State (Delhi Administration) vs Ved Perkash
1980 Latest Caselaw 109 Del

JUDGMENT

M.L. Jain, J.

(1) The respondent Ved Parkash is accused of an offence u/s 302 Indian Penal Code for burning his wife by pouring kerosene oil over her on August 31, 1979. A report u/s 173 Cr. P.C. was filed in the court of the Metropolitan Magistrate against him within 90 days but without the report of the Central Forensic Science Laboratory and a scaled site plan which is required in pursuance of the High Court Rules to be prepared by a draftsman. The police purported to rely upon those documents and called their report an incomplete challan.

(2) The accused moved for bail. Relying upon Hari Chand and Rajpal v. State, 2nd (1977) Ii Delhi 367, the learned Additional Sessions Judge granted him bail on 14.12.79. According to the learned Judge, the challan was incomplete for want of the said two documents and may further require examination of the draftsman and the technician u/s 161 Cr. P.C. and since 90 days were over, the accused was entitled to bail under the proviso (a) to S. 167(2) Cr. P.C. The State filed this petition against that order praying for cancellation of bail.

(3) In Tara Singh V. The State, , where two such very documents were not produced before the court, the Supreme Court held that non-production did not amount to an incomplete challan even if it were described by the police as such. This decision appears not to have been shown to the learned judge. He was also wrong in thinking that examination of the draftsman and the officer of the C.F.S.L. was necessary u/s 161 for the simple reason that this section does not compel a police officer to record a statement. This position has been more clearly elucidated in State of Haryana V. Mehar Singh, A.I.R. 1978 P. & H. 341(FB). Commenting upon Harichand (supra) it was observed therein that the learned judge without going into the question why the challan was incomplete assumed that the investigation of the case could not be said to have been comple ted as the police called its report an incomplete one. I am in most humble and respectful agreement with these observations.

(4) According to S. 167 Cr. P.C., an accused person can be detained by the police for 24 hours without an order from a magistrate. If investigation cannot be completed in this period, then the magistrate can authorise his detention in police custody from time to time for a period not exceeding 15 days in the whole. If the investigation is incomplete but the magistrate thinks that there is no justification for police custody for 15 days, and yet detention of the accused is necessary, then, the accused can be detained in judicial custody for a period not exceeding ninety days unless the magistrate or judge takes congizance of the offence within those 90 days and grants remand under S. 309 Cr. P.C. Here again, if the remand is granted by a magistrate, he cannot do so for more than 15 days at a time. If cognizance is not taken within 90 days, then the accused is entitled to bail by virtue of Cr. P.C. S. 167(2) proviso (a).

(5) S. 190 provides that a magistrate can take cognizance of an offence on a police report filed u/s 173 Cr. P.C. That report is required to be filed as soon as the investigation is complete. A question has been raised more than once that unless the investigation is complete and a report u/s 173 is submitted, strictly in accordance with that section, the magistrate cannot take cognizance. The Supreme Court did not express its opinion on this question in Tara Singh (supra para 13). In Satya Narain Musadi v. State of Bihar, 1980 Gr. L. Re. (S.C.) 11, it was of the view that for the purpose of taking cognizance, the magistrate can look beyond the report and can peruse the documents accompanying the report u/s 173(5) Cr. P.C.

(6) It appears quite simple to me to state that the powers to take cognizance u/s 190 Cr. P.C. are very wide as long as the facts placed before the magistrate constitute an offence. There is nothing in law to prevent the magistrate from taking cognizance of an offence upon a police report even if it is incomplete or defective or is not strictly in accordance with sub-section (2) or is not accompanied by the documents mentioned in sub-section (5) of S. 173 as long as it contains facts which constitute an offence. There is also nothing to preclude the magistrate from looking into material other than the report under S. 173(2). It is always permissible to the magistrate to take additional evidence not set out in the challan vide para 14 of Tara Singh (supra). Nor is the police precluded from additional investigation and collection of evidence and submission of further report, vide section S. 173(8). The combined effect of the definition of investigation in S. 2(h) and provisions of S. 173(2) Cr. P.C. is that investigation includes, inter alia, (1) collection of evidence, and (2) formation of opinion that on the evidence collected a case for trial is made out. When these requirements are satisfied investigation shall be deemed to be complete. I, therefore, hold that the magistrate could take cognizance of the offence on the report unaccompanied by the report of C.S.L. and the scaled sketch of the place of occurrence. The learned Add), Sessions Judge was, therefore, not justified in relying upon the provisions of S. 167 in order to grant bail to the accused. Harlchand (supra) was not attracted for the reasons already noted in State v. Mehar Singh (supra).

(7) The learned counsel for the respondent submitted that the bail granted u/s 167 is a bail under Chap. 33 of the Code. It cannot be cancelled unless the prosecution alleges that the liberty has been miss-used. This is a general rule, and I am not inclined to depart from it in this case. I will therefore dismiss this petition with the observation that the reason for granting bail was not sound in law and the learned judge shall abide by my observations in future.