ACHCHAN Vs. STATE OF U P

JUDGEMENT

(1.) This revision is directed against the order dated July 23, 1981, passed by the Chief Judicial Magis trate, Moradabad. 2. The facts giving rise to this revision can briefly be stated as under. On March 29, 1978, a communal riot took place in Qasba. Sambhal of district Moradabad. 97 persons were nominated as accused in that report and it was said that, besides them, there were 400 to 500 others. The first charge-sheet was submit ted by the police on May 25, 1978. The names of 24 accused were mentioned in column No. 3 of that charge-sheet. It may be mentioned here that column No. 3 is meant for mentioning the names of the accused against whom the challan is sub mitted and column No. 2 is meant to mention the names of those persons who are either absconding or against whom the investigation has not completed. On Au gust 3, 1978, all the accused mentioned in column 3 of this charge-sheet, except Tahir, Sheikh Kallu. Mohd. Islam, Aslam and Dilshad, were committed to the court of sessions. The case of the aforesaid five persons was separated. 3. Thereafter on August 10, 1978, Sheikh Kallu, Mohd. Islam and Aslam were also committed. Pilshad, who was not pre sent even when the aforesaid three persons were committed to the court of sessions, was sent up by a separate committal order dated November 8, 1978. Three separate session trials were thus registered and the learned counsel for the applicant informed that all of them are being jointly tried and further that four witnesses have already been examined there under and fifth witness is under examination. On January 28, 1980 the police submitted another charge-sheet against Sardar Ghoss, Ajaz Husain and Minzar Husain. They were committed to the court of sessions on February 21, 1980. This case has not been consolidated with the other Sessions Trial referred to above, and their trial could not even commence separately because the prosecution has not been able to ]ay its hands on the case diary. 4. On February 13, 1981 the police submitted yet another charge-sheet against Achchan, applicant No. 1, Kamil, appellant No. 2, Munna, Zubair, and Sahid besides those mentioned as absconded. It was re ceived in the court of the Chief Judicial Magistrate on March 3, 1981. The Chief Judicial Magistrate directed that the charge-sheet be registered and the accused be sum moned for March 31, 1981. In the present revision, we are concerned with this charge-sheet only. 5. The contentions raised by the learned counsel for the applicants can be enumerated as under;- 1. That a charge-sheet under Sec tion 173, Cr. P. C. can be submitted only after completion of the entire investigation and that it is not open to the police to submit charge-sheets in piece-meal. 2. That under Section 209 of the Code of Criminal Procedure it is the case that it is committed to the court of session and not the offenders. Since the Chief Judicial Magistrate had passed more than one committal order prior to February 13, 1981, it was not open to the police to submit a fresh charge-sheet nor was it open to the Chief Judicial Magistrate to act on it. 3. That Section 173 (8), Cr. P. C. permits further investigation of the case, but it should be before cognizance is taken of the case by any court. According to the learned counsel, after cognizance has been taken no further investigation can take place even under Section 173 (8), Cr. P. C. 4. That, in any case, the charge-sheet dated February 13, 1980 was not a valid charge-sheet because it was not based on any further investigation. 6. Before I may consider the aforesaid contentions raised by the learned counsel for the applicants, I may take notice of a preliminary objection that was raised on behalf of the State. It was pointed out that the present application has been filed on behalf of three persons, namely, Achchan, Kamil and Railly alias Iftekhar Husain. Railly has neither been arrested so far nor has he surrendered himself and, consequently, the application in so far as Railly is concerned is not maintainable. Learned counsel for the applicants has not been able to contro vert that neitner Railly has been arrested nor has been surrendered nor he is named in column 3 of the charge-sheet dated Febuary 13, 1981. However, besides Railly, there are two other applicants, namely, Achchan and Kamil. Consequently, the ap plication has to be considered and decided on merits. 7. Elaborating his first contention learned counsel for the applicants pointed out that sub-section (2) of Section 173 ex plicitly states that, as soon as investiga tion is completed, the officer incharge of the police station shall forward to Magistrate empowered to take cognizance of the off ence on a police report, a report to be sub mitted in the form prescribed by the State Government carrying all the details specified therein. Learned counsel stressed that it is thus a statutory requirement that a charge-sheet can be submitted only after the entire investigation is completed. Learned counsel pointed out that if this requirements con tained in sub-section (2) of Section 173, is ignored or held to be directory, the police may choose to submit a separate charge-sheet against each accused leading ro sepa rate trials and this will mean multiplicity of proceedings. Learned counsel added that eye-witnesses of the occurrence and other prosecution witnesses will have to be exa mined again and again in each case on ac count of multiplicity of proceedings which would cause harassment to them and un called for expenditure to the public exche quer. On this basis it was vehemently urg ed that this Court should conclude that the police can submit only one charge-sheet and that can be filed after completing the entire investigation in the case. It was urged that, if this contention finds favour with the Court it should further be held that the charge-sheet submitted cm February 13, 1981 against Achchan, and Kamil appli cants is not a valid charge-sheet. 8. I have given my careful thought to the contention raised, but I regret my inabi lity to accept the same. It is true that ac cording to sub-section (2) of Section 173, the requisite report is to be submitted after completion of investigation Let us, how ever, imagine a case in which the first in formation report nominates three or four persons and adds that besides them there were eight or ten other unknown persons and the police, despite due diligence, is not able to ascertain the identity of the- un known persons within a reasonable time. Should the police in such case withhold sub mission of the charge- sheet even against the nominated persons till they have succeeded or finally failed in finding out the other cul prits. This would lead to the charge-sheet against nominated accused being withheld for are indefinite time. It is well known that in criminal cases it is necessary that the case be sent up to the_ court at the earliest otherwise the interest of those persons who witness the commissioner of the crime is lessened and their enthusiasm to give evid ence, so that the culprit may be brought to book, starts vanishing. his can lead to miscarriage of justice. Further, it will also cause mental torture and harassment to the accused, if they have to wait for an inordi nately long time for the commencement of the trial against them. Let us also test the argument from another angle. Suppose in any case the police after investigation of a case, in which the offenders were not nomi nated in the report, is and to ascertain the in-entity of only three persons and submit the charge-sheet against them, but later on the police is able to find out two other per sons, who were privy to the commission of the crime and against whom the police ii able to find fool proof evidence. Should it mean that, since one charge-sheet had all ready been submitted;,t a point of time when the police did not know about the other two offenders, there is no remedy left for the prosecution to proceed against those offenders, if the argument of the learned counsel for the applicants is accepted, it would mean that there would be no remedy left against those two offenders and they would escape prosecution This would again result in miscarriage of justice. It is well established that a provision of law should be interpreted keeping in mind the purpose and 'he background in which it is enacted. Interpreted in that manner the words "as soon as it is completed" occurr ing in sub-section (2) on Section 173 can not be assigned the meaning which the learned counsel for the applicants wants the court to assign them. Those words should be liberally construed and it should be held that, if in a given case, the police, after investigating the matter for a reason able length of time, is able to complete the investigation with respect to a particular number of accused, it would be permissible to submit the charge-sheet as against them. Putting it differently, the words 'completion of investigation' should have some relation to the offenders. In this connection it can not be ignored that sub-section (8) of Sec tion 173 expressly permits further investiga tion and states that on completion thereof a further report or reports may be given hi the same form as provided in sub-section (2 ). If the intention of the legislature were that only one charge-sheet can be submitted in relation to an offence and that it can be done only after the entire investigation is completed, there could be no logic in the legislature inserting sub-section (8) in Sec tion 173 of the Code of Criminal. Procedure. The contention raised by the "learned coun sel for the applicants is, therefore, rejected. 9. Coming to the second, contention, learned counsel for the applicants urged that the relevant provision regarding commit ment in the Code of 1898 was contained in Section 207-A, Cr. P. C. and it spoke of the accused being committed to the court of Sessions. Learned counsel added that the position under the present Code has chang ed, for, Section 209, Code of Criminal Pro cedure of 1973, speaks of commitment of the case and not the commitment of the ac cused. On this basis learned counsel urged that, once the first commitment order was passed in this case, the whole case was com mitted to the court of session and that the case included not only the accused who had been sent up to stand their trial before the court of sessions but also those who had not till then been arrested nor has surrender ed. The argument, fails to hear any scru tiny. It is true that Section 209, Cr. P. C. speaks of the case being committed to the court of sessions and not accused. The word 'case' has, however, not been defined in the Code of Criminal Procedure. In or der to understand the meaning of the word 'case' as occurring in Section 209, Cr. P. C. we should examine the reference and the content in which it has been used. A care ful reading of Section 209, Cr. P. C. would show that an order of commitment can be passed by the Magistrate only when the ac cused appears or is brought before the Ma gistrate. Now. if the word 'case' is deemed to include not only the accused present be fore the court but also those who are not present before the committing court because of not having been arrested till then, it would run counter to the aforesaid word occurring in Section 209, Cr. P. C. There is authority for the view that a Magistrate can not commit a case to the court of session unless the accused appears or is brought before him. The word 'case' occurring in Section 209, Cr. P. C. , therefore, obviously means, the case as against the accused per sons before the court. 10. Learned counsel for the applicants urged that, in view of the provisions of Section 319, Cr. P. C. a court of session can take cognizance for trial even of person not sent up by the committing court and this should lead to the conclusion that it is the entire case that is committed to the court of session and that the court of session obtains jurisdiction not only with respect to the accused sent up by the committing court, and this should lead to the conclusion court, but also of such other accus ed, who were not arrested till then and, consequently, were not committed to the court of session. I am once again unable to agree. Section 319, Cr. P. C. is a special provision which provides that, if in the course of enquiry of trial it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court can proceed against such person also. The fact that the legislature has enacted Section 319, Cr. P. C. vesting the court with that power can cer tainly not lead to the conclusion that the order of commitment passed under Section 209, Cr. P. C. would include, not only the persons present before the committing court, but all others concerned in the commission of the crime whether arrested or not. The second contention raised by the learned counsel for the applicant is, therefore, re jected. 11. Coming to the third contention, learned counsel urged that further investigation un der sub-section (8) of Section 173, Cr. P. C. can be made only before cognizance of the case has been taken by a court. Learned counsel for the applicants pointed out that the Chief Judicial Magistrate had taken cog nizance of the case when the first charge-sheet was submitted and that the court of session even commenced trial in the three cases sent up earlier. Learned counsel added that, consequently, it was not open to the police to submit the charge-sheet dated Feb ruary 13, 1981, claiming that it was the re sult of any further investigation. In this connection it is sufficient to refer to the de cision of the Supreme Court in the case of Ram Lal Narang v. State (Delhi Admn.) A. I. R. 1979 S. C. 1791. In this case it was explicitly said that, notwithstanding that a Magistrate had taken cognizance of the offence upon a police re port submitted under Section 173, Cr. P. C. , the right of the police to further investiga tion is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. The contention raised by the learned counsel for the applicants, therefore, is wholly devoid of substance and is rejected. 12. Learned counsel then urged that in any case a fresh charge-sheet can be sub mitted only in consequence of some further investigation, learned counsel added that the charge-sheet dated February 13, 1981 is not the result of any further investigation and, consequently, it was not a valid charge-sheet. Now, the question whether any fur ther investigation did take place in between the submission of the previous charge-sheet and the charge-sheet dated February 13, 1981 is a matter of proof. It should not be presumed at this stage that, even though the entire material was available when the previous charge-sheet was submitted yet the police did not include in the charge-sheet the names of Achchan and Kamil applicants and waited till February 13, 1981 on which date they submitted fresh charge-sheet with out any further investigation. There is, however, material to show that some further investigation did take place before the charge-sheet dated February 13, 1981 was submitted. Learned counsel for the State in the first instance pointed out that neither Achchan nor Kamil could be arrested till the date on which the first charge-sheet was submitted. According to the learned coun sel for the State the interrogation of the accused is also a step in investigation and this step could not be completed because of the non-availability of Achchan and Kamil. Learned counsel for the State further urged that on his arrest Achchan applicant pleaded alibi and the police had to investigate that plea before submitting the charge-sheet. Learned counsel for the State strongly refut ed the submission made on behalf of the applicants that the charge-sheet dated Feb ruary 13, 1981 was submitted without any further investigation. I am in agreement with the learned counsel for the State. The contention raised by the learned counsel for the applicants is, accordingly, rejected. 13. For the reasons as aforesaid, I find that this revision has no force and must fail. 14. This revision, accordingly, fails and is hereby dismissed. .