RABARI KARSAN GOVE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) MR. Mehta has argued that the complaint lodged by this witness Ex. 49 is not admissible in evidence because it is hit by sec. 162 of the Code of Criminal Procedure. According to MR. Mehta information of a cognizable offence was given much earlier to the police. He has invited our attention in that behalf to the deposition of Batuksing Bavansing Police Station Officer in charge of Mehsana Taluka Police Station at the relevant time. He is P. W. 13 Ex. 29. His evidence discloses that he had received a telephonic message from Police Head Constable Prakash at about 1-25 p.m. informing him that a quarrel had taken place between Rabaris and the watchmen and that the Rabaris had run away after having assaulted the watchmen and that therefore the needful should be done. He did not record that message in the telephone register maintained by the Police Station. Therefore we really do not have before us the exact message which was received on telephone from Head Constable Prakash who was at Sobhasan. As soon as he received the telephonic message from Head Constable Prakash he did not record it in the telephone register of the Police Station but issued an order in writing to Head Constable Mahebub Pathan to proceed to village Sobhasan. At Ex. 30 is the written order which he issued to Head Constable Pathan. 2 It gives us an idea as to what information he had received. The order issued by him to Head Constable Pathan (Ex. 30) shows that a scuffle or Maramari had taken place between Rabaris and watchmen at Sobhasan and that the watchmen had suffered more injuries. It also shows that the Rabaris after having assaulted the watchmen had run away. The Police Station Officer therefore directed Mahebub Pathan to do the needful in the matter. MR. Shah has argued that the information received by the Police Station Officer Mehsana was not the information of a cognizable offence and that therefore it was no information at all which would render the complaint Ex. 49 inadmissible in evidence under sec. 162 Criminal Procedure Code. In order to convince us that the information which was given by Head Constable Prakash to the Police Station Officer Mehsana as disclosed by Ex. 20 is admissible in evidence MR. Mehta has invited our attention to sec. 320 I.P.C. According to him it was an information relating to grievous hurt and therefore that information was of a cognizable offence. Clause Eighthly of sec. 320 on which MR. Mehta has placed reliance provides as follows:-

(2.) IN SOMABHAI V. STATE OF GUJARAT A.I.R. 1975 SUPREME COURT 1453 the principle which has been laid down is that the first information is the earliest report made to the police officer with a view to his taking action in the matter. If the receipt of the information of an incident by the police requires the police to take an action in the matter or to investigate into it then certainly it becomes the information of a cognizable offence. IN the instant case the information which had reached Mehsana Police showed that some incident had taken place in which the deceased had become unconscious and which required police take action. We are therefore of the opinion that the information which was given by Head Constable Prakash to P. W. Batuksing was an information of a cognizable offence and therefore the first information within the meaning of sec. 154 Criminal Procedure code which led to action being taken by the Police. It was after this information was received that the complaint Ex. 49 was recorded by the police. Since the incident was reported to the police earlier than the complaint Ex. 49 was recorded and since the police had taken action in the matter any other information received by the police subsequently would be hit by sec. 162 Criminal Procedure Code. We are therefore of the opinion that the learned Trial Judge was in error in holding that the complaint Ex. 49 was not hit by sec. 162 Criminal Procedure Code and was admissible in evidence. IN our opinion since it was hit by sec. 162 Criminal Procedure Code it was inadmissible in evidence and could not have been exhibited by the learned Trial Judge. We have therefore ruled out of our consideration.