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Allahabad High Court · body

2016 DIGILAW 2883 (ALL)

ZAREENA v. STATE OF U. P.

2016-08-22

ABHAY MAHADEO THIPSAY

body2016
JUDGMENT Hon’ble Abhay Mahadeo Thipsay, J.—Heard Shri Amarjeet Singh Rakhra, learned counsel for the petitioner, Shri S.N. Tilhari, learned Additional Government Advocate and Shri Anoop Kumar Upadhyay, learned counsel for the opposite party No. 2-complainant. 2. Pursuant to the direction given by this Court on 17.8.2016, the Investigating Officer-Shri Shailkant Upadhyay, Sub-Inspector, Police Station Khodare, District Gonda, is present in Court, with the case-diary. 3. The petitioner is one of the accused in case crime No. 157 of 2016 registered at Police Station Khodare, District Gonda. The said case relates to offences punishable under Section 307 IPC, Section 326 IPC, and Section 324 IPC. The First Information Report came to be lodged on 7.5.2016. It was in respect of an offence punishable under Section 307 IPC. Later on, allegations of offences punishable under Section 326 IPC and Section 324 IPC were added. The petitioner, who is named in the First Information Report as one of the assailants, came to be arrested on 5.6.2016. 4. On 7.7.2016, when the petitioner had been remanded in judicial custody, the Investigating Officer made an application before the Magistrate stating that upon investigation, he had come to the conclusion that there was nothing to show that the petitioner was present on scene of the offences. He categorically stated that there was no material from which the commission of the alleged offences by the petitioner could be established. He, therefore, prayed to the Magistrate that the petitioner be released, as contemplated under Section 169 of the Code of Criminal Procedure (the ‘Code’). This application was rejected by the Magistrate by a detailed order dated 15.7.2016. The Magistrate, by the said order, dismissed the said application, and also directed a copy of the order to be forwarded to the Superintendent of Police, Gonda and Director General of Police, Uttar Pradesh for taking legal action against the Investigating Officer. 5. Being aggrieved by the said order, the petitioner has approached this Court by filing the present petition invoking the inherent powers of this Court and praying that the impugned order be set aside and the petitioner be directed to be released forthwith. 6. The learned counsel for the petitioner submitted that the order passed by the learned Magistrate is erroneous. Being aggrieved by the said order, the petitioner has approached this Court by filing the present petition invoking the inherent powers of this Court and praying that the impugned order be set aside and the petitioner be directed to be released forthwith. 6. The learned counsel for the petitioner submitted that the order passed by the learned Magistrate is erroneous. He submitted that the tenor of the order indicates that the Magistrate was extremely displeased with the Investigating Officer for having formed an opinion that the petitioner needed to be released under the provisions of Section 169 of the Code; and that it was not fair to the Investigating Officer. 7. The learned A.G.A., on the other hand, submitted that the Magistrate had jurisdiction to pass the impugned order; and that the order has been rightly passed by him. It is submitted that the opinion of the police would not matter and, ultimately, it would be the opinion of the Magistrate that would matter with regard to the involvement, or otherwise, of a particular accused in the alleged offences. It is submitted that the Magistrate, after examining the material against the petitioner, formed an opinion that her involvement in the alleged offences was revealed, and that, therefore, the Magistrate was right in rejecting the application under Section 169 of the Code, as filed by the Investigating Officer. 8. With the assistance of the learned counsel for the parties, I have gone through the impugned order carefully and considered the authoritative pronouncements of the Superior Courts and even of the Hon’ble Apex Court, which have been brought to my notice by the learned counsel for the parties. 9. There appears to be some confusion with respect to the ambit and scope of Section 169 of the Code, for removal of which the provisions of Section 169 of the Code need to be considered, alongwith the provisions of Sections 170 & 173 of the Code. The confusion with respect to the area of operation of these provisions, apparently, arises because of free use of terms, such as ‘charge-sheet’, ‘final report’, ‘closure report’, ‘summary’ etc. which are not at all found in the Code, but are commonly used not only by lay-persons, but also by the police, Advocates and Judges. The confusion with respect to the area of operation of these provisions, apparently, arises because of free use of terms, such as ‘charge-sheet’, ‘final report’, ‘closure report’, ‘summary’ etc. which are not at all found in the Code, but are commonly used not only by lay-persons, but also by the police, Advocates and Judges. When the police, on conclusion of investigation, file a report to the effect that the persons named therein as accused have committed the offence (mentioned in such report), it is popularly termed as ‘charge-sheet’. When the police report, on completion of investigation, that no offence is found to have been committed by any one, (or by the persons named as accused), then such report is popularly called as a ‘final report’. Such final report, sometimes, is also referred to as a ‘closure report’ or ‘summary’. 10. It would be appropriate to consider as to what, actually, Section 169 of the Code lays down. It reads as under: “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 the accused or commit him for trial” 11. This Section needs to be read, alongwith Section 170 of the Code which says that if, upon an investigation under Chapter XII, it appears to the Officer-in-charge of a police station that there is sufficient evidence or reasonable ground for the aforesaid, such officer shall forward the accused under the 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, etc. 12. Section 169 of the Code and Section 170 of the Code do not refer to the completion of investigation. Thus, investigation may continue, even after an accused is released under Section 169 of the Code, or is forwarded to a Magistrate in custody, as contemplated under Section 170 of the Code. 12. Section 169 of the Code and Section 170 of the Code do not refer to the completion of investigation. Thus, investigation may continue, even after an accused is released under Section 169 of the Code, or is forwarded to a Magistrate in custody, as contemplated under Section 170 of the Code. It may, at times, happen that an application for release of an accused under Section 169 of the Code would be made at the time of submission of a final report under Section 173 of the Code, but that would not always be the case. In fact, Section 169 of the Code has nothing to do with the completion of the investigation, or closure thereof, though, in some cases, by releasing an accused, the investigation would be concluded. Though both the things may coincide sometimes, it would be improper to understand an application made for release of an accused under Section 169 of the Code as a final report, (unless, off course, such an application forms a part of the final report itself). 13. An example can be given to explain and clarify the point. It is well-known that many times, the offender is not known to the victim or the first informant and a case -say of theft- is registered against an unknown offender. In the course of investigation, the police may arrest ‘A’ on suspicion, and seek his remand in custody, but would, at a later stage of investigation, be convinced about his non-involvement, or at any rate, about there being no evidence against him. In such a case, the police may release ‘A’ under the provisions of Section 169 of the Code, if in police custody. If, however, ‘A’ would be in judicial custody, the police would have to make an application to the Magistrate for his release under the said provision, as the police themselves would not be able to release a person, who is in judicial custody. After release of ‘A’, however, the investigation would not be over. The police if would then suspect ‘B’ may arrest him on such suspicion. Thus, the investigation in the very offence would continue. Experience shows that this often happens in cases of pick-pocketing, bag-lifting, house-breaking etc, where arrests are made on suspicion, there being no accusation against any particular individual. After release of ‘A’, however, the investigation would not be over. The police if would then suspect ‘B’ may arrest him on such suspicion. Thus, the investigation in the very offence would continue. Experience shows that this often happens in cases of pick-pocketing, bag-lifting, house-breaking etc, where arrests are made on suspicion, there being no accusation against any particular individual. The report under Section 173 of the Code would be filed only on completion of investigation of that particular case, and not on the suspicion against a person, who was earlier arrested on such suspicion, ceasing to exist. 14. Chapter XII of the Code deals with information to the police and their powers to investigate. It opens with Section 154 of the Code, which speaks of information in cognizable case, which is known as First Information Report. Section 156 of the Code speaks of the police officers’ powers to investigate into cognizable cases and Section 157 of the Code speaks of the procedure for investigation. What needs to be observed is that the Code speaks only of one ‘police report’, i.e. one defined in clause (r) of Section 2,- as a police report under Section 173 (2) of the Code, which is to be submitted on completion of investigation. A bare perusal of Section 173 of the Code would indicate that this report is a must; and has to be forwarded to a Magistrate, whether the conclusion of the Investigating Officer is that the offence appears to have been committed (by a certain person or persons) or is that no offence appears to have been committed. If any doubt in that regard exists, the same can be removed by referring to sub-clause (d) of Clause (i) of sub-Section (2) of Section 173 of the Code. Any investigation commenced under the Chapter XII pursuant to the lodging of the First Information Reportor otherwise must end with a report under Section 173 (2) of the Code. 15. Thus, the report under Section 173 of the Code is the final report submitted after completion of investigation. However, as aforesaid, in common legal parlance, the phrase ‘final report’ has acquired a particular meaning and it is only where the report under Section 173 of the Code indicates that no offence is disclosed, it is popularly termed as a ‘final report’. However, as aforesaid, in common legal parlance, the phrase ‘final report’ has acquired a particular meaning and it is only where the report under Section 173 of the Code indicates that no offence is disclosed, it is popularly termed as a ‘final report’. It is also, sometimes, and in some States, referred to as a ‘closure report’ or a ‘summary’. The other type of ‘final report’ viz. indicating that some person or persons have committed some offence or offences is popularly termed as aforesaid, as ‘charge-sheet’. In reality, both the so-called ‘charge-sheet’ and the so-called ‘final report’ are actually reports under Section 173 of the Code on completion of investigation. It is only the report under Section 173 of the Code that is, actually, a final report-so to say. 16. It is not in dispute that in the present case, a report under Section 173 of the Code, which is the police report as defined under Section 2(r) of the Code, has not yet been filed. 17. Section 169 of the Code speaks only of the powers of the police to release an accused, when he forms an opinion that there is not sufficient material or reasonable ground of suspicion to justify for forwarding the accused to the Magistrate (in accordance with the provisions of Section 170 of the Code). 18. Section 169 of the Code does not speak of any report, or application to be submitted by the Investigating Officer to the Magistrate. However, evidently, such an application would be necessary when the particular accused would be in judicial custody under the remand order, inasmuch as the Investigating Officer, in spite of formation of an opinion about insufficiency of evidence or reasonable grounds for sending an accused for trial, cannot release him from prison. 19. The application which had been made by the Investigating Officer before the Magistrate was, evidently, not a final report. It does not even remotely suggest to be so. All that it mentions is that in the course of investigation, it was revealed that the petitioner’s involvement in the alleged offence and/or her presence on the spot at the time of incident was not revealed; and that, no evidence could be collected from which, that the petitioner committed the offence, cannot be established. 20. There was a prayer to the effect that the petitioner be released under the provisions of Section 169 of the Code. 20. There was a prayer to the effect that the petitioner be released under the provisions of Section 169 of the Code. 21. As aforesaid, it is possible, in a given case, that an application for release of an accused under Section 169 of the Code may take the form of a final report, but in this case, it was evidently not so. The question is whether the Magistrate at that stage was required to or justified in discussing the merits of the matter and deciding whether or not there were sufficient grounds for taking cognizance of the alleged offences against the petitioner, as if he was dealing with a final report submitted by the police exonerating the petitioner. 22. In my opinion, the answer has to be in negative. 23. A perusal of the impugned order shows that the learned Magistrate failed to realize the distinction between the nature of application that had been made by the Investigating Officer with specific reference to Section 169 of the Code and a ‘final report’ filed by the police under Section 173 of the Code. 24. The Magistrate placed emphasis on the fact that ultimately, it would be for the Magistrate to decide whether or not a particular accused or accused persons should be proceeded against or not; and that the Magistrate is not bound by the opinion expressed by the police. Undoubtedly, the Magistrate would be fully entitled and justified in disagreeing with the conclusion arrived at by the police and is free to adopt any course, out of a large number of courses available to him under the law. One such course would be to take cognizance of the alleged offence and issue process against the accused persons disregarding the opinion of the investigating agency that there is no case for proceeding against such an accused. However, this situation would come only on the closure/completion of the investigation. It would be indicated by the submission of a charge-sheet/final report under Section 173 of the Code. Till that stage is arrived, the Magistrate would not be concerned with the opinion forming process of the investigating officer. In fact, the matter would not even come before the Magistrate, if the particular accused would be in police custody. The statutory power conferred on the police by Section 169 of the Code, is no way controlled by the Magistrate. 25. In fact, the matter would not even come before the Magistrate, if the particular accused would be in police custody. The statutory power conferred on the police by Section 169 of the Code, is no way controlled by the Magistrate. 25. At the cost of repetition, it may be observed that it was because the petitioner was in judicial custody that the police made a prayer to the Magistrate to release her from prison, though the power vests in police. Usually, it is only to show deference to the Magistrate that the police bring this aspect of the matter in the notice of the Magistrate and seek appropriate orders. 26. After going through the impugned order, I find that the Magistrate has treated the application as if it was a final report under Section 173 of the Code, requiring him to decide whether or not there were sufficient grounds for proceeding against the petitioner. Since the matter is still at investigation stage, the Magistrate was not required to form any such opinion, as even after formation of such an opinion, he would not be able to proceed against the petitioner. All that he could do is to keep the petitioner under detention despite the opinion of the police that her involvement in the alleged offences was not established. 27. In my opinion, the Magistrate ought to have given due regard to the claim made by the investigating Officer. After all, the Magistrate has only mentioned about two persons having stated about presence of the petitioner on the spot and of having attributed an active role to her; but has not considered why the investigating officer did not believe those persons. It may be observed that in the course of investigation, the investigating officer may come across several aspects of the matter which would enable him to form an opinion about correctness/truth of the claim made by the persons who are examined by him. The Investigating Officer is expected to form a reasoned and well considered opinion and come to a proper conclusion. In fact, the process of investigation is required for that purpose only; and if the mere mention of a person’s complicity in the offence by one or two persons is sufficient, there would be no point in investigating into the matter, at all. In fact, the process of investigation is required for that purpose only; and if the mere mention of a person’s complicity in the offence by one or two persons is sufficient, there would be no point in investigating into the matter, at all. The Magistrate’s displeasure about the opinion of the Investigating Officer- as evident from the direction given by him to forward a copy of the order to the Director General of Inspector, U.P., for taking legal action against the Investigating Officer- does not seem to be proper. The Investigating Officer is not expected to act mechanically and is entitled to form his own opinion about the truth of the matter. Unless there were sound grounds for indicating that the Investigating Officer was falsely and deliberately making the application under Section 169 of the Code with the object of favouring the petitioner for ulterior motives, there was no occasion to come down heavily on the Investigating Officer for forming a particular opinion. The order passed by the Magistrate does not indicate that he gave an opportunity to the Investigating Officer to explain as to why he did not believe the persons, who spoke about the presence of the petitioner on the spot at the time of the incident. 28. In my opinion, when the Investigating Officer had come to the conclusion that the involvement of the petitioner in the alleged offences was not disclosed, the Magistrate ought to have passed an appropriate order releasing the petitioner as contemplated under Section 169 of the Code. When, later, the report under Section 173 of the Code would have been filed by the police, he would have had the power and authority to decide whether or not the conclusion about non-involvement of the petitioner was acceptable and could have even proceeded against the petitioner, if satisfied about the existence of a prima facie case against her. 29. The impugned order appears to have been passed without realizing the distinction between the application made by the Investigating Officer for releasing the petitioner under Section 169 of the Code and a ‘Final Report’ which is required to be submitted under Section 173 of the Code. 30. In my opinion, the same is not in accordance with law and needs to be interfered with in the interest of justice. 31. The impugned order is set aside. 32. 30. In my opinion, the same is not in accordance with law and needs to be interfered with in the interest of justice. 31. The impugned order is set aside. 32. At this stage, the learned counsel for the petitioner fairly submits that a bail application has been filed by the petitioner which is pending before this Court. He submits that, that the investigating officer had filed an application for release of the petitioner under Section 169 of the Code, has been mentioned in the said application, and is taken as a ground in support of the prayer for bail. 33. In view of this, as a matter of propriety, I decline to pass any specific order directing the release of the petitioner under the provisions of Section 169 of the Code. 34. The petition is disposed of with the aforesaid observations and in the above terms.