Umesh Kantilal Patel vs The State Of Madhya Pradesh

“21.

This Court in T.T Antony v. State of Kerala1 held thus:—

“18.

An information given under sub-section (1) of Section 154 CrPC is commonly known as first information report (FIR) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 CrPC. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report FIR postulated by Section 154 CrPC. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC. Take a case where an FIR mentions cognizable offence under Section 307 or 326 IPC and investigating agency learns during the investigation or receives fresh information that the victim died, no fresh FIR under Section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which//having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh IIR against H the real offender who can be arraigned in the report under Section 173(2) or 173(8) CrPC, as the case may be. It is of course permissible for the investigating officer to send up a report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused”.

“19 The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC”.

“20.

From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the PIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offenee reported in the PIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC”.

“15.

The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offences into the charge-sheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the Magistrate before whom the matter comes up for taking cognizance after submission of the charge-sheet and as already stated, the Magistrate in a case which is based on a police report cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or under Section 228 CrPC as the case may be which means that after submission of the charge-sheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the charge-sheet.”

“22.

The High Court has also quashed the GD entry and the investigation on the ground that the information did not disclose all the ingredients of the offence, as if the informant is obliged to reproduce the language of the section, which defines “criminal misconduct” in the Prevention of Corruption Act. In our view the law does not require the mentioning of all the ingredients of the offence in the first information report. It is only after a complete investigation that it may be possible to say whether any offence is made out on the basis of evidence collected by the investigating agency.

23.

The High Court also held that before conducting the search and seizure the mandatory requirement of Section 165 was not fulfilled inasmuch as the investigating officer did not record in writing the grounds for his belief as required by the said section. It is premature at this stage to consider whether search and seizure was done in accordance with law as that is a question which has to be considered by the court, if the accused is ultimately put up for trial and he challenges the search and seizure made. Similarly, the question as to whether the GD entry, or the FIR formally recorded on 20-10-1990, is the FIR in the case, is a matter which may be similarly agitated before the court. Where two informations are recorded and it is contended before the court that the one projected by the prosecution as the FIR is not really the FIR but some other information recorded earlier is the FIR, that is a matter which the court trying the accused has jurisdiction to decide. Similarly, the mentioning of a particular section in the FIR is not by itself conclusive as it is for the court to frame charges having regard to the material on record. Even if a wrong section is mentioned in the FIR, that does not prevent the court from framing appropriate charges.”

“15.

In view of the aforesaid rival contentions, the question is whether barely addressing a letter to the Court and adding further sections for which the punishment is death/imprisonment for life or imprisonment for a term of not less than ten years is sufficient to believe that the period of judicial custody has been automatically extended?

16.

The Bombay High Court has dealt with a similar issue in the case of Alnesh Akil Somji Vs. The State of Maharashtra (supra). In that application also, the default bail was claimed. The Special Judge rejected it on the ground that section 409 of IPC is applicable, and the prosecution had filed an application invoking section 409 of the Indian Penal Code. The Special Judge held that the period for filing the charge sheet was ninety days, not sixty days. In the said case, the applicants were in the Magistrate custody remand till 11.11.2021 after their arrest on 03.11.2021. The investigating officer, by remand application dated 31st December 2021 (filed on 3.1.2022) intimated to the Special Judge about adding/invocation of section 409 of the Indian Penal Code. The Special Court had passed an order "Seen, note be taken". Considering these facts, the Bombay High Court held that in paragraph No. 13 read thus:-

“13.

There is no manner of doubt that the investigation is within the province and domain of the investigating agency. However, that does not mean that the Court, in almost all cases, would be bound by the invocation of a particular section against the accused by the prosecuting agency. This is because the label of the section or the provision invoked would not be decisive. To hold otherwise, would amount to placing the said right at the mercy of the investigating agency and would indirectly result in the Magistrate abdicating the duty to enforce the right wherever necessary. Thus, the Court would be required to look into the generality of the allegations made and the material collected. In a given case where ex facie the provision is not attracted the Court may not be bound by the same. Although there is no requirement for the investigating officer to obtain permission from the Magistrate for such addition, as held by the Calcutta High Court in Sayantan Chatterjee supra), the Magistrate is not precluded from looking into the facts and the material collected, whether the offence is ex facie made out or not. The matter depends on the facts and circumstances of each case. For instance, where the investigating officer invokes section 326 of IPC, however the medical report does not ex facie show that the victim has suffered a grievous injury, within the meaning of Section 320 of IPC OR a case where section 409 of IPC is invoked and admittedly the accused does not fall under any of the seven categories mentioned in the said section namely the accused is neither a public servant, a banker etc. I would hasten to add that where however the facts and the material collected prima facie indicate the ingredients of a particular offence the Court obviously cannot examine or appreciate the same at that stage in order to arrive at a different conclusion.”

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22.

Considering the facts of the case at hand, it is assumed that the Court has examined the material produced before it at the time of first remand and based on it, the police custody was granted, and then the accused were taken in judicial custody. However, in the absence of submitting the remand papers without knowledge of the accused, the prosecution cannot by a bare letter addressed to the Court, seek the extension of remand more than the period prescribed under Section 167 of the Cr.P.C. As discussed above, the extension of remand, particularly after adding new sections constituting the serious offence, is not a bare formality. The Court extending the detention of the accused for a period more than prescribed under the law has to pass a speaking order after hearing both sides, which was not done in this case. The prosecution did not produce before this Court material to believe that the accused fall under any of the seven categories mentioned in Section 409 of the Indian Penal Code that the accused are public servants, bankers etc. In view of that matter, the investigating officer cannot seek an extension of time to file a charge sheet, as the period of filing the charge sheet has to be determined from the material and papers produced before the Magistrate/Judge.”

“14.

Considering above it emerges from the record that a complaint being ICR No. 281 of 2007 is lodged with Umra Police Station. Surat initially for the offences punishable under Sections 395, 326, 323. 506(2). 143, 147. 149, 120(B). 34 and 188 of the IPC and the said complaint was filed on 5.4.2007 at 11.30 p.m. That in the said complaint, two accused were named and it was also stated in the complaint that there were other 70 lo 80 persons, who have attacked and committed the offence. That on 6.4.2007. i.e. on the next day itself, after the Investigating Officer look the investigation on hand, the Investigating Officer was of the opinion that the offence under Sections 397 and 447 of the IPC and Section 25(1)(A)(B) of the Arms Act are also seems lo have been committed and therefore, he reported to the concerned learned Judge for adding the said sections and the learned Chief Judicial Magistrate has passed an order “TO BE KEPT WITH FIR.” The intimation/report by the Investigating Officer to the concerned learned Judge is with a view to enable the investigating Officer to further investigate the offence under Sections 397 and 447 of the IPC r.w. Section 25(J)(A)(B) of the Arms Act. There is no such provision under the Code of the Criminal Procedure to give an opportunity by the learned Magistrate and to hear the accused at that stage as it cannot be said that it is adding the charge. There is a distinction between the report at the initial stage to add the sections/offences in the FIR and the report after investigation by the Investigating Officer as provided under Sections 169/173 of the Criminal Procedure Code. Under the provisions of the Criminal Procedure Code and looking to the scheme of the Code, till the charge-sheet is ‘filed and the charge is framed, there is no requirement of hearing and/or giving an opportunity of hearing to the accused persons. Till then, it is the statutory right of the Investigating Officer lo investigate the case and Investigating Office)’ is the master of investigation. Under the circumstances and considering the scheme of the Criminal Procedure Code, the contention on behalf of the petitioners-original accused that at the time of report by the concerned Investigating Officer adding the sections in the FIR and at the time of passing an order by the learned Trial Court-“TO BE KEPT WITH FIR” the accused are required to be heard cannot be accepted. By adding the sections in the FIR and passing the order by the learned Magistrate “TO BE KEPT WITH FIR” no prejudice will be caused to the accused. The bail applications are required to be considered on its own merits looking to the material available during the course of the investigation and therefore, merely because the sections are added, it cannot be said that any prejudice will be caused to the accused.”

“8.

In the instant case, the investigation commenced for the offence under Sections 279/304A/337/427 of the Penal Code, 1860 on the basis of the written complaint filed by the opposite party no. 2, who happens to be the father of the deceased. On June 25, 2015 learned Magistrate gave direction for further investigation of the case. If the Investigating Officer has collected sufficient materials during further investigation to proceed against the petitioner for the offence under Section 304 Part II of the Penal Code, 1860, it is the duty of the Investigating Officer to inform learned Magistrate of the subsequent development to justify the action of proceeding against the petitioner for the offence punishable under Section 304 Part II of the Penal Code, 1860. There is no requirement of law to obtain permission from learned Magistrate by the Investigating Officer for proceeding against the accused person in connection with aggravated penal offence during course of further investigation. This Court is not oblivious of the fact that the investigation is the exclusive domain of the police. It is true that the order of learned Magistrate is not supported by reasons. Since there is no requirement of law to obtain permission of learned Magistrate by the Investigating Officer to proceed against the petitioner for the offence under Section 304 Part II of the Penal Code, 1860, I am not inclined to set aside the order on the ground that the said order is not supported by reasons.

9.

With regard to the submission made on behalf of the State that the accused has no right to assail the order of adding any penal Section by Investigating Agency during investigation of the case, I am of the view that the accused may not have any right of audience before the court of learned Magistrate during course of investigation of the case, but the accused can very well challenge any order of learned Magistrate before higher forum if the said order curtails the liberty of the accused without following the procedure of law. In view of my above findings, I would like to hold that the petitioner has right to challenge the order passed by learned Magistrate by adding Section 304 Part II of the Penal Code, 1860 during course of further investigation of the case.”

“104.

I am also not impressed by the submission that the investigating officer has not specifically mentioned Section 409 in Column No. 4 of the report or in the previous stages of remand Section 409 of IPC was not mentioned. The provisions of Cr. P.C. give wide powers to the Court. The Court has to apply its mind at every stage, for example, when the accused is produced for remand, when the report under Section 173 is filed, when cognizance is taken, when charges are framed etc. On every such occasion, the Court is not bound by the submissions made either by the investigating agency or the accused before the Court. The Court has to arrive at its own conclusion as to what offence is made out from the material available and placed before it. Court can, of course, consider submissions of both sides but, the Court's powers in that behalf are wide. Therefore, when a question is to be decided as to whether the report was filed within 90 days, but, not within 60 days then the Court can certainly look into the material to reach its own conclusion as to whether the offence is relatable to period of 90 days. The Court's powers are not curtailed in any manner to arrive at its own conclusion. In this case, this question does not arise because the report was filed on 60th day, but, since it was argued before me that Section 409 of IPC was invoked just as a subterfuge to stretch the period of filing of the report to 90 days, it was necessary to observe that the Court had sufficient power to examine whether the period for filing the report was 90 days or 60 days.

105.

On every occasion, the remand was obtained from the Special Court till the report was filed on 25.6.2020. Therefore, the Special Court was the proper Court where report under Section 173(2) of Cr. P.C. could be filed. Subsequently, due to absence of sanction, the case was transferred to the Magistrate's Court. That will not not make any difference because that was a proper order passed at proper stage by the learned Special Judge. In view of Suresh Kumar Jain's case (supra), this course of action was perfectly legal.”

“40.

The other section which also makes the accused liable for punishment of imprisonment up to life and thus giving State 90 days time to complete investigation is Part I of Section 304 IPC. However, in the absence of the same being specifically mentioned in the FIR, what is to be considered is whether the allegation and investigation on the day, the application under Section 167(2) was filed, was in relation to intentionally committing culpable homicide not amounting to murder so as to entitle the Magistrate to authorise the detention for a period of 90 days.

41.

It is settled law that the indefeasible right under Section 167(2) of Cr. P.C., accrues immediately when the accused avails of his right of on non-completion of investigation within the prescribed period of time. The role of the Magistrate, at that stage, is to ascertain from the record available at the stage when application is filed and decide whether the investigation relates to an offence punishable with an imprisonment that would give the investigating agency, a period of 60 days or 90 days to complete the investigation. The Magistrate does not have to wait for the filing of the chargesheet in order to ascertain the said fact. Therefore, the moment, the application is filed, for instance, on the 61^st day, the Magistrate is not required to wait up to the 90^th day to decide whether the investigation relates to such category of offences that entitle the Police to complete investigation within 90 days of the date of detention. That would amount to allowing the detention of the accused for extended period even though he is entitled to be released on bail on the 61^st day.

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45.

The FIR, in the present case, was registered on information in relation to the death caused due to fire. At that stage, the investigating agency is not aware whether the Act by which the death is caused is done with the intention of causing death or whether the same was done with the knowledge. Had the same been alleged, it was the duty of the Police to mention the same in the FIR itself.

46.

The Court is also at the stage of considering an application under Section 167(2), Cr. P.C., is not required to give a finding whether the act which resulted in the death was caused with the intention or knowledge so as to fall within Part I or Part II of Section 304 IPC as the case may be, but only has to ascertain whether the investigation relates to Section 304 Part I or Part II of IPC.

47.

Limited issue which is required to be addressed at this stage is whether an allegation of Section 304 IPC which does not specify whether the same is under Part I or Part II is required to be investigated within a period of 60 days or 90 days, for the purpose of claiming right under Section 167(2), Cr. P.C.. At the time when application is filed, Magistrate has before him, a case diary and record of investigation done till that time and not the chargesheet. The same needs to be looked into from the totality of the facts which led to registration of the FIR and after consideration of the statements of the witnesses recorded consequent to the FIR.

48.

Police has all the rights to investigate an offence in all respect. It is the duty of the Police to not only investigate but also find out during the course of investigation if any other offence is also attracted in the alleged incident.

49.

However, at the same time, it cannot be left to the whims of the Police to come to the Court after the expiry of 60 days and to contend that they are also investigating offences which are much serious in nature than initially alleged and, thereby, leaving the Court as well as the accused guessing as to the period when the statutory right under Section 167(2) of Cr. P.C. can be availed.

50.

It is for this reason that whenever the stat, during the course of investigation, finds that certain other sections are added than what are mentioned in the FIR or what the initial allegations referred to, they add such additional sections and bring it to the knowledge of the Magistrate. For instance, during the course of investigation of an allegation of Section 420, IPC if it is found that the forgery has been committed, leading to the investigation in relation to Sections 467, 468 etc. of IPC, the Police is within its powers to add such sections and point this out to the Magistrate.

51.

However, the said exercise is required to be done before the expiry of a period of 60 days or else the accused would be left at the whim and mercy of the Police who will get an opportunity to defeat the right of the accused under Section 167(2) of Cr. P.C.

52.

It is not in doubt that while investigating an offence in relation to accident, the Police is free to also investigate whether the same involves the offence in relation to culpable homicide of such nature so as to entitle them to complete investigation within the extended period of 90 days from the date of initial detention. The same has to be brought to the knowledge of the Magistrate before expiry of period of 60 days after which the accused gets an indefeasible right to apply for a bail in terms of Section 167(2) of Cr. P.C..

53.

The same can be brought to the knowledge of the Magistrate by means of applications seeking remand which are necessarily to be filed after expiry of the judicial custody after every 15 days. In addition, it is the duty of the Magistrate to ask the Investigating Agency, especially, when the term of the remand asked for goes beyond the total period of 60 days, the need for such custody and whether the Police is investigating such offences which entitles them to complete the investigation in extended period of 90 days.

54.

In the absence of any such information to the Magistrate or any request of such nature, it should be presumed that investigation is required to be completed within a period of 60 days, unless the FIR is initially registered in relation to offences which attracts punishment of death, imprisonment up to life or more than 10 years. It is not in doubt that up to the 59^th day, the investigating agency can gather material during the course of investigation which would lead to further investigation in relation to more serious offences giving them extended period to complete investigation within a period of 90 days. But the same, in my opinion, should be immediately brought to the knowledge of the Magistrate because that involves the personal liberty of the accused who is entitled to be released on bail on expiry of 60 days if the investigation is not complete.

55.

In so far as Section 304, IPC, is concerned, it should be seen from the FIR and the statement recorded during the course of investigation up to the filing of the application under Section 167 as to whether the investigation is in relation to Part ‘I’ or Part ‘II’. The same, in my opinion, cannot be decided on the basis of the reply filed by the Police to the application under Section 167, which is filed after 60 days, in the absence of the same being reflected in the case diary. In order to avoid any ambiguity, the same should be brought to the knowledge of the Magistrate before the expiry of the period of 60 days, whether the investigation relates to offence falling under Part I of Section 304, IPC or Part II of Section 304, IPC.”

“Section 187 in Bharatiya Nagarik Suraksha Sanhita, 2023

187. Procedure when investigation cannot be completed in twenty-four hours.

(1)****

(2)****

(3)

The Magistrate may authorise the detention of the accused person, 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 sub-section 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 ten years or more;

(ii)

sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.”