STATE OF GUJARAT Vs. SHAH LAKHAMSHI AMARSHI

JUDGEMENT

(1.) These Revision Applications raise an interesting question namely whether in a case where an investigating officer investigating into a cognizable offence has on completion of the investigation submitted a final report as distinguished from a charge-sheet under sec. 173 of the Code of Criminal Procedure requesting that A B or C Summary be issued the Magistrate can direct the Investigating Officer to submit a charge-sheet if he disagrees with the recommendation of the police and takes the view that the facts set out in the final report constitute an offence and there is a case for placing the accused on trial. the question is one of some importance since it is likely to arise frequently before Magistrates and that is why the Revision Applications have been referred to a Full Bench by Bakshi and Vakil JJ. before whom they originally came up for hearing. The facts of each revision application are different but it is not necessary to set them out in detail for the purpose of deciding the Revision Applications. It is sufficient to point out that in each case the police investigating the offence a cognizable one took the view on completion of the investigation that there was not sufficient evidence or reasonable ground of suspicion to justify putting up of the accused for trial and accordingly submitted a final report to the Magistrate asking for a B Summary to the effect that the case was maliciously false. The Magistrate on a consideration of the final report and other police papers did not agree with the recommendation of the police and declined to grant B Summary. The Magistrate took the view that the facts disclosed in the final report and the police papers constituted an offence and there was a case for putting up the accused on trial and he therefore directed tale police to submit a charge-sheet against the accused. This was the order passed by the Magistrate in each case and the State in the first case and the accused in the second thereupon preferred a Revision Application to the Sessions Court. The learned Sessions Judge in each case held following the decision of the Bombay High Court in State v. Murlidhar (1959) 61 Bom. L. R. 1656 that the Magistrate had power to call for a charge-sheet when he disagreed with the final report submitted by the police asking for A B or C Summary and the order of the Magistrate in each case directing the police to submit a charge-sheet was therefore a valid and legal order. The State in the first case and the accused in the second thereupon moved the High Court in revision and the Revision Applications in the first instance came up for hearing before a single Judge but having regard to the importance of the question involved the learned single Judge referred them to a Division Bench and that is how they ultimately came up before the Division Bench consisting of Bakshi and Vakil JJ. The decision in Murlidhars Case being a decision given by a Division Bench of the Bombay High Court prior to bifurcation Bakshi and Vakil JJ. would have ordinarily followed that decision but they found that there was considerable conflict of opinion amongst various High Courts on this point and there was a Full Bench decision of the Calcutta High Court in A. K. Roy v. State of West Bengal A. I R. 1962 Calcutta 133 where a directly contrary view was taken and they therefore referred the Revision Applications to a Full Bench so that the point may be reconsidered in the light of the Calcutta decision and the law may be authoritatively settled so far as this Court is concerned.

(2.) Mr. A. D. Desai learned Assistant Government Pleader appearing on behalf of the State in the first Revision Application and Mr. Syed learned advocate appearing on behalf of the petitioners in the second Revision Application pleaded for acceptance of the Calcutta view in A. R. Roys Case (supra) while Mr. Y. S. Mankad learned advocate appearing on behalf of the first opponent (complainant) in the first Revision Application supported the Bombay view in Murlidhars Case. The conflict was therefore mainly between these two decisions as to which of them represented the correct law but besides these two decisions several other decisions of various High Courts were also cited before us and we shall have to consider them. But before we refer to these decisions it would be desirable to examine the question on principle and to do that we must see what is the scheme of the Code relating to investigation of offences.

(3.) The provisions relating to the power of the police to investigate into offences and the procedure to be adopted by them are to be found in Chapter XIV which falls in Part V headed Information to the police and their powers to investigate. An Officer in charge of a police station may investigate into any cognizable offence without the order of a Magistrate [sec. 156(1)] but no police officer can investigate a non-cognizable case without an order from a Magistrate specified in sec. 155(2). Under sec. 156(3) any Magistrate empowered under sec. 190 may order the police to investigate into a cognizable case Sec. 157 prescribes the procedure to be followed where from information received or otherwise an officer in charge of a police-station has reason to suspect the commission of an offence which he is empowered under sec. 155 to investigate and declares that in such a case the officer must forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and proceed in person or depute one of his subordinate officers to investigate the facts and circumstances of the case and if necessary to take measures for the discovery And arrest of the offender except in the two cases set out in the provisions in which he need not proceed to investigate the case. The Magistrate on receiving the report under sec. 157 may direct an investigation or if he thinks fit at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in manner provided in the Code (sec. 159). The Magistrate can thus direct the police to make an investigation even if the officer in charge of the police station thinks that it is not worthwhile to investigate the case or that there is no sufficient ground for entering on an investigation. Sec. 164 empowers certain Magistrates to record statements or confessions in the course of the investigation and when a search is made by the Investigating Officer the record of the search is required to be sent to the nearest Magistrate empowered to take cognizance of the offence under sec. 165. If the investigation cannot be completed within twenty-four hours the Investigating Officer must send the accused forthwith to the nearest Judicial Magistrate together with a copy of the entries in the diary relating to the case and the Magistrate may in such a case whether or not he has jurisdiction to try the case authorize the detention of the accused in custody for a term not exceeding fifteen days (sec. 167). These provisions are clearly intended to secure that an investigation does take place into a reported offence and the investigation is carried out within the limits of the law without causing any harassment to the accused and is completed without unnecessary or undue delay. The manner and method of conducting the investigation are however left entirely to the police and the Magistrate has no power under any provision of the Code to interfere with the same.