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P.V. Vijayaraghavan and ors. Vs. C.B.i. and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1984CriLJ1277
AppellantP.V. Vijayaraghavan and ors.
RespondentC.B.i. and anr.
Cases ReferredIn H.N. Rishbud v. State of Delhi
Excerpt:
.....would contend that the code does not contemplate piecemeal investigation and incomplete charge-sheet, that section 173 contemplates only the filing of charge-sheet after completion of investigation of the case, and where several offences are involved in a case, a valid charge-sheet could be laid only after investigation and formation of opinion regarding all the offences is complete, that in the first charge-sheet the investigator stated that investigation was proceeding and an additional charge-sheet would be laid and this would clearly show that when the first charge-sheet was laid investigation was incomplete. learned public prosecutor would contend that there is practically no difference between an 'offence' and a 'case',that, as a matter of fact, investigation was..........the cr.p.c. (for short 'the code') was over on 9.2.1984. the investigator filed a final report or charge-sheet for offences under section 120b read with section 302 i.p.c. and section 302 i.p.c. read with section 34 i.p.c. on 7.2.1984 before the chief judicial magistrate, ernakulam. an additional charge-sheet for offences under section 120b read with section 201 i.p.c. and section 201 i.p.c. read with section 34 i.p.c. was filed on 15.2.1984. meanwhile the accused filed, crl. m.p. 461 of 1984 seeking bail under proviso (a)(i) to section 167(2) of the code pleading that no valid charge-sheet had been filed within 90 days. this contention was overruled and the petition was dismissed by the learned chief judicial magistrate. the legality and propriety of this order is challenged in this.....
Judgment:
ORDER

U.L. Bhat, J.

1. Revision petitioners are accused in R.C. 3 of 1982 of the CBI/SPE, New Delhi arising from the death, by gunshot wounds, of George Soman, Sub-Inspector of Police, Panur Police Station. They were arrested on 11.11.1983. Their request for bail was repeatedly turned down by various courts. Period of 90 days as contemplated in Proviso (a)(i) to Section 167(2) of the Cr.P.C. (for short 'the Code') was over on 9.2.1984. The investigator filed a Final Report or charge-sheet for offences under Section 120B read with Section 302 I.P.C. and Section 302 I.P.C. read with Section 34 I.P.C. on 7.2.1984 before the Chief Judicial Magistrate, Ernakulam. An additional charge-sheet for offences under Section 120B read with Section 201 I.P.C. and Section 201 I.P.C. read with Section 34 I.P.C. was filed on 15.2.1984. Meanwhile the accused filed, Crl. M.P. 461 of 1984 seeking bail under Proviso (a)(i) to Section 167(2) of the Code pleading that no valid charge-sheet had been filed within 90 days. This contention was overruled and the petition was dismissed by the learned Chief Judicial Magistrate. The legality and propriety of this order is challenged in this revision petition.

2. Learned Counsel for the revision petitioners would contend that the Code does not contemplate piecemeal investigation and incomplete charge-sheet, that Section 173 contemplates only the filing of charge-sheet after completion of investigation of the case, and where several offences are involved in a case, a valid charge-sheet could be laid only after investigation and formation of opinion regarding all the offences is complete, that in the first charge-sheet the investigator stated that investigation was proceeding and an additional charge-sheet would be laid and this would clearly show that when the first charge-sheet was laid investigation was incomplete. Thus, learned Counsel would contend that the first charge-sheet filed on 7.2.1984 was a charge-sheet filed without completing the investigation and was as such invalid and therefore detention after a period of 90 days would be illegal and accused are entitled to bail as a matter of right. Learned Counsel drew a distinction between an 'offence' and a 'case'. According to him, what is contemplated is completion of investigation of the 'case' which may involve several offences and investigation of a case cannot be split up into several investigations or investigation in several stages each relating to one offence. Learned Public Prosecutor would contend that there is practically no difference between an 'offence' and a 'case', that, as a matter of fact, investigation was complete before the first charge-sheet was laid, though an erroneous statement was made therein that investigation was proceeding, that the second charge-sheet and the accompanying memo would clearly show that investigation was over before the first charge-sheet was laid. According to learned Public Prosecutor, the investigator could very well have incorporated Section 201 I.P.C. in the first charge-sheet but it was postponed awaiting legal opinion. In these circumstances, learned Public Prosecutor would contend that the charge-sheet was r valid as investigation was complete before the first charge-sheet. Therefore, the ; period of detention prior to completion of investigation did not exceed the period of 90 days and as such bail could not be granted in terms of Proviso (a)(i) to Section 167(2) of the Code.

3. Chapter V of the Code deals with arrest of persons. Section 41(1)(a) authorises a police officer to arrest a person who has been concerned in any cognizable offence without an order from a Magistrate and without a warrant. The procedure for arrest and the steps to be taken are dealt with in Sections 46 and 47 of the Code. Section 56 requires that a police officer making arrest without warrant shall without unnecessary delay and subject to bail provisions take or send the arrested person before the appropriate Magistrate. Section 57 states that no police officer shall detain in custody a person without warrant for any period beyond what is reasonable, not exceeding 24 hours in the absence of a special order from a Magistrate under Section 167.

4. Chapter XII deals with information to the police and their power to investigate. Section 154 requires that oral information relating to commission, of a cognizable offence shall be reduced to writing by a police officer. How the information is to be dealt with in relation to 'cognizable case' and 'non-cognizable case' are dealt with in Sections 155 and 156. The police officer has to m take steps to investigate the facts and circumstances of the 'case' and to take measures for the discovery and arrest of the offender. The powers of the police officer in the course of investigation are dealt with under Sections 160 -1631, 165 and 166. Where any person is arrested and detained in custody and it appears that the investigation cannot be completed within a period of 24 hours fixed by Section 57 and there are grounds for believing that the accusation or information is well founded. Section 167(1) requires that the investigator shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary relating to the 'case' and forward the accused to such Magistrate. Sub-section (2) requires that the Magistrate may from time to time authorize the detention of the accused in appropriate custody for a term not exceeding 15 days in the whole. The proviso authorises detention beyond the period of 15 days but up to a period of 90 days in the case of grave offences and 60 days in the case of other offences where the Magistrate is satisfied that adequate grounds exist for doing so. But under no circumstances shall the Magistrate authorize the detention of the accused in custody pending completion of investigation for a period exceeding 90 days or 60 days as the case may be. This is what the proviso to Sub-section (2) lays down. It further states that on the expiry of 90 days or 60 days as the case may be, the accused shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII of the Code for the purposes of that Chapter. Release of the accused when evidence is deficient is contemplated in Section 169 Section 170 deals with cases where evidence is sufficient. If upon an investigation under this Chapter, it appears to the investigator that there is sufficient evidence or reasonable ground as aforesaid, he shall forward the accused under custody to the appropriate Magistrate or if the offence is bailable and the accused is able to give security, shall take security from him to appear before the Magistrate. Section 172 deals with diary of proceedings and investigation and uses the expression 'Police diaries of a case'.

5. Section 173 deals with report of a police officer on completion of investigation. Sub-section (1) says that every investigation under the Chapter shall be completed without unnecessary delay. Sub-section (2) states that as soon as investigation is completed the investigator shall forward to the appropriate Magistrate a report in the prescribed form stating the names of parties, the nature of the information, the names of the persons who appear to be acquainted with the circumstances of the case, whether any offence appears to have been committed, and if so, by whom, whether any accused has been arrested, whether he has been released on his bond and, if so, whether with or without sureties and whether he has been forwarded in custody under Section 170. Under Sub-section (3), it is open to the appropriate superior police officer to direct the investigator to make further investigation. Sub-section (8) declares that nothing in the section shall preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate. Whore upon such investigation the investigator obtains further evidence he shall forward to the Magistrate a further report or reports regarding such evidence in the prescribed form. The provisions of Sub-sections (2) to (6) shall as far as may be applied in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).

6. Chapter XIV deals with conditions requisite for initiation of proceedings. Section 190 deals with cognizance of offences by Magistrate. Subject to the provisions of the Chapter, the appropriate Magistrate may take cognizance of any offences under any one of the three circumstances enumerated in Clauses (a), (b) and (c) of Sub-section (1). They are, receipt of a complaint of facts which constitutes such offence a police report of such facts and information received from any person other than a police officer or upon his own knowledge that such offence has been committed. One may notice in this connection, the altered definition of police report in the present Code. Section 2(a) of the Code defines 'police report' as a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173 of the Code.

7. Chapter XVI deals with commencement of proceedings before Magistrates. Sub-section (1) of Section 204 states that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, he shall issue summons or warrant, as the case may be. Under Section 207, the Magistrate shall, without delay, furnish to the accused free of cost copies of the records detailed therein.

8. There is a broad scheme and method underlying the provisions mentioned above. Investigation must commence immediately on receipt of information regarding commission of Cognizable offence. A person suspected of or concerned in a cognizable offence can be arrested without warrant. Ordinarily, investigation should be over within 24 hours of the arrest before the expiry of which period the accused has to be produced before the nearest Magistrate. Where it appears that the investigation cannot be completed within this period and the information appears to be well founded, the entries in the case diary must be transmitted immediately to the nearest Magistrate along with the accused. Detention of the accused may, from time to time, be authorised by the Magistrate for a term not exceeding 15 days in the whole. This would indicate that where investigation cannot be completed within 24 hours of the arrest, the maximum period to be taken for completion of investigation would be 15 days. Of course, in appropriate cases, the period could be extended up to 90 days or 60 days depending on the gravity of the offence involved as contemplated in the proviso to Section 167(2). Detention cannot be ordered beyond such extended period. If upon investigation, it appears that there is sufficient evidence, the accused must be forwarded under custody to the appropriate Magistrate in non-bailable cases. Every investigation shall be completed without unnecessary delay and as soon as it is completed, a report in the prescribed form as contemplated in Section 173(2) must be forwarded to the appropriate Magistrate. There may be further investigation on the direction of a superior police officer as envisaged in Sub-section (3) or otherwise as envisaged in Sub-section (8). In such cases there may be further report or reports, which have to be treated as police reports under Section 173(2). Under Section 190, a Magistrate can take cognizance upon a police report that is a report under Section 173(2). On taking cognizance the Magistrate can issue process and thereafter undertake certain preliminary functions and then conduct an enquiry or trial, as the case may be.

9. Section 2(c) defines cognizable 'offence' as an offence for which and cognizable 'case' as a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. Section 2(h) defines 'investigation' as including all proceedings under the Code for the collection of evidence conducted by a police officer etc. Interpreting the expression 'Committal of the Case', a Full Bench of this Court in Natesan v. Peethambharan 1984 Ker LT 116 : 1984 Cri LJ 324, observed 'As we understand the expression, it only means 'Case presented to Court and taken to file1 and nothing more. The expression 'Case' is not, synonymous with occurrence or crime or transaction.... 'Case' only means the case taken on file by the Magistrate on taking cognizance....

So, there could be plurality of eases in regard to the same offence leading to plurality of committal proceedings and orders. The word 'Case' cannot be interpreted in a narrow and technical way. It has to be understood in the general sense of the term....

10. The expression 'case' used in the provisions under examination has to be understood in the general sense and not in a narrow or technical way. The words 'offence' and 'case' are not synonymous, though an offence always leads to a case and a case would always involve an offence or offences. An occurrence of transaction may involve commission of only one offence; or it may involve several offences. When a police officer receives information about the commission of a cognizable offence, and records the same, he is said to register a case, sometimes called a Crime Case. 'Case', understood in this general sense means the case before the police officer arising from the information placed before him regarding an occurrence in which an offence or offences are committed. 'Case' relates to the transaction of which information is given and not merely one of the offences committed during the course of the transaction.

11. The heading of Section 154 is 'Information in cognizable cases'. The heading of Section 155 is 'Information as to non-cognizable cases and investigation of such cases.' The heading of Section 156 is 'Police Officer's power to investigate cognizable case'. Sub-section (3) of Section 154, Sub-sections (2) and (4) of Section 155, Sub-sections (1) and (2) of Section 156, Section 157, Sub-section (1) of Section 160, Sub-sections (1) and (2) of Section 161 refer to investigation of a 'case'. Section 167 refers to diary relating to the case. This would indicate that investigation is to be of a 'case' and riot to be conducted piecemeal with reference to each offence committed in a transaction or occurrence. Investigation is to be of a case, that is, all the facts and circumstances of a case which would mean all the offences involved therein. Therefore, when Section 173 speaks of completion of investigation, it must ordinarily be taken to refer to completion of investigation of all the facts and circumstances relating to the case, whether the transaction involves one offence or plurality of offences. I am therefore of opinion that a final report or charge-sheet under Section 173 could be filed only after completion of the investigation in the case relating to all the offences arising in the case.

12. In the first charge-sheet filed in this case, the investigator mentioned offences under Section 120B I.P.C. read with Section 302 I.P.C. as well as Section 302 I.P.C. read with Section 34 I.P.C. and cited 98 witnesses, 94 documents and 26 material objects. The investigator also stated that additional charge-sheet for offence under Section 201 would be laid in a short period as 'investigation is proceeding' thereto. This would prima facie show that on the date when the first charge-sheet was laid the investigation in regard to offence under Section 201 was not complete and therefore investigation in the case was not complete. About a week later, the additional charge-sheet was filed incorporating Section 120B I.P.C. read with Section 201 I.P.C. and Section 201 I.P.C. read with Section 34 I.P.C. No new witness or document or material object was cited along with the additional charge-sheet. On the same day, the investigator submitted a report stating that after submission of the first charge-sheet or final report, he did not conduct any investigation, that he was waiting for expert legal opinion in regard to the offence under Section 201 I.P.C. as he surmised that such an offence was made out against the accused and that he was filing additional charge-sheet on the basis of the evidence and the investigation conducted by him prior to the filing of the first charge-sheet. According to the learned Public Prosecutor, the statement in the first charge-sheet that investigation was proceeding was erroneous and the error was corrected in the report presented on 15.2.1984. It is true that even after the additional charge-sheet, the investigator submitted additional list of witnesses. But those witnesses do not appear to have anything to do with the additional charge. Therefore, I am inclined to accept the statement in the report of 15.2.1984 to the effect that the additional charge-sheet was submitted on the basis of the evidence collected prior to the first charge-sheet and no further collection of evidence had been made.

13. Obviously when the investigator stated in the additional charge-sheet that he did not conduct any 'investigation' he was referring only to collection of evidence. According to the revision petitioners, investigation does not end with the collection of evidence but would include the formation of opinion also.

14. In H.N. Rishbud v. State of Delhi : 1955CriLJ526 , the Supreme Court was considering the question whether the requirement in the Prevention of Corruption Act that the investigation into offences under the Act shall not be investigated by a police officer below the rank of Deputy Superintendent of Police except with sanction of court was mandatory and the effect of violation of the provision if it was held to be mandatory. The court held that the requirement was mandatory. Investigation in that case was conducted by a police officer below the requisite rank. Sanction of the court was obtained only subsequently. That was after the investigation by the subordinate officer was entirely or mostly completed. Explaining the scope of the expression 'investigation', Jagannadhadas, J., speaking for the court, observed:

Thus, under the Code investigation consists generally of the following steps : (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173.... 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. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under Section 551.

(Emphasis supplied)

15. It was argued before the Supreme Court that the legislative policy would be served if the charge-sheet was filed by the authorised officer after forming his own opinion as to whether or not there is a case to place the accused on trial before the court. Rebutting this plea, the court observed:

There is, however, no reason to think that the policy comprehends within its scope only some and not all the steps involved in the process of investigation which, according to the scheme of the Act, have to be conducted by the appropriate investigating officer either directly or when permissible through deputies, but on his responsibility....

16. Formation of opinion as to whether on the evidence collected there is a case to place accused before a court for trial and if so, taking necessary steps for the same by filing a charge-sheet are part of the process of investigation.

17. On the date of filing the first charge-sheet the investigator was awaiting expert legal opinion on the question whether a charge would lie under Section 201 I.P.C. In other words, he had not formed any definite opinion as to whether on the evidence collected there was a case to place the accused before a Magistrate for trial of the particular offence. In this view of the matter, it must follow that 'investigation', as understood in law, was not complete on the date of filing of the first charge-sheet. The investigator had not formed any opinion in regard to Section 201 I.P.C. and consequently, the 'investigation' in the case was not complete when the first charge-sheet was filed. The investigator

has no case that the formation of opinion was made in this regard on any particular day after 7.2.1984. It must be taken that 'investigation' was complete only with the second charge-sheet. In this view, the original charge-sheet was not a charge-sheet laid after completing of investigation. It is a defective charge-sheet.

18. Remand in custody under Section 167 of the Code is to be made before the completion of investigation for the purpose of enabling a proper investigation. Such remand could not be made beyond the period of 90 days as laid down in proviso (a)(i) to Section 167(2) of the Code. The completion of the investigation was made only after the expiry of the period of 90 days. Therefore, the accused are entitled to be released on bail if they are prepared to and do furnish bail. Considering the peculiar facts and circumstances of the case, I am of opinion that strict conditions will have to be imposed on release of the accused on bail.

19. This is not to say that taking of cognizance by the learned Magistrate, or the proceedings initiated by him are vitiated or a nullity. The proceedings would only be irregular. The irregularity, if any, has been cured by the learned Magistrate acting on the additional charge-sheet filed after completion of investigation and later clubbing the two committal proceedings. In any event, there has been no prejudice to the accused.

The Supreme Court in H.N. Rishbud's, case considered whether and to what extent the trial which follows defective investigation is vitiated. The court observed:

Now, trial follows cognizance and! Cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon....

A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 Cri.P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance..... While no doubt in one sence, Clauses (a), (b) and (c) of Section 190(1) are conditions I requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity....

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice....

(10) 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 j cognizance will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for.

20. The case is now pending enquiry, preliminary to committal to Sessions Court. The occurrence took place within the jurisdiction of Tellicherry Sessions Court. According to the prosecution, CBI cases throughout the State have to be dealt with by Chief Judicial Magistrate, Ernakulam and tries by Sessions Court, Ernakulam. There is a controversy between the accused and the prosecution as to whether the Chief Judicial I Magistrate, Ernakulam has jurisdiction in the matter or if committal is to be made to Sessions Court, at Ernakulam or at Tellicherry, the Sessions Case is to be tried in the Sessions Court, Ernakulam or, Tellicherry. Counsel for the revision petitioners submitted before me that all the contentions challenging the jurisdiction of the courts at Ernakulam are withdrawn. This is a connected O.P. 933/84 filed under Article 226 of the Constitution by the accused. The O.P. is also being withdrawn. In view of the submissions made, I do not see any difficulty for Chief Judicial Magistrate, Ernakulam to deal with the committal proceedings or to commit the case to Sessions Court at Ernakulam or for the latter to try the Sessions case.

In the result, the Cri.R.P. is disposed of in the following manner:

1. The order passed by the Chief Judicial Magistrate is set aside.

2. It is directed that the petitioners will be released on bail on each of them executing a bond for Rs. 5,000/- and furnishing two solvent sureties in the like amount to the satisfaction of the Chief Judicial Magistrate, Ernakulam.

3. Till the Sessions trial is over, the petitioners shall reside within the limits of Cochin Corporation and report their places of residence to the investigator.

4. They shall not enter the limits of the Cannanore District until trial of the Sessions case is over.

5. They shall not in any way attempt to meet or Influence directly or indirectly any of the witnesses cited by the prosecution.

6. They shall report before the investigator or any person in charge of the C.B.I. office at Ernakulam every day at any time between 10 a.m. and 12 noon.


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