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State of Andhra Pradesh Vs.
P.V. Pavitharan *
A case under Section 5(2) with Section 5(1) (e) of the Prevention of Corruption Act was registered against the respondent, an officer in IPS in March, 1984. The respondent was placed under suspension pending inquiry but on the basis of inquiry the State Government passed an order in September 1984 for stopping further action and for his reinstatement in service. However, by a subsequent order in July 1985, the government cancelled its earlier order and directed the respondent to show cause as to why the penalty of compulsory retirement should not be imposed on him. The respondent filed a writ petition before the High Court challenging the order. The writ petition was transferred to the Central Administrative Tribunal, which held that the impugned order was illegal and beyond the powers of the government. The government being aggrieved filed an SLP before the Supreme Court, which on November 16, 1988 dismissed the same in view of the fact that the respondent had already retired from service on attaining age of superannuation. Meanwhile the Anti-Corruption Bureau after completing its investigation in the criminal case had submitted its report in April 1987 to its Director – General who in turn had sent the same to the government on September 17, 1988. The respondent filed the criminal petition for quashing further proceedings pursuant to the registration of the first information report , inter aila, contending that there had been full in the investigation for fairly long spell causing inordinate delay and that the prosecution had not filed its report contemplated under Section 173 Cr.P.C. till he filed the petition for quashing the proceedings in November 1987 though the case was registered in March 1984. The High Court on July 29, 1988 quashed the FIR and the subsequent proceedings on the ground of inordinate delay in the investigation. However, the appellant-government accorded sanction for prosecution of the respondent only on September 16, 1988 i.e after nearly 50 days of the quashing of the FIR. Dismissing the appeal of the State on the peculiar facts the Supreme Court.
In view of the facts and circumstances and the various events following the suspension of the respondent calumniating in his being allowed to retire on attaining the age of superannuation, it is not a fit case for interference.
However, no general and wide proposition of law can be formulated that wherever there is any inordinate delay on the part of the investigating agency in completing the investigation such delay is a ground to quash the FIR. It is not possible to formulate inflexible guidelines or rigid principles of uniform application for speedy investigation or to stipulate any arbitrary period of limitation within which investigation in a criminal case should be completed. The determination of the question whether the accused has been deprived of a fair trial on account of delayed or protracted investigation would also depend on various factors including whether such delay was unreasonably long or caused deliberately or intentionally to hamper the defence of the accused or whether such delay was inevitable in the nature of things of whether it was due to the dilatory tactics adopted by the accused. The court, in addition, has no consider whether such delay on the part of the investigating agency has caused grave prejudice or disadvantage to the accused. It is imperative that if investigation of a criminal proceeding staggers on with hardy pace due to the indolence or inefficiency of the investigating agency causing unreasonable and substantial delay resulting in grave prejudice or disadvantage to the accused, the court as the protector of the right and personal liberty of the citizen will step in and resort to the drastic remedy of quashing further proceedings in such investigation. While so, there are offences of grave magnitude such as diabolical crimes of conspiracy or clandestine crimes committed by members of the underworld with their tentacles spread over various parts of the country or even abroad. The very nature of such offences would necessarily involve considerable time for unearthing the crimes and bringing the culprits book.
*(1990) 2SCC 340
K.VEERASWAMI vs UNION OF INDIA *
The Investigating Officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the accused. He may seek his clarification and if necessary he may cross check with him about his known sources of income and assets possessed by him. Indeed, fair investigation requires that the accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate. But to state that after collection of all material the Investigating Officer must give a opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating the Investigating Officer is not holding and enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report, which he files in the court as charge-sheet.
The charge-sheet is nothing but a final report of police officer under Section 173(2) of the Cr.P.C. The statutory requirement of the report under Section 173(2) would be complied with of the various details prescribed therein are included in the report. This report is intimation to the magistrate that upon investigation into a cognizable offence the Investigation Officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2), purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the Court. The report is complete if it is accompanied with all the documents and statements of witnesses required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence.
*(1991) 3 SCC 655
State of West Bengal vs Falguni Dutta and Another
In this case the Supreme Court has discussed the effect of delay in filing charge sheet where the matters are triable by Special Courts.
In the case of offence punishable under Section 7(1)(a) (ii) of the Essential Commodities Act which is tried by a Special Court consulted under Section 12-A, the provision of sub-section (5) of Section 167 of the Code gets attracted if the investigation has not been completed within the period allowed by that sub-section. After the constitution of Special Courts all offences under the Act have to be tried by that Court in a summary way by applying the provisions of Section 262 to 265 (both inclusive) of the Code. The provisions to clause (f) of Section 12-AA (1) of Essential commodities Act places a fetter on the power of the Court in the matter of passing a sentence on conviction, namely, that notwithstanding the fact that Section 7(1)(a)(ii) prescribes a punishment extending up to seven years and fine, Special Court shall not pass a sentence of imprisonment for a term exceeding two years. It is this provision which attracts the definition of summons-case, the trial whereof must be undertaken in accordance with the procedure outlined in Chapter XX of the Code. The power conferred by sub-section (5) of Section 167 can be invoked by the Special Court by virtue of clause (c) of Section 12-AA(1) to exercise the same powers which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code in relation to an accused person who has been forwarded to him under that provision. Therefore, the Special Court can stop further investigation into the offence if the investigation is not concluded within a period of six months from the day of arrest of the accused person unless for special reasons and in the interest of justice the continuation of the investigation beyond that period is necessary. In the present case the officer making the investigation had not sought the permission of the Special Court to continue with the investigation even after the expiry of six months. The object of this sub-section clearly is to ensure prompt investigation into an offence triable as summons-case to avoid hardship and harassment to the accused person.
Police Report : The Police report under Section 173(2) has to be submitted as soon as the investigation is completed. If the investigation has been stopped on the expiry of six months or the extended period, if any, by the Magistrate in exercise of power conferred by sub-section(5) of Section 167 of the Code, the investigation comes to an end and therefore, on the completion of the investigation Section 173(2) enjoins upon the officer in charge if the Police
Station to forward a report in the prescribed form. There is nothing in sub-section (5) of Section 167 to suggest that if the investigator has not been competed within the period allowed by that sub-section, the officer in charge of the Police Station will be absolved from the responsibility of filing the Police report under Section 173(2) of the Code on the stoppage of the investigation. Therefore, the Special Court was competent to entertain the Police report restricted to six months investigation and take cognizance on the basis thereof. In this case the High Court erred in quashing the order of the Special Court taking cognizable of the offence on the Police report, i.e charge-sheet submitted under Section 173 (2) of the Code.
NO COGNIZANCE ON INCOMPLETE CHARGE-SHEET
Sharadchandra Vinayak Dongre and others Vs.
The State of Maharashtra*
A plain reading of S.173, Cr.P.C. shows that every investigation must be completed without unnecessary delay and as soon as it is completed, the Officer-in-charge of the Police Station shall forward a report to the Magistrate in the form prescribed. Therefore, there is no question of sending up to a “Police report” within the meaning of S.173 sub-sec.(2) until the investigation is completed. Any report sent before the investigation is completed will not be a Police report within the meaning of sub-sec.(2) of S.173 read with S.2 (r) and there is no question of the Magistrate taking cognizable of the offence within the meaning of S.190 (1) (b) on the basis of an incomplete charge sheet. The incomplete charge-sheets cannot be treated as a “Police report” at all as contemplated under S.173(2) to entitle the Magistrate to take cognizance of the offences. A Police report as defined in S.2 (r) can only be filed “as soon as the investigation is completed”. If it is not complete, no such report can be filed. When no report is forwarded as required by the Code, the Magistrate cannot take cognizance. Thus, unless all these steps are crossed, sub-sec.(8) cannot be pressed in aid for collecting further evidence which really can be called in aid if further evidence is discovered after the filing of the charge-sheet or the Police report on the completion of the investigation. Unless cognizance has been taken, sub-sec(8), cannot be set in motion. The Magistrate cannot take cognizance on the admittedly “incomplete charge-sheet” forwarded by the Police. In case the Magistrate is allowed to take cognizance on basis of incomplete charge-sheet then the provisions of S.167(2) or to say S.468 of the Cr.P.C., can always be circumvented by the prosecution and the apparent legislative intents under those provisions would not only be not effectuated but undoubtedly stultified.
*1991 Cr.L.J. 3329 (Bombay)
Sharavan Baburao Dinkar Vs.
N.B.Hirve, Additional Inspector of Police and others*
Section 9 merely deals with the obligation of an officer in charge of a Police Station to forward his report under S.173 of the Code of Criminal Procedure to the Commissioner or such other officer as the Commissioner may direct in that behalf. The said section nowhere provides that the Commissioner has the authority to issue summaries as has been done in the present case, Issuance of summaries is a function to be performed by Magistrates. The same has advisedly not been left for being performed by Commissioner. This being a judicial function has to be performed by the Magistrate and Magistrate alone. Commissioner has no authority to trample over these judicial functions of the Magistrate.
The function of the Police, being an executive limb, is distinct from the role assigned to the judiciary. One is not permitted to trample upon the province exclusively reserved for the other. Once a report under S.173(2) is submitted by the Police to a Magistrate, a Magistrate has the jurisdiction to take cognizable. A Magistrate is not entitled in the event of a Police report, being a negative report, to direct the Police to file a charge sheet. All that he is authorised to do is to direct a further investigation in the case. Similarly, once a report under S.173 is submitted, taking of cognizable is the exclusive province of the Magistrate. The Police has no role to play in this behalf. As far as S.96 of the Bombay Police Act is concerned, the same does not override any of the provisions contained in the code of Criminal Procedure including those found in S.s 173 and 190 of the Code. As far as grant of summaries is concerned there is no provision to be found in regard to the same either under the Code of Criminal Procedure or under the Bombay Police Act. The only provision in that behalf is found in the Criminal Manual issued by the High Court in exercise of its powers conferred by Art. 227 (2) of the Constitution of India.
It is, thus, clear that grant of summaries is a judicial function left to the exclusive province of the Magistrate and a Police Officer, or for that matter a Commissioner of Police, or an Officer duly appointed by him has no role to play. (Emphasis supplied).
The Bombay Police Manual classifies the orders which may be requested by the investigating Officer when he is of the opinion that no judicial proceeding need be initiated as Summaries “A” and “B” and “C”. A request for “A” Summary is to be made when the Police Officer investigating the case is of the view that the officer is true but undetected and where there is no clue whatever about the culprits or property or where the accused is known but there is no evidence to justify his being sent up for trail. Request for “B” Summary is to be made when the complaint is malicious false and for “C” Summary when the complaint neither true nor false, that is, due to mistake of facts of being of a civil nature.
*1997 Cr.L.J 617 (Bombay)