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2014 (7) TMI 1360 - HC - Indian Laws


Issues Involved:
1. Legality of the Special Judge's cognizance based on an incomplete police report.
2. The procedural correctness of returning the police report by the Special Judge.
3. The applicability of Section 173(2) and Section 173(8) Cr.P.C. regarding the final and interim police reports.
4. The nature of the order (interlocutory or intermediary) and its implications for revision under Section 397 Cr.P.C. and inherent powers under Section 482 Cr.P.C.

Detailed Analysis:

1. Legality of the Special Judge's Cognizance Based on an Incomplete Police Report:
The court found that the Special Judge took cognizance of offences based on a police report that explicitly stated the investigation was ongoing. The judgment emphasized that a report indicating incomplete investigation cannot be deemed a final report under Section 173(2) Cr.P.C. The court cited multiple precedents, including:
- Bandi Kotayya v. State (AIR 1966 AP 377): A preliminary charge-sheet cannot be regarded as a report under Section 173 Cr.P.C.
- T.V. Sarma v. Smt. Turgakamala Devi (1976 Cri.L.J. 1247): A report sent before the completion of the investigation is not a police report under Section 173(2) Cr.P.C.
- Kamal Lochan Sen v. State of Orissa (54 (1982) CLT 509): The report must be complete for the Magistrate to take cognizance.
- Bhartendu Pratap Singh v. State of U.P. (2011 (4) ADJ 466): Cognizance on an incomplete report is unsustainable.

The court concluded that taking cognizance based on such a report was an error apparent on the face of the record.

2. Procedural Correctness of Returning the Police Report by the Special Judge:
The court criticized the Special Judge for returning the police report to rectify defects, emphasizing that once a report is submitted, it becomes the court's property and should not be returned. Instead, the court should issue a memo to the Investigating Officer to rectify the errors while retaining the report. This practice was reiterated from the Division Bench decision in A. Vinayagam v. Dr. Subash Chandran (2000 (1) CTC 225).

3. Applicability of Section 173(2) and Section 173(8) Cr.P.C.:
The judgment clarified the distinction between an incomplete report and a final report followed by further investigation:
- Section 173(2) Cr.P.C.: Requires a complete report after the investigation is finished.
- Section 173(8) Cr.P.C.: Allows further investigation after a final report has been submitted, not before.

The court held that the police cannot submit an interim report to deny the accused's statutory rights and then rely on Section 173(8) Cr.P.C. to continue the investigation.

4. Nature of the Order and Implications for Revision:
The court addressed whether the Special Judge's order was interlocutory or intermediary:
- The order, affecting the accused's right to be served with process, was deemed an intermediary order, making it subject to revision under Section 397 Cr.P.C.
- Even if considered interlocutory, the court could exercise its inherent powers under Section 482 Cr.P.C. to prevent miscarriage of justice, as supported by Subhiksha Trading Services Ltd. v. Azim H. Premji (2011 Crl.L.J. 2769).

Conclusion:
The revision petition was allowed, and the Special Judge's order dated 23.01.2013 was set aside. The court instructed that the ongoing investigation should culminate in a proper police report under Section 173(2) Cr.P.C., upon which the Special Judge should act according to the law. All connected miscellaneous petitions were closed.

 

 

 

 

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