cognizance of the offence complained of and order the issue of

process to the accused. Section 190(1)(b) does not lay down that a

Magistrate can take cognizance of an offence only if the Investigating

Officer gives an opinion that the investigation has made out a case against

the accused. The Magistrate can ignore the conclusion arrived at by the

Investigating Officer and independently apply his mind to the facts

emerging from the investigation and take cognizance of the case, if he

thinks fit, exercise of his powers under Section 190(1)(b) and direct the

issue of process to the accused. The Magistrate is not bound in such a

situation to follow the procedure laid down in Sections 200 and 202 of the

Code for taking cognizance of a case under Section 190(1)(a) though it is

open to him to act under Section 200 or Section 202 also. [See M/s. India

Sarat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885)]. The

informant is not prejudicially affected when the Magistrate decides to take

cognizance and to proceed with the case. But where the Magistrate decides

that sufficient ground does not subsist for proceeding further and drops the

proceeding or takes the view that there is material for proceeding against

       some and there are insufficient grounds in respect of others, the informant

would certainly be prejudiced as the First Information Report lodged

becomes wholly or partially ineffective. Therefore,

 where the Magistrate decides not to take

cognizance and to drop the proceeding or takes a view that there is no

sufficient ground for proceeding against some of the persons mentioned in

the First Information Report, notice to the informant and grant of

opportunity of being heard in the matter becomes mandatory. As indicated

above, there is no provision in the Code for issue of a notice in that regard.

   We may add here that the expressions `charge-sheet' or `final report'

are not used in the Code, but it is understood in Police Manuals of several

States containing the Rules and the Regulations to be a report by the police

filed under Section 170 of the Code, described as a "charge-sheet". In case

of reports sent under Section 169, i.e., where there is no sufficiency of

evidence to justify forwarding of a case to a Magistrate, it is termed

variously i.e., referred charge, final report or summary. Section 173 in terms

does not refer to any notice to be given to raise any protest to the report

submitted by the police. Though the notice issued under some of the Police
                                    
Manuals states it to be a notice under Section 173 of the Code, though there

is nothing in Section 173 specifically providing for such a notice.

    As decided by this Court in Bhagwant Singh v. commissioner of police (AIR 1985 SC 1285), the

Magistrate has to give the notice to the informant and provide an

opportunity to be heard at the time of consideration of the report. It was

noted as follows:-

                   "....the Magistrate must give notice to the
             informant and provide him an opportunity to be heard at
             the time of consideration of the report..."

   Therefore, the stress is on the issue of notice by the Magistrate at the

time of consideration of the report. If the informant is not aware as to when

the matter is to be considered, obviously, he cannot be faulted, even if

protest petition in reply to the notice issued by the police has been filed

belatedly. But as indicated in Bhagwant Singh's case (supra) the right is

conferred on the informant and none else.

See, Criminal Appeal no 964/2007, Chitaranjan mirdha v. dulal Ghosh decided by supreme court on may 8, 2009