TaxTMI 
TaxTMI 
1978 (4) TMI 240
X X X X Extracts X X X X
X X X X Extracts X X X X
....to be termed a police report in terms of S. 190(1)(b) of the Code and enable the Magistrate to 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such 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 jurisdi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he 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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lf of the accused--petitioners is that a report shall be a 'police report' in terms of S. 173(2) of the Code only if it is accompanied by such documents and statements as are referred to in sub--section (5) of S. 173 of the Code. This argument is sought to be sustained with the decision of the Delhi High Court in Hari Chand's case MANU/DE/0269/1974MANU/DE/0269/1974 (supra) and a Division Bench decision of the Patna High Court reported in Suresh Singh v. The State, besides that of A. D. Koshal, A. C. J.(as my Lord the Chief Justice then was) in Kanahiya's case 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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts, although the accused at that time was not represented by a counsel. On October 5 the police put in what they called a 'complete challan' and on the 19th they put in a supplementary challan. The Magistrate committed the accused for trial on November 12, 1949. 15--A. It was argued in the first instance on behalf of the accused that the Magistrate on October 3 had no power to take cognizance of the case. It was contended that cognizance of an offence could only be taken on a police report of the kind envisaged in Clause (b) of sub--section (1) of S. 190 of the old 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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Assistant Civil Surgeon. They are not witnesses who were 'acquainted with the circumstances of the case'. Accordingly, the challan which the police called an incomplete challan was in fact a completed report of the kind which S. 173(1) of the Code contemplates. There is no force in this argument, and we hold that the magistrate took proper cognizance of the matter." The learned counsel for the accused petitioners, however, contended that in the old Code the provisions, like the one contained in sub--section (5) of S. 173 of the new Code, were not there and, therefore the authority of the Supreme Court decision in Tara Singh's case (supra) would 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,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at investigating officer receive the reports of the experts which reports are admissible in evidence by virtue of S. 293 of the old Code? It has been authoritatively held at the highest judicial level in Noor Khan v. State of Rajasthan that sub--section (3) of S. 161 does not oblige the police officer to reduce in writing the statements of witnesses examined by him in the course of investigation. In this regard, the following observations can be noticed with advantage (at p. 291): "The object of Ss. 162, 173(4) and 207A (3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigating officer 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 do....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rporation of sub--section (5) in S. 173 of the Code has in no manner changed or affected the content or concept of the 'police report' envisaged in the unamended Code in sub--section (1) of S. 173 and, therefore, the ratio of Tara Singh's case AIR 1951 SC 441)(supra) applies to the facts of the present case with full force. The incorporation of sub--section (5) of S. 173 of the amended Code was necessitated by the fact that under S. 207 of the amended Code a duty was cast additionally on the Magistrate to make available to the accused free of cost copies of the 'police report' and, inter alia, the documents and statements referred to in sub-section (5) of S. 173 of the Code. In the unamended Code sub--section (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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing. Explanation 1.--If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2.--The terms on which an adjournment or postponement 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.....