MUMAN KAMAL SABEDI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The facts giving rise to this reference broadly stated are that on account of some dispute in relation to a mosque in the village of Malipur in Kheralu Taluka District Mehsana between two sects of Muslims such as Shias and Sunnis on the evening of 214-69 the applicants and several others were said to have formed an unlawful assembly the common object whereof was to cause bodily injury to the members of Sunni sect of Muslims as also to set fire to their houses and then cause injuries to them. They were thus alleged to have committed various offences punishable under secs. 147 148 149 323 324 436 427 and 452 of the Indian Penal Code. The first information report received by the police disclosed the names of the present applicants amongst others as persons having committed the aforesaid offences. In the course of the investigation they were arrested by the police and before the investigation was over on 24-4-69 they were sent to custody of the Judicial Magistrate First Class at Kheralu. 2 Then on 2-6-69 the Divisional Police Inspector Mehsana sent a report to the learned Magistrate for releasing applicant No. 1 under sec. 169 of the Criminal Procedure Code inter alia stating that there was no such material as to justify him to send charge-sheet against him. Then on 4-6-69 a similar report was also sent requesting the learned Magistrate to release certain other persons who are applicants in the present proceeding. Both the reports were heard together. The learned Magistrate found that there is prima facie case against all of them and therefore passed an order saying that they cannot be released under sec. 169 of the Criminal Procedure Code. Both the reports were thus dismissed. Feeling dissatisfied with that order passed on 21st June 1969 by Mr. N. G. Butala Judicial Magistrate First Class Kheralu the accused preferred Criminal Revision Application No. 45 of 1969 in the Court of the Sessions Judge at Mehsana. The learned Sessions Judge found that the order passed by the learned Magistrate to dismiss the reports filed by the police officer was incorrect and that he cannot compel the police officer to send a charge-sheet against the applicants in view of a decision in the case of State of Gujarat v. Shah Lakhamshi Amarshi and another reported in VII G.L.R. p. 130 (F.B.). He therefore made a reference to this Court with a recommendation that the order passed by the learned Judicial Magistrate First Class Kheralu rejecting the reports of the police officer to take action under sec. 169 Criminal Procedure Code may be set aside and the learned Judicial Magistrate First Class Kheralu may be directed either to take action himself under sec. 190(i)(c) Criminal Procedure Code and release the accused on taking bond or call the applicants who are on bail and send them to the police officer conducting the investigation to take action under sec. 169 Criminal Procedure Code or such other order as this Court may deem fit to pass. It is that way that the reference has come before this Court. No one appears for the accused in the case. 3 The learned Magistrate appears to have gone through the papers relating to the case so far as applicants were concerned and in his view there is prima facie case to hold enquiry against them in respect of the offences disclosed against them. In that view of the matter the was justified in not accepting the reports of the police officer for releasing them in the case. He has however chosen to dismiss the reports and has given no further directions in the matter. The desire on the part of the learned Magistrate was to have an enquiry held against them in accordance with law and by dismissing the reports? he probably thought that the police officer in charge of the case would submit the charge-sheet against them under sec. 173 of the Criminal Procedure Code. Now it is clear as has been laid down by the Full Bench of the Court in the case of State of Gujarat v. Shah Lakhamshi Amarshi and another VII G.L.R. 130 that the learned Magistrate cannot 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 and that in such circumstances the Magistrate can certainly take cognizance of the offence under sec. 190(1)(c) of the Criminal Procedure Code and proceed with the matter in accordance with law. Sec. 190(1)(c) contemplates such an action being taken by a Magistrate even on suspicion that such offence has been committed. The learned Sessions Judge was therefore right in moving this Court for setting aside the order of dismissal of the reports of the learned Magistrate and instead of requiring the police officer to submit any charge-sheet against the same persons he should himself take cognizance of the case under sec. 190(1)(c) of the Criminal Procedure Code. 4 In this view of the matter it becomes unnecessary-to go into the invoking an order from the learned Magistrate under sec. 169 of the Criminal Procedure Code on the ground that that section would have no application to persons who have been already in the custody of the Judicial Magistrate and released on bail in respect therefore That question would have arisen if the learned Magistrate had agreed with the reports of the police officer requesting him to release the accused as sufficient evidence was not found against them to send the charge-sheet. Since the learned Sessions Judge thought this to be a question of some importance requiring to be dealt with by this Court we do so in brief Now the learned Sessions Judge was no doubt right in thinking that sec. 169 would have no application in a case of this type when the accused are in the custody of the Judicial Magistrate - The relevant sections may well be set out. Sec. 169 of the Criminal Procedure Code runs thus:- If upon an investigation under this Chapter. it appears to the officer in charge of the police-station or to the police officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate such officer shall if such person is in custody release him on his executing a bond with or without sureties as such officer may direct to appear if and when so required before a Magistrate empowered to take cognizance of the offence on a police-report and to try the accused or commit him for trial. The comes sec. 170(i) which says thus:- If upon an investigation under this Chapter it appears to the officer in charge of the police-station that there is sufficient evidence or reasonable ground as aforesaid such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police-report and to try the accused or commit him for trial or if the offence is bailable and the accused is able to give security shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. Then sec. 73(i) reads as under :- (i) Every investigation under this Chapter shall be completed without unnecessary delay and as soon as it is completed the officer in charge of the police station shall(a) forward to a Magistrate empowered to take cognizance of the offence of a police-report a report in the form prescribed by the State Government setting forth the names of the parties the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond and if so whether with or without sureties and (b) . . .

(2.) On a perusal of these provisions it appears clear in the first place that when the police officer finds that there is no sufficient evidence or reasonable ground of suspicion to justify forwarding of the accused to a Magistrate he would be entitled if such person is in custody to release him as provided therein. The custody referred to is the custody of the police and not of the Magistrate. It is further made clear by using words that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate This provision contained in sec. 169 cannot therefore help in a case where the accused is already forwarded to the Magistrate which can only be done much though the investigation is in progress and not finished provided there is reasonable ground of suspicion to justify the same. It is therefore clear that the police officer was wrong in invoking the aid of sec. 169 for having the accused released from the custody of the Magistrate on the ground that there was no sufficient evidence against them. So far the learned Sessions Judge appears to be quite in the right.

(3.) Then he says that there is no other provision under which the Magistrate can pass any order of discharging the accused even in the event of the police not finding sufficient evidence against them who are in the custody of the Magistrate. He thus felt that in absence of any provision touching such persons there would arise difficulty in passing the orders in respect of them. He has then made a reference to some observations made in the case of Raku and others v. Emperor A.I.R. 1921 Allahabad 278. In that case certain persons were arrested under sec. 54 of the Criminal Procedure Code in connection with a dacoity. Action was then taken under sec. 167 and they were lodged in the local jail under the warrant of a Magistrate - Before the investigation was completed and before any final report had been sent under sec. 173 the investigating police officer came to the conclusion that there was no sufficient evidence against the accused so far as the dacoity was concerned but he desired to institute proceedings against them under sec. 110 of the Criminal Procedure Code. A report substantially to that effect was submitted to jail. The Magistrate directed them to be retained in jail until the conclusion of another police enquiry with reference to their being proceeded against under sec. 110 Criminal Procedure Code. Subsequently information was laid before a Magistrate having jurisdiction under sec. 110 and an order was duly framed under sec. 112 and communicated to the persons concerned. On those facts it was held that the detention of the persons after the police had reported that there was not sufficient evidence against them as regards the arrest was illegal and that the Magistrate should have allowed the police to re-arrest the man under sec. 55 Criminal Procedure Code but the irregularity was cured when the accused persons came before the Magistrate subsequently and the Magistrate having jurisdiction to do so proceeded upon proper materials to pass the formal order under sec. 112 Criminal Procedure Code. In the course of the judgment it is observed as under:-