1. The petitioner has been convicted under Section 174, I.P.C. on the allegation that he intentionally omitted to appear before Sub-Inspector Probhakar Mukherji of the Detective Department at Lalbazar Police Station, though legally bound to do so in obedience to an order purporting to have been issued by the Commissioner of Police under the provisions of Section 78-A, Calcutta Police Act (Act 4 of 1866). It is not disputed that the notice referred to above was duly issued and duly served, and that the petitioner intentionally omitted to comply with it, tout it is contended on behalf of the petitioner that he was not legally bound to attend at Lalbazar in obedience to the notice, inasmuch as the notice was without jurisdiction, not having been issued in the course of the investigation into the case in connexion with which the petitioner's statement was sought to be obtained.
2. It is clear from the opening words of Section 78-A that a notice under that section can only be issued in the course of an investigation, and it is contended on behalf of the petitioner that the investigation stage had been passed at the time the notice was issued, inasmuch as certain persons had already been sent up for trial, and were in fact still being tried at the time the notice was issued. From the definition given in Section 3 of the Act it appears that the term 'investigation' as used in the Act, has the same meaning as in the Code of Criminal Procedure. In that Code [vide Section 4 (1) (1),] 'investigation' has been defined as including all the proceedings under the Code for the collection of evidence conducted by a police officer, and it is clear that, in the present case, Sub-Inspector Probhakar Mukherjee was, rightly or wrongly, still engaged in the collection of evidence when he applied for the issue of the notice in question. Mr. S.K. Basu, who appears for the petitioner, would have me draw a hard and fast line between the investigation stage, and the stage that was reached when the case was sent up and the trial commenced, and contends that, in the absence of fresh information, the investigating officer had no authority to investigate the case further, once the case had been sent up for trial. The Code of Criminal Procedure does appear to make a clear distinction between the investigation stage, and the enquiry or trial stage, as the case may be, and in cases governed by that Code it might well be held that certain things which it would be lawful to do during the investigation stage, would not be lawful during the inquiry or trial stage and vice versa. For example, Section 160, Criminal P.C. which in a sense corresponds to Section 78-A, Calcutta Police Act empowers the police officer making an investigation under Ch. 14 to require by an order in writing the attendance before himself of any person who appears to be acquainted with the circumstances of the case.
3. It might well be contended, in cases coming under the Criminal Procedure Code, that the powers conferred by Section 160 of the Code cannot be exercised after submission of a final report or charge sheet, as the case may be, under the provisions of Section 173 of the Code, but I do not think it would be right to argue from analogy and to hold that similar considerations necessarily apply to an investigation conducted by the Calcutta police, for it is expressly laid down under Section 1 (2), Criminal P.C. that, in the absence of any special provision to the contrary, nothing in the Code shall apply to the police in the town of Calcutta. The result is that with a few exceptions, none of which have any bear-ing on the present case, the provisions of the Criminal Procedure Code regarding investigations by the Bengal police do not apply to investigations by the Calcutta police. The Calcutta Police Act itself does not, as far as I have been able to ascertain, contain any rules of procedure regarding the conduct of investigations by the Calcutta police and no statutory enactments or rules, or even executive orders, have been brought to my notice in connexion with the present case which throw any light on the question of the procedure to be followed by the Calcutta police in investigating charges laid before them. The result is that I find it impossible to hold that the police investigation automatically came to an end with the submission of a chalan against some of the accused persons and that the notice issued under Section 78-A, Calcutta Police Act was without jurisdiction and therefore not binding by reason of its having been issued after the commencement of the trial.
4. In the present case it appears that certain books of accounts had been seized by the police in the course of the investigation, and that prior to the submission of the-chalan, attempts had been made to secure-the petitioner's attendance in order that he might be asked to explain certain entries in the accounts. Some accused persons were however sent up for trial without waiting, for the petitioner to come and explain the entries in question, and the entries had already been marked as exhibits when the notice under Section 78-A was issued. It further appears that the notice was issued at the instance of the Court Inspector and that the object of asking the petitioner to come and explain the entries in question was really to enable the investigating officer to give the Court Inspector in charge of the prosecution certain instructions. In these circumstances it seems to me that the best course would have been for the Court-Inspector to apply to the Magistrate for summons on the petitioner to appear in Court, and to have dispensed with his preliminary examination by a police officer. That would have served the purpose just as well, and it would have been impossible to question the legality of that procedure. It does not however follow that the procedure actually followed was illegal and for the reasons already indicated, I am not prepared to hold that the notice under Section 78-A was without jurisdiction, and therefore not binding on the petitioner. Mr. Basu points out that in this view of the matter there might be a conflict of jurisdiction as both the trial Magistrate and the Commissioner of Police would have power to compel the attendance of any person before them, the other requisite conditions being fulfilled, as disobedience of their respective orders would in both cases entail a penalty. That is perfectly true, but apart from the fact that such a clash of jurisdiction would be extremely improbable, it seems to me that the considerations raised by this argument are not considerations which ought to affect the question of the interpretation on the application of Section 78-A. That section. stands by itself, and I am unable to hold, having regard to the terms of the section and to the definition of 'investigation' contained in the Code of Criminal Procedure,. that the investigation automatically terminated with the submission of the chalan and that any order made under Section 78-A, after the trial had commenced, was without jurisdiction and therefore not binding. In this view of the matter it must be held that the petitioner has been rightly convicted. The rule is accordingly discharged.