Orissa High Court
Arjuna Kumar Pujhari vs State Of Orissa on 20 July, 1988
Equivalent citations: 1989CRILJ449
Author: G.B. Patnaik
Bench: G.B. Patnaik
ORDER G.B. Patnaik, J.
1. The question involved in this revision is a small but ticklish one with regard to the interpretation of Sub-section (8) of Section 173 Criminal P.C. This question arises in the following circumstances. The petitioner who i is a Forest Range Officer is being tried by the Special Judge (Vigilance), Sambalpurin T.R. Case No. 6 of 1983 under Section 5(2) read with Section 5(1)(e), of the Prevention of Corruption Act. The allegation against the petitioner is that he is in possession of assets disproportionate to his known sources of income during the period 1-7-1966 to 3-12-1976, the disproportion being to the tune of Rs. 58,751.00. The FIR was lodged on 16-1-1982, and the charge-sheet was filed before the Magistrate on 16-3-1983. The Magistrate then forwarded the case to the Special Judge for disposal in accordance with law on the same day i.e. on 16-3-1983. The learned Special Judge took cognisance and issued summons on 16-3-1983. The accused appeared before the Special Judge on 15-4-1983. The Special Judge framed charges in the case on 8-9-1983 and the trial began on 31-10-1983. On 2-1-1984, the D.S.P. (Vigilance) submitted a list of documents and a supplementary list of witnesses before the learned Special Judge intending them to be examined in the trial By that time, the prosecution had already examined 17 witnesses and exhibited 15 documents. The accused filed an objection objecting to the supplementary list of witnesses and documents submitted by the D.S.P. (Vigilance). After hearing the counsel for the prosecution as well as for the defence, the learned Special Judge, by the impugned order dated 23rd of April, 1984, rejected the objection of the defence and directed that the further report together with the further evidence, oral and documentary collected by the Investigating Officer may be treated as evidence collected by the Investigating Officer during further investigation under Section 173(8), Criminal P.C. and would be treated as a report as contemplated under Sub-sections (2) to (6) of Section 178. The accused, however, was given the liberty to further cross-examine the witnesses already examined in the case if he is so advised. It is this order of the learned Special Judge which is being impugned in the present revision.
2. Mr. P. K. Misra, the learned Counsel appearing for the petitioner, contends that a bare reading of Sub-section (8) of Section 173, Criminal P.C., would show that a further report can only be forwarded to the "magistrate" and certainly not to the Special Judge or Sessions Judge, as the case may be, in course of trial and, therefore, the Special Judge in the present case had no jurisdiction to entertain the further report and the evidence collected by further investigation. The learned Counsel alternatively contends that even if it is held that the word "magistrate" used in Sub-section (8) would also include the Sessions Judge or the Special Judge, yet in the facts and circumstances of the present case, where the prosecution has already examined large number of witnesses and has exhibited large number of document and the trial is at its fag end, it would be wholly inequitable and would not be in the interests of justice to allow the prosecution to lead further evidence on the basis of certain new materials and, therefore, the learned Special Judge erred in law in permitting the prosecution to lead further evidence in the case. Both the contentions require a careful examination of the relevant provisions of the Code.
3. It would be appropriate to extract Section 173 of the Code at this stage:
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 a sit 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 name of the parties;
(b) the nature of the information;
(c) The name 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) wherher 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) Whenever 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 report -
(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 statement recorded under Section 161 of all the persons whom he 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 the 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 Sub-section (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 under Sub-section (2).
Sub-section (8) of Section 173 is a new provision which was not there in the Criminal P.C. of 1898. When there was no such provision in the old Code authorising further investigation but the police after submitting the final report found some evidence bearing on the guilt or innocence of the accused and submitted the same for the consideration of the Court, some Courts took the view that once a final report under Section 173 is sent, the police could not turn the case again and could not reopen the investigation. To obviate that difficulty, the Legislature expressly made the provision by adding Sub-section (8) to Section 173. Under the Code, therefore, as it now exists, even after submitting the final report, the police can continue the investigation and obtain further evidence, oral and documentary, and forward a further report regarding such evidence to the Magistrate. Even under the old Code, when Sub-section (8) was not there in the statute book, the Supreme Court in the case of Ram Lal Narang v. State (Delhi Administration) , held that notwithstanding the fact that the Magistrate had taken cognisance of the offence upon a police report submitted under Section 173 Criminal P.C., 1898, the right of the police to further investigate is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. There is no provision in the Code which expressly or by necessary implication bars the right of the police to further investigate after cognisance of the case had been taken by the Magistrate. What was decided by the Supreme Court in the aforesaid case under the old Code now remains beyond controversy because of the addition of Sub-section (8) to Section 173. Mr. Misra, the learned Counsel appearing for the petitioner, however, does not assail this position. But his main emphasis is on the expression 'magistrate", According to the learned Counsel when the Legislature has used the expression "Magistrate" in Sub-section (8) of Section 173, the said expression would receive the same meaning as is meant in Sub-sections (2) to (6) of Section 173, and in that view of the matter, a further report or reports can be forwarded to the "magistrate" and necessarily, therefore, when the matter is being tried by the Court of Session or the Special Judge, such a report cannot be given. In support of the said contention, the learned Counsel places reliance on the decision of a learned single Judge of the Patna High Court in the case of State of Bihar v. N. Nagmani, 1977 Cri LJ (NOC) 236. The said decision, no doubt, supports the contention of Mr. Misra, the learned Counsel for the petitioner fully, but I am unable to agree with the view expressed by the learned Judge in the aforesaid case. While interpreting Section 173 of the Code, the paramount consideration would be the interests of justice. If a narrow construction or a literal construction to the words used in the statute is adhered to then the moment the investigating agency submits a report to a Magistrate and where a Magistrate forwards the case either to the Special Judge or in a case triable by Court of Session, commits the case to the Court of Session, even if the investigating agency comes across fresh materials, the same cannot be utilised for any purpose wheatsoever. Such an interpretation would not be in the interests of justice. In fact, a Division Bench of the Karnataka, High Court in the case of G. E. Narayana v. State of Karnataka ILR (1979) 2 Kant 2536, considered this point and disagreeing with the Patna view, referred to earlier, came to hold that the word "Magistrate", in Section 173 of the new Code had nothing to do with the trial of the case or the enquiry or trial in a case pending or being held by a particular forum. That word is used to describe the authority to whom the officer in charge of the station house has to forward the final report under Section 173(2) of the Code. It was thus held that the reasoning that there being no provision available in the Code for forwarding the report under Section 173(8) of the new Code by a Magistrate to the Sessions Judge, Section 173(8) of the new Code would not be applicable when the case has been committed by a Magistrate to the Court of Session is not correct After analysing Section 173 of the Code, the learned Judges of the Karnataka High Court have held that the word "Magistrate" referred to in Section 173(8) of the Code is the Magistrate referred to in Section 173(2) of the Code and, therefore, it follows that the further report under the Code has to be forwarded to the Magistrate to whom the report under Section 173(2) has been forwarded by the officer in charge of the concerned police station and the said Magistrate on receiving the report in turn has to forward that report to the Sessions Judge or the Special Judge, as the case may be, who would exercise final discretion in regard to the further action on such report. In my opinion, the aforesaid decision represents the correct view in interpreting Section 173(8), Criminal P.C. The interpretation thus given makes a harmonious construction without doing any violence to the language and also without any prejudice being caused to the accused, inasmuch as the ultimate discretion remains with the Sessions Judge or the Special Judge, who is in seisin of the case to decide as to what further action can be taken depending upon the nature of materials received on further investigation. In this view of the matter, the first contention of Mr. Misra must be rejected.
4. While rejecting the contention of Mr. Misra, the learned Counsel for the petitioner, an the ground that a subsequent report can be entertained even though the case is being tried yet the order of the Special Judge accepting the said report directly on the basis of the letter of the D.S.P. (Vigilance) cannot be sustained, since as has already been held such a report under Section 173(8) has to be forwarded to the Magistrate contemplated under Sub-section (2) of Section 173 and who in his turn would do the ministerial act of forwarding the same to the learned Trial Judge. Undoubtedly, this procedure has not been followed. Therefore, the ultimate direction of the learned Special Judge in Ms order dated 23-4-1984 cannot be sustained and I would observe that it is open for the Investigating Officer to submit the further report to the Magistrate contemplated in Section 173(2) of the Code who will thereafter act in accordance with law bearing in mind the observations made by me earlier in this judgment
5. So far as the second contention of Mr. Misra is concerned, I also do not find any force in the same at this stage, since I have already held that the ultimate discretion lies with the learned Special Judge who in the event of receiving a further report from the Magistrate will consider the question keeping in view the stage at which the case is pending before him, the nature of evidence which the further report discloses and decide whether the interests of justice demand permitting the prosecution to give evidence in that respect or not.
6. This Criminal Revision is accordingly disposed of with the aforesaid observations.