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PUNJAB & HARYANA HIGH COURT
D.S.Tewatia, Bhopinder Singh Bhopinder Singh Dhillon, Dhillon and Gurnam Singh JJ.
State Of Haryana
Versus
Mehal Singh
Criminal Miscellaneous No. 4766-M of 1977,5812-M of 1977,6077-M of 1977,
Decided On : APRIL 12, 1978
INVESTIGATION - COMPLETION - REPORT - POLICE REPORT - COGNIZANCE OF OFFENCE - MAGISTRATE - POWER TO TAKE COGNIZANCE - PROVISO TO SUB-SEC. (2) OF S.167 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - INTERPRETATION - INVESTIGATION - MEANING - POLICE REPORT - DEFINITION - COGNIZANCE OF OFFENCE - MODES OF TAKING COGNIZANCE - POLICE REPORT - ESSENTIAL CONTENTS - INCOMPLETE POLICE REPORT - EFFECT - INVESTIGATION - COMPLETION - CRITERIA - COLLECTION OF EVIDENCE - OPINION FORMATION - STATEMENTS OF WITNESSES - RECORDING - NECESSITY - EXPERTS' REPORTS - RECEIPT - NECESSITY - INVESTIGATION - COMPLETION - DETERMINATION - MAGISTRATE'S POWER TO TAKE COGNIZANCE - REMAND OF ACCUSED - JUDICIAL CUSTODY - CONDITIONS - PRODUCTION OF DOCUMENTS - COURT'S POWER TO CALL FOR - ADDITIONAL EVIDENCE - PRODUCTION - COURT'S DISCRETION - INTEREST OF JUSTICE - BALANCE - UNDULY DELAYED INCARCERATION - AVOIDANCE - PROSECUTION EVIDENCE - VITAL BEARING - SHUTTING OUT - PROHIBITION.
Fact of the Case:
The question before the Court was whether investigation of an offence would be considered complete in terms of S.173 (2) of the Criminal Procedure Code (CrPC), even if the police officer investigating the case had not received the reports of experts whose reports are made admissible in law under S.293 of the CrPC, without these being proved by the said experts in the witness-box; and whether a charge-sheet minus the aforesaid documents, when submitted to a Magistrate, would qualify to be termed a police report in terms of S.190 (1) (b) of the CrPC and enable the Magistrate to take cognizance of the offence disclosed therein.
Finding of the Court:
The Court held that investigation of an offence is complete when the investigating officer has collected all evidence and facts detailed in sub-sec. (2) of S.173 of the CrPC and is satisfied that the case deserves to be initiated against the accused. The Court further held that a police report is a report forwarded by a police officer to a Magistrate under sub-sec. (2) of S.173 of the CrPC, and that it is not necessary for the police report to include the statements of witnesses or the reports of experts in order to be considered complete. The Court also held that a Magistrate can take cognizance of an offence on the basis of a police report that does not include the statements of witnesses or the reports of experts, and that the accused cannot claim release on bail under the proviso to sub-sec. (2) of S.167 of the CrPC merely because the investigation is not complete in this sense.
Issues: 1. Whether investigation of an offence is considered complete if the police officer has not received the reports of experts whose reports are admissible in law under S.293 of the CrPC? 2. Whether a charge-sheet minus the aforesaid documents, when submitted to a Magistrate, would qualify to be termed a police report in terms of S.190 (1) (b) of the CrPC and enable the Magistrate to take cognizance of the offence disclosed therein?
Ratio Decidendi: 1. Investigation is complete when the investigating officer has collected all evidence and facts detailed in sub-sec. (2) of S.173 of the CrPC and is satisfied that the case deserves to be initiated against the accused. 2. A police report is a report forwarded by a police officer to a Magistrate under sub-sec. (2) of S.173 of the CrPC, and it is not necessary for the police report to include the statements of witnesses or the reports of experts in order to be considered complete. 3. A Magistrate can take cognizance of an offence on the basis of a police report that does not include the statements of witnesses or the reports of experts, and the accused cannot claim release on bail under the proviso to sub-sec. (2) of S.167 of the CrPC merely because the investigation is not complete in this sense.
Final Decision: The Court dismissed the petitions filed by the accused-petitioners and declined bail. The Court allowed the petition filed by the State and set aside the order of the Additional Sessions Judge, cancelling the bail bonds of the accused-respondents and ordering them to surrender to custody forthwith.
1. The short question that falls for determination, which is common to all the five Criminal Miscellaneous Petitions Nos. 4766-M, 5812-M and 6077-M of 1977 and 169-M and 293-M of 1978 before us, is as to whether investigation of an offence would be considered complete in terms of S.173 (2) of the Criminal P. C. (hereinafter referred to as the Code), although the police officer investigating the case had not received the reports of such experts as the Chemical Examiner, the Serologist, the Ballistic Expert or the Finger Print Expert, etc. whose reports are made admissible in law under S.293 of the Code, without these being proved by the said experts in the witness-box; and whether a charge-sheet minus the aforesaid documents, when submitted to a Magistrate, would qualify to be termed a police report in terms of S.190 (1) (b) of the Code and enable the Magistrate to take cognizance of the offence disclosed therein.
2. The aforesaid question arises for consideration in the wake of a claim made by all the petitioners except in Criminal Misc. No. 4766-M of 1977 (for facility of reference the accused-petitioners in these petitions are referred to as the petitioners) for their release on bail in view of the proviso to sub-sec. (2) of S.167 of the Code, which envisages that during the investigation a Magistrate is; not competent to keep an accused in custody, police or judicial, exceeding sixty days. In other words, if in this period the investigation is not concluded, the Magistrate would have no option but to order the release of such an accused on bail.
3. Before embarking upon the consideration of the legal questions aforesaid, a few words on facts may be stated herein.
4. In Criminal Miscellaneous Petitions Nos. 5812-M and 6077-M of 1977 and 169-M and 293-M of 1978, the petitioners have applied to this Court for being released in view of the proviso to sub-section (2) of S.167 of the Code, while in Criminal Miscellaneous Petition No. 4766-M of 1977 the accused-respondents had been released by the Additional Sessions Judge in view of the application of the proviso to sub-sec. (2) of S.167 of the Code to this case, and the State has challenged that order in this Court. Criminal Misc. Petition No. 5812-M of 1977 came up for hearing before me and finding myself in respectful disagreement with the view taken by the Delhi High Court in Hari Chand V/s. State, 1977 Cri LJ (NOC 262) p. 156, and the view taken by A. D. Koshal, A. C. J. (as my Lord the Chief Justice then was) in Criminal Misc. No. 2287-M of 1976 (Kanahiya V/s. State of Haryana) decided on May 12, 1976 (Punj), I referred the matter to the larger Bench. In the wake of that reference order, the other criminal miscellaneous petitions by separate orders recorded by the learned Judges concerned, also came to be similarly referred to the larger Bench, to be dealt with along with Criminal Misc. Petition No. 5812-M of 1977, which I had referred to the larger Bench and that is how these petitions have been placed before us. A common judgment is, therefore, proposed for all the five petitions.
5. It is not in dispute that the charge-sheet, which is being termed as incomplete charge-sheet on behalf of the accused, had in all cases been submitted to the Magistrates empowered to take cognizance of the offences in question well within the period of sixty days from the date of arrest. It is also not in dispute that the report of one or of the other kind of the expert had either not been submitted or came to be submitted after the expiry of the period of sixty days from the date of the arrest of the accused-petitioners in all these cases.
6. There is no dispute about the proposition that the detention of a person accused of commission of a crime when arrested would fall in three categories (1) detention during investigation of the offence, (2) detention as an undertrial for the purpose of enquiry and trial, and (3) detention to undergo the sentence after conviction, if any sentence
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