Gangadhar Rao, J.
1. In these two petitions, an important question of law is raised with regard to remand and bail during the course of Police investigation. One petition is filed by the State and another by the father of the deceased to cancel the bail granted to A-1 to A-4 on 3-5-1975 by the Judicial Second Class Magistrate, Chirala.
2. The brief facts leading up to the filing of these two petitions may be stated: A-1 is the wife of the deceased. A-2 is the father of A-1 and A-3 and A-4 are the sons of A-2. A preliminary charge sheet under Section 302 read with Section 34 I.P.C. and 201 read with Section 34 I.P.C. was filed by the Inspector of Police, Crime Branch, C. I. D. Hyderabad on 3-5-1975 in the court of the Judicial Magistrate of Second Class, Chirala. In that charge sheet, it is stated that all the four accused caused the death of the deceased on the night of 5-1-1975 and in order to cause disappearance of the evidence, these four accused with the assistance of some other persons removed the dead body in a cart and threw it in a canal. The dead body was discovered at about 9 or 10 A. M. on the next day. In order to cover up her guilt, A-1 invented a story that the deceased went out for answering calls of nature at about 5 A. M. on 6-1-1975 and thus all the accused put the relations of the deceased on a wrong scene. The then Inspector of Police, Chirala, and the then Sub-Inspector of Police, Inkollu Police Station, became parties to the offence of causing disappearance of evidence of murder by manipulating a false inquest report and registering a case on an incorrect report and they even tried to avoid post-mortem examination. In view of the involvement of the local police the investigation had become difficult and complicated and it could not be completed. Therefore, it was prayed that the accused may be further remanded under Section 309, Criminal Procedure Code pending completion of investigation and submission of the final charge-sheet. It was further stated that a comprehensive charge-sheet would be submitted against all the persons involved in the offences in question after the entire investigation was completed.
3. On the same day the learned Magistrate passed an order releasing A-1 to A-4 on bail. The Inspector, C. B. C. I. D. was directed to complete investigation expeditiously and file a charge-sheet.
4. In his order the learned Magistrate has stated that the preliminary charge-sheet filed on that date was only a simple remand report to secure further remand against A-1 to A-4 under Section 309, Criminal Procedure Code that A-1 to A-4 were in custody under Section 167(2), Criminal Procedure Code since 5-3-1975 till that date i.e., 3-5-1975, i.e., for a total period of 60 days, that under the proviso to Section 167, Clause (2), Criminal Procedure Code it is mandatory that the accused should be released after completion of 60 days of detention if they are ready to furnish bail and that the accused were ready to furnish bail. He further held that Section 309, Criminal Procedure Code has no application for, that applies only to enquiry or trial but not to investigation. He also commented that the investigation was being done leisurely and according to the convenience of the investigating officers. Consequently he directed the release of A-1 to A-4 on bail. I am informed that on the same date, the accused furnished securities and were released on bail.
5. The learned Public Prosecutor has contended that the order of the learned Magistrate is palpably wrong and he should not have released the accused on bail. According to him, under Section 173, Sub-section (8), Criminal Procedure Code more than one charge sheet could be filed and so under Section 309 read with Explanation (1), Criminal Procedure Code the Magistrate is competent to remand the accused even though they were in custody for more than 60 days under Section 167, Criminal Procedure Code,
6. The petitioner who is the father of the deceased has contended that it is immaterial whether the investigation was completed and a final charge sheet was filed or not under Section 173, Criminal Procedure Code and that Section 309, Criminal Procedure Code confers an independent power upon the Magistrate to remand the accused to the custody of police even though the period of 69 days have elapsed.
7. The learned Counsel for the accused has contended that until the investigation is completed, there is no question of filing a final charge sheet and until a final charge-sheet is filed, the Magistrate cannot take cognizance of the case and till then the Magistrate can remand the accused to custody only for a total period of 60 days and if it exceeds, he is bound to release them on bail if they are prepared to and do furnish bail under Section 167, Criminal Procedure Code. He further contended that the provisions of Section 309, Criminal Procedure Code are attracted only after the court has taken cognizance of the offence and in this case since the Magistrate has not taken cognizance of the case, there is no question of invoking the provisions of Section 309, Criminal Procedure Code.
8. In order to appreciate the rival contentions of both the parties it is necessary to briefly refer to the relevant provisions of the Code of Criminal Procedure, 1973. Here it must be borne in mind that the present proceedings are governed by the Code of Criminal Procedure 1973. Section 167, Criminal Procedure Code appears in Chapter XII which deals with information to Police and their powers to investigate. Section 167, Criminal Procedure Code in so far as it is relevant reads as follows:
Section 167(1):- Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by Section 57 and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the Police Officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith, transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that:(a) The Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, and on expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that chapter.
9. A reading of this section shows that when a person is arrested and if it appears that the investigation cannot be completed within a period of 24 hours and there are grounds for believing that the information is well founded, the officer-in-charge of the Police Station should send to the nearest Judicial Magistrate a copy of the entries in the diary and also the accused to such Magistrate. The Magistrate may authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days in the whole. But he can authorise detention of the accused otherwise than in custody of the Police, beyond the period of 15 days if he is satisfied that there are adequate grounds for doing so. But it should not exceed a total period of sixty days. On the expiry of that period of sixty days the accused shall be released on bail if he is prepared to and does furnish bail. Every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that chapter. Chapter XXXIII deals with the provisions as to bail and bonds. Admittedly in this case the investigation is not yet completed. The accused have been in custody for a total period of 60 days. So they have to be released on bail if they are prepared to and do furnish bail.
10. The next question is whether under the provisions of Section 309, Cr. P.C. the Magistrate has the power to remand the accused to custody even though the investigation is not yet complete and the accused has been in custody for more than 60 days. Section 309, Cr. P.C. reads as follows:
Power to postpone or adjourn proceedings: (1) In every enquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
(2) If the court, after taking cognizance of an offence, or commencement of trial finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time;
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing;
Explanation:- (1) If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation:- (2) The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.
This provision occurs in Chapter XXIV relating to the general provisions as to enquiries and trials. Sub-section (2) of Section 309, Cr. P.C. specifically states that after taking cognizance of an offence, or commencement of trial, if the court finds it necessary or advisable to postpone the commencement of, any inquiry or trial, it may do so for reasons to be recorded and may remand the accused if he is in custody provided that the remand does not exceed 15 days at a time. Explanation (1) says that if it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for remand. Obviously the explanation has to be read as part of the section. Explanation (1) explains one of the reasonable causes, for remand. But to invoke the provisions of Section 309, Cr. P.C. it is essential that the Court should have taken cognizance of an offence in view of the provisions of Sub-section (2).
11. The court takes cognizance of a case under Section 190, Cr. P.C. which reads as follows:
Section 190. Cognizance of offences by Magistrates: (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2) may take cognizance of any offence.
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts.
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
12. In the present case the court can take cognizance of the case upon a police report within the meaning of Clause (b) of Section 190, Cr. P.C. What is a Police report is the next question. It is defined under Section 2 Clause (r), Cr. P.C. which says that a police report means a report forwarded by a Police Officer to a Magistrate under Sub-section (2) of Section 173, Cr. P.C.
13. In so far as it is relevant, Section 173, Cr. P.C. reads as follows:
Section 173. Report of Police Officer on completion of investigation: (1) Every investigation under this Chapter shall be completed without unnecessary delay.
2 (i) As soon as it is completed, the officer-in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating;
(a) the names of the parties;
(b) the nature of the information.
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested
(f) whether he has been released on his bond and, if so, whether with or without sureties.
(g) whether he has been forwarded in custody under Section 170.
(Clause (ii) and Sub-sections (3) to (7) omitted)
8. Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).
14. A plain reading of Section 173, Cr. P.C. shows that every investigation must be completed without unnecessary delay and as soon as it is completed, the officer-in-charge of the Police Station shall forward a report to the Magistrate in the form prescribed. Therefore, there is no question of sending up of a police report within the meaning of Section 173, Cr. P.C. Sub-section (2) until the investigation is completed. Any report sent before the investigation is completed will not be a police report within the meaning of Sub-section (2) of Section 173, Cr. P.C. and there is no question of the Magistrate taking cognizance of the offence and consequently the provisions of Section 309, Cr. P.C. cannot be invoked,
15. In the case on hand only a preliminary charge-sheet has been filed and it is specifically stated therein that the investigation is not yet completed. Therefore, it cannot be treated as the police report within the meaning of Sub-section (2) of Section 173, Cr. P.C. and so the Magistrate could not take cognizance of offence in the present case and remand the accused under Section 309, Cr. P.C.
16. The learned Public Prosecutor has argued that in this case there is a charge-sheet though styled preliminary and so the proviso to Section 167 Sub-section (2) does not apply. I do not agree with him. The Code of Criminal Procedure does not contemplate a preliminary charge-sheet and a final charge-sheet. What is contemplated is only a police report within the meaning of Sub-section (2) of Section 173, Cri. P. C. Admittedly in this case, there is no such report. The so-called preliminary charge-sheet filed in this case is not a police report because the investigation is not yet completed, and so the proviso to Section 167 Sub-section (2) is attracted. In this connection the learned Public Prosecutor has relied upon Sub-section (8) of Section 173, Cr. P.C. in order to contend that even a preliminary charge-sheet is a police report within the meaning of Sub-section (2) of that section. But a reading of Sub-section (8) of Section 173, Cr. P.C. shows that after a police report under Sub-section (2) is sent to the Magistrate, further investigation is not precluded and if upon such investigation further evidence is obtained a further report should be sent to a Magistrate. Therefore, Sub-section (8) of Section 173, Cr. P.C. comes into play only after a report under Sub-section (2) is sent but not before. In this case since no report under Sub-section (2) is sent, Sub-section (8) does not come into operation at all. Since the preliminary report is not the one sent to the court after a report under Sub-section (2) was sent, the learned Public Prosecutor cannot invoke the provisions of Sub-section (8) of Section 173, Criminal Procedure Code. In this connection I may also refer to a Bench decision of our High Court reported in Bandi Kotayya v. State : AIR1966AP377 wherein it has been held by Basi Reddi and Anantanarayana Ayyar, JJ., as follows:
It would follow as 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 warrants 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 to 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.
Their Lordships further held as follows:
It is clear from the terms of Sub-section (1) that the report under Section 173, 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 207A, Criminal Procedure Code, can proceed to hold a preliminary inquiry.
17. Following that decision it follows that in the present case since the investigation is not complete there is no police report and consequently there is no question of the Magistrate taking cognizance of the case. So I do not agree with the contention of the learned Public Prosecutor.
18. I am also supported in the view I have taken by the Bench decision of the Assam High Court reported in Ved Kumar Seth v. State of Assam 1975 Cri LJ 647 (Gauhati).
19. For the reasons stated supra, I hold that on the facts of this case the learned Magistrate was justified in releasing A-1 to A-4 on bail after the lapse of the 60 days period of detention under Section 167 Sub-section (2), Criminal Procedure Code. Consequently both the petitions are dismissed.