VELINEDIPURNAM Vs. STATE

JUDGEMENT

(1.) This criminal petition is posted before us on a reference made by a learned single Judge.

(2.) This criminal petition turns on the true meaning and interpretation of sub-sections (2) and (5) of S. 173, Cr.P.C., viz., whether filing of incomplete charge-sheet within 60 days or 90 days as the case may be would enable the accused to seek for his release from custody. In view of conflicting decisions of this Court, this reference is made.

(3.) Before we answer the reference, it is pertinent to note some of the relevant provisions of the Code of Criminal Procedure - hereinafter called 'the Code'. Police Report is defined under Section 2(r) of the Code, as a report forwarded by a Police Officer to the Magistrate under sub-section (2) of S. 173. Section 173 deals with filing of report by a Police Officer on completion of investigation which is popularly called as filing of charge-sheet. Investigation is defined under S. 2(h) as including all proceedings for the collection of evidence conducted by a police officer or by any person who is authorized by a Magistrate in this behalf. Sub-section (2) of S. 173 prescribes what the report of a police officer should contain viz., names of parties, nature of information, names of persons acquainted with the facts of the case; whether any or by whom offence is committed; whether the accused is arrested; whether the accused is released on bail; and whether he has been forwarded in custody. Sub-section (5) contemplates that all documents or relevant extracts on which the prosecution proposes to rely and the statements recorded under S. 161 should be forwarded to the Court. Section 173 is relevant in the context of seeking bail under S. 167(2), since the sub-section mandates that when investigation is not completed within the period of 90 days where the investigation relates to an offence punishable with death or imprisonment for life, for 10 years or above and 60 days where investigation relates to other offences, the accused is entitled to seek for bail. Therefore, S. 167 prohibits custody of the accused more than 90 days or 60 days as the case may be for purposes of investigation. In view of the command of legislature under S. 167(2) investigation into the alleged offence should be completed within the prescribed period and filing of police report or charge-sheet under S. 173 is a proof positive of completion of the investigation. After the filing of police report the Magistrate takes cognizance of the offence under S. 190, Cr.P.C. The Magistrate can be said to have taken cognizance of the offence when he applies his mind for proceeding further with the case (D. Lakshminarayana v. V. Narayana, AIR 1976 SC 1672 : (1976 Cri LJ 1361). Section 41, Cr.P.C. enables the investigating officer to arrest the accused; while S. 57 empowers him to detain him in custody. The power of remand by the Magistrate under section 167(2) is intended to be exercised to enable collection of evidence during the process of investigation by the police officer. Section 156(1) vests in an offer in charge of the police station the power to investigate into any cognizable offence without the order of the Magistrate. The report under S. 173(2) is an intimation to the Magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and necessary information is being sent to it. The report under S. 173(2) is nothing more than an opinion of the police officer that, as far as he is concerned, he has been able to procure evidence during his investigation about the commission of the offence. The Magistrate may or may not accept the report as it is not binding on him. If the report discloses prima facie material that an offence has been committed and it should be inquired into the Magistrate may take cognizance of the same by proceeding further with the inquiry. Taking cognizance of an offence under S. 190, Cr.P.C. is a judicial act and therefore, application of mind is necessary. In other words, taking cognizance of the offence means judicial application of mind by the Magistrate to the facts mentioned in the police report for taking action there on. Therefore, if the report as filed by the police officer contains necessary particulars like the names of the accused, nature of the offence and upon a reading of the same if the Magistrate is able to come to a prima facie conclusion that the alleged offence requires to be inquired into, he will proced further in the matter.