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TMI Blog1979 (1) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... st one Bali Ram Sharma and two others. 3-119 SCI/79 The case ended in their acquittal on 16th July 1968. During the pendency of the case one Narinder Nath Malik (N. N. Malik) filed an application before the Magistrate alleging that he was a research scholar and requesting that he might be given custody of the two pillars to enable him to make a detailed study. At the instance of H. L. Mehra, the then Chief Judicial Magistrate, Karnal and a friend of N. N. Malik, the learned Ilaqa Magistrate gave custody of the two pillars to N. N. Malik on his executing a personal bond in a sum of ₹ 20,000/-. The order was written by H. L. Mehra himself and signed by the Ilaqa Magistrate. The pillars remained in the custody of N. N. Malik from Ist March 1968 to 27th May 1968, when N. N. Malik purported to return them to the Court of the Ilaqa Magistrate, Karnal. After the acquittal of Bali Ram Sharma and others, the pillars were handed over to the Lambardar of village Amin. Later, it came to light that the pillars returned by N. N. Malik were not the original pillars but fakes. Thereupon, First Information Report No. RC.2/71-CIA/SPE/CBI was registered at Delhi against N. N. Malik and H. L. Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to be under Section 306 of the Code of Criminal Procedure, 1973, praying that he might be granted pardon. The application mentioned Sections 411, 406 and 420 Indian Penal Code read with Section 120-B and Section 25(1) of the Antiquities and Art Treasures Act, 1972, as the offences involved. The application was supported by the reply filed by the Superintendent of Police, C.B.I. On 3rd July 1976, the Chief Metropolitan Magistrate, Delhi, granted pardon to N. N. Malik. Before the grant of pardon the confessional statement of N. N. Malik was got recorded by the Metropolitan Magistrate, Delhi. Thereafter, on 19th July 1976, a charge-sheet (R.C. 4/1976) was filed in the Court of Chief Judicial Magistrate, Delhi, for offences under Section 120-B Indian Penal Code read with Sections 420, 411 and 406 Indian Penal Code and Section 25 of the Antiquities and Art Treasures Act, 1972. The case was transferred to the Court of the Additional Chief Metropolitan Magistrate. On 20th July 1976, the Additional Metropolitan Magistrate issued process for the appearance of the three Narang brothers. The learned Magistrate also issued warrants for the extradition of Omi Narang and Manu Narang who were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Metropolitan Magistrate issuing process to them and warrants for the extradition of Omi Narang and Manu Narang. It was also sought to be declared that the entire investigation in R.C. 4 of 1976 was illegal and the orders of the Chief Metropolitan Magistrate and the Additional Metropolitan Magistrate taking cognizance of R.C. 4 of 1976 were illegal. The grant of pardon to N. N. Malik was questioned. It was also prayed that the proceedings before the Metropolitan Magistrate might be quashed. The petitions were admitted by the Delhi High Court on 22nd June, 1977, but ultimately dismissed on 10th January 1978, by a common judgment. Ramlal Narang having obtained special leave from this Court has filed Criminal Appeal No. 373 of 1978 and Omi and Manu Narang have preferred Criminal Appeal No. 374 of 1978. We may mention here that on 1st August, 1977, a supplemental charge-sheet was filed making Mehra an accused in the Delhi case, the case in the Ambala Court having been withdrawn on 16th May, 1977, as mentioned earlier. Malik, we may add, died sometime during August, 1977. We are given to understand that Mehra also was subsequently granted pardon. Shri Harjinder Singh, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of any bar against the Delhi Court from taking cognizance of the case based upon the wider conspiracy merely because the Ambala Court had taken cognizance of the case based upon the narrower conspiracy. Shri Lalit also urged that the statutory right of the Police to investigate into cognizable offences was not fettered and did not end with the submission of a charge-sheet to the Court. He submitted that the Police had the right and indeed, the duty, to investigate into fresh facts coming to light and to appraise the Court of the same. The basic submission on behalf of the appellants was that the two conspiracies alleged in the two cases were but one. The sequitur was that the investigation into and the taking of cognizance of the second case were without jurisdiction. We will first examine the question whether the conspiracy which was investigated by the Police and which investigation led to the filing of the charge-sheet in the Ambala case can be said to be the same as the conspiracy which was later investigated and which led to the filing of the charge-sheet in the Delhi Court. For this purpose, it is necessary to compare the First Information Report and the charge-sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt by N. N. Malik and had been substituted by fake pillars, the First Information Report went on to recite that the genuine pillars, which were stolen from Suraj Kund temple as mentioned above were found to be in the possession and control of Manohar Lal alias Manu Narang in London. It was further recited that Manu Narang was negotiating the sale of the pillars through some London brokers and the price expected to be fetched was approximately five hundred American dollars. It was recited further that Manu Narang and his brother Ramlal Narang had commissioned two well known sculptors of Delhi to make three sets of fake pillars. The two brothers and others, acting in conspiracy, had dishonestly received and exported the two stone pillars. The charge-sheet which followed the investigation was filed on 19th July 1976 in the Delhi Court. The charge-sheet mentioned the three Narang brothers, Ramlal Narang, Manoharlal Narang and Om Parkash Narang, as the three accused persons sent up for trial and H. L. Mehra as a person not sent up for trial as he was already facing trial before the Special Magistrate, Ambala. The charge- sheet recited, among other facts, that the Narang brothers had co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted other offences under Section 411 Indian Penal Code." It was further mentioned in the charge-sheet that Manoharlal Narang and Omi Narang were in London and that proceedings for their extradition were under way. It was also mentioned that H. L. Mehra was facing trial before the Special Magistrate, Ambala, for the offences committed by him and, therefore, he was nor being sent up for trial in this case. It is obvious that neither at the time when the First Information Report pertaining to the Ambala case was registered nor at the time when the charge-sheet was filed in the Ambala Court, were the Narang brothers known to be in the picture. The investigating agency was not also aware of what Malik and Mehra had done with the pillars after they had obtained possession of the pillars from the Court and substituted and returned fake pillars to the Court. The First Information Report and the charge-sheet were concerned primarily with the offences of conspiracy to cheat and to misappropriate committed by Malik and Mehra. At that stage, the investigating agency was not aware of any conspiracy to send the pillars out of the country. It was not known that the Narang brothers were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Section 406 Indian Penal Code, while the offences alleged in the second case were Section 120-B read with Section 411 Indian Penal Code and Section 25 of the Antiquities and Art Treasures Act, 1972. It is true that the Antiquities and Art Treasures Act had not yet come into force on the date when the First Information Report was registered. It is also true that Omi Narang and Manu Narang were not extradited for the offence under the Antiquities and Art Treasures Act and, therefore, they could not be tried for that offence in India. But the question whether any of the accused may be tried for a contravention of the Antiquities and Art Treasures Act or under the corresponding provision of the earlier Act is really irrelevant in deciding whether the two conspiracies are one and the same. The trite argument that a Court takes cognizance of offences and not offenders was also advanced. This argument is again of no relevance in determining the question whether the two conspiracies which were taken cognizance of by the Ambala and the Delhi Courts were the same in substance. The question is not whether the nature and character of the conspiracy has changed by the mere inclusion of a fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... send forthwith a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and than to proceed in person or depute one of his subordinate officers to proceed to the spot, to investigate the facts and circumstances of the case and to take measures for the discovery and arrest of the offender (Section 157 Criminal Procedure Code). He was required to complete the investigation without unnecessary delay, and, as soon as it was completed, to forward to a Magistrate empowered to take cognizance of the offence upon a police report, a report in the prescribed form, setting forth the names of the parties, the nature of the information and the names of the persons who appeared to be acquainted with the circumstances of the case (Section 173(1) Criminal Procedure Code). He was also required to state whether the accused had been forwarded in custody or had been released on bail. Upon receipt of the report submitted under Section 173(1) Criminal Procedure Code by the officer incharge of the Police Station, the Magistrate empowered to take cognizance of an offence upon a police report might take cognizance of the offence (Section 190(1) (b) Criminal Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Courts, to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of Habeas Corpus. In such a case as the present, however, the Court's function begin when a charge is preferred before it and not until then....... In the present case, the police have under Sections 154 and 156 of the Criminal Procedure Code, a statutory right to investigate a cognizable offence without requiring the sanction of the Court.......... Ordinarily, the right and duty of the police would end with the submission of a report under Section 173(1) Criminal Procedure Code upon receipt of which it was up to the Magistrate to take or not to take cognizance of the offence. There was no provision in the 1898 Code prescribing the procedure to be followed by the police, where, after the submission of a report under Section 173(1) Criminal Procedure Code and after the Magistrate had taken cognizance of the offence, fresh facts came to light which required further investigation. There was, of course, no express provision prohibiting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epeated investigations under the old Code was recognised by the Madras High Court as early as in 1919 in Divakar Singh v. A. Ramamurthi Naidu (1), where Phillips and Krishnan, JJ., observed as follows: "Another contention is put forward that when a report of investigation has been sent in under Section 173, Criminal P.C., the police has no further powers of investigation, but this argument may be briefly met by the remark that the number of investigations into a crime is not limited by law and that when one has been completed another may be begun on further information received". In re. Palaniswami Goundan(1) the Madras High Court held that notwithstanding the filing of a final charge- sheet, a police officer could still investigate and lay further charge-sheets if he got information and that there was no finality either to the investigation or to the laying of charge-sheets. In Md. Niwaz v. The Crown(2) a Bench of the Lahore High Court consisting of Din Mohammad and Cornelius JJ., cited with approval the decision of the Division Bench of the Madras High Court in Divakar Singh v. A. Ramamurthi Naidu(3) already referred to by us. In Prosecuting Inspector v. Minaketan Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Court; defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it. In Tara Singh v. State(1) the police first submitted a report styled as "an incomplete challan", which, however, contained all the particulars prescribed by Section 173(1). Later, two supplemental challans were submitted containing the names of certain formal witnesses. The Magistrate had taken cognizance of the case when the incomplete challan was submitted. It was urged that the Magistrate had taken cognizance of the case illegally and the statements of witneses examined before submission of the supplemental challans should be excluded from the record. This Court held that the so called incomplete challan was in fact a complete report of the kind contemplated by Section 173(1) (a), and, therefore, the Magistrate had properly taken cognizance of the case. The Court declined to express any opinion on the question whether the police could be permitted to send incomplete reports under Section 173(1) Criminal Procedure Code. This case while neither approving nor disapproving the practice of submitting incomplete challans in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate ? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to make further investigation. As in the present case, occasions may arise when a second investigation started independently of the first may disclose a wide range of offences including those covered by the first investigation. Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior Court to have the two cases tried together. The Magistrates themselves may take action suo motu. In the present case, there is no problem since the earlier case has since been withdrawn by the prosecuting agency. It was submitted to us that the submission of a charge-sheet to the Delhi Court and the withdrawal of the case in the Ambala Court amounted to an abuse of the process of the Court. We do not think that the prosecution acted with any oblique motive. In the charge-sheet filed in the Delhi Court, it was expressly mentioned that Mehra was already facing trial in the Ambala Court and he was, therefore, not being sent for trial. In the application made to the Ambala Court under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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