KRISHAN Vs. RAJA

JUDGEMENT

(1.) THE petitioner has moved the present petition u/s 439(2), Cr.P.C. for cancellation of bail of respondents 1 to 12 granted by the J.M.I.C. Karnal, u/s 167(2), Cr.P.C. in FIR No. 293 dated 11.9.1998 u/ss 148/149/302, IPC, Police Station Nissing.

(2.) THE brief facts can be noticed in the following manner :- The aforesaid FIR was registered against as many as 16 persons. The case was investigated by the police and during the course of investigation, 8 persons were arrested on 21.9.1998. Finally, the report u/s 173, Cr.P.C. was submitted in the court of the Area Magistrate on 15.12.1998 and the State desired to prosecute Raja, who was one of the 16 accused named in the FIR and two others; namely, Jagat Ram and Pardeep. Meaning thereby, that 15 persons out of 16 persons originally named were found innocent. The report u/s 173 along with the discharge application of the police came up for hearing before the learned Magistrate on 24.12.1998 and vide the impugned order, Annexure P-1 dated 24.12.1998, the learned Magistrate made the observations that the report u/s 167(2), Cr.P.C. which was moved by the D.S.P. is not in consonance with the provisions of Section 173, Cr.P.C. because it has not been filed by the Incharge of the concerned Police Station. Considering the fact that eight accused were in custody as on 24.12.1998 and who were arrested on 21.9.1998, they were released on bail u/s 167(2), Cr.P.C., keeping in view the fact that no legal and valid report u/s 178, Cr.P.C. was filed against them. Aggrieved by the above findings of the learned Magistrate, the present petition filed by the petitioner seeking quashment of the order dated 24.12.1998.

(3.) THE learned counsel for the petitioner submits that the trial Magistrate committed a patent illegality by interpreting the provisions of section 173, Cr.P.C. when he has not taken note of the provisions of section 36 of the said Code. Mr. Malik submitted that as per section 173(2), Cr.P.C., "As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report." The counsel, then, submitted that by virtue of the provisions of section 36, Cr.P.C., as contained in Chapter-IV, the police officers superior in rank to an officer in charge of police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. In other words, a DSP or any officer even above the rank of a DSP had the power to submit the report u/s 173 Cr.P.C.