VIHABHAI RAMDAS PATEL Vs. HEMTUJI SHIVAJI DABHI

JUDGEMENT

(1.) Opponent No. 1 Hemtuji Shivaji Dabhi against whom a first information report has been lodged stating that he had given dagger blow to one Gopalbhai Ramdas at about 9-15 a.m. on 29-5-83 at village Zulasan is released on bail by the learned Sessions Judge Mehsana by his judgment and order dated 29-8-83 solely on tie ground that the investigating officer had submitted interim charge-sheet and there is no provision in the Criminal Procedure Code for submission of interim charge-sheet.

(2.) The learned Advocates appearing on behalf of the applicant (brother of the deceased) and on behalf of opponent No. 2 submitted that the view taken by the learned Sessions Judge is on the face of it illegal. It was their submission that there is no question of submitting interim charge-sheet in the present case merely because along with the charge-sheet report of the Chemical Analyser was not annexed. As the investigating officer was awaiting the said report he had submitted a charge-sheet under sec. 173(4) along with the documents which are required to be submitted as prescribed under sec. 173(5). This submission of the learned Advocates in my view is correct. The learned Sessions Judge has committed an error of law by holding that merely because the Chemical Analysers report was not annexed with the charge-sheet it would amount to an interim charge-sheet.

(3.) Under sec. 173(2) of the Criminal Procedure Code the investigating officer is required to submit report in the prescribed form and the details are to be mentioned as specified in sec. 173(2) which would include whether in his opinion any offence appears to have been committed and if committed by whom it is committed. Sub-sec. (5) of sec. 173 prescribes that along with the said report all documents or relevant extracts thereof on which prosecution proposes to rely other than those already sent to the Magistrate during investigation and the statements recorded under sec. 161 of all the persons whom the prosecution proposes to examine as its witnesses are required to be forwarded to the Magistrate. The learned Advocate appearing on behalf of opponent No. 1 accused submitted that in view of this sub-sec. (5) the investigating officer was required to submit the Chemical Analysers report along with it because the prosecution proposes to rely upon the said report and as the said report was not submitted the charge-sheet cannot be said to be complete. He relied upon the decision in the case of SATYA NARAIN V. STATE OF BIHAR REPORTED IN A.I.R. 1980 S.C. 506. In the said case after receiving the report under sec. 173 of the Criminal Procedure Code the Sub-Divisional Magistrate took cognizance of the offence and transferred the case for disposal to Munsif Magistrate First Class. The Munsif Magistrate recorded the evidence of P.W. 1 Mahesh Kant Jha and on perusal of the evidence he was of the opinion that other two persons who were not disclosed in police report as accused were also involved in the commission of the offence and hence he took cognizance against them and directed the trial to commence de novo. That order was challenged before the Patna High Court and the Division Bench rejected the application by holding that on the facts found in the case there arose no doubt because sec. 11 of the Act (Essential Commodities Act) was fully complied with before taking cognizance. In the said case a contention was raised that before taking cognizance of the case the Court can rely upon the report submitted under sec. 173(5) of the Criminal Procedure Code and Court has no jurisdiction to take into consideration the documents or statements submitted under sec. 173(1) of the Criminal Procedure Code. Negativing the said contention the Supreme Court held that the report as envisaged by sec. 173(2) has to be accompanied as required by sub-sec. (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by sub-sec. (2) from its accompaniments which are required to be submitted under sub-sec. (5). The Court has further held that if the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence it would be sufficient compliance and the details which would be necessary to be proved to bring home the guilt to the accused would emerge at a later stage when after notice to the accused a charge is framed against him. The relevant discussion on this point is as under: