Krishan vs Raja

R.L. Anand, J.

The petitioner has moved the present petition u/s 439(2), Cr.P.C. for cancellation of bail of respondents 1 to 12 granted by the J.M.I.C. Karnal, u/s 167(2), Cr.P.C. in FIR No. 293 dated 11.9.1998 u/ss 148/149/302, IPC, Police Station Nissing.

The brief facts can be noticed in the following manner :

The aforesaid FIR was registered against as many as 16 persons. The case was investigated by the police and during the course of investigation, 8 persons were arrested on 21.9.1998. Finally, the report u/s 173, Cr.P.C. was submitted in the court of the Area Magistrate on 15.12.1998 and the State desired to prosecute Raja, who was one of the 16 accused named in the FIR and two others; namely, Jagat Ram and Pardeep. Meaning thereby, that 15 persons out of 16 persons originally named were found innocent. The report u/s 173 along with the discharge application of the police came up for hearing before the learned Magistrate on 24.12.1998 and vide the impugned order, Annexure P1 dated 24.12.1998, the learned Magistrate made the observations that the report u/s 167(2), Cr.P.C. which was moved by the D.S.P. is not in consonance with the provisions of Section 173, Cr.P.C. because it has not been filed by the Incharge of the concerned Police Station. Considering the fact that eight accused were in custody as on 24.12.1998 and who were arrested on 21.9.1998, they were released on bail u/s 167(2), Cr.P.C., keeping in view the fact that no legal and valid report u/s 178, Cr.P.C. was filed against them. Aggrieved by the above findings of the learned Magistrate, the present petition filed by the petitioner seeking quashment of the order dated 24.12.1998.

I have heard Mr. Ashit Malik, Advocate, on behalf of the petitioner and Mr. R.S. Cheema, Sr. Advocate, on behalf of the respondents and with their assistance have gone through the record of this case.

The learned counsel for the petitioner submits that the trial Magistrate committed a patent illegality by interpreting the provisions of section 173, Cr.P.C. when he has not taken note of the provisions of section 36 of the said Code. Mr. Malik submitted that as per section 173(2), Cr.P.C., "As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report." The counsel, then, submitted that by virtue of the provisions of section 36, Cr.P.C., as contained in ChapterIV, the police officers superior in rank to an officer in charge of police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. In other words, a DSP or any officer even above the rank of a DSP had the power to submit the report u/s 173 Cr.P.C.

The argument is correct and this has been conceded by the learned counsel for the respondents. It appears that the learned Magistrate while passing the impugned order did not take notice of the provisions of Section 36, Cr.P.C. and that is why he has committed a patent illegality by holding that there was no valid report u/s 173, Cr.P.C. before him and for that reason, eight persons named in the FIR are entitled to be released on bail under the provisions of section 167(2), Cr.P.C. as the challan submitted by the DSP is no challan in the eyes of law. This court is also of the opinion that what to talk of a Sub Inspector, even a Head Constable, if he is Officer Incharge of the police station is competent to file the report u/s 173, Cr.P.C. because officer Incharge of the police station has been defined u/s 2(o), Cr.P.C., which includes, when the officer in charge of the police station is absent from the stationhouse or unable from illness or other cause to perform his duties, the police officer present at the stationhouse who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present.

In these circumstances, this court holds that the report u/s 173, Cr.P.C., which was presented by the D.S.P. before the learned Magistrate was in accordance with the Code and it was a legal challan. Even from the reading of section 173(2), Cr.P.C., with the aid of section 158, Cr.P.C., it is clear that the officer superior in rank to the Officer Incharge of the police station can file the report u/s 173, Cr.P.C.

The counsel for the petitioner, then, submitted that once it is held by the High Court that the report u/s 173, Cr.P.C. has been rightly submitted by the D.S.P. concerned, in that eventuality, the Magistrate could not discharge the 8 accused by taking the aid of the provisions of section 167(2) Cr.P.C. as he had no other alternative but to commit those persons to the court of Sessions, which alone had the power to decide by virtue of the provisions of section 227/228, Cr.P.C. In support of his contention, Mr. Malik has drawn my attention to section 209, Cr.P.C. which lays down that "When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the office (offence ?) is triable exclusively by the court of Session........."

On the contrary, it has been submitted by Mr. Cheema that the word `accused'' should be given a limited interpretation, i.e. this word will apply to those persons who in the eyes of the State appears to have committed the offence and not to those persons who have ultimately been found innocent during the course of investigation and it was within the competency of the Magistrate, who was supposed to take cognizance over the matter on the filing of the report u/s 173, Cr.P.C. to decide this issue whether he would like to send those persons also to the court of Sessions for trial, who had already been shown or found innocent by the police.

In the view of this court, the correct interpretation which should be given to section 209, Cr.P.C. should be that it should be left to the Magistrate itself whether he wants to send such persons to the court of Sessions or not. This discretion has to be exercised by taking into consideration the materials which have been collected by the Investigating Agency or such other evidence/allegations which have been stated in the final report u/s 173, Cr.P.C. Universally, it cannot be laid down that the Magistrate should commit each and every person to the court of sessions, even if he has been found innocent. If he decides to commit the person found innocent to the court of sessions, it does not detract the court of sessions to still formulate an opinion u/s 227, Cr.P.C. whether those persons should be chargesheeted or not. If the Magistrate, at the stage of section 209, Cr.P.C. does not decide to commit the persons shown innocent by the police to the court of Sessions, the remedy is available to the prosecution/complainant and this remedy is enshrined u/s 319, Cr.P.C. and the stage when this remedy is available has also been now clarified by the Hon''ble Supreme Court in Ranjit Singh v. State of Punjab, 1998(4) RCR 552.

Still one point for determination would be whether the 8 respondents should be directed to surrender before the Magistrate till he decides to commit them or otherwise to the court of session or not. This court is of the opinion that these persons may not be sent into custody; firstly, that they were found innocent during the course of investigation; and secondly, the final report u/s 173, Cr.P.C. submitted by the D.S.P. was of course, filed on 15.12.1998, but the fact remains that these 8 persons were not sent up for trial and were shown in column No. 2 and for all intents and purposes, against them the challan would be considered to have been filed as on 24.12.1998 when the learned Magistrate applied his mind as to whether he wanted to proceed against these persons or not. From that point of view the 90 days were over from the date of the detention of these persons.

Summing up the above discussion, the criminal misc. is partly allowed. The impugned order dated 24.12.1998 is hereby set aside with the observations that a valid report u/s 173, Cr.P.C. was filed by the D.S.P. who was competent to file such report being an officer superior to the rank of the Incharge of the police station. It will be, however, left open to the learned Magistrate to decide whether he would like to commit the 8 persons mentioned in column No. 2 to the court of Sessions or not, which alone will decide whether to proceed against them or not by virtue of the provisions of Sections 227/228, Cr.P.C. Further, it will always be open to the complainant/State to make a proper application u/s 319, Cr.P.C., in case the Magistrate/court of Sessions decides not to prosecute these persons. In the event of appearance of these 8 persons before the learned Magistrate they shall not be taken into custody and they will be deemed to have been granted bail in view of section 167(2), Cr.P.C. Respondents No. 2, 3, 5, 6, 7, 8, 10 and 12; namely, Mangat, Karan Singh, Isam Singh, Chand Roop, Madan, Som Pal, Chander Bhan and Om Pal alias Bhura, respectively, shall appear before the learned Magistrate on 26.2.1999.

Copy dasti and one copy of the order be sent to the J.M.I.C. Karnal, for compliance.

Cr. Misc. partly allowed.