Nirmalan Selvarajah vs Union Of India
1993 Latest Caselaw 459 Del

JUDGMENT

D.K. Jain, J.

(1) This petition under Article 226 of the Constitution of lndia read with section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') is directed against the order dated 30 March 1993 passed by the Chief Metropolitan Magistrate, Delhi allowing the request of the Central Bureau of Investigation (CBI) for suspension of trial and granting them time to file supplementary challan during the course of trial of the petitioner. A few facts necessary for appreciating the controversy involved in the case be narrated as follows:- The petitioner was arrested on 22 January 1991, when he visited a hotel in Karol Bagh, New Delhi and on his personal search certain forged documents, including passports and fake stamps are alleged to have been recovered. Further recoveries are also alleged to have been made when some houses at Vikaspuri, New Delhi and Madras were searched. A case under section 472/473/474 read with section 467 Indian Penal Code was registered and the Cbi filed a charge sheet against him on 20 January 1992. However, at the foot of the charge sheet, the following note was appended:- "THE involvement of accused N. Selvarajah is also gathered in the main allegations as contained in the Fir of this case. The investigation with regard to allegations under Indian Penal Code and under Passport Act is underway. It will require to be conducted in many parts in India and abroad. The completion of investigation on the remaining allegations as contained in Fir including those under the Passport Act is, therefore, likely to take some time. Necessary permission may, therefore, be accorded for carrying out further investigation on the allegation as mentioned above in the interest of the case. The result of investigation will be intimated in due course."

The trial court found sufficient prima facie evidence to proceed against the petitioner for having committed offences punishable under the aforementioned sections of the Penal Code. Accordingly, it took cognizance of the said offences and the trial proceeded. Charges were framed on 25 March 1992; prosecution examined 11 witnesses and closed its evidence on 01 March 1993; petitioner's statement under section 313 of the Code was recorded on 02 March 1993 and the case was fixed for final arguments on 11 March 1993. On the request of the Cbi, the case was adjourned from 11 March 1993 to 15 March 1993. On 15 March 1993 CBI's counsel did not address arguments but the defense counsel concluded his arguments. The case was adjourned to 17 March 1993 for CBI's arguments, but again adjournment was sought by counsel for Cbi on the ground that he was indisposed. The case was accordingly adjourned to 20 March 1993. On 20 March 1993 instead of advancing arguments, the Cbi moved an application for suspension/stay of further proceedings in the case till the submission of supplementary charge sheet by them under section 173(8) of the Code. In the application, it was alleged that further investigation had revealed the involvement of the petitioner Along with other co-accused for transporting unauthorised persons on bogus travel documents supplied by the petitioner and forgeries on various passports in the writing of the petitioner and use of forged stamps and seals. The Chief Metropolitan Magistrate after hearing both the sides passed order impugned in the present petition, directing Cbi to file the supplementary charge sheet by 08 April 1993 and till then stayed further proceedings.

(2) The order of the Chief Metropolitan Magistrate has been assailed on three grounds, namely; (i) the police does not have unfettered power under section 173(8) of the Code to conduct further investigation and file supplementary charge sheet (report) at any stage of the trial, (ii) since a supplementary charge sheet is still to be filed, it is implied that the investigations in the case are still incomplete and, therefore, the petitioner is entitled to bail under section 167(2) of the Code and (iii) the present trial cannot be conducted by the Chief Metropolitan Magistrate because offences under sections 472,473. 474 read with section 467 are friable by Magistrate of the First Class.

(3) Before dealing with the contentions canvassed by Mr. P.P. Grover, learned counsel for the petitioner, it is necessary to have a look at the relevant provisions of the Code:- "173 (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 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, whether 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)'''''''''''''''''''''''''''''''''''''''''''''''''' (4)"""""""""'''''''' (5)''''''''''''''''''''''''''''''''''''''''''' (6)"""""""""''''''''''''''''''' (7)''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''

(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, whereupon 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)."

(4) SUB-SECTIONS ( 1 ) and (2) of section 173 of the Code envisage completion of police investigation without unnecessary delay and submission of police report in the prescribed form to a Magistrate empowered to take cognizance of the offence, as soon as it is completed. But from a bare reading of sub-section (8) of the said Section, it is clear that nothing in the said section precludes further investigation in respect to an offence even after report under sub-section (2) of the said section has been forwarded to the Magistrate. It also provides that upon such investigation, the officer in charge of a police station may forward to the court even more than one reports with regard to such investigations. To all such reports, provisions of other sub-sections of the said section would apply as they apply in relation to reports forwarded under sub-section (2) of the said section. Thus, there is no legal bar against further investigation by the police and filing of further report after the court has taken cognizance of an offence on the filing of a charge sheet by the police.

(5) Faced with this legal position, learned counsel for the petitioner submitted that although the police can submit supplementary reports on the basis of further investigation, but this can be done only at the initial stage of the trial. He contends that if the police is permitted to file the supplementary reports at any stage of the trial, it would not only prolong the trial, after the trial court decides as to how the charge already framed and the evidence already recorded is to be dealt with, such a power may also be abused by the police to fill up the lacunae which were left in the original charge sheet and in the evidence, particularly when, like in the present case, an accused has already exposed his defense.

(6) That there are no legal impediments in further investigation by the police after cognizance of an offence has been taken by a Magistrate on the basis of a first report is beyond controversy. But what is pleaded is that it should not be at the stage when an accused has already undergone the rigours of the full trial. Support for the contention is sought to be derived from some observations of the Supreme Court in Ram Lal Narang vs. State (Delhi Admn.), 1979Crl.L.J. 1346. While inviting our attention to the evidence led by the prosecution, learned counsel submits that the present case is the best example of the abuse of the power given to the police under section 173(8) of the Code for further investigation and submission of supplementary charge sheet. He maintains that in the present case, filing of supplementary charge sheet by Cbi at the fag end of the trial when it has already led its entire evidence, the statement of the petitioner under section 313 of the Code has been recorded and the defense counsel has concluded arguments, is mala fide and with an ulterior motive to see that the petitioner is not acquitted. Learned counsel, therefore, vehemently urges that we must lay down some norms which may be kept in view while permitting the police to file a supplementary charge sheet.

(7) Though we are in agreement with learned counsel for the petitioner that normally an investigation as a whole should be completed without undue delay and if further investigation is to be conducted, it should be done expeditiously, but we feel that it will not 'be desirable to lay down any guidelines or fix a stage up to which a supplementary report should be entertained by a court. Investigations in each case would depend on the facts of each case and to fix a deadline for further investigation would be against the clear legislative intent of section 173 (8) of the Code, which not only visualises but mandates further investigation, wherever necessary and consequential further report (charge sheet) to the court.

(8) As regards the contention of learned counsel for the petitioner that such an unfettered and unguided power to the police is likely to be abused, we are of the view that the Code provides for sufficient safeguards in that behalf. Even otherwise, in the absence of compelling circumstances it is not fair to assume as a rule that the public authorities would never act bona fide and further reports by the police must be rejected summarily on that score.

(9) However, as regards the procedure to be adopted by the trial court on submission of the supplementary charge sheet, viz. to hold trial on it as a part of the case being tried by him or make such other directions in accordance with law, we find from the impugned order that in the present case the trial court has not taken any decision in that behalf. We are of the considered view that it should be left to the discretion of the trial court who would proceed further in accordance with the provisions of the Code and shall pass such orders as may appear just and proper, keeping in view the equities of the matter like the nature of the further investigations, vis-a-vis its relevance to the matter already under trial before him, its stage etc. For the view taken by us, we derive support from the following observations in Ram Lal Narang's case (supra) wherein the Supreme Court was dealing with almost similar points:- ".....It is in the interests of both the prosecution and the defense that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to, the Magistrate. After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already preceded to some extent, he may take fresh congnizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation."

(10) The next contention which falls for consideration is as to whether on account of CBI's application, seeking leave to file supplementary charge sheet, could it be inferred that the investigations were incomplete and the petitioner was entitled to bail under proviso to section 167 (2) of the Code. From the record we find that before filing this petition, the petitioner had already filed a petition being Criminal Misc. (Main) No.2430of 1992 for grant of bail. We feel that the plea now raised before us can be urged and dealt with more appropriately in the said petition as also before the trial court after the supplementary charge sheet is taken on record and the future course of the trial is decided by the trial court. Accordingly, we refrain from commenting on the same.

(11) We now advert to the last contention of Mr. Grover. The contention is that since offences under sections 472/473/474 and 467 Indian Penal Code are friable by a Magistrate of the First Class (or Metropolitan Magistrate) who can pass a sentence of imprisonment for a term not exceeding three years, the petitioner will be placed in a disadvantageous position if he is tried by Chief Metropolitan Magistrate who is competent to pass a sentence of imprisonment for a term up to seven years. It is urged that the trial by the Chief Metropolitan Magistrate will thus be discriminatory and violative of Articles 14 and 21 of the Constitution as he would be treated differently from those who are tried by a Magistrate for the same offences. It is also urged that even if it is assumed that the Chief Metropolitan Magistrate is trying the petitioner as a Magistrate as per the First Schedule to the Code, it would render the provisions of section 325 of the Code nugatory as it will not be possible for the Chief Metropolitan Magistrate to submit the trial proceedings to himself if he is of the opinion that the petitioner ought to receive more severe punishment than he as a Magistrate is empowered to inflict.

(12) Seemingly attractive in the first blush, the argument, when considered in the light of the provisions of the Code, is not of any substance. Section 4 of the Code deals with the trial of offences under the Indian Penal Code and other laws. It, inter alia, lays down that all offences under the Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions contained in the Code. Chapter Ii of the Code deals with the constitution of criminal courts. Section 6 whereof spells out the classes of criminal courts and provides that besides the High Court, there shall be, in every State, four classes of criminal courts, namely, (i) Courts of Sessions, (ii) Judicial Magistrates of the First Class (in any metropolitan area Metropolitan Magistrates),(iii) Judicial Magistrates of the Second Class, and (iv) Executive Magistrates. Section 3 dealing with the construction of reference in the Code, inter alia, lays down that any reference to a Magistrate 1st Class, in relation to a metropolitan area, will be construed as a reference to a Metropolitan Magistrate and in relation to other area, to a Judicial Magistrate. It further lays down that a reference to a Chief Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to Chief Metropolitan Magistrate exercising jurisdiction in that area. Sub-section (2) of the said section further provides that unless the context otherwise requires, any reference to the Court of a Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the court of a Metropolitan Magistrate for that area. Chapter Iii deals with powers of the courts, section 26 whereof specifies the courts by which various offences are friable. For of fenes under the Penal Code (to which the matter relates) the section provides that these may be tried by : (i) the High Court, or (ii) Court of Sessions, or (iii) any other court by which such offence is shown in the First Schedule to the Code to be friable.

(13) The Code, therefore, postulates trial by courts notified under sections 6 and 26 read with section 3, which means that for the metropolitan area, like Delhi, the classes of criminal courts, besides the High Court, are Courts of Sessions and Metropolitan Magistrates. Offences under the Penal Code can be tried only by the aforesaid courts. It would appear that in the First Schedule the Chief Metropolitan Magistrate as such is not a designated court for trial purposes.

(14) Section 17 of the Code empowers the High Court to appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such metropolitan area. Section 29 of the Code prescribes limit of powers of awarding sentence by a Metropolitan Magistrate and a Chief Metropolitan Magistrate. A Metropolitan Magistrate is competent under the Code to award a sentence of imprisonment for a term not exceeding three years or a Fine not exceeding Rs.5,000.00 or of both, whereas a Chief Metropolitan Magistrate, though a Metropolitan Magistrate, can award a sentence of imprisonment for a term not exceeding seven years. This power to award a higher sentence of imprisonment has nothing to do with the competency of trial of an offence, which is spelt out in section 26 read with sections 6 and 3 of the Code, as stated above. The competency to hold trial for an offence is different from that of awarding sentence. Merely because a Metropolitan Magistrate is appointed as Chief Metropolitan Magistrate under section 17 of the Code, it cannot be said that he ceases to be a Metropolitan Magistrate. He continues to be Metropolitan Magistrate for the purpose of trial. As such trial of offences by a designated Chief Metropolitan Magistrate would, for all intents and purposes, be as a Metropolitan Magistrate.

(15) The petitioner has been charged and is being tried for offences under sections 472/473/474 read with section 467 Indian Penal Code These offences under the First Schedule to the Code are friable by a Metropolitan Magistrate. The trial, therefore, whether it is by a Metropolitan Magistrate or by such magistrate, designated by the High Court as Chief Metropolitan Magistrate, is for the purposes of the Code, by a Metropolitan Magistrate. Section 325 of the Code lays down that in case of trial by a Metropolitan Magistrate, if after hearing, the evidence for the prosecution and the accused, he is of the opinion that the accused is guilty and that he ought to receive a punishment different in kind from, or more severe than that which such Magistrate is empowered to inflict, he may submit his proceedings and forward the accused to the Chief Metropolitan Magistrate to whom he is subordinate. Section 325 of the Code, thus, is only an enabling provision setting out the procedure for imposing a higher sentence of imprisonment in case of trial by a Metropolitan Magistrate, (other than by a Chief Metropolitan Magistrate) if after hearing evidence, he finds the accused guilty but considers that the accused should receive sentence severer than imprisonment for three years, which he is competent to inflict. There is no such inhibition in the way of a Chief Metropolitan Magistrate who having held the trial, technically as a Metropolitan Magistrate, is competent to award sentence more than three years prescribed for a Metropolitan Magistrate. Merely because the trial is being held by a Metropolitan Magistrate designated as Chief Metropolitan Magistrate, in our view, the accused is not put to any disadvantage only because he can be awarded sentence of imprisonment of over three years, as it does not mean that the Chief Metropolitan Magistrate cannot award sentence less than three years. In any appropriate case he may award sentence of imprisonment for any period less than three years. The nature of the offence, the circumstances in which it was committed and its gravity shall have to be considered in the matter of awarding sentence, whether it is awarded by a Metropolitan 320 Magistrate or such Magistrate designated as Chief Metropolitan Magistrate. There is, therefore, no disadvantage to an accused being tried by a Chief Metropolitan Magistrate, vis-a-vis one being tried by a Metropolitan Magistrate. Thus, in our considered opinion there is no question of any discrimination, within the meaning of Articles 14 and 21 of the Constitution in the trial conducted by a Metropolitan Magistrate or one who is designated as a Chief Metropolitan Magistrate. Nor can it be said that section 325 is rendered nugatory. As already noted above, it is only an enabling provision of a limited nature for awarding sentence of more than three years in appropriate cases, in case the trial is held by a Metropolitan Magistrate (not designated as a Chief Metropolitan Magistrate). Again in case of trial by a Chief Metropolitan Magistrate, as above, there is no question of his submitting the trial proceedings to himself. Though the trial is held by him as a Metropolitan Magistrate, he, having been designated as a Chief Metropolitan Magistrate, is competent to ' award sentence of imprisonment exceeding three years, which is the maximum sentence a Metropolitan Magistrate is competent to inflict. As such, there is no question of section 325 of the Code being rendered nugatory.

(16) On the contrary, if the contention of Mr. Grover is accepted, in that event an accused, being tried by Chief Metropolitan Magistrate, would be in an advantageous position as compared to an accused being tried, for similar offence, by a Metropolitan Magistrate and prejudice, if at all, would in fact be caused to an accused being tried by a Metropolitan Magistrate. An accused being tried by a Metropolitan Magistrate would run the risk of the Metropolitan Magistrate submitting the proceedings and forwarding the accused to Chief Metropolitan Magistrate, who in turn, undisputedly and even according to Mr. Grover would in that event have the power to inflict imprisonment up to seven years. On the other hand, an accused, like the petitioner, who is being tried by the Chief Metropolitan Magistrate would never run such a risk as, according to Mr. Grover, the Chief Metropolitan Magistrate, holding trial as a Metropolitan Magistrate with no power to submit the proceedings to himself or to any other court for awarding higher sentence of imprisonment would have no power to inflict imprisonment for more than three years. The aforesaid analysis would show that if we accept the contention of Mr. Grover, an accused being tried by Metropolitan Magistrate will be in a disadvantageous position. It cannot be the position in law that the accused charged with same offence should be put in an advantageous or disadvantageous position depending upon whether a Metropolitan Magistrate is trying him or a Chief Metropolitan Magistrate. In fact, acceptance of the view propounded by Mr. Grover would result in violation of Articles 14 and 21 of the Constitution. Mr. Grover's contention has, therefore, to be rejected on that score also.

(17) The order dated 02 March 1993 of the learned Chief Metropolitan Magistrate is correct and is affirmed. There is no force, thus, in the further submission of learned counsel for the petitioner seeking directions for transfer of the case from the court of the Chief Metropolitan Magistrate to that of a Metropolitan Magistrate.

(18) For the foregoing reasons, there is no merit in the petition and it is accordingly dismissed. There will be no order as to costs.