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The State Vs. Mehar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1974CriLJ970
AppellantThe State
RespondentMehar Singh and ors.
Cases ReferredKulwant Singh v. Sr. Supdt of Police
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply.....c.g. suri, j.1. on the afternoon of 31-3-1971. shri ranjodh singh (since deceased) of village badni kalan, police station nihalsinghwala in ferozepore district was travelling in a car and when he had gone about a furlong or two beyond phulewala road culvert, his car was waylaid and he was murdered with fire weapons. his son kanwar iqbal singh, who claimed to have been travelling in the same car and who had some simple blunt weapon injuries on his person lodged a report at 3.50 p. m. at police station baghapurana which had jurisdiction in the area. the occurrence was described to have taken place about twenty minutes earlier and according to the story as given in that first information report, the deceased and his party had set out in three motor vehicles as the betrothal of the daughter.....
Judgment:

C.G. Suri, J.

1. On the afternoon of 31-3-1971. Shri Ranjodh Singh (since deceased) of village Badni Kalan, Police Station Nihalsinghwala in Ferozepore district was travelling in a car and when he had gone about a furlong or two beyond Phulewala Road culvert, his car was waylaid and he was murdered with fire weapons. His son Kanwar Iqbal Singh, who claimed to have been travelling in the same car and who had some simple blunt weapon injuries on his person lodged a report at 3.50 P. M. at police Station Baghapurana which had jurisdiction in the area. The occurrence was described to have taken place about twenty minutes earlier and according to the story as given in that first information report, the deceased and his party had set out in three motor vehicles as the betrothal of the daughter of the deceased was to take place that day in village Mudki. Fourteen Persons belonging to different villages in the districts of Ludhiana. Sangrur and Ferozepore were named as the assailants and it was alleged that they had come to the scene of ambush in two cars which were seen parked by the road side and that these assailants had opened fire on the deceased's car from both sides of the road. Balbir Singh, the driver of the car. had lost control and had crashed against a tree and had also sustained a head injury Out of the named assailants six persons had been arrested within a fortnight of the occurrence and had been lingering in jail until the police report (chalan) under Section 173 of the Code of Criminal Procedure had been filed in Court on 25-10-1971. There is nothing on record to suggest that they have been granted bail to the present day. During the interval between their arrest and the filing of the chalan. they had been produced before the Ilaqa Magistrates for remands to police custody or to judicial lock-up very nearly a score of times and the Magistrate had directed on 16-10-1971. at the time of granting the remand up to 29-10-1971, that the police should expedite the submission of the chalan. The Additional Sessions Judge had also directed, while rejecting a bail application of these six accused. that the chalan should be filed before 25-10-1971, The Station House Officer incharge of Police Station Bagha purana had accordingly complied with these directions in actually filing the chalan on 25-10-1971 even though the higher police officers including Shri VidyaSagar Mehta. D.S. P. and Beniwal. S.P. (C. I. D.) had taken over the investigations of this case in accordance with the instructions issued in June, 1971, by the Deputy Inspector General (C. I. D.) of Police. who had ordered further in August, 1971 that the chalan was not to be presented in Court unless his orders had been obtained in the first instance. The D. I. G. had also recommended that warrants of arrest issued by the Court against some of the accused should be got cancelled. There 'were references in the police diary that Shri Vidya Sagar. D.S. P. had visited some places including Calcutta in connection with the investigations of this case. It mavappear from the police diaries and many other documents on the lower Court's records that most of the persons named in the first information report as assailants were working for gain in Calcutta. The chalan filed on 25-10-1971 was against the six persons who had been arrested more than six months earlier and the names of the other eight were shown as absconders in the chalan. It cannot be said however, that these eight persons were really fugitives from the law even though the Court had at one stage issued warrants for their arrest and had started proceedings under Sections 87 and 88 of the Code of Criminal Procedure, This would be evident from the fact that the informant Kanwar Iqbal Singh and his brother Bhupinder Singh had been making applications to the Ilaqa Magistrates for taking contempt proceedings against Shri Mehta. D.S. P. complaining that most of these persons shown as absconders in the police chalan had actually appeared before the D. S, P, and had not been taken in custody. According to the reply dated 30-7-1971 filed by Shri Mehta he had taken over the investigations of the case on the orders of the S.S. P. Ferozepore and that six persons out of the eight now shown as absconders had appeared before him on 15-6-1971, before the file of the case had been entrusted to him and that he had recorded their statements. Five of them had produced documentary evidence in support of their pleas of alibi and the sixth had stated that he was a prosecution witness against Kanwar Iqbal Singh informant in a criminal case at Calcutta and that he had been falsely implicated in this case because he had resisted all attempts of Kanwar Iqbal Singh to win him over and to resile from his statement in the criminal case pending in Calcutta. The parties have a background of long drawn out litigation and enmities.

2. In view of the circumstances mentioned above the Prosecuting Inspector of Police filed an application dated 27-11-1971. before the Magistrate holding the commitment inquiry, alleging that the police investigations were still inconclusive when the chalan had been filed by the S.H.O. on 25-10-1971 and that material information may be forthcoming to show the innocence of some of the accused and the complicity of some others. It was therefore, requested that in the interests of justice the S.P. (C. I. D.) may be allowed to investigate the case further so that the police report under Section 173 of the Code of Criminal Procedure could be legally finalised. The inherent powers of the Court were invoked in the ends of justice. It would not be out of place to mention at this stage that no evidence had been recorded during the commitment inquiry when this application was made by the Prosecuting Inspector of Police.

3. The learned Committing Magistrate dismissed this application for permission to further investigate the case by this order dated 30-11-1971, which is now under revision. Reliance was mainly placed by him on a Single Bench decision given by our learned brother, S.C. Mital J., in Kulwant Singh v. Senior Superintendent of Police 1970-72 Pun LR 33. The Sessions Judge has however recommended that the order D/- 30-11-71 of the Committing Magistrate should be revised and set aside. This case of recommended devision came up in the first instance before a Single Bench of this Court but because of a conflict of views amongst the various High Courts, the case has ultimately been referred to a Full Bench. That is how we are now seized of the case.

4. The question for decision by this Full Bench to my mind is whether after the police have filed a final report or charge-sheet chalan under Section 173 of the Code of Criminal Procedure can they further investigate the case, with or without the permission of the court if fresh material information having a direct bearing on the case comes to their notice? Whether it would make any difference that the reinvestigations are sought to be carried out before or after the Court has taken cognizance of the offence?

5. The earliest decision brought to our notice which may seem to have a direct bearing on the questions of law involved was given by a Division Bench of the Madras High Court in Divakar Singh v. A. Ramamurthi Naidu AIR 1919 Mad 751 : 19 Cri LJ 901. Even though the ratio of this decision had been cited with approval and relied upon by five eminent Judges of this Court sitting alone or in Division Benches. Shri Sibal. the learned Counsel for the informant or complainant submits that this ruling is too brief and does not give any reasons for the ratio laid down in such general terms. This submission gives me a welcome excuse for writing an unnecessarily lengthy judgment as I could not possibly have dealt with all the points or fallacies raised before us without taxing the patience of everyone concerned.

6. As the Prosecuting Inspector had invoked the inherent powers of a subordinate criminal Court, his prayer has inspired the argument that such Courts have no powers beyond those expressly given by the Code of Criminal Procedure. The reason advanced in support of this argument is that this Code has no section like Section 151 of the Civil Procedure Code and that Section 561A at the Criminal Procedure Code speaks only of the inherent powers of the High Court and not of any subordinate criminal Court. Section 561-A was inserted in the Criminal Procedure Code by an Amending Act in 1923. The argument may seem to imply that before the insertion of this section the High Court also did not have any inherent powers in criminal matters. A careful reading of the marginal headings and the language of Section 151. Civil Procedure Code and Section 561 A, Criminal Procedure Code, would give one the clear impression that the existence of these inherent powers has been taken for granted and all that has been made clear is that the express statutory provisions of the two Codes were in no way intended to take away or affect or limit the basic powers of the Courts to make such orders as may be necessary to do substantial justice between the parties or to prevent an abuse of their process; the purposes for which alone the Courts are brought into existence. The existence of the inherent powers of all types of Courts at all levels and for all times may appear to have been taken for granted and are sought to be saved in fact. In Emperor v. Khwa.ia Nazir Ahmad AIR 1945 PC 18 : 46 Cri LJ 413 their Lordships of the Privy Council had observed as follows:

It has sometimes been thought that Section 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possesses shall be preserved and is inserted. as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act.

7. Section 561-A of the Criminal Procedure Code only says that the inherent powers of the High Court are not intended to be whittled down or fettered by anything said elsewhere in that Code. The implication clearly is that the provisions of the Code could be taken to hedge in the inherent powers of the subordinate criminal Courts but where there is no express provision in the statute on a particular matter the Courts 'have of necessity to fall back on their residuary inherent powers to evolve or chalk out for themselves a course which would advance the purposes for which they have been created. The Courts cannot allow their machinery to grind itself to a halt when they reach a dead end of the roads and the statute fails to provide any indication one way or the other. The very word 'inherent' implies that the powers are there independently of the existence or non-existence in the Statute Book of an express provision like Section 151 of the Civil Procedure Code. This section only gives statutory recognition to the powers which have all the time been there. which have to be there out of sheer necessity, powers without which no Court of any type, at any level, at any time can effectively function to achieve the very purpose for which it has been created namely, to do substantial justice between the parties involved. I do not mean to suggest, however that the subordinate Courts can be allowed to do violence to any express provision of the statute. but by allowing a supplementary chalan to be filed, a subordinate criminal Court would not be violating any express provision of the Code. This is the reason given in support of the briefly stated ratio of the ruling in Divakar Singh's case AIR 1919 Mad 751 : 19 Cri LJ 901 (supra).

8. Towards the later half of the last century the foreign government had taken upon itself to codify the procedural and other laws of the land. It was natural for them to try to adopt as a model the pattern prevailing in their country even though there was no regular codification of their own laws. The English common law had been developed over the centuries by the decisions given by various Courts and their discretion was mostly not fettered by any statutes. Most of the salutary principles of law evolved by a process of trial and error were incorporated in the Indian Statute Books but it was realised that many of these principles may have escaped codification. No draftsman can possibly foresee or provide for all situations that may arise in future and the Courts had naturally to be left to fall back upon their inherent powers wherever the statute failed to afford them any guidance. Justice has. of course, to be administered by the Courts according to law but where the written law makes no express provision one way or the other the Courts have to fall back upon the unwritten Judge-made law which lies cradled in their inherent powers. This obvious rule of necessity was given statutory recognition in some Codes but not in others. The existence of the inherent basic powers did not. however depend on any such legislative recognition. No inherent powers have in fact been created by such a statutory recognition and these powers had all the time been there. The dictionary meaning of the word 'inhere' is to remain firmly in; a fixed state of being in another body or substance. According to the Black's Law Dictionary, inherent powers are an authority possessed without its being derived from another, and which is reasonably necessary for doing justice. According to the Corpus Juris Secundum, inherent cowers exist as an element of original duality, they naturally pertain to and are permanently or inseparably existing in a subject. The word 'inherent' has been taken to be synonymous with inborn, indwelling, lodging in. infixed, essential, intrinsic inalienable etc, etc. It is a right or ability or faculty of doing a thing without receiving that right ability or faculty from another. Entities like corporations insurance companies. municipalities have been (held to have inherent powers. Even when the view held by this Court was that a Rent Controller was a persona designata and not a civil Court with all its trappings. it was observed that he had inherent powers in certain matters left unprovided for by the rent legislation. There is no provision like Section 151 of the Civil Procedure Code in any Rent Act. Attention could in this connection be drawn to a Single Bench ruling of this Court in Manohar Lal v. Mohan Lal . Now a Full Bench of this Court has held in Vidya Devi v. Firm Madan Lal Prem Kumar ILR (1971) 1 Punj and Har 112 : 1971 Cri LJ 637 (FB) that the Rent Controller and the appellate authority are riot only Courts but Courts of Justice. They would now have inherent powers as any other Civil Court. Similarly it was held by the Hon'ble Judges of the Supreme Court in H. N. Rishbud v. State of Delhi : 1955CriLJ526 . that a special Judge had inherent powers and that this was so because he exercised the powers of a Magistrate. The fact that the Prevention of Corruption Act has no provision like Section 151 of the Code of Civil Procedure was not found to have made any difference. This Supreme Court ruling was followed by a Division Bench of the Bombay High Court in Parasnath Pande v. State : AIR1962Bom205 . The above cited rulings of the Privy Council, the Supreme Court and the various High Courts should be taken to put an end to this controversy. For those however who are impressed only by the size and volume of a judgment. I would like to reproduce below the following extracts from the Words and Phrases. Volume 21. pages 363-64:--

The power of Courts of general jurisdiction to grant equitable relief is not Only conferred by our Code of practice, but has often been recognised as among their inherent powers necessary to the complete administration of justice. Ratliff v. Stretch 30 N. E. 30, 31, 130 Ind. 282, 284.

Jurisdiction' is conferred on Court by Constitutions and statutes, whereas 'inherent powers' of Court are those necessary to ordinary and efficient exercise of jurisdiction already conferred. State v. Superior Court of Maricopa County (Ariz.) 5 P. (2d) 192. 194.

XX XX XXThe inherent powers' of a Court are such as result from the very nature of its organization and are essential to its existence and protection, and to the due administration of justice Fuller v. State 57 So. 806, 807, 100 Miss. 811, 39 L. R. A. N. Section 242. That Courts possess inherent powers not derived from any statute is undeniably true. Sanders v. State 85 Ind. 318. 328. 44 Am. Rep. 29.

XX XX XXThis power is not conferred by legislation but is an inherent power residing in all superior Courts. It is a power that the Legislature can neither create nor destroy. It is as essential to the preservation of the existence of Courts as is the natural right of self-defence to the preservation of human life. Holman v. State 5 N. E. 556. 557. 105 Ind. 513.

The Courts of justice possess powers which were not given by legislation and which no legislation can take away. These are 'inherent powers' resident in all Courts of superior jurisdiction. These powers spring not from legislation but from the nature and constitution of the tribunals themselves. Among the inherent powers of a Court of superior jurisdiction is that of maintaining its dignity, securing obedience to its process and rules protecting its officers and jurors from indignity and wrong rebuking interference with the conduct of business and punishing unseemly behaviour. Little v. State. 90 Ind 338. 339, 46 Am Rep. 224.

INHERENT POWER OF THE JUDICIARY The term inherent power of the judiciary' means that which is essential to existence, dienitY and functions of Court from the very fact that it is a Court. In re Integration of Nebraska State Bar Ass'n 275 N. W. 265. 267, 133 Neb. 283, 114 ALR 151.

The term inherent power of the judiciary' means that which is essential to the existence, dignity and functions of the Court from the very fact that it is a Court. State ex rel. Hunter v. Kirk, 276 N. W. 380. 382. 133. Neb. 625.

9. Section 5 of the Code of Criminal Procedure lays down that all offences under the Indian Penal Code shall be investigated enquired into tried and otherwise dealt with according to the provisions contained in the Criminal Procedure Code. The Supreme Court had held in Bhim Sen v. State of U. P. : 1955CriLJ1010 that this section is not supposed to take away the comprehensive jurisdiction of the criminal Courts of general jurisdiction. This section is not supposed to so rigidly hidebound, jacket or corset the Courts into a steel frame that they cannot breathe or function as harbingers of justice. The basic inherent power of the subordinate criminal Courts are left unaffected by Sections 5 and 561-A of the Code of Criminal Procedure. As observed by the Supreme Court in some cases rules of procedure are handmaids of justice. These rules are framed only as a means to an end; they are not to be treated as an end by themselves.

10. In the present case, we are faced with an extraordinary situation which had obviously not been foreseen or provided for by the trainers of the Code when they worked out the scheme of investigations as contained in Chapter XIV of the Code of Criminal Procedure. That does not mean that the Courts should feel helpless to do Justice between the parties, Having come to a dead end of roads where the statute does not provide any guidance as to whether the Court has to turn to the right or to the left and as long as there is no barricade in its way, it must forge ahead to bulldoze a passage for the advancement of justice. Nobody can be allowed to take liberties with the statute in order to thwart the ends of Justice but where the Courts are trying to promote those ends they may even be allowed to put to test the elasticity of the bonds that keeps the barricade in place or to round off an inconvenient corner or angularity here and there in the statute. Once it is found that the Courts have evolved a procedure to achieve the real purpose without violating any specific provision of statute there should be no reason why judicial approbation or legislative recognition may not follow in due course. The conservatively knowledgeable circles get shocked or alarmed by my outspokenness but I am only giving expression in a visible or audible form to what everyone concerned has been practising on the quiet in every day life for generations without raising any eyebrows or controversy. Reference shall in this connection be made further on in this judgement to some rules framed on the subject by the High Court and the Police Department and also to some rulings where an eye is kept conveniently closed to an inconvenient word or phrase here and there in the statute. Such liberties are however allowed to be taken invariably to promote the ends of Justice but never to thwart those ends. In one of the rulings to be cited further on (Mohinder Singh v. Emperor AIR 1932 Law 103 : 33 Cri LJ 97, it would be found that a confession recorded under Section 164 of the Criminal Procedure Code after the filing of the police report or chalan was treated as regular and legally valid even though Section 164 provides that a confession has to be recorded under that section before the commencement of the inquiry or trial. Similarly in Abhinandan Jha v Dinesh Mishra. : 1968CriLJ97 . the Hon'ble Judges of the Supreme Court had expressed the view that the Courts could take cognizance of the offence under Clause (c) of Section 190(1) of the Code of Criminal Procedure on a negative report submitted by the police under Section 172 read with Section 169 of the Code of Criminal Procedure. This may appear to be contrary to some observations made by a Division Bench of the Lahore High Court in Mohd. Niwaz v. The Crown (1947) 48 Cri LJ 774 (Law) on the basis of Emperor v. Dalip Singh (1907) 5 Cri LJ 275 (Law) and Sarwa, v. Emperor (1913) 14 Cri LJ 290 (Law). The words 'other than a police officer' have been conveniently overlooked in Abhinandan Jha's case (supra) in giving the Magistrate the power to take cognizance under Clause (c) of Section 190(1) even though the case had come to the Court's notice on a negative police report that is to say. upon information received from a police officer and not upon the Magistrate's own knowledge or suspicion that an offence had been committed

11. Shri Sibal's argument that the filing of a complete chalan under Section 173. Criminal Procedure Code is the final step in the investigations and that the police cannot thereafter file any supplementary chalan is then fully answered by the Supreme Court ruling in Tara Singh v. The State : [1951]2SCR729 . In that case. The police had filed a chalan which they chose to describe as incomplete. The Hon'ble judges of the Supreme Court were however of the view that the chalan was complete as it fulfilled all the requirements of Section 173(1)(a). In spite of this observation the filing of the supplementary chalan giving the names of two material witnesses described as formal witnesses was allowed. A witness would be acquainted with the facts of the case either from his personal knowledge or from the statements made before him by the eye-witnesses. A draftsman and the plan prepared by him could therefore. be material evidence in the case. The same would be true about the report of the Serologist or the Chemical Examiner. It could be a moot point whether a Magistrate recording the dying declaration of the deceased in a murder case would or would not be acquainted with the material facts of the case. Here again the interpretation of the statute was so moulded by the Hon'ble Judges as to advance the cause of justice. The filing of incomplete or supplementary chalans is a practice born out of necessity and has been recognised not only in this Supreme Court ruling but all along in every day life without raising any controversy. Section 173(1) of the Code may also seem to lay emphasis on the expeditious filing of the chalan. It says that every investigation under Chapter XIV shall be completed without unnecessary delay and that as soon as it has been completed a chalan shall be filed. Complete and incomplete are relative terms and the difference only is of degree. The word has not been used in the section in its absolute sense. It has been observed by the Supreme Court in some cases that judicial inquiries and trials can never reach such a state of perfection that there may be no further room for improvement. The observation would also be true of all police investigations. What may appear complete today on the basis of the material so far available may start looking incomplete in the light of fresh material that may be revealed later on. The police may take years if not decades or generations in attaining an absolute state or a high degree of perfection or completion in its investigations and the law does not contemplate that the persons who have been taken into custody may continue rotting in jail until that unattainably high degree of perfection or completion has been reached. It has, therefore been provided in paragraph 4 of Chapter 11-B of Punjab High Court Rules and Orders. Volume-III that even when an investigation is incomplete the proper course is for the accused persons to be sent up promptly with such evidence as has been obtained so that the trial could be commenced without any delay. Volume-III of the Police Rules also contains Rule 27.1 (5) which says that in all serious cases when the accused had been arrested and the prima facie evidence had been collected, the Investigating Officer should send the accused for trial without delay whether the investigation is complete or not. Evidence obtained subsequently can be produced before the Court in a subsidiary or supplementary chalan. These departmental rules which are born out of the practical necessities of a situation are not without any meaning. The Hon'ble Judges of a Division Bench of this Court who decided Mohd. Niwaz v. The Crown (1947) 48 Cri LJ 774 (Law) had held that such departmental interpretations of the statute are of assistance in arriving at a correct construction of the operative parts of the statute where these constructions are not inconsistent with the language employed.

12. It has then been argued by Shri Sibal on the basis of the cases of Khwaia Nazir Ahmad AIR 1945 PC 18 : 46 Cri LJ 413 and Abhinandan Jha : 1968CriLJ97 (supra) that the police and the magistracy function in separate and distinct spheres and that anyone of them cannot entrench upon the jurisdiction of the other, Their Lordships of the Privy Council had, however observed that these two organs of the machinery for the administration of justice have functions which are not overlapping but which are all the same complementary to each other. There is nothing to show that both these organs cannot act simultaneously in their respective spheres of activity or that one must abdicate its functions after the other has taken over. The view taken in Khwaja Nazir Ahmad's case that the Courts could not interfere while the case was still under investigation may appear to have been modified by the view taken by the Supreme Court in S.N. Sharma v. Bipen Kumar Tiwari : 1970CriLJ764 . The High Court can have a limited control or right of interference in the police investigations in exercise of its powers under Article 226 of the Constitution of India even before the chalan has been filed or a Court has taken cognizance of the offence. Khwaia Nazir Ahmad's case had been decided when Article 226 of the Constitution of India was not on the Statute Book and the High Court had powers only under Sections 561-A and 491 of the Code of Criminal Procedure. Even otherwise, there is nothing in Khwaja Nazir Ahmad's case to suggest that the police becomes questions 'officio and loses all powers of investigation after the Courts have taken over. The observation that the Court's functions begin when a charge is preferred before it and not until then cannot be extended to prove the converse proposition that after the Court has taken over the police becomes questions officio. A vehicle can have front wheels with independent suspension and even though they revolve around separate axles they can help each other in keeping the vehicle moving smoothly in the desired direction. We would be impairing the efficiency of the machine if we put one wheel out of commission simply because the other wants to take over exclusive jurisdiction. Even though the functions of the magistracy and the police are entirely different and one cannot impinge its jurisdiction on the other by dictating its own views that does not mean that the two cannot coordinate their activities for the achievement of the common end of doing substantial justice between the parties.

13. The Courts do not lose face or abdicate any jurisdiction if they permit re-investigations by the police after they have once taken cognizance. The step of taking cognizance of an offence or a case can be annulled, revoked, suspended or reviewed as may appear just in a particular case. The material already collected by the police and the material collected at the re-investigations shall all be placed before the Courts. The final decision as to which accused should be proceeded against and which of them are to be discharged or acquitted will rest ultimately with the Courts. The police are not claiming for themselves the right to pass any such final orders. They are only seeking to place before the Court all the available material or information which may help the Courts to come to a correct decision and no just exception could possibly be taken to the course suggested. In the case the Courts do not agree with the opinion formed by the police under Sec- questions 169 to 173 of the Code they can (proceed in the manner suggested by the Supreme Court in Abhinandan Jha's case : 1968CriLJ97 (supra). Courts are known to have proceeded against and convicted persons whose names were given in column No. II of the chalan filed by the police. In this connection reference could be made to the Supreme Court ruling in Raghu-bans Dubey v. The State of Bihar : 1967CriLJ1081 . Similarly Courts are not bound by a Police report that a particular person is guilty. The final decision always rests with the Courts but the police cannot be denied the right to place before the Courts any material information on which that final decision should be based.

14. It has then been argued that cognizance having once been taken by the Magistrate, he must go ahead with and conclude the inquiry without permitting any reopening of the investigations. The suggestion is that whatever additional material is to be collected during the fresh investigations can be placed before the higher Courts who can grant proper relief in revision or appeal. This argument reminds me of a young doctor fresh in his profession who. when consulted by a patient of common cold, advised that the patient should try to catch pneumonia by sitting in a cold draught after a hot bath. Asked how that was going to help the patient the budding doctor replied that he knew the cure for the dread disease but none for the common ailment. Courts Cannot refuse to take preventive measures simiply because the mischief can foe cured by remedial measures. No Court can put itself in such a position of atrophy or hibernation. Having once taken cognizance the Court is not expected to rivet its attention to whatever has been placed before it on the table and to feel unconcerned about the valuable material that may be flowing down the drain at its feet. No Court can refuse to shut its doors to the investigator and to the fresh material that he may choose to place before it on the ground that it was relevant to the inquiry and the final decision that may follow. The Court cannot proceed with closed eyes to ingest the material when the person who had served it is warning the Court about its unwholesomeness. Nothing could bring the Courts into greater contempt than the taking of a stuck-up attitude of this type. According to the Division Bench ruling in Parasnath Pande's case : AIR1962Bom205 (supra). a cognizance once taken could even be annulled by the Magistrate. It is true that police officers sometimes misconduct the investigations but that difficulty has not so far enabled us to discard that agency for the collection of evidence. We also know of the general tendency amongst litigants in this part of the country of roping in of innocent persons along with the guilty. If a single person named in the first information report as an assailant is able to establish his plea of alibi there would hardly be any ground for placing the first information report or the chalan filed on its basis on the pedestal of our worship. Ordinarily one may expect to find a greater proportion of innocents amonst the persons who have promptly surrendered before the police than amongst those who have been evading their arrests for years on end If besides the fourteen persons named in the first information report there are some others who are suspected to be involved in the crime, then I do not see how the police can. without filing any supplementary chalan and without arraigning the new accused place before the Courts for their consideration, the fresh material during the commitment inquiry or sessions trial or appeal etc. I would go even so far as to say that a condemned prisoner may have exhausted all his regular remedies during the inquiry trial appeal or revision etc. and may have had his mercy petitions dismissed toy the executive authority. If during the interval that the prisoner is awaiting his execution the Investigating Officer comes by some material information which establishes the innocence of the prisoner, then the Investigating Officer may be guilty of abetting a murder if he sits over that information and takes no steps to have the death warrants recalled. He would be responsible for a murder even though the hangman can seek protection of the official seal appearing on the death warrant. It would be in a situation like this that the efficiency of the Courts and the investigating agency and the coordination of their functions for preventing miscarriages of justice are put to a real test A step unwittingly taken could be justified as a mistake, but a mistake knowingly committed would be a grave dereliction of duty even if it is not a crime or a sin I am, therefore, not impressed by Shri Sibal's argument that cognizance having once been taken by the Magistrate the inquiry must continue uninterrupted. The course suggested may compel witnesses to perjure themselves or if there is no attempt to get them declared hostile by confronting them with their police statements the Public Prosecutor could be exposed to the embarrassing accusation that he was not doing his duty. Without having before us the material that may be forthcoming at the re-investigations, it is not possible for us to prejudge what future course the proceedings in the Courts below should take. Any careless observation made by this Full Bench at this early stage may preclude the holding of a fair inquiry or trial. A party may feel that it has been prejudiced or condemned before any inquiry or trial had been held and before all the available material had been placed before the Courts.

15. I may then proceed to deal with the decisions which are directly applicable to the questions of law involved in the present case. As mentioned earlier, the Division Bench ruling of the Madras High Court in Divakar Singh's case AIR 1919 Mad 751 : 19 Cri LJ 901 (supra), is the leading case on the subject. This decision was given in a regular second appeal arising out of a civil suit for recovery of damages for a search carried out by a police officer at the house of the plaintiff-appellants. The objections taken inter Alia, were that the officer was not attached to the police station having jurisdiction in the area and that he was of a rank lower than the one specified for the purpose and that he had become questions officio after the filing of the chalan in Court. The last mentioned objection was repelled with the brief observation that the number of investigations in a crime is not limited by law and that when one has been completed, another may foe begun on further information received. It cannot be said that this observation does not give any reasons. It obviously says that there is nothing in law to limit the number of investigations that may be carried out in case fresh information has been received by the police and there was no reason why the police could not rely on its resourcefulness or initiative to see that any available material relevant to the offence being investigated does not run waste. The brief observation is so artistically put that it may seem to create a better impression than the arguments that had gone on before us for days together. The quality of an argument could amply make up for the brief space that it occupies in the voluminous legal tomes. Shri Sibal is not being fair to the Hon'ble Judges who unreservedly approved of and fully relied upon the ratio of this ruling in later cases, namely. Mohinder Singh v. Emperor AIR 1932 Lahore 103 : 33 Cri LJ 97: Mohd. Niwaz v. The Crown (1947) 48 Cri LJ 774 (Law) and Om Parkash v. The State I LR (1964) 1 Punj 750. None of these four rulings, (having a direct bearing on the subject, had been cited before my Lord Mital J., when he decided Kulwant Singh's case (11970) 72 Pun LR 33 (supra). It is my Lord's priyilege to say how far these cases, if cited, would have made a difference to the decision of Kulwant Singh's case but I do not see how a Judge sitting alone could have laid down a proposition of law in direct conflict with the one laid down earlier by two Division Benches and a Single Bench of this Court The Single Bench decision in Emperor v. Ali AIR 1832 Law 611 : 33 Cri LJ 912 had been relied upon by my Lord. The Division Bench, who decided Mohd. Niwaz's case (supra), had distinguished the ruling in All's case. There is nothing on record to support Shri Sibal's argument that the point of distinction was that the Court had taken cognizance of the offence in Ali's case while no such cognizance had been taken by a Magistrate in Mohd, Niwaz'g case, . The stage to which the commitment inquiry or the sessions trial have advanced may appear to have no bearing whatsoever on the questions of law involved in our case. This would be apparent from the Single Bench decision of this Court in Om Parkash's case (supra). The point of distinction that may appear to have weighed with the Division Bench in Mohd. Niwaz's case was that in Ali's case, the Investigating Officers had not made any request for permission to re-investigate the case on the basis of receipt of any fresh information whereas such a request had been made in Mohd. Niwaz's case. The two rulings had, however, laid down diametrically opposite principles of law and Ali's case decided by a Single Bench had ceased to be good law after the Division Bench rulings in the cases of Mohinder Singh and Mohd. Niwaz. The word 'distinguish' may appear to have been used more out of courtesy or politeness. If we want the subordinate Courts to follow our decisions, we have to use more explicit language and not to mince words which are likely to be misunderstood. Politeness apart, it is more important that the law laid down by us is correctly followed and applied by the subordinate Courts. Without meaning any disrespect. I would like to say that the Single Bench decisions in the cases of Ali and Kulwant Singh (supra), do not lay down good law in view of the Division Bench rulings in the cases of Mohd. Niwaz and Mohinder Singh, These Division Bench rulings were correctly followed by a Single Bench of this Court in Omparkash's case. As already observed above, the taking of cognizance by a Magistrate does not make any material difference and the police can re-investigate a case at any stage on discovery of fresh material or information. No permission of the Court was at all necessary for starting the re-investigations but as applications for starting contempt proceedings had been made against the Investigating Officers, they may appear to have been well advised in seeking this permission by way of abundant caution. The application for permission having been made, should have been readily granted by the Magistrate!. In this connection, the following observations of the Division Bench are reproduced below from Mohd. Niwaz's case (supra):--

The number of investigations into a crime by a Police Officer is not limited by law and when one has been completed, another may be begun on further information received.

Where after investigation into an offence the Police forwarded a challan to a Court of competent jurisdiction but on further information finding certain other persons, and not the persons named in the Challan, involved in the offence sought and obtained order of the Magistrate to make further investigation:

Held, that in view of Sub-section (1) of Section 156, Criminal P. C., such an order by a Magistrate was in fact not necessary but since the matter was already before the Court, it could not be said that the police acted irregularly or improperly in obtaining the sanction of the Magistrate to the fresh investigation or that the order of the Magistrate was invalid, though the case sought to be investigated was altogether different from that already investigated.

16. Shri Sibal had cited before us a large number of rulings but in every case, he was trying to draw his own inferences or deductions by making an unauthorised extension of the observations of the Hon'ble Judges. It has been observed by the Hon'ble Judges of the Supreme Court in State of Orissa v. Sudhansu Sekhar Misra : (1970)ILLJ662SC , that a decision is only an authority for what it actually decides What is of the essence of a decision is its ratio and not every stray observation found therein nor what may logically follow from the various observations made therein. The following observations made by Earl of Halsbury L. C. in Quinn v. Leathern 1901 AC 495. were reproduced in that rulings:

Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law. but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.' It is not a profitable task to extract a sentence here and there from a judgment and to build upon it.' Similarly it was observed by the Hon'ble Judges of the Supreme Court in B. Shama Rao v. Union Territory of Pondicherry : [1967]2SCR650 , that a decision is binding not because of its conclusions but in regard to its ratio and the general principles laid down. The result that may have followed in a particular case because of its own peculiar facts is not to be the guide in future cases). What we have to draw out from the ruling and to follow in later cases is the basic ratio or the principle of law laid down. A judicial pronouncement or a legislative enactment or a chapter in a statute present to us a well coordinated scheme or clear picture only because the various ideas, reasons, arguments or legal provisions are delicately fitted in and adjusted like the pieces of a complicated jigsaw puzzle. Anyone who disturbs the arrangement by pushing or straining at the pieces may blur the image or jar it out of shape. The task of presenting a clear picture would be still more difficult if we were to pick pieces from different jigsaw puzzles and then to try to fit them into a well-harmonised co-ordinated scheme. Anyone trying such an impossible task would naturally go into jitters after he has made a few futile attempts. A disjointed patch work so created may have bright hues or stamp of authority here and there but unless a breath of life or a faint pulse beat have been infused into the framework, the effort could be thrown out as logically unacceptable. Before Shri Sibal had proceeded to cite some of these rulings before us. he had frankly conceded that none of these was fully applicable to the facts of our case. He selected an observation here and a remark there and then tried to knit these up out of context in a manner that best suited his purpose. I leave it to my learned brothers on this Bench, if they feel impressed by Shri Sibal's submissions, to present his view point, polished at its best. To my mind, all that Shri Sibal had succeeded in doing was to produce an ill-attuned staccato effect.

17. In the ultimate analysis, it could be observed that I have not added anything substantial to the sterling or intrinsic worth of the briefly stated ratio decidendi of the Division Bench ruling in Divakar Singh's case (supra). Every word of that statement covering about a couple of lines is so artistically set and is so pregnant with meaning that to a discerning eye. it conveys in effect that the situation facing us having been left unprovided for by statute and their being no bar, there is no dearth of power to enable one to take the initiative and to forge ahead for the advancement of justice. The inherent powers shall inexorably burst forth as springs or founts of justice through any crevices or gaps left uncovered by statute to give us a unified and well-harmonis-ed system of laws which secure to the citizen justice rather than a blind adherence to its cold imprint. The Hon'ble Judges of the Division Bench never felt bothered by the stage that the chalan already filed in Court had reached and whether or not the Court had taken cognizance of the offence or the offender of the lease. The police was sought to be given the right to take the initiative in the matter by going ahead with the re-investigations of the case even without any permission from the Court. I have deliberately used the word 'intiative' here as I might have alarmed some people in the conservatively knowledgeable circles by saving that even the police had been allowed to use its resourcefulness or innate powers to meet an unforeseen situation in the ends of justice. No entrenchment into the Court's jurisdiction and no contempt of its lawful authority were found to have been committed and the Hon'ble Judges had not felt oversensitive of their powers or prestige as long as it was found that the police were only acting out of an immanent sense of duty to help the Court. The brief statement of the law in Divakar Singh's case AIR 1919 Mad 751 : 19 Cri LJ 901 is such a self-evident truth that no necessity was felt of supporting it by and further reasoning. Nobody ever advanced reasons in support of the simple statement that two and two make four. The ratio of Divakar Singh's case having been unquestionably followed by three Benches of this Court should have been taken to have set at rest all controversy on the subject so far as this Court was concerned. I agree with Shri Sibal that a larger Bench is generally constituted to examine the correctness of the rulings given by smaller Benches but the upseting of a well-established sound proposition of law is not the only manner in which a larger Bench can justify its constitution or show off its independence of judgment.

18. Mohd. Niwaz's case (1947) 48 Cri LJ 774 (Law) is then described to be an authority for the submission that the Magistrate should continue with the inquiry on the basis of the chalan already filed in Court even if the matter is allowed to be re-investigated. The last paragraph of that judgment is a complete answer to the submission. The later part of the judgment which deals with the second question referred for the decision of the Division Bench had not even been read out to us for the obvious reason that this question has not arisen in the present case. Before the fresh material is before us. we cannot say that none of the persons against whom the chalan was filed by the Station House Officer on 25-10-1971 is innocent. Ill-conceived duplicate inquiries and trials can mean so much harassment not only to the accused but also to the Courts and the prosecution. The argument that remedial measures can be taken at any later stages does not impress me in the least.

19. My answer to the first part of the question formulated for the decision of the Full Bench earlier in this judgment is, therefore, in the affirmative. My answer to the second part of that question is in the negative.

20. Accepting the Sessions Judge's recommendation. I quash the Committing Magistrate's order dated 30-11-1971 and permit the police to re-investigate the case and to file a supplementary chalan. All the police diaries relating to this case shall thereafter be placed before the Magistrate who shall pass such orders as may appear just and proper in the light of the material placed before him after re-investigation.

M.R. Sharma, J.

21. One Kanwar Iqbal Singh lodged first information report No. 92 at Police Station, Baghapurana, on March 31, 1971. It was alleged therein that fourteen persons had conspired together to commit the murder of Ranjodh Singh. The police registered a case under Sections 302/307/148/149. Indian Penal Code, and under Section 25 of the Indian Arms Act against these persons. On October 25. 1971. Gurcharan Singh. Station House Officer. Police Station. Baghapu-rana. submitted the chalan against them. Out of the accused persons, six were arrested and produced before the Court in custody and about the remaining 8. it was reported that they were absconding The learned Committing Magistrate, after satisfying himself that the papers required to be furnished to the accused persons under Section 173(4) Criminal Procedure Code, had been supplied, proceeded with an enquiry under Chapter XVIII of the said Code. On November 27, 1971. the prosecuting agency presented an application to the learned Magistrate that further investigation be allowed to be made into the case because it had been reported to the higher authorities that the investigation conducted by the Deputy Superintendent of Police was inconclusive. It was alleged that fresh facts had been brought to the notice of the authorities which proved that some innocent persons had been involved in the case and some who were really guilty had been left out. The case for investigation had at that stage been entrusted to Shri O. P. Sharma, Superintendent of Police (C. I. D.). The learned Committing Magistrate vide his order dated November 30, 1971. dismissed this application by following a Single Bench decision of this Court in 1970-72 Pun LR 33. The learned Magistrate observed that after a report had been submitted before him under Section 173(4) Criminal Procedure Code, no further investigation could be conducted and since he had already taken cognizance of the case, the grant of permission to the prosecuting agency to re-investigate the matter would be tantamount to the abandonment of his jurisdiction. On December 1, 1971, the learned Committing Magistrate recorded the statements of two prosecution witnesses.

22. Feeling aggrieved against the order dated November 30, 1971. passed by the learned Committing Magistrate, the State Government filed a revision petition before the learned Sessions Judge, Ferozepur, who vide his order dated February 17. 1972. recommended that the order passed by the learned Committing Magistrate be set aside and the prosecution be allowed to re-investigate the case. In making this recommendation the learned Sessions Judge relied upon (1947) 48 Cri LJ 774 (Lah); AIR 1932 Law 103 : 33 Cri LJ 97 and I L R (1964) 1 Punj 750. The case came up before Tuli. J. on June 5, 1972, who ordered that in view of the conflicting judicial opinion the same should be placed before a Division Bench after obtaining orders from Hon'ble the Chief justice. The Division Bench before whom the case was put up ordered that in order to resolve the controversy, it should be decided by a Full Bench, This is how the case has come up before us for decision.

23. In my opinion the following questions arise for consideration in this case:--

(a) Can the police continue or start fresh investigation in a case after the Court has taken cognizance of the crime?

(b) Does it make any difference if some of the accused persons were absconding and were arrested after the Court has taken cognizance of the crime qua some of the accused who are produced before it?

(c) Can the Court itself permit the police to conduct further investigation in the case after it has taken cognizance of the crime If so. under what circumstances, can it do so ?

24. My learned brother Suri J. made an exhaustive survey of the case law relating to the inherent powers of a Court and observed that the number of investigations to be conducted by the police were not limited by law. The right of a Court to suspend cognizance in a suitable case was rightly conceded. Regarding a Division Bench judgment of the Madras High Court in AIR 1919 Mad 751 : 19 Cri LJ 901. it was approvingly observed that the Hon'ble Judges never felt bothered by the stage that the chalan had been filed in Court or not and whether or not the Court had taken cognizance of the offence. Out of the questions formulated for decision by this Full Bench, the first was answered in the affirmative and the second in the negative.

25. I have invariably sought and received light from the illuminating judgments rendered by my learned brother C. G. Suri J. In this case, however, I have not been able to persuade myself to make the same approach to the problem involved.

26. If such wide powers are conceded to the investigating agency and subordinate criminal Courts are advised to be liberal in suspending cognizance, such drastic results can follow as cannot be imagined. Though I have been impelled by these considerations to strike a somewhat discordant note, yet it does not mean that my respect for the opinions expressed by my learned brother has in any way diminished.

27. Whenever a question of law domes for determination by a Court, it should, as far as possible, be decided with reference to the express provisions of the statute under which it arises. It is often said that the Legislature, as the representative of the people and the true repository of all wisdom itself provides remedies for all ills. It takes into consideration the conflicting interests and evolves a formula which, in its general application, does least injustice to either side and produces an optimum meeting point. The Code of Criminal Procedure hereinafter referred to as the Code, has been brought on the statute book to promote the cause of justice in criminal cases. Whenever a problem arises under this Code, it has to be tackled by giving due importance to all the provisions of the Code instead of highlighting one and ignoring the other. Public interest requires that a person guilty of an offence should be adequately punished, but at the same time it is not the policy of law that an innocent person should be visited with evil consequences.

27-A. The initial presumption of innocence in favour of an accused, in a speedy and a fair trial, in accordance with the principles of natural justice, by an impartial Court acting on the principle that justice should not only be done but also appear to be done, are essential features of our criminal jurisprudence, A perusal of the various provisions of the Code shows that the legislature has tried to harmonise and to strike a happy balance between these salutary principles. Justice when viewed alone either from the point of view of the prosecution or of the accused person becomes an illusory concept incapable of being achieved. For instance, requests for adjournments, for the production of additional evidence and other requests of the like nature are often made both by the prosecution and the accused persons in the name of justice. It is not unoften when an unsuccessful party has a feeling that justice has not been done to it. But a Court of law has to decide such a matter in accordance with the provisions of the Code regardless of private feelings and its own emotions. To my mind remedies are provided in the Code for almost all the problems which arise in the course of a criminal trial. I shall endeavour to further illucidate this point when I come to the question of inherent powers of a Court and their exercise under given conditions in the latter part of this judgment. At this stage, it appears proper to examine the provisions of the Code on the point.

28. Section 5 of the Code lays down that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions herein contained. Offences under the other laws have also to be dealt with similarly unless a special procedure to the contrary is provided for in the special laws under which those offences are created.

29. In : 1968CriLJ97 it was observed as under:--

In order, properly to appreciate the duties of the police, in the matter of investigation of offences, as well as their powers, it is necessary to refer to the provisions contained in Chapter XIV of the Code. That chapter deals with 'Information to the Police and their Powers to investigate ; and it contains the group of sections beginning from Section 154. and ending with Section 176. Section 154 deals with information relating to the commission of a cognizable offence, and the procedure to be adopted in respect of the same. Section 155, similarly deals with information in respect of non-cognizable offences. Sub-section (2) of this section, prohibits a police officer from investigating a non-cognizable case, without the order of a Magistrate. Section 156 authorises a police officer, in-charge of a police station, to investigate any cognizable case without the order of a Magistrate. Therefore, it will be seen that large powers are conferred on the police. in the matter of investigation into a cognizable offence. Sub-section (3). of Section 156, provides for any Magistrate, empowered under Section 190, to order an investigation. In cases where a cognizable offence is suspected to have been committed, the officer incharge of a police station, after sending a report to the Magistrate, is entitled under Section 157 to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender. Clause (b), of the proviso to Section 157(1), gives a discretion to the police officer not to investigate the case, if it appears to him that there is no sufficient ground for entering on an investigation. Section 158 deals with the procedure to be adopted in the matter of a report to be sent under Section 157. Section 159 gives power to a Magistrate on receiving a report under Section 157, either to direct an investigation or himself or through another Magistrate subordinate to him, to hold a preliminary enquiry into the matter, or otherwise dispose of the case, in accordance with the Code. Sections 160 to 163 deal with the power of the police to require attendance of witnesses, examine witnesses and record statements. Sections 165 and 166 deal with the power of police officers, in the matter of conducting searches during an investigation, in the circumstances, mentioned therein. Section 167 provides for the procedure to be adopted by the police, when investigation cannot be completed in 24 hours. Section 168 provides for a report being sent to the officer, in-charge of a police station, about the result of an investigation, when such investigation has been made by a subordinate police officer under Chapter XIV. Section 169 authorises a police officer to release a person from custody, on his executing a bond to appear, if and when so required 'before a Magistrate, in cases when, on investigation under Chapter XIV. it appears to the officer, in-charge of the police station, or to the police officer making the investigation that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Section 170 empowers the officer, incharge of a police station, after investigation under Chapter XIV. and if it appears to him that there is sufficient evidence, to forward the accused, under custody, to a competent Magistrate or to take security from the accused for his appearance before the Magistrate, in cases where the offence is bailable. Section 172 makes it obligatory on the police officer making an investigation, to maintain a diary recording the various particulars therein and in the manner indicated in that section. Section 173 provides for an investigation, under Chapter XIV. to be completed, without unnecessary delay and also makes it obligatory on the officer in-charge of the police station to send a report to the Magistrate concerned in the manner provided for therein, containing the necessary particulars.

30. The Court also followed with approval the following observations made in State of West Bengal v. S N. Basak : [1963]2SCR52 :

It is also clear that the final step in the investigation viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in-charge of the police station.

31. Before the enquiry or the trial commences the investigating officer has to supply free of cost a copy of such a report and other documents to the accused person. It is, therefore, obvious that after the investigating officer has sent a complete report to the Magistrate era-powered to take cognizance of the offence and he had supplied the necessary copies to the accused persons, his duty comes to an end. At this stage, the Magistrate has to decide whether he should take recognizance of the offence or not. The taking of cognizance' has not been defined in the Code, but this expression has been judicially interpreted in Superintendent and Remembrancer of Legal Affairs. West Bengal v. Abani Kumar : AIR1950Cal437 . as follows:

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 proceeding, in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200 and thereafter sending it for enquiry 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.

This proposition of law was approved by the Supreme Court in R. R Chari v The State of Uttar Pradesh : 1951CriLJ775 . A Magistrate ordering further (enquiry under Section 156(3) or issuing a search warrant for the purpose of investigation cannot be said to have taken cognizance of the offence. He takes cognizance only when he applies his mind to the contents of the police report for proceeding in a particular way under the other provisions of the Code. The Code shows that up to the stage when the police submits a report under Section 173 of the Code, the Magistrate cannot interfere with the functions of the police. When such a report is submitted before a Magistrate, he can. of course, direct further investigation under, Section 156(3) of the Code, .but after the police has taken the final steps of submitting the report under Section 173 and after such report has been accepted by the Magistrate and he takes cognizance of the offence inasmuch as he makes up his mind to proceed in a particular way, the functions of the police comes to an end. After this stage, the Court has to give a judicial decision in the matter after hearing the prosecutor and the accused in accordance with law. In Emperor v. Khwaja Nazir Ahmed AIR 1945 PC 18 : 46 Cri LJ 413. it was observed thus:

In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it Would, as their Lordships think, be an unfortunate result; if it should be held possible to interfere with statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function.

32. The words leaving each to exercise its own function' are significant and indicate that after the Court has taken cognizance of the crime. it is no business of the police to continue with the investigation or to start a fresh investigation. Any other interpretation of the Code will make the functions of the Judiciary and the Police as overlapping and not complementary. At the time when a Magistrate takes cognizance of an offence, if the accused is present before him in custody, he. upon consideration of the documents accompanying the police report, and after giving both the sides an opportunity of being heard, either discharges him or frames a charge against him. The framing of a charge is meant to convey a definite information to the accused about the precise case which he has to meet. If after that stage, the investigating agency were to continue with or to start a fresh investigation, the provisions regarding the framing of charge would be reduced to a mere farce. Besides, the trial cannot proceed till the investigation is completed. This is at least so in those cases where there is a single accused. If the Magistrate cannot interfere with the functions of the investigating agency in exercise of his inherent powers as laid down in Khwaia Nazir Ahmed's case AIR 1945 PC 18 : 46 Cri LJ 413 (supra), then he would be obliged to stay the trial at the mere whim of the investigating officer. In other words, executive action may, in such a situation, be able to control the judicial functions of a Court established by law. Again, it is not obligatory upon the investigating officer to appraise the accused of the day to day action taken by him. Though an accused has a right to have his trial speeded up, yet when the trial is stayed, because of a fresh spurt in the activities of an investigating officer, he would be unable to effectively oppose adjournments. The Courts trying criminal cases may also be criticised as playing second fiddles to the prosecuting agency. In theory, it shall be open to an investigating officer to embark on a fresh investigation after the prosecution witnesses have been examined and their statements are not to the liking of the investigating officer. In short, if the investigation is allowed to be continued or restarted at any stage after the Court has taken cognizance of the crime, a situation will be created which even a common man would not be able to tolerate without entertaining serious apprehensions.

33. The above-mentioned conclusion can also be supported on reference to some other provisions of the Code, In case of private complaints, a Magistrate is expected to record the statement of the complainant and the witnesses present if any. as and when a complaint is filed before him. It cannot be disputed that as soon as the Magistrate records the statements of the complainant, he would be deemed to have taken cognizance of the offence. Under Section 202 of the Code, a Magistrate may, for reasons to be re-corded in writing, postpone the issue of process for compelling the attendance of the person complained against and may forward the case for investigation to a police officer. Thus, the Legislature was alive to the situation that in some cases even after the Magistrate had taken the cognizance of the offence, the case may have to be investigated by a police officer. For this purpose, an express provision has been made in Section 202 of the Code. If a right to carry on further investigation was desired to be given to an investigating officer in a case instituted on a report lodged before him. it was quite easy for the Legislature to have made an express provision in this behalf in Chapter XIV of the Code.

34. These considerations apart, the contra view cannot be supported because of the observations made by the Supreme Court of India in some cases. In : [1963]2SCR52 (supra), the Court. while considering the right of the High Court to interfere under Section 561-A. Criminal Procedure Code, observed as under:

There was no case pending at the time excepting that the respondent had appeared before the Court and had surrendered and had been admitted to bail.' The right of the Court to interfere was negatived expressly on the ground that no case was pending before it. In Jamuna Singh v. Bhadai Shah : 1964CriLJ468 . the Court had an occasion to consider the question whether an appeal against acquittal lay at the instance of a private complainant whose complaint had been referred by the Magistrate to the police for investigation. The Court observed as under:--It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under Section 156(3) of the Code of Criminal Procedure. Once, however, he took cognizance he could order investigation by the police only under Section 202 of the Code of Criminal Procedure and not under Section 156(3) of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under Section 200 of the Code of Criminal Procedure that he had taken cognizance of the offences mentioned in the complaint it was open to order investigation only under Section 202 of the Code of Criminal Procedure and not under Section 156(3) of the Code.' It may be said that the question involved in this case was not directly under consideration of the Supreme Court. At the same time it cannot be denied that even the obiter dicta of the Supreme Court is binding on the High Courts. To my mind this case furnishes a clear authority for the proposition that after a Magistrate has taken cognizance of the crime on a police report he cannot, under normal circumstances, order a further investigation into the matter under Section 156(3) of the Code. For all these reasons. I am of the considered view that it is not open to the investigating agency either to continue or to initiate a fresh investigation after the Court has taken cognizance of the crime.

35. A necessary corollary of the above conclusion is that an investigating officer is not debarred from receiving additional information in connection with the crime under investigation and verifying the same so long as the Magistrate has not taken its cognizance. The final step in submitting the report under Sac. 173 (4) of the Code in the absence of any other legal bar, is fina aua a particular stage. An investigating officer is an agency for collecting facts, the veracity of which is to be tested in a judicial trial. He himself does not give a definitive judgment about the rights of the parties. So long as the ball remains legally in his Court he can always retrace his steps. Cases are not wanting in which investigating officers having recorded the final report came across additional material which necessitated the amendment of such reports. If a report under Section 173(4) of the Code is filed in Court when the Presiding Officer is absent or if one is filed in Court in the presence of the Presiding Officer who cannot apply his mind for acting in a particular way under the other provisions of the Code due to rush of work or lack of time, it makes no difference in principle whether this report continues to be on the table of the Presiding Officer instead of lying in the cupboard of the investigating officer. The functions of the latter really come to an end only when the judicial functions have commenced -- in other words when the Magistrate has taken cognizance of the offence. An executive authority cannot be allowed to tinker with a cause for which a judicial process for its determination has begun unless of course the Court itself orders to the contrary,

36. But can a criminal Court grant such a 'Permission? If so. what are the circumstances under which such a permission should be granted? These are some of the pertinent questions which remain to be answered. The Code has made exhaustive provisions regarding most of the matters connected with the administration of justice on the criminal side, including the constitution of courts, their jurisdiction, their ability to take cognizance of crimes on police reports as well as on private complaints and the procedure to be followed at enquires or trials, let cases and circumstances do arise which are not covered by the express words of the Code. The Legislature can foresee only natural and ordinary events. It cannot make express provisions against all inconveniences which are infinite in number. Again, the rules of procedure may be abused by a party to a cause. In other words, formal language employed in the enacted provisions may he highlighted more than the substance in these provisions. In all such cases a Court of law can take action for promoting the cause of justice under what is commonly known as its 'inherent powers'. These powers are justified on the principle that when the law gives a person anything, it also gives him that, without which it cannot exist.' Section 561-A of the Code expressly preserves the inherent powers of the High Court. Such powers cannot on principle be said to be lacking in subordinate Courts, they, having been charged with the duty of administering justice. and possess, as a matter of right, all those powers which are necessary for the due performance of this duty, in Bhagwan Singh v. Mst. Gurnam Kaur 1966-68 Pun LR 127. restoration of a petition under Section 488, Criminal Procedure Code, dismissed in default by a Magistrate was justified on the basis of inherent powers. In Hansraj Harjiwan Bhate v. Emperor AIR 1940 Nag 390. it was held that:

The Criminal Procedure Code is an exhaustive one. only with regard to matters specifically dealt with bv it. Absence of any provision on a particular matter does not mean that there is no such power, and the Court may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited by law (Rahim Sheikh v. Emperor AIR 1923 Cal 724 : 24 Cri LJ 677.

The same view was reiterated in The State v. Sohan Lai .

37. But in the very nature of things, it is an extraordinary power and has to be exercised with great care and caution. These powers cannot be invoked where another remedy is available. No Court can invent new categories of inherent jurisdiction. If a matter is covered by the express letter of law. the Court cannot give a go-by to the statutory provisions and instead evolve a new procedure in the garb of inherent jurisdiction. Or. else, there would be no need of having the Code on the statute book. The Legislature alone confers jurisdiction on a Court to do justice in a class of cases and the Court takes the aid of these powers for properly fulfilling the task assigned to it. The absence of an express statutory provisions on the subject and the desire to prevent abuse of the process are the sine qua non of the exercise of these powers.

38. I think it would be more proper to emphasise the negative aspect of the application of these powers. If the Legislature itself could foresee the occasions when such powers could be exercised, it would be improper on the part of the Courts to enumerate such occasions.

39. In Khushi Ram v. Hashim AiMl 1959 SC 542 : 1959 Cri LJ 658, their Lordships observed thus:--

It is unnecessary to emphasise that the inherent power of the High Court under Section 561-A icannot be invoked in regard to matters which are directly covered by the specific provisions of the Code; and the matter with which the learned Judge was concerned in the present proceedings is directly covered by Section 215. Therefore, in our opinion the learned Judge was clearly in error in allowing his inherent power to be invoked under Section 561-A and in setting aside the order of commitment.

In R. P. Kapur v. State of Punjab : 1960CriLJ1239 while dealing with the scope of Section 561-A of the Code of Criminal Procedure, the Supreme Court made the following observations:

It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice, Ordinarily, criminal proceedings instituted against an acteused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exeflcise of this inherent jurisdiction.

In short, inherent powers are exercised by a Court in extremely rare cases, namely, where there is no express provision in the statute for remedying the wrong complained of. for preventing the abuse of the process of the Court and for promoting the interest of justice, if, but for the exercise of such powers, manifest infustice would result in the case. As observed by the Supreme Court in R. P. Kapur's case (supra) it is neither possible nor desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. This matter has to be decided by a Court on the facts and circumstances of each case. As and when an unforeseen situation justifying the exercise of these powers crops up in the course of a trial the Court trying the case must come to its own conclusion after hearing all concerned appearing before it, whether it should exercise these powers or not. The subject does not admit of a priori categorisation or enumeration.

40. A question may now be posed -- what then should the prosecution do if after the Court has taken cognizance of a crime it bona fide holds a belief at a time when an important aspect of the case deserves to be re-investigated? Is a Court competent to suspend the cognizance of a crime in a suitable case, on an application filed either by the accused or by the prosecution? In order to properly appreciate this problem it becomes necessary to find out whether there is anything which debars a Magistrate to review his decision in relation to the taking of cognizance of a crime. The only provision which is relevant for this purpose is Section 369 of the Code. Under this provision, a criminal Court cannot review its judgment. While taking cognizance of a crime, a Magistrate does not pass any judgment. As already noticed, the Magistrate takes cognizance when he applies his mind to the contents of a criminal complaint and records the statement of the complainant. In a case instituted on the police report a Magistrate can be deemed to have taken cognizance of the crime after he accepts the police report and proceeds to act under Section 251A of the Code. The fact whether the Magistrate has taken cognizance of a criminal offence or not has to be inferred by the action taken by him at the initial stage of the trial. It may be regarded as an interlocutory decision but can by no stretch of imagination be considered to be a final judgment in the case. In other words because of no express prohibition in the Code on this subject the Magistrate can either withdraw or suspend the cognizance taken by him. Once this impediment is removed the case is relegated to the stage of police enquiry entitling the investigating agency to renew its activities. It is needless to reiterate that the Magistrate will be competent to take this action only under his inherent powers and subject to all those conditions under which these powers are commonly exercised.

41. In AIR 1955 SC 196 : 1955 Cri LJ 526, the Court was concerned with a case under Section 5(2) of the Prevention of Corruption Act, An argument was raised that investigation having been conducted bv an officer subordinate to the Deputy Superintendent of Police, the accused could not be tried on the basis of the material collected in an enquiry held by an unauthorised officer. This argument was accepted by the Supreme Court in the following terms:

When therefore, the Legislature thought fit to remove the protection from the public servants in so far as it relates to the investigation of the offences of corruption comprised in the Act by making them cognizable it may be presumed that it was considered necessary to provide a substantial safeguard from undue harassment by requiring that the investigation is to be conducted normally by a police officer of a designated high rank. Having regard therefore to the peremptory language of Sub-section (4) of Section 5 of the Act as well as to the policy apparently underlying it is reasonably clear that the said provision must be taken to the mandatory.

It was further observed by their Lordships of the Supreme Court:

It does not follow however that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage the Court while not declining cognizance will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for.

Such a course is not altogether outside the contemplation of the scheme of the Code as appears form Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by 'he police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to 'obviate the prejudice that may have been caused there by toy appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537, Criminal Procedure Code, of making out that such an error has in fact occasioned a failure of justice.. ... .... ... ...

In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such investigation as may be called for wholly or partly, and by such officer as it 'considers appropriate with reference to the requirements of Section 5A of the Act. It is in the light of the above consideration that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined.

42. The use of the words 'while not declining cognizance', postulates that the Court had taken cognizance of the crime when the defect was brought to its notice. It was held that a Special Judge, who. for purposes of procedure at the trial, being in the position of a Magistrate trying a warrant case, had inherent powers to order re-investigation.

43. This view, was followed by a Division Bench of the Bombay High Court in Parasnath Pande v. State : AIR1962Bom205 Naik. J.. speaking for the Bench. interpreted the dicta of their Lordships of the Supreme Court in the following terms:

In that situation, their Lordships have suggested a particular course to bf followed by the Magistrate and it is this that, the Magistrate should not refuse to take cognizance of a case but should suspend the judgment and take necessary steps to get the illegality cured and the defect rectified by ordering such investigation as the individual case may call for.

44. In my humble opinion, the phrase 'suspend the .judgment' was used to convey the impression that the Special Judge should suspend the cognizance of the crime; for the only impediment in the way of the police to conduct further investigation is the cognizance of the crime taken by the Magistrate and this impediment can be removed by the Magistrate himself by suspending cognizance.

45. If this step has to be taken by the Magistrate in the course of a criminal trial, then, in the very nature o things, he has to give a judicial decision after hearing all the parties who are interested in the result of the trial. Whether the Court acts suo motu or on the application of an interested party, it has to take into consideration the nature of allegations upon which cognizance is sought to be suspended, the bona fides of the investigating agency if a request emanates from them, comparative hardship Which may be caused to either of parties if such a request is acceded to or not and last of all the ends of justice which is the most dominant consideration in a criminal trial. The permission to conduct further investigation cannot be given as a matter of course and it would certainly not be given if the wrong complained of can be remedied by resorting to other provisions of the Code. For instance, if additional evidence is sought to be brought on record, the Court will first have to see whether adequate relief can be given under Section 540 of the Criminal Procedure Code or not.

46. When permission to make further investigation is granted by a Court after a judicial determination of the matter, no one would be able to say with any justification that the Court was trying to favour either an executive authority like the investigating agency or the accused person arrayed before it, nor could any objection based on the principles of natural justice be raised against the procedure adopted by the Court, This interpretation of law besides being based on all the relevant provisions of the Code as judicially interpreted, also tends to make the Code more logical. I am of the considered view that a Magistrate can suspend the cognizance of a crime taken j by him in order to ensure a free and fair; trial in accordance with these provisions of law. H. N. Rishbud's case : 1955CriLJ526 (supra} provides an example of an illegality committed in the course of the investigation, but there is no reason to assume that a similar situation may not arise in the course of a trial. When can a situation like this be said to have arisen depends upon the facts and circumstances of each case and will have to be determined bv the trial Court itself.

47. When the result of the fresh investigation comes to the notice of the Court in the form of an additional report under Section 173(4) of the Code, the Court withdraws the suspension of the cognizance qua those who were arrayed before it as accused persons earlier, and applies its judicial mind for taking cognizance of the crime against those persons who are newly sent up for trial. The effect of withdrawal of suspension of cognizance is that the cognizance initially taken stands revived automatically. Consequently, the case of the accused persons originally challaned would have to be decided judicially, even if the investigating agency makes a negative report regarding them as a result of the fresh investigation. Regarding those persons whose names are mentioned in the second report under Section 173(4) of the Code, the Court may take cognizance of the offence if the investigating officer prefers a charge against them. It may also proceed against them even if the police sends a negative report regarding them as laid down by their Lordships of the Supreme Court in : 1968CriLJ97 .

48. Shri Tiwana the learned Deputy Advocate-General, has submitted that the filing of incomplete charge-sheets and chalans which is a time-honoured practice would not fit in with the view of law that I have taken. The learned Counsel relied upon Rule 4 appearing in Part B Chapter 11-B of the Rules and Orders of the Punjab High Court (Volume III), which reads as under:--

rdinarily when an investigation is incomplete the proper course is for the accused person to be sent up promptly with such evidence as has been obtained and for the trial to be commenced at once bv the Magistrate and proceeded with as far as possible and then adjourned for further evidence. In the opinion of the High Court a remand to police custody ought only to be granted in cases of real necessity and when it is shown in the application that there is good reason to believe that the accused can point out property or otherwise assist the police in elucidating the case.' Reliance was also placed upon Rule 27.1 of the Punjab Police Rules Volume III. which is to the following effect:

In all serious cases when the accused has been arrested and prima facie evidence has been produced the investigating officer shall send the accused for trial without delay whether the investigation is complete or not. Witnesses should accompany such chalan and the same arrangements for the prompt recording of evidence as laid down in Sub-rule (4) above should be observed. When available evidence has been recorded remands or adjournments under Section 167 or 344, Code of Criminal Procedure shall be arranged as may be necessary. Evidence obtained subsequently shall be produced before the Court by a subsidiary chalan.

49. On the basis of these provisions it was then submitted that if the trial was to commence before a Magistrate on the basis of an incomplete report then if the view taken by me is correct, the police would not be entitled to finish the remaining part of the investigation. It was also urged that some of the accused might be absconding and the investigating officer would after sending up a charge-sheet against the arrested accused be not in a position to investigate the crime against the absconding accused. According to the learned Counsel the rule laid down by me does not stand the test of reasonableness when .considered in the light of these situations. I find no merit in this submission. The contingency arising out of cognizance taken on an incomplete chalan can be explained away on the hypothesis that the Court takes a conditional cognizance of a crime qua those accused persons who are put up before it. The grant of permission to the investigating agency to carry on its activities is implicit in this situation. Supplementary reports under Section 173(4) of the Code were sometimes submitted for producing additional evidence. This course is authorised under Section 540 of the Code. If it is within the competence of a Magistrate to receive additional evidence under an express provision of law the receipt of such evidence does not become illegal if it is made pursuant to a police report. When the investigating officer expressly mentions in his report that some of the accused are absconding he by implication reserves his right to carry out investigation against them and the Court impliedly grants this right while taking cognizance of the crime on the basis of an incomplete report.

50. Tara Singh v, The State : [1951]2SCR729 . relied upon by the learned Counsel for the State is no authority for the proposition that the investigating agency can continue or resume their activities even when the Magistrate has taken cognizance of the crime. In that case an incomplete chalan was filed before the learned Committing Magistrate on October 2. 1949 On October 5. 1949 the police put in what they described as 'a complete chalan' On October 19. 1949 another supplementary chalan was put in. The learned Magistrate had recorded the deposition of three eye-witnesses on October 3, 1949. It was argued that the statements of the three eye-witnesses could not be received in evidence because on October 3, 1949 the learned Committing Magistrate was not competent to take cognizance of the crime under Section 179 of the code. The Supreme Court held that the chalan filed on October 2. 1949, was complete in almost all respects inasmuch as the witnesses acquainted with the circumstances of the case had been named in the chalan. The witnesses whose names were mentioned in the supplementary chalan were of a formal nature namely the Magistrate who recorded the dying declaration and the Assistant Civil Surgeon who. it was held were not acquainted with the circumstances of the case. In other words the device of putting in a supplementary chalan was utilised for examining formal witnesses which was even otherwise permissible under Section 540 of the Code. It is settled law that when a Court passes an order which is within its competence it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its powers under any other provision of law.

51. The other cases on the subject relied upon by both the parties may now be examined. In Shiv Nath v. Kins Em-oeror. 4 Pun Re 1908 Cri : 7 Cri LJ 202. the Magistrate was seized of a case under Section 49 of the Excise Act No. 12 of 1396. In the meanwhile, the District Magistrate ordered the police to continue enquiry in the case. The competence of this enquiry was defended on behalf of the District Magistrate on the ground that he passed orders as Collector and Head of the Excise Administration of the District. This argument was repelled with the following observations:

It is quite clear that the District Magistrate in whatever capacity he may designate himself was not competent to order the enquiry to be made which is complained of in this case after a competent Magistrate was seized of the case, and it is equally clear that this Court has the power to prevent such a breach of the law.

52. In AIR 1932 Lah 611 : 33 Cri LJ 912. it was held that when a chalan is pending before a Magistrate, the District Magistrate cannot from information received from outsiders or otherwise direct the police to make further enquiries and as a result of those enquiries direct the Public Prosecutor to withdraw the case. It was further observed that the police had no power to institute further investigation with a view to find evidence in favour of the accused especially when a charge had been framed against him. Pahlwan v. Emperor AIR 1930 Lah 454 : #1 Cri LJ 533. was based on these facts. The police produced an accused under Section 302. Indian Penal Code, on September l. 1929. for commitment proceedings. The learned Magistrate adjourned the case to the following day for enabling the accused to engage a counsel. On that day, the case was not taken up by the learned Magistrate and the police took back the chalan on the ground that it was an incomplete one. On the same day a confessional statement of the accused was recorded by the learned Magistrate under Section 164 and the chalan was re-submitted by the police at the close of the prosecution case, the accused retracted his confession alleging that the same had been made under promise of pardon. It was held that the course adopted by the police in taking back the chalan was illegal as well as unfair to the accused and the confession could be ruled out for that reason alone. It is obvious that when the case was taken up by the learned Magistrate on September 1. 1929 he had made up his mind to proceed with the enquiry under Chapter XVIII of the Code. By so doing, he had taken cognizance of the crime. It was rightly held that under these circumstances the chalan could not have been returned to the police for further investigation.

53. Pahlwan's case AIR 1930 Lah 454 : 31 Cri LJ 533 (supra) was considered and distinguished in AIR 1932 Lah 103 : 33 Cri LJ 97. In that case, an incomplete chalan was placed before the learned Committing Magistrate and Mbhinder Singh accused was also produced before him. Jagir Singh, his co-accused, was abscondins at that time. Some evidence was recorded and the case was adjourned, in the meantime, Jagir Singh, the absconding accused, was also arrested. He was produced before the same Committing Magistrate for recording his statement under Section 164 of the Code. An argument was raised that ah enquiry in respect of Jagir Singh was in progress when his confession was recorded and his statement could legally be recorded only in accordance with the procedure prescribed by Sections 342 and 364 of the Codes. This argument was repelled on the ground that Jagir Singh had not been presented before the learned Committing Magistrate for the purpose of enquiry. On behalf of the Crown, it was urged that even if an inquiry into the case had commenced the investigation consequent on Jagir's confession was still proceeding. The Court followed the following observations made by Sir Shadi Lai, C. J. in Sullah v. Emperor AIR 1928 Lah 724 : 29 Cri LJ 697:

As the police had not completed their investigation they should have adopted the straightforward course of producing the accused before a Magistrate and asked him to record the confession under Section 164 after observing the precautions prescribed by the section.

and observed as under:

This is exactly the course that was followed in the present case an objection similar to that under consideration was raised before a Division Bench of the Calcutta High Court in Barindra Kumar Ghose v. Emperor (1910) ILR 37 Cal 467 : 11 Cri LJ 453 and was dealt with by Sir Lawrence Jenkins, C. J, at page 49-6 of his reported judgment. The learned Chief Justice pointed out that an investigation including all proceedings under the Code for the collection of evidence conducted by a police officer and that the condition requiring the confession to be prior to the commencement of the enquiry is only imposed when the investigation has ceased and not when the confession is made in the course of the investigation. In the same judgment it was held that a confession recorded by the same Magistrate who afterwards conducted the enquiry and committed the accused is not inadmissible on the ground that he had no jurisdiction to record the confession.

It is, thus, obvious that in Mohinder Singh's case (supra) investigation was allowed to be continued on the, ground that the Committing Magistrate had not taken cognizance of the crime in respect of Jagir, the absconding accused In Pahlwan's case (supra), on the other hand, further investigation by the police after the Court had taken cognizance of the crime was deprecated and the confession procured in the course of such an investigation was ruled out of consideration. It is no doubt true that in Mohinder Singh's case (supra), some observations made in Divakar Singh v. A. R. Naidu (1918) 19 Cr LJ 901 : AIR 1919 Mad 751. were also referred to but. as it shall be explained hereinafter these observations were in the nature of an obiter dicta.

54. Mohd. Niwaz v. The Crown (1947) 48 Cri LJ 774 (Lah) (supra) was based on the following facts. One Allah Ditta. a private servant of Mohammad Niwaz was murdered. The first information report was lodged by Mohammad Niwaz himself implicating Mohammad Iqbal and Mahbub. As a result of the investigation which followed charge-sheet against these two accused persons was filed and the Magistrate took cognizance of the crime on June 15. 1945. The case was adiourned to June 21. 1945. In the meantime it was reported by the police that Mohammad Iqbal and Mahbub had been falsely implicated as murderers of Allah Ditta and that the actual criminals were Mohammad Niwaz and three others.. The prosecution filed an application before the learned Committing Magistrate on June 20. 1945, stating these facts. At the request of the Deputy Superintendent of Police. Mohammad Iqbal and Mahbub were released on bail. The learned Magistrate acceded to the request of the polite and permitted them to make further investigation into the case. As a consequence of the new report submitted under Section 173of the Code. Mohammad Iqibal and Mahbub were discharged and the case proceeded against Mohammad Niwaz and others. Before the High Court two points were raised:

(1) Whether the police were competent to make further investigation into a cognizable offence after the chalan had been forwarded to a Magistrate?

(2) Whether the Court was competent to discharge the accused persons against whom cognizance of the crime had been taken on receipt of the fresh report of the police under Section 173 of the Code The first question was answered by the High Court in the affirmative after making an approving reference to the observations in Divakar Singh's case (1918) 19 Cri LJ 901 - AIR 1919 Mad 751 (supra), On the second point it was held that the Magistrate after having taken cognizance of the offence against Mohammad Iqbal and Mahbub could not have discharged them on receipt of a fresh report by the police under Section 173 of the Code. The learned Committing Magistrate was directed to proceed against Mohammad Iqbal and Mahbub and to decide their liability after assessing the value of the evidence recorded against them. It is thus clear that in Mohammad Niwaz's case (supra) the Court allowed further investigation in respect of Mohammad Niwaz and his companions who were not sent up for trial to begin with. Qua them the cognizance of the crime had not been taken. Regarding Mohammad Iqbal and Mahbub. who had been wrongly discharged on the basis of the second report submitted by the police the High Court held that the learned Magistrate had no power to discharge them after he had taken cognizance of an offence alleged against them under Section 190 of the Code. In short the view taken by me is fully supported by this authority.

55. In ILR (1964) 1 Punj 750 (supra) Om Parkash was sent up for trial by the police. His co-accused Kuldip Singh was absconding but his name was mentioned in the report as an accused person. The evidence of the prosecution recorded in the presence of Om Prakash was closed on August 29. 1963, and the case was adjourned for pronouncement of orders to August 31. 1963. Kuldip Singh had however been arrested on August 25. 1963. He was produced in Court on August 21. 1963, on which day an application was also filed on behalf of the prosecution that Kuldip Singh was to be tendered a pardon. The trial of the case was adjourned. Kuldip Singh was tendered pardon by the District Magistrate on September 2. 1963. His statement under Section 164 of the Code was recorded on September 3, 1963, and the police submitted a supplementary report under Section 173 of the Code .praying therein that the statement of Kuldip Singh accused should be recorded under Section 337(2) of the Code. Vide his orders dated September 19. 1963. the learned Magistrate acceded to this request of the prosecution. Om Parkash filed a revision petition against this order on the ground that the Code envisaged only one report under Section 173 and the Magistrate having already taken cognizance on a report under this section was precluded from taking any note of the supplementary report. Shamsher Bahadur, J. referred to the observations made by the Madras High Court in Divakar Singh's case (1918) 19 Cri LJ 901 : AIR 1919 Mad 751 (supra) and by this Court in Mohinder Singh's case AIR 1932 Lah 103 : 33 Cri LJ 97 (supra) and held that the statement of Kuldip Singh approver could be recorded and received in evidence. On facts therefore it is clear that no cognizance of the crime had been taken by the learned Magistrate against Kuldip Singh the absconding accused. After his arrest the police were entitled to investigate the matter against him. The evidence collected in the course of this investigation could also be received in Court under Section 540 of the Code. The same result would have followed if the case had been decided on the basis of the principle deduced by me from the pronouncements made by the Supreme Court.

56. Kulwant Singh v. Sr. Supdt of Police 1970-72 Pun LR 33. wasdecided by my learned brother S.C. Mittal, J. In this case the policehad originally sent a report against Dyal Singh his brother Chand Singh and Balwant Singh. The learned Committing Magistrate recorded the statements of the eye-witnesses and the Doctor and committed these persons to stand their trial under Section 302/34, Indian Penal Code in the Court of the Sessions Judge. A complaint was sent to the Additional Inspector General of Police (G. I. D.) Punjab saving that the three persons named above were innocent and the investigation officer had let off the real culprits after accepting illegal gratification. Under his orders the Deputy Superintendent of Police reinvestigated the matter. An application was made before the learned Sessions Judge for the adjournment of the case on the ground that the gun pistol and the empty cartridges were sent to the Director Forensic Science Laboratory. Chandigarh, but his report had not been received and the police on receipt of further information probed into the matter. This application was declined by the learned Sessions Judge who ordered that the case should be fixed for trial. Kulwant Singh filed a criminal writ petition in the High Court with a prayer that the investigating agency be restrained from continuing their activities. S.O. Mittal. J. made an exhaustive analysis of the provisions of the Code and held that after the Court had taken cognizance of the crime it was no longer open to the police to make further investigation into the case. The investigating agency did not seek the permission of the Court to investigate into the criminality or otherwise of Kulwant Singh and others and merely prayed for an adjournment. The Court already having taken cognizance of the crime against Dyal Singh and others could not have declared them innocent in the absence of a trial held in accordance with law. On these peculiar facts it cannot be held that Kulwant Singh's case (supra) was wrongly decided by my learned brother S.C. Mittal, J.

57. The observations made in Divakar Singh's case 19 Cri LJ 901 : AIR 1919 Mad 751 (supra) were referred to in Pa'hlwan's case (supra). Mohinder Singh's case AIR 1932 Lah 103 : 33 Cri LJ 97 (supra) and Mohammad Niwaz's ease (1947) 48 Cri LJ 774 (Lah) (supra). It may, however, be noticed that the Madras High Court made these observations while deciding a civil appeal concerning liability under the law of Torts. The house of Divakar Singh was searched by the investigating officer for the recovery of stolen property. On facts, it was found that the conduct of the investigating officer was bona fide and Divakar Singh was disentitled to claim damages-. The learned Judges, however observed as under:

Another contention is put forward that when a report of investigation has been sent in under Section 173, Criminal Procedure Code the police has no further powers of investigation but this argument may be briefly met by the remark that the number of investigations into a crime is not limited by law and that when one has been completed another may be begun on further information received.' With utmost respect to the learned Judges who decided this case it may be submitted that the view expressed by them can no longer stand in view of the subsequent pronouncements made by their Lordships of the Supreme Court in S.N. Basak's case : [1963]2SCR52 (supra) and Jamuna Singh's case : 1964CriLJ468 (supra). Even otherwise they did not take into consideration the scheme of the Code and the complementary nature of the functions of the Judiciary and the Police as observed in Khwaja Nazir Ahmed's case AIR 1945 PC 18 : 46 Cri LJ 413 (supra). I have already noticed that if unbridled right to make fresh investigation is conceded to the police during the continuance of the trial the rights of the accused persons granted to them under the Code would be seriously jeopardised. In my humble opinion the above observations made in Divakar Singh's case (1918) 19 Cri LJ 001 : AIR 1919 Mad 751 (supra) tend to over-simplify the matter in controversy.

58. In view of the foregoing discussion my conclusions are --

The police can further investigate the case so long as the Court has not taken ^cognizance of the crime. Further investigation can be conducted against the absconding accused even after the Court has taken conditional cognisance of the case qua those accused persons who have been produced before it. In rare cases it may be permissible to a Court to permit the Police to make further investigation even after it has taken cognizance of the crime by suspending cognizance in exercise of its inherent powers, which in turn are to be exercised on the basis of the well-recognised principles.

At the close of the arguments I put a pointed question to the learned Counsel for the parties: whether this Bench should or should not give a decision on merits of the case. They were unanimous in submitting that this Bench should only lay down the principles for the guidance of the learned Committing Magistrate and if necessary remand the case to him for a fresh decision in accordance with these principles It is precisely for this reason that I did not highlight the facts of the case relevant for decision on merits in the preamble of this judgment.

59. For the reasons mentioned above. I accept this reference set aside the order dated November 30. 1971 passed by the learned Committing Magistrate and remand the case to him for a fresh decision in the light of the observations made above.

S.C. Mittal, J.

60. I agree with my learned brother M. R. Sharma J.

ORDER OF THE COURT

The recommendation made by the District Judge is accepted and the Committing Magistrate's order dated November 30th, 1971 dismissing the police application for permission to re-investigate the case is quashed The case should now go back to the Magistrate for further proceedings in accordance with the majority view of this Full Bench.


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