Lalta Prasad vs State of U.P. and Others

K.N. Goyal, J.—The revisionists were accused of having committed an offence u/s 466 IPC in respect of an incident that took place on 17th July, 1969. It appears that a final report was submitted by the police u/s 169 read with Section 173 of the Code of Criminal Procedure, 1898, on 23-9-69 and those of the accused persons, who had not earlier been released on bail, were also accordingly ordered to be released on that date. Later, however, on 3rd February, 1971 a charge sheet u/s 170 read with Section 173 of the Code of Criminal Procedure was filed against them in respect of the same offence.

On these facts, the Magistrate by his order dated 30-4-73 held that it was not legally possible to prosecute the accused persons and, accordingly, dropped the proceedings. On a revision filed by the State, the Sessions Judge by his order dated 7th April, 1976, held that the discharge of the accused persons by the Magistrate on the sole ground that a final report had earlier been submitted u/s 169 Code of Criminal Procedure in respect of the same accused was illegal. He, accordingly, directed the case to be sent back to the Magistrate for further inquiry.

The Petitioners, who are two of the accused persons, are aggrieved by this order of the Sessions Judge and it has been contended on their behalf that the order of the Magistrate was correct.

Learned Counsel for the applicants was unable to show any provision of the Code of the Criminal Procedure which may bar a second investigation. He has contended that while the Code of Criminal Procedure, 1973, does contain a provision in Section 173(8) providing for further investigation in respect of an offence after a report under Sub-section (3) has been forwarded to the Magistrate, the old Code did not contain a corresponding provision. It appears, however, that despite the absence of a provision in the old Code corresponding to Sub-section (8) of Section 173 of the new Code, this Court had in Rama Shanker Vs. The State of Uttar Pradesh, held that it was competent to an investigating officer, either on his own initiative or under the direction of superior officers, to submit a charge sheet to replace a final report earlier submitted. This Division Bench decision of this Court has recently been followed by a Division Bench of the Kerala High Court in In Re: State, . In Rama Shanker''s case (supra) the act of the police officer in submitting a report u/s 173 was held to be wholly administrative and, accordingly, it was open to the police officer to submit another report in supersession of an earlier one, although there was no express power mentioned in the Code in this behalf. Apparently, the principle laid down in Section 21 of the General Clauses Act, 1897, was applied. In the aforesaid Kerala decision of 1973 a number of decisions of the Madras, Lahore, Orissa and Patna High Courts have also been cited in support of the same view. The Law Commission of India in their forty first report have observed as follows, while recommending the enactment Sub-section (8) of this section:

A report u/s 173 is normally the end of the investigation, Sometimes, however, the police officer after submitting the report, u/s 173 comes upon evidence bearing on the guilt or in connocence of the accused. We should have thought that police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report u/s 173 has been sent the police cannot touch the case again and reopen the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh materials must of course be furnished to the accused.

(Please see Chapter 14, paragraph 23 of the Report)

These observations of the Law Commission show that it was only as a measure of abundant caution that the new Sub-section (8) was inserted in the Code.

In this view of the matter, the order of the Sessions Judge is clearly correct and the order of the Magistrate was illegal.

In the result, the revision has no force and is hereby dismissed. Let the record be sent back to the Magistrate''s Court at an early date so that this case may be decided without further delay.