Whether an investigating officer can file chargesheet against one accused and conduct further investigation against other accused?

Section 173 of Cr.P.C. mandates the investigating officer to complete the investigation as early as possible. Section 167 of the Code also stipulates the time within which the investigation is to be completed by the investigating officer. Failing to do so would entail in the accused being released on statutory bail as provided under Section 167(2) of Cr.P.C. In case there are more than one accused and some of them are absconding, the investigating officer is not expected to wait till the absconding accused is arrested so as to proceed with further investigation with regard to his involvement. With the available evidence on record, he is at liberty to file a final report against the accused, who have already been apprehended. As and when the absconding accused is available, a final report can be filed under Section 173(8) of Cr.P.C. as against him also. The case of the prosecution in the instant case is that weapon allegedly used by the 2nd accused was not recovered and it could not have been done so in his absence. It is only after the arrest of the 2nd accused that the provisions under Section 27 of the Evidence Act could come into play and on the basis of a statement that could be recorded whilst in custody the recovery could be made. The final report filed by the investigating officer against the 1st accused in this case makes it clear that the weapon involved in the commission of the offence was yet to be recovered from the 2nd accused, who was absconding with the weapon. Nothing precludes the investigating officer from reserving his right to arrest the 2nd accused as and when he is available and then proceed to recover the weapon and file a final report as against him.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. MC. No. 1797 of 2017

Decided On: 30.06.2020

 Sunil Raj  Vs.  Gopan and Ors.

Hon'ble Judges/Coram:
Ashok Menon, J.

Citation: MANU/KE/1663/2020

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Whether the magistrate must give reasons while differing with the final report of police exonerating accused?

After going through the record, it is evident that the complaint petition was thoroughly investigated by the investigating agency and thereafter, it was found that it was not a case of criminal offence, rather the investigating officer had noticed that it was a civil dispute. Accordingly, petitioner's name was not included in column No. 11 of the charge-sheet. Meaning thereby that petitioner was not forwarded as accused in the case and final report was submitted. So far as point, which has been raised by the learned counsel for the complainant that even in business transaction, there can be case of criminal offence, this Court is in agreement with his submission, but in the present case, the case was investigated thoroughly by the statutory investigating agency and no sufficient material was found to forward the petitioner to face trial and his name was not incorporated in the charge-sheet as accused. The learned Chief Judicial Magistrate though was competent to pass order of cognizance, differing with the police report, it was essential on his part to assign reason succinctly for differing with the police report. On perusal of the impugned order, the Court is satisfied that no reason has been assigned by the learned Magistrate and as such, on this very point, the order of cognizance is liable to be set aside.

8. It goes without saying that if an investigating agency after thorough investigation submits final report exonerating accused persons, the said report may not be treated as waste paper. Once such report is submitted, the learned Magistrate at the time of differing with the police report is required to assign succinct reason. Since in the order impugned, no reason has been assigned, the Court is satisfied that order impugned is liable to be set aside, particularly; in view of nature of accusation, as has been levelled in the complaint petition.

IN THE HIGH COURT OF PATNA

Cr. Misc. No. 21406 of 2013

Decided On: 16.09.2016

S.M. Mahtab Ahmad  Vs. The State of Bihar and Ors.

Hon'ble Judges/Coram:

Rakesh Kumar, J.

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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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When protest petition has to be in format of criminal complaint?

In the case of Abhinandan Jha MANU/SC/0054/1967 (supra) also what was observed was 'it is not very clear as to whether the Magistrate has chosen to treat the protest petition as complaint.' This observation would not mean that every protest petition must necessarily be treated as & complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made Under Section 200 Code of Criminal Procedure If the Magistrate did not treat the protest petition as a complaint, the protest petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The protest petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case.

43. We may also notice that in Veerappa and Ors. v. Bhimareddappa MANU/KA/0336/2001 : 2002 CriLJ 2150 (Karnataka), the High Court of Karnataka observed as follows:

From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the Magistrate Under Section 200 of the Code of Criminal Procedure, but, has approached the police only and where the police after investigation have filed the 'B' report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance Under Section 190(1)(a) of the Code of Criminal Procedure on a complaint. If it were to be so, the protest petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) of the Code of Criminal Procedure, and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance Under Section 190(1)(a) of the Code of Criminal Procedure Instead, if it is to be simply styled as a protest petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding Under Section 200 of the Code of Criminal Procedure.

44. Complaint is defined in Section 2(d) of the Code as follows:

(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;

45. If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required Under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second Respondent against the final report.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1015 of 2019 

Decided On: 09.07.2019

 Vishnu Kumar Tiwari Vs.  State of Uttar Pradesh and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and K.M. Joseph, JJ.

Citation: (2019) 8 SCC 27: AIR 2019 SC 3482

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Whether police can file final report saying that no offence is made out against accused considering his right of private defence?

From this provision, it is crystal clear that the an offence either culpable homicide or murder as defined under Sections 299 and 300 of I.P.C. are also subject to the exceptions contained in Chapter IV titled "General Exceptions". Section 96 of I.P.C. declares that nothing is an offence which is done in the exercise of the right of private defence. Section 100 states as to when the right of private defence of body extends to causing of death. Thus, during the course of investigation, if the police officer finds that the act of the accused falls squarely within the ambit of Section 100 of I.P.C. then, he cannot file a positive final report to the effect that an offence either under Sections 302 or 304 I.P.C. has been committed. For arriving at such a conclusion that the act of the assailants falls squarely within the ambit of Section 100 of the Code, during the course of investigation, the police officer is not concerned with Section 105 of the Evidence Act. Section 105 of the Evidence Act deals with proof of exception during trial. It states that it is for the accused to prove that his act would fall under any one of the general exceptions or special exceptions. Since, during investigation, the accused is not called upon to prove any disputed fact, the question of applying Section 105 of the Evidence Act does not arise at all. The argument of the learned counsel for the petitioner in this regard therefore deserves only to be rejected.

IN THE HIGH COURT OF MADRAS

W.P. No. 25743 of 2010

Decided On: 09.02.2016

 P. Pugalenthi Vs. State of Tamil Nadu and Ors.

Coram:

M. Jaichandren and S. Nagamuthu, JJ.

Citation: 2017 CRLJ(NOC)82 Madras

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Whether accused can take defence of legal insanity when final report is filed by police?

 The ingredients of Section 84 of the Indian

Penal Code can only be taken as a defence during

trial. It is not possible to throw out the Final Report in

a case on the ground that the concerned accused was

suffering from legal insanity. The legal insanity has to

be proved by the concerned accused, who is harping

upon such a defence. The standard of proof required

is only by proof through preponderance of probabilities

and not proof beyond doubt. Matters being so, the

present stage is too premature to consider those

aspects.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT:

           MR. JUSTICE B.KEMAL PASHA

    28TH DAY OF JULY 2016
                 Crl.MC.No. 4789 of 2016 ()
             

           R. ASHOK KUMAR, 
V

          STATE OF KERALA,
          
      Citation:2016 CRLJ4765

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