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Madhya Pradesh High Court · body

2009 DIGILAW 945 (MP)

PRASHANT PATHAK v. STATE OF M P

2009-08-07

R.S.GARG, S.A.NAQVI

body2009
Judgment ( 1. ) BY the present petition under Section 482 of the Code of Criminal procedure, the applicants propose to challenge the legality, enforceability and effect of the letter of information dated 26. 12. 2001 written by the Superintendent of police, Special Police (Establishment), Sagar to the learned Special Judge, Sagar tinder which the Special Court, Sagar was informed that in Crime No. 129/95 (Special Case No. 5/99) pending consideration against Shri G. P. Pathak further investigation was started on 10. 12. 2001. ( 2. ) LEARNED counsel for the applicants submitted that provisions of Section 173 are required to be appreciated in the present matter alongwith the legal authority conferred upon a special officer, under Section 158 of the Code of Criminal procedure. ( 3. ) SECTION 173 and Section 158 of the Code of Criminal Procedure read as under :- "173. Report of police officer on completion of investigation.-- (1) Every investigation under this -Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State government by general or special order so directs, be 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) Wherever it appears from a report forwarded under this section that the. (4) Wherever 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 section 170 applies, the police officer shall forward to the Magistrate along with the reporter- (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 part of the statement and append a note requesting the magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5 ). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub -sections (2) to (6)shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded undo sub-section (2 ). 158. Report how submitted.-- (1) Every report sent to a Magistrate under section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf. 158. Report how submitted.-- (1) Every report sent to a Magistrate under section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf. (2) Such superior officer may give such instructions to the officer in charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate. " ( 4. ) SUB-SECTION (2) of Section 173 provides that as soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating certain particulars as provided in Section 173 (2) (i ). Sub-section (2) of Section 173 also casts a duty upon the said officer to communicate in such manner as may be prescribed by the State government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. Section 173 (2) in fact authorises the officer in charge of the police station to submit the police report which is commonly known, as- charge or charge-sheet. Section 173 (3) provides that where a superior officer of police has been appointed under Section 158, the report, shall, in any case in which the State Government by general or special order so directs, be 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. ( 5. ) AT this stage, it would be necessary to see that what authority can be conferred by Section 158 upon a superior officer of police. Section 158 clearly provides that every report (challan - charge-sheet) sent to a Magistrate under section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in this behalf. Section 158 clearly provides that every report (challan - charge-sheet) sent to a Magistrate under section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in this behalf. A Juxtapose reading of Section 158 (1) and Section 173 (2)would clearly spell out that ordinarily a report / challan is to be filed by the officer in charge of the police station but in a given case, the State Government may direct that such report shall be submitted through such superior officer of police. Sub-section 2 of Section 158 provides that such superior officer as appointed under Section 158 (1) may give such instructions to the officer in charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate. ( 6. ) A fair understanding of sub-section 2 of Section 158 shall make it clear that any superior officer appointed under Section 158 (1) of the Code of Criminal procedure would be entitled to issue instructions to the officer in charge of the police station and shall transmit the matter without delay to the Magistrate. The key words "officer in charge of the police station" are to be found in Section 158 (2) so also under Section 173 (2 ). Section 173 (2) authorises the officer in charge to file the report while Section 158 (1) authorises the special officer to file the report and Section 158 (2) authorises such officer to issue further instructions to the officer in charge of the police station. ( 7. ) UNDER Section 173 (2) the officer in charge of a police station has absolute powers to file a challan / report while under Section 158 (1) the officer in charge of the police station cannot file the charge-sheet because the authority is conferred upon the special officer. The said officer in charge of the police station will have to work under the supervision, guidance and instructions of the officer as appointed under Section 158 (1) of the Code. A fair understanding of Section 173 (2) and section 158 would make it clear that they cover different fields. ( 8. The said officer in charge of the police station will have to work under the supervision, guidance and instructions of the officer as appointed under Section 158 (1) of the Code. A fair understanding of Section 173 (2) and section 158 would make it clear that they cover different fields. ( 8. ) IT was then contended that sub-section 3 of Section 173 requires a permission orders of the Magistrate to proceed further with the investigation and as in the present matter further orders from the Magistrate were not obtained, the prosecution could not proceed with the further investigation. ( 9. ) A perusal of subjection 3 of Section 173 would make it clear that the officer especially appointed under Section 158 pending orders of the Magistrate direct the officer in charge of the police station to make further investigation. In such a matter the officer in charge is required only to give an information to the concerned Magistrate but however, his authority to issue instructions to the officer in charge of the police station to make further investigation cannot be short circuited. ( 10. ) IT was then submitted that sub-Section 8 of Section 173 mandates the permission of a Magistrate before further investigation either under the directions of the special officer or by the officer in charge of the police station and as no permission/sanction was obtained by the prosecution/police agency, further investigation was bad and on basis of the same, the accused persons could not be sent for trial. ( 11. ) SUB-SECTION 8 of Section 173 opens with a non- obstante clause. It clearly provides that nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. Sub-section 8 of Section 173 nowhere provides that for further investigation permission/sanction from the concerned Magistrate to whom a report has already been filed, is required. ( 12. ) IT was, however, submitted that if provisions of sub-sections (2) to (6) of section 173 shall apply to further investigation then again the permission/sanction from the Court would be necessary. ( 13. ) IN our opinion the argument is absolutely misconceived. ( 12. ) IT was, however, submitted that if provisions of sub-sections (2) to (6) of section 173 shall apply to further investigation then again the permission/sanction from the Court would be necessary. ( 13. ) IN our opinion the argument is absolutely misconceived. Sub-section 8 of section 173 clearly provides that the police agency can proceed further investigation and in such a case, the officer in charge of the police station if obtains further evidence oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of sub-sections (2) to (6) shall apply in relation to such report as they apply in relation to a report forwarded under sub-section 2. A perusal of the provisions of law would make it clear that after further investigation the officer in charge of the police station would be entitled to file a supplementary/additional report, commonly known as supplementary challan. Such supplementary challan is required to be filed in accordance with sub-section 2 of Section 173. Once the supplementary challan is treated to be a regular challan then provisions of sub-sections (2) to (6) shall apply mutatis mutandis. It is also to be seen that sub-section 3 of Section 173 which is governed and controlled by Section 158 shall continue to be applicable if the original report was required to be filed by an officer especially appointed by the State Government. If the report is required to be filed by an officer so authorised under Section 158 then the supplementary challan / additional report will also have to be filed by such authorised officer and none other. Sub-section 2 of Section 173 authorises the officer in charge of the police station to forward the report while section 173 (3) and Section 158 authorise the special officer. If Section ?73 (8) is read in its true spirit, it would only mean that nothing in Section 173 shall be deemed to preclude further investigation in respect of an offence after a report under sub-section 2 has been forwarded to the Magistrate. ( 14. ) AT this stage, it would again be necessary to refer to Section 158. If Section ?73 (8) is read in its true spirit, it would only mean that nothing in Section 173 shall be deemed to preclude further investigation in respect of an offence after a report under sub-section 2 has been forwarded to the Magistrate. ( 14. ) AT this stage, it would again be necessary to refer to Section 158. which provides that the superior officer may give such instructions to the officer in charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate. In such a case, the special officer is required to submit his personal report alongwith the report of the officer in charge of the police station. ( 15. ) IN our opinion, in the present matter, the police authorities did not commit any wrong in proceeding further with the investigation and they were absolutely justified in committing the accused persons to face the trial. ( 16. ) THE petition deserves to and is accordingly dismissed. Petition dismissed.