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TMI Blog1993 (3) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the charge-sheet was submitted within the stipulated time of 90 days and as there was some deficiency, the same was returned by the Court of Magistrate after perusal of the charge-sheet and that as such, the requirement of S. 167(2), Cr.P.C. was met perfectly and that there is no ground for enlargement of the petitioners on bail. The learned Additional Public Prosecutor relies upon a judgment of this Court in C. Varla Krishna Chinna Krishna v. State of A.P. (1989) 1 A LT 16. In the said case, similar contention was raised and the same was found favour with the learned single Judge. The learned single Judge has accepted the contention advanced by the Public Prosecutor that inasmuch as police report was filed before the Magistrate on 18-7-1988 and even though it was returned for compliance of certain omissions on 20-7-1988 and again resubmitted on 1-8-1988 and again returned, but ultimately filed on 17-8-1988 in complete shape, it was held by the learned single Judge that the date to construe that police report as filed was only 20-7-1988, when the same was returned by the Magistrate and that is a sufficient compliance of the requirements of S. 167(2)) Cr.P.C. and that the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take not of the other judicial precedents holding the field and cites several judgments in support of his contention which are discussed below : 4. Now, the question for consideration is as to what is meant by 'taking cognizance of'. Again this cannot be read in isolation and has to be read together with the other concerned statutory provisions like Sections 154, 157, 167, 173, 190, 203, 204, 207 and 209, Cr.P.C. vis-a-vis the most precious and cherished fundamental right to life guaranteed under Art. 21 of the Constitution of India. 5. Section 173(5) Cr.P.C. mandates that every investigation shall be completed without unnecessary delay. The fundamental right to life and liberty is guaranteed under Art. 21 of the Constitution of India which says that no person shall be deprived of his life or personal liberty except according to procedure established by law. A doubt may arise whether this fundamental right takes in its fold, even the investigation part of a crime. That doubt to more stands in view of the authoritative pronouncement of the Supreme Court in C. Abdul Rahman Antulay v. R. S. Nayak, 1992CriLJ2717 holding that Art. 21 ensures speedy justice that fair, just and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation can be on pain of the accused being released on bail and that the prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It was held in N. Satyanarayana In Re (1975) 2 APLJ 133 that if the charge-sheet is not filed within the time stipulated under Section 167(2), the Magistrate is bound to release the accused on bail and the word 'custody' employed in S. 309(2), Cr.P.C. means a lawful custody and not unlawful custody and that detention of accused without there being a charge-sheet within 90 days of his remand makes his detention unlawful and not lawful. 7. In a cognizable case, the investigation commences upon a report under S. 154, Cr.P.C. and concludes when a final report is filed by the police under S. 173(5) Cr.P.C. In between, when the accused are produced before the court, an interim report is to be filed by the police under S. 157, Cr.P.C. Upto the stage of filing of a police report popularly called 'charge-sheet' under S. 173(5), any report in between is not a final report. It was held in Bandi Kotayya v. State, AIR1966AP377 that a preliminary rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be acting only as a Magistrate controlling the investigation made by the police. In D. Lakshminarayana v. Narayana, 1976CriLJ1361 , it was held that cognizance can be said to be taken when Magistrate applies his mind for proceeding further with the case. It was held in Mowu v. Suptd. Special Jail, Nowgong, Assam 1972 SCC 184 that taking cognizance of an offence under S. 190, Cr.P.C. is a judicial act and not administrative and as such, application of mind is necessary. It was held in Gandi Satyanarayana v. J. Hansli (Andh Pra) that Magistrate takes cognizance of an offence and not of an offender. It was held by Justice Kondaiah rendering the said judgment that once cognizance has been taken by the Magistrate, he takes cognizance of an offence, it is his duty to find out who the offenders really are. It was held in State v. Pukhia, and followed in In Re Raju Thevan and State of Bihar v. Sakaldip Singh, AIR1966Pat473 that the term 'taking cognizance' means any judicial action permitted by the Code taken with a view to eventual prosecution preliminary to the commencement of the enquiry or trial. It was held in H. S. Bains v. State, 1980CriLJ1308 by the Supreme Court that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e along with the original police report under S. 173(5) Cr.P.C. is a procedure established under law having genesis in the fundamental right of life and liberty under Art. 21 of the Constitution of India and if there is an infraction of the same, it will be an infringement of the said fundamental right. It was held in Raghubans Dubey v. State of Bihar, 1967CriLJ1081 that police report mentioned under section 207(a) is a report mentioned in S. 191(b) of Cr.P.C. and once cognizance is taken under S. 190(1)(b), proceeding is instituted under S. 207(a). The Supreme Court dealing with the filing of a police report in Satya Narain Musadi v. State of Bihar, 1980CriLJ227 , has held that the report as envisaged by S. 173(2), Cr.P.C. has to be accompanied as required by S. 173(5) thereof by all documents and statements of the witnesses therein mentioned and that one cannot divorce the details which the details must contain as required by S. 173(5) from its accompaniments which are required to be submitted under S. 173(5) and that whole of it is submitted as a report to the court and that it follows that the court can look at the report in prescribed form along with its accompaniments for tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der law. If the police report is forwarded to the Magistrate for taking it on file, but if the Magistrate finds that the said report is not in consonance with S. 173(5) read with S. 173(5) Cr.P.C., he declines to take it on record and that act is only administrative and not judicial. The judicial act commences only when the charge-sheet is in order and the Magistrate proceeds further under Chapter XVI. Unless the charge-sheet is in the official custody of the court together with its accompaniments to be furnished to the accused, it cannot be construed that there is a filing of charge-sheet. Chapter XVI relates to commencement of proceedings before Magistrates, process to be issued when Magistrate takes cognizance of the offence. The next stage is framing of charges under Chapter XVII. Next stage is trial and the eventual being the judgment. 10. In the instant cases, while the petitioners in Crl. P. 341/93 are remanded to judicial custody on 30-9-1992 and the period of 90 days expired on 28-12-1992, the petitioner in Crl. P. No. 559/93 was remanded to judicial custody on 29-10-1992 and the period of 90 days expired on 26-1-1993. The application was filed by the accused to release th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceed further into Chapter XVI Cr.P.C. and any act short of that cannot be construed as 'taking cognizance.' 11. In view of what is stated supra, I hold as follows : (1) That the police report (charge-sheet) under section 173(5) Cr.P.C. is not complete unless it is accompanied by the material papers (statements etc.) as contemplated under section 173(5) Cr.P.C. (2) That a perusal of police report (charge-sheet) as to whether the same is inconsonance with sub-sections 173(2) and 173(5) Cr.P.C. is only an administrative act and not a judicial act. (3) That judicial act commences when the police report (charge-sheet) is filed in complete form, both complying with the provisions contained under sections 173(2) and 173(5) Cr.P.C. and it is taken on the file of the court and perused by the court for taking a decision under Section 190(1)(b) Cr.P.C. (4) That if the investigation is not completed either within 90 days of 60 days, as the case may be, and if the police report (charge-sheet) is not filed in complete form as mentioned supra within the stipulated periods, the accused shall have absolute right for being released on bail subject to their readiness for furnishing suretie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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