Achchan and Others vs State of U.P.

J.M.L. Sinha, J.—This revision is directed against the order dated 23rd July, 1981, passed by the Chief Judicial Magistrate, Moradabad.

The facts giving rise to this revision can briefly be stated as under:

On 29th of March, 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 submitted by the police on 25th of May, 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 submitted 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 23rd of August, 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.

Thereafter on 10th of August, 1978, Sheikh Kallu, Mohd. Islam and Aslam were also committed. Dilshad, who was not present even when the aforesaid three persons were committed to the court of sessions, was sent up by a separate committal order dated 8th November, 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 thereunder and fifth witness is under examination. On 28th of January, 1980 the police submitted another charge-sheet against Sardar, Ghoss, Ajaz Husain and Minzar Hussain. They were commit Led to the court of sessions on 21st of February, 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 lay its hands on the case diary.

On 13th of February, 1981 the police submitted yet another charge-sheet against Achchan, applicant No. 1, Kamil, applicant No. 2,, Munna, Zubair and Sahid besides those mentioned as absconded. It was received in the court of the Chief Judicial Magistrate on 3rd of March, 1981. The Chief Judicial Magistrate directed that the charge-sheet be registered and the accused be summoned for 31st of March, 1981. In the present revision, we arc concerned with this charge-sheet only.

The contentions raised by the learned Counsel for the applicants can be enumerated as under:

That a charge-sheet u/s 173, Code of Criminal Procedure can be submitted only after completion of the entire investigation and that it is not open to the police to submit charge-sheet in piece-meal.

That u/s 209 of the Code of Criminal Procedure It is the case that 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 13th of February, 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.

That section 173(8), Code of Criminal Procedure 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 u/s 173(8), Code of Criminal Procedure.

That, in any case, the charge-sheet dated 13th of February, 1980 was not a valid charge-sheet because it was not based on any further investigation.

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 controvert that neither Railly has been arrested nor has he surrendered nor he is named in column 3 of the charge-sheet dated 13th February, 1981. However, besides Railly, there are two other applicants, namely, Achchan and Kamil. Consequently, the application has to be considered and decided on merits.

Elaborating his first contention learned Counsel for the applicants pointed out that Sub-section (2) of section 173 explicitly states that that, as soon as investigation is completed, the officer in-charge of the police station shall forward to Magistrate empowered to take cognizance of the offence on a police report, a report to be submitted in the form prescribed by the State Government carrying all the details specified therein. Learned Counsel stressed that it is this a statutory requirement that a charge-sheet can be submitted only after the entire investigation is completed. Learned Counsel pointed out that if this requirement contained in Sub-section (2) of Section 173 is ignored or held to be directory, the police may chose: to submit a separate charge-sheet against each accused leading to separate 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 examined again and again in each case on account of multiplicity of proceedings which would cause harassment to them and uncalled for expenditure to the public exchequer. On this basis it was vehemently urged 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 on 13th of February, 1981 against Achchan and Kamil applicants is not a valid charge-sheet.

I have given my careful thought to the contention raised, but I regret my inability to accept the same, It is true that according to Sub-section (2) of section 173, the requisite report is to be submitted after completion of investigation. Let us, however, imagine a case in which the first information 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 unknown persons within a reasonable time. Should the police in such case withhold submission of the charge-sheet even against the nominated persons till they have succeeded or finally failed in finding out the other culprits. This would lead to the charge-sheet against nominated accused being withheld for an 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 commission of the crime is lessened and their enthusiasm to give evidence, so that the culprit may be brought to book, starts vanishing. This can lead to miscarriage of justice. Further, it well also cause mental torture and harassment to the accused, if they have to wait for an inordinately 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 nominated in the report, is able to ascertain the identity of only three persons and submits the charge-sheet against them, but later on the police is able to find out two other persons, who were privy to the commission of the crime and against whom the police is able to find foolproof evidence. Should it mean that, since one charge-sheet had already been submitted at a point of time when the police did not know about the other two offenders, where 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 the background in which it is enacted. Interpreted in that manner the words "as soon as it is completed" occurring in Sub-section (2) of section 173 cannot be assigned the meaning which the learned Counsel for the applicants wants the Court to assign them. Those words should be liberlly construed and it should be held that, if an a given case, the police, after investigating the matter for a reasonable 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 word "completion of investigation" should have some relation to the offenders. In this connection it cannot be ignored that Sub-section (8) of section 173 expressly permits further investigation and states that on completion thereof a further report or reports may be given in 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 Section 173 of the Code of Criminal Procedure. The contention raised by the learned Counsel for the applicants is, therefore, rejected.

Coming to the second contention, learned Counsel for the applicants urged that the relevant provision regarding commitment in the Code of 1898 was contained in Section 207-A, Code of Criminal Procedure and it spoke of the accused being committed to the court of sessions. Learned Counsel added that the position under the present Code has changed, for, Section 209, Code of Criminal Procedure of 1973, speaks of commitment of the case and not the commitment of the accused. On this basis learned Counsel urged that, once the first commitment order was passed in this case, the whole case was committed 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 had surrendered. The argument fails to bear any scrutiny. It is true that Section 209, Code of Criminal Procedure speaks of the case being committed to the court of sessions and not the accused. The word ''case'' has, however, not been defined in the Code of Criminal Procedure. In order to understand the meaning of the word ''case'' as occurring in Section 209, Code of Criminal Procedure we should examine the reference and the context in which it has been used. A careful reading of'' Section 209, Code of Criminal Procedure would show that an order of commitment can be passed by the Magistrate only when the accused appears or is brought before the Magistrate. Now, if the word ''case'' is deemed to include not only the accused present before 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, Code of Criminal Procedure. There is authority for the view that a Magistrate cannot commit a case to the court of session unless the accused appears or is brought before him. The word ''case'', occurring in Section 209, Code of Criminal Procedure, therefore, obviously means, the case as against the accused persons before the court.

Learned Counsel for the applicants urged that in view of the provisions of Section 319, Code of Criminal Procedure 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, but also of such other accused, 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, Code of Criminal Procedure is a special provision which provides that, if in the course of enquiry or 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, Code of Criminal Procedure vesting the court with that power can certainly not lead to the conclusion that the order of commitment passed u/s 209, Code of Criminal Procedure would include, not only the persons present before the committing court, but all other concerned in the commission of the crime whether arrested or not. The second contention raised by the learned Counsel for the applicant is, therefore, rejected.

Coming to the third contention, learned Counsel urged that further investigation under Sub-section (8) of Section 173, Code of Criminal Procedure 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 cognizance of the case when the first chargesheet 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 chargesheet dated 13th of February 1981, claiming that it was the result of any further investigation. In this connection it is sufficient to refer to the decision of the Supreme Court in the case of Ram Lal Narang Vs. State (Delhi Administration), . In this case it was explicitly said that, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted u/s 173, Code of Criminal Procedure the right of the police to further investigation 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.

Learned Counsel then urged that in any case a fresh charge-sheet can be submitted only in consequence of some further investigation. Learned Counsel added that the chargesheet dated 13th of February, 1981 is not the result of any further investigation and, consequently, it was not a valid charge-sheet. Now, the question whether any further investigation did take place in between the submission of the previous charge-sheet and the charge-sheet dated 13th February, 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 13th of February, 1981 on which date they submitted fresh charge-sheet without any further investigation. There is, however, material to show that some further investigation did take place before the charge-sheet dated 13th of February, 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 Counsel 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 refuted the submission made on behalf of the applicants that the charge-sheet dated 13th February, 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.

For the reasons as aforesaid, I find that this revision has no force and must fail.

This revision, accordingly, fails and is hereby dismissed.