Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 1452 (PNJ)

Shoqin Singh v. State of Punjab

2003-10-17

NIRMAL SINGH

body2003
JUDGMENT Nirmal Singh, J. - This is a petition under section 401 read with section 482 Criminal Procedure Code for quashing the order dated 16.2.2002 passed by the Additional Sessions Judge, Hoshiarpur, exercising the revisional powers and setting aside the order dated 12.12.2001 passed by the Addl. Chief Judicial Magistrate, Hoshiarpur. 2. The case against the petitioner was registered on the statement of the complainant Narinderjit Kaur that her father Daula Singh had been murdered by Chanchal Singh, his sons Charanjit Singh, Manga Singh in conspiracy with Shokeen Singh son of Baldev Singh, Lashkar Singh son of Nama Ram, Piara Singh son of Raja Ram and Harbhajan Singh. During the investigation, accused Chanchal Singh, Shokeen Singh, Lashkar Singh and Piara Singh were found innocent and were not challaned by the police. The S.H.O., P.S. Sadar Hoshiarpur moved an application for the discharge of accused Shokeen Singh. On the said application, the learned Additional Chief Judicial Magistrate passed the following order on 12.12.2001 : "Request for discharging the accused has been filed. It is mentioned that the accused has been found innocent in the enquiry conducted by DSP(R) and finally, it is prayed that the accused may be discharged from this case. Challan has to be presented in the court. Order with regard to discharge of the accused can only be passed when final report under section 173 Criminal Procedure Code is submitted by the prosecution. Because, the police has not requested for judicial remand of the accused, so there is no justification for remanding the accused into judicial custody. Accordingly, the accused is ordered to be released from custody." 3. On Commitment, the case was entrusted to Additional Sessions Judge, Hoshiarpur who set aside the order releasing the petitioner by passing the following order :- "It has been laid down in long series of cases, by the Honble High Court of Punjab and Haryana as well as the Honble Supreme Court of India that magistrate has got no power to discharge the accused in case exclusively triable by the court of sessions. Therefore, in exercise of powers conferred on this court by Section 397(1) as well as 390 of Criminal Procedure Code the discharge order as well as the commitment order is set aside and the case is remanded to the learned magistrate with the direction to commit the case to the court of Sessions in accordance with law. Therefore, in exercise of powers conferred on this court by Section 397(1) as well as 390 of Criminal Procedure Code the discharge order as well as the commitment order is set aside and the case is remanded to the learned magistrate with the direction to commit the case to the court of Sessions in accordance with law. Accused be produced before the court of magistrate who committed the case on 20.2.2002." 4. In pursuance of the order passed by the learned Additional Sessions Judge, the Judicial Magistrate Ist Class summoned the petitioner through warrants of arrest. Aggrieved by the order of the learned Additional Sessions Judge and the Judicial Magistrate Ist Class, issuing the warrants of arrest, the present petition has been filed. 5. I have heard the counsel for the parties and perused the record. 6. The point in issue in this case is whether the accused can be kept in custody when no charge-sheet has been prescribed against the accused. 7. Before considering the submissions made by learned counsel for the petitioner, it will be appropriate to notice the relevant provisions of law contained in Sections 56, 57, 167, 169 and 170 Criminal Procedure Code :- "Section 56. Person arrested to be taken before Magistrate or officer in charge of police station :- A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of the police station." Section 57. Person arrested not to be detained more than twenty- four hours :- No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not in the absence of a special order of a Magistrate Under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrates Court." 8. A perusal of the above-quoted Sections shows that when-ever a person is arrested without warrant, the police officer can keep him in custody for a period not exceeding 24 hours and the arrested person is to be produced before the nearest Magistrate who, under Section 167 Criminal Procedure Code can order for the detention of the accused for a term not exceeding 15 days on the whole. 9. Section 167(1) and (2) of Criminal Procedure Code reads as under :- (i) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57 and there are no grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has 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 whole; 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 the detention of the accused person, otherwise than in the 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 paragraph for a total period exceeding - (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, 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 sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that chapter; (b) xxx xxxx xxx (c) xxx xxxx xxx 169. Release of accused when evidence deficient : If, upon an investigation under this Chapter it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a magistrate empowered to take cognizance of the offence on a police report and to try accused or commit him for trial. 170. Cases to be sent to magistrate when evidence is sufficient :- (1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such magistrate on a day fixed and for his attendance from day to day before such magistrate until otherwise directed. (2) When the officer in charge of a police station forwards an accused person to a magistrate or takes security for his appearance before such magistrate under this section, he shall send to such magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused. (3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to be include any Court to which such magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons. (4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the magistrate the original with his report." 10. A perusal of sub-section (2) of Section 167 Criminal Procedure Code makes it clear that the magistrate can authorise the detention of the accused in police custody for a maximum period of 15 days irrespective of the fact whether he has or has not the jurisdiction to try the case. After the expiry of 15 days detention, the accused is required to be produced before the judicial magistrate having jurisdiction to try the case or to commit the case to the Court of Sessions for trial. A perusal of sub clauses (i) and (ii) of Section 167(2) Criminal Procedure Code further makes it clear that the magistrate can authorise the detention of the accused person otherwise in police custody for a maximum period of 90 days, where the investigation relate to an offence punishable with death or imprisonment for life or imprisonment for a term not less than 10 years and 60 days where the investigation relate to any other offence. If the investigation is not completed within 90 days or 60 days as mentioned above, the accused shall have to be released on bail if he is prepared to furnish bail bond and surety bond as ordered by the magistrate. If the investigation is not completed within 90 days or 60 days as mentioned above, the accused shall have to be released on bail if he is prepared to furnish bail bond and surety bond as ordered by the magistrate. After the investigation is complete and it appears to the officer-in-charge of the police station that there is no evidence or reasonable ground of suspicion to justify the detention of the accused, the officer incharge of the police station shall release the accused on his executing a bond with or without surety. 11. If the incharge of the police station does not release the accused on his personal bond or surety bond as required under section 169 Criminal Procedure Code and produced the accused before the magistrate and has not made any request for remanding the accused to judicial custody, in that eventuality, the magistrate has no other alternative except to release the accused from custody under section 169 Criminal Procedure Code 12. Now adverting to the facts of the present case, in the report under section 173 Criminal Procedure Code the petitioner was found innocent during investigation and he was shown in column No. 2. When the accused was produced before the magistrate, the investigator asked for discharge of the accused. The learned magistrate released the petitioner under Section 169 Criminal Procedure Code from custody but has not discharged the accused as the case was exclusively triable by the Court of Session. He forwarded the application to the competent court for consideration of the application moved by the investigator. 13. The case came up for hearing before the Additional Sessions Judge, Hoshiarpur, who set aside the well reasoned order passed by the learned Magistrate presuming that the accused has been discharged in a case which was exclusively triable by the Court of Session and has placed reliance on Rajinder @ Gora v. State of Punjab, 1997(1) RCR 11; Sanjay Gandhi v. Union of India and others, AIR 1978 Supreme Court 514; Bhagwant Singh v. Commissioner of Police, 1985(2) SCC 537; Jagjit Singh v. State of Punjab, 1998(1) RCR 580; Municipal Corporation of Delhi v. Girdhari Lal Sapru and others, AIR 1981 Supreme Court 1169. The learned Additional Sessions Judge has erroneously applied the ratio of the above judicial precedents in this case. The learned Additional Sessions Judge has erroneously applied the ratio of the above judicial precedents in this case. In the instant case, the learned magistrate has not discharged the accused in the offence but he has released the accused from the custody as no request has been made by the prosecution for remand of the accused to custody. The learned magistrate has specifically mentioned in the order dated 12.12.2001 that the accused is ordered to be released only from custody. 14. The dictionary meaning of discharge and release as per Legal Glossary, 1988 (Govt. of India, Ministry of Law and Justice) is as under :- discharge 1. the act of freeing from obligation, liability or restraint 2. the act of clearing off a pecuniary liability 3. fulfilment; execution 4. to relieve of obligation; to exonerate 5. to cancel, annul (an order) 6. to relieve from an appointment 7. to fire off; to shoot 8. the act of discharging; removal of load 9. a flowing or issuing out. release 1. the action of releasing or the state of being released 2. to set free from restraint, confinement or servitude; to set at liberty; to give up (a claim, right, title) in favour of another 3. to free a thing from attachment" 15. So the release of the accused from custody cannot be considered as discharge of the accused. The order of discharge can only be passed by the competent court which has the jurisdiction to discharge the accused. The learned Additional Sessions Judge has overlooked this fact and has not considered the application of the prosecution for the discharge of the accused. Even no order has been passed on the said application. The learned Additional Sessions Judge suo motu exercising the powers under Section 397(1) and 399 Criminal Procedure Code set aside the order of the learned magistrate and has directed the learned magistrate to commit the case to the Court of Session against the petitioner. The order passed by the learned Additional Sessions Judge is palpably erroneous. The learned Additional Sessions Judge suo motu exercising the powers under Section 397(1) and 399 Criminal Procedure Code set aside the order of the learned magistrate and has directed the learned magistrate to commit the case to the Court of Session against the petitioner. The order passed by the learned Additional Sessions Judge is palpably erroneous. Once an accused has been found innocent by the prosecution agency and the magistrate has not acted under section 173(8) Criminal Procedure Code and the case has been committed to the Court of Session as the offence is exclusively triable by the court of Session then the Sessions Court has no powers under the Code of Criminal Procedure directing the magistrate to commit the case against the accused who has been found to be innocent during investigation. 16. The Apex Court while dealing with this proposition in Ahhinandan Jha v. Dinesh Mishra, AIR 1968 Supreme Court 117 has held as under :- "15. Then the question is, what is the position, when the magistrate is dealing with a report submitted by the police, under section 173, that no case is made out for sending up an accused for trial, which report as we have already indicated, is called, in the area in question, as a final report ? Even in those cases, if the magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the magistrate will have ample jurisdiction to give directions to the police, under Section 156(3) to make further investigation. That is, if the magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge-sheet, or, again, submit a final report, depending upon the further investigation made by them. The police, after such further investigation, may submit a charge-sheet, or, again, submit a final report, depending upon the further investigation made by them. If ultimately, the magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report. 19. The question can also be considered from another point of view. Supposing the police send a report, viz., a charge-sheet, under section 170 of the Code. As we have already pointed out the magistrate is not bound to accept that report, when he considers the matter judicially. But can he differ from the police and call upon them to submit a final report, under section 169 ? In our opinion, the magistrate has no such power. If he has no such power, in law, it also follows that the magistrate has no power to direct the police to submit a charge-sheet, when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe (sic. impinge ?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view. 20. Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under section 169 of the Code, that there is no case made out for sending up an accused for trial." 17. For the reasons mentioned above, this petition is accepted and the impugned order passed by the Additional Sessions Judge is set aside. The trial court is at liberty to summon the petitioner under section 319 Criminal Procedure Code If some material comes on the record during the course of enquiry or trial showing the complicity of the petitioner in the crime. 18. Copy of this order be sent to Sh. C.D. Gupta, Additional Sessions Judge, where-ever he is presently posted. Petition allowed.