This research paper pertains to the procedural requirements of Rule 26 of the Criminal Rules of Practice 2019 (Tamil Nadu) regarding the re-shaping of Judicial Means. The paper examines the following title “Basic procedure under Rule 26 of Criminal Rules of practice, 2019: A Practical analysis of the court’s role in police investigation reports”.
When an investigation report-commonly referred to as a “closure report” or “final report” (stating “no offence is made out” or mistake of facts or offender not found..etc.,) is submitted to a learned Magistrate/trial court, the Judicial officer is not a mere post office, such report can be treated as gospel truth like biblical language and which is swallowed as it is.
The Magistrate’s authority to review, reject or direct further investigation into police close report is not a derivation of statutory frame works, such as the 1898 code, the 1973 code or as a new avatar 2024 of BNSS; rather, it is a foundational Judicial power crystalized through authoritative pronouncement by our Hon’ble Apex Court. These precedents are establish that the Magistrate, as an independent sentinel of Justice, is duty-bound to apply a Judicial mind to the Investigation’s outcome, ensuring that the execution’s conclusion doesn’t unilaterally stifle the pursuit of truth. Thus, this authority functions as a constitutional mandate that transcends the transient shifts in legislation codification.
The law (specifically the code of criminal procedure of 1898 and 1973 , and now new avatar BNSS of 2024) does not explicitly state exactly what a Magistrate or trial court judge must do the movement the police file a “closure report”. Because the law itself doesn’t provide a clear step-by-step instruction for this specific moment, the courts have had to rely on Judicial Precedents.
Now let’s to begin step-by-step Hon’ble Apex Court Precedents in periodic intervals as follows:
According, to 1898-code is concerned our Hon’ble Apex Court unequivocally decided on 17.04.1967 in Criminal Appeal No.218 0f 1966 Viz. Abinandan Jha & ors V. Dinesh Mishra, question was raised i.e.,
“Whether a Magistrate Can direct the police to submit a charge sheet, when the police, after the investigation into a cognizable offence, had submitted a final report under section 173 of code of criminal procedure. There is a conflict of opinion, on this point between the various High Courts in India. The High Court of Madras, Calcutta, Madya Pradesh, Assam and Gujarat taken the view that the Magistrate has no such power, wherass, the patna and Bombay High Court have held a contrary view”
….. 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 sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a ‘final report’? Even in those 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 s. 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 s. 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 s.190(1) (c), notwithstanding the contrary opinion of the police, expressed in the 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 s. 170, being a ‘charge- sheet’, or under S. 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 charge-sheet, 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. Thai 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 s. 170, depending upon the nature of the decision.
….. In our opinion, the Magistrate has no such power. If he has no such power, in law, it also follows that the Magistrate has no power to direct the police to submit a charge-sheet when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.
…. Therefore, while holding that the orders of the Magistrate, in each of these cases, directing the police to file charge-sheets, is Without jurisdiction, we make it clear that it is open to the Magistrate to treat the respective protest petitions, as complaints, and take further proceedings, according to law, and in the light of the views expressed by us, in this judgment.
Thereafter, according to 1973 code is concerned our Hon’ble Apex Court views expressed in Crl.A.No.343 of 1980, H.S. Bains .V. State (UT of Chandigarh) (1980) 4 SCC 631, Subsequently, reiterated in Crl.A.No. 716 of 1982 In Gopal Vijay Verma .V. Bhuneshwar Prasad Singh (1982) 3 SCC 510,
Where in it was held that after receipt of the police report under section 173 the Magistrate has three options: (H.S. Bains case (supra) “6. …. (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.”
Besides, Our Hon’ble Apex Court strength of three judges bench in criminal W.P.No.6607 of 1981 – Bhagwat Singh vs Commissioner Of Police And Anr on 25 April, 1985 Under article 32 of the Constitution of India.
The short question that arises for consideration in this writ petition is 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.
Now, when the report forwarded by the officer-in charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may 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 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 sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence apppears 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-section (3) of Section 156. 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 cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. 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-section (2) of Section 154, sub- section (2) of Section 157 and sub-section (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 Section 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-section (2)(i) of Section 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. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2) (i) of Section 173 if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.
Now, Let’s look at Rule 26, as written in the introduction”
Cognizance of the offence.− (1) Where a police report is filed by the investigating agency in the Court which is empowered to take cognizance of the offence that,−
(a) no offence appears to have been committed; or
(b) the offender is not known; or
(c) no offence appears to have been committed by the person or by any of the persons named in the First Information Report,
The Court shall issue notice, in Judicial Form No.16, to the person on whose complaint, investigation is conducted or to any other aggrieved person deemed necessary by the Court to appear before the Court. Such notice shall be served in the manner prescribed for the service of summons in the Code.
(2) On appearance of the complainant or the aggrieved person, as the case may be, a copy of the report of the Investigating Agency shall be furnished to him free of cost and he shall be permitted to obtain certified copies of the statements and other documents submitted therewith to arrive at such an opinion.
(3) If the complainant/aggrieved person appears, the Court shall, after hearing him,−
(i) accept the report and close the case; or
(ii) order for further investigation; or
(iii) take cognizance of the offence.
(4) If the complainant/aggrieved person either fails to appear or notice could not be served by available means, the Court may proceed to pass orders on the report filed by the police in Judicial Form No.15.
(5) Cases of which a Magistrate has taken cognizance shall, in the absence of a specific order of the Chief Metropolitan Magistrate/Chief Judicial Magistrate to the contrary, be heard by the same Court.
It feels like a cold, automatic process because the court is taking forever to reach a decision i.e., options available above stated sub rule (3)
Whether court may accept the report close the proceedings; or
Whether court may order further investigation; or
Whether court may take cognizance of offence and issue process in manner known to the law.
“In accordance with the principle established in Bhagwat Singh (Supra) … 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.
“The Mandatory Procedural requirement under rule 26(1) of CRP 2019, which necessitates the issuance of notice in Judicial form No.16 upon receipt of a closure report, inadvertently risks reducing the Judiciary to a perfunctory, Mechanical functionary by mandating this Notice prior to the substantive exercise of Judicial discretion, such as ordering further investigation or taking cognizance and issue process under Rule 26(3). The provision creates an unnecessary pending consideration, period that prioritizes administrate compliance over the application of an independent Judicial Mind as highlighted by the principles is Bhagawat singh. The Magistrate is duty bound to critically evaluate the police report rather that step unless this procedural frame work is interpreted to emphasize active. Judicial oversight, the current reliance on mechanical notification process continues to create structural anomalies that undermine the efficacy of legal scrutiny.
While being so, above said circumstances, “Is it legally improper for a court to issue a notice to an informant or Victim after it has already formally accepted a closure report and drop the proceedings?” the answer is unequivocally “No”, and this aspect I would wish to make questions as follows;
Question No.1:
“Whether magistrate, having accepted a police closure report and dropped the proceedings, becomes, he has no jurisdiction to take cognizance on the basis of the private complaint U/s. 200 Cr.P.C (223 BNSS) and that therefore, the order of taking cognizance is bad in law, which is liable to set aside?
Above said question answered accordingly by Hon’ble Apex Court strength of three judges in Kishore Kumar Gyanchandani Vs. G.D. Mehrotra And Another reported in AIR 2002 SC 483 relevant portion is extracted hereunder:
Para 4:…“When the matter was listed before a two-Judge Bench of this Court, thinking that there is some divergence of views, it referred the matter to a three-Judge Bench. On examining the different provisions of the Code of Criminal Procedure as well as the decisions of this Court relevant to the question, we see no divergence in the matter. It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence. This question has been raised and answered by this Court in the case of Gopal Vijay Verma V. Bhuneswar Prasad Sinha and Ors., whereunder the view of the Patna High Court to the contrary has been reversed. The Court in no uncertain terms in the aforesaid case has indicated that the acceptance of final form does not debar the Magistrate from taking cognizance based on the materials produced in a complaint proceeding.”
And subsequently our Hon’ble Madurai Bench of Madras High Court in Crl.O.P.No.(MD)No.7740 of 2019 decided 29.04.2022 held… the above, the position of law is well settled that as per the Code of Criminal Procedure, the defacto complainant is entitled to file a private complaint even if the case is lodged with the police is referred or closed. The right of the defacto complainant to proceed with his complaint, even after the acceptance of the negative report of the police by the Judicial Magistrate is very much available.
Question No.2:
“Whether judicial acceptance of a final report (closure report) creates a bar against further investigation by the police under Section 173(8) CrPC?” and which is amounts to review or recall or quashed their own order?
Above said question was comprehensively examined and accordingly to answered by Hon’ble Apex Court in Crl.A.No.001300-00100302 of 2023 decided 28.04.2023.
Held: Thus, a conspectus of the aforesaid decisions of this Court rendered in cases where final reports (closure reports) had already been submitted and accepted makes the position of law very clear that even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted. It is also evident, that prior to carrying out a further investigation under Section 173(8) of the CrPC, it is not necessary for the Magistrate to review or recall the order accepting the final report.
My considered an opinion if any possibility to re-shaping of Rule No.26 of CRP 2019 in future, Hereinafter, I must recommended to reciting as follows;
- Cognizance of the offence.− (1) Where a police report is filed by the investigating agency in the Court which is empowered to take cognizance of the offence that,−
(a) No offence appears to have been committed; or
(b) The offender is not known; or
(c) No offence appears to have been committed by the person or by any of the persons named in the First Information Report,
(2) The learned magistrate/ Trial Court has three options:
(i) May accept the report and close the case; or (it’s caused prejudice to the informant or victim because of loss of “Right to be Heard) Note: Even court can issued notice to an informant or victim after it has already formally accepted the closure report and drop the proceedings.
(ii) Disagree the report, take cognizance of the offence and issue process to concerned persons. (no prejudice to informant or victim)
(iii) Court may unsatisfied related to the investigation if any, order further investigation in legally admissible manner. (to ensure fair investigation)
Now, learned magistrate /court while adopting above said first option (May accept the report and close the case;) or in other words learned magistrate /court not inclined to take cognizance and issue process, at this movement strictly adhered to follow Bagawat singh (Supra) principles for ensure informant/ Victim interest while considering said report.
(Re-shaped by me)
(3) On appearance of the complainant or the aggrieved person, as the case may be, a copy of the report of the Investigating Agency shall be furnished to him free of cost and he shall be permitted to obtain certified copies of the statements and other documents submitted therewith to arrive at such an opinion.
(4) If the complainant/aggrieved person either fails to appear or notice could not be served by available means, the Court may proceed to pass orders on the report filed by the police in Judicial Form No.15.
(5) Cases of which a Magistrate has taken cognizance shall, in the absence of a specific order of the Chief Metropolitan Magistrate/Chief Judicial Magistrate to the contrary, be heard by the same Court.
My views expressed here are strictly personal.
This research paper penned by me purely in the spirit of academic interest and nothing more.
Author: Rajavel @ Rajubhai.B.A.,LLB.,
Practicing lawyer at Tirupattur District.
