Shahnaj Taj Mohd. Hashmi And Anr vs The Senior Inspector Of Police And … on 5 May, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 599 OF 2014

Mrs. Shahnaj Taj. Mohd. Hashmi
Anr. ..Petitioners

v/s.

Senior Inspector of Police Anr. ..Respondents

Mr. Afroz A. Siddiqui for the Petitioner.
Mr.S.K.Shinde, P.P. a/w. Mr.K.V.Saste, APP for the respondent
Nos.1 and 2.

CORAM : A.S.OKA ANUJA PRABHUDESSAI, JJ.

RESERVED ON : 10TH MARCH, 2017
PRONOUNCED ON : 5th MAY, 2017

JUDGMENT (PER ANUJA PARABHUDESSAI, J.).

1. Rule. Rule made returnable forthwith. By consent of

parties taken up for hearing.

2. By this petition under Article 226 of the Constitution of

India and Section 482 of Code of Criminal Procedure (in short

Cr.P.C.”) the Petitioners have sought to quash the FIR No. 295

of 2013 registered against the Petitioners at Sakinaka Police

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Station for the offences under Section 498A, 323, 504 read

with 34 of the Indian Penal Code.

3. The Respondent No.3/ first informant was married to one

Karam Husain Hashmi. The petitioners are the sisters of said

Karam Husain Hashmi and the sisters-in-law of the Respondent

No.3/ first informant. The Respondent no.3 had lodged the

aforestated FIR alleging that her husband Karam Husain

Hashmi and his family members, including the Petitioners

herein had been demanding dowry and subjected her to

cruelty.

4. The learned Counsel for the Petitioners has submitted

that the allegations in the FIR taken at its face value do not

disclose any offence against the petitioners. He submitted that

continuation of this proceeding would amount to abuse of

process of law.

5. The learned APP, upon instructions has submitted that the

investigation in the subject FIR is already completed and the

chargesheet has been filed against the husband and the

parents-in-law of the Respondent no.3/ first informant. He

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has submitted that a closure report has been filed against the

aforesaid Petitioners under Section 169 of Cr.P.C.

6. The grievance of the Petitioners would stand redressed

with the statement that no charge sheet has been filed against

them. Nevertheless, we deem it appropriate to consider the

legality of submitting the closure report under Section 169 of

Cr.P.C and the procedure adopted by the investigating agency.

7. In this regard, it would be necessary to refer to the

relevant provisions contained in Chapter XIV of the Cr.P.C.,

which deals with registration of First Information Report and

powers of the police to investigate the First Information Report.

. Section 154 Cr.P.C imposes duty on the Officer-in-charge

of the police station to record in writing the information

relation to commission of a cognizable offence.

. Section 155 Cr.P.C relates to the information as to non-

cognizable cases and investigation of such cases.

. Sub-Section (1) of Section 156 Cr.P.C. authorizes the

police officer to investigate any cognizable case without the

order of the Magistrate. Sub-Section (3) of Section 156 Cr.P.C.

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empowers the Magistrate to order such investigation.

. Section 157 Cr.P.C prescribes the procedure for

investigation. Sub-Section (1) of this Section mandates that

whenever the police officer has reason to suspect that a

cognizable offence has been committed he shall forthwith

forward the report of the same to a Magistrate empowered to

take cognizance of such offence.

. Sections 160 to 166 of the Cr.P.C. prescribe power and

procedure of securing attendance of persons acquainted with

the facts and circumstances of the case, recording and use of

the statements of the witnesses, search, issuance of search

warrants etc.

. Section 167 Cr.P.C prescribes the procedure when the

investigation of an offence cannot be completed within a

period of 24 hours.

. Section 169 Cr.P.C relates to the powers of the officer in

charge of the concerned Police Station to release the accused

person when the evidence is deficient. Whereas Section 170

Cr.P.C prescribes the procedure to be followed in cases to be

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sent to Magistrate when evidence is sufficient. Section 173

Cr.P.C contemplates filing of the report upon completion of

investigation. These three Sections which are relevant to

decide the issue read as under :

S. 169: Release of accused when evidence
deficient.-If, upon an investigation under this
Chapter, it appears to the officer in charge of the
police station that there is not sufficient evidence
or reasonable ground of suspicion to justify the
forwarding of the accused to a Magistrate, such
officer shall, if such person is in custody, release
him on his executing a bond, with or without
sureties, as such officer may direct, to appear, if
and when so required, before a Magistrate
empowered to take cognizance of the offence on a
police report, and to try the accused or commit him
for trial.

S.170: Cases to be sent to Magistrate when evi-
dence is sufficient.-

1. If, upon an investigation under this Chapter, it
appears to the officer in charge of the police sta-
tion that there is sufficient evidence or reasonable
ground as aforesaid, such officer shall forward the
accused under custody to a Magistrate empowered
to take cognizance of the offence upon a police re-

port and to try the accused or commit him for trial,
or, if the offence is bailable and the accused is able
to give security, shall take security from him for his
appearance before such Magistrate on a day fixed

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and for his attendance from day to day before such
Magistrate until otherwise directed.

2. When the officer in charge of a police station
forwards an accused person to a Magistrate or
takes security for his appearance before such
Magistrate under this section, he shall send to such
Magistrate any weapon or other article which it
may be necessary to produce before him, and
shall require the complainant (if any) and so many
of the persons who appear to such officer to be ac-
quainted with the facts and circumstances of the
case as he may think necessary, to execute a bond
to appear before the Magistrate as thereby di-
rected and prosecute or give evidence (as the case
may be) in the matter of the charge against the ac-
cused.

3. If the Court of the Chief Judicial Magistrate is
mentioned in the bond, such Court shall be held to
include any Court to which such Magistrate may
refer the case for inquiry or trial, provided reason-
able notice of such reference is given to such com-

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plainant or persons.

4. The officer in whose presence the bond is exe-
cuted shall deliver a copy thereof to one of the per-
sons who executed it, and shall then send to the
Magistrate the original with his report.

S. 173. Report of police officer on completion of
investigation.-

(1) Every investigation under this Chapter shall be
completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in
charge of the police station shall forward to a

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Magistrate empowered to take cognizance of the
offence on a police report, a report in the form
prescribed by the State Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be
acquainted with the circumstances of the case;

(d) whether any offence appears to have been
committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and,
if so, weather with or without sureties;

(g) whether he has been forwarded in custody
under section 170.

(ii) The officer shall also communicate, In such
manner as may be prescribed by the State
Government, the action taken by him, to the
person, if any, by whom the information relating to
the commission of the offence was first given.
(3) Where a superior officer of police has been
appointed under section 158, the report shall, in
any case in which the State Government by general
or special order so directs, be submitted through
that officer, and he may, pending the orders of the
Magistrate, direct the officer in charge of the police
station to make further investigation,
(4) Whenever it appears from a report forwarded
under this section that the accused has been
released on his bond, the Magistrate shall make
such order- for the discharge of such bond or
otherwise as he thinks fit.

(5) When such report is in respect of a case to
which section 170 applies, the police officer shall
forward to the Magistrate alongwith the report-

(a) all documents or relevant extracts thereof on
which the prosecution proposes to rely other than
those already sent to the Magistrate during

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investigation;

(b) the statements- recorded under section 161 of
all the persons whom the prosecution proposes to
examine as its witnesses.

(6) If the police officer is of opinion that any part of
any such statement is not relevant to the subject-
matter of the proceedings or that its disclosure to
the accused is not essential in the interests of
justice and is inexpedient in the public interest, he
shall indicate that part of the statement and
append a note requesting the Magistrate to exclude
that part from the copies to be granted to the
accused and stating his reasons for making such
request.

(7) Where the police officer investigating the case
finds it convenient so to do, he may furnish to the
accused copies of all or any of the documents
referred to in sub- section (5).

(8) Nothing in this section shall be deemed to
preclude further investigation in respect of an
offence after a report under sub- section (2) has
been forwarded to the Magistrate and, where upon
such investigation, the officer in charge of the
police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence in
the form prescribed; and the provisions of sub-
sections (2) to (6) shall, as far as may be, apply in
relation to such report or reports as they apply in
relation to a report forwarded under sub- section
(2).

8. A plain reading of Sections 169 and 170 Cr.P.C reveals

that these Sections can be invoked when the accused is in

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custody. Section 169 comes into operation when there is no

sufficient evidence to proceed against the accused. This

Section empowers the officer-in-charge of the concerned police

station to release such accused person on bail on executing

bond, with or without surety to appear before the concerned

Magistrate, if and when so required. Whereas, Section 170

comes into play when there is sufficient evidence or reasonable

ground to send the accused for trial. In such circumstances,

the Officer-in-charge is required to forward the accused to the

concerned Magistrate, and in case the offences are bailable, to

release the accused on bail upon taking surety for his

appearance before such Magistrate.

9. Section 173 Cr.P.C contemplates filing of a report upon

completion of investigation, which should contain all the

particulars mentioned in sub Section (2) of Section 173 of

Cr.P.C. Such report includes the cases covered under Section

169 as well as 170 of Cr.P.C. Sub-Section (4) of Section 173

relates to Section 169 of Cr.P.C., where the accused has been

released on his bond for want of sufficient evidence or

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reasonable grounds to send him for trial. This provision

empowers the Magistrate either to discharge the bond, or to

order further investigation, or to take cognizance of the

offence, as the Magistrate thinks fit. Sub Section 5 of Section

173, which relates to the cases under Section 170 of Cr.P.C.

mandates that the police officer shall forward to the Magistrate

along with the report, all relevant documents and the

statements recorded under Section 161 of Cr.P.C. Thus, the

investigation, which commences with registration of FIR under

Section 154 of Cr.P.C concludes with filing of report under

Section 173 of Cr.P.C, subject to further investigation as

contemplated under Section 173(8) of Cr.P.C.

10. The report under Section 173 has been classified in

Bombay Police Manual, 1959 as – “Charge-sheet”- to be filed

when the accused is sent for trial and “Final Report”- to be filed

when the accused is not sent for trial. It would be therefore

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advantageous to refer to Rules 218 and 209 of Bombay Police

Manual which prescribes the procedure and guidelines for

filing Charge-sheet and the final report under Section 173 of

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Cr.P.C. Rule 218 states that the reports required by Section

173 Cr.P.C., to be submitted on the completion of an

investigation are of two kinds viz. (1) Chargesheet in Form

C.P.C.20 and (ii) Final reports in Form C.P.C.19. Sub-rule 2 of

Rule 218 states that when there is sufficient evidence to justify

the sending of an accused person to the Magistrate, the charge-

sheet shall be sent to the Magistrate directly. The said sub-

Rule (2) specifies further details/points which are required to

be observed in addition to the information to be filled up in the

columns of the charge-sheet.

11. Rule 219 stipulates that when there is no sufficient

evidence to justify the forwarding of the accused to a

Magistrate, the police station officer or the Investigating Officer

shall release the accused person on bail, if he is in custody.

12. Rule 219 (1) states that when there is no suficient

evidence to justify the forwarding of the accused to the

Magistrate, the Police Station Officer or the Investigating

Officer will release the accused person on bail, if he is in

custody. Sub-Rule 2 of Rule 219 stipulates that the police

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station officers shall then submit a final report to the

Magistrate empowered to take cognizance of an offence on a

police report, through the Superintendent of Police or the sub-

divisional police officer, as the case may be, in the following

three cases.

(a) those in which it appears from the police investigation that

no offence has been committed.

(b) Those in which it appears from the police investigation

that only a non-cognizable offence has been committed.

(c ) Those in which there are grounds for believing that

offence has been committed, but in which, in the opinion of the

officer in charge of the police station, there are not sufficient

grounds to investigate or there is no sufficient evidence to

justify sending anyone for trial, or in which the offender is not

known or cannot be arrested and send for trial.

13. Sub-Rule 3 of Rule 219 contemplates that the final report

should be written up carefully by the officer-in-charge of the

police station personally and should be accompanied by all the

case papers numbered and indexed methodically. If the

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accused has been released on bail, the Magistrate should be

requested to cancel the bail bonds and pass order regarding

disposal of property. A request should also be made to the

Magistrate to classify the case and to issue appropriate

summary of his order viz. “A’ True, undetected (where there is

no clue whatsoever about the culprits or property or where the

accused is known but there is no evidence to justify his being

sent up to the Magistrate (for trial).

“B’ Maliciously false.

“C’ Neither true nor false eg. due to mistake of facts or being of

a civil nature.

“Non-cognizable” police investigation reveals commission of

only a non-cognizable offence.

14. The aforesaid rules clearly indicate that irrespective of the

fact whether the accused person is released on bail under

Section 169 of Cr.P.C. or he is forwarded to the Magistrate

under Section 170 of Cr.P.C., upon completion of investigation,

the concerned officer-in-charge of the police station has to

either file a report referred to as charge-sheet in Rule 218, or a

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final report as contemplated under Rule 219 of Bombay Police

Manual. Needless to state that the Final Report should contain

detail reasons for not sending the accused for trial.

15. In this connection we may refer to the decision in

Abhinandan Jha And Others vs. Dinesh Mishra 1, wherein the

Apex Court, after considering the provisions in Chapter XIV of

the Code of Criminal Procedure has held as under:

“9. From the foregoing sections, occurring in Chapter
XIV, it will be seen that very elaborate provisions have
been made for securing that an investigation does
take place into a reported offence and the
investigation is carried out within the limits of the
law, without causing any harassment to the accused
and is also completed without unnecessary or undue
delay. But the point to be noted is that the manner
and method of conducting the investigation, are left
entirely to the police, and the Magistrate, so far as we
can see, has not power under any of these provisions,
to interfere with the same. If, on investigation, it
appears to the officer, in-charge of a police station, or
to the officer making an investigation, that there is no
sufficient evidence or reasonable grounds of suspicion
justifying the forwarding of an accused to a
Magistrate, Section 169 says that the officer shall
release the accused to a Magistrate, Section 169 says
that the officer shall release the accused, if in custody
on his executing a bond to appear before the
Magistrate. Similarly, if , on the other hand, it

1 AIR 1968 SC 117

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appears to the officer, in-charge of a police station, or
to the officer making investigation, under Chapter
XIV, that there is sufficient evidence or reasonable
ground to justify the forwarding of an accused to a
Magistrate, such an officer is required , under Section
170, to forward the accused to a Magistrate; or, if the
offence is bailable, to take security from him for his
appearance before such Magistrate. But whether a
case comes under Section 169, or under Section 170
of the Code, on the completion of the investigation,
the police officer has to submit a report to the
Magistrate, under Section 173, in the manner
indicated therein, containing the various details …”

16. Similarly, in Kamalapati Trivedi v. State of West

Bengal2, the Apex Court has observed that:

“Section 169 and 170 do not talk of the submission
of any report by the police to the Magistrate,
although they do state what the police has to do
short of such submission when it finds at the
conclusion of the investigation (1) that there is not
sufficient evidence or reasonable ground of
suspicion to justify the forwarding of the accused
to a Magistrate (section 169), (2) that there is
sufficient evidence or reasonable ground as
aforesaid (Section 170). In either case the final
report of the police is to be submitted to the
Magistrate under sub-section (1) of section 173.

Sub-section (3) of that section further provides
that in the case of a report by the police that the
accused has been released on his bond (which is
the situation envisaged by section 169), the
Magistrate shall make “such order for the
discharge of such bond or otherwise as he thinks
2 AIR 1979 SC 77

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fit”. Now what are the courses open to the
Magistrate in such a situation? He may, as held
by this Court in Abhinandan Jha Others v.
Dinesh Mishra
. (1) agree with the report of the
police and file the proceedings, or (2) not agree
with the police report and (a) order further
investigation, or (b) hold that the evidence is
sufficient to justify the forwarding of the accused
to the Magistrate and take cognizance of the
offence complained of.

The appropriate course has to be decided upon af-
ter a consideration of the report and the applica-
tion of the mind of the Magistrate to the contents
thereof.

17. 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

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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.

18. It is also pertinent to note that in the instant case, the

concerned Officer-in-charge has already submitted a report

under Section 173 of Cr.P.C. A copy of the said report which

has been placed on record for our perusal reveals that Kumar

Husein Hashmi who is the husband of the first informant, and

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three other accused namely Sakunissa Mohd. Hadis Hashmi,

Akhtar Husein Md. Husein Hashmi and Karam Husein Md.

Hadis Hashmi have been sent for trial. The report further

reveals that the petitioners herein were not arrested and have

not been sent for trial. The said report against the Petitioner

would therefore be a Final Report under Rule 219 of Bombay

Police Manual.

19. It may be mentioned that filing of the Final Report is not

an empty formality. Such report should contain all the details

for not sending the accused for trial, as to enable the

Magistrate to decide what course to adopt i.e. whether to

accept the report and discharge the bonds or order further

investigation or to take cotgnizance of the offence. In the

instant case, the report reveals that the concerned Investigating

Officer/ Officer-in-charge of the police station had not filled up

all the required details pertaining to these petitioners and in

fact, most of the columns have been left blank. The concerned

Police Officer has also not disclosed the reasons for not sending

the aforesaid petitioners for trial and has not made request to

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classify the case and issue an appropriate summary viz. “A”, “B”

or “C” Summary. The final report is filed in a most cursory

manner and is not in consonance with the provisions of Cr.P.C.

as well as the Rules under Bombay Police Manual.

20. Be that as it may, since the report is already filed before a

Magistrate, it would be within the domain of the Magistrate to

consider the said report and take a decision whether or not to

accept the report filed against the petitioners, or send the case

for further investigation or take cognizance of the offence

under Section 190 (1)(b) of the Cr.P.C. Nevertheless, the

powers under Section 482 of Cr.P.C. are wide and can be

exercised to prevent abuse of process of law. In exercise of

these powers we have perused the FIR, which reveals that the

petitioners are the married sisters of the husband of the first

informant. The first information report does not contain any

allegation against the petitioners. The allegations contained in

the first information report, even when taken at face value and

accepted in entirety, do not disclose any offence against these

petitioners. In such circumstances, continuation of the

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proceedings emanating from the said FIR would be nothing but

abuse of process of law.

21. Hence, the petition is allowed. The FIR No. 295 of 2013

registered with the Saki Naka Police Station, and all further

proceedings arising from the said FIR qua these petitioners are

hereby quashed and set aside.

(ANUJA PRABHUDESSAI, J.) (A.S.OKA, J.)

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