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Bandi Kotayya Vs. State (S.H.O. Nandigama) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 825 of 1964 and Criminal Revn. Petn. No. 734 of 1964
Judge
Reported inAIR1966AP377; 1966CriLJ1377
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 156, 173, 173(1), 190(1) and 207A
AppellantBandi Kotayya
RespondentState (S.H.O. Nandigama) and ors.
Appellant AdvocateP. Chennakesava Reddi, Adv.
Respondent AdvocatePublic Prosecutor and ;D. Sivaramakrishna, Adv.
DispositionPetition dismissed
Excerpt:
criminal - police report - sections 190 (1) (b), 173, 207-a and 156 of criminal procedure code, 1898 - sub-inspector of police filed before magistrate preliminary charge sheet against eighteen persons - magistrate waited till completion of final enquiry of police - police satisfied that three persons had been falsely implicated - police filed final charge sheet leaving three persons - magistrate considered only final charge sheet and released three persons - whether magistrate acted illegally in considering final charge sheet only - held, procedure followed by magistrate not illegal. - - 3. the police continued their investigation, examined fresh witnesses and held two identification parades as a result of this investigation, the police were apparently satisfied that accused nos. 6......basi reddy, j.1. in this criminal revision case, which has been referred to a division bench by our learned brother jaganmohan reddy. j. as ' if involves a question of law which is of general application', the question that falls for determination is whether in n preliminary register case, that is to say, in a case triable exclusively by a court of session, the police can first file what is called a 'preliminary charge sheet' before a magistrate, who is to hold an inquiry under section 207a, cr. p. c., then continue the investigation and eventually file a 'final charge-sheet', deleting the names of some of the persons who had been included in the list of accused in the preliminary charge-sheet: and when such a final charge-sheet is filed, whether the magistrate can accept it as a police.....
Judgment:

Basi Reddy, J.

1. In this Criminal Revision case, which has been referred to a Division Bench by our learned brother Jaganmohan Reddy. J. as ' if involves a question of law which is of general application', the question that falls for determination is whether in n preliminary Register case, that is to say, in a case triable exclusively by a Court of Session, the police can first file what is called a 'preliminary charge sheet' before a Magistrate, who is to hold an inquiry under Section 207A, Cr. P. C., then continue the investigation and eventually file a 'final charge-sheet', deleting the names of some of the persons who had been included in the list of accused in the preliminary charge-sheet: and when such a final charge-sheet is filed, whether the Magistrate can accept it as a police report under Section 173(1). Criminal Procedure Code and proceed with the preliminary inquiry only against the persons named in the final charge-sheel. In other words, In such a case, does not Magistrate take cognizance of the offence upon the preliminary charge-sheet or upon the final charge-sheet

(2A) In the present case the above question arises in the following way. On 18-5-1964 the Sub-Inspector of Police, Nandigama, filed before the Judicial Second Class Magistrate, Nandi-gama, what was described as a preliminary charge-sheet in Crime No. 40 of 1964 in respect of offences under Sections 147. 148, 323, 324, 325, 307, and 302 I. P C., against 18 persons named therein who were shown as accused Nos. 1 to 18. The last paragraph of that preliminary charge-shed reads thus :

' Investigation is not yet completed. Final charge-sheet with complete list of P. Ws will be submitted after completing the investigation

2. The learned Magistrate took the case on file, numbered it as P R. C. No. 1 of 1964, remanded to custody such of the accused (including accused No. 18) as had been arrested, and issued non-bailable warranls against the other accused (including Accused Nos. 16 and 17) He, however, made endorsements on the docket of the case-file adjourning the inquiry from time to time, in order to enable the police to complete their invesligalion and file a final charge-sheet.

3. The police continued their investigation, examined fresh witnesses and held two identification parades As a result of this investigation, the police were apparently satisfied that Accused Nos. 16, 17 and 18 had been falsely implicated. Ultimatelv after completing the investigation, the police filed a final charge-sheet on 24-8-1964 againsl Accused Nos. 1 to 15 only, omitting Accused Nos. 16, 17 and 18 from the list of the accused. Thereupon the learned Magistrate released Accused 18 from custody, withdrew the non-bailable warrants which had been issued For the arrest of Accused Nos 16 and 17 and fixed a date for the inquiry. Thereupon one Bandi Kotayya, who had been cited in the charge-sheet as a prosecution witness, filed a petition before the Judicial Second Class Magistrate (Cri. M. P. 280/64). In P. R. C. No. 1 of 1964) contend ing that the police had acted illegally in delet-ing the names of Accused Nos. 16 to 18 in the final charge-sheet; that the Magistrate had also acted illegally in deciding not to proceed against those three accused after having taken cognizance of the case against all the 18 accused named in the preliminary charge-sheet; andthat the only course open to the Magistrate was to have discharged those three accused under Section 207-A (6), Criminal Procedure Code, if he was of opinion that upon the material placed before him, there were no grounds for com-miling them for trial. The learned Magistrate dismissed the petition, holding that the Court had not taken cognizance of the case at all on 18-5-1964 when the preliminary charge-sheet was filed but that it had taken cognizance of it only on 24-8-19(54 when the final charge-sheet was filed, and so the preliminary enquiry could lawfully be proceeded with in respect of the amised impleaded in the final charge-sheet. The present revision petition has been preferred by Bandi Kotayya, challenging the correctness of the order of the learned Magistrate.

4. Before us, the following contentions were raised on behalf of the petitioner :

(1) The Magistrate had taken cognizance of the offence on the preliminary charge-sheet. Once a Magistrate takes cognizance of an offence, the police go out of the picture; no further investigation by them is permissible. The Magistrate alone can discharge the accused under Section 207-A (6) Criminal Procedure Code, or the Public Prosecutor may, with the consent of the Court, withdraw the prosecution of any of the accused. It is not open to the police to continue the investigation and file a final charge-sheet, deleting the names of one or more of the accused mentioned in the preliminary charge-sheet. In the present case the Magistrate had acted illegally in accepting the final charge-sheet and deciding not to hold an inquiry against Accused Nos. 16 to 18.

(2) In the instant ease the preliminary charge-sheet was in fact the police report contemplated by Section 173(1), Criminal Procedure Code inasmuch as it had been filed by the police after completing the investigation. After forwarding such a report to the concerned Magistrate, the police had no power to continue the investigation and file another charge-sheet calling it a final charge-sheet, striking off the names of three of the accused included in the preliminary charge-sheet.

5. So that, the two questions that fall for decision are first, whether in a Preliminary Register Case the Magistrate takes cognizance of the offence upon the filing of a preliminary charge-sheet, or whether he takes cognizance only after the filing of the final charge-sheet; and secondly, in the present case, whether in point of fact, the preliminary charge sheet was a police report as envisaged by Section 173(1), Criminal Procedure Code and whether the Magistrate had taken cognizance on it.

6. What then is the meaning of the expression 'taking cognizance'? This expression has not been defined in the Criminal Procedure Code and till the Supreme Court explained it in 1951, there was a good deal of uncertainly as to its precise import. However, in R. R. Chari v. State of U. P., : 1951CriLJ775 , the Supreme Court laid down a simple test and that has to be applied in each case todetermine whether or not cognizance has been taken. In that case their Lordships approved and adopled the test formulated by Das Gupta, J. of the Calcutta High Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar, : AIR1950Cal437 . which was as follows :

'What is taking cognizance has nut been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceedings, in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200, and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the Investigation, he cannot be said to have taken cognizance of the offence '.

7. The above observations were with reference to taking cognizance of an offence upon receiving a complaint of facts which constitute such an offence as contemplated by Clause (a) of Sub-section (1) of Section 190, Criminal Procedure Code but the same principle would apply to taking cognizance of an offence upon a report in writing of facts which constitute such an offence made by any police officer, that is to say, upon a police report as contemplated by Clause (b) of Sub-section (1) of Section 190 Criminal Procedure Code, and in determining the question raised in the instant case, the provisions of Section 207-A, Criminal Procedure Code have to he fully borne in mind. Section 207-(A) (1), Criminal Procedure Code lays down :

' When, in any proceeding instituted on a police report, the Magistrate receives the report forwarded under Section 173, he shall for the purpose of holding an inquiry under this section, fix a date which shall be a date not later than fourteen days from the date of the receipt of the reporl unless the Magistrate, for reasons to be recorded, fixes any later date.'

The sub-sections that follow provide for issuing process to compel the attendance of any witness or the production of any document or thing; for taking the evidence of eye-witnesses produced by the proseculion and the evidence of such other witnesses as the Magistrate deems fit in the interests of justice; and upon a consideration of the evidence of the witnesses and the documents referred to in Section 173, for discharging the accused or framing a charge and committing him for trial before the Court of Session.

8. It will be observed that Sub-section (1) of Section 207-A, Criminal Procedure Code postu-lates the receipt by the Magistrate of a police-report forwarded under Section 173, Criminal Procedure Code as a pre-requisite for commencing the inquiry againsl the accused and taking the first step in that direction, namely, fixing a date for the purpose of holding the inquiry. Therefore, unless and until a police reporl as contemplated by Section 173 is received by the concerned Magistrate, he cannot proceed with the inquiry, and. applying the test formulaled by Das Gupta, J., the Magistrate cannot obviously apply his mind to the contents of the police report for the purpose of proceeding in a particular way, as indicated in the subsequent provisions of Section 207-A, Criminal Procedure Code. It would follow as a necessary consequence that until the Magistrate has before him a police report as envisaged by Section 173 Criminal Procedure Code, he cannot take cognizance of the offence in respect of which he is to hold an inquiry. This would be the true position notwithstanding that, as in the instant case, a preliminary charge-sheet had been presented to him earlier and he had taken the case on file and given it a number for statistical purposes; remanded the accused produced before him, and issued non-bailable war-ranis in respect of the absconding accused. All these steps should be regarded as having been taken not upon taking cognizance of the offence with a view to conduct a preliminary inquiry against the accused named in the preliminary charge-sheet, but only with a view lo facilitate the completion of the investigation and the laying of the final charge-sheet, which would be the report contemplated by Section 173, Criminal Procedure Code. At this stage, it is necessary lo read Section 173, Criminal Procedure Code, so far as it is material for our purpose :

' (1) Every investigation under this chapter shall be completed without unnecessary delay and, as soon as it is completed, the officer-in-charge of the police station shall. . . .

(a) forward lo a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with tbe circumstances of the case, and stating whether the accused fif arrested) has been forwarded in custody or has been released on his bond, and. if so. whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

(2) Where a superior officer of police has been appointed under Section 158 the report shall, in any cases in which the State Government by general or special order so directs, he submitted through that officer, and he may, pending the orders of the Magistrate, direcl the officer in charge of the police station to make further investigation.'

9. It is clear from the terms of Sub-section (1) that the report under Section 178 Criminal Procedure Code, is submitted by the police only after the investigation is completed and not before. Where in a given case, before the completion of the investigation, a report, which is styled a preliminary charge-sheet, is forwarded to a Magistrate, that report cannot be regarded as a report under Section 173, Criminal Procedure Code, upon the receipt of which alone a Magistrate, acting under Section 207-A, Criminal Procedure Code., can proceed to hold a preliminary inquiry Viewed thus, it is plain that in the present case the Magistrate had not taken cognizance of the offence when the preliminary charge-sheet was filed before him. On the contrary, he passed orders giving the police sufficient time to complete their investigation and file a final charge-sheet. The police accordingly continued the investigation by examining additional witnesses and holding test identifications, and after ascertaining the truth from all the available material, excluded Accused Nos. 16 to 18 from the list of accused and submitted a final charge-sheet. The Magistrate thereafter took cognizance of the offence and proceeded to hold an inquiry against Accused Nos. 1 to 15 only.

10. It may now be taken as settled by a recent decision of the Supreme Court in Pravin Chandra Modi v. The State of Andhra Pradesh Criminal Appeal No. 49 of 1964 : : 1965CriLJ250 . that a police report need not necessarily be one under Section 178, Criminal Procedure Code and Section 190(1)(b) takes in reports other than those contemplated by Section 173. In other words, all reports under Section 173 are police-reports, but all police-reports need not be reports under Section 173. That being the position, a preliminary charge-sheet is no doubt a police report, but the Magistrate holding an inquiry under Section 207-A Criminal Procedure Code, does not, indeed cannot, take cognizance of the offence mentioned in that report and proceed with the inquiry upon receipt of such a report. He must wait for the report under Section 173. which would he forwarded to him by the police after completing their investigation Only then, can he commence the inquiry as is apparent from the provisions of Sub-section (1) of Section 207-A Criminal Procedure Code.

11. In this connection another judgment of the Supreme Court in the case of Narayandas Rhagwandas Madhavdas v. State of West Bengal. : 1959CriLJ1368 . which throws considerable light on the question we are considering, may he usefully referred to The facts in that case were, that on 7-9-1952 one Narayan-das Bhagwaudas Madhvadas (who will be referred to as 'the accused') was caught at the Dum Dum Airport with a sum of Rs. 25,000/- in Indian currency notes on his person. when he was about to board an aeroplane bound for Hong Kong. Under the Foreign Exchange Regulation Act, 1947 (which will be referred to as 'the Act') it is an offence to take currency notes out of the country without the permission of the Reserve Bank of India.

Under Section 19(3) of the Act. a District Magistrate or a Magistrate of the First Class, on a representation in writing made by a per-son duly authorized by the Central Government or the Reserve Bank and having reason to believe that there has been a contravention of any of the provisions of the Act, may issue a search warrant. On 11-6-1952 the Reserve Bank authorised an Inspector of the Special Police Establishment, Calcutta, to make a representation to the Additional District Magistrate, 24 Paraganas, for permission to proceed against the accused. Then on 16-9-1952 the Inspector applied to the Additional District Magistrate for a search warrant and that was issued by the Magistrate. On the same date the Inspector further applied to the Magistrate for the issue of a warrant of arrest against the accused and the Magistrate did that also. Thereafter the accused was arrested by the police and let on bail by them with a direction to appear before the Additional District Magistrate on 19-9-1952. On that date, on an application made by the accused, he was released on bail by the Magistrate by making the following order:

'He is to give bail of Rs. 50,000/- with ten sureties of Rs. 5,000/- each. Seen police report. Time allowed till 19-11-1952 for completing investigation'.

12. On 19-11-1952, on a perusal of the police-report, the Magistrate allowed further time for investigation until 2-1-1953 and on that date, time was further extended to 2-2-1953. Meanwhile on 27-1-1953 the Reserve Bank, acting under Section 23(3) of the Act, authorised the Inspector to file a complaint against the accused. Accordingly on 2-2-1953 a complaint was filed before the Additional District Magistrate, alleging that the accused had committed an offence under Section 8(2) of the Act read with Section 19 of the Sea Customs Act. (It may be noticed here that Sub-section (1) of Section 23 of the Act is the penal provision and prescribes the punishment for the contravention of any of the provisions of the Act. Sub-section 3 lays down that no court shall take cognizance of any offence punishable under the section except upon complaint in writing made by a person duly authorized by the Central Government or the Reserve Bank by a general or special order).

13. On 2-2-1953 the Additional District Magistrate took note of the complaint and made over the case to one Mr. Sinha, a First Class Magistrate, for trial and hound over the accused lo appear before that Magistrate.

14. Accordingly the accused appeared before Mr. Sinha and the latter tried the case and acquitted the accused. Against the order of acquittal, the State of West Bengal preferred an appeal to the High court and the High court allowed the appeal, convicted the accused of the offence with he was charged and sentenced him to pany a fine of Rs. 1000/- and the order of the Magistrate directing the release of the currency notes, wns set aside.

15. The accused preferred an appeal to the Supreme Court on a certificate of fitness grant-ed by the Calcutta High court. Before the Supreme Court, one of the contentions raised ed was that on 16-9-1952. when the Magistrate issued a search warrant and a warrant of arrest, he, could not have done so without having previously taken cognizance of the offence. Since, however, the authorization required under Section 23 (3) of the Act was not obtained till 27-1-1953, the cognizance taken by the Magistrate on 16-9-1952, was without jurisdiction. If the initiation of the proceedings was without jurisdiction, the conviction could not stand.

16. In repelling that contention, Imam J., speaking for the Court, observed as follows (at page 1121):

'The main submission on behalf of the appellant was directed towards establishing that the entire proceedings before the Additional District Magistrate and the trying Magistrate were without jurisdiction as cognizance of the offence had been taken on 16-9-1952. in contravention of the provisions of Section 23 (3) of the Foreign Exchange Regulation Act, there being on that date no complaint in writing made by an officer authorised in that behalf by the Central Government or the Reserve Bank of India by a general or a special order. It is, therefore, necessary to see, in the circumstances of the present case, on what date cognizance of the offence was taken. In order to ascertain this, certain provisions of the Foreign Exchange Regulation Act and the Code of Criminal Procedure will require consideration. Under Section 19 (3) of the Foreign Exchange Regulation Act a District Magistrate or Magistrate of the First Class may on a representation in writing made by a person authorized in this behalf by the reasons to believe that there had been a contravention of any of the provisions of that Act, issue a search warrant. Inspector Mitra was so authorized by the Reserve Bank on 11-9-1952, and in pursuance of that authorization applied to the Additional District Magistrate for the issue of a search warrant. Under this section the search warrant is issued for the purposes of conducting investigation under that Act. On September 16, Mitra applied for a warrant of arrest against the appellant. This application was obviously made under the Criminal Procedure Code The offence which the appellant is alleged to have committed was a non-cognizable offence. Under Section 155(2) of the Code of Criminal Procedure, no police officer shall investigate a non-cognizable offence without the order of a Magistrate of the First or Second Class having power to try such a case or commit the same for trial, or of a Presidency Magistrate Inspector Mitra's application definitely slates that he is asking for permission to investigate a non-cognizable offence under Section 155, Criminal Procedure Code. The order of the Additional District Magistrate directing the issue of a search warrant and the word 'permitted' contained therein we consider, in the context of the application, to mean that he granted the sanction for investigation as asked for. Under Section 155(3) of the Code a police officer being permittedto investigate a non-cognizable offence mav exercise the same powers in respect of an investigation as an officer in charge of a police station mav exercise in a cognizable case, except that he has not the power to arrest without a warrant. It was necessary therefore for Inspector Mitra to obtain from the Additional District Magistrate a warrant of arrest. It is clear, therefore, that up to 16-9-1952. the Additional District Magistrate had not taken cognizance of any offence.

'On 19-9-1952 the appellant appeared before the Additional District Magistrate who recorded the following order: 'He is to give bail of Rs. 50,000/- with ten sureties of Rs. 5,000/- each. Seen police report. Time allowed till 19-11-1952 for completing investigation.'

On 19-11-1952, on perusal of the police report, the Magistrate allowed further time for investigation until 2-1-1953, and on that date time was further extended to 2-2-1953. In the meantime, on 27-1-1953. Inspector Mitra had been authorized under Section 23 (3) (b) of the Foreign Exchange Regulation Act to file a complaint. Accordingly, a complaint was filed on 2-2-1953. The Additional District Magistrate thereon recorded the following order :

'Seen the complaint filed today against the accused Narayandas Bhagwandas Madhav-das under Section 8(2) of the Foreign Exchange Regulation Act read with Section 23 B thereof read with Section 19 of the Sea Customs Act and Notification No. F. E. R. A. 105/51 dated 27-2-1951, as amended, issued by the Reserve Bank of India under Section 8(2) of the Foreign Exchange Regulation Act. Seen the letter of authority. To Sri M. H. Sinha, S.D.M. (Sadar). Magistrate 1st Class (Spl. Empowered) for favour of disposal according to law Accused to appear before him'.

Accordingly, on the same date. Mr. Sinha then recorded the following order:

'Accused present Petition filed for reduction of bail Considering all facts, bail granted for Rs. 25,000/- with 5 sureties.

To 20-3-1952 and '27-3-52 for evidence' It is clear from these orders that on 19-9-1952 the Additional District Magistrate had not taken cognizance of the offence because he had allow ed the police time fill 19-11-1952. for completing the investigation. By his subsequent order time for investigation was further extended until 2-2-1953. On that date the complaint was filed and the order of the Additional District Magistrate cleary indcated that he took cognizance of the offence and sent the case for trial to Mr Sinha. II would also appear from the order of Mr. Sinha that if the Additional District Magistrate did not take cognizance, he certainly did because he considered whether the bail should be reduced and fixed the 26th and 27th of March for evidence.'

17. Again at page 1128 the learned Judge said :

' As to when cognizance is taken of an offence will depend upon the facts and circum-stances of each case and it is impossible to at-tempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or a warrant of arresl for that purpose, cannot by themselves be regarded as acts bv which cognizance was taken of an offence.'

18. The principle deducible from this decision is that where a Magistrate allows the police time for completing their investigation, he cannot he said to have taken cognizance of the offence notwithstanding that he had issued a search warrant or a warrant of arrest at the instance of the police Such warrants should be taken to have been issued bv the Magistrate in order to facilitate effective investigation by the police.

19. That is precisely the position in the instant case After the receipt of the preliminary charge-sheet, the Magistrate had passed orders from time to time, remanding the accused who were in custody and issuing non-bailable warrants for the arrest of the absconding accused, only with a view to facilitate the completion of the investigation by the police. During that period the Magistrate did not take cognizance of the offence. Only when the final charge-sheet was filed by the police, did he take cognizance and commence the preliminary inquiry only against such of the persons as were shown as accused in that charge-sheet, which was in fact and in law a report under Section 173(1). Cr. P C.

20. This view of ours, would give a free hand to the police to make a thorough investigation before putting up a case against any person. This process would subserve the cause of justice and would ensure that guilty persons are brought to book while innocent persons are saved the trouble, expense and anxiety involved in a criminal prosecution. Any false step at that stage might do irreparable harm to an accused person and it may be difficult to undo a mistake committed in the initial stage. Such a possibility should he avoided in all cases and more so in faction cases, where it is not an uncommon feature for the innocent to be lugged in along with the guilty By conducting a full and fair investigation on the spot. unhampered and uninhibited by rules of evidence and procedure the police would he able to discover the truth, and even if upon a cur-sory investigation, they had included one or more innocent persons in the preliminary charge-sheet, they could drop such persons in the final charge sheet and prevent unnecessary hardship and harassment.

21. The learned Advocate for the petitioner, however cited the decision of the Supreme Court in fara Singh v. The State. : [1951]2SCR729 as supporting his proposition that even upon a preliminary charge sheet, a Magistrate can take cognizance of the offence, in respect of which that charge sheet is filed. But, in our opinion, that decision, far from lending support to such a proposition runs counter to it.

22. In that case the accused was one Para Singh. He had been convicted of murder andsentenced to death by the Sessions Court and on appeal the High Court had upheld the con-viction and sentence. He appealed to the Supreme Court after obtaining special leave. Several points were raised and their Lordships ordered a retrial of the case on the ground that the provisions of sections 342 and 288, Cra. P. C., had not been complied with by the trial Court. They, however, overruled the conten-tion based on section 190(1)(b) read with Section 173(1), Cr. P. C. This is how (sic) question arose : The case against the accu(sic) was that in the early hours of the morning of (sic) 30-9-1949 he had committed the murders of his father and uncle. The accused was arrested (sic) the afternoon of the same day and was produced before a Magistrate on the next day, i. e,, 1-10-1849. The police asked for a remand to police custody till the 2nd as their invest(sic) tion was not complete. The remand (sic) granted and the accused was produced (sic) another Magistrate on the 3rd. On that day the police handed over to the Magistrate what they called an incomplete challan dated 2-10-49 and also produced certain prosecution witnesic) es. Among the witnesses so produced we(sic) three, who were said to have witnessed the (sic) currence. They were the accused's (sic) mother and sister The Magistrate examination them straightway and recorded their eviden.

23. On 5-10-1949 the police submitted notthe Magistrate what they called a completechallan and on the 19th, they put in a supplementary challan. The Magistrate committedthe accused for trial on 12-11-1949.

24. At the Sessions trial, all the three eye-witnesses resiled from their statements in the committal Court and the Sessions Judge brought their depositions on record under Section 288 Cr. P. C. and relied on those depositions to convict the accused.

25. The point taken before the Supreme Court was that the committing Magistrate bad acted illegally in taking cognizance of the offence upon an incomplete challan filed by the police, and the depositions recorded thereafter of the three eye-witnesses, could not be rereiv-in evidence.

26. The argument advanced on behalf of the accused and the way in which it was dealt with by Bose, J., speaking for the Court, may be gathered from the following excerpt from the judgment in : [1951]2SCR729 .

' The first objection taken to the trial isthat the Magistrate had no power to take cognizance of the case on 3rd October. Accordingingly, the depositions of the three so-called eye- witnesses which he recorded on the 3rd can- not be received in evidence, and if they areexcluded, then, for reasons which I shall set-out hereafter the whole ease against the appellant collapses because, accord ing to the learned,,counsel, there is no other evidence on which the conviction can properly he based. (sic)

This part of the argument is based on Section 190, Cr. P. C. It is contended that cogni(sic) zance of an offence can only be taken in ofof the ways set out in that section. We are concerned here with the method set nut in Clause (b) of Sub-section (1), namely, 'upon a (sic) report in writing of such facts made by anypolice officer. '

It is contended that the police(sic) not permitted to send in an incomplete(sic)report because of the provisions of Section 173(sic) which runs as follows :(sic) Every investigation under this Chapter(sic) be completed without unnecessary delay,(sic)soon as it is completed, the officer-in-(sic) of the police station shall --(sic) forward to it Magistrate empowered to(sic) cognizance of the offence on a police re-(sic), a report, in the form prescribed etc

I need not express any opinion about this(sic)cause, in my opinion, the challan which the(sic) referred to as an incomplete challan,(sic) the one of 2-10-1949, was in fact acomplete report within the meaning of Section 190(1)(b). Cr. P. C.. read with Section 173 (sic)(sic) When the police drew up their challan of(sic)1949 and submitted it to the Court on3rd. they had in fact completed their inves-tion except for the report of the Imperial(sic) and the drawing of a sketch mapthe occurrence. It is always permissiblethe Magistrate to take additional evidenceset out in the challan. Therefore. the(sic) fact that a second challan was put in on 5th October would not necessarily vitiate the first. All that Section 173(1)(a) requires is that as soon as the police investigation under chapter 14 of the Code is complete, there should be forwarded to the Magistrate a report in the prescribed form :

' Setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case.'

All that appears to have been done in the report of 2nd October which the police called their incomplete challan. The witnesses named in the second challan of 5th October were not witnesses who were ' acquainted with the circumstances of the case ' They were merely formal witnesses on other matters. So also in the supplementary challan on the 19th The witnesses named are the 1st Class Magistrate, Amritsar, who recorded the dying declaration, and the Assistant Civil Surgeon. They are not witnesses who were '' acquainted with the circumstances of the case ' Accordingly, the challan which the police culled an incomplete challan was in fact a completed report of the (sic) which Section 173(1)(a) of the Codecontemplates There is no force in this argument, and we hold that the Magistrate look (sic) cognizance of the matter.'

27. It will be observed that the contentionon behalf of the accused was that the Magistrate had no power to take cognizance upon in incomplete charge-sheet. What was decid-(sic) the Supreme Court was that oil the facts circuimstances of that particular case, the chargc-sheet filed by the police was intruth and substance a completed charge-sheet as contemplated by Section 173(1)(a) and the subsequent charge-sheets were merely of a formal character. It is difficult to see how the above reasoning would support the contention on behalf of the petitioner that even upon a preliminary charge-sheet a Magistrate is competent to take cognizance of an offence and proceed with the inquiry. Another distinguishing feature in Tara Singh's case, : [1951]2SCR729 was that upon receipt of the first challan, the committing Magistrate look cognizance of the offence, commenced the inquiry, examined the eye-witnesses and even passed an order of commitment In the present case, however nothing like that has happened: on the contrary, the Magistrate was postponing the inquiry from lime to lime and was awaiting the submission of the final charge-sheet by the police.

28. It was then contended on behalf of the petitioner that as in Tara Singh's case. : [1951]2SCR729 in the present rase also, the first charge-sheet filed bv the police on 18-5-1964, though described as a preliminary charge-sheet was in truth a final charge-sheet and therefore the police had no power to continue their investigation and file a second charge-sheet calling it a final charge-sheet, committing the names of three of the accused which had found place in the preliminary charge-sheet. This contention is devoid of substance, because on the facts of this ease, il is abundantly clear lhat when the police filed the preliminary charge-sheet on 18-5-1964, the investigation had not been completed and it was explicitly staled so in the preliminary charge-sheet itself. Further more between the filing of the preliminary charge-sheet and the final charge-sheet, the police continued their investigation, examined material witnesses and held identification parades and all this cannot be regarded as investigation of a merely formal nature.

29. It was next argued on behalf of the petitioner that after the filing of a preliminary charge-sheet, the police may have the power to continue investigation and gather evidence against an accused person. but they have no power to rolled evidence in favour of an accused person, which would result in a withdrawal of the prosecution against him. In support of this submission, the learned advocate sought to rely on certain observations of Panchapa-kesa Ayym. J. in Rajagopala Ayyar v. State, 1955 Mad WN 249 at p 250 This is what the learned Judge said :

' Mr. Ethiraj, pressed (sic) the first conlcnlion viz.. that the notice, after after having laid a final charge-sheet under Section 173. Cr. P C. had no power to investigation further into the offence and lay a supplemental charge-shed, and add some more accuse. He relied on ruling of Jai Lal, J. in Emperor v. All, AIR 1932 Lah 611 for Ibis position. But that ruling will not help him for this case. There, the learned Judge held that when the investigation had been completed and a final charge-sheet laid under Section 173, Cr. P. C., against certain persons as accused, the police had no power to resume the investigation in favour of the accused. That is a perfectly understandable proposition and with respect. I wholly agree with it. Once the police have completed their investigation and laid their final charge-shed against some persons, as persons guilty of the offnce named in the charge-sheet, il will be ridiculous to allow them to go hack on that report and resume the investigation to prove that the persons they had named in their charge-sheet I as the persons who had commit-ted the offence, had really not committed the offence When the Court has taken cognizance of an offence under a final charge-sheet and registered a case against the accused named in that charge-sheet, the Court has taken full seizin of the case regarding those accused and it is its duty after trial to hold whether the accused named by the police as the persons guilty of the offence are guilty or not The police cannot be allowed to blow hot and cold, approbate and reprobate, charge-sheet a man and then resume the investigation to show that he had been wrongly charge-sheeted by them.

30. It will be seen that the above observa-tions were made by the learned Judge in res-pect of an investigation which was conducted after the laying of a final charge-sheet under Section 173 on which the Magistrate had taken cognizance of the offence and decided to pro-ceed against the accused named therein Obvi-ously the above reasoning does not support the argument advance by the learned advocate for the petitioner that even where a preliminary charge-sheet is filed before the completion of investigation, the police have no power to continue the investigation and submit a final charge sheet, dropping one or more of the accused, where they are satisfied as a result of the subsequent investigation, that those accused had been unjustly implicated In our opinion, there is no warrant in law or in logic for the suggested distinction between an investigation in favour of and an investigation against a person or persons accused of a crime By definition, investigation denotes nothing more and nothing less than the collection of evidence by a police officer or by a person duly authorized by a Magistrate.

31. It follows that the action taken by the police and the Magistrate in the present case, is neither illegal nor improper. The revision case, therefore, fails and is dismissed.


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