Kerala High Court
S.M. Purtado And Etc. Etc. vs Dy. S.P., C.B.I. And Etc. Etc. on 27 May, 1996
Equivalent citations: 1996CRILJ3042
Author: G. Sivarajan
Bench: G. Sivarajan
JUDGMENT K.J. Joseph, J.
1. These cases raise common questions of law and are being disposed of by this common order. The Cochin Harbour Police registered Crime No. 3 of 1996 against seven persons for offences punishable under Section 14 of the Foreigners Order, 1948 read with Section 14 of the Foreigners Act, 1946 and under Section 7 (5) of the Territorial Water Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (the Maritime Zones Act, for convenience sake). The seventh accused is the petitioner in Crl. M. C. No. 917 of 1996 and accused 1 to 6 are the petitioners in Crl. M. C. No. 918 of 1996. They were arrested on 11-1-1996 and produced before the Judicial Magistrate of First Class, Ernakulam on the same day. They are now in judicial custody, on remand.
2. On 8-3-1996, the investigating officer filed a report before the Magistrate including offences under the Official Secrets Act, 1923 in the crime. Even before the expiry of 60 days, the petitioners sought their release on bail under Section 167 (2) of the Code of Criminal Procedure (the Code). Subsequently, the investigation was made over to the Central Bureau of Investigation (CBI) as per the notification dated 15-3-1996. In the re-registered case, offences under Sections 11 and 12 of the Maritime Zones Act, Section 14 of the Foreigners Act fine Act) and Section 4(1) of the Foreigners Order, 1948 (the Order) have been included. On 10-4-1906, the CBI filed a 'charge report' before the Chief Judicial Magistrate Court. Ernakulam against the petitioners under Sections 7 (4) (c) and 7 (5) of the Maritime Zones Act and Section 120-B of the Indian Penal Code (IPC) read with Sections 11 and 12 of the Maritime Zones Act and the case was renumbered as C. C. No. 354 of 1996 of the Chief Judicial Magistrate Court. Ernakulam. The report dated 8-3-1996 contained offences under Section 3 of the Official Secrets Act, 1923, Section 4(1) of the Act and Section 109 of the IPC. But in the charge report filed in Court on 10-4-1996, the CBI has not charge-sheeted the accused for offences under Section 3(1) (b) of the Official Secrets. Act or under the Act or the IPC. Along with the charge report, the CBI has produced the sanction order dated 9-4-1996 to prosecute the petitioners under Section 14 of the Maritime Zones Act. But the CBI has not obtained sanction to prosecute against accused 1 to 6 either under the Act or under the Official Secrets Act. It seems that investigation against the petitioners under Section 3(1) (b) of the Official Secrets Act and under the Act. Order and IPC is going on. Therefore, the CBI has not filed a final report in regard to those offences stated to have been committed by the petitioners. The CBI, therefore, sought further time to investigate further into those offences under the Official Secrets Act and make a report thereof after the investigation is completed.
3. The application for bail was opposed by the CBI based on Section 167 (2) of the Code since it had already filed a charge report under Section 173 of the Code and on the ground that the evidence, prima facie, established a case against the petitioners under Section 11 of the Maritime Zones Act. They also contended that since the case was made over to the CBI only on 18-3-1996 and the investigation in respect of the offences under Section 3 (1) (b) of the Official Secrets Act and also under the Act, Order and IPC had not been completed, releasing the petitioners on bail would hamper the investigation. In the charge sheet filed before the Magistrate on 10-4-1996, the CBI has stated that the investigation revealed that there were efforts from the contacts of the petitioners in Cochin to help them at various stages for their operation and after their interception and that the investigation has all lead to indicate that there was some larger conspiracy involving violations of other penal laws also and involvement of persons other than persons named in Column No. 1, including local contacts at Cochin and other places requiring further indepth investigation by the CBI. The report concluded by saying that further reports on completion of further investigation would follow.
4. The earlier attempts to get bail under Section 167 (2) of the Code were successfully resisted by the CBI both before the Court below as well as before this Court. Their subsequent applications - Crl. M. P. Nos. 3529 and 3613 of 1996 - filed before the Chief Judicial Magistrate Court also ended in dismissal on the ground that the accused were remanded to judicial custody in exercise of the powers conferred on him under Section 309 of the Code and, therefore, Section 167 (2) of the Code is not applicable and the accused are not entitled to be released on bail. The Magistrate also found that the investigation in respect of offences under the Official Secrets Act had not been completed and on completion, the CBI would be justified in filing a charge under Section 173 (8) of the Code. It is against the said order, Crl. R. P. No. 422 of 1996 is filed.
5. When the matter came up before this Court, a learned Judge of this Court referred the matter to a Division Bench, as per the order dated 26-4-1996. Elaborate arguments were addressed by counsel on both sides.
6. The meaningful questions which have been canvassed before us are: (i) whether the petitioners are entitled to get bail under Section 167 (2) of the Code; (ii) whether the charge report filed by the CBI on 10-4-96 in respect of the offences alleged to have been committed by the petitioners under the Maritime Zones Act could be considered to be a final report under Section 173 of the Code; and (iii) whether the remand of the petitioners to judicial custody to enable the CBI to proceed with the investigation under the Official Secrets Act, 1923 and other laws and to make a report under Section 173 (8) of the Code is correct or not.
6A. With a view to answer these questions, it is desirable that we may first notice the provisions of Section 167 of the Code, as amended by the Code of Criminal Procedure (Amendment) Act, 1978 and Section 309 of Code. Sub-sections (1) and (2) of Section 167 read as follows :
167. Procedure when investigation cannot be completed in twenty-four hours: -
(1) 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 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 the 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 no 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 90 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) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I:- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in para (a), the accused shall be detained in custody so long as he does not furnish bail.
Explanation II:- If any question arises whether an accused person was produced before the Magistrate as required under para (b), the production of the accused person may be proved by his signature on the order authorising detention.
Section 309 of the Code reads as under:
309. Power to postpone or adjourn proceedings :- (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
(2) If the Court, after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same or such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody".
7. In the decision reported in Koteswara Rao v. State, 1974 Ker LJ 196, this Court had considered the scope and ambit of Sections 167 (2) and 309 of the Code. In the said decision, this Court held that in any case where investigation is not completed within 60 days from the date the accused is arrested, he is entitled to be released on bail and there is no power either under Section 167 or under Section 309 to remand him to custody for a further period without laying a charge against him. It also proceeds to say:
Evidently the change in the language of Sub-section (2) of Section 309 which substantially corresponds to .Sub-section (1 A) of Section 344 of the repealed Code makes it clear that the power to order remand of the accused to custody under the Sub-section is limited to cases where the Court has taken cognizance of an offence. In other words, Sub-section (2) of Section 309 is specific that it does not apply to a case when investigation is still in progress This Court further added that the section which enables remand of accused to custody being Sub-section (2) of Section 309 and the scope of that section having been limited to cases where the Court has taken cognizance of the offence, there is no scope for invoking Section 309 to a case where Court has not taken cognizance of the offence. In other words, there is no provision in the section which enables the Court to remand accused to custody before the Court has taken cognizance of the offence and any provision in regard to this must necessarily be found in Section 167 of the Code.
8. Consistently with the scheme of the new Section 309 (2), provision has been made in Section 167 (2) and particularly the proviso to enable the Magistrate to extend the period of detention beyond 15 days pending investigation. But that is subject to the limitation that detention without bail shall not be beyond 60 days or 90 days as the case may be. If the investigation is not completed within 60 or 90 days, as the case may be, the accused is, as of right, entitled to bail, as is discernible from Section 167 (2) of the Code. Therefore, going by the above dictum, it must be held that the Magistrate has no power either under Section 167 or under Section 309 to remand the petitioners to custody for a further period without laying charge against them.
9. The other question is, whether the CBI was right in filing a 'charge report' without making a final report in respect of the offences alleged to have been committed by the petitioners under the Official Secrets Act, 1923 and other enactments. Standing counsel for the CBI pointed out that since the investigation in respect of the offences other than the one under the Official Secrets Act has already been completed, the CBI is entitled to file a final report under Section 173 of the Code so far as those offences are concerned. Therefore, according to him, the further remand of the petitioners to judicial custody was legal, under Section 309 (2) of the Code. Section 173 (1), (2) and (5) reads 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 name 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 matter 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.
xx xx xx (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 statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
Counsel for the petitioners contended that except a report which is said to be a charge report, filed on 10-4-1996 stating commission of offences by petitioners under the Maritime Zones Act, the CBI has not produced any other documents mentioned in Sub-section 5 of Section 173 before Court on that date. The above report of CBI would show that investigation in respect of the offences alleged to have been committed by the petitioners under the Officials Secrets Act and other enactments has not yet been completed and that since persons, other than the petitioners seemed to have involved in the crime, further investigation and a detailed probe in the matter became necessary, for which they required more time. Therefore, it is clear that investigation in respect of the offences under the Official Secrets Act, IPC, Act and Order against the petitioners has not so far been completed and it is in progress. The investigating officer has not made up his mind whether the accused have committed any such offences under the above enactments and in the absence of arriving at such a conclusion, the report filed by the CBI before the Magistrate on 10-4-1996 against the accused in respect of offences under the Maritime Zones Act alone cannot be deemed to be one under Section 173 (2) of the Code.
10. The investigation under Section 167 of the Code can be one involving one or more offences against the accused persons. The investigation of a case cannot be split up in such a way to file piece-meal reports before Court. Section 173 of the Code does not stipulate a piece-meal investigation and filing of incomplete charge sheet before Court. It contemplates filing of a charge/refer report after completion of the entire investigation of the case in respect of all offences and where several offences are involved in a case, a charge report could be laid before Court only after the investigation is over and formation of an opinion regarding all the offences alleged against the accused. Admittedly, for the offence under Section 3 of the Official Secrets Act, 1923, the maximum punishment prescribed is 14 years of imprisonment. Therefore, under Section 167 (2) of the Code, the maximum period the accused could be detained in custody is 90 days. That period was over on 10-4-1996, the date on which the CBI had filed a report in Court in respect of offences other than the one under the Official Secrets Act. Admittedly, the petitioners are even now in custody and now more than 130 days have elapsed since then.
11. In the decision reported in Vijayaraghavan v. CBI, 1984 Ker LT 522 : (1984 Cri LJ 1277), this Court held that the investigation of a case relates to the entire transaction of which information is given and not merely one of the offences committed in the course of the transaction. In paragraph 10, this Court held thus:
10. The expression 'case' used in the provisions under examination has to be understood in the general sense and not in a narrow or technical way. The words 'offence' and 'case' are not synonymous, though an offence always leads to a case and a case would always involve an offence or offences. An occurrence or transaction may involve commission of only one offence; or it may involve several offences. When a police officer receives information about the commission of a cognizable offence, and records the same, he is said to register a case, sometimes called a crime case. 'Case' understood in this general sense means that the case before the police officer arising from the information placed before him regarding an occurrence in which an offence or offences are committed. 'Case' relates to the transactions of which information is given and not merely one of the offences committed during the course of the transaction.
This Court further held that when Section 173 speaks of completion of investigation, it must ordinarily be taken to refer to completion of investigation of all the facts and circumstances relating to the case, whether the transaction involves one offence or plurality of offences and a final report or charge sheet under Section 173 could be filed only alter completion of the investigation in the case relating to all the offences arising in the case. We arc in respectful agreement with the said finding arrived at by U. L. Bhat, J., as he than was. Viewed in that light. it must be held that the 'charge report' stated to have been filed by the CBI on 10-4-1996 cannot be said to be a final report as contemplated under Section 173 of the Code and we must say that the prosecution was not justified in making piece-meal charge report in respect of various offences alleged to have been committed by the petitioners. In the absence of completion of the investigation of the case against the petitioners, we hold that the Magistrate cannot take cognizance of the case as contemplated under Section 309 of the Code.
12. A Magistrate can lake cognizance of an offence only on filing of a report under Section 173 (2) of the Code. Unless power is conferred by law, there is no inherent power to remand an accused to custody. Holding so, in the decision reported in Natabar Parida v. State of Orissa, AIR 1975 SC 1465 : 1975 Cri LJ 1212, the Supreme Court proceeded to say that under Section 167 (2) proviso and under Section 309 (2) of the new Code, the power of remand to jail custody conferred on the Magistrate during the pendency of the investigation is only under the former Section and not under the latter Section. The Supreme Court also held that Section 309 (2) is attracted only after cognizance of an offence is taken or commencement of the trial has proceeded.
13. A remand under Section 309 (2) of the Code can be made only after taking cognizance of the offence. That being the position, in the absence of a final report regarding all the offences alleged to have been committed by the accused persons, it has to be held that the Magistrate has not taken cognizance of the offences as required by Section 309 (2) of the Code. The Magistrate is not empowered to order remand of the accused to judicial custody unless final report as contemplated under Section 173 (2) of the Code is laid before Court.
14. Thus, in the light of the report filed by the CBI, a further investigation in respect of the offences under the Official Secrets Act, IPC, Act and the Order is necessary. If final report is laid before Court and the Magistrate takes cognizance of the offence, a further report under Section 173 (8) of the Code regarding commission of offences or involvement of the accused in connection with the other offences can be made. But in the absence of a final report in respect of all the offences, it cannot be said that a final report under Section 173 (2) in respect of the offences alleged to have been committed by the petitioners under the Official Secrets Act could be legally filed by invoking the provisions of Section 173 (8) of the Code. The finding of the Court below to the contra is, in our view, illegal.
15. Admittedly, no final report has been filed by the CBI against the petitioners in respect of the various offences. In its absence, the prosecution is not justified in resorting to Section 173 (8) of the Code to submit a further report in respect of the alleged involvement of the petitioners under the Official Secrets Act, IPC, Act and the Order. Since the investigation of the case is not complete, we find no reason to deny the statutory bail to the petitioners under Section 167 (2) of the Code.
16. The Supreme Court has held that in the scheme of the 1973 Code, remand to custody during investigation can be made only under Section 167 of the Code and remand to custody under Section 309 can be made only after taking cognizance of the offence by the Court. The result is that if the investigation is not over and the period mentioned in Section 167 (2) to detain the accused in custody is. over, by invoking Section 309 of the Code, the custody of the accused cannot be extended and are to be released on bail.
17. Counsel for the accused, brought to our notice that the decision relied on by the Magistrate in the order dated 19-4-1996 to remand the accused again to judicial custody has no application to the facts and circumstances of this case. We have carefully gone through the decision of the Supreme Court reported in Devinderpal Singh v. Govt. of National Capital Territory 1996 SCC (Cri) 5, wherein there is a specific provision by which the investigating agency could request the Court to extend the period of remand. Before the expiry of the statutory period of 180 days contemplated under the TADA Act, 1987, necessary requisition was made by the investigating agency to the designated Court and the designated Court, in exercise of the powers conferred on it under Section 20 (4) and (bb) of the TADA Act, as amended by Act 1993, granted a further period of 60 days. In that context, the Supreme Court considered whether the detention of the accused beyond the statutory period was justified or not and the extension of time under the section is justified or not. In that case, a final report (challan) as contemplated under Section 173 of the Code was filed in Court and, therefore, the Supreme Court directed the matter to be considered on merits. In our view, the principles laid down in the above decision has no application to this case, since even today, no final report in respect of all the offences alleged to have been committed by the accused has been filed by the CBI, so far. Moreover, in the TADA Act, 1987, there is a specific provision to extend the period of detention for completing the investigation. We find no such provision in the Code. If the investigation in respect of a case is not completed within the statutory period contemplated under Section 167 (2) of the Code, there is no legal sanction to remand the accused to judicial custody again. Under such circumstances, the Magistrate ought to have released the accused on bail on furnishing surety. But on taking cognizance of the case, the Magistrate gets jurisdiction under Section 309 of the Code to adjourn the trial or enquiry and remand the accused to judicial custody. Since that stage has not come in this case, remand of the accused to judicial custody again is clearly illegal and without jurisdiction. If the investigating agency fails to file charge sheet before the expiry of 60 or 90 days as the case may be, the accused in custody must be released on bail and at that stage, the merit of the case need not be examined by the Court. So also, the Magistrate has no power to remand a person beyond the stipulated period of 60 or 90 days as the case may be during the investigation. It has been held so by the Supreme Court in the decision reported in Rajnikant Jivanlal Patel v. Intelligence Officer, AIR 1990 SC 71 (1990 Cri LJ 62). In this case, even as per the charge report filed by the CBI on 10-4-1996, for the offence alleged to have been committed by the accused under the Maritime Zones Act, the imprisonment prescribed under Section 11 of the said Act is only three years or fine or with both. Therefore, there is no sufficient justification to refuse bail to the petitioners for the offence alleged against them under the Maritime Zones Act before trial and conviction. Standing counsel for the CBI has fairly admitted before us that the case is still under investigation in respect of all other offences other than the Maritime Zones Act. Therefore, we find no legal grounds for refusing bail to the petitioners.
18. For the above reasons, we have no hesitation in setting aside the order passed by the Chief Judicial Magistrate, Ernakulam in Cri. M. P. Nos. 3529 and 3613 of 1996 dated 19-4-1996 challenged in Crl. R. P. No. 422 of 1996. We do so. In the result, Crl. R. P. No. 422 of 1996 is allowed. The petitioners in Crl. M. C. Nos. 917 and 918 of 1996 are ordered to be released on bail on each of them executing a bond for Rs. 1,00,000/- to the satisfaction of the Chief Judicial Magistrate, Ernakulam with two solvent sureties each for the like sum or deposit of an amount of Rs. 2,00,000/- by each accused before the said Court. We also make it clear that the petitioners shall reside in the City of Cochin and report their place of residence to the investigating officer till the investigation and trial of the case are over. The petitioners are further directed to report before the investigating officer or the officer in charge of the CB1 Office at Cochin everyday between 8.00 a.m. and 10.00 a.m. until further orders from this Court. The petitioners shall not in any way attempt to interfere with the investigation or trial of the case or influence, directly or indirectly, any of the prosecution witnesses. They shall not leave the City of Cochin without getting prior permission from the Chief Judicial Magistrate Court, Ernakulam until further orders from this Court. If any of the above conditions are violated, it will be open for the investigating agency to seek for cancellation of the bail now granted by this Court. The passports seized by the investigating agency shall not be released without getting prior permission from the Trial Court. Needless to say that if the petitioners are involved in the commission of any other offences under any law, it will be open for the police investigating agency to take appropriate action against them in accordance with law.
19. We also make it clear that we have not expressed any opinion regarding the merits of the case and the involvement of the accused in any of the offences alleged against them under the various laws of this country. Because of the inordinate delay on the part of the investigating agency in completing the investigation of the case and filing the final report before Court, this Court is constrained to give the benefit of the statutory bill guaranteed to the accused under Section 167 (2) of the Code. We see no justifiable reason on the part of the CBI for not completing the investigation of the case so far, even though they had come to the picture as early as on 18-3-1996 and now more than 60 days have elapsed after they took over the investigation of the case. In the report filed before the Court below on 10-4-1996, they have mentioned about the contacts of the accused at Cochin and the involvement of persons other than the accused in the commission of various offences in conspiracy with the accused. But so far, the CBI has not filed any further report before the Trial Court or before this Court about the result of their further investigation in the case. While deprecating the above conduct of the CBI in delaying filing of the final report in Court, we direct the CBI to complete the investigation of the case as expeditiously as possible and put the accused on trial in accordance with law.
The petitions are disposed of, as above.