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Mr. S.R. Brahmbhatt, J.—Rule. Shri Malulik Nanavati. Learned Additional Public Prosecutor appearing for the respondent Nos. 1 and 2 and Shri Arpit A. Kapadia, learned Advocate appearing for respondent No. 3 waives service of rule. Rule is fixed forthwith at the request of learned Advocates for the parties. The petitioner, informant in Crime Register No. 1-5 of 2010 registered with CID Crime (Economic Cell) Gandhinagar, has approached this Court under Article 226 of the Constitution of India challenging the order dated 16th April, 2010 passed by the Learned Chief Metropolitan Magistrate, Ahmedabad, acting upon the report submitted by the respondent No. 2 u/s 169 of the Code of Criminal Procedure, 1973 and ordering release of the respondent No. 3 on furnishing bail of Rs. 25, 000/- with one solvent surety and personal bond of like amount with a condition that as and when his presence is required before the Court, then he will have to remain present before the Court. This order was made on 16th April, 2010 below Exh. 1 in Summary Case No. 01/2010 in respect of Crime Register No. 5/2010 registered with CID Crime (Economic Cell) Gandhinagar, on the ground that the order is passed without jurisdiction and in a situation, which would not justify passing of the order and hence the same be quashed and set aside by issuing writ of ceitiorari or any other appropriate writ or order and has also prayed that the impugned order be stayed during pendency of the petition.
Facts in brief leading to filing of this petition deserve to be set out as under for the sake of convenience.
The petitioner, as it is stated in the petition happens to be an employee of a Company known as "Gaekwad Investment Corporation Private Limited", the said Company owned land bearing survey No. 49/3, final plot No. 113 of Town Planning Scheme No. 2 of Village Thaltej of District Ahmedabad, admeasuring J10105 sq. mtrs. On 18th July, 1991, a power of attorney was given by the Company to one person, who has been named as an accused No. 1 in the complaint. The said power of attorney was given for limited purpose of obtaining clearance permission etc. from the Competent Authority under the various acts including Urban Land Ceiling Act etc. The power of attorney got interpolated so as to confer power upon the accused No. 1 to sell the land in question. The letter was addressed to the accused No. 1 instructing him not to act on the basis of power of attorney and subsequently on 1. 12. 1994, the same came to be revoked. In the meantime, the accused No. 1 did not inform that on the basis of the power of attorney, any agreement for sale had been executed. In fact it was noticed that an agreement for sale, executed on the basis of the power of attorney by the said accused, no mention was made despite there being correspondence in the year of 1994 to 1998 between the parties. The petitioner further mentioned in his petition that there were some correspondence containing allegations against each other and the agreement to sale was also concocted as per the say of the petitioner, which was dated 26th August, 1991 and based there upon, a civil suit came to be instituted being Civil Suit No. 242 of 1998 for specific performance. Though, no interim relief was granted, the present respondent No. 3 on 24. 12. 2007 in the said suit, gave evidence under the power of attorney of one Shri Jayesh Dave that was on the strength of power of attorney dated 5. 3. 2009. The suit was decreed on 24. 12. 2007. The said decree and judgment came to be assailed in First Appeal No. 201 of 2008 by the Company. As per the say of the complainant, Division Bench of this Court allowed the said appeal vide its order dated 30th June, 2008. The judgment and decree of the Trial Court has been set aside. The matter was remanded to the Trial Court, with a direction to dispose of the suit in accordance with law after recording evidence of the parties. This Court observed that no satisfactory reasoning were assigned by the learned Trial Judge for disposing of the suit. The said suit is still pending on its remand. The petitioner lodged complaint alleging forgery of seven documents especially forgery of power of attorney dated 18. 7. 1991, agreement for sale dated 26. 8. 1991 and letter dated 23. 9. 1997. The said complaint came to be registered as Inquiry Case No. 41 of 2008 by the CID Crime (Economic Cell), Gandhinagar Police Station, Gandhinagar and during pendency of the said investigation, an application came to be filed in the suit for custody of the original documents for the purpose of opinion of handwriting expert. The Court vide its order dated 12. 11. 2009, the documents were handed over to the Investigating Officer as it is mentioned in the petition, the documents were referred to the FSL vide communication dated 29. 12. 2009, the FSL opined that the signature in the letter dated 23rd September, 1997 was not genuine and it was opined to be synthetic signature. The order of Trial Court dated 12. 11. 2009 came to be challenged by way of filing Special Civil Application No. 1243 of 2009, but the same came to be withdrawn later on. On the basis of this report and the preliminary investigation-inquiry, the concerned officer thought it fit to take out appropriate proceedings as the Additional Director General of Police was consulted, who approved the filing of first information report, whereon the FIR came to be registered being Crime Register No. 5 of 2010 and the investigation commenced. The respondent No. 3 came to be arrested on 17th March, 2010 and as the investigation could not be completed within 24 hours, the Learned Chief Metropolitan Magistrate, Ahmedabad on the production of the accused No. 3, remanded him to judicial custody in absence of any request for remand. The accused No. 3 moved bail application before the Learned Chief Metropolitan Magistrate, Ahmedabad, but, however, in view of the allegation of forgery, the same came to be withdrawn. The bail application came to be preferred being Criminal Misc. Application No. 947 of 2010 in the Court of Sessions Judge, Ahmedabad. The said bail application was fixed for hearing. As Some allegations were made against the Investigating Officer, he was changed and the investigation came to be entrusted to Respondent No. 2 as per the information of the petitioner, it came to be entrusted upon respondent No. 2 only on 29th March, 2010. When the bail application of the respondent No. 3 came up for hearing before the Sessions Court on 1. 4. 2010, the respondent No. 2 sought time stating that he had not been able to go through the investigation papers and, therefore, the matter was adjourned to 5. 4. 2010. The petitioner has made averments on Page-10 of the petition that the Investigating Officer on 2nd April, 2010, despite being Holiday, prepared report proposing filing of "C" Summary u/s 173 of the Code of Criminal Procedure and submitted it for approval of the Additional Director General of Police. As per the information of the petitioner, the said came to be approved on 4. 4. 2010 i. e. Sunday, the Investigating Officer prepared the report u/s 173 and Section 169 of the Code of Criminal Procedure. The petitioner has alleged in the petition that on 5th April, 2010, prior to the said report being submitted to the Learned Chief Metropolitan Magistrate, Ahmedabad, Investigating Officer declared before the Sessions Court, Ahmedabad at 11: 00 A. M. on 5. 4. 2010 that report u/s 169 has been filed and prayed before the Sessions Court at Ahmedabad that the accused be released in view of the said report u/s 169 of the Code of Criminal Procedure. The petitioner made necessary inquiries and came to know that the report was not filed at 11: 00 A. M., but was in fact filed at 12: 30, this fact was pointed out to the Learned Sessions Judge who defer the hearing of the bail application to 6. 4. 2010 and ultimately came to be adjourned to 7. 4. 2010. The Learned Sessions Judge on 7. 4. 2010 heard the application and rejected the same vide its order dated 8. 4. 2010. Copy of the same is placed on the record of this: petition. The bail application of the respondent No. 3 being Criminal Misc. Application No. 947 of 2010, thus came to be rejected. Ultimately on 8. 4. 2010 as per the information and averments made in the petition, respondent No. 3 has preferred Criminal Misc. Application No. 3697 of 2010 in this Court for bail, which is pending for hearing. As it is stated by the petitioner, the request of the Investigating Officer u/s 169 and the report u/s 173 were taken up for orders. The petitioner filed an affidavit in the form of protest petition. Copy of the same is placed on record of this Court. The Learned Magistrate, as per the say of the petitioner, took up hearing of Section 169 and deferred the orders on report u/s 173. The petitioner''s Advocate prayed before the Court that the order needs to be passed simultaneously on both the reports. However, as per the say of the petitioner, the report u/s 169 was taken up for hearing first. The Court ultimately passed the order, which is impugned in this petition under Article 226 of the Constitution of India.
Learned Counsel appearing for the petitioner contended that looking to the averments made in the memo of the petition in Paragraph-22, the involvement and role of respondent No. 3 surfaces in the offence alleged and registered. He has further submitted that the Learned Magistrate failed in appreciating the fact that document at Exh. 162 in Special Civil Suit No. 242 of 1998, purporting to be letter written by the Company to Shri Kantilal Ambalal Patel is also forged and fabricated document. The Learned Magistrate ought to have appreciated the fact that the opinion of the handwriting expert conclusively go to show the involvement of the present respondent No. 3. It was erroneous to say that as the document was forming part of the Court record and no criminal proceedings could be permitted u/s 340 of Code of Criminal Procedure, in view of the observation made by the apex Court in case of Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another, The fetter which is thought to be fetter is no more of fetter as the purport of the documents, the date of the documents and other things would go clearly to show that the Investigating Officer was not done his duty, the way he should done. The Learned Counsel for the petitioner further submitted that the Learned Magistrate ought to have appreciated the fact that the Division Bench of this Court has in terms deprecated the mode of disposing of the suit by the Civil Court in the proceedings of First Appeal preferred by the complainant. By way of amendment Ground 25(A) to 25 (E) have been taken in respect of the palpable irregularities noticed in disposing of the proceedings u/s 169 firstly and deferring the proceedings u/s 173 of the Code of Criminal Procedure. The Learned Counsel of the petitioner invited this Court''s attention to the scheme of the act and submitted that the scheme of the act did not permit such a recourse to the Investigating Officer especially when the respondent No. 3 had already been forwarded to the Learned Magistrate, who in turn had remanded him to the judicial custody as no remand was sought at the relevant time and who has been declared to be not involved in any offense by Investigating Officer on erroneous finding and belief and applicability of the principle of law, which are not applicable to the case at all and, hence, the entire proceedings smacks of malafide and unholy haste on the part of the Investigating Officer. Learned Counsel for the petitioner further submitted that the powers are vested on the concerned in charge police officer of the station for releasing the accused on personal bond during the investigation, when it appears to him that there are no sufficient reasons and ground indicative of accused being involved in non-bailable offence. The said power, therefore, cannot be read in the proceedings that have been undertaken u/s 173, when on the culmination of investigation, the Investigating Officer is filing his report as provided under Code Cr. P. C.
Learned Counsel for the petitioner further submitted that the Learned Magistrate ought to have appreciated the fact that the Sessions Court namely the Competent Court in exercising power u/s 439 of Cr. P. C. for granting bail, had not been impressed by the factum of filing of "C" Summary, which was in fact informed by the Investigating Officer right at 11: 00 O'' clock, than the Learned Magistrate could not have exercise Section 169 power, which are admittedly not powers available to Magistrate for releasing the accused, especially so when the superior Court had rejected the bail application, meaning thereby the factum of filing of "C" Summary was not considered so great circumstances as to warrant releasing of the accused on bail by the Sessions Court, then the Learned Magistrate Court without any change of circumstances and without applying its mind to the report u/s 173 could not have exercise the power, which ex-facie were not inuring in it, on the plain reading of Section 169 of the Code of Criminal Procedure.
The Learned Counsel for the petitioner submitted that the specific contention to this effect was raised by the Learned Advocate, who appeared on behalf of the complainant before the Learned Metropolitan Magistrate. Unfortunately, the same has not been dealt with as could be seen from the order impugned in this petition. In view of this, the order impugned being per-se illegal, without jurisdiction and, therefore, nullity in the eye of law, required to be quashed and set aside and the petition deserves to be allowed. The learned Counsel for the petitioner relying upon decision of the Apex Court in case of Brij Nandan Jaiswal Vs. Munna @ Munna Jaiswal and Another, submitted that the complainant can always questioned the order granting bail, if the said order is not validly passed. It is not as if once a bail is granted by any Court, the only way is to cancel on account of its misuse, orders granting bail could be assailed on merits and Court may examine its sustainability on merits.
Learned Additional Public Prosecutor appearing for the respondent No. 1 and 2 contended that the established practice indicates that, though strictly speaking as per the letter of the law in form of Section 169 would not indicate that the Court has any power to release the accused on execution of bond, but the said Section clearly envisages releasing of accused pending investigation, when during the course of investigation, Investigating Officer comes to form an opinion that no evidence or ground appears to be available for forwarding the accused to the Magistrate for trial. Now if that power is not with the Investigating Officer and when on the culmination of the investigation, a report is filed in form of "C" Summary, then the Police Officer well within his stead in making request to the Court for releasing the accused by exercising the power u/s 169 of the Code of Criminal Procedure, which is otherwise exercised by the Police Officer in charge of Investigation. Learned Additional Public Prosecutor contended that the practice of filing such final report and the request to the Learned Magistrate for exercising power u/s 169 is developed over the years and it has been duly taken note of by various Courts including this Court as could be seen from the decision of this Court in case of State of Gujarat Vs. Shah Lakhamshi Umarshi and Another, , wherein the full bench of this Court was faced with the question as to whether the Magistrate has power to direct the Investigating Officer to file charge-sheet when Investigating Officer has filed its report of no evidence u/s 169. Reference was made in view of two opposite views of Bombay High Court and Kolkatta High Court as discussed therein.
Learned Additional Public Prosecutor also, relying upon decision in case of Abhinandan Jha Vs. Dinesh Mishra reported in AIR 1986 SC 117 in support of his submissions that police submit report u/s 169, is not so alien as sought to be made out by the complainant and their Counsel. The Apex Court has also observed and taken note that in that case, once police submitted report u/s 169, that no case was made out for sending up accused for trial. The Magistrate had no power to call upon police to submit charge-sheet. Learned Additional Public Prosecutor also relying upon decision of the Apex Court in case of M.C. Mehta Vs. Union of India (UOI) and Others, and submitted that the Court has referring to the ratio laid down in case of Abhinandan Jha (Supra) in terms referred to the purport of Section 169 or u/s 170 of Code of Criminal Procedure, which would certainly not go to support the contention canvassed on behalf of the complainant that Section 169 powers and its exercise by Magistrate is alien to the Criminal jurisprudence.
Learned A. P. P. submitted that the plain reading of the Section as they are in the Code of Criminal Procedure are capable of being interpreted that the power of Section 169 is with the investigating officer only and Magistrate does not have that power, but looking to the development of practice over the years and the procedure adopted by Investigating Officers as well as the provisions of Gujarat Police Manual 1975, one can say that the police and investigating officer are well within their discretion to recommend release of the accused, when they come to conclusion based upon the investigation that the accused does not seem to be involved in non bailable offense. Thus even at the time of conclusion of the investigation, when summary is requested and accused is no more required in custody and he be requested to be released u/s 169 of Code of Criminal Procedure. Learned Additional Public Prosecutor further submitted that the order impugned in this proceedings strictly speaking, cannot be said to be an order made only u/s 169, but without prejudice to whatever stated and submitted by him herein above, that Investigating Officer as well as police have legitimate entitlement to recommend the release of accused, even u/s 169 in alternative, he submitted that the order and the operative part of the order impugned go to show that the Court has really exercised power u/s 437 of the Code of Criminal Procedure, it can well be said that there is no embargo upon Learned Magistrate to release the accused during or at any stage of the Trial, inquiry provided the terms and conditions mentioned therein are fulfilled.
Learned Counsel appearing for the respondent No. 3 submitted that this Court while examining the challenge to order impugned in this petition, may look into report u/s 173 and the background, in which the complaint came to be filed so as to see the culpability aspect while appreciating the justification in the order of releasing the respondent No. 3 on bail.
Learned Counsel appearing for the respondent No. 3 invited this Court''s attention to averments made in the affidavit and contended that there was a preliminary objection in preferring this proceedings as strictly speaking the writ petition could not be maintainable for challenging the order of Learned Magistrate, which is impugned in this petition and the only remedy is remedy u/s 397 of the Code of Criminal Procedure. When alternative remedy is provided, this Court may not exercise its jurisdiction under Article 226 of the Constitution of India. In support of his submissions, he relied upon decision of the Apex Court in case of State of Himachal Pradesh Vs. Shri Pirthi Chand and another, and submitted that in case of remedy available u/s 482, writ petition would not be maintained.
Relying upon decision in case of Mathew Areeparmatil and Others Vs. State of Bihar and Others, , submitted that the accused, when no action is taken for three years on FIR is required to be released forthwith u/s 169 of Code of Criminal Procedure. One more decision of the Apex Court in case of Ravikant Bhagoji Dhumal and Others Vs. State of Maharashtra, is relied upon by learned Counsel for the respondent No. 3 in support of his submissions that exercise of the powers by the Magistrate u/s 169 is not uncommon and is taken note of by the Court, as could be seen from the discretion in Paragraph-11 of the said judgment, wherein the Court has observed that Magistrate, accepting report u/s 169 would not amount to acquitting the accused so released.
Learned Counsel appearing for the respondent No. 3 red out a paragraph and observation of this Court in case of Aamer Yunus Bhavnagri Vs. State of Gujarat, reported in 2003 (1) GCD 251 (Guj) in respect of police filing report u/s 169 of the Code of Criminal Procedure and praying discharge of the accused and this Court deprecating the conduct of the police officer, in view of the reasons mentioned thereunder and submitted that the observations have not been approved by the Apex Court in case of Satish Sharma and Anr. Vs. State of Gujarat, reported in 2003 (1) G. L. H, 353, wherein the Apex Court has observed in Paragraph-3 that investigating agency filing a report u/s 169 of the Code of Criminal Procedure cannot be said to be an interference with administration of justice. Learned Counsel appearing for the respondent No. 3 relied upon the decision in case of Abdul Razak Abdul Gani Dunge Vs. State of Maharashtra & Ors., reported in 2008 Cri. L. 133 in support of his submissions that filing of report u/s 169 is not an uncommon phenomenal. Learned Counsel appearing for the respondent No. 3 also relied upon decision of the Apex Court in case of Abhinandan Jha (Supra) and another decision of the Apex Court in case of R. Sarala Vs. T.S. Velu and Others, and submitted that the Apex Court after taking into consideration the scheme of the act, came to the conclusion that the High Court was not justified in directing the final report to be taken back into filing a fresh report incorporating the opinion of public prosecutor. The learned Counsel for the respondent No. 3 also relied upon the observation of the Apex Court in case of M. C. Mehta (Taj Corridor) in support of his submissions for the order being passed u/s 169 of the Code of Criminal Procedure.
Learned Counsel appearing for the respondent No. 3, thereafter, contended on merits of the matter and submitted that the CID Crime had requested 16 original documents from Civil Court for sending them to FSL, which as permitted by the Concerned Court vide its order dated 12. 11. 2009 and as per the case of the prosecution in the FIR, one document i. e. Exh. 162 is forged and in that case also, it is stated that the signature on the said document is synthetic signature. It was further contended that the said document at Exh. 162 is produced by the accused No. 1 i. e. other then the present respondent No. 3 in the proceedings of Special Civil Suit No. 248 of 1998 and, therefore, no role could be said to have been attributed to the present respondent No. 3. The fact with regard to obtaining 16 documents and opinion with regard to only one being forged and silence with regard to remaining 15 documents also required to be viewed in its proper perspective. Learned Counsel for the respondent No. 3, while commenting upon the said document at Exh. 162 submitted that the said was photocopy and not original. In fact much reliance was placed upon these documents, when the decree came to be passed in Special Civil Suit No. 242 of 1998 on 24. 12. 2007 and, therefore. Division Bench of this Court vide its order dated 30th June, 2008 passed in First Appeal No. 201 of 2008 with First Appeal No. 2118 of 2008, remanded the matter back to the Trial Court.
Learned Counsel further submitted that as the FSL report was brought in an open paper and not in a sealed envelope, no reliance could be placed there upon. The learned Counsel drew this Court''s attention to the various transaction entered into by the complainant with various persons as averred in the memo of the petition and submitted that in fact this complainant is indulging in dubious activities in respect of said peace of land and looking to the contents of the Civil Suit and the development thereafter, would go to show that the matter does not fall under the purview of criminal law, no criminal activity can be attributed and "C" Summary is therefore filed by the Investigating Officer, which has been taken note of and the accused is released on bail, pending consideration thereon.
Learned Counsel submitted that the petitioner has not disclosed correct facts before the Court and, therefore, the petition warrants dismissal on this ground also. The factum with regard to petitioner''s various transactions in respect of this land parcel have not been placed on record and this being a material suppression of fact, the petition is required to be dismissed. Learned Counsel appearing for the respondent No. 3 further submitted that in the eventuality, if this Court is of the view that the order of learned Magistrate, impugned in this petition is sustainable, then the Court may not direct rearrest of the present respondent No. 3 as essentially the matter is that of civil nature and prosecution has yet to explain delay of about 18 years in filing the complaint. The absence of any justification in complaint for delay deals serious blow to the case of the complainant and it veracity. It was submitted that the case at the best is based upon documentary evidence and all documents are in the custody of Civil Court. The witnesses are mainly petitioner and its directors. It was further submitted that adjudication of "C" Summary is likely to take a long time and during that period, the respondent No. 3 would have to be in the custody, which would in now way serve the interest of justice. As against this, if the respondent No. 3 is permitted to remain on bail during consideration of "C" Summary report, then no prejudice is likely to be caused to the complainant and respondent No. 3 would be in position to leave a liberty without any fetters, which is otherwise also required to be observed in the interest of justice. Lastly, the learned Counsel appearing for the respondent No. 3 submitted that the learned A. P. P. has also indicated certain similar orders passed by the Learned Magistrate in the State on the strength of, there is a report submitted u/s 169 of the Code of Criminal Procedure. Therefore, he submitted that the petition deserves to be dismissed and in any case, if the Court is of the view that the order is unsustainable, then the accused respondent No. 3 may not be ordered to be rearrested as no useful purpose is likely to be served or he be rearrested and is remaining out of the custody, would in no way prejudice either the case of the prosecution or the complainant in any manner.
This Court has heard the learned Advocates for the parties and perused the order impugned.
Before adverting to the rival contention of the parties, it is most expedient to set out few indisputable aspects that have emerged from the material and rival submissions of learned Counsel for the parties.
(1) The complainant happens to be authorized signatory of "M/s. Gaekwad Investment Co. Private Limited" as he was conferred authorization to lodge complaint under the resolution of a Company dated 18. 5. 2005.
(2) The complainant has averred that he has been associated with the said Company since last 30 years.
(3) The complainant was constrained to present written complaint on 23rd July, 2008 to the Additional Director General of Police (CID) Crime Branch (Economic Cell), Gandhinagar.
(4) The said complaint was registered as Preliminary Application No. 41 of 2008.
(5) In the said complaint, the allegations were made against (1) Kantilal Ambalal Patel, resident of Vadodara (2) Jayesh Jagdish Chandra, resident of Vadodara (3) Arvindbhai Jani, Vadodara (present respondent No. 3)
(6) The allegation was that all the three accused in consultation with each other and as a part of conspiracy, misusing the power of attorney to accused No. 1 and for illegally misappropriating the property named in the complaint, forged agreement to sale in favour of accused No. 2 on 18th July, 1991 for selling the land on consideration of Rs. 21 Lacs, which came to the knowledge of the complainant and Company, when a civil suit came to be filed in the Court of Civil Judge, Senior Division, Ahmedabad being Civil Suit No. 242 of 1998 by accused No. 2, who was part of the conspiracy. In the said suit defendant No. 1 is shown to be Company and defendant No. 3 is shown to be accused No. 1. The power of attorney did not empower accused No. 1 to alienate the land in any manner and it was essentially granted for obtaining various permission for development from the concerned Government Authorities and Agencies.
(7) It is alleged in the complaint that present respondent No. 3 is knowing law and he is the main contributory in the proceedings alleged to have taken place herein above.
(8) The complainant has further alleged in his complaint that the administrator of the Company had intimated vide letter dated 21. 12. 1992 to accused No. 1 that there was an order of the Gujarat High Court and one litigation enjoining upon the Company not to alienate the property till further orders. It is further alleged in the written complaint that power of attorney in favour of accused No. 1 came to be revoked and canceled vide communication dated 1. 12. 1994.
(9) It is further alleged in the complaint that despite the aforesaid communication dated 1. 12. 1994, the accused indulged in illegal activities in respect of the said property. The revocation notice was required to be issued once again in daily newspaper "Gujarat Samachar" on 22nd April, 1998.
(10) The complainant has made further allegation in the complaint that the letter-pad of the Company was forged and signature of the Director was forged on the said letter and the same was produced in the suit being Civil Suit No. 242 of 1998, which came to be exhibited at Exh. 162. The complaint also contains narration with regard to consulting the FSL on this document. The complaint contains making of power of attorney and accused No. 2 assigning his right to accused No. 3 in respect of the said property.
(11) The said complaint was taken as first information report after preliminary inquiry was made in the written complaint as stated hereinabove, which came to be formally registered on 5. 3. 2010 at 16: 00 hours, which was actually based upon the inquiry, which was instituted by the CID Crime on written complaint of the complainant dated 23rd July, 2008.
(12) The power of attorney dated 18th July, 1991 forming part of the Civil Court proceedings being Exh. 169 and the Civil Court has not accepted in its judgment, the submissions made by the defense that in Clause No. 7 (II), the word "not" is replaced by word "also" on the reasoning that it did not appear to be so interpolated as alleged by the defense. It is also mentioned by the Court while discarding this contention of the defendant with regard to interpolation that, if such an offence was committed by the power of attorney holder, then the defendant No. 1 and 2 would have filed criminal complaint, but no complaint is filed from the dated of summons'' till the date of judgment. While examining this reasoning of the Trial Court''s judgment, impugned in the First Appeal being First Appeal No. 201 of 2008 with First Appeal No. 2118 of 2008, Division Bench of this Court in it order and judgment dated 30th June, 2008. observed as under: -
"It appears that to resolve this controversy and to arrive at right conclusion even regarding this aspect of the matter, the Learned Trial Judge should have recorded the evidence of the concerned party. On behalf of the appellant, it was submitted that Clause (II) of condition No. 7 was to the effect that "The said attorney is not authorized to execute any agreement/sale-deed or any other deeds or to make or agree to make any allotment to any person of any tenement in the said property, "but it was interpolated to read "the said attorney is also authorized to execute... "In the impugned judgment, the Ld. Trial Judge observed that if at all there be any interpolation in clause (ii) of condition No. 7 in the document, then the appellant would have initiated criminal action against Kantilal. We are not at all satisfied with the reasoning assigned by he Ld. Trial Judge in the impugned judgment while resolving such serious controversy. The Ld. Trial Judge should have taken into consideration that the so called agreement to sell the disputed property was entered into by Kantilal with respondent No. 1 herein i. e. original plaintiff-Jayesh Dave in the year 1991, but Jayesh Dave filed Special Civil Suit No. 242 of 1998 in the year 1998 seeking specific performance of the disputed agreement. The case of the appellant herein is this that only in the year 1998 the suit was filed, the Company came to know about the disputed agreement for sale and the interpolation made in condition No. 7 of the deed of power of attorney. Therefore, merely because during the pendency of said suit the appellant did not launch any criminal prosecution for interpolation against Kantilal, respondent No. 2 herein, it cannot be presumed that Kantilal was authorized dispose of the property by sale. It is further pertinent to note that neither original plaintiff Jayesh Dave entered into witness box nor original defendant No. 2 Kantilal- the so called power of attorney holder of appellant herein [original defendant No. 1] entered into witness box to prove the agreement for sale dated 26. 8. 1991. The Ld. Trial Judge further failed to consider that the amount of consideration in alleged agreement to sell dated 26. 8. 1991 for the entire disputed property was settled at Rs. 21 Lacs, but considering the letter correspondence produced, in the year 1995 the offer was approximately of Rs. 12 crores. We are, therefore, of the opinion that when the important issue regarding genuineness of certain terms and conditions contained in the deed of power of attorney is in dispute, which goes to the root of the authority of Kantilal to sell the property, the Ld. Trial Judge should have recorded the evidence of the parties and should not have disposed of the suit in the manner as it is done by the Ld. Trial Judge. "
(13) During the course of submissions, following dates have come on the record, which needs to be noted. The power of attorney holder, which is discussed hereinabove by the Civil Court as well as the Division Bench of this Court in First Appeal is said to have been executed on 18th July, 1991. The agreement to sale on the strength of this power is made by accused No. 1 i. e. power of attorney in favour of Jayesh Dave accused No. 2. The letter dated 21. 12. 1992, discussed hereinabove is in respect of High Court''s proceedings and stay by the High Court against alienation of any of the property. The power was revoked in the year 1994 by letter, which is referred hereinabove. The news paper advertisement was released on 22nd April, 1998. and on 11. 5. 1998, the accused No. 1 has addressed communication to the signatory to the Director of the Company with regard to the relationship and property in question, but that letter is not mentioning any agreement to sale. As the date appears on the said agreement to sale is 26th August, 1991. On the strength of this, it was submitted by the Counsel for the complainant that had this agreement to sale executed by accused No. 1 in favour of accused No. 2 on 26th August, 1991 based upon the power, which he hold, then certainly this agreement would have been reflected in the letter dated 11. 5. 1998.
(14) The accused No. 2 assigned his right under agreement to sale document dated 26. 8. 1991, in favour of the accused No. 3 by executing a deed of assigning of his rights under agreement to sale dated 26. 8. 1991 in favour of the respondent No. 3. This deed was executed on 5. 3. 2001 and on the very same day, accused No. 2 also made irrevocable power of attorney in favour of accused No. 3. wherein he empowered accused No. 3 to take up all the proceedings arising in respect of the said property. The said document i. e. the document under which the rights of accused No. 2 came to be assigned to accused No. 3 in respect of the agreement to sale dated 26. 8. 1991 contains averments that the right which inured accused No. 2 to purchase the property in question on consideration of Rs. 22 Lacs arising from the agreement to sale dated 26. 8. 1991 was thereunder transferred to accused No. 3 on profit of Rs. 1 Lac and has received Rs. 1 Lac to its consideration thereof.
(15) It has not been disputed by either party that in the said civil suit, being civil suit No. 242 of 1998 on the strength of this document respondent No. 3 represent the accused No. 2 and he gave deposition under the strength of this two documents, which are forming part of the record of investigation.
(16) Pursuant to the formal registration of the FIR, on 5. 3. 2010, based upon written complaint dated 23. 7. 2008, the respondent No. 3 came to be arrested on 17th March, 2010 by the concerned Investigating Officer.
(17) The investigation was going on and the petitioner had made averments in Paragraph-13 on page 9 that after arresting the accused No. 3 on 17th March, 2010 and he was remanded to the Judicial Custody as it transpired and has not been disputed by any one that no police custody was requested by way of remand application for custodial interrogation.
(18) The respondent No. 3 filed bail application before the Learned Magistrate, but the same came to be withdrawn. It is averred in Paragraph-13 in the petition and, which has not been controverted that another application for bail was preferred by accused No. 3 i. e. respondent No. 3 in the Court of Learned Magistrate at Ahmedabad being Criminal Misc. Application No. 947 of 2010, the said application was fixed for hearing. In the meantime, allegations came to be made against the concerned investigating officer, who are registered FIR. The investigation was entrusted to respondent No. 2 as per the averments made in Paragraph-13 of the petition and which has not been controverted. The investigation was entrusted to present respondent No. 2 on 29. 3. 2010. The petitioner has further stated in Paragraph-13 and 14 as under: -
Para-13: -
It seems that investigation was entrusted to the respondent No. 2 on 29. 3. 2010. When the bail application came up for hearing before the Sessions Court on 1. 4. 2010, the respondent No. 2 sought time stating that he has not been able to go through investigation papers. Accordingly, the matter was adjourned to 5. 4. 2010. The intervening three days were public holidays. However, it seems that on 2. 4. 2010, the Investigating Officer prepared a report proposing filing of "C" Summary u/s 173 of the Code of Criminal Procedure and submitted it for approval of the Additional Director General of police. It seems that the said report was approved by the Director General of Police and based on the said report, on 4. 4. 2010 (Sunday), the Investigating Officer prepared the report u/s 173 and Section 169 of the Cr. P. C.
Para-14: -
On the basis of the said report, on 5. 4. 2010, even before the said report could be submitted to the learned Chief Metropolitan Magistrate, Ahmedabad, the Investigating Officer declared before the Sessions Court at Ahmedabad at 11: 00 a. m. on 5. 4. 2010 that a report u/s 169 has been filed and prayed before the Sessions Court at Ahmedabad that the accused be released in view of the said; report u/s 169 of the Cr. P. C. A copy of the purshis given by the Investigating Officer on 5. 4. 2010 is annexed hereto and marked as Annexure - Q. However, upon inquiry,: the petitioner realized that the report was not filed at 11: 00 a. m., but was in fact filed at 12: 30 p. m.. This fact was pointed out to the learned Sessions Judge who deferred the hearing of the bail application to 6. 4. 2010. A copy of the report filed by the Investigating Officer u/s 169 of Cr. P. C. is annexed hereto and marked as Annexure-R. Thereafter the bail -application was adjourned to 7. 4. 2010. On 7. 4. 2010. the bail application was heard by the learned Sessions Judge and by an order passed on 8. 4. 2010. the said bail application came to be rejected. A copy of the order dated 8. 4. 2010 passed by the learned Sessions Judge in Criminal Misc. Application No. 947 of 2010 is annexed hereto and marked as Annexure-S.
(19) It is required to be noted these averments made by the petitioner have not been uncontroverted by any respondent. At this stage, Shri Arpit A. Kapadia. Advocate on record made a mention that the Investigating Officers are suppose to work 24 hours and 365 days in a year.
(20) The purshis, which is discussed hereinabove is filed on 5. 4. 2010 by the Investigating Officer. On this knowledge, the complainant approached the Learned Magistrate with appropriate affidavits.
(21) The Learned Chief Metropolitan Magistrate, Ahmedabad registered the Summary, which was filed in form of "C" Summary, requested "C" Summary orders to be registered as Summary Case No. 1 of 2010 and passed detail order of 14 pages noting the contention of the learned Advocate appearing for the complainant and passed order exercising his power u/s 169 of the Code of Criminal Procedure. Ordering reference to the respondent No. 3 on furnishing bail of Rs. 25, 000/-with one solvent surety and personal bond of like amount with condition that as and when his presence is required before the Court, then he will have to remain present before the Court.
(22) Against this order, the present petition is filed under Article 226 of the Constitution of India inter alia seeking writ of certiorari or any other appropriate writ for declaring that the order impugned is without jurisdiction, untenable and, therefore, requires to be quashed and set aside.
In view of the aforesaid backdrop of almost indisputable aspect, which have been emerged, this Court is to examine the position of law and rival contention of the parties.
Section 154 of Code of Criminal Procedure read as under: -
Section 154: Information in cognizable cases: -
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-Section (1) shall be given forthwith, free of cost, to the informant. (3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-Section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who. if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
Suffice it to say that that is the Section, which empowers the concerned Investigating Officer to record the information of cognizable offence and do the needful in this behalf.
Section 155 of the Code of Criminal Procedure read as under: ?
Section 155: Information as to non-cognizable cases and investigation of such cases.
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate.
(2) No Police Officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable the case shall be deemed to be a cognizable case not withstanding that the other offences are non-cognizable.
Section 155 provides for action to be taken upon the information as to non-cognizable cases and investigation. As per the said provision, the in charge of the police station on receipt of such information i. e. information as to non-cognizable cases has to entered or cause to be entered substance thereof in a book and refer the information to the Magistrate. The Police Officer is not to investigate the offence unless and until so ordered by the Magistrate as per Section 155(3) even investigation is carried on in respect of non-cognizable cases under the order of Magistrate, the Investigating Officer is to exercise powers except the power to arrest without warrant.
Section 156 read as under: -
Section 156: Police Officer''s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one, which such officer was not empowered under this Section to investigate.
(3) Any Magistrate empowered u/s 190 may order such an investigation as above mentioned.
Section 156 provides for an acknowledges power of any officer in charge of the police station to investigate the cognizable cases without any order of Magistrate and no proceedings of Police Officer I any such cases shall at any stage be called in question on the ground that the case was one, which was not required to be so investigated.
Section 157 read as under: -
Section 157: Procedure for investigation: ?
(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered u/s 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may by general order, prescribe in this behalf, to proceed, to the spot, to investigate circumstances of the case, and, if necessary to take measures for the discovery of he offender: ?
Provided that-
(a) When information as to the commission of any such offence is given against any person by name and: the case is not of a serious nature, the office in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) If it appears to the officer in charge of a police station that there is sufficient ground for entering off an investigation, he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso sub-Section (1), the officer in charge of: the police station shall state in his report his reasons for not fully complying with the requirements to that sub-Section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the information, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case of cause it to be investigated.
Under Section 157(1), the officer in charge of the police station when he has a reason to suspect commission of offence which he is empowered u/s 156 to investigate, he shall forthwith send a report of the same to a Magistrate to take cognizance of such offence upon a police report and shall proceed investigate facts and circumstances of the case and take measures for the discovery and arrest of the offender. The Proviso of Section 157 leaves discretion in the in charge of the police station in respect of the information as to the commission of any such offence given against any person by name and the case is not of a ser8ous nature, then he may not carry out investigation on the spot and as per 157(1)(B), when it appears to the officer in charge of the police station that there is no sufficient ground for entering on investigation he shall not investigate the case hod of sending report to the Magistrate u/s 157. At this stage, it is important to note that Section 156 of Code of Criminal Procedure recognizes police officer in charge of the police station has power to investigate cognizable case and Section 157 prescribes the procedure for investigation, which includes commencement of the investigation with a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report and if necessary take measures for the discovery and arrest of the offender. The proviso to Section 157 and envisages two situations mentioned thereunder and provides for making report of such usage of discretion u/s 157(2) to the Magistrate, which should contained reasons for not full complying with the requirement of Sub Section and in case if the decision is taken u/s 157 (1) (D) then he is under obligation to notify to the informant if any in such manner prescribed by the State Government the fact that he would not investigate the case or cause it would to be investigated. Section 158 I is in respect to the report how is submitted which provides that report are to be submitted through superior police officer if so appointed or directed by the State by special orders and such superior officer may give instruction to the in charge of the police station he thinks fit and after recording such instruction, transmit the same without delay to the Magistrate.
Sections 158 and 159 read as under: -
Section 158: Report how submitted: -
(1) Every report sent to a Magistrate u/s 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf.
(2) Such superior officer may give such instructions to the officer in charge or the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate.
Section 159: Power to hold investigation or preliminary inquiry.
Such Magistrate, on receiving such report, may direct an investigation, or, if he thinks fit, at once proceed of depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into or otherwise to dispose of, the case in the manner provided in this Code.
Thus the plain reading of Section 157 158 and 159 go to show that the officer in charge of the police station has discretion to start the instigation upon information which appears to him not to be of serous nature or not to start investigation at all in information where he finds no substance ground for entering into investigation. But when he form such an opinion u/s 157 (b) is under obligation to intimate the same to the informant that he would not investigate the case or cause it to be investigated the Police Officer at this stage informed the informant if any about his opinion of there being no sufficient ground for entering into investigation, and such information to the informant may give him goad him to avail the remedy if he is so advised. He has right to move appropriate authority is to be read into it. One more safe guard is provided in the form of submitting such report to the Magistrate through superior police who has to apply his mind to such a report and issue instruction and transmit it onwards to the Magistrate concerned and by Section 159 the Magistrate is fully empowered on receiving such report to direct investigation or if he thinks fit to depute Magistrate to proceed and hold preliminary inquiry or otherwise dispose of the case in a manner provided in this Code. At this stage it is required to be noted that in case police officer is forming opinion with regard to substance in information to start the investigation then Section 160 to 173 of chapter 12 of the code will come into play. Meaning thereby the exercise prior to power of Section 160 is also in knowledge of the Magistrate. In case the investigating officer is exercising power u/s 160 and on wards then 160 comes into play which is essentially for safe guarding the liberty of a person arrested pursuant to information.
The relevant part of Section 167 of the Code read as under: -
Section 167: Procedure when investigation cannot be completed in 24 hours.
Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom all accused person is forwarded under this Section may, whether he has or not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
[(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-
(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) Sixty days, where the investigation relates to any other offence, and on expiry of the said period of 90 days or 60 days as the case may be the accused person shall be released on bail if he is prepared to and thus furnish bail and every person released on bail under this sub-Section shall be deemed to be so released under the provision of chapter XXXIII for the purpose of that chapter.
(b) No Magistrate shall authorized detention in any custody under this Section unless the accused is produced before him.
(c) No Magistrate of the second class not specifically empowered in this behalf by the High Court shall authorized detention in the custody of the police.
Thus from the aforesaid provisions of Section 167, it can be said that when any person is arrested and detained in custody and it appear that the investigation cannot be completed within the period of 24 hours, fixed by Section 57 and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub inspector shall forthwith transmit to the nearest judicial Magistrate with copy of the entries in the diary, relating to the case and shall at the same time forward the accused to such Magistrate, the Magistrate in turn whether he has or has not jurisdiction to try the case, from time to time authorized the detention of the accused in such custody as such Magistrate thinks fit. A term not exceeding 15 days in the whole and if he has not jurisdiction to try the case or commit it for trial, and considers further detention unnecessary he may order the accused to be forwarded to the Magistrate having such jurisdiction provided that the Magistrate may authorized the detention of accused persons otherwise then in the custody of the police beyond the period of 15days if he satisfied that adequate ground exists for doing so. But even in such a case also the time limit is prescribed in appropriate case or as default being provided.
At this stage, relevant part of the provision of Section 437 read as under: ?
Section 437: When bail may be taken in case of non-bailable offence.
(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a (cognizable offence punishable with imprisonment of three years of more but not less then seven years).
Provided............
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, [the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail], or, at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided.
Sections 169 and 170 read as under: -
Section 169: Release of accused when evidence deficient.
"if, upon an investigation under this chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.
Section 170: Case to be sent to Magistrate when evidence is sufficient: ?
(1) if, upon an investigation under this chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
(2) When the officer in charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this Section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the manner of the charge against the accused.
(3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.
The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.
Relevant part of Section 173 of the Code of Criminal Procedure read as under: ?
(1) Every Investigation under this chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed the officer in charge of the police station shall forward to Magistrate empowered to take cognizance of the offence on police report, a report in the form prescribed by the State Government stating: -
(a) The names of the parties
(b) The nature of information
(c) The names of the persons, who appeared to be acquitted with a circumstances of the case
(d) Whether any offence appears to have been committed and if so by whom
(e)Whether the accused has been arrested
(f) Whether he has been released on his bond and if so, whether with or without sureties
(g) Whether he has been forward in custody u/s 170.
(ii) The office shall also communicate in such manner as may be prescribed by the State Government, the action taken by him to the person if any by whom the information relating to the commission of the offence was first given.
(3) Where a superior police officer has been appointed u/s 158, the report shall in any case in which, the State Government by general or special order so directs be submitted through the officer and he may pending the orders of the Magistrate direct the officer in charge of the police station to make further investigation.
(4) Whenever, it appears from the report forwarded under this Section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he things fit.
(4) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report.
(a) or documents or relevant extracts thereof on which the prosecution proposes to rely other then those already sent to the Magistrate during investigation.
(b) The statements recorded u/s 161 of all persons whom the prosecution proposes to examine as witnesses....
Thus from the aforesaid provisions in Cr. P. C, it can be said that the Investigating Officer is to conduct investigation in accordance with those provisions and as could be seen from the provisions of Section 157. He has a discretion to form initial opinion and even not to conduct investigation and make report accordingly to the Magistrate and Magistrate in turn as per Section 159 may order investigation or inquiry as he deems fit or close the case.
Plain reading of these Sections go to show that the Magistrate is to be informed at each stage of the investigation. The Section 57 of Cr. P. C. provides that a police officer making an arrest without warrant shall without unnecessarily delay and subject to the provision contain as to bail take or sent the person arrested before Magistrate having jurisdiction in the case or before the officer in charge of the police station.
Thus the conjoint reading of provisions of Sections 57, 154, 156, 157 and 158 go to show that on receipt of the information, the Police Officer has to form his opinion with regard to the substance of the information and act in accordance with those provisions. In case the Police Officer in charge of the police station, comes to the conclusion that the information indicating commission of offence which he is empowered to investigate u/s 156, then he has to commence investigation and send a report to the Magistrate that he is commencing investigation. In case, as per the provisions of Section 157 (a) and (b), the police officer forms different opinion then also he has to send a report to that effect to the concerned Magistrate to his superior. Thus a submission could be validly considered that the police officer has to come to a conscious conclusion on his preliminary examining the case before him as to whether there appears no sufficient evidence or reasonable grounds for suspecian justifying the forwarding of the accused to the Magistrate then such officer is to release the accused on accused executing the bond with or without surety as such officer may direct to appear if and when so required before a Magistrate empowered to take cognizance of the offence on a police report. In the same way, when upon investigation (within 24 hours) if an officer in charge of the police station forms opinion that there is sufficient evidence or reasonable ground for suspecting commission of offence and justification for forwarding the accused to the Magistrate then forward the accused under custody to Magistrate to take cognizance of the offence and if the offence is bailable and the accused is able to give security shall take security from him for his appearance before such Magistrate on a fix date and for his attendance from day to day before such Magistrate until otherwise is directed. Thus there could be a valid submission that the Section 169 and 170 have its play only within the 24 hours when police officer is receiving information and arresting accused and examining he information and initial evidence, but once he forms his opinion with regard to ground justifying forwarding the accused to Magistrate then if the offence lis non bailable then he has to forward the accused to the Magistrate as it is envisage u/s 167 of the Cr. P. C. and when Magistrate is to take production of the accused before him u/s 167 has the discretion as envisage u/s 167 either to remand him to police custody for further investigation if so requested by IO or to send him to judicial custody for the period mentioned thereunder.
The plain reading of Section 169 would not any way even remotely indicate that the Magistrate has any power to release the accused u/s 169 of the Cr. P. C. In fact once the Magistrate is exercising his power u/s 167 for sending the accused to judicial custody, then his role would come into play only when he is examining the report u/s 173 of the Cr. P. C. It is pertinent to note at this stage that plait reading of Section 169 and 170 of Cr. P. C do not envisage submission of any report by IO to Magistrate at all. The Section 173 is the only Section which envisages submissions of the report to the Magistrate and the report could be of any nature and on any points enumerated thereunder. Thus this proposition of law that the Magistrate did not have any power to release the accused on bail u/s 169 appears to be just and proper and in conformity with the scheme of the Cr. P. C. It is all the more so as the Section 170 itself provides for power of investigating officer to release accused on bail if the offence is bailable and accused is ready to furnish surety, though u/s 170 he is actually forming opinion with regard to there being some substance in the information and commission of offence justifying sending accused for trial. This proposition of law therefore appears to be a sound proposition of law and deserves approval. However, this Court in this case does not propose to render its final verdict upon the said proposition of law as the petition is also capable of being disposed of on examining the other aspect and challenges to the impugned order. The proposition as stated hereinabove also need not to be given finality at this stage as detailed and in depth analysis of relevant provisions and the administrative instruction in form of police manuals containing various instruction in this behalf would required close scrutiny. Therefore, this being not a fit case to go into this aspect at this stage. Suffice it to say that the proposition that Section 169 and 170 have play only during the 24 hours of the investigation and during the period when the accused has not been sent to the Magistrate u/s 167 needs no elaboration or approval at this stage, though the same appears to be just proper and in conformity with the provisions of Cr. P. C.
The aforesaid proposition is otherwise also right now required to be approved as the Apex Court has in many decisions made references to police officer''s report u/s 169 of Cr. P. C., though in none of the case cited at the bar by learned Advocate for the respondent No. 3 and learned APP, this proposition was subject matter of examination. However, as it is staged hereinabove, before approving the said proposition of law as a valid proposition it requires to be thoroughly analyzed in a proper case taking into consideration the purport of other connecting provisions and there effect upon the investigation and custody of the accused.
This brings the Court to consider as to, assuming for the sake of examining the challenge that the police officer was well within his power to submit 169 report along with report u/s 173, was the learned Metropolitan Magistrate justified in accepting the same and releasing the accused on bail without having recourse to the provisions of Section 437 of Cr. P. C. The answer would be emphatic "No" for the following reasons.
The peculiar facts and circumstances of this case go to show that the investigating officer initially after making preliminary inquiry, came to the conclusion that the first information report is required to be lodged. The complainant had in fact filed written complaint long before the first information report came to be lodge. The written information given by the complainant to the crime economic cell was merely registered as Preliminary Inquiry No. 41 of 2008 and thereafter obtaining some evidence and in consultation with superior police officer, it was decided to register offence u/s 154 and accordingly it came to be registered and accused No. 3 came to be arrested on 17th March, 2010. At that time within 24 hours of the arrest of the accused, the investigating officer did not think it fit to release him on his executing bond u/s 169 of Cr. P. C. and thought it rather fit to forward him to the learned concerned Magistrate as the investigation after lodging the FIR and arresting the accused could not have been said to be completed within 24 hours and accused was therefore after his arrest required to be produced before the concerned Magistrate. The concerned Magistrate also when accused respondent No. 3 came to be produced before him u/s 167. and when no remand was requested by Investigating Officer for his custodial interrogation, did not think it fit to release the accused on bail u/s 437 on a condition mentioned thereunder. Nor did the accused respondent No. 3 chose to press further his application for bail before the Magistrate u/s 437. Accordingly he was sent to judicial custody.
The Respondent No. 2 came into the charge of the investigation as per the allegation of the petitioner in Paragraph 13 of the petition and which has not been controverted by any respondent, only on 29. 3. 2010. The said IO who came into charge of the investigation only on 29th March, 2010, requested the Sessions Court who was hearing the bail application of the accused on 1. 4. 2010 that he needs to study the papers of investigation and, therefore matter be posted after some time, accordingly the matter was adjourned to 5. 4. 2010 and in the meantime, the IO respondent No. 2 hereinabove undertakes the entire exercise of perusing the investigation papers and forms his opinion and forward the same to the superior officer and after receiving his approval, prepares report u/s 173 as well as 169 for seeking "C" Summary and release of accused on bond pending investigation. The two report therefore can be said to be contrary to each other in as much as there ought to have been a clear stand by IO that as per his opinion, no case of sending accused to trial is made out and, therefore, "C" summary should be granted and accordingly accused be released. The Court hasten to add here that though learned APP has made attempt to say that report u/s 169 as well as 173 are to the same effect, but in my view strictly speaking the report u/s 169 was not called for at this stage, when the Learned Chief Metropolitan Magistrate was requested to examined Section 173 report and in which process a duty is cast upon the learned Magistrate to issue notice and hear the informant also as laid down by the Apex Court way back in case of Bhagwant Singh Vs. Commissioner of Police and Another, , which has subsequently been relied upon in many cases by the Apex Court. In case of UPSC Vs. S. Pappaiya reported in 1997 (Cr. Law Journal) 4636 (SC) the Court has reiterated the requirement of hearing the complainant informant when Section 173 report is under consideration by the Magistrate.
In the instant case as could be seen from the memo of the petition as well as the order impugned, when the serious allegations were made imputing unholy hast on the part of the IO in making report seeking "C" Summary, the learned Chief Judicial Magistrate who was under duty to hear the complainant on such report ought not to have deferred the hearing of the same and exercise power for releasing the accused u/s 169, which power is admittedly not vested in him. On plain reading of provisions of Section 169 of Cr. P. C. The Court hasten to add here that the present case is not the case where the accused applied for bail for being released when Section 169 report is filed pending consideration of Section 173 report nor is it a case wherein the Sessions Court being superior Court had been impressed by such development and had observed something, which might have been pressed into service, go in favor of the accused. Nor is it a case wherein the Sessions Court itself when being informed about Section 169 report of no evidence, exercise its power u/s 439 and released the accused on bail. In fact here it is contrary that Sessions Court did not released the accused on bail despite being informed that IO has filed report u/s 169 as well as 173 seeking release of the accused and seeking "C" Summary from the learned Chief Metropolitan Magistrate.
This Court is of the view that when the Learned Chief Metropolitan Magistrate was to consider report u/s 173 and when he had an obligation to hear the informant and when the informant''s right to challenge the bail orders on its own merits without it being assailed on those grounds which are available for cancellation of bail and when the IO in the initial stage after arresting the respondent No. 3 and while producing him before the concerned Magistrate, did not seek remand for custodial interrogation and when the concerned Magistrate also did not think it fit to release the accused on bail after taking into consideration the prevalent material and facts and circumstances of the case and when the accused respondent No. 3 also did not press into service his bail application and when the Sessions Court who had been apprised of the fact that IO has sought, "C" Summary and requested learned Chief Metropolitan Magistrate to release accused in exercise of the power u/s 169, and when the learned Chief Metropolitan Magistrate had not adverted to the report u/s 173 and formed any opinion with regard to its acceptability or otherwise and when he had not heard the informant upon the report of Section 173, then in my view he was not justified in releasing the accused on bail in purported exercise of his power u/s 169 of Cr. P. C. plain reading whereof does not warrants such exercise by Magistrate.
At this stage, when this Court has come to the conclusion that the Learned Chief Metropolitan Magistrate not been justified in exercising the power u/s 169 for releasing the accused respondent No. 3 on bail, in view of the aforesaid discussion then whether while quashing the said impugned order, it would be appropriate to order rearrest of the accused respondent No. 3 or to order direct him to surrender and seek appropriate order of bail in the appropriate provision of law or to pass any order which may serve the end of justice.
This Court is of the view that when the accused has in fact been released on bail by operation of the order impugned and when he has through his Advocate assured by way of affidavit that he is not in any manner likely to evade the Court''s process then, even while quashing and setting aside the impugned order, this Court is of the view that respondent No. 3 may not ordered to be rearrested or directed to surrender.
At the same time, it is also important to note that at present accused is on the bail on account of the order which is not found to be just and proper by this Court and on account of the order of bail, which is purely based upon the IO''s opinion in respect of the investigation and its outcome and when the report u/s 173 is yet to be examined by the concerned Magistrate after affording opportunity of being heard to the complainant then, the bail of respondent No. 3 cannot be permitted to be converted into bail pending trial, in case the Magistrate comes to conclusion for rejecting the report of IO and decides to take cognizance or to decide to order further investigation as envisage u/s 173(8) of Cr. P. C. Therefore, this Court is of the view that the respondent No. 3 is to make himself available and be amenable to the Court of the Magistrate who hears and decides the report u/s 173 so that in case if any of the eventuality of taking cognizance, or ordering further investigation he may be taken into custody and, thereafter he will have to seek bail on the merit of the matter only. At this stage, it would be also required to be noted that in case the Magistrate is of the opinion to accept the report as it is, then it goes without saying that the accused respondent No. 3 will not have to subject himself to any custody of course subject to any further proceedings that may be taken up by the petitioner on such order of acceptance.
This Court, therefore, is of the view that the petition deserves to be partly allowed, the order dated 16. 4. 2010 is quashed and set aside. However, as a result thereof, the respondent No. 3 will not have to be rearrested or committed to custody but he shall make himself amenable and be available before the concerned Magistrate when the report u/s 173 is being heard and Magistrate gives final verdict thereon. The observation hereinabove shall have no bearing upon the merit of the matter at any stage including the stage when the concerned would consider report u/s 173 of the Cr. P. C. Rule made absolute to the aforesaid extent.