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Andhra Pradesh High Court
Judges : ANANTA NARAYANA AYYAR, BASI REDDI
Bandi Kotayya - Appellant
Versus
State (S.H.O.Nandigama) - Respondent
Decided On : 06-10-65
CRIMINAL PROCEDURE CODE - SECTION 207-A - PRELIMINARY REGISTER CASE - COGNIZANCE OF OFFENCE - PRELIMINARY CHARGE-SHEET - FINAL CHARGE-SHEET - POLICE INVESTIGATION - MAGISTRATE'S JURISDICTION - INTERPRETATION.
Fact of the Case:
In a preliminary register case, the police filed a preliminary charge-sheet before a magistrate, who took the case on file and issued non-bailable warrants against the absconding accused. The police continued the investigation, examined fresh witnesses, and held identification parades. As a result, they were satisfied that three of the accused had been falsely implicated. They filed a final charge-sheet against the remaining accused, omitting the three who had been falsely implicated. The magistrate released the falsely implicated accused from custody and withdrew the non-bailable warrants issued against them. A petition was filed before the magistrate challenging the legality of the police's actions and the magistrate's decision not to proceed against the falsely implicated accused.
Finding of the Court:
The court held that the magistrate had not taken cognizance of the offence when the preliminary charge-sheet was filed, but only after the filing of the final charge-sheet. The court further held that the police had the power to continue the investigation and submit a final charge sheet, dropping one or more of the accused, where they were satisfied as a result of the subsequent investigation, that those accused had been unjustly implicated.
Issues: 1. Whether the magistrate had taken cognizance of the offence when the preliminary charge-sheet was filed? 2. Whether the police had the power to continue the investigation and submit a final charge sheet, dropping one or more of the accused, where they were satisfied as a result of the subsequent investigation, that those accused had been unjustly implicated?
Ratio Decidendi: 1. The court held that the magistrate had not taken cognizance of the offence when the preliminary charge-sheet was filed, but only after the filing of the final charge-sheet. The court relied on the following reasoning: * Section 207-A(1), Cr.P.C. postulates the receipt by the Magistrate of a police-report forwarded under Section 173, Cr.P.C. as a pre-requisite for commencing the inquiry against the accused and taking the first step in that direction, namely, fixing a date for the purpose of holding the inquiry. * Therefore, unless and until a police report as contemplated by Section 173 is received by the concerned Magistrate, he cannot proceed with the inquiry, and. applying the test formulated by Das Gupta, J. , the Magistrate cannot obviously apply his mind to the contents of the police report for the purpose of proceeding in a particular way, as indicated in the subsequent provisions of Section 207-A, Cr.P.C. * It would follow as a necessary consequence that until the Magistrate has before him a police report as envisaged by Section 173 Criminal Procedure Code, he cannot take cognizance of the offence in respect of which he is to hold an inquiry. 2. The court held that the police had the power to continue the investigation and submit a final charge sheet, dropping one or more of the accused, where they were satisfied as a result of the subsequent investigation, that those accused had been unjustly implicated. The court relied on the following reasoning: * A preliminary charge-sheet is no doubt a police report, but the Magistrate holding an inquiry under Section 207-A Criminal Procedure Code, does not, indeed cannot, take cognizance of the offence mentioned in that report and proceed with the inquiry upon receipt of such a report. * He must wait for the report under Section 173, which would he forwarded to him by the police after completing their investigation Only then, can he commence the inquiry as is apparent from the provisions of Sub-section (1) of Section 207-A Criminal Procedure Code. * By conducting a full and fair investigation on the spot. unhampered and uninhibited by rules of evidence and procedure the police would he able to discover the truth, and even if upon a cursory investigation, they had included one or more innocent persons in the preliminary charge-sheet, they could drop such persons in the final charge sheet and prevent unnecessary hardship and harassment.
Final Decision: The court dismissed the revision case.
( 1 ) IN this Criminal Revision case, which has been referred to a Division Bench by our learned brother Jaganmohan Reddy. J. as " if involves a question of law which is of general application", the question that falls for determination is whether in n preliminary Register case, that is to say, in a case triable exclusively by a Court of Session, the police can first file what is called a "preliminary charge sheet" before a Magistrate, who is to hold an inquiry under Section 207-A, Cr. P. C. , then continue the investigation and eventually file a "final charge-sheet", deleting the names of some of the persons who had been included in the list of accused in the preliminary charge-sheet: and when such a final charge-sheet is filed, whether the Magistrate can accept it as a police report under Section 173 (1 ). Criminal Procedure Code and proceed with the preliminary inquiry only against the persons named in the final charge sheet. In other words, In such a case, does not Magistrate take cognizance of the offence upon the preliminary charge-sheet or upon the final charge-sheet ? (2a) In the present case the above question arises in the following way. On 18-5-1964 the Sub-Inspector of Police, Nandigama, filed before the Judicial Second Class Magistrate, Nandi-gama, what was described as a preliminary charge-sheet in Crime No. 40 of 1964 in respect of offences under Sections 147. 148, 323, 324, 325, 307, and 302 I. P C. , against 18 persons named therein who were shown as accused Nos. 1 to 18. The last paragraph of that preliminary charge-shed reads thus : " Investigation is not yet completed. Final charge-sheet with complete list of P. Ws will be submitted after completing the investigation
( 2 ) THE learned Magistrate took the case on file, numbered it as P R. C. No. 1 of 1964, remanded to custody such of the accused (including accused No. 18) as had been arrested, and issued non-bailable warrants against the other accused (including Accused Nos. 16 and 17) He, however, made endorsements on the docket of the case-file adjourning the inquiry from time to time, in order to enable the police to complete their investigation and file a final charge-sheet.
( 3 ) THE police continued their investigation, examined fresh witnesses and held two identification parades As a result of this investigation, the police were apparently satisfied that Accused Nos. 16, 17 and 18 had been falsely implicated. Ultimately after completing the investigation, the police filed a final charge-sheet on 24-8-1964 against Accused Nos. 1 to 15 only, omitting Accused Nos. 16, 17 and 18 from the list of the accused. Thereupon the learned Magistrate released Accused 18 from custody, withdrew the non-bailable warrants which had been issued For the arrest of Accused Nos. 16 and 17 and fixed a date for the inquiry. Thereupon one Bandi Kotayya, who had been cited in the charge-sheet as a prosecution witness, filed a petition before the Judicial Second Class Magistrate (Cri. M. P. 280/64 ). In P. R. C. No. 1 of 1964) contend ing that the police had acted illegally in deleting the names of Accused Nos. 16 to 18 in the final charge-sheet; that the Magistrate had also acted illegally in deciding not to proceed against those three accused after having taken cognizance of the case against all the 18 accused named in the preliminary charge-sheet; and that the only course open to the Magistrate was to have discharged those three accused under Section 207-A (6), Criminal Procedure Code, if he was of opinion that upon the material placed before him, there were no grounds for committing them for trial. The learned Magistrate dismissed the petition, holding that the Court had not taken cognizance of the case at all on 18-5-1964 when the preliminary charge-sheet was filed but that it had taken cognizance of it only on 24-8-19 (54 when the final charge-sheet was filed, and so the preliminary enquiry could lawfully be proceeded with in respect of the amised impleaded i
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