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2015 DIGILAW 731 (ORI)

ALOK BISOI @ RAMDAS JEW v. STATE OF ORISSA

2015-12-24

S.PUJAHARI

body2015
JUDGMENT : S. Pujahari, J. - Heard the learned counsel for the petitioner and the learned counsel for the State. 2. This criminal revision is directed against an order dated 21.09.2015 passed by the learned J.M.F.C., Salipur on a petition of the Investigating Officer to discharge the petitioner who was forwarded in G.R. Case No. 622 of 2015 corresponding to Salipur P.S. Case No. 160 of 2015. 3. Facts relevant for disposal of this criminal revision are as follows:- A report was lodged against the present petitioner in the aforesaid case by the father of the deceased-Ashok Kumar Patra indicating the petitioner to have committed the murder of his son along with his two relations inside the Ashram of the petitioner. On receipt of the aforesaid report, police registered the aforesaid case and conducted investigation and basing on the statement of the informant and other materials, arrested the petitioner and forwarded him to the Court. The Court, thereafter, remanded the petitioner in exercise of power under Section 167 of the Code of Criminal Procedure (for short "Cr.P.C) when the investigation of the case was in progress. However, during the course of investigation, as the Investigating Officer found that the petitioner was not the real perpetrator of the crime, but some other persons were involved, some of them were apprehended and forwarded to the Court and a petition was filed under Section 169 of Cr.P.C. to discharge the petitioner. The Learned J.M.F.C., Salipur, however, refused to discharge the petitioner as there is no explicit provision in such circumstances to discharge an accused who is said to have been remanded to custody pending completion of the investigation. The same has been assailed in this criminal revision to be unjust and improper inasmuch as in view of the subsequent development and also the application of the Investigating Officer that the petitioner was innocent and wrongly forwarded, the learned J.M.F.C., Salipur ought to have discharged the petitioner. 4. The same has been assailed in this criminal revision to be unjust and improper inasmuch as in view of the subsequent development and also the application of the Investigating Officer that the petitioner was innocent and wrongly forwarded, the learned J.M.F.C., Salipur ought to have discharged the petitioner. 4. During course of argument, it is contended by the learned counsel for the petitioner that notwithstanding absence of any explicit provision in the Cr.P.C. empowering the Magistrate to discharge an accused during pendency of the investigation, a person who has been taken to custody, can be released on his own bond, or on bail, or under the special order of a Magistrate, as provided under Section 59 of Cr.P.C. Section 167 of Cr.P.C., also by necessary implication empowers the Magistrate to discharge an accused, against whom during the course of investigation, police finds no sufficient material. 5. Learned counsel for the State, however, defends the order of the Magistrate to be just and proper. 6. A bare perusal of Chapter-XII of the Cr.P.C. would show that police on receipt of a report of a cognisable offence has to register a case and conduct investigation and during course of investigation, if he finds ground to believe the information to be credible and if it appears to him that the investigation cannot be completed within twenty-four hours, pending completion of the investigation, he shall forward the accused, if in his custody upon arrest, to the Magistrate who is empowered under Section 167 of Cr.P.C. to authorise detention of the accused in custody beyond twenty-four hours. The Magistrate to whom an accused person is forwarded 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 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 for a total period exceeding one hundred and twenty 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 and sixty days, where the investigation relates to any other offence. 7. Section 167 of Cr.P.C. apparently contemplates that the investigation will be completed within fifteen days in all and the final form under Section 173 of the Code will be sent to the Court by then. That is why a time limit of fifteen days has been prescribed by sub-section(2) of Section 167 of Cr.P.C. as a rule, and it is only by a proviso it has been incorporated that the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, with the riders of one hundred and twenty days or sixty days, as the case may be, if he is satisfied that adequate grounds exists for extending detention of the accused beyond fifteen days. To put in other words, as the proviso stipulates, satisfaction of the Magistrate regarding existence of adequate grounds for extending the detention of the accused in custody, is the pre-condition for authorising detention of the accused in custody beyond fifteen days. But, subsection (2) of Section 167 does neither contemplate nor stipulate any such pre-condition for the Magistrate to authorise detention of the accused in custody for the initial term of fifteen days. 8. But, subsection (2) of Section 167 does neither contemplate nor stipulate any such pre-condition for the Magistrate to authorise detention of the accused in custody for the initial term of fifteen days. 8. The next question is, what would be the source of satisfaction of the Magistrate regarding existence of adequate grounds for authorising detention of the accused in custody beyond fifteen days. This being a stage preceding the stage of initiation of the proceeding under Chapter-XIV of the Code, and the matter being still within the exclusive domain of the Investigating Officer, the Magistrate can have no other source than the report or materials, if any, coming from the side of the Investigating Officer for his being satisfied as to whether or not there are adequate grounds to authorise further detention of the accused in custody. At this stage, as it appears from the scheme contained in Chapter-XII of the Code, there is no scope for the Magistrate to hold any enquiry independent of the case diary and other papers/materials, if any, to be made available by the Investigating Officer, to consider the question of extension of remand of the accused beyond the initial term of fifteen days. 9. In the case Abhinandan Jha and others v. Dinesh Mishra, reported in AIR 1968 Supreme Court 117, the Hon'ble Apex Court while analysing the provisions in the old Code in relation to the power of police to investigate and the scope of Magistrate to exercise jurisdiction vis-a-vis the opinion/report of the police upon investigation, held as follow:- "17. Xxxx xxxxxxxx xxxxxx The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to place the accused for trial, is that of the Officer-in-charge of the police station and that opinion determines whether the report is to be under section 170, being a 'charge-sheet', or under section 169, 'a' final report'. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet, because the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. But he cannot direct the police to submit a charge-sheet, because the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. That will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the magistrate and send a report either under Section 169, or under section 170, depending upon the nature of the decision. Such a function has been left to the police under the Code. Xxxxxx xxxxxxxx xxxxxxxxxx 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 (sin. Impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, as to accord with his view". 10. In the case of State of Bihar and another v. P.P. Sharma, IAS and another, reported in 1992 Supp (1) SCC 222, the Hon'ble Apex Court while referring to a number of authorities including Abhinandan Jha (supra), further observed as follows:- "40. xxxxx xxxxxx xxxxxxx Taking cognizance of the offence is co-terminus with the power of the police to investigate in the crime. Until then there is no power to the Magistrate except on a private complaint in a cognisable/noncognizable offence to direct the police to investigate into the offence. xxxxx xxxxxx xxxxxxx Taking cognizance of the offence is co-terminus with the power of the police to investigate in the crime. Until then there is no power to the Magistrate except on a private complaint in a cognisable/noncognizable offence to direct the police to investigate into the offence. The Magistrate is not empowered to interfere with the investigation by the police. In Emperor v. Khawaja Nazir Ahmad the Judicial Committee of the Privy Council held that "the function of the judiciary and the police are complementary, not overlapping" and "the court's functions begin when a charge is preferred before it, and not until then". In Jamuna Chaudhary v. State of Bihar this Court held: (SCC p 780, para 11) "The duty of the Investigating Officer is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth." Xxxxxxx xxxxxxxxx xxxxxxxx 46. The Code demarcates the field of investigation exclusively to the executive to be vigilant over law and order. Police officer has statutory power and right as a part (sic) to investigate the cognisable offence suspected to have been committed by an accused and bring the offender to book. In respect thereof he needs no authority from a Magistrate or a court except to the extent indicated in sub-section (3) of Section 156, the superintendence sparingly over the investigation and the matters incidental thereto, like enlarging the accused on bail or to secure his presence for further investigation; to record judicial confession under Section 164 of the Code or to conduct identification parade of the accused or the articles of crime or recording dying declaration under Section 32 of the Evidence Act. 47 xxxxxxxx xxxxxxxxxx xxxxxxxxx Often crimes are committed in secrecy with dexterity and at high places. The investigating officer may have to obtain information from sources disclosed or undisclosed and there is no set procedure to conduct investigation to connect every step in the chain of prosecution case by collecting the evidence except to the extent expressly prohibited by the Code or the Evidence Act or the Constitution. In view of the arduous task involved in the investigation he has been given free liberty to collect the necessary evidence in any manner he feels expedient, on the facts and in given circumstances. In view of the arduous task involved in the investigation he has been given free liberty to collect the necessary evidence in any manner he feels expedient, on the facts and in given circumstances. His/her primary focus is on the solution of the crime by intensive investigation. It is his duty to ferret out the truth. Xxxxxxx xxxxxxx xxxxxxxxxx 48. From this perspective, the function of the judiciary in the course of investigation by the police should be complementary and full freedom should be accorded to the investigator to collect the evidence connecting the chain of events leading to the discovery of the truth, vis., the proof of the commission of the crime. Often individual liberty of a witness or an accused person are involved and inconvenience is inescapable and unavoidable. The investigating officer would conduct in-depth investigation to discover truth while keeping in view the individual liberty with due observance of law. At the same time he has a duty to enforce criminal law as an integral process. No criminal justice system deserves respect if its wheels are turned by ignorance. It is never his business to fabricate the evidence to connect the suspect with the commission of the crime. Trustworthiness of the police is the primary insurance. Reputation for investigative competence and individual honesty of the investigator are necessary to enthuse public confidence. Total support of the public also is necessary." 11. It is thus crystallized that Magistrate cannot thrust his own opinion on the police as regards the manner or result of investigation. Until the stage of initiation of the proceeding as provided under Chapter-XIV of the Code reckons, the Magistrate has little role or no role to play in the course of action which remains within the province of the police. 12. Now, in the context of the question raised before this Court, a reference may again be made to Section 169 of the Code. This Section applies to an eventuality where the accused is arrested or detained by police without being forwarded to the Magistrate and upon investigation, there appears to police no sufficient evidence or reasonable ground of suspicion to justify forwarding of the accused to the Magistrate. This Section applies to an eventuality where the accused is arrested or detained by police without being forwarded to the Magistrate and upon investigation, there appears to police no sufficient evidence or reasonable ground of suspicion to justify forwarding of the accused to the Magistrate. In such a case, the Officer-in-charge of the Police Station shall release the accused 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 the accused or commit him for trial. The bond so required to be executed by the accused is for the contingencies that the Magistrate may not agree with the police report that is ultimately filed before him under Section 173 and may consider the evidence to be sufficient to put the said released accused on trial. On the face of this explicit provision, it would be bereft of any logic to say the police cannot seek release of the accused who has been forwarded to the Magistrate, but on investigation no sufficient evidence could surface suggesting his involvement in the crime. In my view, such an interpretation would defeat the very purpose of Section 169 of Cr.P.C. 13. Addressing to the issue from a different angle, when in view of the proviso (a) to Section 167 (2) of Cr.P.C. detention of the accused in custody beyond the initial period of fifteen days is dependent upon the existence of sufficient grounds for so doing to the satisfaction of the Magistrate, what remains with the Magistrate to attain that satisfaction in the wake of the Investigating Officer reporting to him that as per the evidence collected, the accused earlier forwarded to him is not the real perpetrator of the crime, but some other persons who have been subsequently arrested and forwarded to the Magistrate. Remand order being a judicial one, the Magistrate has to apply his mind judiciously to the contents of the remand report and other materials, if any, made available to him by the Investigating Officer, and the order should reflect his application of mind and the extension of remand in consequence thereof. It being not an empty formality, remand cannot be extended time and again as a course of routine. 14. It being not an empty formality, remand cannot be extended time and again as a course of routine. 14. Vide the impugned order, the learned J.M.F.C., Salipur declined to accept the prayer of the Investigating Officer for discharge (release) of the accused-petitioner, impliedly on the ground of absence of any explicit provision in the Cr.P.C. to entertain such a prayer. But, nothing is borne out from the impugned order as to what is the basis of his attaining satisfaction regarding existence of adequate grounds to authorise further detention of the accused-petitioner in custody which has already extended for more than the initial remand period of fifteen days. For the discussion made herein before with reference to the settled principle of law, it is to be held that there is implicit provision in the Cr.P.C. empowering the Magistrate to entertain such a prayer of the Investigating Officer and exercise his jurisdiction to release the accused-petitioner. 15. I would, therefore, allow this criminal revision, set-aside the impugned order of the learned J.M.F.C., Salipur and direct release of the petitioner in the aforesaid case on his executing a bond of Rs. 50,000.00 (rupees fifty thousand) with one surety for the like(rupees fifty thousand) with one surety for the like amount, to appear before the learned J.M.F.C., Salipur, if the facts and circumstances so warrant in future, inasmuch as it is not legally impermissible to proceed against such an accused in future depending upon collection or existence of incriminating evidence, if any, against him. Issue urgent certified copy as per rules. Final Result : Allowed