Orissa High Court
William George Benedict Alias Bhakta ... vs State Of Orissa on 20 June, 2001
Equivalent citations: 2001(II)OLR116
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. This application under Section 482 of the Code of Criminal Procedure ('the Code', for short) has been filed not only for quashing the order dated 11-11-2000 passed by the Subdivisional Judicial Magistrate ('S.D.J.M.', for short), Puri, in G. R. Case No. 176 of 2000 taking cognizance of offences alleged to have been committed under Sections 120B, 376(g), 377 and 341, I.P.C. and 47 of the Indecent Representation of Women (Prohibition) Act, 1986 but also for quashing the proceeding in the said G. R. Case.
2. From the averments made in the petition it appears that on the basis of the written report lodged by one Maria Schmidova alias Mangala Devi Dasi, Sea Beach Police Station Case No. 75 of 2000, corresponding to G. R. Case No. 716 of 2000 in the file of S.D.J.M., Puri, was registered for the offences alleged to have been committed under the aforesaid provisions of law.
The report was in German language and could only be translated into English later. From 9-9-2000 the investigation started. The allegations in the F.I.R. are that the informant had-come to India on 27-9-1999 accompanied by one Kunja Bihari Das, Inter-pol Officer and while coming to Puri she was introduced to one Arjun, brother of the co-accused Mayapuri Chandra in the train. On his recommendation she stayed in Hotel Gandhara. The informant accompanied him to Gopinath Gaudia Math in the evening where she was introduced to the co-accused Ashok Sahu and Kunja Bihari Das and the aforesaid Ashok Sahu expressed his desire to marry her. Thereafter the informant left for Austria and they continued to communicate over telephone even after her return to Austria and in December, 2000 she came back to Puri on the invitation of Ashok Sahu and both of them stayed at Basu Hotel, Puri, where both of them had cohabitation. In January, 2000 she left Puri for Austria and returned with her minor daughter Tulsi Devi in March, 2000. After coming back to Pun the informant stayed with Ashok Sahu in a rented house at Bajia Panda and during her stay Ashok introduced her to the co-accused Mandali Bhadra Prabhu. On 28-6-2000 the informant learnt from one Sanjay that Ashok was a homo-sexual and on return home she managed to lead Ashok to the adjoining room where she was locked by him. She further stated in the F.I.R. that on 30-6-2000 she learnt from her daughter Tulsi that Ashok Sahu and Mayapuri Chandra came to Tulsi's room and committed acts of sexual perversion and made a video film of the incident. In the F.I.R. the informant has named Ashok Sahu and Mayapuri Chandra as the persons who had sexually abused her daughter. On the basis of the written report investigation was taken up and the statements of the victim girl and the informant were recorded under Section 161, Cr. P. C. On 29-6-2000 the residential premises of the petitioner were searched but nothing incriminating was recovered. On 3-7-2000 the Inspector in-charge of Sea Beach Police Station went to the house of the petitioner accompanied by the informant and her daughter and the case diary indicates that seeing the petitioner, the informant shouted in a loud voice that he had sexually abused her daughter along with Mandali Bhadra, Mayaputi Chandra and Ashok Sahu. Even on these allegations the petitioner had not been arrested and on 25-7-2000 the petitioner and his family left for Bangkok with due intimation to the Inspector-in-charge. The purpose of the journey was to attend a Board meeting of his company at Bangkok scheduled to be held on 1-8-2000. After attending the said Board meeting the petitioner came back with his family on 10-8-2000. Even after his return from Bangkok he was not arrested and on 18-8-2000 the investigation was handed over to C.I.D. (Crime Branch), Cuttack. After investigation was taken up by the C.I.D. (Crime Branch), the Investigating Officer re-examined the informant as well as the victim girl. On 20-8-2000 the I.O. directed the petitioner to appear before him for interrogation on the next day. When the petitioner went to Sea Beach Police Station for interrogation, he was arrested by the I.O. of the Crime Branch. He was forwarded to Court and remanded to jail. The petitioner was remanded to jail custody on 21-8-2000 and when the statutory period of completion of investigation had not been completed, the I.O. submitted a preliminary Charge-sheet under Section 173(2) of the Code against the petitioner and three other accused persons alleging commission of offences under the provisions of law as stated above. Along with, the charge-sheet the I.O. submitted an application before the S.D.J.M., Puri, stating therein specifically that the investigation into the case was not complete and further investigation was required to be made into the allegations made in the F.I.R. and prayed for permission to keep the investigation open under Section 173(8) of the Code. On the basis of the aforesaid preliminary charge-sheet cognizance was taken by the learned Magistrate by order dated 11-11-5000.
3. Shri Devasis Panda appearing for the petitioner challenges the order dated 11-11-2000 basically on three grounds :
(1) Section 173 of the Code does not speak of filing of a preliminary charge-sheet.
(2) Power under Section 173(8) of the Code can be exercised only when fresh materials come into existence. Therefore, the I. O. could not have prayed for keeping the investigation open under Section 173(8).
(3) On the basis of the preliminary charge-sheet the learned Magistrate could not have taken cognizance of the offences.
4. So far as the first point raised by the learned counsel for petitioner is concerned, it is worthwhile to refer to Section 173 of the Code which runs as follows :
"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 of 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 statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witness.
(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 form 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 Subsection (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 reports as they apply in relation to a report forwarded under Sub-section (2)."
Sub-section (1) of the said section provides that every investigation under this Chapter shall be completed without unnecessary delay. Sub-section (2) of the said section 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 the matters as indicated in the said Sub-section. 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. Section 173(8) provides that nothing in the section shall 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. A bare perusal of the aforesaid provision clearly indicates that the Investigating Officer is required to complete the investigation without unnecessary delay and only after completion of such investigation a report in the prescribed form shall be submitted before the learned Magistrate empowered to take cognizance under Sub-section (2) of Section 173. Therefore, a report which is required to be filed under Sub-section (2) of Section 173 must be only after completion of investigation. Lt is worth while to refer to a decision of this Court reported in 54(1982) C.L.T. 509 : Kamal Lochan Sen v. State of Orissa. This Court while considering a similar aspect of law, observed that it is not open to the Officer in-charge to file an incomplete preliminary charge-sheet with a view to depriving an accused of his valuable right to liberty when the investigation is not completed within the period, prescribed by the proviso to Section 167(2) However, it is the substance that matters and the Court has to consider if any subterfuse had been adopted to negate the right granted by Section 167(2) proviso. If investigation has, in fact, been completed, mere description of the charge-sheet as incomplete or preliminary would not take the report out of the category of reports contemplated by Section 173(2).
5. In another decision of this Court reported in 65 (1988) C L.T. 677 : Baikuntha Sutar v. State of Orissa, this Court had also the occasion to examine the aforesaid question. This Court in the said decision held that a report under Section 173, Cr. P. C. is submitted by the police only after investigation is completed and not before. Where, in a given case, before completion of the investigation a report which is styled as preliminary charge-sheet is forwarded to a Magistrate, that report cannot be regarded as a report under Section 173 of the Code. However, this Court further observed that if the investigation had in fact been completed, mere, description of the charge-sheet as incomplete or preliminary would not take the report out of the category of report as contemplated under Section 173(2) of the Code.
6. In the case of Republic of India v. Samrat Gupta, reported in (1997) 13 O.C.R. 138, this Court held that a conjoint reading of the provisions of Sections 167(2), 173(1) and 173(2) of the Code shows that investigation should be done expeditiously. Proviso to Section 167(2) provides to ensure that an accused is not kept under detention during investigation more than the statutory period. Submission of incomplete charge-sheet by the Investigating Officer is an attempt to defeat the beneficial provision and is bad in law. The sufficiency of materials in the charge-sheet is an important factor which the Magistrate, is to decide whether material placed is sufficient to take cognizance or not. So far as power for further investigation after submission of charge-sheet is concerned, the Apex Court in a decision reported in A. I. R. 1979 Supreme Court 1791 : Ram Lal Narang and Anr. v. State (Delhi Admn.), observed that notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the Code, further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light.
7. Considering the ratio of the aforesaid decisions and the law it is now required to look into the case record to find as to whether the investigation had been completed, or to defeat the benefit given to an accused under Section 167(2) of the Code a charge-sheet has been filed before completion of investigation. I have carefully perused the case diary which is submitted before this Court. The case diary shows investigation upto 8-9-2000. The charge-sheet was submitted on 11-11-2000 and cognizance was taken on the same date. On being questioned, the learned Additional Government Advocate submitted that there has been no investigation after 8th September, 2000 arid on the basis of materials available during investigation till 8th September, 2000, the charge-sheet had been submitted. It was also contended by the learned Additional Government Advocate that materials available till 8th September, 2000 against the accused persons were enough to submit the charge-sheet. From the certified copy of the order dated 11-11-2000 it appears that charge-sheet had been filed, whereas from the order dated 11-2-2001 it appears that a preliminary charge-sheet had been filed. Irrespective of nomenclature under which the charge-sheet has been filed, the Court is required to look into the materials submitted along with the charge-sheet to find out as to whether a prima facie case has been made out or not. Though the learned Magistrate has taken cognizance on the basis of the materials available before him, I also looked into materials available in the case diary which has been maintained upto 9th September, 2000. The materials available prima facie constitute offences alleged. Therefore, whether charge-sheet filed on 11-11-2000 was a preliminary charge-sheet or a charge-sheet after completion of investigation becomes immaterial. Much argument advanced on the conduct, of the I. O. who had filed a petition along with the charge-sheet stating that to prevent the accused persons from availing the opportunity of non-submission of charge-sheet within the statutory period the charge-sheet has been filed, is accepted to the extent that the intention of the I.O. in filing the charge-sheet is evident from the language in the petition. Just because the I.O. had submitted a charge-sheet with the intention of depriving the accused from getting the benefit of Section 167(2) of the Code, it cannot be said that cognizance on the basis of such charge-sheet is illegal. The Court has to look into the materials available on the basis of which the charge-sheet has been submitted. If the Court is satisfied that materials available on the date charge-sheet is submitted constitute a prima facie case, it can take cognizance. Having looked into the materials available on record and having come to a conclusion that prima facie materials are available for taking cognizance, I am not inclined to set aside the order on the ground that the intention of the I. O. in filing the charge-sheet is to deprive the accused to get the benefit under Section 167(2) of the Code. Further investigation on availability of other materials not being a bar, I cannot also find fault with the I. O. in asking permission for further investigation.
8. I, therefore, do not find any merit in this Criminal Misc. Case and the same is dismissed.
9. Criminal Misc. Case dismissed.