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State of Himachal Pradesh Vs. Guddu and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1983CriLJ402
AppellantState of Himachal Pradesh
RespondentGuddu and ors.
Cases ReferredSatya Narain Musadi v. State of Bihar
Excerpt:
- .....commission of a non-bailable offence can be invoked even after the submission against him of the police report under section 173(2) of the code simply because such police report is not accompanied by the reports of experts like chemical examiner, serologist (which reports are admissible in evidence without proof under section 293 of the code)' is the short question which calls for examination in this petition filed under sections 397/401 and 439(2) of the code read with article 227 of the constitution seeking the quashing of the order recording by the chief judicial magistrate kangra on 27-2-1981, directing the release of the respondents on bail under section 167(2) of the code.2. this question has arisen in the following circumstances. the respondents herein were all arrested in.....
Judgment:
ORDER

T.R. Handa, J.

1. Whether the provisions of Section 167 of the Cr. P.C., for short called 'the Code' pertaining to Remand/ Release on Bail of an accused arrested in connection with the commission of a non-bailable offence can be invoked even after the submission against him of the police report under Section 173(2) of the Code simply because such police report is not accompanied by the reports of Experts like Chemical Examiner, Serologist (which reports are admissible in evidence without proof under Section 293 of the Code)' is the short question which calls for examination in this petition filed under Sections 397/401 and 439(2) of the Code read with Article 227 of the Constitution seeking the quashing of the order recording by the Chief Judicial Magistrate Kangra on 27-2-1981, directing the release of the respondents on bail under Section 167(2) of the Code.

2. This question has arisen in the following circumstances. The respondents herein were all arrested in connection with the investigation of a case registered with the police and pertaining to the offences falling under Sections 302/34/ 201/120-B/109 I.P.C. Their arrests were made on different dates during the period 19-11-1980 to 24-11-1980. The Investigating Officer submitted the police report under Section 173(2) against all the respondents in the court of the Judicial Magistrate on 16-2-1981, that is, within 90 days from the date when the first arrest was made in the case.

3. It appears that certain articles taken into possession by the police in the course of investigation had been sent for analysis to the Chemical Examiner and the Serologist. The reports of these Experts were still awaited when the police report under Section 173(21 of the Code was filed in court and hence a note was appended to the police report to the effect that the reports of the Chemical Examiner and the Serologist were awaited. It is an admitted position that the reports of these Experts were not filed in court till the expiry of the statutory period of 90 days counted from 24-11-1980, the date when the last arrest was made in the case.

4. It was in these circumstances that the Chief Judicial Magistrate directed the release of the respondents on bail under Section 167(2) of the Code. While directing such release of the respondents on bail, the learned Chief Judicial Magistrate expressed the view that the police investigation could not be considered as concluded till the reports of the Experts had been obtained and filed in court and that the police report submitted without attaching such reports was not a valid police report within the contemplation of Section 173 of the Code and on the basis of which the Magistrate could take cognizance of the offence.

5. A police officer undoubtedly enjoys ample powers to arrest without an order from a Magistrate and without warrants any person who has been concerned in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or reasonable suspicion exists of his having been so concerned. Such police officer, however, cannot detain in custody a person so arrested for a period exceeding 24 hours and in case his custody beyond this period is considered necessary the police officer must produce such person before a Magistrate within the said period of 24 hours (excluding the time necessary for the journey from the place of arrest to the Magistrate's Court) and obtain orders of the Magistrate under Section 167 of the Code. The provisions of Section 167 in so far as they are relevant for the purposes of the present issue read like this.

167. Procedure when Investigation cannot be completed in twenty-four hours:

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward th accused to such magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the, accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, and if he has no jurisdiction to try the case or commit it for trial and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction, Provided that:

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding:

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the Investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person 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 for the purposes of that Chapter;

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

As soon as the investigation is completed the officer in charge of the police station is required under Section 173 of the Code to prepare a report known as 'police report' and to forward the same to a Magistrate empowered to take cognizance of the offence on such report. Such report has to be on a form prescribed by the State Government and must contain the following particulars as enjoined by Sub-section (2) of Section 173:

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under Section 170.

The Magistrate to whom the police report is forwarded under Section 173(2) of the Code may either take cognizance of the offence under Section 190(1)(b) of the Code or he may order the police to conduct further investigation under Section 156(3) of the Code. In case the Magistrate adopts the latter course and directs the police to conduct further investigation, the investigation would not be considered as concluded and the provisions of Section 167 would continue to govern further detention in custody of the accused. On the other hand in case the Magistrate adopts the former course and takes cognizance of the offence, further detention in custody of the accused would be governed by Section 209(b) or Section 309, as the case may be, of the Code, These provisions read like this : --

209. Commitment of case to Court of Session when offence is triable exclusively by it:

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall:

XX X X XX XX(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial.

XX X X XX XX309. Power to postpone or adjourn proceedings:

(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(2) If the court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:

Provided further that when witnesses are in attendance no adjournment or postponment shall be granted, without examining them, except for special reasons to be recorded in writing.

Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.

It, therefore, follows that once a charge-sheet or police report under Section 173(2) is forwarded by the officer in charge of the police station to a Magistrate of competent jurisdiction and such Magistrate takes cognizance of the offence, further detention in custody of the accused would be governed by the provisions of Section 209(b) or Section 309, as the case may be, and the Magistrate in that case shall have no jurisdiction either to remand the accused to custody or to direct his release on bail under Section 167(2) of the Code. .

6. All that remains to be considered is as to what is a police report on the basis of which a Magistrate can take cognizance under Section 190(1)(b). Section 190(1)(b) of the Code reads:

190. Cognizance of offences by Magistrates:

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence:

XX XX XX XX(b) upon a police report of such facts. XX XX XX XX

7. The term 'police report' is defined in Section 2(r) of the Code in these words:

2(r) 'Police Report':'Police report' means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173.

8. Sub-section (2) of Section 173 of the Code in turn provides:

173. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Stale Government stating: XX XX XX XX (ii) XX XX XX XX

9. There is then Sub-section (5) of Section 173 which reads,-

(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report : -.

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

10. The definition of 'police report' as found in Section 2(r) of the Code when read in conjunction with the provisions of Section 173 of the Code would make it clear that a police report means a final report submitted on the completion of the investigation by the officer in charge of police station to a Magistrate empowered to take cognizance of the offence on a police report and which report is in the form prescribed by the State Government and contains all the particulars as mentioned in Section 173(2) of the Code. Sub-section (5) of Section 173 no doubt enjoins that the police officer shall in respect of a case to which Section 170 applies, forward to the Magistrate along with the police report all the documents of the type mentioned in Sub-clauses (a) and (b) of that sub-section but this by itself would not mean that a final report which otherwise answers the definition of 'police report' as given above, would not be considered as a valid police report simply because it is not accompanied by some of the documents as mentioned in Section 173(5). Such documents must of course accompany the police report in terms of Section 173(5) but then these documents cannot be said to form an integral part of the police report. They may, however, be called essential accompaniments of the police report. The submission of the police report under Section 173(2) and filing of documents in terms of Section 173(5) are two separate requirements of the Code. Otherwise also a reference to the various provisions of the Code would show that the Legislature never intended to treat the documents mentioned in Section 173(5) as an integral part of the police report and in whatever provisions of the Code the police report and the documents within the contemplation of Section 173(5) coexist, they have been referred to separately. To illustrate I would extract the relevant provisions of Sections 207 and 239 of the Code:

207. Supply to the accused a copy of police report and other documents. -

In any case where the proceeding has been instituted on a police reports the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:

(i) the police report.

(ii) to (iv) xx xx xx xx xxiv) any other documents or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173.

239. When accused shall be discharged.-If, upon considering the police report, and the documents sent with it under Section 173 and ... he shall discharge the accused and record his reasons for so doing.

11. To me, therefore, there appears to be no doubt that a final report submitted after the completion of the investigation by the officer in charge of police station to a Magistrate empowered to take cognizance of an offence on a police report and which final report is in the form prescribed by the State Government and contains all the particulars mentioned in Sub-section (2) of Section 173 would be a valid police report within the contemplation of the Code irrespective of the fact that it does not contain some of the documents which a police officer is enjoined to file under Section 173(5).

12. In the instant case as already stated the police officer after completion of the investigation filed his final report in the form prescribed by the State Government and containing all the particulars as required by Section 173(2) of the Code in the Court of the Judicial Magistrate, Kangra who was admittedly empowered to take cognizance of the offence on a police report. The report thus filed by the police officer was, therefore, a police report within the meaning of the Code and it could not be said to be invalid for the simple reason that the reports of the Chemical Examiner and Serologist were not filed along with it. I am told that the Magistrate took cognizance of the offence on this very report and has since committed the accused persons to the Court of Session. In these circumstances the provisions of Section 167(2) of the Code could not be attracted either for the purposes of granting further remand of the accused or for releasing them on bail under Section 167(2) after 16-2-1981 when the police report was filed in the Court of the Magistrate. The order directing release of the respondent-accused persons on bail under Section 167(2) of the Code passed by the Chief Judicial Magistrate on 27-2-1981, that is, after the filing of the police report in Court was, therefore, without jurisdiction.

13. This very question arose before a Full Bench of the Punjab and Haryana High Court in the case of State of Haryana v. Mehal Singh reported in AIR 1978 Punj and Har 341 : 1978 Cri LJ 1810 where their Lordships took the view which I have expressed above. This authority was brought to the notice of the learned Chief Judicial Magistrate who, however, expressed the view that this decision of the Punjab and Haryana High Court had been impliedly overruled by the Supreme Court in the case of Satya Narain Musadi v. State of Bihar reported in 1980 Cri LJ 227. I have carefully gone through the judgment of the Supreme Court referred to above and in my view there appears to be no warrant for the conclusion drawn by the learned Judicial Magistrate that this decision of the Supreme Court had impliedly overruled the view expressed by the Full Bench of the Punjab and Haryana High Court in the case referred to above. The question whether a final report submitted after completion of the investigation by the officer in charge of the police station to the Court of competent jurisdiction in the form prescribed by the State 'Government and containing all the particulars mentioned in Section 173(2) was not a valid police report simply because it was not accompanied by some of the documents as mentioned in Sub-section (5) of Section 173, was not involved in the case of Satya Narain Musadi (supra). The question that arose before the Supreme Court in the case of Satya Narain Musadi (supra) was whether while taking cognizance of the offence on a police report the Court could consider the documents which are required to be filed under Section 173(5) of the Code along with the police report or whether the consideration of the Court for the purposes of taking cognizance was confined to only the police report as answered the requirements of Section 173(2) of the Code. The Supreme Court expressed the view that since it was statutory requirement to furnish the documents mentioned in Section 173(5) of the Code along with the police report, the Court could consider the same while taking cognizance of the offence on a police report. The Supreme Court never expressed the view that a final report submitted by the police in accordance with the provisions of Section 173(2) of the Code would not be considered as a valid report simply because some of the documents mentioned in Section 173(5) were not filed along with it. It is thus impossible to conclude that the view expressed by the Full Bench of the Punjab and Haryana High Court in the case reported in AIR 1978 Puni and Har 341 : 1978 Cri LJ 1810 was overruled by the Supreme Court either expressly or impliedly.

14. In the result I accept this petition and quash the order of the learned Chief Judicial Magistrate directing release of the respondents on bail under Section 167(2) of the Code. The respondents who are on bail are accordingly directed to surrender to their bail. This order, however, shall not preclude them from applying afresh for their release on bail under Section 439 of the Code.


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