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No infirmity in order refusing to take cognizance of police report filed on basis of incomplete investigation

HIGH COURT OF TRIPURA
AGARTALA
CRL.REV.P.12 of 2015

The State of Tripura,—-Petitioner(s)
Versus

1. Sri Bimal Chakraborty,
the then B.D.O. Bishalgarh R.D. Block,
son of Shyamapada Chakraborty of Milan Chakra, P.S. A.D. Nagar,West Tripura District, Agartala

2. Sri Nibash Paul @ Nibash Chandra Paul,
Junior Mechanic of Bishalgarh R.D. Block,
son of Sri Maran Das Paul of Madhya Badharghat,P.S. A.D. Nagar, West Tripura District, Agartala

3. Sri Gautam Paul,
Junior Mechanic of Bishalgarh R.D. Block,
son of late Ramesh Chandra Paul of Purba Laxmibil, P.S. Bishalgarh, Sephaijala

4. Sri Shyamal Debbarma,
the then Gram Rozgar Sevak of Bishalgarh,
R.D. Block, son of Mrityunjoy Debbarma,of Gagan Sardar Para, Sutramura, P.S. Bishramganj

5. Sri Sarada Debbarma,
the then Gram Rozgar Sevak of Bishalgarh R.D. Block,
son of Sri Umesh Chandra Debbarma of Mandapkilla, P.S. Bishalgarh

6.Sri Debaprasad Nandi,
the then Gram Rozgar Sevak
of Bishalgarh R.D. Block,
son of Sri Sunil Kumar Nandi of Bishramganj, P.S. Bishramganj

7. Sri Priyanath Das,
son of late Prahallad Das
of Indranagar, P.S. Melagarh,District : Sephaijala

8. Sri Tapan Das,
son of late Joytish Chandra Das,
Durga Chowmuhani, Natun Palli,
Near New Boys Club, P.S. West Agartala, District : West Tripura

9. Sri Gautam Saha,
son of late Priyalal Saha,
Rajghat, P.S. Melagarh, District : Sephaijala

10. Sri Partha Acharjee,
Accounts Asstt. of MGNREGA Section,
Bishalgarh R.D. Block,
son of Sri Sailendra Acharjee of Suryamani Nagar, P.S. Amtali

11. M/s B.D.S. Brick Field,
Indranagar, Melagarh, P.S. Melagarh Sephaijala District

12. M/s Shib Construction,
Sachindra Nagar Colony, Purba Barjala, P.S. Jirania, West Tripura District —- Respondent(s)

For Petitioner(s) : Mr. B. Choudhury, PP.
For Respondent(s) : Mr. Saradindu Chakraborty, Adv.
Mr. P.K. Pal, Adv.
Mr. P. Saha, Adv.

Date of hearing : 18.06.2018

Date of delivery of Judgment & Order : 03.01.2019

Whether fit for reporting : YES

BEFORE HON’BLE MR. JUSTICE S. TALAPATRA

Judgment & Order

The State by means of this revision petition filed under Section 397 read with Section 401 of the Cr.P.C. has challenged the order dated 16.01.2015 delivered in Special Case No.01 of 2015 by the Special Judge [the Session Judge], West Tripura, Agartala, but the challenge is restricted to refusal to take cognizance of the police report filed under Section 173(2) of the Cr.P.C. in connection with Bishalgarh P.S. Case No.135/2014 under Section 409/468/471 read with Section 34 of the IPC and under Section 13 of Prevention of Corruption Act read with Section 120-B of the IPC. The reasons assigned for such refusal are as follows :

“Going through the police report filed, I find that at page 374 of the volume 2 at para 5 it is stated that further investigation is continuing against the arrested and absconding accused persons.
In my considered opinion, this stands on the way of accepting the police report because section 173(2)(i) says that as soon as investigation is completed the Officer-in-Charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report etc. What follows from the above is that on completion of investigation only, a police report can be filed by the O.C., of the P.S. and not before.
In my opinion, provision of Section 173(8) Cr.P.C. does not permit filing of police report at the same time saying that the investigation is in progress because completion of investigation is sine qua non to filing of chargesheet.

Sub section 8 of course permits further investigation but is under a different circumstance when subsequent to filing police report, new facts are revealed requiring further investigation. Filing final report and in the same report stating that further investigation is in progress is not permissible. In this regard observation of the Apex Court in AIR 2004 SC 2078 may be quoted which runs as follows :

“Further investigation is not ruled out merely on grounds that it may delay trial. Even after Court takes cognizance of offence on earlier report submitted by police. It is open to police to conduct further investigation in a proper manner. On fresh facts coming to light police should seek permission of Court for further investigation.”

In the aforesaid scenario the police report submitted in the form as narrated above cannot be accepted and the O.C., Bishalgarh P.S. is required to file the report in the final form as expeditiously as possible preferably within two months from today. The report filed is however retained in the Court.”

2. Mr. B. Chowdhury, learned PP appearing for the State has submitted that the reasons so assigned by the Special Judge are grossly erroneous and completely unsustainable. Merely because in the police report it has been mentioned that further investigation was continuing by the investigating officer, the said police report was not accepted by giving „a pedantic interpretation‟ of Section 173(i),(ii) of the Cr.P.C. The Special Judge for the said reason has considered the police report as partial and not filed on completion of the investigation. Hence, the police have been directed to file the complete police report within the stipulated period for taking cognizance by the Magistrate. Mr. Chowdhury, learned PP has submitted that the police report as filed in the court of the Special Judge was in respect of a “complete transaction”. Mr. Chowdhury, learned PP has further submitted that it was the duty incumbent upon the Special Judge to consider the charge-sheet [the police report] and to come to an inference whether any offence has been disclosed. Mr. Chowdhury, learned PP has continued to submit that on completion of the investigation for the said transaction, the police report was submitted. From the said police report, it transpires that the accused persons in order to commit misappropriation of fund and pecuniary gain had hatched a criminal conspiracy. There are materials to be prima facie satisfied that a sum of Rs.1,04,88,946/- against fifteen work orders with the estimated cost of Rs.01,11,225/- [that included money in respect of material cost and wages] was defalcated. Further investigation as indicated is in respect of other transactions where similar offences have been committed by the accused persons. Some examples have been given by Mr. Chowdhury, learned PP from the police report, which is the part of the record. He has finally contended that the separate FIRs are not necessary for filing the separate police report against the distinct separate transaction which may come to the notice of the investigating officer while investigating one transaction. For filing separate police reports, no prejudice would be caused to the accused.

3. To buttress this contention, Mr. Chowdhury, learned PP has referred to the provisions of Section 218 of the Cr.P.C. which provides that for distinct offence for which any person is accused there shall be separate charge and every such charge shall be tried separately. However, having approached by the accused and looking at the aspect that nobody will be prejudiced, if the charges are tried together, he may direct a joint trial.

4. From the other side, Mr. S. Chakraborty, learned counsel appearing for the respondents has submitted that the legislature has envisaged submission of the police report only after completion of the investigation. There is no other provision in the code to file the police report in part. However, what section 173(8) of the Cr.P.C. provides is for further investigation which is quite distinguishable from the incomplete investigation. Mr. Chakraborty, learned counsel has submitted that the FIR is the genesis and edifice is built thereon by the investigation. Mr. Chakraborty, learned counsel has in this regard referred a decision of the apex court in Hasanbhai Valibhai Qureshi versus State of Gujarat and Others reported in AIR 2004 SC 2078 where it has been clearly held as under :

“12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.
13. In Om Prakash Narang and Anr. v. State (Delhi Admn.): AIR 1979 SC 1791 it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case.”

5. In the same line, another decision of the apex court in Amrutbhai Shambhubhai Patel versus Sumanbhai Kantibhai Patel and Others reported in (2017)Crl.J.1344 has been pressed in service by Mr. Chakraborty, learned counsel appearing for the respondents. In Amrutbhai Shambhubhai Patel (supra) the apex court has observed inter alia that from the plain comparison of provisions of Section 173 of the old Cr.P.C. [of 1898] and the same Section of the new Cr.P.C. [of 1973] it is explicit that the recast provision of 1973 Cr.P.C. did incorporate sub-Section (8) as a significant addition to the earlier provision. The newly added sub-Section (8) in Section 173 of the 1973 Cr.P.C., as its text evinces, permits further investigation by the Officer in Charge of the police station concerned in respect of an offence after a report under sub-Section 2 of the said Section has been forwarded to the Magistrate, to lay before the Magistrate the further report in the form prescribed, whereafter by such investigation, he obtains further evidence oral or documentary. It is further ordained that on submission of such further report, the essentialities engrafted in sub-Section (3) to (6) of Section 173 of the Cr.P.C. would apply also in relation to all such report or reports. The integration of sub-Section (8) in Section 173 is axiomatically subsequent to the 41st report of the Law Commission of India conveying its recommendation that after the submission of a final report under Section 173 a competent police officer in the event of availability of evidence bearing on the guilt or innocence of the accused to be permitted to examine the same and submit further report to the Magistrate concerned. This assumes significance having regard to the language consciously applied to design Section 173 (8) in the 1973 Cr.P.C. Noticeably though the Officer-in-Charge of the police station, in categorical terms has been empowered thereby to conduct further investigation and to lay a supplementary report assimilating the evidence, oral or documentary, obtained in the course of the said pursuit, but such authorization has been extended to the Magistrate who is in seisin of the proceeding. The un-amended and the amended sub-Section (8) of Section 173 Cr.P.C. if read in juxtaposition would overwhelmingly attach that by the latter, the investigating agency/officer alone has been authorized to conduct further investigation without limiting the stage of the proceeding relatable there to. This power to the investigating agency/officer is thus legislatively intended to be available at any stage of the proceeding.

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6. In Amrutbhai Shambhubhai Patel (supra) it has been further observed :

“49. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and Accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.”

[Emphasis added]

7. The question whether the police report can be filed in part keeping the investigation incomplete or continuing falls for consideration in this petition. The ancillary question that is embedded in the fundamental question is whether such police report can be brought within the definition of the police report as provided by Section 2(r) of the Cr.P.C. Section 2(r) of the Cr.P.C.
provides as under :

“(r) police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173.”

This definition sets at rest the controversy as to whether a report by the police in a non-cognizable and the report other than a final report will be a report by any police officer within the meaning of section 190(i)(b) of the code subject to whether the investigation has been completed or not. Therefore, there cannot be any confusion whether the report submitted by the investigating officer in the case in hand is apparently the police report within the meaning of “police report” as appearing in Section 173(2) of the Cr.P.C. The report forwarded by the police officer has to be treated as the police report but whether on the basis of the said report, the cognizance of any offence shall be taken by the Magistrate, it is altogether a different question. Whether the cognizance of an offence could be taken under Section 190 of the Cr.P.C. would depend. Whether the police report discloses of such facts which constitute commission of offence be verified by the Magistrate may be called “the substance test” by the Magistrate. Therefore, this test on the face of the report for merely noting that the further investigation is continuing against the arrested and the absconding accused persons the Magistrate cannot refuse to consider that report as the police report per se. But in that event other reports are to be discarded as it be, in that event, deemed that the investigation was complete. In the impugned order dated 16.01.2015 it has been recorded that for the said note stands on the way of accepting the police report inasmuch as Section 173(ii)(i) says that as soon as the investigation is completed the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence of the police report etc. Having observed thus, the Special Judge has passed the impugned direction that the investigation shall be completed within two months from the date of the order and accordingly the report be filed.

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8. This court is constrained to observe that the said direction is not only superfluous in the eye of law but it exceeds the jurisdiction of the court to direct the investigating officer to complete the investigation within a particular time. The court of course can direct the investigating officer to complete the investigation “without unnecessary delay”.

9. Mr. Chakraborty, learned counsel appearing for the respondents has brought to the notice of this court that on the basis of the same FIR as many as 18 police reports have been filed in the court of the Special Judge. By means of the reply- affidavit filed on 06.08.2015, a catalogue of those reports has been provided to this court. As a matter of reference, the said catalogue is extracted hereunder:

(1) Spl. (PC Act)01/2015 – Charge Sheet No.01/15 (2) Spl. (PC Act)06/2015 – Charge Sheet No.33/15 (3) Spl. (PC Act)07/2015 – Charge Sheet No.34/15 (4) Spl. (PC Act)08/2015 – Charge Sheet No.35/15 (5) Spl. (PC Act)09/2015 – Charge Sheet No.36/15 (6) Spl. (PC Act)10/2015 – Charge Sheet No.37/15 (7) Spl. (PC Act)11/2015 – Charge Sheet No.38/15 (8) Spl. (PC Act)12/2015 – Charge Sheet No.39/15 (9) Spl. (PC Act)13/2015 – Charge Sheet No.40/15 (10) Spl. (PC Act)14/2015 – Charge Sheet No.41/15 (11) Spl. (PC Act)15/2015 – Charge Sheet No.42/15 (12) Spl. (PC Act)16/2015 – Charge Sheet No.43/15 (13) Spl. (PC Act)17/2015 – Charge Sheet No.44/15 (14) Spl. (PC Act)18/2015 – Charge Sheet No.45/15 (15) Spl. (PC Act)19/2015 – Charge Sheet No.60/15 (16) Spl. (PC Act)20/2015 – Charge Sheet No.61/15 (17) Spl. (PC Act)21/2015 – Charge Sheet No.70/15 (18) Spl. (PC Act)22/2015 – Charge Sheet No.71/15

10. A decision of the Patna High Court in Manilal Keshari and Others versus State of Bihar [Judgment dated 03.08.2006 delivered in Cr.Misc. No.28927 of 2004] has been referred to, where it has been held by the Patna High Court that if there is no fresh material for submission of the second charge-sheet and when it is found that the second charge-sheet which is submitted on reconsideration of evidence already collected at the time of the submission of the earlier charge-sheet, the cognizance on the basis of the second charge-sheet cannot be considered in consonance with provisions of Section 173(8) of the Criminal Procedure Code. The said decision is in consistence with Hasanbhai Valibhai Qureshi. Andhra Pradesh High Court in M/s Jagathi Publications Ltd. versus Central Bureau of Investigation, Hyderabad reported in 2013 CriLJ 118 has observed that (1) Where several distinct offences have been reported, the investigating agencies should issue separate FIRs under Section 154(1) of the Cr.P.C., (2) Where in a case the accused is involved in several distinct offences which are within the knowledge of the investigating agency his arrest must be shown in all such distinct offences i.e. he is deemed to have been arrested in all such cases and (3) If the investigating agency files the report under Section 173(2) of the Cr.P.C. in some distinct offences but fails to file in some other distinct offences, the accused would be entitled to bail in all other cases in which the report under Section 173(2) of the Cr.P.C. is not filed.

But this decision also does not support the contention that the police report can be filed in parts irrespective of time, when the materials were collected by the investigating agency/officer.

11. It is by now well settled that the Magistrate is not bound by the conclusion drawn by the police officer. After receipt of the police report, the Magistrate can do one of the three things under Section 173(3) of the Cr.P.C. viz.-(i) he may decide that there is no sufficient ground for proceeding further and drop action, (ii) he may take cognizance of the offence under Section 190(1)(b) on the basis of the materials in the police report and

(iii) he may direct the further investigation by the police.
Therefore, in a police report, the materials which are placed are to be independently scrutinized by the Magistrate for taking cognizance.

12. It appears to this court that the police report which is filed on completion of the investigation is in the form as prescribed by the State. Sub-Section 5 of Section 173 of the Cr.P.C. makes it obligatory upon the police officer to forward along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely and the statements recorded under Section 161 of the Cr.P.C. of all the persons whom the prosecution proposes to examine as the witness of the trial. In Satya Narain Musadi and Ors. vs State Of Bihar reported in AIR 1980 SC 506 the apex court had occasion to observe what the police report in the prescribed form should contain. It has been observed inter alia as follows :

“10. Section 173(2) thus provides what the report in the prescribed form should contain. In this case the report did contain the name of the accused and the nature of the offence. In fact Section 170 pro-vides that if upon an investigation under Chapter XII it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground to proceed against the accused such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report, etc. If the accused is on bail that fact will be notified in the final report submitted under Section 173(2). Therefore, the statutory requirements of the report under Section 173(2) would be complied with if the various details therein prescribed are included in the report.

This report is an intimation to the Magistrate that upon investigation into a cognizable of fence the investigating 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 pro-cure sufficient evidence for the trial of the accused by the Court and when he states in the report not only the names of the accused, but names of the wit-nesses, the nature of the offence and a request that the case be tried, there is compliance with Section 173(2). The report as envisaged by Section 173(2) has to be ac-companied as required by Sub-section (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the re-port must contain as required by sub-section (2) from its accompaniments which are required to be submitted under Sub-section (5). The whole of it is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in Section 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under Section 173(2) submitted by the police officer would be expecting him to do something more than what the Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence, it would be sufficient compliance with Section 11.

The details which would be necessary to be proved to bring home the guilt to the accused would emerge at a later stage, when after notice to the accused a charge is framed against him and further in the course of the trial. They would all be matters of evidence and Section 11 does not require the report to be or to contain the evidence in support of the charge, its function being merely to afford a basis for enabling the Magistrate to take cognizance of the case (see Bhagwati Saran v. State of Uttar Pradesh . It was, however, contended that this Court in Deo Karan Das Aggarwal’s case has in terms held that one has merely to look at the police report described as charge-sheet and to no other document for taking cognizance of an offence under Section 190(1)(b) to ascertain whether any offence was disclosed The proposition canvassed on behalf of the appellant is not borne out by the decision relied upon. In that case the accused was prosecuted for having conducted business in a commodity governed by the Bihar Edible Oils Wholesale Dealers Licensing Order 1965 without obtaining a license thereunder. On a motion for quashing the prosecution it was found that the only allegation in the charge-sheet was that the accused carried on business in edible oils without obtaining a requisite license. On the facts found it transpired that the accused had already applied for a license and had paid necessary charges and carried on business in the bona fide belief that they had sufficiently complied with the requirements of the Order. This Court held that even though no actual licence was issued to them, they could not be said to have committed any offence. On this view of the matter the prosecution was quashed. There is no-thing in the decision to support the sub-mission of the appellant before us that the prosecution in that case, ever at- tempted to invite this Court to look into some document other than the charge-sheet or the police report in support of the submission or that the Court ignored documents other than charge-sheet and quashed prosecution on the sole ground that averments in the charge-sheet did not disclose any offence. Therefore, this decision is of no assistance to the appellants.”

Thus, in the police report, all details of the offence are required to be set out and the whole of it be submitted in the court. But cognizance can be taken from the police report if that with sufficient particularity and clarity specifies the contravention of law which is the alleged offence.

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13. What therefore surfaces is that the police report would imply the report prepared on the materials collected on or before the date when the report has been framed. The police officer is not authorized by law to say that the investigation is continuing at the time of filing the police report. The report is mandated to be filed on completion of the investigation. Further investigation as contemplated under Section 173(8) of the Cr.P.C. is on the basis of fresh materials collected after the police report is filed. Even incidence of further investigation be brought to the notice of the Magistrate beforehand (see Hasanbhai Valibhai Qureshi). What Mr. Choudhury, learned PP has submitted in respect of Section 218 is not in respect of filing of separate police reports for distinct separate offences of which any person is accused. Section 218 of the Cr.P.C. is under Chapter-XVII of the Cr.P.C. which deals with framing of charge on the basis of the police papers. It clearly provides that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately. In this regard, Section 219 of the Cr.P.C. may be referred. Section 219 illustrates how to frame the charge in a case of multiple offences. It is apparent from the records that the eighteen charge-sheets have been filed in the case in hand [see the catalogue above]. These are not results of further investigation but of a continuing investigation, as even accede by the prosecution. Hence, it cannot be inferred the police report No.1/15 was filed on completion of the investigation. In the factual matrix, this court does not find any infirmity in the impugned order passed by the Special Judge. All the eighteen purported police report shall be treated as the one police report with different parts for substantive justice and the date of filing the charge-sheet shall be the date when the charge-sheet No.71/15 was filed. The Special Judge shall consider the police report in multiple parts and take his decision on cognizance of the alleged offence.

14. This court is persuaded to clarify that to try the distinct offence the separate trials may be conducted after framing the distinct charge on the basis of the police report. No separate FIR has been registered by the police for the distinct offences. This process shall commence only after framing the separate charges for the distinct offences. Even that may be waived only in exercise of power under proviso to Section 218 of the Cr.P.C.

Subject to the observation made above, this petition stands dismissed.

Send down the LCRs forthwith.

JUDGE Sabyasachi B

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