Judgment:
I.A. Ansari, J.
1. By making this application, under Section 482 of the Code of Criminal Procedure, (in short, 'the Code'), the petitioner, who is an accused in GR Case No. 3816/1998, arising out of Bharalumukh P.S. Case No. 195/98, has put to challenge, inter alia, the order, dated 28.08.2003, whereby the learned Judicial Magistrate, Kamrup, has rejected the report, commonly known as 'final report', submitted by the police, on completion of investigation under Section 173(2)(i) of the Code, recommending closure of the case and also the order, dated 01.09.2003, whereby the learned Chief Judicial Magistrate, Kamrup, has taken cognizance of offences under Sections 448/326/307 IPC and made over the case to another Magistrate for disposal.
2. I have heard Mr. S.S. Sharma, learned Senior counsel, for the petitioner, and Mr. K. Munir, learned Additional Public Prosecutor, Assam.
3. Before entering into the discussion as to whether the orders, when stand impugned in this petition, are legally sustainable or not, the material facts, which gave rise to this petition, may, in brief, be set out as under:
(i) A First Information Report (in short 'FIR') was lodged, on 01.08.98, by the principal of a college informing the police that he had heard that the accused persons, named in the FIR had assaulted a student of his college with a dao, etc. and that the injured had been sent to Gauhati Medical College and Hospital for treatment. Based on this FIR, a police case was registered against the accused persons named in the FIR, including the present petitioner, and investigation commenced accordingly. On completion of the investigation, police submitted a report, under Section 173(2)(i) of the Code, to the learned Chief Judicial Magistrate, Kamrup, the report being to the effect that though a case, under Sections 448/352/34, was found to be true, but due to lack of evidence, 'final report' for closure of the case is being submitted and that the informant has been notified accordingly. The learned Judicial Magistrate, who had come in seisin of the 'police report', rejected the same, as already indicated above, by order, dated 27.08.2003. This order was followed by another order, dated 01.09.2003, whereby the learned Chief Judicial Magistrate, Kamrup, took cognizance of offences under Sections 448/326/307 IPC and made over the case to yet another Judicial Magistrate, Kamrup, for trial and disposal.
4. While considering the present criminal petition, what is important to point out is that when a 'police report', recommanding closure of a case, is submitted, under Section 173(2)(i) of the Code, the Magistrate in the face of the provisions contained in Section 190(l)(b) read with Section 156(3) of the Code, has three options available to him. These three options are as follows:
1. The Magistrate may accept the 'police report', drop the proceeding and choose thereby not to take cognizance of any offence(s).
2. The Magistrate may not accept the 'police report', he may neither drop the proceeding nor take cognizance of offence on the basis of the materials included in the 'police report' and, instead thereof, direct, in exercise of powers under Section 156(3) of the Code, 'further investigation' into the case.
3. The Magistrate may disagree with the 'police report' and, acting on his view that there is sufficient ground for proceeding, take cognizance of the offence(s) as the 'police report' and the materials on record may disclose to have been committed.
5. What is, however, of some relevance to note is that when a Magistrate is of the view that the 'police report' needs to be accepted and proceeding deserves to the dropped, he must give notice to the informant thereby giving the informant an opportunity to have his say on the report, so submitted, and it is thereafter only that the Magistrate may, for reasons to be recorded, accept such a report. If, on the other hand, the Magistrate decides not to accept the police report, no prejudice is caused to the informant and consequently, no notice need be issued to the informant (See Bhagwan Singh v. Commissioner of Police reported in : 1985CriLJ1521 ). The present one is a case, where the learned Chief Judicial Magistrate has chosen not to accept the 'police report', which was in the form of 'final report', hence, the question of sending notice to the informant to have his say on the final report did not arise at all.
6. What is, now, of crucial importance to note is that in the present case, the learned Magistrate not only refused to accept the 'final report', but he did not even direct 'further investigation' in exercise of his powers under Section 156(3). Thus, by order, dated 27.08.2003, the 'final report' was merely rejected and by order, dated 01.09.2003, cognizance of offences, under Sections 448/326/307 IPC, was taken.
7. The question, therefore, is as to whether the learned Chief Judicial Magistrate had sufficient reasons for taking cognizance as has been done in the present case and should this case be allowed to proceed against the accused persons to whom processes have been directed to be issued. The question, so posed, necessarily brings one to the question as to what the object of 'investigation' in law is. In order to understand this object, one has to bear in mind as to what the law aims at acheiving by providing the police with power to conduct and carry on 'investigation'. An 'investigation' consists, generally, of the following steps:
(i) Proceeding to the spot,
(ii) Ascertaiment of the facts and circumstances of the case,
(iii) Discovery and arrest of the suspected offender,
(iv) Collection of evidence relating to the commission of the offence, which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of thinks considered necessary for the investigation and to be produced at the trial, and
(v) Formation of the opinion as to whether, on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by the filing of a 'charge-sheet' under Section 173(2) of the Code. (See H.N. Rishbud v. State of Delhi reported in : 1955CriLJ526 ).
8. 'Investigation', we need to bear in mind, includes forming of opinion by the investigating officer as to whether any case is made out against an accused person and, if so, what is the nature of the case made out against him. With this end in view, the Code has entrusted 'investigation' in the hands of an independent agency like the police, who are expected to be fair to both--the accused as well as the victim. It is often said, and not without purpose, that police has a duty to prosecute and not persecute. The Code cast solemn duty on the police to act fairly and impartially and to ascertain the truth by conducting 'investigation' in such a manner as would be true to the spirit of the Code and nothing else. Based on materials collected, the Code enjoins upon the investigating agency to submit 'police report' under Section 173(2) of the Code. The police, based on the investigation conducted, may opine, in the 'police report', that a case has been made out against the accused person as claimed in the FIR or it may submit that no offence is made out against him. The police may also submit that though the offence is true the incident, alleged in the FIR, is an exaggerated one and, in such circumstances, it may submit charge sheet against the accused person under such penal provisions, which call for relatively lighter sentence than those provisions, where under the case was, initially, registered.
9. What is equally important to point out, at this stage, is that the purpose of investigation is not to reproduce, in the 'police report', what the informant and the person aggrieved may have stated, but to ascertain the truth by conducting the investigation properly, clinically and impartially. During the course of investigation, duty is cast upon the investigating officer to collect materials from all sources including the accused and, then, apply his independent mind to the materials available before him to determine as to what office, if any, has been made out against the accused person. In this regard, Lord Denning cautioned as under:
I hold it to be duty of the Commissioner of the Police of the Metropolis, as it is of every chief constable, to enforce the law of the land.... He must decide whether or not suspect persons are to be prosecuted.... But (in this) he is not the servant of anyone, save the law itself. No minister of the Crown can tell him that he must or must not prosecute this man or that one. Nor can any police authority tell him so. He is answerable to the law and the law alone.
(In Metropolis Police Commissioner Ex-Parte Blackburn (1968) 2 QB 118 at Page 136)
10. The decision to reject the police report and initiate criminal proceeding is essentially guided by material sufficiency. It is pertinent to mention here that the Code for Crown Prosecutor in England, Para 4.1 states that a prosecution must not go ahead no matter how serious it may, if it does not pass evidential test. The Crown prosecutor must be satisfied that there is enough evidence to provide a realistic prospect of conviction against the defendant. The test for realistic prospect of conviction is objective and means that a trier of fact, properly directed in law, is more likely, than not, to convict the person of the offence charged.
11. Though, in India, the courts would not, ordinarily, quash a criminal proceeding merely because of the reason that at the end of the trial conviction of the person, facing the trial, appears impossible on account of insufficiency of material, this restriction is not a restriction of universal application. Hence, in a given case, it is possible to quash a criminal proceeding if, it is, on the basis of the materials available, reasonable to reach a conclusion that at the end of the trial, the accused would have to be acquitted.
12. Before proceeding further, what needs to be clarified is that on completion of 'investigation', when police submits report, in terms of Section 173(2)(i), informing the Magistrate that no incriminating material has been found against the person named as an accused in the FIR or that the materials, unearthed during 'investigation', are inadequate to warrant prosecution of the person named as an accused in the FIR, such a report is popularly known as' final report'; whereas a report, which the police submits, in terms of the provisions of Section 173(2)(i), stating to the effect that materials, warranting prosecution of all or of some of the persons, named in the FIR, have been unearthed on investigation, such a report, suggesting prosecution of any person, as an accused, is commonly known as 'charge-sheet'.
13. Situated thus, what becomes transparent is that it is, primarily, the duty of the investigating officer to decide, on completion of investigation, whether he wants to prosecute a person or not, though a judicial Magistrate has been empowered to reject a 'final report' and such rejection is legally permissible, when it is clear that the 'police report' does not inspire confidence or is flawed or unjustified.
14. Bearing in mind the above aspects of law, when one turns to the case at hand, what becomes transparent is that upon 'investigation', the investigating officer appears to have formed the opinion that an incident of criminal trespass and assault punishable under Sections 448/352/34 IPC had taken place, but there was no sufficient material or evidence available to prove such accusation and, accordingly, recommended closure of the case. The question, therefore, is: whether the opinion, so formed and the recommendations, so made, for closure of case, were sustainable in the face of the materials collected during 'investigation' and the law relevant thereto?
15. A perusal of the case diary reveals that the incident allegedly took place inside a college campus and during working hours of the college in such a situation, presence of persons, within the campus, cannot be ruled out and, in fact, the police report does not rule out presence of persons within the campus at the relevant point of time. The police accordingly examined some of the persons present in the college, but the statements of these witnesses reveal that none of them implicated the accused persons in the offences of which cognizance has been taken. I must hasten to point out here that not even the alleged victim has stated, in his statement recorded under Section 161 of the Code, that he had sustained injuries, far less grievous injuries, or that the accused persons would have killed him, but for some intervening factor, such as, his act of running away from the place of occurrence.
16. What also cannot be ignored is that the Investigating Officer has not submitted, in the police report, either injury report or any material exhibit, which can be said to have revealed that any injury, far less grievous injury, was caused on the person of the alleged victim. The case diary reveals that no injury report of the allege victim was found available in the record-room of the Gauhati Medical College and Hospital. In the absence of any injury report and in the absence of direct evidence as regards the injury, it is not fathomable as to how the learned Chief Judicial Magistrate determined, at the stage of taking cognizance, that the injuries were grievous in nature, particularly, when even the alleged victim does not claim, as already pointed out above, that he had sustained any injury, far less grievous injury. In the cases, involving offences against body, the absence of medical evidence is a major weakness and a Magistrate is reasonably expected to take into consideration this aspect before rejecting a 'final report' and/or before taking cognizance of offences under Sections 448/326/307 IPC.
17. What emerges from the above discussion is that the case diary discloses that witnesses, whose statements have been recorded, do not support the version of the person aggrieved. The informant, admittedly, is not an eye witness. The FIR, in question, and the informant's statement, recorded under Section 161, disclose that the informant had not seen the incident and the victim, after the incident, had not visited his chamber. Now, let us, see as to what the alleged victim has stated in his statement to the police. It is his version that the, accused persons assaulted him with a dao but, somehow, he escaped and entered the informant's chamber. The person aggrieved/alleged victim has not, however, stated that he had received any injury on his body. In fact, a closer and microscopic scrutiny of his statement goes to show that after the assault, he ran and entered into the principal's chamber. The statement of the person aggrieved, recorded under Section 161, is important for reasons more that one. Firstly, because his statement runs contrary to the statement of the informant inasmuch as the informant states that he had only heard of the incident and he had neither seen the accused or the victims during or after the incident; whereas the alleged victim states that he had run to the principal's chamber to save himself from further assault. Secondly, the alleged victim, if I may repeat, has not stated that he had received any injuries on his body. It is important, now, to refer to the 'police report' submitted under Section 173(2) of the Code, wherein the police have categorically opined that though the dao was taken out, it was not used by either side.
18. Recording of statement by the police of a person, acquainted with the facts of a case, is a crucial aspect of an 'investigation', the purpose there of being to enable the investigating officer to analyze holistically the materials available and, then, to form an opinion as to what offence, if any, has been made out against the accused persons. In this context, one may refer to the observations made by the Apex Court, in Nandini Satpaty v. P.L. Dhani : 1978CriLJ968 , wherein a three Judges Bench of the Apex Court has observed that the purpose of recording a statement, under Section 161 of the Code, is to bring out the maximum that the person examined knows about the incident.
19. In the backdrop of what have been indicated above, when I concentrate only on the question as to whether there was any material on record al all enabling the learned Chief Judicial Magistrate, Kamrup, to take cognizance of an offence under Section 326 IPC, what needs to be pointed out is that notwithstanding the fact that the FIR alleges that the alleged victim had sustained grievous injuries, the alleged victim, in his statement made before the police, while claiming that he had been assaulted by dao, states that he, somehow, escaped and entered the informant's chamber. Far from asserting that he had sustained grievous injury, the alleged victim does not make feeblest of assertion that he had sustained any injury at all. Coupled with these, even the informant does not claim to be an eye witness to the alleged incident nor does he notwithstanding what he states in the FIR, asserts that he had found the alleged victim injured or noticed any injury on the person of the alleged victim. In the circumstances, such as the present one, there could have been no reasonable inference except the inference that the alleged victim had sustained no injuries at all. No wonder, therefore, that repeated attempts by the investigating agency to collect medical report from the hospital concerned yielded no fruitful result. When there is no material, in the case diary, giving even faintest of indication that there is a report available with the hospital concerned, but has not been produced by the investigating officer due to his own laches or otherwise, and when the informant also, in response to the notice, issued by the investigating officer with regard to the submission of 'final report' has not responded at all, there could have been no conclusion, capable of being described as a reasonable conclusion, other than the conclusion, that the alleged victim had sustained no injury at all. In such a scenario, one has no escape from further conclusion that there was no material whatsoever, in the case diary, enabling the learned court below to take cognizance of the offence under Section 326 IPC. One has to be conscious of the fact that the act of taking cognizance of an offence is an important act and cannot be done casually, for, the act of taking cognizance of offence under Section 190(1) of the Code, is an act, which would put in peril the liberty of an individual and, hence, cognizance of an offence cannot be taken on whims and caprice of any Presiding Officer of a court unless there is material prima facie reflecting the commission of acts or omissions, which would constitute the ingredients of the offence of which cognizance is taken.
20. Considered thus, there remains, as already pointed out above, no escape from the conclusion, other than the one, which I have reached above, that the cognizance of the offence, in the case at hand, under Section 326 IPC, is not only without any supporting materials, but, as a matter of fact, without any material at all. Taking of such cognizance cannot be sustained, for, sustaining of such cognizance would be nothing but abuse of the process of the Court and the High Court, in the light of the obligation imposed on it under Section 482 Cr.P.C., must step in so as to serve the ends of justice.
21. Turning to the question as to whether or not there was any material on record enabling the learned Court below to take cognizance of offence under Section 307 IPC, what attracts the eyes, most prominently is that there is no material, in the case diary, except what is alleged in the FIR that the alleged victim was assaulted. This apart, there is nothing in the case diary to show that but for the fact that the alleged victim had allegedly run away to the informant's chamber, his death would have imminent. In this regard, one can also not ignore the fact that while the victim claims to have escaped the attack and entered the informant's chamber, the informant does not support this assertion.
22. Coupled with the above, the informant does not even react to the notice given to him by the investigating officer as regards submission of the 'final report'. When these aspects of the case are taken into account it becomes clear that there was not even faintest of material on record giving indication that but for the fact that the alleged victim had run away from the blow of the dao dealt with by the accused persons, death would have ensued. Situated thus, one can have no option, which can be regarded as legally sustainable option, other than the option of holding that even for taking cognizance of an offence under Section 307 IPC, there was no tangible material at all available on record. Hence, the act of taking of cognizance of offence under Section 307 IPC on the basis of non-existent materials cannot but be termed as highly illegal and permitting such an order to remain on record would not only defeat the ends of justice, but also amount to abuse of the process of the Court if the accused, on the basis of cognizance so taken, are summoned to face trial.
23. Having decided as not sustainable the act of taking cognizance under Section 307 IPC and 326 IPC, I must, now, deal with the question as to whether the learned Court below could have taken cognizance of offences under Sections 448/352/34 IPC, whereunder the' final report' was submitted. Even with regard to the penal provisions of Section 448 IPC, what needs to be pointed out is that the entry of a student into his educational institution or entry of even guardian of a student to such an institution is not per se illegal and cannot, therefore, the very act of entry would constitute criminal trespass. In order to make such an act of criminal trespass, there has to be material, howsoever insignificant such material maybe, to show that the very entry was with intent to commit offence or to intimidate, insult or annoy any person in possession of such property. The informant, in the present case, had not seen any of the accused entering into his educational institution. This apart, he completely belies the assertion of the alleged victim that the latter had entered into the chamber of the former in order to escape the alleged attack on his person. In such circumstances, the 'police report' stating to the effect, inter alia, that there was no supporting material to sustain a case of criminal trespass could not have but been regarded as fit for being rejected outright.
24. As far as an offence under Section 352 IPC is concerned, the situation is not very much different. According to the alleged victim, there was, as least, one attempt of assault on him. However, what is of immence importance to note is that despite the fact that there were a number of persons, present as or near the place of occurrence, none of them came forward to support this assertion of the alleged victim. That apart, when this material infirmity in the alleged victim's statement is considered, in the light of the statement of the informant, one cannot ignore the fact that even the informant's statement belies the description. of the occurrence given by the alleged victim inasmuch as the victim claims that in order to escape from the hands of the accused, he had entered into the chamber of the informant. However, the informant does not support these assertions of the alleged victim; rather, the informant states that he had not seen the occurrence at all and that he had neither seen the victim nor the assailants.
25. Coupled with the above, it is worth pointing out that there is no legal impediment, on the part of a court, to take cognizance of an offence on the basis of the sole statement of a person, who claims to be the victim. What, however, must be borne in mind, while dealing with such a case, is that the witnesses, in general, fall under three distinct categories namely, (i) a wholly reliable witness, (ii) a wholly unreliable witness and (iii) a witness, who is neither wholly reliable nor wholly unreliable. If a witness is wholly reliable, conviction can be founded on the basis of the testimony of such a witness. When a witness is wholly unreliable, his evidence has to be naturally discarded completely, for, his whole testimony would be devoid of any trust and confidence. When, however, a witness falls in the middle category, i.e., when he is neither wholly reliable nor wholly unreliable, the testimony of the witness, who falls in this category, would need corroboration, direct or circumstantial.
26. In the present case, even though the victim claims that there was, at least, an attempt at assaulting him and even if this assertion is not rejected outright, the fact remains that the statements, collected by the police, wholly belies this assertion of the alleged victim. Thus, the victim's statement, having been vigorously shaken on being contradicted by the statements of the remaining witnesses, he (i.e., the victim) cannot be treated as a wholly reliable witness. The victim, in the context of the facts of the present case, would obviously fall in the category of those witnesses, who are regarded as neither wholly reliable nor wholly unreliable. Such a witness, as already indicated hereinabove, requires corroborration of his statement in order to enable the court to act upon his statement. In the case at hand, the alleged victim receives, as already indicated above, no such corroboration either direct or circumstantial. Though the test of reliability of a witness is a question to be considered at the trial, the fact of the matter remains that when the police had submitted, in its report, as already mentioned above, that there was no material to support the alleged victim's accusations, the taking of cognizance by the learned Court below must reveal that the learned Court below had some material to enable it to take cognizance of the offence.
27. The materials in the case diary, as discussed above, do not reveal anything to indicate that the present one was a case, wherein charge sheet ought to have been submitted under Section 352 IPC. In short, the police report, submitted to the effect that there was no sufficient materials to press the accusations under Section 352 IPC, cannot be said to be without any foundation. Hence, the conclusion reached by the investigating officer, as indicated above, as regards the insufficiency of materials for pressing the accusations under Section 352 IPC, cannot be said to be devoid of merit.
28. Besides what have been discussed above, what is of great relevance to note is that on the date on which cognizance was taken by the learned Chief Judicial Magistrate, Kamrup, the taking of cognizance, under Sections 448/352/34 IPC, was, for the reasons assigned hereinafter, stood barred by the provisions of Section 468 Cr.P.C.
29. An offence under Section 448 IPC is punishable with imprisonment for a term, which may extend to one year or with fine, which may extend to one thousand rupees, or with both and an offence under Section 352 IPC is punishable with imprisonment for a term, which may extend to three months, or with fine, which may extend to five hundred rupees, or with both.
30. It is Section 468 CrPC, which creates the bar in taking of cognizance after lapse of the prescribed period of limitation. For an offence, which ispunishable with imprisonment for a term, which may extend to one year, the period of limitation, in terms of Section 468(2)(b) is one year.
31. In the case at hand, since an offence under Section 448 IPC is punishable with imprisonment for a term, which may extend to one year, the period of limitation is obviously one year. Similarly, for an offence created by Section 352 IPC, the period of limitation remains one year. In both these cases, therefore, the taking of cognizance, after the prescribed period of limitation stood lapsed, was impermissible in law without extension of the period of limitation, which had barred the taking of the cognizance. Though, in an appropriate case, a Magistrate may, while dealing with any offence under the Indian Penal Code, condone delay even when there is no prayer for condonation made by the prosecution it is imperative that before the delay is condoned, a notice, in the light of the decision, in State of Himachal Pradesh v. Tara Dutt : 2000CriLJ485 , is given to the accused. This apart, the Court must be satisfied before condoning the delay, that the delay has been properly explained or that it is necessary so to do in the interest of justice. In the present case, the case diary does not reveal any deliberate or intentional delay, on the part of the investigating agency, nor is there any such material discernible from the case diary, which can be said to reflect that in the facts and attending circumstances of the present case, interest of justice demanded that the delay be condoned.
32. Above all, what cannot be ignored is that the alleged occurrence even if some aspects of the allegations made are true, relates youngsters studying in an educational institution. The incident took place almost about 10 years back. Article 21 of the Constitution makes expeditious disposal of a case an integral fact of a fair trial (See Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar reported in : 1979CriLJ1036 . In the backdrop of the fact that except when the delay is unavoidable, dragging of a criminal case is denial of a fair trial, when one considers the facts of the present case, which relate to some alleged acts and/or ommissions of some youngster studying in an educational institution, it is, in the considered opinion of this Court, too late, in the day, to serve notice to the accused and/or the informant permitting them to have their say in the matter of condonation of delay. This Court would have, perhaps, at this belated stage too, directed issuance of notices, but for the fact that even if the materials, in the case diary, remain what they are, it would be impossible to sustain accusations of criminal trespass and assault.
33. The present one, thus, becomes a fit case, which impels this Court to take resort to its powers under Section 482 Cr.P.C., for, the ends of justice, according to the firm view of the Court, would be served better if further progress of this case is put to an end.
34. Considering, therefore, the facts and circumstances of the matter, in their entirety, including the fact that the alleged incident involved students of an educational institution and the efforts of the Court should be directed towards reforming them, rather than making them face a criminal trial and punish them, this Court is of the view that it would be the interest of justice, if this Court stops and quashes the proceedings and put to an end the whole case.
35. Because of what have been discussed above, this criminal revision succeeds.
36. The impugned orders shall accordingly stand set aside and quashed.
37. The criminal case, in question, shall accordingly stand closed.