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High Court Of Delhi
VINAY CHOUDHARY - Appellant
Versus
STATE OF DELHI - Respondent
Criminal Miscellaneous (Main) 75 of 1989
Decided On : 02/23/1989
BAIL - SECTION 167(2) OF THE CODE OF CRIMINAL PROCEDURE - INVESTIGATION NOT COMPLETED WITHIN 90 DAYS - INCOMPLETE CHALLAN FILED - WHETHER PETITIONER ENTITLED TO BAIL - HELD, NO.
Fact of the Case:
The petitioner, accused of murder, attempted murder, and possession of a weapon, filed a petition for bail, arguing that the investigation had not been completed within 90 days and an incomplete challan had been filed, entitling him to bail under Section 167(2) of the Code of Criminal Procedure (CrPC).
Finding of the Court:
The court found that the challan was filed before the Duty Magistrate on the 90th day, a Sunday, and the Magistrate accepted the challan, directing the Ahlmad to check it and present it to the concerned Metropolitan Magistrate the following day. The court also noted that the petitioner had already been remanded in judicial custody until December 12, 1988.
Issues: 1. Whether the Magistrate had taken cognizance of the offense within the meaning of Section 190(1)(a) of the CrPC, despite not making any specific orders while accepting the challan. 2. Whether the investigation was complete at the time of filing the challan, considering that certain documents were filed later, including the post-mortem report and inquest papers.
Ratio Decidendi: 1. The court held that taking cognizance of an offense does not involve any formal action and occurs when a Magistrate applies their mind to the suspected commission of an offense. The Magistrate's acceptance of the challan and direction to check and present it to the concerned Metropolitan Magistrate the following day demonstrated the application of judicial mind and, thus, taking cognizance of the offense. 2. The court referred to the Supreme Court's decision in Tara Chand v. The State, which held that a police report is complete if it contains the particulars mentioned in Section 173(2) of the CrPC, even if supplementary documents are filed later. The court also cited a Full Bench judgment of the Punjab and Haryana High Court, which held that the investigation is deemed complete when a challan is filed under Section 173(2) with the necessary particulars, and that the provisions of Section 173(5) do not change the content or concept of the police report. 3. The court found that the challan filed in the present case contained all the necessary particulars mentioned in Section 173(2), including the names of the parties, the nature of the information, and the names of persons acquainted with the circumstances of the case. The court held that the mere fact that certain documents, such as the post-mortem report, were not filed along with the challan did not make it incomplete, as the investigation was already complete when the challan was filed.
Final Decision: The court dismissed the petitioner's bail petition, holding that the investigation was complete when the challan was filed, and the petitioner was not entitled to bail under Section 167(2) of the CrPC.
( 1 ) THE petitioner who has been chalaned for an offence under Sections 302, 307 and 436, Indian Penal Code (for short Indian Penal Code ") and Section 27 of the Arms Art. has come up and filed this petition seeking bail.
( 2 ) THE petitioner is stated to have killed a young college, girl who had allegedly refused to marry the petitioner by shooting her from very close quarter on her temple. On merits, even the learned counsel for the petitioner has nothing to say as far as the bail petitioner is concerned. However, counsel for the petitioner has vehemently argued that the investigation had not been completed by the police within 90 days and incomplete challan had been filed on December 4, 1988 and thus, under Section 167 (2) of the Code of Criminal Procedure (for short cr. P. C ) the petitioner has become entitled to bail.
( 3 ) I have gone through the record of the case and find wsi on December 4, 1988, which was a Sunday, the challan was put in before the Duty Magistrate and it was recorded by the Duty Magistrate in his order that he accepted the challan and he directed the Ahlmad to check the same and put it before the concerned Metropolitan Magistrate on the following day. He also noticed that the accused had been already remanded in judicial custody till December 12 1988.
( 4 ) THE first contention raised by the learned counsel for patitioner is that no cognizance has been taken by the Magistrate while passing the order by which he accepted the challan and thus, it should be held that within 90 days of the detention or the petitioner the cognizance having been not taken by the Magistrate the petitioner has become entitled to bail. He has cited (1) Ajit Kumar v. State of West Bengal. AIR 1963 SC 765, wherein it has been observed that the word "cognizance" has no esoteric or mystic significance in criminal law or procedure, and it merely means become aware of and when used with reference to Court or Judge, to take notice of judicially. It was observed that taking coginzancc does not involve any formal action or indeed action of any kind, but occurs as soon as a Magistrate, as such. applies his mind to the suspected commission of an offence. Then. reference is made to (2) Devarapalli Lakshminarayana Reddy and others v. Narayana Reddy and others, AIR 1976 SO 1672, in which it. was held that. the expression "taking cognizance of an offence" by the Magistrate has not been defined in the Criminal Procedure Code. and the ways in which such cognizance can be taken are set out in clauses (a), (b) and (e) of Section 390 (1) and the question whether the Magistrate has or has not taken cognizance of the offence will depend on the circurnstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action. It was held that broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 20g and the succeeding Sections in Chapter XV of the Code of Criminal Procedure 1973, he is said to have taken cognizance of the offence within the meaning of Section 190 (1) (a ). Then it was. laid down that if instead of proceeding under Chapter IX he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the parpose of investigation, or ordering Investigation by the police under Section 156 (3), he cannot be said to have taken cognizance of any offence. I do not think that these wo judgements help the contention of the petitioner in any manner. " After all a challan could be filed before the Metropolitan Magistrate having the jursidiction. It is also not disputed before me that the Duty Magistrate, before whom the A challan was filed, was having the jursidiction all over Delhi. Hence, the Duty Magistrate having accepted the challan would mean that the Magistrate had applied his mind to the challan and taken cognizance and gave the directions fo
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