A Magistrate, after considering reports of two inquiries under Section 190 CrPC, orders another inquiry under Section 202. After considering all those reports, he takes cognizance of offence. Examine the legality

Question: A Magistrate, after considering reports of two inquiries under Section 190 CrPC, orders another inquiry under Section 202. After considering all those reports, he takes cognizance of offence. Examine the legality of the Magistrate’s action, referring to case law. [MPHJS 2008, BIHAR J 1997, 1986, MPJ 2012, P.C.J., 2006]

Find the answer only on Legal Bites. [A Magistrate, after considering reports of two inquiries under Section 190 CrPC, orders another inquiry under Section 202. After considering all those reports, he takes cognizance of offence. Examine the legality of the Magistrate’s action, referring to case law.]

Answer

The term inquiry is defined in Section 2(g) Of CrPc 1973 as-

“Inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate Court. An inquiry is a judicial proceeding that is conducted by the Magistrate or Court to determine whether the further proceedings of the case move to trial.”

The Magistrate whenever receives a complaint of an offence under Section 190(1)(a) the course which is left open to him is to follow the procedure laid down under Section 202 CrPC. Section 202 enables either inquiry into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not, there is sufficient ground for proceeding with the matter.

Likewise, on a police report under Section 190(1)(b) he can take cognizance of the offence and proceed with the trial himself if it is a summons case or refer to the court of competent jurisdiction if it is a warrant case. So far as Section 190(1)(c) is concerned, the Magistrate either on information or on his own knowledge can straightway take cognizance of an offence or drop the case if no prima facie case is made out.

In R. R Chari v. State of U.P. [1962 AIR 1573], wherein it is held as under:

It seems to be clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) CrPC he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of the proceeding, in a particular way as indicated in the subsequent provisions of this chapter. Proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202 when the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this chapter but for taking action of some other kind e. g. ordering investigation.

In Abhinandan Jha v. Dinesh Mishra [1968 Cri LJ 97 (SC)] it was held (Paras 15, 16, and 17):

Then the question is, what is the position when the Magistrate is dealing with a report submitted by the Police, under Section 173, that no case is made out for sending up an accused of trial, which reports as we have already indicated, is called, in the area in question, as a ‘final report?

Even in these cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the Police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under Section 156 (3) to make a further investigation.

That is if the Magistrate feels, after considering the final report that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156 (3).

The police, after such further investigation, may submit a charge sheet or again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b) notwithstanding the contrary opinion of the police, expressed in the final report.”

There is certainly no obligation, on the Magistrate, to accept the report if he does not agree with the opinion formed by the police. Under these circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, under Section 190(1)(c) of the Code. That provision, in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence.

Therefore a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under Section 190(1)(c) on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed.

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