Patna High Court
Shankar Ram vs The State on 29 January, 1986
Equivalent citations: AIR1986PAT276, 1986(34)BLJR260, AIR 1986 PATNA 276, 1986 BBCJ 163, 1986 BLJR 163, 1986 PATLJR 707, (1986) PAT LJR 287, 1986 BLJ 658, 1986 BLJR 260, 1986 EASTCRIC 585
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT S.S. Sandhawalia, C.J.
1. The larger question that looms in this reference to the Full Bench is whether Section 167(2) of the Code of Criminal Procedure envisages and permits the forwarding of a police report under Section 173(2) against only one or some out of the many accused persons jointly charged with an offence while investigation has as yet not been completed against all.
2. Shankar Ram, petitioner, is one of the accused persons in Chakia Police Station Case No. 53/83 dated the 4th of June, 1983 for the offence of dacoity coupled with murder under Section 3% of the Penal Code. The said case was registered on the fard beyan of Phuldeo Prasad Singh alleging that at 8 P.M. on the night of the 3rd of June, 1983, 20 to 25 persons variously armed with lathi, guns and torches broke into his house and started firing indiscriminately forcing him to flee therefrom. Thereafter they allegedly looted properties worth Rs. 1,40,000/-from the house and also took away double barrelled gun No. 7034 which stood licensed in the name of the informant's elder brother Tejnarain Singh. In the course of the crime, Nand Bihari Tiwari a co-villager, received gun shot injuries to which he succumbed later in the Chakia hospital. The inmates of the house and the first informant identified and named some of the culprits who were alleged to be between the age of 18 to 40 years whilst it was claimed that the others could be identified if located. It is the petitioner's claim that he is alleged to be a member of the dacoit gang only and no specific arm or allegation of having shot any one is laid against him.
3. The petitioner was arrested in another case, namely, Sahebganj Police Station Case No. 115/81 under Sections 399 and 402 in the district of Mazaffarpur. However, he was remanded to jail in the present case en the 28th of June, 1983 by the Subdivisional Judicial Magistrate of Sikrahna at Motihari. It would appear that a police report No. 46/83 against the petitioner Shankar Ram Was submitted on the 19th of September, 1983 (vide Annexure 3/A to the petition). The petitioner alleges that no final form has been submitted in the case and the investigation is as yet not complete against all the accused in the dacoity case. Consequently, it is the stand that the police report (annexure 3/A) without completion of the investigation against all the accused persons named in the dacoity is illegal, without jurisdiction and a colourable exercise of power, which cannot deprive the petitioner from getting the benefit of being released under Section 167(2) of the Code of Criminal Procedure (hereinafter to be referred to as 'the Code'). The petitioner prayed for bail, inter alia, on the aforesaid ground but the learned Magistrate rejected the same on the 28th of September, 1983 (vide Annexure 4). Thereafter the petitioner moved the learned Sessions Judge, Motihari, for bail which was also rejected by the order dated the 14th of November, 1983, by Shri V. N. Trivedi, Sessions Judge. Aggrieved thereby, the present petition has been preferred.
4. This case originally came up before a learned single Judge, who referred it to Division Bench on the ground that a similar point had already been so referred. Before the Division Bench it was forcefully sought to be argued that the Code does not envisage a police report under Section 173(2) against only one or some out of the many accused persons. The stand taken on behalf of the petitioner was that the investigation must be complete qua all the accused persons in the case and qua all the offences levelled therein and then alone a police report under Section 173(2) could be filed. Apparently, not agreeing with this extreme stand and noticing a conflict of judicial opinion, within this Court in 1977 BBCJ (HC) 365, Dilig Singh v. State of Bihar on the one hand and Sk. Sultan v. State of Bihar, Cri. Misc. No. 2660 of 1983, disposed of on the 19th July, 1983, on the other, the matter was referred to a Full Bench for an authoritative pronouncement on the following questions : --
(1) Whether submission of the final form after completion of the investigation in respect of the offences alleged against some of the accused persons within the statutory period mentioned in Section 167(2) proviso of the Code and keeping the investigation alive against the co-accused is permissible?
(2) Whether the accused persons against whom investigation has concluded are entitled to get the benefit of Section 167(2) proviso on the ground that it has not concluded against those who were also suspected to have committed the offences alleged?
(3) Whether the final form submitted against some of the accused within the statutory period can be held to be a police report within the meaning of Section 173(2) of the Code; whatever may be said in respect of any supplementary police report submitted later against other accused against whom investigation had not concluded?
5. Before one adverts to answer, the aforesaid questions individually it seems apt to view the matter in a broader aspect of the larger question posed at the very outset. In order to appreciate truly the import and scope of Ss. 167 and 173 of the new Code, as amended, it becomes necessary to first notice the legislative history of the provisions with some brevity, it is manifest by bare reference to Section 167 of the old Code that the same did not contain any provision directing mandatory release of the accused person if his detention had exceeded any fixed period during the continuance of the investigation. This is the new requirement of law introduced in the shape of a proviso to Section 167(2) of the new Code. There was no corresponding provision which was in pari materia with the same in the old Code. Experience of the working of Section 167 of the old Code had brought to the fore the effect that an accused could be remanded from time to time, though the total period for which he could be remanded to custody at one time was limited to fifteen days. However, in actual practice an accused could be kept in custody indefinitely by remands from time to time and the gross delay in the investigation of the case could go on merrily. This situation was even adversely commented upon in the 14th Report of the Law Commission in 1958.
However, this matter came in for pointed attention in the Forty first Report of the Law Commission. Therein it was observed : --
"It is, therefore, desirable as was observed in the Fourteenth Report, that some time limit should be placed on the power of the police to obtain remand, while investigation is still going on; and if the present time limit of fifteen days is too short, it would be better to fix a longer period rather than countenance a practice which violates the spirit of the legal safeguard. Like the earlier Law Commission, we feel that fifteen days is perhaps too short, and we propose therefore to follow the recommendation in the Fourteenth Report that the maximum period under Section 167 should be fixed at sixty days."
This very issue later w;is also the subject-matter of the Select Committee for the Bill of 1973 Code. Therein it was remarked as under:--
"There is a persistent complaint that investigations are not being completed quickly by the police and that in many cases the accused persons are kept in detention on remand, for a very long period causing hardship and misery to such undertrial prisoners and their families. Although stringent provisions are already there in the existing Code requiring investigations to be completed quickly, they have not had the desired effect......A drastic remedy, therefore, is called for in this behalf."
In accord with the aforesaid recommendations a proviso was inserted in Sub-section (2) of Section 167 of the new Code prescribing a maximum period of 60 days for the completion of the investigation failing which the accused person would become entitled to be released on bail.
6. However, subsequent experience showed that in certain complicated cases investigation could not always be completed within the period of 60 days. In such cases the investigating agencies faced considerable difficulties and even in genuine cases when there, was no laches on their part the accused person nevertheless became entitled to be released on the expiry of 60 days when no police report under Section 163(2) could be filed. On behalf of the prosecuting agencies there thus arose a persistent demand for scrapping the entire new provision and to restore the old order. However, the clock could not be entirely put back. Parliament intervened by enacting Act No. 45 of 1978 and by Section 13 thereof the proviso to Sub-section (2) of Section 167 was wholly substituted and further Sub-section (2A) was inserted in the Statute. Thereby the earlier period of 60 days was extended to 90 days where the investigation related to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years. As regards other-offences the earlier prescribed period of 60 days was maintained.
7. Now the changes of the law brought about in the new Code and its subsequent amendment in 1978 would indicate that the legislature has firmly frowned upon the investigations being prolonged beyond 90 days in more serious offences and beyond 60 days in lesser ones. The competing rights of the police to investigate thoroughly and the individual right of the accused to either speedy investigation or securing his liberty in case of delay were synthesized by providing that if the investigation proceeded beyond the periods prescribed, the Courts were not authorised to detain the accused in custody beyond the said time. Both the purpose and the language of the proviso to Section 167 are now clear. Where an accused is in custody for more than 60 days or 90 days, as t'he case may be, and the investigation is not completed, he becomes entitled to be released on bail, irrespective of whether the offence is bailable or not. The intention of the Parliament clearly was to cut at the earlier evil of prolonged and indefinite remand in custody even in cases of grossly delayed investigations and to make it obligatory for the Courts to release the accused on bail after the prescribed periods, in case the investigation was not completed. This was authoritatively noticed in AIR 1975 SC 1465: (1975 Cri LJ 1212), Natabar Parida v. State of Orissa, in the following terms, prior to the amendment of 1978.
"......But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be 'a paradise for the criminals', but surely it would not be so, as sometimes it is supposed to be, because of the Courts. It would be so under the command of the Legislature."
8. As regards Section 173 there was no provision in the old Code of 1898 prescribing the procedure to be followed by the police after submission of the report under Section 173(1) and after the Magistrate had taken cognizance of the offence, if fresh facts came to light which required further investigation. There was, of course, no express provision prohibiting the police from launching upon an investigation into fresh facts coming to light after submission of the report under Section 173(1) or after the Magistrate had taken cognizance of the offence. Even under the old Code it was generally thought by many High Courts (though it was doubted by some) that the police were not barred from further investigation of the circumstances when a report under Section 173(1) had already been submitted. The Law Commission in its Fortyfirst Report recognised the position and recommended that the right of the police to make further investigation should be statutorily affirmed. It was observed by it as follows : --
" 14.23 A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, the Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused."
In accord with the above in the new Code of Criminal Procedure, 1973, Sub-section (8) was inserted in Section 173 to provide for the same.
9. In the light of the aforesaid provisions of Sections 167(2) and 173 of the new Code the core of the somewhat doctrinaire argument raised on behalf of the petitioner is that the Code permits only the police report under Section 173(2) on the total completion of the investigation for the whole of the offences. It was contended that the rule that the law takes cognizance of the offence and not of the individual offender which should be extended to this field in order to hold that a police report against one or some of the many offenders for the offence would be barred and impermissible in the eye of law. It was sought to be submitted that the beneficent provision of Section 167(2) would be rendered nugatory and the accused persons would be cheated out of their right to be released on bail if piecemeal police reports against individual offenders were made permissible. Basic reliance was placed on 1977 BBCJ (HC) 374: (1978 Cri LJ NOC 58), Suresh Singh v. The State, 1979 BBCJ (HC) 219, Phulena Rai v. State of Bihar, and an unreported decision in Sk. Sultan v. State of Bihar, (supra). Undoubtedly, these judgments lend considerable aid to the stand taken up by the petitioner but the doubt about the very correctness of the view therein is a matter which has necessitated this reference to the Full Bench.
10. The inevitable controversy herein turns basically on the provisions of Sections 167 and 173 of the Code. Therefore, relevant parts thereof may be read at the very outset.
"167. (1) xx xx xx xx xx xx xx xx (2) The Magistrate to whom an accused person is forwarded under this section 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 --
(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 ninety 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 purpose of that Chapter;"
"173. (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.
XX XX XX XX XX XX XX XX (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, whereupon 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)."
11. It is an oh repeated adage that issues of criminal jurisprudence are matters of substance and not a mere form or technicality. A bare reading of the aforesaid provisions would itself indicate that the Legislature has not at all laid down any inflexible or sanctimonious rule of only one police report under Section 173(2) against each and every accused simultaneously on the completion of the whole investigation where there are many accused persons charged with the offence. The issue herein first refreshingly deserves examination under Section 173 of the old Code itself. The right of the police to make repeated investigations even under the old Code was recognised way back in AIR 1919 Mad 751 : (1918 (19) Cri LJ 901), Divakar Singh v. A. Ramamurthi Naidu, in the following terms :--
"Another contention is put forward that when a report of investigation has been sent in under Section 173, Criminal P.C., the police has no further powers of investigation but this argument may be briefly met by the remark that the number of investigations into a crime is not limited by law and that when one has been completed another may be begun on further information received."
The matter was considered axiomatic and in AIR 1946 Mad 502 : (1946 (47) Cri LJ 993) In re Palaniswami Goundan it was summarily recorded as under:
"The only point for consideration in this case is whether a police officer, who had filed what is styled as a 'final charge sheet' in which he has not laid a charge against one of several persons against whom information was received by him at the earliest stage of investigation, could file a further charge-sheet against that person without disclosing that he had received any further information. No authority has been cited for the contention that such supplementary charge-sheet cannot be laid. All that the section says is that the final charge-sheet shall be filed after the investigation is closed, but there is nothing said in the Code as to when the investigation is to be considered to have ended. If a police officer after he lays a charge, gets information, he can still investigate and lay further charge-sheets; and so there is no finality either to the investigation or to the laying of charge-sheets in the sense in which it is sought to be understood in this case. I therefore do not think I will be justified in quashing proceedings. The petition is accordingly dismissed."
The aforesaid Madras view was approvingly referred to and followed by Lahore High Court in (1947) 48 Cri LJ 774 : Md. Niwas v. The Crown. Similar views were later taken in AIR 1952 Orissa 350 : (1952 Cri LJ 1635), Prosecuting Inspector v. Ninaketan Mahato, AIR 1956 All 525 : (1956 Cri LJ 1037), Ram Shankar v. State of U.P., and 1973 Cri LJ 1288 (Ker), In re State Prosecutor of Kerala. Later the final Court itself in AIR 1955 SC 1% : (1955 Cri LJ 526), H. N. Rishbud v. State of Delhi, and in AIR 1951 SC 441 : (1951 (52) Cri LJ 1491), Tara Singh v. State, took the view that further investigation is not ruled out merely because once a police report has been filed and cognizance taken thereon and further that defective investigation coming into light even during the course of trial may be cured by a further investigation if the circumstances permitted. In Tara Singh v. State, the Court noticed the existence of the practice of submitting incomplete Chalans in the first instance though it neither approved nor disapproved the same in categoric terms.
12. The aforesaid line of cases even under the old Code were unreservedly approved and accepted in AIR 1979 SC 1791 : (1979 Cri LJ 1346). In doing so their Lordships set at rest all dissentient voices to the contrary and overruled the contrary opinions of the Calcutta, Rajasthan and Punjab and Haryana High Courts. It is thus patent that even under the old Code there was no doctrinaire and charismatic rule of only one single police report for the whole of the offences under Section 173 of the Code. The right of the police to make repeated investigations and to file supplementary police reports was clearly recognised thereunder and this view now bears the seal of approval of the final Court.
13. Now once the legal position was as above under the old Code it would be doubly more so under the new Code in view of the insertion of Sub-section (8) to Section 173. As has already been noticed earlier this Sub-section was inserted to give statutory affirmance to the precedential mandate under the old Code with regard to the right of the police to further investigate. Reading Sub-sections (1), (2) and (8) of Section 173 together it is clear that they envisage expeditious completion of police investigation and submission of police report in the prescribed form thereafter, with a proviso to further investigate, if necessary. Sub-section (8) of Section 173 expressly declares that nothing in the said Sub-section would preclude further investigation in respect of an offence even after a report under Sub-section (2) has been forwarded to the Magistrate. It then provides that upon such investigation the officer-in-charge of a police station may forward not one but more than one further reports with regard to such investigation. To these further police reports the identical provisions of subsections (2) to (6) of Section 173 would also apply. To my mind this explicit provision would drive the last nail in the coffin of the argument of a single inflexible police report under Section 173(2) and a legal bar to the submission of such reports thereafter. On sound canons of construction Sub-section (8) must, therefore, be read as a proviso to Sub-sections (1) and (2) of Section 173, or, in any case, harmoniously together therewith. On behalf of the petitions on the basis of precedent (to which detailed reference would follow) the power under subsection (8) of Section 173 was styled as a reopening of the investigation or overriding the earlier one. This stand is hardly tenable. To label on express statutory power of further investigation and further police reports as reopening or overriding of the earlier investigation or barring supplementary of additional police report is, to my mind, going to an untenable extreme . On the rule of shunning the falsehood of the extremes such a construction should be avoided. The synthesis of the extreme stands herein is that the normal rule is the expeditious completion of investigation under the mandate of Sub-section (1) of Section 173 and, if possible, the filing of a police report or the whole case under Sub-section (2) thereof within the time limits prescribed by Section 167(2). However, the law not only visualises but mandates a further investigation, where necessary, and consequential further police report or police 'reports, as the case may be to put it tersely the normal and ordinary rule is the early completion of the investigation as a whole and filing of a single police report therefor but there exists no legal or vitiating bar against further investigation even after such a police report and filing of further police reports on the basis of such investigation thereafter. However, such power is not to be deliberately misused or abused in order to defeat the beneficent and salutary provision of Section 167(2) to egg on an expeditious investigation, and on failure to do so to give a right of bail to the accused therefor. It is well settled that a provision of law is not to be construed on the presumption that the same would be abused or misused. Normal assumption is that public authorities will, act bona fide and in advancement of law and justice.
13A. Apart from the principle and language of the statutory provisions, the view I am inclined to lake is sanctified in AIR 1979 SC 1791 :(1979 Cri LJ 1346), Ram Lal Narang v. State (Delhi Admn.). Therein after examining the position both under the old and new Code it was concluded as under ;
"As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police or further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light......."
14. In view of the aforesaid authoritative enunciation and in the light of the preceding discussion the abstruse contention on behalf of the petitioner that the Code inflexibly permits only one single police report qua all the offences and the offenders under Section 173(2) and creates a legal bar against further investigation and filing of further police reports must be necessarily rejected.
15. Once the extreme and doctrinaire stand taken on behalf of the petitioner is answered as above, the limited question whether the Code permits a police report against only one or some of the many accused persons jointly charged with an offence falls into i's proper place and perspective. The basis challenge on behalf of the petitioner herein is that the filing of the further police reports against the remaining accused persons would involve reopening of the investigation which would be impermissible on existing materials. It would further detract from the investigation being complete against one or some of the many accused persons. Basic emphasis of the learned counsel for the petitioner was on the completion of investigation envisaged by Sub-sections (1) and (2) of Section 173. It was contended that completion of investigation and the filing of police report even against one of the accused under the aforesaid provisions means the closing of the said chapter of investigation and, therefore, further investigation envisaged under Sub-section (S) of Section 173 must necessarily be termed as a reopening of the same and permissible only upon altogether fresh and new materials which were earlier not available. It is not possible to accede or subscribe to this extreme stand. Where there are more than one accused persons, it is perfectly possible that the investigation may be totally complete against one of the accused whilst it is wholly in the embryo or incomplete against an absconding or unnamed or untraced accused person. In such a situation it is indeed the mandate of the law itself under Section 173 to complete the investigation without delay and as soon as it is completed, to file a police report to the Magistrate empowered to take cognizance. If later investigation is completed against the absconding or unnamed or untraced accused and a pqtice report is filed against them, it in no way involves any reopening of the investigation against the first accused person or persons with regard to whom the police report has already been filed. To bring in the theory of reopening in this context is thus unwarranted. Yet again the law does not envisage a police report once filed as be all and the end all of the matter. There is no express and not even implied prohibition to file a supplementary or additional police report to an earlier one. Indeed the use of the terminology of reopening the investigation in the context of the express provision of Sub-section (8) of Section 173 is somewhat unhappy. The statute does not employ any such terminology of reopening investigation thereunder. It expressly talks of further investigation or of further report or reports. Furtherance is not reopening. Consequently such police reports under Section 173(8) may be more aptly named either as further police reports or additional, supplemental or revised police reports. As already noticed, they may not imply any semblance of any reopening of a completed investigation against some of the accused at all.
16. However, even carrying the argument to its logical extreme if Section 173(8) may involve any reopening of. the investigation then the same is not only permissible but is expressly now sanctified by Sub-section (8) of Section 173. The law in terms permits reopening of the investigation if necessary. There is no inflex ible conclusiveness or finality about the same. What seems to necessarily follow from the language and in principle is equally well buttressed by precedents. In 1984 Cri LJ 239 P.G. Periasamy v. Inspector of Police, Pennagaram the learned single Judge of the Madras High Courts expressly dissented from the Patna view in 1981 Cri LJ 976, Reshamlal v. State of Bihar and observed as under :
"......Section 173 of the Code does not say anything about the filing of one or more charge-sheets on the basis of the same investigation. There is no specific provision empowering an investigating officer to file a revised charge-sheet on the basis of the same materials on which the first charge-sheet was filed nor does the section prohibit the filing of a revised charge-sheet on the basis of the same materials. On the other hand, all that Sub-section (2)(i) of Section 173 states is 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. Section 173(8) has been newly added in order to make it. expressly clear that merely because an Investigating Officer has sent a police report to the Magistrate he will not stand precluded from making further investigation in the case and submitting a further report or reports to the Magistrate regarding the additional evidence gathered by him in the further investigation. Because of this express provision, it should not be taken that if a police officer had committed an error in giving full and proper particulars regarding the names of parties, the nature of information, the names of witnesses, etc., in his first report, he cannot correct -the mistake by filing a second report. When the Code provides for even further investigation being done after a report is filed before a Magistrate there can be no bar whatever for the police filing a second or revised report on the materials already gathered during the investigation, especially when the second report is intended to set right certain mistakes or omissions in the first report. The matter should, therefore, be viewed in its proper perspective. Otherwise, the interests of the State, which in other words, would mean the interests of society, would suffer. On the contrary, if the contention of Mr. Krishnan is accepted, the resultant position would be that even if there are adequate materials against a person, he can get away without even trial on account of a mistake or error committed by the investigating officer in laying a proper report before the Magistrate."
Yet again by way of analogy reference may be made to Full Bench judgment of the Kerala High Court in 1984 Cri LJ 324 : (AIR 1984 NGC 142) Kesavan Natesan v. Madhavan Peethambharan wherein it has been held that even two committal proceedings one on police report and the other on subsequent private complaint are permissible under the Code.
17. On behalf of the petitioner much store was set in importing the principle that the cognizance is taken of the offence and not of the offender. It was contended that this should be extended also to the case of police investigation and the filing of police reports. There appears no warrant for importing an altogether different principle into an alien field. I It was in the well known Dubey's case, reported in AIR 1967 SC 1167 : (1967 Cri LJ 1081), Raghubans Dubey v. State of Bihar that the Supreme Court applied the rule in an altogether different context of Section 190 of the Code. In my view, this principle is not attracted and it would be fallacious to be imported in this arena. Police investigation is not the mathematical equivalent of taking cognizance of an offence by a Court of law nor is the filing of a police report an equivalent of cognizance either, Indeed cognizance is one thing whilst filing of a police report another. The filing of police report may come much earlier whilst cognizance may be taken much later. A Court may refuse to take cognizance on defective police report or one which does not either disclose an offence or is based on wholly insufficient material. Consequently, an attempt to import an altogether different principle in a foreign field of police investigation and the consequent filing of police report must be repelled at the threshold.
17A. Learned counsel for the petitioner Mr. Md. Wasi Akhtar has then placed reliance on the judgment of the learned single Judge of Kerala High Court in 1984 Cri LJ 1277 : P. V. Vijayaraghavan v. C.B.I. However, this cannot in any way advance the case of the petitioner. Therein it was held that there cannot be an offencewise bifurcation of investigation with regard to the same accused and separate police reports pertaining to the different offences charged in the same transaction would not save the matter from the interplay of the provision of Section 167(2) for the purpose of the grant of bail. This case is plainly distinguishable and its ratio may well be correct, (though no occasion herein arises to critically examine the same) but does not warrant the proposition that an investigation against one of the many accused cannot be completed qua all the offences charged and a police report under Section 173(2) be filed against him therefor.
18. In fairness to the learned counsel for the petitioner one must in passing notice his attempted reliance on paragraph 174(a) of the Bihar Police Manual and Forms Nos. XXXII and LXXXII which have been prescribed for the police reports under Section 173(2). Our' attention was drawn to the different heads in the said Forms which require mention of persons who are arrested and these who are not arrested or are absconding. I am, however, unable to see any substance therein nor can the prescription of a form by the State Government and its various columns overriding the construction and interpretation of the basic statutory provisions of the Code itself.
19. Lastly, even if two constructions were possible (without in any way holding so) the anomalous results, which would flow from the 'extreme stand taken by the petitioner must be pointedly noticed. On behalf of the State it was highlighted that in a crime involving many accused some may be arrested whilst others may be absconding or untraced or may even be abroad and beyond the pale of the law. Consequently different stages of investigation qua some of the accused are not only possible but indeed many times are the usual feature. While investigation with regard to the arrested accused may be wholly complete, it may yet be totally in the embryo as regards some of the others not arrested or absconding. In such a situation if the stands on behalf of the petitioner were to be accepted, then the investigation can never be completed nor a police report under Section 173(2) be filed till each and every accused (whether named or unnamed in the F.I.R.) in the case has been arrested and the investigation against each one of them is totally completed. It seems elementary that in serious crime one of the basic tenets of police investigation, is the apprehension of the offender expeditiously and his interrogation about the commission thereof. It is significant to note that an arrested person may confess the crime (though rare) and if adhered to the same by itself is sufficient to sustain the conviction. Equally it is only after the arrest that some material parts of the investigation, like test identification parades in cases of dacoity or murder can be actually conducted. Further it is only after arrest that the provision of Section 27 can come into play for recovery on the basis of the statement made by the accused whilst in custody. Without being doctrinaire it can generally be said that it is not possible to postulate the completion of the investigation of serious crime against accused persons who, as yet, have not been arrested and are absconding. Therefore, the! inevitable consequence of the rule advocated on behalf of the petitioner is that even if onel out of 10 accused persons absconds or remains untraceable the investigation of the case as a whole would never be complete under Section 173( 1) and (2) and no police report could consequently be filed. This would result in the statutory benefit to other accused persons, however heinous be the crime, and multiple the murders committed. Indeed such a view would only tempt, some or even one of the persons to always evade the arm of law in order to derive the benefit of bail for the other co-accused and later for themselves as a whole by delaying the investigation beyond the prescribed period of 90 or 60 days, as the case may be, under Section 167(2). Such a mischievous result of this extreme stand has necessarily to be prevented by a uniform interpretation. In Natabar Panda's case (1975 Cri U 1212) (SC) (supra) their Lordships rightly commented that Section 167(2) may well be a paradise for the criminals by the mandate of the Legislature but it need not be made an inviolable heaven for them by a somewhat doctrinaire precedential interpretation.
20. Inevitably one must now turn to conflict of judicial precedent within this Court on the point which has necessitated this reference to the larger Bench. In 1977 BBCJ (HC) 365 : Dilip Singh v. State of Bihar a Division Bench of this Court had to consider a case where a charge-sheet, which was expressly labelled as preliminary one, was filed against the accused within the period prescribed under Section 167(2). The benefit of bail was claimed thereunder on the ground that the investigation being obviously not complete and the charge-sheet being preliminary he was statutorily entitled to the grant of bail under the aforesaid provision. This was, however, repelled on the ground that the preliminary charge-sheet was the real charge-sheet as contemplated under Section 173 of the Code. The prayer for bail was consequently rejected. However, a Division Bench consisting of B. D. Singh and P. Section Sahay, JJ. in 1977 BBCJ (HC) 372 : (1978 Cri LJ NOC 58) Suresh Singh v. The State, has taken a contrary view. Therein eight persons were named in the FIR out of which two had been arrested whilst the other six were absconding. Within the prescribed time an interim charge-sheet was filed against the two arrested persons as investigation against them had been completed. A prayer on their behalf for bail on the ground that the interim charge-sheet was unwarranted was rejected by the Magistrate but later allowed by the Sessions Judge. This was challenged on behalf of the first informant in the case. Repelling the challenge and upholding the grant of bail by the Sessions Judge the Bench observed somewhat categorically that by no stretch of imagination can it be said that under Section 173 any interim charge-sheet can be submitted even against some of the accused whilst the pendency of the investigation against the other. It was observed that there cannot be interim charge-sheet on the one hand and simultaneous investigation of the case on the other with deepest respect such an extreme view is not tenable for the detailed reasons recorded earlier. It would appear that in this case the learned Judges proceeded on the erroneous assumption that a further police report under Section 173(8) necessarily and invariably involves reopening of the investigation. As has already been shown above such a categoric assumption is unwarranted. Equally the view in this case now runs contrary to the later binding decision in Rarn Lal Narang's case (1979 Cri LJ 1346) (SC) (supra). Equally Suresh Singh's case (1978 Cri LJ NOC 58) (supra) runs contrary to the view in 1984 Cri LJ 239 (Mad) (supra) which has found favour with us. It would appear that the learned counsel for the parties were somewhat remiss in not bringing to notice of the Bench the various aspects which have been discussed in exhaustive detail in the earlier part of this judgment. Even otherwise the weight of this judgment is considerably dwindled by the fact that one of the learned Judges, B. D. Singh, J., himself seems to have taken a contrary view in the latter case of Dilip Singh v. State of Bihar (supra) to which also he was a party. I With great respect Suresh Singh v. State does' not lay down the law correctly and is hereby overruled. It seems that the view taken by P. Section Sahay, J., in Suresh Singh's case, was again reiterated by him in 1979 BBCJ (HC) 219 : Phulena Rai v. State of Bihar. A perusal of the judgment would show that it rested on the premise that Section 173(8) necessarily connotes reopening of the investigation and the same could only be done on fresh materials which must be shown to have not been available or obtainable earlier. With respect, the reasoning in this case also suffers from the same pitfalls as has been ex amined in some detail in Suresh Singh v. State. Consequently, for identical reasons this judgment has also to be overruled. A learned single Judge of this Court in Resham Lal Yadav v. State of Bihar, 1981 Cri LJ 976 followed Phulena Rai v. State of Bihar (supra) to arrive at an identical view. Inevitably, this judgment has consequently to be overruled as well. The latter unreported judgment of Sk. Sultan v. State of Bihar in turn followed earlier view in Suresh Singh v. State. Therein it was further attemptd to bring in an altogether different principle that cognizance is taken of an offence and not of an offender, which pertains to an altogether alien field as has already been shown above. With deepest respect, for the reasons already delineated above with regard to Suresh Singh's case, this judgment also does not lay down the law correctly and has also to be overruled.
21. To finally conclude for reasons of legislative history, the express language of the statutory provisions, and on principle and precedent the answer to the larger question posed at the very outset, is rendered in the affirmative and it is held that Section 167(2) of the Code envisages and permits the forwarding of a police report under Section 173(2) against only one or some out of the many accused persons jointly charged with an offence even though the investigation has not as yet been completed against all.
22. In the wake of the aforesaid findings the answers to the three questions, referred to the Full Bench, noticed in paragraph 4, may now be recorded. Accordingly, the answer to question No. (i) is rendered in affirmative and it is held that the submission of final form after completion of the investigation in respect of offences alleged against some of the accused persons within the statutory period mentioned in the proviso to Section 167(2) of the Code and keeping the investigation alive against co-accused is permissible.
23. The answer to question No. (2) is rendered in the negative and it is held that the accused persons against whom the investigation has concluded are not entitled to get the benefit of the proviso to Section 167(2) on the ground that it has not concluded against those who are also suspected to have committed the offence alleged.
24. The answer to 'question No. (3) is rendered in the affirmative and it is held that the final form submitted against some of the accused within the statutory period can be held to be a police report within the meaning of Section 173(2) of the Code; whatever may be said in respect of any supplementary police report submitted against other accused against whom investigation had not concluded.
Nagendra Prasad Sungh, J.
25. I agree.
Anand Prasad Sinha, J.
26. I agree. Application dismissed.
27. Once the pristinely legal issues are answered as above it seems plain that there is no merit in this application. It was almost common ground before us that the police report vide Annexure '3/A' was filed in Court on completion of the investigation against the present petitioner, within the period prescribed under Section 167(2) of the Code. The mere fact that investigation against some of the absconding accused had yet to inevitably continue would not inject any infirmity in the police report submitted against present petitioner at all. Consequently, this criminal miscellaneous is hereby dismissed.