# ABHINANDAN JHA & ORS v. DINESH MISHRA - **Citation:** [1967] 3 S.C.R. 668 - **Court:** Supreme Court of India - **Decided:** 1967-04-17 - **Case number:** Criminal Appeal No. 218 of 1966 - **Bench:** M. Hidayatullah, C. A. Vaidialingam - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abhinandan-jha-ors-v-dinesh-mishra-4008 - **Pages:** 13 ## Headnote Code of Criminal Procedure (Act S of 1898), ss. 169, 170, 173 and ·190(1)-Report ·tc police of cognir.able offence-Report by police to magistrate after investigation that offence not made out-If magistrate can direct police ro file charge-sheet. On the question whether a magistrate could direct the police to sub· mil a charg~heet1 when the police, after investigation into a cognizable offence, had sublllltted a report of the action taken under s. 169, Cr. P.C., that there was no case made out for sending up the accused for trial, HELD : There was no such power conferred on a magistrate either expressly or by implication. When a cognizable offence is reported to the police they may after investigation take action under s. 169 or s. 170 Cr. P.C. If the police think there is not sufficient evidence against the accused, they may, under s. 169 release the accused from custody on his executing a bond to appear before a competent magistrate if and when so required; or, if the police think there IS sufficient evidence, they may, under s. 170, forward the accused under custody to a competent magistrate or release the accused on bail in cases where the offences are bailable. In either case the police should submit a report of the action taken, under s. 173, to the competent magistrate who considers it judicially under s. 190 and takes the following action : (I) If the report is a charge-sheet under s. 170 it is open to the magistrate to agree with it and take cognizance of the offence under s. !90(! )(b); or to take the view that the facts disclosed do not make out an offeeee and decline to. take cognizance. But he cannot call upon the police to submit a report that the accused need not be proceeded against on the ground that there was not sufficient evidence. (2) If the report is of the action taken under s. 169, then the magistrate may agree with the report and close the proceeding. If he disagrees with the report he can give directions to the police under s. 156(3) to make a further investigation. If the police, after further investigation submit a charge.,.heet, the magistrate may follow the procedure where the char~heet under s. 170 is filed; but if the police are still of the opinion that there was not sufficient evidence against the accused, the ma~strate may agree or disagree with it Where he agrees, the case agamst the accused is closed. Where the magistrate disagrees and forms the opinion that the facts set out in the report constitute an offence, he can take cognizance under s. 190(1) (c). The provision in s. 169 enabl· ing the police to take a bond for the appearance of the accused· before a magistrate if so required, is to meet such a contingeilcy of the magistrate Jaking cognizance of the offence notwithstanding the contrary opinion of the police. The power under s. 190(l)(c) was intended to secure that A B c D E F G H A B c D E F G H ABINANDAN v. DINESH (Vaiaialingam, J.) 66~ offences may not go unpunished and justice may· be invoked even whpersons individually aggrieved are unwilling or unable to prosecute, or the police either wantonly or through a balW fide error do not submit a charge-sheet. But the magistrate cannot direct the polioe to submit a charge-sheet, because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the map· Irate. The magistrate, if he disagrees with the report of the police, caa himself take cogniZance of the offence under s. 190(1)(a) or (c), but, he cannot compel the police to form a particular opinion on inveatlp· tion and submit a report according to such opinion. [672F-H; 673B; 676H; 677B-H: u78A-fJ: (j79A-C. E-H] Slate af Gujarat v. Sh<·h Lakhamshi, A.I.R. 1966 Gujarat 283 (F.B.); Vcnkatu.rnbha v. Anianayulu, A.LR. 1932 Mad. 673; Abdul Rahim v. Abdul Muktadin, A.I.R. 1953 Assam 112; Amar Premanand v. Stal•, A.I.R. 1960 M.P. 12 and A. K. Ray v. State of West Bengal, A.I.R. 1962 Cal. 135 (F.B.), approved. State v. Murlidhar Gavardhan, ## Text ABHINANDAN JHA & ORS. v. DINESH MISHRA (With Connected Appeal) April 17, 1967 [M. HIDAYATULLAH AND C. A. VAIDIALINGAM, JJ.] Code of Criminal Procedure (Act S of 1898), ss. 169, 170, 173 and ·190(1)-Report ·tc police of cognir.able offence-Report by police to magistrate after investigation that offence not made out-If magistrate can direct police ro file charge-sheet. On the question whether a magistrate could direct the police to sub· mil a charg~heet1 when the police, after investigation into a cognizable offence, had sublllltted a report of the action taken under s. 169, Cr. P.C., that there was no case made out for sending up the accused for trial, HELD : There was no such power conferred on a magistrate either expressly or by implication. When a cognizable offence is reported to the police they may after investigation take action under s. 169 or s. 170 Cr. P.C. If the police think there is not sufficient evidence against the accused, they may, under s. 169 release the accused from custody on his executing a bond to appear before a competent magistrate if and when so required; or, if the police think there IS sufficient evidence, they may, under s. 170, forward the accused under custody to a competent magistrate or release the accused on bail in cases where the offences are bailable. In either case the police should submit a report of the action taken, under s. 173, to the competent magistrate who considers it judicially under s. 190 and takes the following action : (I) If the report is a charge-sheet under s. 170 it is open to the magistrate to agree with it and take cognizance of the offence under s. !90(! )(b); or to take the view that the facts disclosed do not make out an offeeee and decline to. take cognizance. But he cannot call upon the police to submit a report that the accused need not be proceeded against on the ground that there was not sufficient evidence. (2) If the report is of the action taken under s. 169, then the magistrate may agree with the report and close the proceeding. If he disagrees with the report he can give directions to the police under s. 156(3) to make a further investigation. If the police, after further investigation submit a charge.,.heet, the magistrate may follow the procedure where the char~heet under s. 170 is filed; but if the police are still of the opinion that there was not sufficient evidence against the accused, the ma~strate may agree or disagree with it Where he agrees, the case agamst the accused is closed. Where the magistrate disagrees and forms the opinion that the facts set out in the report constitute an offence, he can take cognizance under s. 190(1) (c). The provision in s. 169 enabl· ing the police to take a bond for the appearance of the accused· before a magistrate if so required, is to meet such a contingeilcy of the magistrate Jaking cognizance of the offence notwithstanding the contrary opinion of the police. The power under s. 190(l)(c) was intended to secure that A B c D E F G H A B c D E F G H ABINANDAN v. DINESH (Vaiaialingam, J.) 66~ offences may not go unpunished and justice may· be invoked even whpersons individually aggrieved are unwilling or unable to prosecute, or the police either wantonly or through a balW fide error do not submit a charge-sheet. But the magistrate cannot direct the polioe to submit a charge-sheet, because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the map· Irate. The magistrate, if he disagrees with the report of the police, caa himself take cogniZance of the offence under s. 190(1)(a) or (c), but, he cannot compel the police to form a particular opinion on inveatlp· tion and submit a report according to such opinion. [672F-H; 673B; 676H; 677B-H: u78A-fJ: (j79A-C. E-H] Slate af Gujarat v. Sh<·h Lakhamshi, A.I.R. 1966 Gujarat 283 (F.B.); Vcnkatu.rnbha v. Anianayulu, A.LR. 1932 Mad. 673; Abdul Rahim v. Abdul Muktadin, A.I.R. 1953 Assam 112; Amar Premanand v. Stal•, A.I.R. 1960 M.P. 12 and A. K. Ray v. State of West Bengal, A.I.R. 1962 Cal. 135 (F.B.), approved. State v. Murlidhar Gavardhan, A.I.R. 1960 Bom. 240 and Ram· Nandan v. State, A.I.R, 1966 Pat. 438, disapproved. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 218 of 1966. Appeal by special leave from the order dated August 5, 1966 of the Patna High Court in Criminal Revision No. 1020 of 1966, AND Criminal Appeal No. 238 of 1966. Appeal by special leave from the judgment and order dated September 13, 1966 of the Patna High Court in Criminal Revision No. 40 cif 1965. B. P. Iha and Subhag Mal Jain, for the appellants (in Cr. A. No. 218 of 1966). Nuruddin Ahmed and R. C. Prasad, for the appellants (in Cr. A. No. 238 of 1966). U. P. Singh, for the respondents (in both the appeals). The Judgment of the Court was delivered by Vaidialingam, J. The common question, that arises for consideration, in these two criminal ·appeals, by special leave, is as to whether a Magistrate can direct the police to submit a chargesheet, when the police, after the investigation inio a congnizable offence, had submitted a final report, under s. 173 of the Code of Criminal Procedure (hereinafter called the Code). There is a conflict of opinion, on this point between the various High Courts in India. The High Courts of Madras, Calcutta; Madhya Pradesh, Assam and Gujarat have taken the view that the Magistrate has no such power, whereas, the Patna and Bombay High Courts have held a contrary view. · Jn Criminal Appeal No. 218 of 1966, the respondent, o:uesh Mishra, lodged a. first informat10n report, on June 3, 670 SUPREMll COURT REPORTS [1967] 3 S.C.R. 1965, at the Rajoun Police Station, that he saw a thatched house, of one lJma Kant Misra, situated on the northern side of his house, burning, and the p~titioners herein, running away from the scene. The police made an investigation and submitted what is called a 'final report', under s. 173(1) of the Code, to the effect that the offence complained of, was false. The Sub-Divisional Magistrate received this report on July 13, · 1965, but, in the meanwhile, the respond.~nt had filed what is termed 'a protest petition', challenging the correctness of the report submitted by the police. The Magistrate appears to have perused the police diary and, after hearing the counsel for the respondent and the public prosecutor, passed an order on October 27, ·1965, directing the police to submit a charge.sheet, · against the petitioners, herein. The petitioners challenged this order, without success, both before the learned Sessions Judge, Bhagalpur, and the Patna High Court. It was held .by the High Court, following its previous decision, that the Magistnite has jurisdiction to call for a charge-sheet, when he disagrees with the· report submitted by the police, under s. 173 ( 1) of the Code. The petitioners. in this appeal, challenge these orders. S1milarly, in Criminal Appeal No. 238 of 1966, the second respondent therein, had lodged a written report, on Fe)lruary 24, 1964, before the police, at Malsalami police station, that ·his daughter, Hiramani, was missing from February 21, 1964, and that the appellants in ,that appeal, had kidnapped her. A case under s. 366 I.P.C. was registered against them. The police, after investigation, submitted a final report to the Magistrate, to the effect that the girl concerned, had been recevered and · that she had stated that she had, of her own accord, eloped; and therefore the police stated that the case might be treated as closed; · The second respondent filed a 'protest petition' in Court, challenging the statements of the police and he also filed a complaint, under s. 498 I.P .C. The Magistrate, after a perusal of · the case diary of the police, and bl'.aring the lawyer for the appellants and the second respondent, a• also the public prosecutor) passed an order directing the .investigating officer to submit a charge-sheet, agiμnst the accused persons, under s. 366 I.P .C This order has been confirmed by the learned Sessions Judjle, as well as the Patna High Court. Here also, the Patna High Court, in accordance with its previous decision, held that the Magistrate had jurisdiction to pass the order, in question. All these. orders are challenged by the appellants, in this appeal. On behalf of the appellants, in Criminal Appeal No. 218 of 1966, Mr. Jha. learned counsel pointed out that when a final report is submitted by the police, under s. 173 (l) of the Code. A B c D E F G H ABINANDAN v. D!NESH (Vaiaiaungam, J.) 671 A stating that no case is made out, the Magistrate has no jurisdiction to direct the police to file a charge-sheet. It may be open, counsel points out, to the _Magistrate, to direct further investigation to be made by the police, or to treat the protest petition filed by the second respondent, as a complaint, and take cognizance of the offence and proceed, according to layv., The scheme 11 of Chapter XIV of the Code, counsel points out, clearly indicates that the formation of an opinion, as to whether or not there i5 a case to place the accused on trial, is that of the investigating officers, and the Magistrate cannot compel the police to form a par_ticular opinion on the investigation and to submit a r.eport, according to such opinion. In this case, there is nothing to show c that the protest petition, filed by the second respondent, has been treated as a complain,!, in which case, it may be open to the Magistrate to take cognizance of the offence, but, in the absence of any such procedure being adopted according to counsel, the order of the Magistrate directing a charge-sheet tO be filed, is lllegal and not warranted by the provisions of the Code. These contentions have been adopted, and reiterated, by Mr. Nuruddin D Ahmed, on behalf of the appellants, in Criminal Appeal No. 238 of 1966. Both the learned counsel pressed before us, for acceptance, the views, as expressed by the Gujarat High Court, in its F-ull Bench judgment, reported as State of Gujarat v. Shah LakhamE shi('). On the other hand, Mr. U. P. Singh, learned counsel for the respondent, in Criminal Appeal No. 218 of 1966", has pointed ou,t that the Magistrate has jurisdiction, in proper cases, when he does not agree with the final report submitted by the police, to direct them to submit a charge-sheet. Otherwise, counsel points out, ,the position will be that the entire matter is left to the discretion of the police authorities, and the Courts will be powerless, F even when they feel that the action of the police is not justified. G H Quite naturally, counsel prays for acceptance of the views expressed by the dissenting Judges, in A. K. Roy v. State of W. B.(2) and by the Bombay and Patna High Courts, in .the decisions reported as State v. Murlidhar Govardhan(8 ), and Ram Nandan v. State('), respectively. Jn order, prope~ly, . to appreciate the duties of ~e police, in the matter of 1nvestigat1on of offences, as well as their powers, it is necessary to refer to the provisions contained in Chapter XIV of the Gode. That chapter deals with 'Information to the Police and their Powers to investigate', and it contains the group of section beginning from s. 154 and ending with s. 176. Section 154 deals with information relating to the commission of a cognizable (!)A. I, R. 1966 Guj, 283. (2) A. I. R, 1962 Cal. 135 (F. B.). (3) A. I. R. 1960 limn 240. (4) A. I. R. 1966 Pat. 438, 672 SUPREME COURT REPORTS (1967] 3 S.C.R. offence, and the procedure to be adopted in respect of the same. Section 15 5, similarly, deals with information in respect of noli• cognizable offences. Sub-s. (2), of this section, prohibits a police officer from investigating a non-cognizable case, without the order of a Magistrate. Section 156 authorizes a police officer, in-charge of a police station, to investigate any cognizable case, without the order of a Magistrate. Therefore, it will be seen that large powers are conferred on the police, in the matter of investigation into a cognizable offence. Sub-s. (3), of s. 156, provides for any Magistrate empowered under s. 190, to order an investigation. In cases where a cognizable offence is suspected to have been committed, the officer, in-charge of a police station, after sending a report to the Magistrate, is entitled, under s. 157, to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender. Clause (b ), of the proviso to s. 157 (1), gives a discretion to the police officer not to investigate the case, if it appears to him that there is no sufficient ground for entering on an investigation. Sectip_n 158 deals with the procedure to be adopted in the matter of"a rePort to be sent, under s. 157. Section 159 gives power to a Magistrate, on receiving a report under s. 157, either to direct an investigation or, himself or through another Magistrate subordinate to him, to hold a preliminary enquiry into the matter, or otherwise dispose of the case, in accordance with the Code. Sections 160 to 163 deal with the power of the police to require attendance of witnesses, examine witnesses and record statements. Sections 165 and 166 deal with the power of police officers, in the matter of conducting searches, during an investigation, in tlie circumstances, mentioned therein. Section 167 provides for the procedure to be adopted by the police, when investigation cannot be completed in 24 hours. Section 168 provides for a report being sent to the officer, incharge of a police station, about the result of an investigation, when such investigation has been made by a subordinate police officer, under Chapter XIV. Section 169 authorises a police officer to release a person from custody, on his executing a bond, to appear, if and when so required, before a Magistrate, in cases when, on investigation under Chapter XIV, it appears to the officer, in-charge of the police station, or to the police officer making the investigation, that there is no sufficient evidence or reasonable ground of suspicion, to justify the fonvarding of the accused to a Magistrate. Section 170 empowers the officer, incharge of a police station, after investigation unde.r Chapter XIV. and if it appears to him that there is st111icient evidence, to fonvard the accused, under custody, to a competent Magistrate or to take securtiy from the accused for his appearance before the Magistrate in cases where the offence is bailable. Section 172 makes it obligatory on the police officer making an investiga?on, to maintain a diary recording the various particulars therein and in the A B c D E F G H A B c D E F G H ABH!NANDAN v. DINESH (Vaidialingam, J.) 673 manner indicated in that section. Section 173 provides for an investigation, under Chapter XIV, to be completed, without unnecessary delay .and also makes it obligatory, on the offic~r, incharge of the police station, to . send a report. to the M~gtstrate concerned, in the manner provided for therem, contammg the necessary particulars. · It is now only necessary to refer to s. 190, occurring in Chapter XV, relating to jurisdiction of criminal Courts in inq.uiries and trials. That section is to be found under the headmg 'Conditions requisite for initiation of proceedings' and its sub-s. ( l) is as follows: " ( I ) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistra'.c specially empowered in this behalf, may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; ( b) upon a report in writing of such facts made by any police-officer; ( c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed." From the foregoing sections, occurring in Chapter XIV, it will be seen that very elaborate provisions have been made for securing tha'. an investigation does take place into a reported offence and the inveitigation is carried out within the limits of the law, without causing any harassment to the accused and is also completed without unnecessary or undue delay. But the point to be noted is that the manner and method of conducting the investigation, are left entirely to the police, and the Magistrate, so far as we can see, has no power under any of these provisions, to interfere with the same. If, on investigation, it appears to the officer, in-charge of a police station, or to the officer making an investigation, that 1here is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Mag1strat.~, s. 169 says that the officer shall release the accused if in custody. on h_is execu'.ing a bond to appear before the Magis'. Irate. S1m!larly, 1f, on the other hand, it appears to the officer, rn-~harge of a police station, or to the officer making the investigation, under Chapter XIV, that there is sufficient evidence or 1 easc;nable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, under s. 170, to forward the accused to a Magistrate or, if the offence is bailable, to tajce security from him for his appearance before such Magistrate. But, whether a case comes under s. 169, or under s. 170, of the Code, on the completion of the investigation, the police officer has to L7SupCl/67-13 674 SUPRBME COURT Rl!PORTS (1967] 3 S.C.R. submit a report to the Magistrate, under s. 173, in the manner indicated therein, containing the various details. The question as to whether the Magistrate has got power to direct the police to fi!e a charge-sheet, on receipt of a report under s. 1.73 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report. In this connection, we may refer to certain observations, made by the Judicial Committee in King Emperor v. Khwaja Nazir Ahmed(') and by this Court, in H. N. Rishbud and Ind!!r Singh v. The State of Delhi('). In Nazir Ahmed's Case('), Lord Poiter observes, at 212, as follows: "Just as it is essen'.ial that every one accused of a crime should have free access to· a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. fhe functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under s. ·491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the court's functions begin when a charge is preferred before it, and not until then." A B c D E F These observations have been quoted, with approval, by this G Court, in State of West Bengal v. S. N. Basak('). This Court in Rishbud and lnder Singh's Case('), observes, at p. 1156, as follows: "Investigation usually starts on information relating to the commission of an offence given to an officer incharge of a police station and recorded under secH (t) L. R, 711. A, 203. (2) [1955] I. S. C. R, 115 I. (3) A. I. R. 1963 S. C. 447. '.H 0 ·11 ABHINANDAN v. DINESH (Vaidialingam, J.) 675 tion l 54 ef the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by .him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment of the facts and circums!ances of the case. By definition, it includes 'all the proceedings under the Code for the collection of evidence conducted by a police officer'." Again, after a reference to some of the provisions in Chapter XIV of the Code, it is observed at p. 1157 : "Thus, under the Code investiga'.ion consists generaliy of the following steps : ( 1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, ( 4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and ( 5) Forma'.ion of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for· the same by filing of a charge-sheet under section 173 ..... It is also clear that the final step in the investigation viz.. the formation of tlie opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in-charge of the police station." V'!~ are referring to these observations for the purpose of emphasizing that the scheme of Chapter XIV, clearly shows . that the formation of an opinion as to whether or not there is a case to place the accused on trial, has been left to the officer incharge of a police station. Bearing in mind these principles referred to above, we have to consider the question that arises for consideration, in this case. The High Courts which have held that the Magistrate has no jurisdiction to call upon the police to file a charge-sheet, under such circumstances, have rested their decision on two principles viz., (a) that there is no express provision in the Code empowering a Magistrate to pass such an order; and (b) such a power, in view of the scheme of L7SupCl/67-14 ti 76 SUPREME COURT RBPOllTS (1967] 3 S.C.R. Chapter XIV, cannot be inferred-vide V enkata Subha v. Anjanayulu('); Abdul Rahim v. Abdul Muktadin('); Amar Prctnanand v. Stare('); the majority view in A. K. Roy v. State of W. B.('); and State of Gujarat v. Shah Lakhamshi("). On the other hand, the High Courts which have recognised such a power, rest their decision again on two grounds viz., (a) when a report is submitted by the ,POiice, after investigation, the Magistrate has to deal with it judtcially, which will mean that when the report is not accepted, the Magistrate can give suitable directions to the police; and (b) the Magistrate is given supervision over the conduct of investigation by the police, and therefore, such a power can be recognised in the Magistrattl-'-vide State v. Murlidhar Goverdhan( 6); arid Ram Nandan v. State('). Though it may be that a report submitted by the police may have to be dealt with, judicially, by a Magistrate, and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. But, we may make it clear, that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him to take cognizance of an offence and proceed, according to law We do not also find any such power, under s. 173 ( 3), as is .,ought to be inferred, in some of the decisions cited above. As we have indicated broadly the apP.roach made by the various High Courts in coming to different conclusions, we do not think it necessary to refer to those decisions in detail. It will be seen that the Code, as such, does not use the expression 'charge-sheet' or 'final report'. But it is understood, in the Police · Manual containing Rules and Regulations, that a report by the Police, filed under s. 170 of the Code, is referred to as a 'charge-sheet'. But in respect of the reports sent under s. 169, i.e., when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, it is termed variously, in different States, as either 'referred charge', 'final report', or ·summary'. In these two appeals, which are from the State of Bihar, the reports, under s. 169, are referred to as 'final report' .. Now, the question as to what exactly is to ~ dcme by a Mag1str~te, on receiving a report. under s. 173, will have t'? be considered. That report may be in respect of a case, commg under s. 170, -(i) A IR 19:ffi.\.;d67J·- (2) A.l.R. 1953 Assam 112. (3) A°I'R' 1960 Mp 0 12 . (4l A.l.R.1962 Cal. 135. (5) A·l:R: 1966 G~j. 0 283. . (6) A.l.R. 1960 Born. 240. . (7l .A.l.R. 1966 Pat. 438. "· I~ c D E •• G II A ll c 1l E .f II ABHINANDAN v. DINESH (Vaidia/ingam, J.) 677 or one coming under s. 169. We have already referred to s. 190, which is the first section in the group of sections headed 'Conditions requisite for Initiation of Proceedings.' Sub-s. (l), of this section, will cover a report sent, under s. 173. The use of the words 'may take cognizance of any offence', in sub-s. (1) of s. 190 in our opinion imports the exercise of a 'judicial discretion', and the Magistrate, who receives the re~rt, Ul)der s. 173, will have to consider the said report and judicially titlce a decision, whether or not to take cognizance of the offence. From this it follows that it is not as if that the Magistrale is bound to accept the opinion of the police that there is a case for placing the accused, on trial. It is open to the Magistrate to take the view that the facts disclosed in the report do not make out an offence for tak:ng cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds, the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report, which is a charge-sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under s. 190(1 )(b) of the Code. This will be the position, when the report undei' s. 173, is a charge-sheet. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under s. 173, that no case is made out for send