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Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Vimla Dassi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case Nos. 119, 120, 126, 132, 191 and 235 of 1968
Judge
Reported inAIR1968Cal540,1968CriLJ1411
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 162, 173, 173(1), 190, 251A and 252
AppellantSupdt. and Remembrancer of Legal Affairs, West Bengal
RespondentVimla Dassi and ors.
Appellant AdvocateKishore Mukherji, Adv. ( in Nos. 119, 120, 126 and 191/68) and ;Priti Bhusan Barman, Advs.;Jatish Chandra Bose, Adv. (in No. 132/68) and ;Arun Kumar Mukherjee, Adv. (in No. 235/68
Respondent AdvocateAjit Kumar Dutta, ;S.N. Sur, ;B.N. Sur and ;Durgapada Dutt, Advs. (In Nos. 119, 120 and 126/68
Cases ReferredTikamchand v. State
Excerpt:
- .....decision in in re: veerappa giramani, : air1959mad405 where it was held that under the amended code copies have to be prepared and furnished to the accused in all cases when there is police investigation under chapter xiv; but while there are provisions in sections 207a and 251a requiring the magistrate to satisfy himself that the documents referred to in section 173 had been furnished to the accused before commencement of committal enquiry or warrant case, there is no such corresponding provision regarding trial of summons cases. it was also held that, if copies are not filed, the accused in a summons case can always bring the matter to the notice of the magistrate and then it is the duty of the magistrate to see that he gets the copies.10. to the same effect is a madhya pradesh.....
Judgment:
ORDER

T.P. Mukherji, J.

1. These six Rules are taken up for bearing together as the same questions of law and fact are involved in all of them.

The Rules in Criminal Revision Cases Nos. 119, 120, 126 and 191 of 1968 arise out of trials being held in the courts of Presidency Magistrates at Calcutta while the Rules in Criminal Revision Cases Nos. 132 and 235 of 1968 arise out of trials in the courts of Special Judges created under the West Bengal Criminal Law Amendment (Special Courts) Act 1949. The trials in the courts of the presidency magistrates are in respect of offences under the Indian Penal Code and also an offence under the Imports and Exports (Control) Article 1947.

2. All tht cases were initiated on complaints although all of them were preceded by police investigations held under Chapter XIV of tht Code of Criminal Procedure In the cases pending before the magistrates, permission was taken by the investigating officer from the magistrates concerned under Section155(2) of the Code of Criminal Procedure to investigate inasmuch as offences under the Imports and Exports (Control) Act are non-cognizable. After investigations in those cases no reports under Section 173 of the Code were, however, filed and cognizance was taken on complaints filed bv persons authorised by the Central Government under Section 5 of the Imports and Exports (Control) Act.

3. In one of the cases pending before the Special Courts (Criminal Revision Case No. 235 of 1968) the report of the investigating officer was treated as a complaint and cognizance was taken thereon, while in the other (Criminal Revision Case No. 132 of 1968) the public prosecutor of the district filed a petition made by an inspector of police who obviously held the investigation in the case and that petition made by the police inspector but filed by the public prosecutor was treated as a complaint.

4. In all the trials before the Presidents magistrates as well as before the special judges the procedure prescribed in Section 252 and the following sections ot the Code of Criminal Procedure are being followed. The accused in all these cases applied for conies of documents referred to in Section 173 of the Code to be furnished to them The learned presidency magistrates directed the prosecution to furnish the copies as praved for. It is against these orders directing copies to be furnished that the Superintendent and Remembrancer of Legal Affairs, West Bengal, moved this Court and obtained the relevant Rules The special iudges refused the prayer for the granting of copies and the accused persons concerned moved this Court and obtained the relevant Rules against those orders.

5. The common question that is posed in all these Rules is whether when cognizance is taken on the basis of a complaint obviously under Section 190(1)(a) of the Code of Criminal Procedure, in a case which has been preceded by an investigation under Chanter XIV of the Code of Criminal Procedure but wherein no report under Section 173 of the Code was filed, the accused should be entitled to the benefit of Section 173(4) of the Code of Criminal Procedure in the shape of copies of documents referred to in the section being made available to him.

6. The learned advocates appearing for the State in all these cases have argued that when cognizance was taken on a complaint and the procedure for trial of the case is according to the provisions of Section 252 and the successive sections of the Code, law does not enjoin on the prosecution the duty of furnishing copies of any document to the accused It is contended that the liability to serve copies of documents arise under the procedure contemplated under Section 251A of the Code which relates to trials of cases instituted on Police reports As the Criminal Procedure Code has divided the cases for the purpose of a trial into two classes -- one started on a police report and th othei started otherwise than on a police report -- and as separate procedures have been prescribed for trials of the two classes and as there is no liability to supplv copies in cases wherein cognizance is taken otherwise than on a police report, that liability should not be foisted on prosecutions in such cases.

7. In this connection. 1 am referred to Sections 200, 204 (1A) and 204 (1B) which prescribe the mode of taking cognizance on the basis of complaints and the circumstances under which processes will issue. It is pointed but that in a complaint case the accused is entitled only to a copy of the complaint and a list of the prosecution witnesses and nothing more. As in such cases the Criminal Procedure Code does not require copies of any documents to be served on the accused, the accused has no right to ask for such copies and the court has also no right to direct that the accused be furnished with these copies. Mr. Mukh-erii appearing for the Superintendent and Remembrancer of Legal Affairs. West Bengal referred in particular to an Allahabad decision in Avinash Kumar v. State, 1963 (2) Cri LJ 706 (All) in support of his areu-ment that the accused in a case started otherwise than on a police report has no right to ask for copies of any documents as referred to in Section 173 of the Code.

8. On behalf of the accused persons involved in these Rules it was contended by the learned advocates that whenever a cast is investigated by the police under Chapter XIV of tht Code of Criminal Procedure on completion of the investigation, a report under Section173 has to follow As soon as a report is filed under that section, the officer in charge of the police station submitting the report is required to furnish tht copies of documents mentioned in Sub-section (4) of Section 173 to the accused persons Section 173(4) it is urged has created a right in favour of the accused to be furnished with these copies and not only that, it has also created a liability in the officer in charge of the police-station concerned to furnish such copies. It is contended in this connection that Section 251A or Section 207A of the Code of Criminal Procedure has created no right in the accused to Ret copies. These sections have only created a liability of the magistrate concerned to satisfy himself that copies have been supplied, and if copies have not been supplied, to see that they are supplied before the trial commences.

9. Mr. Dutta for the opposite parties in Criminal Revision Cases Nos. 119, 120 and 126 of 1968 visualises a situation where a dishonest police officer in collusion with a complainant may, if too legalistic a view of the matter be taken, completely nullify the salutary provisions of Section 173(4) of the Code bv initiating an investigation under Chapter XIV and thereafter not submitting a report under Section 173 but enabling the complainant concerned to file a complaint before a magistrate and at the trial to take advantage of the materials collected in course of the investigation. It is pointed out by Mr. Dutta that a similar situation may be said to arise in cases where the police starts an investigation and on the materials collected in course of the investigation another authority files a complaint on which cognizance is taken by the magistrate and the trial is commenced in accordance with the provisions of Section 252 of the Code thereby depriving the accused of his right to get copies under Section 173(4) oi the Code. Mr. Dutta in thi.s connection further contends that the right to get copies is available to an accused even in a summons case which has been investigated by the police and which is not even triable under Chap. 21 of the Code of Criminal Procedure, in view of the fact that the investigation must end in a report under Section 173 thereby attracting the provisions of Sub-section (4) of the Section. In this connection he refers to a Madras decision in In re: Veerappa Giramani, : AIR1959Mad405 where it was held that under the amended Code copies have to be prepared and furnished to the accused in all cases when there is police investigation under Chapter XIV; but while there are provisions in Sections 207A and 251A requiring the magistrate to satisfy himself that the documents referred to in Section 173 had been furnished to the accused before commencement of committal enquiry or warrant case, there is no such corresponding provision regarding trial of summons cases. It was also held that, if copies are not filed, the accused in a summons case can always bring the matter to the notice of the magistrate and then it is the duty of the magistrate to see that he gets the copies.

10. To the same effect is a Madhya Pradesh High Court decision in Tikamchand v. State, 1957 Cri LJ 188 (MB) referred to by Mr. Dutta wherein it was held that Section 173(4) of the Code of Criminal Procedure governs all criminal cases investigated by the police irrespective of the fact whether they are summons eases or warrant oases.

11. A literal interpretation of Section 251A and Section 252 of the Code would indeed support the contention on behalf of the State that in the case of a trial, where the procedure in Section 252 of the Code is being followed, it is not the duty of the court concerned to satisfy itself that copies have been served on the accused. There is, however, nothing in those sections to say that in oases investigated under Chapter XIV the accused has no right to get copies of documents referred to in Section 173 of the Code. The right of the accused, if any, does not flow from either of those two sections. It would not flow from the prescribed procedure for the trial of cases. When admittedly there has been an investigation under Chapter XIV of the Code and when admittedly materials have been collected in course of that investigation, I find no au-thoritv for the proposition that a report under Section 173 of the Code may not follow. Under that section, the officer in charge of a police station shall forward to a magistrate empowered to take cognizance on a police report a report giving certain particulars. The requirement is mandatory. Mr. Bose appearing for the State in Criminal Revision Case No. 132 of 1968 has contended that the report has to be submitted to the magistrate who is empowered to take cognizance on a police report, but as in a case triable by a special judge under the Special Courts Act 1949 a magistrate is not empowered to take cognizance, the police may not submit a report after an investigation as required by Section 173 of the Code. The expression 'Magistrate empowered to take cognizance of the offence' in Clause (a) of Sub-section (1) of Section 173 has to be considered along with the provision in Section 156 of tht Code. Under that section any police officer in charge of a police-station may investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to enquire into or try. The power to investigate is limited to a police officer of the local area of a magistrate havine jurisdiction in the matter of enquiry or trial and when in cl. (a) referred to above the police officer is required to forward a report to a magistrate empowered to take cognizance of the offence, it must mean a magistrate empowered under Section 190(1)(b) and having jurisdiction over the local area within which the police-station concerned is situate If the power to take cognizance it there, the fact that it cannot he xercised because of a bar in another statute would not make Section 173 nugatory.

12. It follows, therefore, that an investigation under Chapter XIV of the Code of Criminal Procedure must lead up to a report under Section 173 of the Code giving rise immediately to a liability in the police officer concerned to furnish copies of certain documents to the accused and Riving rise at the same time to a corresponding right in the accused to get such copies. If the police officer without submitting a report under Section 173 makes over the materials collected by him to some other authority or person to enable that authority or person to file a complaint, that may be done if only the law permits. The law may permit the filing of a complaint by another authority or person in the case, but law would not permit remissness on the part of the police officer in the matter of submitting his report under Section 173(1) of the Code. That is a mandatory duty of the police officer concerned. If that mandatory duty has not been performed, the question is whether it will take away the right of the accused to get copies under Sub-section (4) of Section 173. In my view, the Police Officer must do his duty. The question whether the magistrate can take cognizance on that police report or not is not germane to the issue. Section 173 has nothing to do with the taking of cognizance on that police report. Even if the police officer does not do his duty, that would not take away the right of the accused to get copies The duty to furnish copies will be transferred to the prosecutor who would benefit by the result of the investigation The scheme of the Code appears to be that when the prosecution is in possession of evidence collected by an investigation under the Code, those materials should be made available to the defence before the trial commences. This is a privilege and a right that the amendment of the Code in 1955 has given to the accused. That privilege and that right cannot be taken away by any action of the police officer concerned in not complying with the requirements of Section 173. The Criminal Procedure Code never contemplates that a case started on a complaint will be preceded by an investigation under Chapter XIV nor did the Code con-template that an investigation under Chapter XIV will not end in a report under Section 173. If the intention of the legislature was as is apparent from the amendment made in 1955 that in all cases which have been investigated under Chapter XIV copies of documents would be made available to the defence, that intention should not be frustrated by the requirement in any other statute which requires the court to take cognizance not on the police report furnished under Section 173 but on a complaint filed by some other authority, though on the strength of the result of the investigation that has been held,

13. True, the Code does not require copies of materials collected in course of an investigation under Chapter XIV to be furnished to the accused in trials under the procedure prescribed in Section 252 but when the Code in Sections 251A and 252 created two watertight compartments of cases coming up for trial it never contemplated that the line of demarcation will be cut through and cases investigated under Chapter -XIV will not end up in reports under Section 173 but will lead up to a complaint and change their character in the matter of taking of cognizance of the offence concerned. This change of situation has to be considered in deciding whether and how far the benefit afforded to the accused under Section 173(4) should be denied to them when the change leads to a change in the matter of taking of cognizance and in the procedure for the trial.

14. In this connection, the question of an accused in a summons case investigated by the police and instituted on the police report deserves consideration Those cases will be triable not under Chapter XXI but under Chapter XX of the Code. Can it be said that the accused in such a case is not entitled to copies of documents referred to in Section 173? Such a case would be instituted on a police report submitted under Section 173 and as soon as the report was submitted there arose the liability of the police officer and the corresponding right of the accused in reldtion to the copies as envisaged in Sub-section (4) of the section. Although Chanter XX has not incorporated a provision analogous to that in Section 251A in the matter of furnishing of copies to the accused, the right of the accused to get on demand the same cannot be denied. I agree with the Madras and Madhya Pradesh decisions referred to by Mr. Dutta and I find no difficulty in holding that in summons cases started on police reports, the accused has his right under Section 173(4) to obtain copies irresoective of the fact that Chapter XX of the Code has made no provision similar to that in Section 251A in that regard.

15. Sections 251A and 252 of the Code of Criminal Procedure do not appear to contain the relevant considerations in deciding the question as to whether the accused should be furnished with copies of documents in cases wherein cognizance is taken on the basis of a complaint, but where investigation has been held under Chapter XIV of the Code for the purpose of collecting materials for the complaint that is subsequently filed. The relevant consideration is to be found in the provisions of Section 173 of the Code. The amendment of 1955 has conferred on the accused persons in cases arising out of Police reports submitted after Police investigation two distinct benefits in this regard, namely (1) it has simplified (sic) procedure for thr exercise by an accused of his statutory right under Section 145 ot the Evidence Act and undei Section 162 of the Code of Criminal Procedure and (2) a simple benefit arising out of a prior knowledge of all the evidence that would appear against him at the trial A failure to supply copies of documents in cases such as these would mean a virtual denial of the above right of the accused and. if not a denial, at least a clog on that right which it would bt difficult to set round and which would also mean a denial of a prior knowledge of the evidence that might be used against the accused at the trial. If the spirit of the Criminal Procedure Code was to supply the above benefits under specified circumstances, it would not conduct to a fair trial to deny those benefits with the circumstances remaining as they are. This is a consideration in equity which is attracted to the matter apart from the legal consideration that I have set out above I find that in all cases instituted on a complaint where there has been a police investigation the salutary provision of Section 173(4) will operate to the benefit of the accused and it will be the duty of the prosecution to furnish copies of documents mentioned therein. If this is not done, it will be the duty of the trial court on the matter being brought to its notice, to give direction to the prosecution to comply with the provisions of the sub-section above. The prosecution cannot be permitted to take advantage of the investigation and at the same time to deny to the accused the benefit of the provision That would mean frustrating the intention of the Legislature in the matter. If it means adding to the statute, that would be permissible and justifiable as it simply gives effect to the intention of the Legislature.

16. In the Rules arising out of trials before the Presidency magistrates at Calcutta there wert investigations under Chapter XIV of the Code of Criminal Procedure As Section 6 of the Imports and Exports (Control) Act created a bar to the taking of cognizance of any offence under the Art except upon complaint made by certain specified officers a complaint was required to be filed. The investigating officers, apparently because complaints would in any cast have to be filed, did not file reports under Section 173 Cognizance of the of fence was taken on complaints which were filed Necessarily the procedure to be followed will be that prescribed in Section 252 and the following sections of the Code of Criminal Procedure In view of all that I have stated above the investigating offi-cers concerned were under an obligation on completion of then investigations to submit reports under Section 173. The complaints filed in these cases themselves state that the facts have arisen out of the investigations that had been held. If necessary, in the circumstances a legal fiction will arise that a report under Section173 of the Code has been filed. The right of the accused to get copies of documents under Sub-section (4) of Section 173 under that legal fiction must he held to have arisen The police officer concerned has not supplied copies of those documents But the court on the fact being brought to its notice must see that the copies are supplied. The learned magistrates. I find, have directed copies to be supplied. I am told that, if copies have to be supplied, the prosecution will require time for preparation of the necessary copies I have no doubt that if the difficulty is brought to the notice of the learned magistrates, reasonable time will be granted for the purpose.

17. So far as the trials before the special judges are concerned, the records disclose an interesting state of things. Then were investigations held but no formal reports under Section 173 were filed In one case (Criminal Revision Case No. 235 of 1968), there is a written report by a police officer which is treated by the learned judge as a complaint. How the report of a police officer could be treated as a complaint for the purpose of taking cognizance of the offences concerned is difficult to understand. It the police officer concerned had held investigation in the case and after investigation had submitted that report, that is the report under Section 173 of the Code and cognizance under the Criminal Law Amendment (Special Courts) Act could have been taken under Section 190(1)(b) of the Code of Criminal Procedure on that report. If any other police officer had held the investigation in the case, even then this report even if submitted by another police officer could not be treated as a complaint as defined in Section 4(h) of the Code.

18. Similar is the state of things in the other special court case (Criminal Revision Case No 132 of 1968). There also cognizance was taken on a complaint, which is nothing more than a report made by a police officer which however was actually filed in court by the public prosecutor. It is not necessary for me in this proceeding to enter into the question as to the correctness of the procedure that is being followed in these two cases. The fact, however, stands that there were investigations in these cases which have ended in the reports Whether those reports are treated as reports under Section 173 or as complaints by the special judge concerned is immaterial. What is material is that reports were submitted under Section 173(1)(a) thereby attracting Sub-section (4) of Section 173 of the Code The learned judges, in my view were not, in the circumstances justified in refusing the prayer for copies made on behalf of the accused.

19. In the result, the Rules issued in Criminal Revision Cases Nos. 119, 120, 126 and 191 of 1968 are discharged. The Rules in Criminal Revision Cases Nos. 132 and 235 of 1968 are made absolute. The orders of the learned judges in these two cases are set aside and the learned judges are directed to give suitable directions to the prosecution for the supply of copies referred to in Section 173 to the accused persons in these cases.

20. The records be sent down as expeditiously as possible.


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