Procedure when Cancellation Report of a Case is filed by Police

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Procedure when Cancellation Report of a Case is filed by Police

Relevant Provisions of Law

  1. Section 157 of Cr.P.C. : Procedure for investigation.
  2. Section 173 of Cr.P.C. : Report of Police Officer on completion of investigation.
  3. Section 190 Cr.P.C. : Cognizance of offence by Magistrate

Basic Principles of Law

  1. If after conclusion of investigation, the Investigating Officer comes to the conclusion that no offence is committed, he is duty bound to inform the first informant, injured or relative of the deceased. He is also duty bound to supply a copy of the report to the informant.
  2. During the proceedings, the informant has a right of being heard and to put his plea before the Magistrate.
  3. The Magistrate is duty bound to inform the first informant, injured person or in case of death dependent of the deceased by a written notice and also to hear him.
  4. If the injured or relative of the deceased is not the first informant then he is not entitle to recieve notice from the Magistrate. However, the Magistrate has a liberty to issue a notice to such a person.
  5. The injured or relative of the deceased, who is not the first informant, has the right to make his submissions at the time of consideration of the report.
  6. Court can refuse to accept Cancelation Report, and take cognizance in the absence of accused. Accused has no right of participation in the enquiry. After completion of investigation, police may conlude that offence has been committed and may file a charge-sheet in the Court. But the Magistrate may disagree with the report and may decide to drop the proceedings. There may also be a situation where police may conclude that offence has not been committed and may file the cancellation report. The Magistrate may agree with the report and decide to drop the proceedings.

In such a situation, the following questions may arise:-

(a) What are the rights of the first informant, the injured person or in case of death, the dependants of the deceased?

(b) What are the duties of the Investigating Officer qua the first informant, injured person or in case of death dependent of the deceased?

(c) Options available to the Magistrate.

(d) Duties of the Magistrate qua the first informant, injured person or in case of death dependent of the deceased.

The High Courts were having different opinions. To settle the controversy and to afforid guidance to the Magistrates, the Hon’ble Supreme Court constituted a Full Bench in case Bhagwant Singh v/s Commissioner of Police and anr 1985 (2) C.L.R. 352.  

First Full Bench decision of the Hon’ble Supreme Court on the subject

Purpose of the Full Bench

The purpose of Full Bench was ‘to afford guidance to the Courts of Magistrates all over the country.’

Questions of Law

  1. Whether in a case where First Information Report is lodged and after completion of investigation initiated on the basis of the First Information Report, the police submits a report that no offence appears to have been committed, the Magistrate can accept the report and drop the proceeding without issuing notice to the first informant or to the injured or in case the incident has resulted in death, to the relatives of the deceased?
  2. Whether the Magistrate is bound to issue notice to any such person?
  3. What are the rights of the first informant, injured person or in case of death dependent of the deceased?

To simplify the matter, the Hon’ble Supreme Court gave the guidelines step by step:-

Step No.1

When after completion of investigation, police decides that offence has been committed

  1. Options available to the Magistrate

As per Hon’ble Supreme Court, in such a situation, the Magistrate has the following three options:-

(1) He may accept the report and take cognizance of the offence and issue process.

(2) He may direct further investigation under subsection (3) of S.156 and require the police to make a further report.

(3) He may disagree with the report and drop the proceeding.

While pointing out these options, the Hon’ble Supreme Court observed as under:-

Para “4. 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 do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under subsection (3) of S.156 and require the police to make a further report.”

  1. In case, the Magistrate decides to accept the report and to take cognizance of the offence

(a) Rights of the first informant

In such a situation, it is not obligatory for the Investigating Officer or the Magistrate to inform the informant, injured person or in case of death dependent of the deceased.

While laying down this guidance, Hon’ble Supreme Court observed as under:-

Para “4. …… Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizane of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed.”

  1. In case, Magistrate disagrees with the report and decides to drop the proceedings.

(a) Duties of the Magistrate

In such a situation, the informant would be prejudiced. The Magistrate has the following duties qua to the first informant.

(i) To give the informant the opportunity of being heard.

(ii) To give notice to the informant in this respect.

While laying down these guidelines, the Hon’ble Supreme Court observed as under:-

Para “4….There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of S.173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-sec.(2)(i) of S.173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report…..” 

(b) Rights of the first informant

In such a situation, the first informant has the following rights:-

  1. i) To get communication from the incharge of the police station regarding the action taken on the FIR.
  2. ii) To receive copy of the report submitted by the S.H.O. to the Court.

Para “3….The officer in charge of a police station decides not to investigate the case on the view that there is no sufficient ground for entering on an investigation, he is required under sub-sec.(2) of S.157 to notify to the informant the fact that he is not going to investigate the case or cause it to be investigated. Then again, the officer in charge of a police station is obligated under sub-sec.(2)(ii) of S.173 to communicate the action taken by him to the informant and the report forwarded by him to the Magistrate under sub-sec.(2)(i) has therefore to be supplied by him to the informant….

iii) To receive notice from the Magistrate and

  1. iv) An opportunity to be heard at the time of consideration of the report.

While laying down these guidelines, the Hon’ble Supreme Court observed as under:-

Para “4….There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of S.173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-sec.(2)(i) of S.173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report…..” 

Step No.2

When after completion of investigation, police decides that no offence has been committed

  1. Duties of the Police Officer

In such a situation, the Police Officer has the following duties qua to the informant.

(i) To communicate the action taken by him to the informant U/s 157 (2) of Cr.P.C.

(ii) The send copy of the report sent to the Magistrate to the informant U/s 173 (2) (ii) of Cr.P.C.

While pointing out these guidelines, Hon’ble Supreme Court observed as under:-

Para “3. If, notwithstanding the First Information Report, the officer in charge of a police station decides not to investigate the case on the view that there is no sufficient ground for entering on an investigation, he is required under sub-sec.(2) of S.157 to notify to the informant the fact that he is not going to investigate the case or cause it to be investigated. Then again, the officer in charge of a police station is obligated under sub-sec.(2)(ii) of S.173 to communicate the action taken by him to the informant and the report forwarded by him to the Magistrate under sub-sec.(2)(i) has therefore to be supplied by him to the informant.”

  1. Options available to the Magistrate

As per Hon’ble Supreme Court, in such a situation, the Magistrate has the following three options:-

(1) He may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or

(2) He may direct further investigation to be made by the Police under sub sec.(3) of Section 156 or

(3) He may accept the report and drop the proceeding

While pointing out these guidelines, the Hon’ble Supreme Court observed as under:-

Para “4. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the Police under sub-sec.(3) of Section 156.”

  1. In case, the Magistrate disagree with the report and decides to take cognizance of the offence

In such a situation, the first informant is not prejudiced and no notice to him as required.

  1. In case, the Magistrates agree with the report and decide to drop the proceedings.

(a) Duties of the Magistrate

(b) Rights of the first informant

Note:- In such a situation, the duites of the Magistrate and rights of the first informant are the same as pointed out above in para C. (a) and C. (b) of Step No.1

Step No.3

When Magistrate concludes that there is ground to proceed against some and not to proceed against others

There may be a situation where the police may file a charge-sheet against all the accused or a cancellation report. The Magistrate may partially disagree with the report and may decide that there is ground to proceed against some and not to proceed against others.

  1. Duties of the Magistrate

In that situation, the first informant would certainly be prejudiced and the Magistrate is duty bound to give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.

While pointing out these guidelines, Hon’ble Supreme Court observed as under:-

Para “4. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in sub-sec.(2) of S.154, sub-sec.(2) of S.157 and sub-sec.(2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of S.173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-sec.(2)(i) of S.173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.

  1. Rights of the first informant

In such a situation, the first informant has the following rights:-

(i) To receive notice from the Magistrate and

(ii) An opportunity to be heard at the time of consideration of the report. 

Why information to the first informant is mandatory?

While explaining the logic behind this principle, the Hon’ble Supreme Court observed as under:-

Para “3. Obviously, the reason is that the informant who sets the machinery of investigation into motion by filing the First Information Report must know what is the result of the investigation initiated on the basis of the First Information Report. The informant having taken the initiative in lodging the First Information Report with a view to initiating investigation by the police for the purpose of ascertaining whether any offence has been committed and, if so, by whom, is vitally interested in the result of the investigation and hence the law requires that the action taken by the officer in charge of a police station on the First Information Report should be communicated to him and the report forwarded by such officer to the Magistrate under sub-section (2)(i) of Section 173 should also be supplied to him.”

POSITION OF THE INJURED OR IN CASE OF DEATH DEPENDENT OF THE DECEASED, WHO IS NOT THE FIRST INFORMANT

The person who is not the first informant, but is an injured or in case of death dependent of the deceased has the following rights:-

  1. To appear before the Court

And

  1. To make his submissions at the time of consideration of report.

But he is not entitled to receive notice from the Court.

While laying down these guidelines, the Hon’ble Supreme Court observed as under:-

Para “5…. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report….” 

Part-B

Right of accused of participation in inquiry 

Court can refuse to accept Cancelation Report, and take cognizance in the absence of accused. Accused has no right of participation in the enquiry.

In case Vishnu Dutt v/s Gobind Dass 1995 Cri.L.J. 263

Brief Facts of the Case

It was case u/Ss 448, 427 and 341 IPC. After investigation, police came to the conclusion that the allegations leveled by the complainant were false. A cancellation report was filed in the Court. The Magistrate refused to accept the cancellation report and took cognizance against the accused.

Feeling aggrieved, accused filed a criminal Misc. Petition in Hon’ble Rajasthan High Court.

Proceedings before the Hon’ble Rajasthan High Court

Plea of the petitioners/accused

One contention of the petitioners/accused was that before taking the cognizance and not accepting the cancellation report, the accused were not given any opportunity of hearing.

Plea of the State Counsel

The plea of the State Counsel was that it was only an enquiry and accused has no right of hearing before the cognizance is taken.

Question of Law

Whether the accused has a right to be heard before the taking of the cognizance by a Magistrate?

Findings of the Hon’ble High Court

The Hon’ble Rajasthan High Court held that before the issuance of the process to the accused, the proceedings conducted by the Trial Court are only are of inquiry. At this stage, the accused has no right of hearing.

While holding so, the Hon’ble High court observed as under:-

Para “5. The next contention, raised by the learned counsel for the petitioners, is that the petitioners have got a right to be heard before the cognizance is taken against them. The two judgements, referred above, on which reliance has been placed by the learned counsel for the petitioners, run contrary to the view taken by the Full Bench of this Court in Mahesh Chandra etc. v. State of Rajasthan (AIR 1986 Raj 58) : (1985 Cri LJ 301) and Chandra Deo Singh v. Prakash Chand Bose, (AIR 1963 SC 1430) : (1963(2) Cri LJ 397), In both these judgments, the judgment of the Full Bench of this Court has not been referred or considered. It has been held by the Full Bench of this Court in Mahesh Chandra’s case that cognizance of an offence is taken at the stage when the accused is nowhere in the picture before the Magistrate. The Apex Court, in the case of Chandra Deo Singh v. Prakash Chand Bose (1963 (2) Cri LJ 397) (Supra) has held that permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the Legislature has made no specific provision permitting the accused person to take part in an enquiry. At the time of taking cognizance, the defence available to the accused is not required to be considered by the Magistrate. The Magistrate, at that stage, is, also, not required to consider the truthfulness or falsity of the evidence. Whether the witnesses are trustworthy or not, that is not required to be considered at this stage and the order has to be passed by the learned Magistrate to determine the issue on the basis of the material placed before him by the complainant or the investigating agency. The defence, if at all available to the accused, is not to be considered and decided by the Magistrate at this stage. If the evidence collected by the investigating agency or produced before the Court, at its face value, do constitute any crime involving the accused and the Court is satisfied, after applying its judicious mind then it can take the cognizance against the accused and issue the process. The accused nowhere comes in the picture before the process is issued. It is only after the process is issued that the accused gets a right to participate in the proceedings and to appear before the Court and requests it that the matter may be reconsidered.” 

Case Referred:-

  1. Bhagwant Singh v/s Commissioner of Police and anr 1985 (2) C.L.R. 352
  2. Vishnu Dutt v/s Gobind Dass 1995 Cri.L.J. 263

 

 

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