F.S. Gill, J.
(1) The petitioners, who have approached this Court by filing Criminal Misc. (Main) 99 and Iii of 1977 for the grant of bail, are accused in the same case and were also arrested on the E same day. Both these petitions will, thereforee, be disposed of by this one order.
(2) A case under sections 395/397, 366 and 376 of the Indian Penal Code . was registered in Police Station Nangloi on 29-12-1975. Hari Chand, Raj Pal and Dharam Pal, the present petitioners, are also accused in the said case. During the investigation, they were arrested on 14-9-1976. The police filed an 'incomplete challan' in the Court of the Magistrate against seven accused, including the three petitioners.
(3) These applications are for the grant of bail to the petitioners on the ground that no police report, as contemplated by sub-section (2) of section 173 of the Code of Criminal Procedure, 1973, has so far been filed by the Officer in charge of the Police Station. What has been forwarded to the Magistrate is, at the most, an incomplete report. It is contended that failure to complete the investigation within sixty days, as required by sub-section (2) of section 167 of the new Code and consequently non-submission of the report by the police under section 173(2) entitles the petitioners to be released on bail.
(4) In the body of the 'incomplete challan' filed in the Court, it is clearly indicated that investigation is still continuing i.e. it has not yet been completed. It is, however, contended on behalf of the State that forwarding of the 'incomplete challan' satisfies the requirement of sub-section (2) of section 173 of the Code and, thereforee, the petitioners cannot derive any benefit of sub-section (2) of section 167 Let us see the force of this contention.
(5) SUB-SECTION (2) of section 173 provides that as soon as investigation under Chapter Xii of the Code is completed, the Officer in charge of the Police Station shall forward to the Magistrate empowered to take cognizance of the offence a police report in the form prescribed by the State Government. The first requisite of sub-section (2) is, thereforee, completion of the investigation and the second is forwarding the police report to the Magistrate for taking cognizance of the offence. The contents of the present 'incomplete challan' distinctly show that the investigation is yet to be completed. So the pre-requisite of forwarding the police report is not there.
(6) 'POLICE report' has been defined in clause (r) of section 2 of the Code in the following terms :-
'POLICEreport means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173.'
Thus there is only one specie of police report which is intended by the above provision of the Code.
(7) The learned counsel for the petitioners has submitted that the definition of 'police report', as given in the Code, cannot be enlarged under the guise of interpretation as is being endeavored on behalf of the prosecution. It is contended that when the meaning of the statutory provision is plain and clear, the Court should not be impelled by factors like logic, equity, justice and good conscience. Nor it should do so in the garb of avoiding hardship, practical difficulties or inconvenience, which might be encountered in the event of failure to complete the investigation in serious cases within sixty days. To fortify these submissions, the learned counsel has also relied on Natabar Parida and others vs . State of Orissa, : AIR1975SC1465 and Andhra Pradesh Bench view reported in T. V, Sarma vs. Smt. Turgakamala, 1976 C L J 1247. He has further submitted that the Court has to construe the language of the provisions to effectuate and not to stultify the apparent legislative intention.
(8) The learned counsel has further canvassed that the expression 'incomplete challan' does not occur anywhere in the Code and that only forwarding of a police report, after the completion of the investigation, is the requirement of sub-section (2) of section 173 of the Code. Any report or statement of facts in the form of 'incomplete challan' does not become a 'police report' by merely giving a particular nomenclature.
(9) On the other hand, such a 'challan' indicates that the investigation has still not been completed. Certain legal consequences flow on failure to complete the investigation within the stipulated period of detention, viz. sixty days. The most important is the accrual of statutory right of bail to the detained person as provided in proviso (a) of section 167(2).
(10) If 'incomplete challan' is accepted instead of the police report, it would be profaning the express provision engrafted in section 167(2) of the Code. Surely, circumvention of the forwarding of the police report is not permissible under any circumstance as doing so would tantamount to contravening an absolute condition. No doubt there may be very hard cases where completion of investigation may be impossible due to the magnitude of the task of collecting the evidence, but any of these difficulties cannot enlarge the period of detention. Investigation has to be completed within this period and the 'police report' has to be forwarded to the Magistrate for taking cognizance, otherwise the accused has to be released on bail.
(11) Unlike section 344 of the Code of Criminal Procedure, 1898, the corresponding provision contained in section 309 of the new Code cannot be invoked as the latter provision has undergone a drastic change with the omission of the expression 'reasonable cause' occurring in sub-section (1A) of section 344.
(12) The learned counsel for the State has contended that the new provision added in sub-section (8) of section 173 of the new Code can be resorted to by the investigating officer for collecting further evidence. According to him it tends to indicate that the investigation is not shut but remains in suspended animation till the police report is sent to the Magistrate. As has already been pointed out, 'police report', as defined in section 2(r) of the Code, can only be filed 'as soon as the investigation is completed'. If it is not complete, no such report can be filed. When no report is forwarded, as required by the Code, the Magistrate cannot take cognizance. Thus, unless all these steps are crossed, sub-section (8) cannot be pressed in aid for collecting further evidence. It may be observed that sub-section (8) does not control sub-section (2), nor section 167 and section 173(8) can operate simultaneously.
(13) At stated earlier, sub-section (2) of section 173 also speaks of taking of cognizance of the offence by a Magistrate on a police report. In this connection, reference to clause (d) of sub-section (1) of section 190 of the Code of Criminal Procedure, 1973 may be relevant. Under this provision, a Magistrate has to take cognizance of an offence A upon a police report of the facts stated therein. So, without the 'police report', as defined in section 2(r) of the Code, no Magistrate can take cognizance and unless cognizance has been taken, sub-section (8) cannot be set in motion.
(14) The next question which naturally emerges is : whether the Magistrate can take cognizance on the 'incomplete challan' forwarded by the police. The answer obviously is in the negative, because the investigation is yet incomplete and secondly the 'police report' still remains to be filed. Thus the filing of the 'incomplete challan' cannot circumvent the provisions of sub-section (2) of section 173. An incomplete report or incomplete challan, with whatever expression it may be called, does not meet the obligatory requirements of law.
(15) It may also be observed here that the inclusion of the beneficial provision in proviso (a) of sub-section (2) of section 167 of the New Code was to cure a mischief of indefinitely prolonging the investigation and thus curbing the tendency of leisurely proceeding with the cases by the police unmindful of its effect on the valuable personal liberty of a citizen.
(16) Now coming to the present applications, I find that the petitioners were arrested on 14-9-1976 and when the investigation was still continuing, an incomplete report or 'incomplete challan' was filed before the Magistrate on 12-11-1976. As the investigation had not been completed within sixty days and the 'police report' had not been filed within this period, the petitioners arc entitled to the grant of bail by virtue of proviso(a) of section 167(2) of the Code.
(17) For the reasons stated above, I grant both the applications and order that the petitioners be released on bail on their furnishing sureties in the sum of Rs. 5000.00 each and executing bonds for the like amount to the satisfaction of the Chief Metropolitan Magistrate, Delhi.
(18) Criminal Misc. (Main) 99 and Criminal Misc. (Main) 111 of 1977 are disposed of in the above terms.