The State vs Joydev Chandra Das

Sen, J.—This is an application for quashing the commitment of the accused Joydeb Chandra Das in respect of a charge u/s 302 I.P.C. The accused petitioner is alleged to have committed the offence on November 3, 1955. The investigation of the case was done by the Calcutta Police and the Calcutta Police submitted a challan or report on February 25, 1956. Thereafter, the learned Magistrate took up the enquiry under the provisions of section 207A of the Criminal Procedure Code, and without recording evidence he perused the police papers and wrote out order committing the accused petitioner to the High Court Sessions, after framing a charge in respect of the offence alleged to have been committed. Mr. Barua appearing for the petitioner has urged that the learned committing Magistrate was wrong in applying section 207A of the Criminal Procedure Code and that the enquiry should have been held under sections 208 to 213 of the Criminal Procedure Code, because the investigation by the Calcutta Police was not an investigation held under the provisions of Chapter XIV of the Criminal Procedure Code and therefore the report or challan submitted by the police could not be considered a report u/s 173 of the Criminal Procedure Code, and in the absence of such a report, it is urged that the committing Magistrate has no jurisdiction to proceed u/s 207A of the Criminal Procedure Code.

Section 207 of the amended Criminal Procedure Code provides that in holding an enquiry into cases triable by the Court of Session or the High Court the Magistrate shall (a) in a proceeding instituted on police report follow the procedure specified in section 207A and (b) in any other proceeding follow the procedure specified in the other provisions of Chapter XVIII, The words "a police report" u/s 207, clause (a) must be read as a police report forwarded u/s 173 of the amended Code, because section 207A, subsection (1) provides as follower--

"When in any proceeding instituted on a police report the Magistrate receives the report forwarded u/s 173 he shall for the purpose of holding an enquiry under this section fix a date...."

Section 207A, therefore, only describes the procedure which the Magistrate, has to follow on receiving a police report forwarded u/s 173 of the Code and there is no procedure prescribed in respect of any other class of police repot other than the usual procedure under sections 208 to 213. Accordingly, it is clear that so long as the Calcutta Police held investigation under the provisions of the Calcutta Police Act. 1866 and submitted challan under the provisions of that Act and not a report under the provisions of Section 173 of the Code, the new procedure prescribed by section 107A could not apply Section 173 of the Criminal Procedure Code was, however, made applicable to the Calcutta Police by notification No. 577J of 25-1-56 which came into force on its publication in the Calcutta Gazette on 9-2-56. In the present case the report of the police was submitted on February 25, 1956, that is, after section 173 had been made applicable to the Calcutta Police, and it would appear, therefore, that the challan or report, however the document may be described, must be considered to be a report u/s 173 of the Criminal Procedure Code and, therefore, it would, appear that section 207A would apply to the present case.

Mr. Barua has objected that section 173 refers to "investigation under this chapter", that is investigation under Chapter XIV of the Criminal Procedure Code and he has urged that even though section 173 of the Criminal Procedure Code has been applied to the Calcutta Police it has still not been provided that the Calcutta Police will investigate cases under the provisions of Chapter XIV of the Criminal Procedure Code and not under the provisions of the Calcutta Police Act, It is pointed out that Chapter XIV in its entirety has not been made applicable to the Calcutta Police. It is true that Chapter XIV in its entirety has not been made applicable to the Calcutta Police, but sections 154, 161, 162, 363 and 172 have also been made applicable to the Calcutta Police by the notification referred to above and they also became applicable to the Calcutta Police from February 9, 1956. The provisions in these sections contain the essential provisions relating to an investigation by the police in cognizable cases. Section 154 relates to the recording of the first information in writing by the police, sections 161 to 163 refer to examination of witnesses by the police and recording their statements in the course of investigation and section 172 refers to the mode of keeping the diary of the proceedings during police investigation.

Provisions relating to search by police officers are contained in section 165 of the Criminal Procedure Code and this section was applicable to the Calcutta Police from before, having been made applicable by notification No. 1048J dated March 15, 1943 and subsequent amending notifications. Thus, the provisions contained in Chapter XIV regarding the recording of the first information, the examination of witnesses and search and the maintaining of the case diary have all been made applicable to the Calcutta Police and it must be held, therefore, that from the date when Notification No. 577J of 25-1-56 came into force the Calcutta Police are bound to investigate cases under the provisions contained in Chapter XIV of the Code Accordingly, the report u/s 173 submitted by the Calcutta Police after that date must be considered to be a report submitted after investigation under Chapter XIV. It is true that the major part of the investigation in the present case was held under the provisions of the Calcutta Police Act and statements of most of the witnesses were recorded before 9th February, 1956 u/s 78A of the Calcutta Police Act and the provisions of the Calcutta Police Act will continue to apply to such statements. This is clear from the Supreme Court ruling referred to by Mr. Barua namely, Ramkishan Mithanlal Sharma Vs. The State of Bombay, . But at least part of the investigation was held under the provisions of Chapter XIV of the Code and when the report was submitted by the police, Section 173 of the Code did apply and there-fore, I must come to the conclusion that the challan or report Submitted by the police on February 25, 1956 must be considered as a report u/s 173 of the Code. It cannot be denied that section 173 contemplates chiefly investigations held from the beginning under Chapter XIV; for instance, in sub-section (4) of section 173 there is reference to the first information report recorded u/s 154 of statements of witnesses recorded under sub-section (3) of section 161 and where the first part of the investigation was not held under the provisions of Chapter XIV as in the present case, there can be no first information report and many of the statements in the present case have been recorded not under subsection (3) of section 161 but under the provisions of section 78A of the Calcutta Police Act. This might be argued as a point in favour of the view that section 173 and therefore section 207A of the amended Criminal Procedure Code can only apply to investigations held from the beginning under Chapter XIV of the Code. But against that view it may be pointed out that when even part of the investigation has been held under the pro-visions of Chapter XIV and section 173 is applicable when the report of the police to the Magistrate is submitted, the report must be one u/s 173, because the police must comply with the provisions of law made applicable to them and that is also provided by section 10A, subsection (1), clause (b) of the Calcutta Police Act. That fact that the provisions ox sub-section (4) would not strictly apply in such a case would not really prejudice the accused. It can still be applied to such a case as the present. The sub-section lays down that the accused shall be furnished free of costs with the copy of the report forwarded under sub-section (1) and of the first information report recorded u/s 154 and all other documents and relevant extracts thereof on which the prosecution proposes to rely including statements and confessions, if any, recorded u/s 164 and statements recorded under sob-section (3) of section 161. In such a case as the present case, the accused can still be furnished with the report forwarded under sub-section, (1) and a copy of the Crime Sheet in which the substance of the first information is recorded and all other documents on which the prosecution proposes to rely, including copies of the statements of witnesses recorded under the provisions of section 78A of the Calcutta Police Act as well as statements recorded under sub-section, (3) of section 161 after 9.2.56. The statements recorded u/s 78A of the Calcutta Police Act would be included in the term "all other documents or relevant extracts thereof on which the prosecution propose to rely." Thus, the accused will have at his disposal the same materials as he would have if the investigation has been held under the provisions of Chapter XIV from the beginning. Accordingly, I hold that the learned Magistrate did not commit a mistake of law in holding the enquiry under the provisions of section 207A of the Criminal Procedure Code.

The next point argued by Mr. Barua is that no evidence of any witness was recorded by the committing magistrate and there was also no examination of the accused and that this would vitiate the order of commitment. Once, however, I hold the provisions of section 207A of the amended Code are applicable, I must follow the provisions laid down in that section. Subsection (4) of that section provides that the Magistrate shall take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged, and if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any or more of the other witnesses for the prosecution, he may take such evidence also. In the present case, there is no eye witness of the alleged occurrence and no witness was, therefore, produced by the prosecution as a witness to the actual commission of the offence alleged. The learned Magistrate, therefore, did not have occasion to record the evidence of any witness. It has been urged that where the evidence is circumstantial and the, case is a murder case, the learned Magistrate should have recorded the evidence of the witnesses proving the circumstances against the accused. From general principles, it might be said that it would be desirable to do so, but the terms of Sub-section 4 strictly interpreted, do not require the learned Magistrate to record the evidence of any witness where there is no eye-witness to the actual commission of the crime alleged. Accordingly, it cannot be said that the omission of the learned Magistrate to record the evidence of the witnesses in the present case amounted to an illegality for which, under the terms of section 215, the commitment should be quashed.

As regards the examination of the accused also the same observations would apply. Under sub-section (7) of Section 207A, it is clear that the examination of the accused is not compulsory but the learned Magistrate has a discretion in the matter. There is no doubt that there is Section 342 of the Cr. P.C., but where no evidence has been recorded and where the accused has not been called on for his defence, it is difficult to see how Section 342of the Code can apply, be-cause the accused has to be questioned u/s 342 of the Cr. P.C. for the purpose of enabling the accused to explain any circumstance appearing in evidence against him and the accused has to be questioned before he is called on for his defence. Where, in a proceeding u/s 207A, no evidence has been taken by the learned Magistrate, it cannot be said that the provisions of Section 342 of the Cr. P.C. are applicable. Under Sub-section (7) of Section 207A the learned Magistrate has a discretion in the matter and if he chooses not to examine the accused, it cannot be said that any illegality has been committed. No other ground has been urged before me. I, therefore do not think that there is any reason to quash the commitment. As regards the alternative prayer of recording an entry u/s 273 of the Cr. P.C. that the charge is not sustainable, this has not been pressed by Mr. Barua and having perused the commitment, I am of the opinion that there is some evidence to go to the jury and it is not possible to make any entry that the charge is clearly unsustainable. The application therefore, fails and therefore, it is dismissed.