Tarab Ali Khan vs State

Anil K. Sen, J.—In this revisional application twenty one Petitioners, who are on trial before the learned Sessions Judge, Midnapore, on a charge u/s 395 of the Indian Penal Code, are praying for an order quashing the said proceedings.

On June 16, 1970, one Liaquat Ali lodged an information at the Bhagwanpur P.S. to the effect that on that day the present Petitioner along with others led a raid in the house of Kader Mallick at about 1 p.m. and looted away cash, ornaments, woodframes, cement, paddy and other articles. At the time of such looting Kader''s wife Jayada Bibi was at home and there was no male member of the house present.

Investigation was taken up by the Police. Such an investigation had a chequered career and it changed hands under circumstances reference to which would be wholly unnecessary for our present purposes. It is, however, not disputed that ultimately investigation was completed by one Sri N.L. Ghosh, a Sub-Inspector, Contai Police (Crime), who on December 11, 1971, submitted a charge-sheet under Sections 395/397, Indian Penal Code, against the Petitioner and others.

By an order dated January 20, 1975, the learned Committing Magistrate committed all the Petitioners along with others to the Court of Sessions and the learned Sessions Judge on May 8, 1975, on consideration of materials on record framed a charge u/s 395 of the Indian Penal Code and fixed the trial in September 1975.

On September 9, 1975, the Petitioners moved the aforesaid revisional application and obtained the above Rule. Though in the revisional application various grounds were raised in support of the relief claimed, Mr. Moitra appearing in support of this Rule has pressed only two. The rest he has frankly conceded cannot successfully be raised on the materials now before this Court and at this stage of the trial. The first point raised by Mr. Moitra is to the effect that the charge-sheet in the present case not having been submitted by the Officer-in-Charge of Bhagwanpur P.S. but by the Investigating Officer who even does not belong to that Police Station, it was not a report within the meaning of Section 173(1)(a) of the Code of Criminal Procedure and the learned Magistrate could neither lawfully take cognizance of the offence on such a report nor could commit the Petitioners to the Court of Sessions to take their trial on the basis thereof. According to Mr. Moitra, the order of commitment being bad in law, the consequent proceeding is liable to be quashed. Secondly, it had been contended by Mr. Moitra that the Investigating Officer did not apply his mind and did not satisfy himself as to whether any offence had at all been made out as against the Petitioners when he mechanically submitted the charge-sheet not even setting forth the facts constituting the offence. He has, therefore, contended that all consequent proceedings based on such a charge-sheet is not sustainable in law.

Mr. Roy, appearing on behalf of the State, has contested both the points so raised by Mr. Moitra. According to Mr. Roy, the report submitted by the Investigating Officer on completion of an investigation under chap. 14 of the Code is nevertheless a report u/s 173(1)(a) of the Code and the fact that it was not submitted by the Officer-in-Charge of the Police Station does not render it anything other than such a report. Hence, according to Mr. Roy, the Committing Magistrate could lawfully take cognizance of the offence on the basis of such a report and make the order of commitment. So far as the other point raised by Mr. Moitra is concerned, Mr. Roy contends that the facts and the report do not justify the criticism made by Mr. Moitra to the effect that the charge-sheet was submitted mechanically. Mr. Roy has further contended that the belated objection raised by the Petitioners is not bona fide and the only object is to delay and frustrate the trial.

So far as the first point raised by Mr. Moitra is concerned, it is no doubt true that on the scheme of chap. 14 of the Code, it is for the Officer-in-Charge of the Police Station to consider the materials which are secured in course of investigation and make a completion report in terms of Section 173 of the Code. Under this chapter, an information as to commission of a cognizable case being lodged with the Police Station, he can himself take up the investigation or cause the investigation to be made by any of his subordinate officers. Investigation, therefore, can be made by an officer other than the Officer-in-Charge, but when such a subordinate officer makes the investigation u/s 168 he is to report the result of such investigation to the Officer-in-Charge of the Police Station who is then to forward to the Magistrate the completion report in terms of Section 173 of the Code. Mr. Moitra contends that the requirement of Section 168 and Section 173 in this respect is mandatory and infringement thereof would invalidate the report. It had been contended by Mr. Moitra that the Supreme Court in the case of H.N. Rishbud and Inder Singh Vs. The State of Delhi, pointed out that the last stage in the process of investigation is

the formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so, taking die necessary steps for the same by filing of a charge-sheet u/s 173

and that the Supreme Court further observed--

it is also clear that the final step in the investigation, viz. formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the Officer-in-Charge of the Police Station.

Reliance, is also placed by Mr. Moitra on the decision of the Supreme Court in the case of Abhinandan Jha and Others Vs. Dinesh Mishra, where the Supreme Court reaffirmed the same position in observing that on the scheme of chap. 14 the formation of an opinion as to whether or net there is a case to place the accused on trial has been left to the Officer-in-Charge of a Police Station.

In our view, the correctness of this part of Mr. Moitra''s contention cannot be disputed. On the scheme of chap. 14 of the Code, it is the Officer-in-Charge of the Police Station who has been vested with primary responsibility of every investigation. Even where such investigation is being made by an officer subordinate to the Officer-in-Charge, responsibility for taking all the necessary steps still lies with the Officer-in-Charge. Moreover, it is also well established by the object and reasons of the Amending Act of 1923 that the Legislature intended that the functions contemplated by Section 173 should be exercised by the Officer-in-Charge only. Therefore, there was definitely an irregularity when in the present case the charge-sheet was not processed through the Officer-in-Charge.

But even then we are unable to accept the further contention of Mr. Moitra that such irregularity would invalidate the cognizance, the commitment and the subsequent trial emanating there from for two-fold reasons. Firstly, the obligation to submit the completion report, which is the last stage of investigation, had been vested in the Officer-in-Charge of the Police Station by Section 173 because under chap. 14 he alone has been vested with the ultimate responsibility of making the investigation. But at the same time Section 156(2) of the Code provides:

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.

So that an investigation made by a Police Officer where there is no specific statutory bar shall not be called in question only because it was not so made at the instance of the Officer-in-Charge of the Police Station. In the present case, the Investigating Officer, who was an officer of the Contai Post, conducted the investigation independently of the Officer-in-Charge of the Police Station and submitted the charge-sheet as a part of the proceedings of investigation. The irregularity that arose due to the fact that it was not so done by or at the instance of the Officer-in-Charge of the Police Station is, therefore, cured by Section 156(2) of the Code.

Secondly, such an irregularity even if be taken to be an illegality is an illegality in investigation which would not affect the cognizance that was subsequently taken by the learned Magistrate unless it can be shown that the Petitioners have been materially prejudiced thereby. No such prejudice could be shown to have resulted from the irregularity complained of in the present case by the Petitioners. When investigation led to disclosure of materials on which the learned Magistrate could not only take cognizance but make a commitment and the learned Sessions Judge could frame a charge, no prejudice can be said to have resulted by the fact that the charge-sheet was not processed through the Officer-in-Charge, because even if the Officer-in-Charge would have taken a different view, that would not have been binding on the Courts. this Court, in Chittaranjan Das Vs. State of West Bengal and Others, held:

A report submitted to the Magistrate by a Police officer having power to investigate and after investigation under chapter 14 is not converted into something other than a Police report u/s 173 merely because it is not submitted by the Officer-in-Charge of a Police Station within whose jurisdiction the offence was committed. It is at the worst an irregularity, a failure to observe the strict form.

Such was also the view taken by the Supreme Court in Rishbund''s case (Supra) where it was observed:

A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a Police report which results from an investigation is provided in Section 190, Code of Criminal Procedure, as the material on which cognizance is taken. But it cannot be maintained that a valid and legal Police report is the foundation of the jurisdiction of the Court to take cognizance.

In this case, the Supreme Court clearly laid down the principle that an irregularity or illegality in investigation arising out of breach of any mandatory provision relating to investigation would be curable u/s 537 of the Code unless such illegality can be shown to have brought about miscarriage of justice.

Strong reliance is placed by Mr. Moitra on a Single Bench decision of this Court in the case of Gobinda Prosad Lath v. The State Cr. Rev. No. 123 of 1974 disposed on April 2, 1974 where a contrary view was expressed without, however, considering the Bench decision of this Court and the above decision of the Supreme Court. That case again is distinguishable on facts. There the investigating officer submitted a final report without completing the investigation and the learned Magistrate proceeded to discharge the accused person on such a report. this Court set aside the order of the learned Magistrate on a view that the Magistrate could not have discharged the accused persons on such a report. Here clearly the report based on an incomplete investigation resulted in serious miscarriage of justice and as such, this Court rightly held the order of discharge based on such a report is liable to be set aside. On the other hand, another learned Single Judge of this Court has on the contrary held that a report submitted by an Investigating Officer would still be a report u/s 173 of the Code even if it was not submitted by the Officer-in-Charge of the Police Station and cognizance can validly be taken thereon. See Baburam Agarwalla v. State (1976) C.H.N. 864.

In this view, we find no merit in the first contention raised by Mr. Moitra and we overrule the same.

So far as the second point raised by Mr. Moitra is concerned, we are of the view that there is no Substance in that objection. In the charge-sheet itself the Investigating Officer has stated that the complainant lodged an information to the effect that the accused persons forcibly entered into the house and looted away cash, ornaments, woodframes, etc. from his house and decamped and investigation held over such information in course of which enquiry were made locally, witnesses were examined and he visited the place of occurrence. He, further, stated that on such an investigation of a charge under Sections 395/397, Indian Penal Code, having been made out against the accused, he submitted the charge-sheet. Here the substance of the information has been clearly set out in the charge-sheet itself and there is enough material to show that in submitting the charge-sheet the Investigating Officer did so on conscious application of his mind. Mr. Moitra''s objection that the charge-sheet was submitted mechanically without application of mind by the Investigating Officer and therefore, must fail and is over-ruled.

In the result, the application fails and the Rule is discharged. We direct the trial to be expedited.

A.P. Bhattacharya, J.

I agree.