T.P. Mukherji, J.
1. The petitioner in criminal revision case No. 893 of 1965 obtained the present rule against the order of the learned Magistrate virtually scrapping the proceedings gone through by him in an inquiry under Chapter XVIII of the Code of Criminal Procedure and directing a de novo inquiry. The petitioner in Criminal Revision Case No. 925 of 1965 obtained the rule against the order of the same Magistrate summoning him on a supplementary charge-sheet filed by the investigating officer for an alleged offence under Sections 120B/420 of the Indian Penal Code for an inquiry into the offence jointly with the other accused persons named in the original charge-sheet.
2. On a complaint filed by one Bindu Bhusan Bhattacharjee, the police submitted a charge-sheet against the petitioner in case No. 893 of 1965 and one Sudhir Kumar Chatterjee. In the charge-sheet, the petitioner in the other case and one Sk. Alimuddin Ahmed were mentioned as witnesses along with others. These two persons had been examined by the investigating officer under Section 161 of the Code of Criminal Procedure in course of the investigation, of the case and their statements were filed in Court along with other papers under Section 173 of the Code and copies of their statements were also made available to the accused persons.
3. The learned Magistrate started an inquiry under Chapter XVIII of the Code against the two accused. In course of that inquiry, the de facto complainant in the case applied to the learned Magistrate on three different occasions for issuing warrants of arrest against the petitioner in case No. 925 of 1965 and Sk. Alimuddin alleging that there was a prima facie case against them under Sections 120B/420 and 461/471 of the Indian Penal Code. All these three petitions were rejected by the learned Magistrate,
4. On May 20, 1965, the police submitted an amended challan against those very persons with a prayer for summoning them on the aforesaid two charges. The learned Magistrate accepted the amended challan and made an order virtually scrapping the evidence already recorded by him and directing a de novo inquiry against all the four accused persons including the two petitioners before me. It is the propriety of this order of the learned Magistrate which is the subject-matter of these two rules.
Mr. Dutta appearing for the petitioner in Criminal Revision Case No. 893 of 1965 has raised two legal objections to the procedure followed by the learned Magistrate and it was contended that the procedure now sought to be followed as a result of the impugned order is one unknown to the Code of Criminal Procedure and deserved to be struck down.
5. The contentions raised by Mr. Dutta raise the following two points:--
1. Whether a supplementary charge-sheet submitted by the police after the Magistrate has taken cognizance of the offence has any legal effect. Whether the submission of such supplementary charge-sheet on the basis of further investigation after the Magistrate has taken cognizance of the offence on the original charge-sheet involves double cognizance of the same offence by the Magistrate and by the police simultaneously and, if so, whether this is permissible in law; and
2. Whether after an inquiry or a trial has been proceeded with by a Magistrate, the proceeding already gone through can be scrapped and a de novo trial ordered by the Magistrate in view of a supplementary charge-sheet that is filed as a result of further investigation. If a de novo trial or inquiry is permissible, what would happen to the evidence that has already been recorded?
6. Mr. Talukdar appearing for the petitioner in the other revision case joins with Mr. Dutta in the above objections.
7. Section 173 of the Code of Criminal Procedure appearing in Chapter XIV which relates to investigation by the police refers to the step that has to be taken by the investigating officer after completion of the investigation. Under Sub-section (1) (a), on completion of the investigation, the investigating officer is required to forward to a Magistrate empowered to take cognizance of an offence on a police report a report containing the prescribed particulars. Under Sub-section (2) of Section, the investigating officer, under certain circumstances, is required to forward his report through a superior officer who may direct furtherinvestigation. It would appear from the scheme of Chapter XIV of the Code that the police takes cognizance of a cognizable offence under Section 156 and starts investigation which ends with the submission of the report to the Magistrate under Section 173. After a challan is submitted under that section, the Magistrate takes cognizance and proceeds to inquiry or trial as the nature of the offence calls for. The question that has been posed is whether, after a Magistrate has taken cognizance of offence on a police report under Section 190 (1) (b) of the Code, the police is authorised to reopen the investigation and to submit an amended or a supplementary challan or charge-sheet. According to Mr. Dutta, the police has no such power excepting under very restricted circumstances where the amended challan is meant only to correct any mistakes in the original challan that might have crept in or where the amended challan seeks to intimate to the Magistrate the names of certain witnesses who are more or less of a formal nature.
8. Mr. Ghose appearing for the State would contend however that amended and supplementary charge-sheets are contemplated by the law and, in support of his contention, he referred to certain decision of the Supreme Court and of certain High Courts. The first case referred by him is the Supreme Court decision in Tara Singh v. The State, : 2SCR729 . There the police submitted what they called an 'incomplete challan' against the accused under Section 302 of the Indian Penal Code on October 2, 1949. On October 5, 1949, another challan called a 'complete challan' was submitted giving the names of a few more witnesses who are not witnesses to the occurrence and, on October 19, 1949, they submitted another challan which was called supplementary challan giving the names of a few more witnesses of the same nature. The learned Magistrate had taken cognizance on the challan dated October 2, 1949, and it was pending the inquiry started by him that the two subsequent challans were filed. It was contended that the first challan not being a complete challan according to the police, the Magistrate could not take cognizance thereon. This objection was repelled on a finding that the first challan was a complete challan and that the two subsequent challans were not police reports as contemplated by Section 173 (1) (a) of the Code, their purport being to intimate to the Magistrate only the names of certain witnesses who were not acquainted with the circumstances of the case but whose evidence related to other matters. The witnesses named in the challan dated October 2, 1949, were the witnesses who were acquainted with the circumstances of thecase and, as that challan satisfied all the requirements of a police report under Section 173 (1) (a) of the Code and as the other information required to be submitted to the Magistrate under the provisions were also contained therein, that was the challan that was contemplated by the law and the Magistrate was perfectly justified in taking cognizance thereon.
9. According to this decision, whatever the terminology that might have been used in connection with the two subsequent challans, they are not police reports under Section 173 (1) (a) of the Code. It would also appear that in the matter of those challans no question of double cognizance could be involved.
10. The next case cited by Mr. Ghose is Mangal Singh v. Rex : AIR1949All599 . There the investigating officer submitted a final report in a case after investigation through his superior officer who directed a further investigation and as a result of that investigation charge-sheet was submitted. The final report never reached the Magistrate and appeared to have been interpreted by the superior officer. The further investigation conducted under the direction of the superior officer was challenged as illegal, but the objection was overruled. Such further investigation is obviously permitted by Section 173 (2) of the Code.
11. The next case that was cited is Rama Shanker v. State of Uttar Pradesh, : AIR1956All525 . There, too, after investigation, the investigating officer submitted a final report which was taken by the Court to have reached the Magistrate, although no direct evidence on the point was available. It appeared, however, that subsequently, under order of the District Magistrate in his administrative capacity, the matter was reopened by the police and a charge-sheet was submitted on which a Magistrate took cognizance of the offence. The charge-sheet was found to have been submitted as the result of the further investigation done under orders of the superior officer. Obviously, this was held to be so under Section 173 (2) of the Code. The final report previously submitted by the police was held not to operate as a bar to the taking of cognizance on the charge-sheet that was subsequently filed. As the learned Magistrate had not taken cognizance of the offence, the further investigation under orders of the superior officer which was held to be in accordance with law was also held to be permissible as such.
12. Reliance was next placed on the case of Prosecuting Inspector, Keonjhar v. Minaketan Mahato, : AIR1952Ori350 . This case, apparently, on the face of the facts, would support Mr. Ghosh's contentions. There, further investigation was undertaken by the police after submission of a charge-sheet on which the Magistrate had taken cognizance and after an inquiry under Chapter XVIII had been started. It was held that such further investigation during the committal proceeding and even after termination of such proceeding was permissible. The further investigation in that case comprised the examination of some more witnesses. It was held that the statements of these witnesses could be submitted to Court under Section 173, but that the fact of the belated examination of these witnesses may be a circumstance leading to their discredit at the trial.
13. This decision runs counter to the Supreme Court decision in Tara Singh's case, : 2SCR729 (supra) which held that supplementary challans on the basis of further investigation, if any, may only convey to the Magistrate the names of witnesses more or less formal in nature who cannot be said to be acquainted with the circumstances of the case. If something more is contained in the amended or supplementary challan after the Magistrate has taken cognizance on the basis of the original challan, that would not be one in accordance with law. In view of the Supreme Court decision, the view of the Orissa High Court on the matter as expressed in the above case is not acceptable.
14. Another case cited by Mr. Ghose is A.K. Roy v. State of West Bengal, : AIR1962Cal135 (FB). The facts of that case are quite different. What was held therein was that, when the police submitted a final report, the Magistrate can nevertheless take cognizance of an offence on facts stated in the final report considered along with the statements of the witnesses under Section 161 in the police diary. This case does not help the contention raised on behalf of the State in the present rule.
15. Another case on which reliance was sought to be placed is Chittaranjan Das v. State of West Bengal, : AIR1963Cal191 . There the supplementary charge-sheet was submitted before another Magistrate in respect of offences different from those for which the original charge-sheet had been submitted, and it is in the background of this fact that we have to construe the observation in the case that in suitable cases supplementary charge-sheet can be submitted after further investigation. If the case be construed to have said anything more than this, it would go against the Supreme Court decision in Tara Singh's case, : 2SCR729 . As I have already pointed out, a Magistrate takes cognizance on a police report under Section 190 (1) (b) of the Code after the investigation by the police ends and a challan is submitted under Section 173. With the submission of the challan, the cognizance taken bythe police expires and the Magistrate's cognizance of the offence starts. Any further investigation into the offence would trench on the cognizance that has already been taken by the Magistrate. If such further investigation after magisterial cognizance is taken is permitted, we can very well conceive of a case where as a result of a further investigation the police submits a final report pending inquiry by a Magistrate and that would be a situation which is not at all permissible. In my view, after the Magistrate has taken cognizance of an offence on the basis of a police report, further investigation into that offence by the police is not legal. In the facts of the present case, therefore, the police had no authority to make any further investigation into the case and to submit a supplementary charge-sheet including therein certain other persons who had been examined in course of the original investigation as winesses and who had been named as such in the original charge-sheet that was filed. The first objection raised on behalf of the petitioners in these rules must succeed and the supplementary charge-sheet that was filed in the case must be struck down as a document which is unauthorized and illegal and on which the Magistrate could take no action whatsoever.
16. Coming now to the second contention, this raises a question as to whether if a proceeding under Chapter XVIII of the Code is started, the Magistrate is authorized to halt the same and to say that whatever has been done in course of the inquiry up to that date is scrapped and an inquiry de novo would be started.
In the facts of the present case, another question is involved in the matter. The two additional accused persons included in the supplementary charge-sheet were examined as witnesses in the original investigation and their statements recorded under Section 161 of the Code of Criminal Procedure is included in the documents referred to in Section 173 of the Code. As such documents, those statements have some evidentiary value. With the makers of those statements impleaded as accused in the case, what is to happen to their statements which nevertheless stand as some sort of evidence in the case
17. Mr. Dutta refers to Section 350 of the Code and argues that on the question of de novo trial, this section contains the only provision and that, in the circumstances other than those mentioned therein, the Code does not permit a trial de novo. To this argument in my view, there is no answer. Once a trial or an inquiry is set on foot, it must continue in accordance with the prescribed procedure and come to its prescribed end. If there is to be a termination at any previousstage, that must also be in accordance, with the provisions of the Code resulting in the discharge of the accused. In my considered opinion, the learned Magistrate in the case was not competent to halt the proceeding under Chapter XVIII in the midway and to say that he would not proceed further therewith. Apart from the fact that the learned Magistrate's decision in the matter is not contemplated by the law, there is the further complication introduced into the case by acceptance of the unauthorized charge-sheet and the order thereon leaves hanging in the air the legal status of the statements of the two additional accused previously recorded under Section 161 of the Code and which have been clothed with some sort of evidentiary value being papers contemplated by Section 173.
18. A question might very well arise as to whether the learned Magistrate is powerless if the investigation has been perfunctory and if, as a matter of fact, the two additional accused named in the supplementary charge-sheet have really committed the offence alleged, would they escape the clutches of justice. There is no question of an offender's escaping justice. The Magistrate takes cognizance of an offence. He does not take cognizance against individual accused persons. If, in course of the inquiry that has been started, the Magistrate finds evidence to indicate that these two persons named in the supplementary charge-sheet are guilty, he would be quite competent to summon them after the conclusion of this inquiry and to direct their prosecution. There may be an inquiry by another Magistrate against those persons and if there is commitment in both the cases, there will be no difficulty in the matter of a joint trial. The procedure that has been adopted by the learned Magistrate, however, cannot be approved.
19. In the above view of the matter, both the rules are made absolute. The order of the learned Magistrate implying acceptance of the supplementary charge-sheet filed by the police in the case and his further order directing a de novo inquiry against the four accused persons named in the supplementary charge-sheet is set aside. The inquiry against the petitioner in revision case No. 893 of 1965 and the other co-accused in that inquiry will proceed from the stage at which it has been stopped by the learned Magistrate. The order summoning the other two accused on the basis of the supplementary charge-sheet submitted by the police is set aside and they are discharged from their bail bonds.
20. The record be sent down as ex-peditiously as possible.