VIHABHAI RAMDAS PATEL v. HEMTUJI SHIVAJI DABHI — 1983 DIGILAW 211 (GUJ)

M. B. SHAH, J. ( 1 ) OPPONENT No. 1 Hemtuji Shivaji Dabhi against whom a first information report has been lodged stating that he had given dagger blow to one Gopalbhai Ramdas at about 9-15 a. m. on 29-5-83 at village Zulasan is released on bail by the learned Sessions Judge Mehsana by his judgment and order dated 29-8-83 solely on tie ground that the investigating officer had submitted interim charge-sheet and there is no provision in the Criminal Procedure Code for submission of interim charge-sheet. ( 2 ) THE learned Advocates appearing on behalf of the applicant (brother of the deceased) and on behalf of opponent No. 2 submitted that the view taken by the learned Sessions Judge is on the face of it illegal. It was their submission that there is no question of submitting interim charge-sheet in the present case merely because along with the charge-sheet report of the Chemical Analyser was not annexed. As the investigating officer was awaiting the said report he had submitted a charge-sheet under sec. 173 (4) along with the documents which are required to be submitted as prescribed under sec. 173 (5 ). This submission of the learned Advocates in my view is correct. The learned Sessions Judge has committed an error of law by holding that merely because the Chemical Analysers report was not annexed with the charge-sheet it would amount to an interim charge-sheet. ( 3 ) UNDER sec. 173 (2) of the Criminal Procedure Code the investigating officer is required to submit report in the prescribed form and the details are to be mentioned as specified in sec. 173 (2) which would include whether in his opinion any offence appears to have been committed and if committed by whom it is committed. Sub-sec. (5) of sec. 173 prescribes that along with the said report all documents or relevant extracts thereof on which prosecution proposes to rely other than those already sent to the Magistrate during investigation and the statements recorded under sec. 161 of all the persons whom the prosecution proposes to examine as its witnesses are required to be forwarded to the Magistrate. The learned Advocate appearing on behalf of opponent No. 1 accused submitted that in view of this sub-sec. 161 of all the persons whom the prosecution proposes to examine as its witnesses are required to be forwarded to the Magistrate. The learned Advocate appearing on behalf of opponent No. 1 accused submitted that in view of this sub-sec. (5) the investigating officer was required to submit the Chemical Analysers report along with it because the prosecution proposes to rely upon the said report and as the said report was not submitted the charge-sheet cannot be said to be complete. He relied upon the decision in the case of SATYA NARAIN V. STATE OF BIHAR REPORTED IN A. I. R. 1980 S. C. 506. In the said case after receiving the report under sec. 173 of the Criminal Procedure Code the Sub-Divisional Magistrate took cognizance of the offence and transferred the case for disposal to Munsif Magistrate First Class. The Munsif Magistrate recorded the evidence of P. W. 1 Mahesh Kant Jha and on perusal of the evidence he was of the opinion that other two persons who were not disclosed in police report as accused were also involved in the commission of the offence and hence he took cognizance against them and directed the trial to commence de novo. That order was challenged before the Patna High Court and the Division Bench rejected the application by holding that on the facts found in the case there arose no doubt because sec. 11 of the Act (Essential Commodities Act) was fully complied with before taking cognizance. In the said case a contention was raised that before taking cognizance of the case the Court can rely upon the report submitted under sec. 173 (5) of the Criminal Procedure Code and Court has no jurisdiction to take into consideration the documents or statements submitted under sec. 173 (1) of the Criminal Procedure Code. Negativing the said contention the Supreme Court held that the report as envisaged by sec. 173 (2) has to be accompanied as required by sub-sec. (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by sub-sec. (2) from its accompaniments which are required to be submitted under sub-sec. (5 ). 173 (2) has to be accompanied as required by sub-sec. (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by sub-sec. (2) from its accompaniments which are required to be submitted under sub-sec. (5 ). The Court has further held that if the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence it would be sufficient compliance and the details which would be necessary to be proved to bring home the guilt to the accused would emerge at a later stage when after notice to the accused a charge is framed against him. The relevant discussion on this point is as under:therefore the statutory requirements of the report under sec. 173 (2) would be complied with if the various details therein prescribed are included in the report. This report is an intimation to the Magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court. In fact the report under sec. 173 (2) purports to be an opinion of the investigating officer that as far as he is concerned be has been able to procure sufficient evidence for the trial of the accused by the Court and when he states in the report not only the names of the accused but names of the witnesses the nature of the offence and a request that the case be tried there is compliance with sec. 173 (2 ). The report as envisaged by sec. 173 (2) has to be accompanied as required by sub-sec. (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by sub-sec. (2) from its accompaniments which are required to be submitted under sub-sec. (5 ). The whole of it is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in sec. 173 (2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. (5 ). The whole of it is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in sec. 173 (2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under sec. 173 (2) submitted by the police officer would be expecting him to do something more than what the Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence it would be sufficient compliance with sec. 11 The details which would be necessary to be proved to bring home the guilt to the accused would emerge at a later stage when after notice to the accused a charge is framed against him and further in the course of the trial. ( 4 ) IN view of this decision it is clear that when the investigating officer had submitted the report under sec. 173 (2) which discloses that in his opinion the offence appears to have been committed by the accuse and that he has collected the necessary evidence connecting the accused with the said offence and that he has forwarded the said report along with the relevant documents as prescribed under sec. 173 (5) in my opinion that would be sufficient compliance with the provisions of sec 173 and (5) of the Criminal Procedure Code. After submitting this report he is entitled to make further investigation depending upon facts and circumstances of each case under sec. 173 (8) and if he obtains further evidence oral or documentary he is required to forward further report or reports to the Magistrate regarding such evidence in the manner as prescribed under secs. 173 (2) to (6 ). So in my view the aforesaid decision would in no way assist the contention of opponent No. 1. ( 5 ) THE learned Advocate for opponent No. 1 has further relied upon the case of HARI CHAND and ANOTHER V. THE STATE REPORTED IN 1977 CRI. L. J. (NOC) 262 (DELHI) wherein it has been held that police report as defined in sec. ( 5 ) THE learned Advocate for opponent No. 1 has further relied upon the case of HARI CHAND and ANOTHER V. THE STATE REPORTED IN 1977 CRI. L. J. (NOC) 262 (DELHI) wherein it has been held that police report as defined in sec. 2 (r) of the Code can only be filed as soon as the investigation is completed. If it is not complete no such report can be filed and there is no provision in the Code for submitting incomplete challan or charge-sheet. He has also relied upon the judgment in the case of SURESH SINGH V. THE STATE AND OTHERS REPORTED IN 1978 CRI. L. J. NOC 58 wherein also the Patna High Court has held that there is no provision in the Code for submission of interim charge-sheet and charge-sheet can be submitted only after completion of the investigation. In my view the ratio of the aforesaid two decisions would not be applicable because here in this case the investigation is completed by the investigating officer and after completion of the investigation he has submitted the charge-sheet. At the same time he had mentioned that he was awaiting the report of the Chemical Analyser and as soon as he had received the said report he had produced it before the Court. By no stretch of imagination it can be said that the said charge-sheet is interim charge-sheet as whole investigation was over and after completion of investigation he has submitted a charge-sheet as prescribed under sec. 173 (2) of the Criminal Procedure Code along with the documents as prescribed under sec. 173 (5 ). ( 6 ) FURTHER looking to the objects and reasons of incorporation of sub-sec. (8) in sec. 173 it would be clear that sub-sec. (8) was incorporated to avoid such type of narrow interpretation of sec. 173 by the Court. For the objects and reasons of incorporating sub-sec. (8) the following paragraph of the Law Commissions 41st Report can be taken into consideration:14 23 A report under sec. 173 is normally the end of the investigation. Sometimes however the police officer after submitting the report under sec. 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. 173 is normally the end of the investigation. Sometimes however the police officer after submitting the report under sec. 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears however that courts have sometimes taken the narrow view that once a final report under sec. 173 has been sent the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency which can be unfair to the prosecution and for that matter even to the accused. It should be made clear in sec. 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused. (See sub-sec. (8) ). ( 7 ) IN the result the application filed by the applicant is allowed and the judgment and order passed by the learned Sessions Judge Mehsana dated 28-9-83 in Criminal Miscellaneous Application No. 268 of 1983 is quashed and set aside. Opponent No. I shall surrender to police custody on or before 10/11/1983. During that time it would be open to the opponent No. 1 to file fresh application for bail before the learned Sessions Judge as the learned Sessions Judge has not decided the application filed by opponent No. I on merits. Rule made absolute. Application allowed. .