Ramesh Reddy and Others vs State and Others

Mohan Shantanagoudar, J.—Based on the complaint lodged by Mr. S.C. Manjunath, Crime No. 176/2005 is registered in Varthur Police Station for the offences punishable Under Sections 143, 147, 148, 341, 506, 302 r/w 149 of IPC against certain persons. After the investigation, the police laid the charge sheet against two persons only viz., Sadashiva and Prasanna Kumar. The matter was committed to Sessions Court and both the accused are facing trial in S C No. 140/2006 before the District & Sessions Court, Bangalore Rural District, Bangalore. During interregnum the Complainant made petitions before the concerned, praying for further investigation in respect of the offences. The COD police further investigated into the matter and laid additional charge sheet against ten other persons, (who are the petitioners in Crl. P. No. 2657/2007), before the Sessions Court directly. The Sessions Court, in turn, by the impugned order, issued non-bailable warrants against newly arrayed accused. By filing the Criminal Petition No. 2657/2007, the accused, who are additionally arrayed, questioned the order of the Sessions Court issuing the non-bailable warrant against them.

Since, in the meanwhile, the Trial Court started insisting accused Nos. 1 and 2 and the Complainant to continue with proceedings in S.C. No. 140/2006, the Complainant has filed Crl. P. No. 4351/2007 praying for a direction to the Trial Court to continue prosecution against all the accused including the newly arrayed accused together.

Both the criminal petitions are heard together by consent of advocates and perused the material on record.

It is argued on behalf of the petitioners that the police could not have filed additional charge sheet directly before the Sessions Court as much as the law requires that the additional charge sheet should be filed before the jurisdictional Magistrate at the first instance and thereafter the Magistrate by complying necessary formalities should commit the matter to the Sessions Court for trial.

Learned Government Pleader appearing for the State fairly and rightly did not oppose the submission made by the petitioners. The submission of the petitioners is fully justified, inasmuch as, even if further investigation is made by the officer in-charge of police station after passing the order of committal, he has to forward the further investigation report to the Magistrate u/s 173(8) of the Criminal Procedure Code, 1973 ("hereinafter referred to as ''the Code'' for short), to whom he had forwarded the report u/s 173(2) of the Code and that the Magistrate must necessarily as a ministerial act, in turn, forward that report to the Sessions Judge. In this context it is relevant to refer to the 41st Law Commission report, pursuant to which, Section 173(8) of the Code came to be introduced into the Code. The relevant portion is extracted hereunder:

14.23. 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 innocence of the accused. We should have thought that the 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 cannot 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 material must be of course furnished to the accused.

(Emphasis supplied)

The aforementioned report amply makes it clear that even the report containing the outcome of further investigation has to be submitted by the Investigating Agency to the Magistrate. Section 193 of the Code further makes it clear that the Court of Sessions shall take cognizance of the offences as the Court of Original jurisdiction, only if the matter is committed by the Magistrate. The Magistrate will have to commit the matter to the Sessions Court u/s 209 of the Code if the offence is triable exclusively by the Sessions Court after complying Sections 207 & 208 of the Code.

Such procedure is not followed in the instant case by the Sessions Court. It has directly accepted the additional investigation report from the investigating agency, filed through the Public Prosecutor and proceeded to issue Non-bailable warrant to the newly arrayed accused. Hence, the impugned order dated 29.6.2007 is liable to be quashed. Accordingly, the following order is made:

The impugned order dated 29.6.2007, passed by the learned District & Sessions Judge, Bangalore Rural District, Bangalore in S.C. No. 140/2006 is quashed. Respondent No. 2 in Crl. P. No. 2657/2007 is directed to submit additional investigation report to the jurisdictional Magistrate by withdrawing the same from the Court of Sessions and thereafter the Magistrate shall proceed in accordance with law. Learned Magistrate is directed to complete all the formalities within three months from the date of receipt of additional Charge Sheet. Till such time, the Sessions Court shall not proceed with S.C. No. 140/2006. The Sessions Court shall proceed against all the accused together.

With these observations, both Petitions are allowed.