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TMI Blog2017 (12) TMI 1818X X X X Extracts X X X X X X X X Extracts X X X X ..... .C. The question raised in this petition is when can the investigation be said to be completed. 2. The brief facts of the case are as follows. The Petitioner is stated to be in the business of computer and telecommunications equipment and was also a dealer/channel partner for Tata Docomo and Reliance for selling their postpaid mobile sims in Bhopal. P.S ATS/STF Bhopal registered an FIR being Crime No. 02/17 on 06/02/17 under section 122, 123 IPC, under section 3 and 6 of the Indian Wireless and Telegraph Act, 1933 and sections 4, 20 and 25 of the Indian Telegraph Act, 1885. The Petitioner was not named in the FIR which was registered against Balram, Manoj Mandal and others. 3. It was alleged that one Satvinder Singh and Dadu, were arrested as suspects in Crime No. 168/2016 of P.S R.S. Pura, District Jammu in the State of Jammu and Kashmir. They were allegedly gathering classified information relating to Indian Military establishment operating in the State of Jammu and Kashmir and passing on the same to their Pakistani handlers. The investigation by the J & K police is said to have revealed that Satvinder Singh was receiving assistance of one Balram of District Satna. Satvinder Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n investigation does not conclude till a police report under section 173(2) Cr.P.C is filed before the Court of first instance. According to the Ld. Counsel for the Petitioner, a report cannot be considered as a final report u/s. 173(2) Cr.P.C only because the investigating agency refers to it as such. He submits that a final report must be such that it fulfils the requirements of section 173(2) Cr.P.C and it must disclose that the investigation of the case has indeed concluded and that the Court of first instance can take cognizance and proceed with the trial. 8. In order to buttress his postulate, the Ld. Counsel has drawn the attention of this Court to section 2(r) of the Cr.P.C which defines a "police report" as a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173 Cr.P.C. Though section 2(r) of the Cr.P.C defines what a police report is, it does not lay down the requirements of a police report. The same are to be found in section 173(1) and (2) Cr.P.C, the relevant provision of which for the sake of convenience is being reproduced hereinunder: 173. Report of police officer on completion of investigation. (1) Every investigation under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er remand of the accused persons u/s. 309 Cr.P.C. The Magistrate released the accused persons on bail u/s. 167(2) Cr.P.C and directed the police to file a charge sheet after completing the investigation. The said order of the Ld. Magistrate was challenged by the State and the Complainant before the High Court of Andhra Pradesh which inter alia held in paragraph 14, that any report sent to the Magistrate before the completion of investigation will not be a "police report" within the meaning of section 173(2) Cr.P.C. In the case before it, the High Court had observed in paragraph 15 that the police had conceded that the investigation was still in progress and that what was being filed by the police was referred to only as a preliminary charge sheet, which the High Court held did not constitute a report u/s. 173(2) Cr.P.C. The High Court dismissed the petition filed by the State and upheld the order of the Magistrate enlarging the accused persons on bail u/s. 167(2), as the investigation had not concluded within the stipulated time. 10. The next judgement referred to by the Ld. Counsel for the Petitioner is Hari Chand & Raj Pal Vs. State - ILR (1977) II Delhi 367, This was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted the entire set of allegations while offences were the individual constituents of a criminal case and a case may involve investigation into several offences. The High Court, in that case held that section 173(2) mandated a "police report" after the conclusion of investigation of a case and that the filing of a report within the stipulated period of ninety days revealing the conclusions arrived at by the investigating agency of some of the offences would not constitute a "police report" under section 173(2). It further held that the second report which was filed by the police after the expiry of ninety days whereby all the offences were investigated into by the police and there remained nothing more to be investigated, constituted the "police report" u/s. 173(2) Cr.P.C. Thus, the accused in that case were given the benefit under section 167(2) and enlarged on bail. Other judgements being, the judgement of the Hon'ble High Court of Allahabad passed in Bhartendu Pratap Singh Vs. State of U.P. and Anr., - (2012) All LJ 212, in this case before the Allahabad High Court, there was a challenge to the charge sheet filed against the petitioners in that case, on the ground that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate empowered to taken cognizance of the offences mentioned therein which marks the culmination of investigation. In other words, where the report itself reveals that investigation in the "case" is still in progress, then the same is not a "police report" u/s. 173(2) Cr.P.C. Submissions of Mrs. Manjeet P. Chuckkal, Ld. Counsel for the Respondent State. 14. Ld. Counsel for the State on the other hand has strongly opposed the contentions put forth on behalf of the Petitioners and has submitted that the charge sheet is complete in all material aspects and fully complies with the essential requirements of a "police report" u/s. 173(2) Cr.P.C. She has argued that the right of further investigation vested in the police u/s. 173(8) does not open a window of opportunity to the accused to sustain an application u/s. 167(2) Cr.P.C. According to her, the charge sheet was filed well within ninety days and merely because further investigation was kept open by the police does not mean that the investigation, as far as it relates to the Petitioner herein, was pending. Submitting that this position is no longer res integra, the Ld. Counsel for the State has submitted a list of judgemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction u/s. 319 Cr.P.C despite the names of two other persons being taken by witnesses. The question arose whether the High Court in the exercise of its inherent powers u/s. 482 Cr.P.C, at the appellate stage, could pass such an order as mentioned hereinabove, at the stage of an appeal? That again, is not an issue before this Court in this case. As regards the judgements of the Supreme Court in (2004) 7 SCC 338 - Adalat Prasad Vs. Rooplal Jindal, and (2004) 13 SCC 324 - Subramanium Sethuraman Vs. State of Maharashtra, both the judgements are on the question whether process once issued to an accused u/s. 204 Cr.P.C could be recalled by the Magistrate u/s. 204 Cr.P.C. Adalat Prasad's case overruled the judgement of the Supreme Court in K.M. Mathew Vs. State of Kerala - (1992) 1 SCC 217, which held that the Magistrate could recall a summons issued earlier if it felt that no offence was made out against the accused. Both the judgements held that process once issued u/s. 204 Cr.P.C could not be recalled by the Magistrate. 17. The next judgment placed before this Court by the learned counsel for the State is (1992) 3 SCC 141- CBI Vs. Anupam Kulkarni. In this case the law laid down by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vinayak Dongre. This case is important for the determination of the issue before this Court. In this case, the officers of the Prohibition and Excise Department of the State of Maharashtra carried out surprise raids at the brewery of M/s Doburg Lager Breweries Pvt. Ltd. The raids were conducted on the ground that offences had been committed by the respondent in that case relating to manufacture and sale of beer without payment of Excise Duty. After the registration of the cases, investigation was carried out and charge sheets were filed before the Court of the learned Chief Judicial Magistrate, Satara. Two applications were filed on behalf of the Prosecution before the CJM. One was for the condonation of delay if any in filing of the charge sheet and the second application was for permission to make further investigation as some evidence against some of the accused persons who had not been sent up for trial was yet to be collected. The learned CJM took cognizance of the offence and issued process to the respondents who approached the Hon'ble High Court of Bombay under section 482 Cr.P.C for quashing on two grounds. Firstly, that the application for condonation of delay in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court held that it is the Magistrate alone who could decide on the basis of the material placed by the prosecution whether the same was adequate to take cognizance or not and that the same could not be controlled by the investigating agency, whose duty, the Supreme Court held, was to investigate, collect evidence and place the same before the Magistrate. 20. The last judgment referred by the learned counsel for the State is (2014) 16 SCC 543 - Abdul Azeej P.V. Vs. National Investigation Agency. In this case the petitioner had moved for statutory bail under section 167(2) on the ground that the investigation was not completed within the stipulated period of 180 days. What was filed in the form of a charge sheet was challenged on the ground that the same was not a final report as contemplated under section 173(2) Cr.P.C. The said application was dismissed by the learned Trial Court and the criminal appeal preferred before the Kerala High Court was also dismissed. Thereafter, on appeal to the Supreme Court, it was held that the charge sheet so filed before the learned Special Court, was complete in all respects so as to enable the learned Special Judge to tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice report. Section 167 Cr.P.C, provides for police and judicial remand of a suspect during the pendency of investigation. Section 173 Cr.P.C expresses the legislative expectation that the investigation shall be concluded "without unnecessary delay". However, where the investigation cannot be completed within ninety days from the first date of production of the suspect before the Magistrate, the accused becomes entitled for "default or statutory bail". 22. Though section 167 Cr.P.C does not lay down a time limit within which an investigation ought to be concluded, section 167(5) Cr.P.C provides for the closure of investigation by the Magistrate in a summons case where the investigating agency does not conclude the investigation within six months from the date of arrest of such accused. This period can be extended for special reasons by the Magistrate upon an application by the police. There is no time limit prescribed under the Cr.P.C for concluding an investigation with the exception of the power of the Magistrate u/s. 167(5) Cr.P.C as discussed herein supra. However, the clock starts ticking for the police the moment they arrest the suspect. Thereafter, the police must co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate empowered to take cognizance upon a police report in a given case. (b) Merely because the report u/s. 173(2) states that further investigation is in process, does not bar the Magistrate from taking cognizance of the offences based upon the material forwarded along with the police report. The Magistrate can take cognizance upon a report which discloses that further investigation is in progress if the Magistrate is satisfied that there is adequate evidence already on record enabling him to take cognizance u/s. 190(1)(b) Cr.P.C. In other words, the power of the Magistrate to take cognizance of an offence is not affected merely because the investigation is incomplete, even as per the contention of the police. If the material on record of the incomplete investigation is sufficient to take cognizance of an offence, the Magistrate can do so. (c) An application by the police seeking further investigation u/s. 173(8) Cr.P.C would not raise the presumption that the report filed by raise the presumption that the police report u/s. 173(2) Cr.P.C is incomplete. If the report u/s. 173(2) Cr.P.C is complete with regard to the core issues which constitute the substratum of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquiescence by the police that investigation is incomplete are the last two lines in the police report at page 117 of the Petitioner which reads "प्रकरण मे गगिरफ्तार शुदा आरो पपियों के पविरुद्ध साक्ष्य एकतत्रित करने हेतु तथा अन्य आरो पपियों के गगिरफ्तारी हेतु धारा 173(8) द.प्र .स के तहत अनुसंधान लं तबित रखा गिया है " or that further investigation is still in progress against the arrested as well as other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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