Bombay HC: Magistrate must hear first informant before accepting the discharge report submitted by Investigating Officer u/s. 169 of CRPC

 After considering the observation of the Apex Court in the case of Minu Kumari cited supra, their Lordship of Gujarat High Court has observed as under:

"13. In view in the case of Bhagwant Singh (supra) is thus reaffirmed. The Supreme Court has dealt with cases of reports where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate, which is termed variously as referred charge or final report or summary, i.e. a situation contemplated under Section 169 of Cr.P.C. It is also observed that Section 173 in terms does not refer to any notice to be given to raise any protest to the report submitted by the police. The Court found that where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, which is a situation contemplated under Section 169 of Cr.P.C., the informant would certainly be prejudiced as the first information report lodged by him becomes wholly or partially ineffective". {Para 11}

12. I am in complete agreement with the observations of their Lordship of Gujarat High Court. Therefore, in my opinion also, it is mandatory that the learned Magistrate is under obligation to hear first informant before accepting the discharge as submitted by the Investigating Officer u/s. 169 of the Code of Criminal Procedure.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Revision Application No. 205 of 2002

Decided On: 04.02.2015

Maroti Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

V.M. Deshpande, J.

Citation: 2015 (4) Bom.C.R. (Cri) 504,MANU/MH/0871/2015.

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Whether Magistrate accepting Summary in a Criminal case under the Prevention of Corruption act is said to have taken Cognizance of Offence?

The Criminal Procedure Code has not defined the expression "take cognizance". But it appears clear on decided cases that taking of cognizance is a different thing from initiation of proceedings. The Magistrate may apply his mind and consider a report submitted to him by the police officer under Section 173, Criminal Procedure Code; but, before it could be said that he has taken cognizance under Section 190 of the Criminal Procedure Code, it is not sufficient that he should have applied his mind to the report, but he must do something for proceeding under the subsequent provisions of the Code, for example, under Section 200, under which the Magistrate has to examine the complainant on taking cognizance of an offence. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar, MANU/WB/0167/1950 : AIR1950Cal437 , it was held that

"before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the Chapter. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of the Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."

Now this view of the Calcutta High Court has been approved by the Supreme Court in R.R. Chari v. State of Uttar Pradesh MANU/SC/0025/1951 : 1951CriLJ775 where their Lordships of the Supreme Court were concerned with a case where the police had applied for a warrant of arrest of the accused for an offence punishable under Section 161 or 165 I.P.C. Under Section 3 of the Prevention of Corruption Act, 1947, such an offence is a cognizable offence for the purpose of the Criminal Procedure Code, subject to the condition that the police officers below the rank of officers mentioned in Section 5A cannot investigate without an order of the Magistrate of the First Class, or make an arrest without a warrant, and, it was held by the Supreme Court that, when the police applied for a warrant of arrest during investigation under Section 3, and the Magistrate issued a warrant, he could not be deemed to have taken cognizance of the case under Section 190 of the Criminal Procedure Code and, therefore, the fact that sanction of Government under Section 197 of the Code had not been obtained before the warrant was issued would not vitiate the trial. That case, therefore, clearly shows that, where a Magistrate applies his mind only for ordering investigating under Section 5A of the Prevention of Corruption Act, or issue a warrant on the application by the police for the purpose of investigation, the Magistrate is not taking cognizance of the offence. In our opinion, the present case would fall within the principle laid down in this case. All that was done by the police officer here was to submit a report under Section 173 of the Criminal Procedure Code, and the police wanted the Magistrate to issue a "B" summary, classifying the complaint as maliciously false. In fact, the officer did not want the Magistrate to take any further action on the report. It was open to the Magistrate to grant that type of summary. It was also open to the Magistrate to differ from the view of the police, and, in fact, in this case, the trial Magistrate chose to classify the case as fit for the issue of "A" summary. But, since no further proceedings were intended to betaken, it cannot be said that the learned trial Magistrate, in issuing "A" summary had taken cognizance of the offence. In these circumstances, the order of the trial Magistrate cannot be challenged on the ground that it was bad, as he took cognizance of an offence without any previous sanction as contemplated under section 6 of the Prevention of Corruption Act.

IN THE HIGH COURT OF BOMBAY

Criminal Ref. No. 119 of 1958

Decided On: 30.10.1958

State  Vs.  Shankar Bhaurao Khirode

Hon'ble Judges/Coram:

B.N. Gokhale and N.M. Miabhoy, JJ.

Citations: AIR 1959 Bom 437, (1959) 61 BOMLR 591, 1959 CriLJ 1153, ILR 1959 Bom 1088

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Whether police should file final report if they discharge some of accused under S 169 of CRPC?

 From the aforesaid provisions and the principles laid down by the Apex Court, it is clear that release of the accused under Section 169 of Cr.P.C. cannot be equated with filing a report under Section 173 Cr.P.C., which has to be filed after completion of investigation. In fact, Section 169 Cr.P.C. does not contemplate filing of such report. All that Section 169 Cr.P.C. stipulates is the release of the accused upon taking bonds (with or without surety) to appear before the Magistrate when so required, when there is no sufficient material to send the accused for trial. Whether the accused is released on bonds under Section 169 Cr.P.C. and sent for trial under Section 170 Cr.P.C., upon completion of investigation the police officer has to submit the report under Section 173 Cr.P.C. which would include a charge-sheet under Rule 218 and a final report under Rule 219 of Bombay Police Manual. It is only upon filing of the report under Section 173 which would include final report under Rule 219 of Bombay Police Manual, that the Magistrate has to either agree with the report and discharge the bond, or not agree with the police report and order further investigation, or in the alternative take cognizance of the offence complained of. In the light of above provisions and principles, the procedure allegedly followed by the investigating agency in submitting the closure report under Section 169 of Cr.P.C. against the aforesaid petitioners is apparently not in consonance with the provisions of law.

IN THE HIGH COURT OF BOMBAY

Writ petition No. 599 of 2014

Decided On: 05.05.2017

 Shahnaj Taj. Mohd. Hashmi a Vs. Senior Inspector of Police 

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Anuja Prabhudessai, JJ.

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Whether magistrate can release accused on default bail on the ground that police has filed incomplete charge-sheet?

Coming to the order of grant of bail to the accused, as stated earlier, the bail was granted purely on the ground that the charge-sheet was not filed within 90 days. That finding was based on the illegal order of the learned Magistrate of refusing to take the charge-sheet relying on the circular of the District Judge which we have already held to be illegal. In the facts and circumstances of the case, we are of the clear opinion that the police had validly filed the charge-sheet on 21-12-1995 and the learned Magistrate has illegally refused to accept the same. Once we hold that the police had filed a valid charge-sheet on 21-12-1995, the accused cannot get the advantage of the provisions of section 167(2) inasmuch as under those provisions, the accused would be entitled to bail only if the charge-sheet was not filed within 90 days from the date of the arrest of the accused. In the facts and circumstances of the case, no fault lay with the police and they had filed the charge-sheet which was illegally rejected by the Magistrate. In fact, and in law, the charge-sheet, in the facts and circumstances of the case was filed on 21-12-1995 and, consequently, the order of the learned Magistrate releasing the accused on bail on the erroneous footing that the charge-sheet was not filed within 90 days is clearly illegal and must be quashed and set aside.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 219 of 1996

Decided On: 04.06.1996

 Rohini Mahavir Godse Vs. The State of Maharashtra 

Hon'ble Judges/Coram:
V.P. Tipnis and J.N. Patel, JJ.

Citation: 1996(2) Mh.L.J. 492

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Supreme Court: Accused prosecuted for an offence U/S 304(B) of IPC can get default bail only on completion of 90 days

 In a case involving offence punishable under Section 304(B) is the period for filing challan 90 days or 60 days?

8. A bare reading of Section 304(B) IPC shows that whoever commits "dowry death" in terms of Section 304(B) IPC shall be punished with an imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life. In other words, the minimum sentence is 7 years but in a given case sentence of imprisonment for life can be awarded. Put differently, sentence of imprisonment for life can be awarded in respect of an offence punishable under Section 304(B) IPC. Proviso to Sub-section (2) of Section 167 consists of three parts. The first part relates to power of Magistrate to authorise detention of the accused person. This part consists of two sub-parts. In positive terms it prescribes that no Magistrate shall authorize detention of the accused in custody, under this paragraph [meaning Sub-section (2)(a)] for a total period exceeding (i) 90 days where the investigation relates to an offence punishable under death, imprisonment for life or imprisonment for a terms of not less than 10 years (ii) 60 days where the investigation relates to any other offences. The period of 90 days is applicable to cases where the investigation relates to the three categories of offences which are punishable with (i) death, (ii) imprisonment for life; or (iii) imprisonment for a term of not less than ten years. The question is whether Section 304(B) is an offence "punishable" with imprisonment for life.  A bare reading of Rajiv Chaudhary's case (supra) shows that the same related to an offence punishable under Section 386 IPC and the sentence in respect of the said offence is not less than 10 years. This Court held that the expression "not less than" means that the imprisonment should be 10 years or more to attract 90 days period. In that context it was said that for the purpose of Clause (i) of proviso (a) of Section 167(2) Cr.PC the imprisonment should be for a clear period of 10 years or more.

The position is different in respect of the offence punishable under Section 304(B) IPC. In case of Section 304(B) the range varies between 7 years and imprisonment for life. What should be the adequate punishment in a given case has to be decided by the Court on the basis of the facts and circumstances involved in the particular case. The stage of imposing a sentence comes only after recording the order of conviction of the accused person. The significant word in the proviso is "punishable". The word "punishable" as used in statutes which declare that certain offences are punishable in a certain way means liable to be punished in the way designated. It is ordinarily defined as deserving of or capable or liable to punishment, capable of being punished by law or right, may be punished or liable to be punished, and not must be punished.

10. While dealing with a case relating to Punjab Borstal Act, 1926, this Court held that a person convicted under Section 302 IPC and sentenced to life imprisonment is not entitled to benefit of Section 5 of the said Act as offence of murder is punishable with death. (See Sube Singh and Ors. v. State of Haryana and Ors. MANU/SC/0515/1988 : 1989CriLJ297 .

11. Where minimum and maximum sentences are prescribed both are imposable depending on the facts of the cases. It is for the Court, after recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence. The High Court's view in the impugned order that permissible period of filing of challan is 90 days is the correct view.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 757 of 2006

Decided On: 13.07.2006

Bhupinder Singh  Vs.  Jarnail Singh and Ors.

Hon'ble Judges/Coram:

Dr. Arijit Pasayat and S.H. Kapadia, JJ.

Citation: (2006) 6 SCC 277

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What is basic concept of chargesheet?

The word 'charge­sheet' is not found in the Code of Criminal

Procedure.   It is found in Police Manual.   However, it has acquired a

particular   meaning   by   usage.   The   term   'charge­sheet',   though   not

defined or spoken about in the Code of Criminal Procedure, has become

popular and the Courts of all levels ­ including the Apex Court – use this

term in their judgments and orders.  Thus, the term 'charge­sheet' has

acquired a meaning by usage and undoubtedly, that meaning is 'a police
report' under section 173 of the Code, which discloses commission of an
offence by a certain person or persons.  Thus, 'charge­sheet' is popularly
and commonly understood to mean a final report submitted by a police
officer   after   investigation,   disclosing   commission   of   a   cognizable
offence/offences   by   a   certain   person/persons,   not   only   in   common
parlance, but also in legal parlance.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.722 of 2012

The State of Maharashtra Vs. Ajay Jagdish Pande and 3 ors 
and 2.

   CORAM :   NARESH H. PATIL &
ABHAY M. THIPSAY, JJ.
   
  PRONOUNCED ON : 25th JUNE 2014

Citation : 2016 ALLMR(CRI)1864

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Whether magistrate can direct investigating officer to add sections in FIR registered as per his direction U/S 156 of CRPC?

 I   have   gone   through   the   said   judgment.     It   is   stated   in   the
judgment that the Magistrate directing registration of offence has impliedly
been empowered to take all necessary steps for proper investigation of the
case, which may include monitoring the same. 
7. After having gone through the said judgment and the  judgment
reported at AIR 2003 SC 2612 (Union of India  Vs. Prakash P. Hinduja) I
have come to the conclusion that the manner and the  method of conducting
investigation are left entirely  with the officer­ in­charge of the police station or
a subordinate officer deputed by him.  The Magistrate has got the very limited

role to play once a complaint/application is sent to police for investigation in
exercise of powers under Section 156(3) of the Code of Criminal Procedure.
The   formation   of   opinion   as   to   whether   there   is   sufficient   evidence   to
charge­sheet  or  otherwise  is  always   left  to the  Investigating  Officer.    The
Magistrate, of course, is not bound by the final report.  He may take his own
decision   after   receipt   of   final   report.     However,   till   the   investigation   is
completed and report under Section 173 of Code of Criminal Procedure   is
submitted, the Magistrate has no role to play in investigation of the complaint
referred  by him to the police. One may refer to paragraphs 13 and 14 of the
judgment of Hon’ble Supreme Court in the case of Union of India Vs. Prakash
P.   Hinduja   (supra)   in   support   of   the   view   expressed   by   me   hereinabove.
Paragraphs 13 and 14 of the judgment run as under:­
“13.  The     provisions   referred   to   above   occurring   in
Chapter XII of the Code show that detail and elaborate
provisions   have   been   made   for   securing   that   an
investigation takes place regarding an offence of which
information has been given and the same is done in
accordance with the provisions of the Code.  The manner
and the method of conducting the investigation are left
entirely to the officer­ in­charge of the police station or a
subordinate officer deputed by him.  A Magistrate has no
power to interfere with the same.  The formation of the
opinion   whether   there   is   sufficient   evidence   or
reasonable ground of suspicion to justify the forwarding
of the case to a Magistrate or not as contemplated by Ss.
169 and 170 is to be that of the officer­ in­charge of the

police station and a Magistrate has absolutely no role to
play at this stage.   Similarly, after completion of the
investigation while making a report to the Magistrate
under s. 173, the requisite details have to be submitted
by the officer ­in­charge of the police station without any
kind of interference or direction of   a Magistrate   and
this will include a report regarding the fact whether any
offence appears to have been committed and if so, by
whom, as provided by Cl. (d) of sub­section (2(i) of this
section.  These provisions will also be applicable in cases
under Prevention of Corruption Act, 1947 by virtue of S.
7­A thereof and Prevention of Corruption Act, 1988 by
virtue of S. 22 thereof. 
14.  The Magistrate is no doubt not bound to accept a
final   report   (sometimes   called   as   closer   report)
submitted by the police and if he feels that the evidence
and the material collected during investigation justifies
prosecution of the accused, he may not accept the final
report and take cognizance of the offence and summon
the accused but this does not mean that he would be
interfering with the investigation as such. He would be
doing so in exercise of powers conferred by S. 190, Cr.
P.C. The statutory provisions are, therefore, absolutely
clear   that   the   Court   cannot     interfere   with   the
investigation.”
       In addition to  what has been stated hereinabove, it may not be
forgotten   that   F.I.R.   is   not   encyclopedia   of   the   case.   The   F.I.R.   sets   the

investigating agency  into motion. The Investigating Officer is not prevented
from adding or deleting few more penal provisions, if during the course of
investigation, material collected warrants  such steps.  
 The petitioner has one more opportunity to agitate his point of
view.   That stage will come when the report under Section 173 of Code of
Criminal Procedure  is filed before the Court of Magistrate. 
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.588 OF 2012

Mr. Gajendra Puranrao Tayade,  Vs   State of Maharashtra 

                             CORAM : M.L. TAHALIYANI, J.
                                DATED  : JANUARY 29, 2013.
Citation: 2013ALLMR(Cri)1963

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