Om Parkash and Others vs The State

Shamsher Bahadur, J.—This judgment will dispose of Criminal Revision No. 1284 of 1963 directed against the order of the learned Sessions Judge, Patiala, declining to make a reference to this Court for revensing the order of the Magistrate summoning Kuldip Singh approver after having recorded the entire prosecution evidence and Criminal Miscellaneous Application No. 1131 of 1963 made u/s 561-A of the Code of Criminal Procedure for quashing the criminal proceedings before the Committing Magistrate. In both petitions, the accused Om Parkash, Yash Pal, Brij Kishore and Roshan Lal are the Petitioners.

The Petitioners have been prosecuted under Sections 366/376 of the Indian Penal Code. Kuldip Singh, another accused person had been absconding and was arrested on 25th of August, 1963. Although the name of Kuldip Singh had been included in the police report u/s 173 of the Code of Criminal Procedure, it was not mentioned that he was to be made an approver. It is common ground that the case for the prosecution was closed on 29th of August, 1963 when the statements of the Petitioners were recorded u/s 342 of the Code of Criminal Procedure. The arguments were heard and the case was fixed for pronouncement of orders on 31st of August, 1963. What happened on 31st of August, 1963, has been made the subject-matter of the petition for revision. On that day, an application was filed on behalf of the prosecution that Kuldip Singh who was to be tendered pardon by the District Magistrate and this was actually done on 2nd of September, 1963, was prepared to make a statement as an approver. His statement u/s 164 of the Code of Criminal Procedure was recorded by a Magistrate on 3rd of September, 1963. As a result of the subsequent developments, the police submitted a supplementary report u/s 173 of the Code and it was prayed that Kuldip Singh''s statement should be recorded under Sub-section (2) of Section 337 of the Code. The learned Magistrate acceded to the request made by the police and directed that Kuldip Singh should be summoned as an approver and his statement u/s 337(2) of the Code recorded. From this order passed by the Magistrate on 19th of September, 1963, a petition for revision was preferred to the Sessions Judge, Patiala, who having declinde to make a recommendation to the High Court for its interference by his order of 24th of October, 1963, a petition for revision (Cr. R. 1284 of 1963) has been preferred.

Mr. Babu Ram Aggarwal, the learned Counsel for the Petitioners, contends that Section 173 of the Code envisages only one report which is the essential basis for investigation. It is submitted by him that the Magistrate having taken cognizance on a report u/s 173 is precluded from taking note of any supplementary report. Sub-section (1) of Section 173 provides that:

Every investigation under this Chapter shall be completed withou unnecessary delay, and, as soon as it is completed, the officer-in-charge of the police station shall-

(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report a report setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case...., and

(b) * * * * *

There is nothing in the language of this section to support the contention of the learned Counsel for the Petitioners that the investigation on which a Magistrate takes cognizance is full and complete. Indeed, there is authority for the proposition that the number of investigations into a crime that can be made by the police is not limited by law and that when one has been completed another can be made. In a Division Bench of the Madras High Court of Phillips and Krishnan JJ. in Divakar Singh v. A. Ramamurthi Naidu 19 Cri. LJ 901, it was observed thus:

Another contention is put forward that when a report of investigation has been sent in u/s 173 of the Code of Criminal Procedure the police has no further powers of investigation, but this argument may be briefly met by the remark that the number of investigations into a crime is not limited by law and that when one has been completed another may be begun on further information received.

To the same effect is the judgment of the Lahore High Court in Mohinder Singh v. Emperor 33 Cr. L.T. 97, in which Coldstream and Jai Lal JJ. held that even if it is assumed that an enquiry had commenced there was nothing in law against holding a fresh investigation, and the procedure adopted was not in any case illegal.

Indeed, if we advert to the provisions of Section 337 of the Code of Criminal Procedure, it becomes clear that the tender of pardon to an accomplice may be given at any time during the course of an enquiry or trial. Sub-section (1) of Section 337 says that:

In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to seven years.... any Magistrate of the first class may, at any stage of the investigation or enquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardou. to such person on condition of his making a full and true disclosure.

Sub-section (2) of Section 337 further provides that:

Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.

Sub-section (2A) further says that:

In every case where a person has accepted a tender of pardon and has been examined under Sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be.

The provisions of Section 337 thus leave no manner of doubt that an accomplice may be tendered pardon at any time of the enquiry, investigation or the trial of the offence and it is imperative that his statement is to be recorded and if believed in, a commitment must follow. The provisions of Section 173 are to be read in consonance with and not in derogation of the requirements of Section 337 and it is obvious that a harmonious construction is to be given to the two provisions of the Code. Section 173 cannot, therefore, be regarded as exhaustive in the sense in which Mr. Aggarwal has invited this Court to hold.

My attention has next been invited to Section 207-A of the Code in which the detailed procedure of the enquiry into cases triable by a Court of Session is set out. For one thing, it is clear that this section deals with an enquiry to which reference has been made so explicity, in Section 337. Now, all that Sub-section (6) of Section 207-A, on which reliance has been placed by Mr. Aggarwal, says is that:

When the evidence has been taken and the Magistrate has considered all the documents referred to in Section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him....such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.

This Sub-section cannot be taken to mean that the Magistrate has to restrict himself at the time of enquiry to the material and documents which form the subject-matter of the report u/s 173. A supplementary report can be submitted at any stage and an enquiry can be made into this additional material. The only authority on which Mr. Babu Ram could lay his hands for supporting his proposition is Kirpa and Another Vs. The State, a decision of Shri Chowdhry as Judicial Commissioner of Himachal Pradesh. What was discountenanced by the Judicial Commissioner in this case was the practice of submitting "a number of incomplete chalans before a complete chalan is forwarded to the Magistrate concerned and the Magistrate commencing the enquiry or trial on foot of the incomplete chalans". This, in my opinion, does not advance the proposition that the prosecution must be cribbed, cabined and confined within the four corners of the report u/s 173. There is no restriction placed by the Legislature on the reception of subsequent material before the conclusion of the enquiry or trial and in whatever perspective this matter is looked at the order passed by the Magistrate on 19th of September, 1963, has to be upheld. The petition for revision is, therefore, dismissed.

The application u/s 561-A of the Code of Criminal Procedure is without any merit. When the evidence of the approver is yet to be recorded, it cannot conceivably be urged that a decision for quashingg the proceedings should be given on the material so far existing on the record. The record is not complete inasmuch as the statement of the approver is yet to be recorded. The Magistrate after recording the evidence of the approver has to be satisfied that there are reasonable grounds for believing that the accused is guilty of the offence before committing him for trial to the Court of Session. The application u/s 561-A of the Code of Criminal Procedure is clearly misconceived and has to be dismissed.

In the result, both petitions would stand dismissed. The records should be forwarded to the committing Magistrate forthwith.