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TMI Blog1978 (4) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... o take cognizance of the offence disclosed therein. 2. The aforesaid question arises for consideration in the wake of a claim made by all the petitioners except in Criminal Misc. No. 4766--M of 1977(for facility of reference the accused--petitioners in these petitions are referred to as the petitioners) for their release on ball in view of the proviso to sub--section (2) of S. 167 of the Code, which envisages that during the investigation a Magistrate is not competent to keep an accused in custody, police or judicial, exceeding sixty days. In other words, if in this period the investigation is not concluded, the Magistrate would have no option but to order the release of such an accused on bail. 3. Before embarking upon the consideration of the legal question aforesaid, a few words on facts may be stated herein. 4. In Criminal Miscellaneous petitions Nos. 5812--M and 6077--M of 1977 and 169--M and 293--M of 1978, the petitioners have applied to this Court for being released in view of the proviso to sub--section (2) of S. 167 of the Code, while in Criminal Miscellaneous Petition No. 4766--M of 1977 the accused--respondents had been released by the Additional Sessions Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch magistrate thinks fit, for a term not exceeding fifteen days in the wholes 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 detention of the accused person, otherwise than in 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 section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, 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 section shall be deemed to be so released under the provisions of Chap. XXXII for the purposes of that Chapter. If during this period the investigation is not completed, the Magistrate has no jurisdiction to remand the accused for further detention unless he had taken cognizance of the offence in which case he could order remand of the accused for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thinks fit. (5) When such report is in respect of a case to which S. 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. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject--matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub--section (5). (8) Nothing in this section shall be deemed to preclude further invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e(Cri Misc. No. 2287--M of 1976, D/-12-5-1976)(Punj)(supra). 11. Before proceeding to consider the import of various provisions bearing upon the question. I may at the outset deal with the aforesaid three decisions that have been relied upon on behalf of the accused persons. 12. In Kanahiya's case (supra), no reasons for the conclusion are given. 13. In the two decisions--one of the Delhi High Court and the other of the Patna High Court--the learned Judges had proceeded on the assumption that the police report, which in police parlance is called 'challan', was admittedly incomplete. As to why the challan was incomplete has not been mentioned. Obviously, the Code does not envisages is a 'police report' which may enable a Magistrate to take cognizance of the offence. The learned Judges, without going into the question as to why the police challan was termed to be an incomplete challan, assumed that the investigation of the case could not have been completed as the police report was incomplete. There cannot be any doubt that what is sought to be described as a 'police report' is not a 'police report', for a police report can be submitted on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code. It was urged, on the strength of the provisions of Section 173(1) of the old Code, which is in the following terms and which is also pari materia with the provisions of sub--section (2) of S. 173 of the new Code, that the police were not permitted to send in an incomplete report: 173. (1) Every investigation under this Chapter shall be completed without unnecessary delay, and as soon as it is completed, the officer in charge of the police station shall-- (a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report, in the form prescribed by the State Government, setting forth the names of the, parties the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. Vivian Bose, J., who delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be applicable in the context of the changed situation brought about by the incorporation in the new Code of sub--section (5) of S. 173 thereof. The learned counsel for the accused--petitioners laid emphasis on the fact that the investigation in terms of the definition thereof shall not be considered complete unless the police had collected all the evidence and formed their opinion thereon and since in cases, where the experts' report was awaited, obviously it could not be said that all evidence had been collected, nor in its absence the investigating officer would be in a position to form an opinion. In order to show that the aforesaid steps are the necessary ingredients of the investigation, reliance has been placed on the following observations of Jagannadhadas, J., who delivered the judgment for the Bench in H. N. Rishbud v. State of Delhi, AIR 1955 SC 196(at p. 201): If, upon the completion of the investigation it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his excluding a bond. If, however, it appears to him that there is suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to supply before the commencement of the inquiry copies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilize those statements for cross-examining the witnesses to establish such defence as he desire to put up, and also to shake their testimony, Section 161(3) does not require a police officer to record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statements available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved......... . From the above observations of their Lordships of the Supreme Court, it is clearly deducible that it is not incumbent on the investigating officer to reduce in writing the statements of the witnesses--he may merely include their names in the list of witnesses in support of the prosecution case when submitting the charge--sheet. Surely, if the charge--sheet thus submitted would be complete as enabling the Magistrate to take cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (4) of S. 173 cast that duty on the police. The object of such provisions, whether the duty is cast on the police or on the Magistrate, is merely to see that the accused has in his hand the copies of statements and documents which were going to be produced or referred to in evidence against him so that he can offer whatever explanation or defence that he has to the incriminating material against him. If such statements and documents that are referred to in sub--section (5) of S. 173 of the Code are not appended to the 'police report', the result would be that at a later stage if they are sought to be produced, then apart from the fact that copies of such statements and documents shall have to be made available to the accused, it would be purely in the discretion of the Magistrate whether to allow such documents and statements to be produced or not and the prosecution cannot, as a matter of right, have them placed on the record. About this aspect a little more at an appropriate place in the later part of the judgment. 18. The object of the proviso to sub--section (2) of S. 167 was merely to ensure that an accused is not kept under detention during the investigation mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused. 19. It would be thereafter at the discretion of the Court whether to permit the prosecutor to adduce in evidence the reports of the experts of the kind. If the Court permits the prosecutor to do so, then a copy thereof shall have to be furnished to the accused. The Court, under S. 91 of the Code (which is reproduced below) has to determine whether to call or not for a document from a witness on the application of the police officer: 91. (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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