Taj Singh Vs. State (Delhi Admn.) - Court Judgment

Jagdish Chandra, J.

1. In this application for the grant of bail for the petitioner Taj Singh in case FIR No. 196/86 under Ss. 307/302/34 IPC and Ss. 25/54/59 Arms Act of Police Station Narela the short question which calls for determination is as to whether investigation of the case would be said to be complete in terms of S. 173(2) of the Code of Criminal Procedure (for short the Code), when the Investigating Officer submitted the challan before the Magistrate on 27-1-87 (the 90th day in terms of the proviso (a)(i) to sub-section (2) of S. 167 of the Code) without appending thereto the report of the Central Forensic Science Laboratory, New Delhi (hereinafter to be referred to as CFSL) which report has been made admissible in evidence under S. 293 of the Code without the same being proved in the ordinary manner by the deposition of the expert making the same, in the witness-box.

2. Before embarking upon the decision of this legal point it would be desirable to point out a few dates germane to this case. The occurrence took place on 29-10-1986 and the petitioner Taj Singh was arrested as an accused on the next day, i.e. 30-10-86. The material exhibits, i.e. clothes and the knife were taken into possession by the police on 30-10-1986 and sent to CFSL on 1-1-1987 for opinion and report back to the Station House Officer of P.S. Narela and the same were dispatched by CFSL to Station House Officer, Narela vide communication dated 27-1-1987. It is not known whether it reached the Investigating Officer on that very day or on some subsequent date. It was, however, stated at the Bar by the learned counsel for the petitioner that the Investigating Officer though relied upon the report of CFSL, did not append the same with the charge-sheet while forwarding the charge-sheet to the Magistrate for taking cognizance of the offence under S. 190 of the Code. Whether the Investigating Officer had actually received or not the CFSL report when he forwarded the challan on the 90th day, i.e. 27-1-1987, the fact remains that the charge-sheet was complete minus the CFSL report.

3. Under the proviso to sub-section (2) of S. 167 of the Code the detention of an accused person in a case as the present one cannot be authorised by the magistrate beyond a total period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and on the expiry of the said period of 90 days the accused person must be released on bail if he is prepared to and does furnish bail. S. 167 of the Code embracing this provision of law is reproduced below :-'

'S. 167. Procedure when investigation cannot be completed in twenty-four hours -

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try this case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction :

Provided that -

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, -

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence,

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

(Explanation I.- for the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail)

(Explanation II).- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention. .....................................'

4. Thus, the investigation of such like offences must be completed by the police officer with in 90 days and if the challan is not filed before the expiry of 90 days or if an incomplete challan is filed before the expiry of the said period, the accused is entitled to be released on bail if he is prepared to and does furnish bail, and this provision of law regarding entitlement to bail is mandatory and does not admit of any exception except that he should be prepared to and does furnish bail.

5. We shall have to examine the definitions of the terms 'investigation' and 'police report' as given in sub-sections (h) and (r) respectively of S. 2 of the Code and these definitions are reproduced below :-

'(h) 'Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;

(r) 'police report' means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173.'

The challan and the police report are one and the same thing and so the filing of the challan by a police officer is the same thing as the forwarding of the police report to a Magistrate empowered to take cognizance of the offence on a police report. As the definition of 'police report' has an intimate reference to sub-section (2) of S. 173 of the Code this provision of law must be reproduced fully and it is set out as under :-

'S. 173. Report of police officer on completion of investigation. -

(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating -

(a) the names of the parties :

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond, and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under Section 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed under Section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate-shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report -

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statement recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient to do so, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate; a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).'

6. Reading together sub-sections (1) and (2) of S. 173 of the Code the stage and the point of tine at which the police report or the challan is to be filed before a Magistrate by the police officer is clearly made out in the sense that the police report or the challan is to be filed before a Magistrate as soon as the investigation of the offence is concluded. Sub-section (2)(i)(a) to (g) of S. 173 further details the requirements by way of particulars to be mentioned in police report. It would, thus, mean that when a police officer is able to complete his report by filling up therein the above mentioned particulars as required under sub-section (2)(i)(a) to (g), the investigation of the offence can be said to be complete because if the investigation is not complete he would not be able to make his report with the of aforesaid requisite particulars, and so that supplies to us the acid test for determining whether the investigation of the offence is complete or not. The relevant requirements would be the ones contemplated in Clauses (c) and (d) of Sub-section (2)(i) of Section 173 which pertain to the names of the persons who appear to be acquainted with the circumstances of the case and whether any offence appears to have been committed and, if so, by whom. When the Investigating Officer is ready with these requirements, the other requirements being not very difficult to know, the police report is complete as per its definition given in S. 2(r) as per sub-section (2) of S. 173 of the Code. The persons contemplated in Clause (c) of sub-section (2)(i) of S. 173 appear to be the witnesses of the occurrence or who are otherwise in the know of the facts of the case but do not appear to include an expert of CFSL or any other Government Scientific Expert mentioned in sub-section (4) of Section 293 of the Code whose reports have been made admissible under S. 293 by tendering the same in evidence without any formal proof thereof. The following are the Government Scientific Experts mentioned in sub-section (4) of S. 293 :-

'(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

(b) the Chief Inspector of Explosives;

(c) the Director of the Finger Print Bureau;

(d) the Director, Haffkeine Institute, Bombay;

(e) the Director, (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government.'

7. Even if the Investigating Officer had not received the report of the CFSL, so far as his job of collecting the evidence is concerned, that is over the moment he collects the material exhibits and dispatches the same for the opinion of the CFSL and this position remains unaltered even though he relies upon the CFSL report in his own report. In this view of the matter it will not be correct to say that the police report which did not include the CFSL report, would not be a complete police report as envisaged in sub-section (2) of S. 173 of the Code which is prepared and forwarded to the Magistrate only after the conclusion of the investigation.

8. For this view we find complete support from the Full Bench decision of the Punjab & Haryana High Court reported as State of Haryana v. Mehal Singh. AIR 1978 Punj & Har 341 : . No authority to the contrary was available nor cited by the learned counsel for the petitioner and whatever authorities were relied upon by the learned counsel for the petitioner had not decided this question. The authorities relied upon by him are Noor Mohd. v. State ILR (1978) 2 Delhi 442 : 1980 Cri LJ NOC 27, Raghubir Singh v. State of Bihar : 1987CriLJ157 , Natabar Parida v. State of Orissa, : AIR1975SC1465 , and Hari Chand v. State 2nd (1977) 2 Delhi 367 : (977 Cri LJ NOC 262. Much stress was, however, laid by the learned counsel for the petitioner on the last mentioned authority but the perusal thereof shows that even though there was mention of 'incomplete Challan' filed in the court, it was not pointed out in terms as to what was actually lacking therein and so even this authority is of no help in determining the question before us.

9. Then the learned counsel for the petitioner tried to seek assistance from the provision of law contained in sub-section (5) of S. 173 of the Code and contended that it was obligatory upon the Investigating Officer to forward to the Magistrate along with the police report the opinion of CFSL as the prosecution proposed to rely upon the same and consequently this omission made the challan incomplete when it was forwarded to the Magistrate to take cognizance of the offence. It may he necessary to reproduce sub-section (5) of S. 173 of the Code and the same is set out below :-

'(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report -

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.'

10. This contention does not appear to be correct for the reason that sub-section (5) of S. 173 appears to cast on the investigating officer only an additional duty of sending along with the report documents or extracts thereof on which the prosecution proposes to rely, and this additional duty cannot be construed as in any manner prejudicing the police report envisaged in sub-section (2) of S. 173, and this additional duty appears to have been necessitated to enable the Magistrate taking cognizance of the case to comply with the mandatory provision of law contained in S. 207 of the Code for the purpose of furnishing to the accused, free of cost a copy of such document. It would he instructive to set out S. 207 which reads as follows :-

'207. Supply to the accused of copy of police report and other documents - In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following :-

(i) the police report;

(ii) the first information report recorded under Section 154;

(iii) the statements recorded under sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witness, excluding there from any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of Section 173;

(iv) the confessions and statements, if any, recorded under Section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173 :

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in Clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused :

Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.'

11. The rigour of the contention raised by the learned counsel for the petitioner on the basis of sub-section (5) of S. 173 of the Code stands substantially impaired in the face of sub-section (7) of Section 173 which is reproduced below :-

'Where the police officer investigating the case finds it convenient to do so, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).'

12. The convenience of the Investigating Officer referred to in this provision of law pertaining to the furnishing of all or any of the documents to the accused whittles down the mandatory nature of sub-section (5) of S. 173 of the Code and for that reason the contention of the learned counsel for the petitioner referred to above loses force.

13. So, for the aforesaid reasons, the challan submitted before the Magistrate by the Investigating Officer cannot be said to be in complete and was rather complete in terms of sub-section (2) of S. 173 of the Code, on the 90th day, the petitioner did not become entitled to the grant of bail in view of the proviso (a)(i) of sub-section (2) of S. 173 of the Code.

14. No other point for the grant of bail was urged on behalf of the petitioner and consequently in view of the above discussion the petition for the grant of bail is dismissed.

15. Order accordingly.