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7. In a cognizable case, the investigation commences upon a report under S. 154, Cr.P.C. and concludes when a final report is filed by the police under S. 173(2) Cr.P.C. In between, when the accused are produced before the court, an interim report is to be filed by the police under S. 157, Cr.P.C. Upto the stage of filing of a police report popularly called 'charge-sheet' under S. 173, any report in between is not a final report. It was held in Bandi Kotayya v. State, that a preliminary report filed by police cannot be called cognizance and that Magistrate takes cognizance only on a final report, may be, even after filing a final report under S. 173, upon further disclosure of facts, a supplementary charge-sheet may be filed. It was held in Tara Singh v. The State, that S. 173(1) Cr.P.C. requires the completion of investigation and forwarding the same to the Magistrate and that additional evidence always can be given later. Thus, the court cannot anticipate and need not wait for the supplemental report as the original final report under S. 173(2), Cr.P.C. gives a cause for the Magistrate to take cognizance of the offence with entitlement of furnishing of copies of all such material to the accused under S. 173(5) Cr.P.C. Further, until the stage of application of mind under S. 190(1)(b) Cr.P.C. it cannot be said that the action of the Magistrate in remanding the accused and performing various acts including that of receiving charge-sheet and returning the same because of defects, are judicial acts. It was held in R. R. Chari v. State, that the expression "taking cognizance of an offence" means the court deciding the proceed against the offender with a view to determine his guilt. It was also held in the said case, that in cognizable cases, the stage for taking cognizance comes when the police submits the charge-sheet and that an order for investigation by a Magistrate, be it in connection with a non-cognizable or cognizable offence, does not amount to taking cognizance of the case so also the order of the Magistrate for arrest and jail custody or order granting bail does not amount to taking cognizance. It was held in Gopal Das v. State of Assam, AIR 1961 SC 986 : (1961 (2) Cri LJ 39) that when a Magistrate applies his mind not for proceeding in various sections of Chapter XVI, but for taking action of some other kind like ordering investigation under S. 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. In State v. Siba Prasad, it was held that until the charge-sheet has been filed, a Magistrate cannot be said to have taken cognizance of any offence and that the Magistrate can take the cognizance of the offence and direct the issue of process only on receipt of a police report and that till that stage is reached, he is said to be acting only as a Magistrate controlling the investigation made by the police. In D. Lakshminarayana v. Narayana, , it was held that cognizance can be said to be taken when Magistrate applies his mind for proceeding further with the case. It was held in Mowu v. Suptd. Special Jail, Nowgong, Assam, 1972 SCC (Cri) 184 that taking cognizance of an offence under S. 190, Cr.P.C. is a judicial act and not administrative and as such, application of mind is necessary. It was held in Gandi Satyanarayana v. J. Hansli, 1970 Cri LJ 778 (Andh Pra) that Magistrate takes cognizance of an offence and not of an offender. It was held by Justice Kondaiah rendering the said judgment that "once cognizance has been taken by the Magistrate, he takes cognizance of an offence, it is his duty to find out who the offenders really are. It was held in State v. Pukhia, and followed in In Re Raju Thevan, AIR 1966 Madras 349 : (1966 Cri LJ 1141) and State of Bihar v. Sakaldip Singh, that the term 'taking cognizance' means any judicial action permitted by the Code taken with a view to eventual prosecution preliminary to the commencement of the enquiry or trial. It was held in H. S. Bains v. State, by the Supreme Court that the Magistrate after receipt of police report under S. 173(1) Cr.P.C. may decide that there is no sufficient ground for proceeding further and drop action or he may take cognizance of the offence under section 190(1)(b) on the basis of the police report and issue process and the Supreme Court further held that the Magistrate is not bound in any manner by the conclusion arrived at by the police in their report implying that the Magistrate has to apply his mind judiciously and arrive at independent decision of his own. In a decision reported in Punjab National Bank v. Surender Prasad, , it was held that before issuing of process, relevant facts and circumstances should be considered and that process issued mechanically is bad. It was held in Frank Dalton Larkins v. State, 1985 Cri LJ 377 (Delhi) that taking cognizance means judicial application of mind by the Magistrate to the facts mentioned either in the complaint or the police report as the case may be, for taking further action.

8. As seen from the above, it is clear that 'taking cognizance' is not an administrative act, but is a judicial act and that judicial act is first exercised only after the police report (charge-sheet) is filed and it conforms to the provisions of S. 173(2) with details enumerated therein. Again the crucial question is as to whether compliance of S. 173(2) itself is sufficient and whether the mandate under sub-section (5) of S. 173, Cr.P.C. should be followed or not. Sub-section (5) of S. 173, Cr.P.C. was not there in the statute book prior to the amendment of Cr.P.C. in the year 1973. The pre-amended Code of Criminal Procedure did not ensure the service of copy of the charge-sheet containing all the material papers relied upon by the prosecution, but only left the same to be done by the investigation police officer. As the same was visited in breach very often causing prejudice to the accused, with an avowed object of apprising the accused of accusation against him by service of those papers, constituting a charge-sheet, sub-section (5) was introduced into S. 173, Cr.P.C. Its requirement of accompaniment of the copies of the charge-sheet along with the original charge-sheet under section 173(2) Cr.P.C. to be submitted to the court, is mandatory and not directory. This mandatory requirement of service of copies of the charge-sheet and accompaniment of the same along with the original police report under S. 173(2) Cr.P.C. is a procedure established under law having genesis in the fundamental right of life and liberty under Art. 21 of the Constitution of India and if there is an infraction of the same, it will be an infringement of the said fundamental right. It was held in Raghubans Dubey v. State of Bihar, that police report mentioned under section 207(a) is a report mentioned in S. 191(b) of Cr.P.C. and once cognizance is taken under S. 190(1)(b), proceeding is instituted under S. 207(a). The Supreme Court dealing with the filing of a police report in Satya Narain Musadi v. State of Bihar, , has held that the report as envisaged by S. 173(2), Cr.P.C. has to be accompanied as required by S. 173(5) thereof by all documents and statements of the witnesses therein mentioned and that one cannot divorce the details which the details must contain as required by S. 173(2) from its accompaniments which are required to be submitted under S. 173(5) and that whole of it is submitted as a report to the court and that it follows that the court can look at the report in prescribed form along with its accompaniments for taking cognizance of offence. Thus, it is made so clear from the above verdict of the Supreme Court which is still holding the field and which is the law of the land under Art. 141 of the Constitution of India that police report (charge-sheet) is one accompanied by the copies thereof to be served on the accused and that mere filing of a police report under S. 173(2) Cr.P.C. without its accompaniments under S. 173(5) Cr.P.C. is not a police report at all. In view of this verdict of the Supreme Court, the view learned single Judge of this Court in C. Varla Krishna alias Chinna Krishna v. State of A.P. (1989 (1) Andh LT 16) supra, that "In this case, the police report was filed on 18-7-1988 and the provisions of S. 173(2), Cr.P.C. have been complied with. Since the requirements under S. 173(5) have not been complied with, it was returned for compliance. Simply because the Magistrate has mentioned that a skeleton charge sheet has been filed, it does not mean that it prevented him from taking cognizance of the case, basing on the report that has already been filed," cannot be followed. In normal course, I would have referred the matter to the Bench, but I feel it unnecessary to do so in view of the fact that the law laid down by the Supreme Court on this subject is of the year 1980 and the same was holding field when the learned single Judge expressed the above view.

10. In the instant cases, while the petitioners in Crl. P. 341/93 are remanded to judicial custody on 30-9-1992 and the period of 90 days expired on 28-12-1992, the petitioner in Crl. P. No. 559/93 was remanded to judicial custody on 29-10-1992 and the period of 90 days expired on 26-1-1993. The application was filed by the accused to release them on bail since the period of 90 days expired and there is no police report before the Court and the Magistrate has failed to take cognizance of the cases. The same was rejected by the Magistrate on the ground that the petitioners are not entitled for bail under Section 167(2) Cr.P.C. because the SHO (Station House Officer), filed the charge-sheet already within 90 days on 28-12-1992 and that the same was returned to comply the objections. From this, it is crystal clear that there was no police report on record of the court and even on its own showing, the prosecution has not filed the report conforming to the requirements of Sections 173(2) and 173(5) and as such the same was returned. Inasmuch as the charge-sheet was not in conformity with the procedure established by law and as the same was returned, the action of the Magistrate in returning the same was only administrative in nature and not judicial and the Magistrate was not competent to take cognizance of the offence as the charge-sheet was not filed as contemplated under law and was not there on record within the stipulated time of 90 days. It is not sufficient for the prosecution to just file some sort of police report not conforming to the provisions of Sections 173(2) and 173(5) Cr.P.C. and then play fraud not only on the statute but also on the Constitution. This kind of tactics by the police to water down and nullify the constitutional and statutory guarantees cannot be countenanced and in fact, the courts should keep a strict vigil on this kind of unscrupulous acts of officers to get over the constitutional and statutory mandate of filing a charge-sheet within the stipulated time under the guise of filing defective charge-sheet and then knowing fully well that it will be returned. Until a charge-sheet with all specifications enumerated Section 173(2) Cr.P.C. and accompaniments under Section 173(5) Cr.P.C. is filed into the court and the court scrutinises it on its administrative side to satisfy that all such documents are in order and unless the court takes it on record and keeps it on its file for examination for taking cognizance or not, it cannot be said that a police report (charge-sheet) is filed as contemplated under section 173(2) Cr.P.C. Once the police report is filed, it should be capable of examination for the purpose of judicial determination to take cognizance of the offence and to proceed further into Chapter XVI Cr.P.C. and any act short of that cannot be construed as 'taking cognizance.'

11. In view of what is stated supra, I hold as follows :

(1) That the police report (charge-sheet) under section 173(2) Cr.P.C. is not complete unless it is accompanied by the material papers (statements etc.) as contemplated under section 173(5) Cr.P.C.

(2) That a perusal of police report (charge-sheet) as to whether the same is inconsonance with sub-sections 173(2) and 173(5) Cr.P.C. is only an administrative act and not a judicial act.

(3) That judicial act commences when the police report (charge-sheet) is filed in complete form, both complying with the provisions contained under sections 173(2) and 173(5) Cr.P.C. and it is taken on the file of the court and perused by the court for taking a decision under Section 190(1)(b) Cr.P.C.