A succinct analysis of the famous judgment of Hon'ble Justice Mr. G P Mittal in the Constable Tomar Case

Judgement in the case of Shantanu Kumar and Ors. versus UOI and Ors bearing case number W.P. (CRL) 15/2013 wherein implication of 8 young boys for the death of Constable Sri Tomar was challenged by the way of a criminal writ was pronounced today (was reserved on 20.03.2013).

The Hon’ble court in its wisdom opinionated that asking for quashing of FIR at this stage is premature (probably because charge sheet is yet to be filed), but the good news for the eight boys who were implicated with a charge as severe as murder of Constable Tomar, is that it has been confirmed that they won’t be proceeded against u/s 302 of IPC and if at all the case proceeds against them beyond the stage of framing of charge, it would be for violation of Section 144 Order and other associated offences.

The Hon’ble Court has also clarified that since Section 144 imposition during the famous December 2012 protest around India Gate is already under challenge in Delhi High Court, the Hon’ble Court opted not to venture in that direction and left it for the respective bench to decide.

Though in our considered view, the Hon’ble High Court missed an opportunity to fix the Delhi Police for its grave wrongs and failures in ensuring the uninterrupted enjoyment of Constitutional Rights by the citizens of Delhi, but for the eight boys it surely comes as a great respite because of the confirmation of dropping of Section 302.

Since the Hon’ble High Court did not touch the question of inefficiency of the Delhi Police and the exposed conspiracy to kill the movement by arresting these eight youths for the charge of murder of Constable Tomar who was not only not murdered by these eight young men, he was murdered by no one and died his natural death because of Cardiac Arrest, we are contemplating on further legal action including lodging of an FIR against the Delhi Police Commissioner for his attempt to malign the eight boys with absolutely baseless and now dropped charge of murdering Constable Tomar.

Respose to Mr. Sanjeev Sabhlok's criticism of AAP being socialist

My dear friend Sanjeev Sabhlok for long has been criticizing Arvind Kejriwal for long without knowing him and this blog he published to tell the entire world that Arvind kejriwal is a disaster but he published only his emails and not the entire conversation. I resisted for long and kept telling Sanjeev the truth but he refused to listen and understand. For me no one, including me myself, is ABOVE THE NATION and hence FOR THE FIRST TIME I had to state the truth for making people understand the truth behind such views of Sanjeev Sabhlok. Please read the entire conversation to understand the naked truth. Of course, Sanjeev is a brilliant person and his brilliance so far has DONE NOTHING FOR MOTHER INDIA.

Sanjeev published Correspondences which he had with Mr Sushil Jain, a friend and great promoter of spirituality based wisdom, but he published only his emails and not what Mr Jain wrote to him and thus Sanjeev brought only half-truths out.

Sanjeev published his emails to Mr Jain at http://nblo.gs/KHsu4.

What Mr Jain wrote to him is reproduced below and what conversation took place among Sanjeev myself and other common friends on Facebook is reproduced thereafter.

Somnath Bharti:

Sanjeev, I just received a copy of your interaction with that someone Mr. Sushil Jain which you should have published along with your emails for doing justice to the readers.Thanks Sanjeev,

Appreciate your response and intention for doing good work for the nation.. I get your mails on Vedic wisdom for a long time now.

But I am really surprised to know that there is no common ground between what you are trying to do and what others do... Basic spiritual wisdom says that we all have the same intention, competence may be different. I also happen to know Arvind Kejriwal from 2000, the year he started working as Parivartan.... I never felt the way you feel about him. He certainly has a focus and proceeds with it with clarity and conviction. He has sacrificed so much on the way..but built a credible standing for himself...

If we keep treating/doubting each other like this then the how you going to bring a change... What I see everywhere is that everyone wants to work for the nation but in their own way, in the name of their organisation. As soon one starts an organization then one needs funds and start asking for funds... It is waste of energy and resources...Why not work together.. if the focus is Nation building, serving others... Let us use the wisdom...

My primary work is to promote Wisdom Anchored Value Education (knowing self and wisdom of life).. in colleges/universities... It is very important to understand and experience self and wisdom of life to see the larger picture and role in this wonderful world... I wish to see everyone working together, in joy and happiness, rising above the conditioning/egos...

Regards /best wishes

Sushil Jain

Sanjeev Sabhlok

Somnath, I do not agree with Mr Jain and have offered to explain to him over phone if he is interested. This is not about "everyone wants to work for the nation but in their own way, in the name of their organisation". That has NEVER been the way I work. Organisations are irrelevant. Only ideas matter. This is all about the right ideas for India. Arvind has consistently brought socialist ideas to India, and has NEVER taken any interest in learning about good governance frameworks. I'm just making clear that point again - which I've already made in the past. Nothing new in what I've been saying for 15 years.

Somnath Bharti

It is high time that we all come out of our cocoons and keep our himalayan sized egos aside and get along with Arvind Kejriwal- the only visible and credible force against the established political parties who have done nothing but raped MOTHER INDIA day in and day out and because THEY HAVE CBI and POLICE in their hand they go unpunished. You have time and again said that Arvind is a good person then everything else are a mere formality.

Sanjeev Sabhlok

Somnath, I am firmly supporting Narendra Modi in 2013/14 and will thoroughly oppose socialist AAP in every way. Just being a good person has never been my criteria, and I have repeated 1000 times. It is the right IDEAS I look for.

Somnath Bharti

So you have forgiven Modi Ji for Gujarat riots which you have so severely criticized in the past.

Apoorv Bhat

Sanjeev Sabhlok: Supporting Modi? Thats a bummer.. Do not allow Baba Ramdev to influence you so much.. Modi is not a party, BJP is the party.. You have called them traitors and super corrupt in the past.

Sanjeev Sabhlok

Please keep in touch with my views on my blog. I have commented on this recently. More importantly, Modi wants limited government. And Modi has capacity to deliver.

Somnath Bharti

I thought that you are like sea-water, whenever and wherever you taste, it will always be salty....as we say about Lord Buddha......but no lust for power has made you compromise your values and unfortunately you hv taken whole of FTI for a ride....I find you dictatorial than anyone else. Why don't you ask Shantanu to publish his experiences of meeting with Arvind?......why dont you publish all internal messages exchanged between FTI members on your dictatorial approaches on ideas......many FTI members have confided in me that everything is driven by YOUR IDEAs in FTI/SKC.......still there is time, IF your priority is MOTHER INDIA then show your leadership, come back to India, be with the people, know their problems, be in the dirt and get dirtied, politics happen on the ground and not on the blog or FB. Try to remain hungry for a day to understand how does crores of Indian feel going empty stomach countless nights......for god sake, don't preach the hungry about nutritious food, GIVE THEM FOOD NOW........there is a time for everything?....we all know that without good policies India cant be taken out of comma it has been put into BY CONGRESS/BJP and other political goons but let the right time come.

Apoorv Bhat

You dont mind a Modi who claims to be wanting 'Limited government'. Has he done anything to reduce the size of government in Guj? Have you ignored the way he favours the Ambani's and Adani's? Isnt crony capitalism the enemy of capitalism?

You dont mind supporting modi(all whose claims are doubtful and has no clear blueprint), but still have serious problems with AK who wished to reduce the Size of governments too.. Quite Radically in fact, if i may add.. Courtesy Swaraj..

BTW AK's blueprint (Swaraj) is out in the open...Open for public debate and discussion. Modi's solution to all of India's problems is, well NaMo himself.

Harsh Vora

Somnath Bharti - Kejriwal is a very good man, no doubt. But him coming to power will bring about the same results India has had since independence. Let us make that clear: We do NOT want a large bureaucracy which will ultimately only create inefficiency and poverty. Socialism, of which Kejriwal is a big advocate, will take us back to the 70s era. Thus, it makes much more sense to collaborate with organisations that largely support capitalism, for e.g. Modi - in the interest of a prosperous India.

Somnath Bharti

Harsh, how much time you have spent with him? The party was born on Nov 26, 2012. Don't be impulsive, wait and watch if you can't decide now. People who have opposed Arvind have opposed for laughable reasons like he didnt respond to their emails or phone calls etc. Come on, task is gigantic and it needs gigantic and on the ground efforts. WE ALL HAVE TO UNITE. This is THE MAHABHARATA of 21st century and PANDAVAs won then and will AGAIN. Neither congress nor BJP have done THE MUCH NEEDED POLICE AND JUDICIAL REFORMS they want them to be tools in their hands to keep controlling people and administration. AAP's objectives is very clear to actualize for crores of Indians true meaning of DEMOCRACY.

Apoorv Bhat

Sanjeev Sabhlok: I am genuinely concerned with the possibility that AAP may adopt leftist economic policies.. But AK's swaraj is mindblowing and according to Shailesh Indian economy will "Sky Rocket".

But if the alternative to a possibly leftist AAP is Sanjeev's FTI. Then i am happy i chose to stick with my old friends at IAC (now AAP).. They atleast dont have double standards like you do..

Harsh Vora: please dont go by Sanjeev's reading and interpretation of AK's policies.. Read 'SWARAJ' yourself.. It may surprise you but he has criticized all of UPA's policies like NREGA, the concept of BPL etc etc.. He has also written against the concept of Planning commision.. Read Swaraj yourself..

The above conversation is going to be useful to anybody who has been accusing Arvind Kejriwal and AAM AADMI PARTY for being socialist and if time permits I will independently published an article to further clarify the socialist tag AAP is oftenly getting tagged with.

Bhagat Singh, Raj Guru and Sukhdev- What to do with their legacy?

My heart is filled with joy by just imagining that fighters of the kind of Bhagat Singh and his friends ever existed in India. Legendary Bhagat Singh and his friends were much ahead of their time and any such thing gets their due only when their time comes. Power brokers of preindependence India never understood the meaning of patriotism or love for the motherland something which was deeply rooted in beloved Bhagat Singh and his friends. Situation today is no better. Today's power sharks are probably more dangerous than ever before and to counter them we must seek inspiration and blessings of Bhagat Singh and his friends. 

I'm scheduled to speak on the occasion of martyr day of Bhagat Singh, Raj Guru and Sukhdev and I have been observing my own within from the time I received the invitation. What words can describe the lives of these giants. Such are the occasions when you feel that how impotent words can be that they do not provide you the vehicle to bring out your deeper being to do Justice with the task accorded.

The dream which the gentleman dreamt of for India while fighting for her freedom is as unfulfilled as it was then. 

The question which we all need to answer together is that what sort of activities we need to undertake to advance the agenda for which they sacrificed their lives with no remorse whatsoever. It is said that the person who executed them was in tears seeing the joy, of being given an opportunity to sacrifice their lives for the motherland and the pain of leaving the gigantic task of freedom unfulfilled, in their eyes.

The politics and politicians of today have brought the nation to such a shame that I have no doubt that Bhagat Singh and his friends would have revolted in no less a manner than they did against the British.

With these thoughts I invite you to share with me your feelings on martyrdom of Bhagat Singh and his friends.

Anna stir: IITians meet Advani

Advani meets the IIT students who were protesting outside his house in New Delhi and assures them of his party's support for a strong Lokpal.

IITians meet Advani, seek BJP's support for Anna's Jan Lokpal

Alumni, faculty and students of IIT express support for Anna Hazare in New Delhi

A group of students from Indian Institute of Technology (IIT), Delhi held a protest march outside the residence of senior BJP leader L.K. Advani seeking party's support for Anna Hazare's Jan Lokpal Bill.

Marching with placards, the students demanded that Hazare's Jan Lokpal Bill be made into a law.

Advani met the students and assured them of his party's support for a strong Lokpal.

"There is no criminal law which exempts any one. even the Prevention of Corruption Act does not exempt the prime minister. On the Lokpal, we are of the view that the prime minister should be under the purview of the Lokpal," Advani told the students.

The IITians' protests come a day after BJP top brass met Team Anna over the party's misgivings about certain provisions of the Jan Lokpal. The BJP on Thursday said that it was ready to support the Jan Lokpal Bill to the extent it does not dilute Parliament and the Constitution.

IITians plan march to Rahul home, cops nip it in the bud

News item in The Times of India dated 28.08.2011 reporting the police unlawful detention of IITians protesting in favor of a strong anti-graft law, the movement was led by Mr. Somnath Bharti (Advocate, Supreme Court and Partner, Bharti & Associates) capacitated as Secretary, IIT Delhi Alumni Association.

Raj Shekhar, TNN Aug 28, 2011, 02.41am IST

Tags: Lokpal Bill, IIT-Delhi

NEW DELHI: Anna's war against corruption formally reached the gates of IIT-Delhi on Saturday. A 1,000-strong crowd comprising present and former students of the institute gathered at the main gate in the evening, carrying the tricolour and shouting slogans. Their plan was to march towards Lutyens' Delhi and protest outside the residence of AICC general secretary Rahul Gandhi at 12, Tughlaq Road; but cops did not allow them to even begin the march. Dejected, the protesters tried to force their way out, after which many of them were detained. Even though students alleged that about 60 of them were picked up, cops said only 28 were detained and released later.Somnath Bharti, a past pupil and the coordinator of the protest, was the first to be detained. "We were roughed up and cops did not explain why we could not protest peacefully. They just told us that they had orders from their superiors. I want to know why they stopped us," said Bharti.The IITians tried their best to dodge the police by trying to sneak out in smaller groups and board the Metro to reach their destination. But the police soon got wind of the scheme and foiled their bid. Akshay, a 4 th-year student, said the police action was "unfair". "When everybody else is being allowed to protest, the administration is targeting us and stopping us from expressing ourselves," he said.Cops, on the other hand, claimed they had no prior information about the protest, nor did the students ever seek any permission to do so. "They were asked to take permission, specifying the area of protest; but a section of them refused to do so, which is why they had to be detained," said a senior officer.Elsewhere, a plan to protest outside the Congress office at 24, Akbar Road, was nipped in the bud when cops dispersed about 100 protesters, who had gathered there in the afternoon.Earlier in the day, DMRC, following a Delhi Police directive, shut down Patel Chowk, Central Secretariat Udyog Bhavan stations around 3pm. These were re-opened for public at 7pm. Earlier, four metro stations, namely Udyog Bhawan, Race Course, Jor Bagh on Gurgaon Line and Khan Market on Badarpur corridor, were closed as a precautionary measure following flash protests near residences of the leading political leaders.

38 IITians detained for protesting

News item in Indian Express reporting the police unlawful detention of IITians protesting in favor of a strong anti-graft law, the movement was led by Mr. Somnath Bharti (Advocate, Supreme Court and Partner, Bharti & Associates) capacitated as Secretary, IIT Delhi Alumni Association.

Naveed Iqbal Posted online: Sun Aug 28 2011, 03:48 hrs

New Delhi : Thirty-eight students of Indian Institute of Technology, Delhi (IIT-D) were detained for holding protests in support of Anna Hazare on Saturday.

More than 500 students and alumni of IIT-D shouting “Desh ka yuwa yahan hai, Rahul Gandhi kahan hai?” gathered at campus gate at 4 pm to march towards Rahul Gandhi’s house on Tughlaq Road.

Even though police detained some students, citing law and order problems, protests continued till late evening. The protesters were not allowed to proceed out of the campus.

Security, meanwhile, was increased at Tughlaq Road. The three Metro stations in the vicinity of Tughlaq Road — Patel Chowk, Udyog Bhawan and Central Secretariat — were also closed for three hours.

“We had permission from Rahul Gandhi’s office to meet him, even then some students were detained,” said a student of IIT who was among the protesters.

Secretary of IIT-D Alumni Association, Somnath Bharti, alleged that the detained students were manhandled by the police and forced into police vans.

Anna Hazare's message to the Nation for 15th and 16th August

Dear Fellow Countrymen,

Though in my view Anna Hazare's approach is not a long term solution and apparently antithesis to the constitutional framework the founders gave to our nation India and even Anna or Arvind Kejriwal would not be very happy to resort to this mode of protest or bringing reforms but the way corruption and corrupt are getting stronger and stronger day by day and their shamelessness has crossed all the thresholds of morality, I am all for the Anna Hazare's movement.

Anna Hazare has given the following message to the citizens of this country to wake them up from deep slumber they have been to maneuvered to be pushed into all these years.

Anna Hazare's message to the Nation for 15th and 16th August

My Dear Fellow Indians, A decisive battle against corruption has begun. We are not against any political party. We want systemic reforms. We want a corruption-free India. After all, what are the people asking for – a strong anti-corruption law which provides for honest and time-bound investigations and trials that result in jail for the guilty, confiscation of embezzled money and their dismissal from service? Are we asking too much? For two months, we were talking to the government. Government seems unwilling to take even small steps against corruption. Government appears insincere. We have met all prominent political leaders. We have tried everything. What do we do now? When I announced my indefinite fast from 16th August, the government threatened that they would crush us the way they crushed Baba Ramdev's peaceful agitation. Friends, this is a historic opportunity. We can't afford to lose it. We are determined to fight to the end. If they arrest us, we will peacefully offer ourselves. If they use batons and bullets, we will happily lay down our lives but will not leave the place. We will not retaliate. It will be a completely non-violent movement. “If you fast on 16th August, you will be crushed” – this is what they are saying. “We will impose section 144 on Jantar Mantar” – this is what they are thinking. But I say that if every citizen in this country takes off from his work from 16th August, comes on the streets in front of his house, at the crossing, with a tricolor in his hands shouting “Bharat Mata ki Jai” and raising slogans against corruption, they will fall short of batons and bullets. The government may arrest one Anna Hazare but how will they arrest 120 crore Anna Hazares? They may impose section 144 at one Jantar Mantar but will they impose section 144 on the whole country? And let me tell you – the police and army is with us. At traffic signals, policemen stop us, express their support and wish us well; at Raj Ghat, the policemen donated generously for the movement! So, will you take off from your work from 16 August? Will you descend on the streets with me? This year, the country will wait for 16th rather than 15th August. In solidarity, thanks Anna Hazare (Please make copies of this pamphlet and distribute it in large nos.) “WHY GOVERNMENT'S LOKPAL IS DANGEROUS???” Government's Lokpal is targeted against those who raise their voice against corruption rather than to punish the corrupt! The government's Lokpal bill covers only about 0.5% of public servants, yet it brings under its ambit virtually every citizen's group and organization, registered or unregistered, meant to serve the social sector. This raises a pertinent question -- whom is the Lokpal really targeted at? There are more than 1.25 crore central and state government employees. Out of this merely 65,000 Group A Central Government employees would be covered in the government bill leaving out all the lower officers and staff. This effectively means that there is no remedy against corruption that a common person faces daily in police, roads, industry, licensing, transport, roadways, municipality, rations, health services, education, pension, provident funds, Panchayat, forest department, irrigation department, etc. On the other hand, Lokpal would have jurisdiction over ALL NGOs, trusts, societies like Resident Welfare Associations(RWAs), big or small, whether registered or unregistered, whether they receive government funding or not, up to the village level! For instance, consider a group of citizens that unearths corruption of the Sarpanch and Block Development officer (BDO) in a village. The government's Lokpal can't take any action against the Sarpanch or BDO but it CAN lock up the group of HONEST active CITIZENS. Each and every association, like Resident Welfare Associations, Market Associations, even your neighborhood committees that organize festivals like Durga Puja, Ramlila, etc. would be under the purview of Lokpal. While there is no disagreement that the rot of corruption is also afflicting many societies, associations and NGOs, there already exists a plethora of laws like the Trust Act, Societies Act, FCRA, etc. to monitor them. Lokpal was originally intended for checking corruption in public servants. Regardless, if it is being extended to all associations of civil society, then why shouldn't it also cover all companies, businesses, political parties, and media houses? Government's Lokpal Provides Greater Protection to Corrupt! Provisions in the government's Lokpal Bill heavily favour corrupt public servants. Under this bill, a public servant accused of corruption is allowed to turn around and file a lawsuit against the complainant accusing him of filing a frivolous complaint. The government will provide a free advocate to the accused to help prove the citizen was wrong, while the citizen has to fend for himself. If the complaint proves to be frivolous, the minimum sentence FOR THE CITIZEN is TWO YEARS. But if the corruption charges are proved, the minimum sentence for the public servant is just SIX MONTHS! Will then any citizen dare raise a voice against corruption?

With warm wishes

Somnath Bharti

Again someone treaded his/her soul!!!

Mumbai has been attacked again and then comes the same rotten promises of the politicians. How serious today's government is towards our safety and security of the nation can well be gauged from the fact that for no rhyme or reason they excluded CBI from the reach of RTI. I bet you watch these horrible pictures of our fellow brethren soaked in blood lying on the floor helpless. It cost us with 21 lives and hundreds injured. And 21 lives are not the only casualties. 21 families basically died with these 21 fellow citizens. 

Morning news items were pretty in contrast with each other. In Delhi police was busy catching and prosecuting women and their pimps for treading their bodies and in Mumbai someone who treaded his/her souls and assisted someone across or within our border actualize his/her ghastly plan of killing innocent and completely helpless fellow citizens. 

Everybody is talking of Pakistan and why USA is not doing anything against Pak. Probably in response and to restore the shaking faith back in USA, Obama Administration has stopped the delivery of 800 million dollars scheduled aid. But who is the biggest beneficiary of such terrorist activities??? Probe your within, analyze the facts/news and the answer would be right there before.

Someone right within our country, someone high up has treaded his/her soul to make such attacks possible and rather than accusing Pakistan, our government and all of us need to locate these money-thirsty, nay blood-thirsty monsters. We need to fix our own country. USA had one 9/11 and no such incident after that. 

For someone, terrorism is hard core business for many purposes, two of which I can share here.

1. Keeping the countrymen deep scared, instilling fear psychosis in their being so that their questioning tendencies go away. So that any uprising against corruption, against malpractices of the powerful stop and does not rise again.
2. With countries becoming nuclear enabled and empowered, the possibility of war has terribly decreased. Now all these countries know that one mistake by one country and the chain would start wiping out the total habitation off the earth. Hence no old time war would happen wherein they used small weapons to attack the other. Available information suggest that the nuclear arsenal, in possession with various countries, is good enough to wipe out the earth 15-16 times. I wonder why do we need so much nuclear arsenals, after all not everybody is Jesus Christ that a resurrection will happen and that too 15-16 times which even Jesus would have failed. In absence of such wars which were great markets of small weapons; these weapons now get used in the name of terrorism. I am sure that the persons involved in such businesses will realize someday their misdeeds. I have read that the king who ordered crucifixion of Jesus developed one life-time disease of washing his hands believing them to be stained with the blood of Jesus. 

People behind such attacks are mentally and psychologically too ill. World leaders, if they wish to save the humanity from further proceeding towards the OBVIOUS destruction, need to come out of their tiny concepts of NATIONS and start thinking of the earth as ONE PLACE. I don't see any other way out of such insane acts. If you see, then please share your thoughts. I know that this wish of mine is too much to ask for and with such wishes I do carry the risk of getting termed crazy but I better be crazy than hopeless!!!

If you are faced with or wish to initiate against someone a criminal prosecution

More often than not, life brings to you situations where you felt that someone should be criminally charged for one or the other action but don't know what to do or how to start with. Then there are situations which life brings to you in though unfortunately when you have been charged rightly or wrongly with some criminal offence. In both the situations, the info given in the following paras will come to your aid.

Hon'ble Supreme Court dealt the above in great detail in

H.S. Bains, Director, Small Savings-cum-Deputy Secretary Finance, Punjab v. State (Union Territory of Chandigarh) 1980 (4) SCC 631 and stated thus:

It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the Statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). Oft receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the Statements upon oath of the complainant and the witnesses present under Section 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things: (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.

Again in Abhinandan Jha and Ors. v. Dinesh Mishra, (supra) the question arose whether a Magistrate to whom a report under Section 173(1) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the Police. this Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet. It was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3). If ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police the Court observed that the Magistrate could take cognizance under Section 190(1)(c)'. We do not have any doubt that the reference to 'Section 190(1)(c)' was a mistake for 'Section 190(1)(b)'. That appears to be obvious to us. But Shri Kapil Sibal urged that the reference was indeed to Section 190(1)(c) since at that time Section 190(1)(c) included the words 'or suspicion' and the Court had apparently taken the view that the Magistrate could take cognizance of the offence not under Section 190(1)(b) as if on a police report but under Section 190(1)(c) as if 'on suspicion'. We do not agree with this submission. Section 190(1)(c) was never intended to apply to cases where there was a police report under Section 173(1). We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the Magistrate and the Police arrived at different conclusions from the facts. The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant States the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307 Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under Section 324 Indian Penal Code only and he may take cognizance of an offence under Section 324 instead of Section 307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the Statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. It could not be said in such a case that he was taking cognizance on suspicion.

In case you wish to clarify any of your doubts in connection with the above, let me know.