Maintaining that a Magistrate retains jurisdiction under Section 190(1)(c) Cr.P.C. to take cognizance and array a person as an accused despite absence of their name in the police chargesheet, relying on Apex Court precedents that allow prosecution based on independent judicial suspicion of offence commission.
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IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.1543 of 2012
Damodar Mohanty
Petitioner
versus-
State of Orissa and another
…. Opposite Parties
CORAM: JUSTICE S. PUJAHARI
Order No.
ORDER
25.04.2022
Page 1 of 4
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“17. We have to approach the question, arising for consideration in this case, in the light of the circumstances pointed out above. We have already referred to the scheme of Chapter XIV, as well as the observations of this Court in Rishbud and Inder Singh's Case AIR SC 196 that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is 'left to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack nor can any such powers be implied. 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 those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of tile 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
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police records placed before him, he has reason to suspect that an offence has been committed. Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to place the accused for trial, is that of the Officer in-charge of the police station and that opinion determines whether the report is to be under Section 170, being a 'charge- sheet', or under section 169, 'a final report'. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a chargesheet, because the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. That will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report either under S. 169, or under section 170, depending upon the nature of the decision. Such a function has been left to the police under the Code.”
“A Magistrate has jurisdiction to take cognizance of offences against such persons also who have not been
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arrested by the police as accused persons, if it appears from the evidence collected by the police that they were prima facie guilty of the offence alleged to have been committed. Section 209 refers back to Section 190, as it is evident from the words “instituted on a police report” used in Section 190(1)(b) of the Code. The cognizance taken by the Magistrate was of the offence and not of the offenders. Having taken cognizance of the offence, a Magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent by the police some other persons were also involved, it is his duty to proceed against those persons as well.”
(S. Pujahari) Judge
DA
Page 4 of 4
3 issues framed by the court
Whether a Magistrate has jurisdiction to array a person as an accused while taking cognizance under Section 190(1)(c) Cr.P.C. even if the police did not submit a chargesheet naming that person.
Whether the injunction of Section 482 Cr.P.C. prevents taking cognizance against a person not named in the police report when prima facie evidence exists.
Whether a Magistrate is bound by the police opinion regarding omission of accused in the final report.
Colour shows how this judgement treated each authority
Abhinandan Jha and others v. Dinesh MishraExplained¶20
Abhinandan Jha and others v. Dinesh Mishra, AIR 1968 SC 117 · Who else cites this
Rajinder Prasad v. BashirExplained¶25
Rajinder Prasad v. Bashir, (2001) 8 SCC 522 · Who else cites this
1 provisions across 1 enactments
Damodar Mohanty
State of Orissa
S. PUJAHARI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
