LALTA PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) THE revisionists were accused of having committed an of fence under section 4660 I.P.C. in respect of an incident that took place on 17th July, 1969. It appears that a final report ' was submitted by the police under section 169 read with section 173 of the Code of Criminal Procedure, 1898, on 23. 9. 69 and those of the accused persons, who had not earlier been released on bail, were also accordingly ordered to be relea sed on that date. Later, however, on 3rd February, 1971 a charge-sheet under sec tion 170 read with section 173 of the Code of Criminal Procedure was filed against w them in respect of the same offence. On these facts, the Magistrate by his order dated 30. 4. 73 held that it was not legally possible to prosecute the accused persons and, accordingly, dropped the proceedings. On a revision filed by the State, the Sessions Judge by his order dated 7th April, 1976, held that the dis charge of the accused persons by the Magistrate on the sole ground that a final report had earlier been submitted under section 169 Cr. P. C. in respect of the same accused was illegal. He, accord ingly, directed the case to be sent back to the Magistrate for further inquiry. THE petitioners, who are two of the accused persons, are aggrieved by this order of the Sessions Judge and it has been contended on their behalf that the order of the Magistrate was correct. Learned counsel for the applicants was unable to show any provision of the Code of the Criminal Procedure which may bar a second investigation. He has conentded that while the Code of Criminal Procedure, 1973, does contain a provi sion in section 173 (8) providing for further investigation in respect of an offence after a report under sub-section (3) has been forwarded to the Magistrate the old Code did not contain a corres ponding provision. It appears, however, that despite the absence of a provision in the old Code corresponding to sub section (8) of section 173 of the new Code, this Court had in Rama Shanker v. State of U.P.(A. I. R. 1956 Allahabab 525.) held that it was com petent to an investigating officer, either on his own initiative or under the direc tion of superior officers to submit a charge-sheet to replace a final report earlier submitted. This Division Bench decision of this Court has recently been followed by a Division Bench of the Kerala High Court in Inre-State of Prosecutor (1973 Crl. L. J. 1288). In Rama Shanker's case (supra) the act of the police officer in submitting a report under section 173 was held to be wholly administrative and, accordingly, it was open to the police officer to sub mit another report in supersession of an earlier one, although there was no express power mentioned in the Code in this behalf. Apparently, the principal laid down in section 21 of the General Clau ses Act, 1877, was applied. In the afore said Kerala decision of 1973 a number of decisions of the Madras, Lahore, Orissa and Patna High Courts have also been cited in support of the same view. THE Law Commission of India in their forty-first report have observed as follows, while recommending the enact ment sub-section (8) of this section : "A report under section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report, under section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that police officer can collect that evidence and send it to the Magistrate L A.I.R. 1956 Allahabad 525. concerned. It appears, "however, that courts have sometimes taken the nar row view that once a final report under section 173 has been sent, the police cannot touch the case again and reopen the investigation. This view places a hinderance in the way of the investigation agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies con cerning the fresh materials must of co urse be furnished to the accused." (Please see Chapter 14, paragraph 23 of the Report) THEse observations of the law Com mission show that it was only as a measure of abundant caution that the new sub-section (8) was inserted in the Code. In this view of the matter, the order of the Sessions Judge is clearly correct and the order of the Magistrate was illegal. In the result, the revision has no force and is hereby dismissed. Let the record be sent back to the Magistrate's Court at an early date so that this case may be decided without further delay.