From the bare reading of the Section 173 Cr.P.C, it is manifest that section requires such police report to be in a particular form and supported by specified documents. Unless police report submitted does not fulfill the legal requirements as incorporated in the section, it cannot be a valid report under Section 173 Cr.P.C If such is the case, what is the course open to the Magistrate. Can such Magistrate return the police report for submitting it again after complying with the legal requirements of Section 173 Cr.P.C? There is no provision in the Cr.P.C enabling such Magistrate to return the charge sheet. Once a charge sheet is filed before a Magistrate, he is required to act under Section 190 Cr.P.C and consider the question whether he should take cognizance thereon. If the police report is incomplete, he can defer the taking of the cognizance till such time the deficiency in the police report/challan is removed by the Prosecution. In no case a Magistrate who is competent to take cognizance can legally return the police report for completion of the formalities.
Jammu High Court
Vikram Malhotra vs Central Bureau Of Investigation on 29 August, 2003
Bench: Y Nargotra
1. The charge for commission of the offences under Section 306, 498A R.P.C has been framed against the accused petitioner by the learned Ist Additional Sessions Judge, Jammu by his order dated 01-08-2002.
2. Aggrieved by the framing of the charge, the petitioner/accused has filed this petition seeking quashing of the challan by exercising jurisdiction under Section 561-A Cr.P.C or in the alternative for setting aside the order dated 01-08-2002 of the Trial court by invoking revisional jurisdiction of this Court.
3. Shorn of details the necessary facts are being stated. The deceased Ashu was the wife of the petitioner, who committed suicide on 24-07-1998 in the evening in the bedroom of the house of the accused. She was married to the accused on 31-01-1998 as per Hindu rites. It is the case of the prosecution that in marriage sufficient dowry and gold ornaments weighing approximately 50 Tola along with house hold items etc. were given and on account of furniture, F.Ds carrying value of Rs. 1.50 lacs were given to the accused by the family of the deceased. It is also the case of the prosecution that in the month of April 1998, few days before Baisakhi deceased along with accused went to her parental house and told her mother that it is too hot and the petitioner says about air-conditioner on which an A.C was sent to her house as a Baisakhi gift. It is also the case of the prosecution that whenever deceased came to her parental house, she used to tell her mother that accused drinks heavily and on her objecting the same he manhandled and threatened her. Once when her mother noticed an injury on the hand of the deceased, on enquiry she disclosed that accused had beaten her.
4. The above is the account of the salient features of the prosecution story. It is also the case of the prosecution that police had not been informed of the death of the deceased by any member of the family of the accused or by the accused himself and the police had swung into action on receiving an information from a reliable source that accused was making preparation for cremating the dead body of the deceased without informing any one about her unnatural death.
5. The deceased has died unnatural death. It is the positive case of the prosecution that she committed suicide. The case has been investigated by C.B.I, who has filed the charge sheet against the accused for commission of the offences under Section 406, 498A RPC and the learned Trial Court has framed the charge against the accused as aforesaid.
6. Before filing of the above said charge-sheet against the accused in which charge has been framed, the investigating agency C.B.I had filed admittedly another challan/charge sheet against the same accused on identical allegations/facts but for the trial of the accused under Section 304B R.P.C, in the Court of learned Chief Judicial Magistrate, Jammu, little knowing that in R.P.C, there was no provision of 304-B like the one existing in Central Indian Penal Code.
7. Be it that may, the prosecution moved an application for accepting the said challan/charge sheet without documents and seized articles and for permitting the production thereof on the next date of hearing. This application of the prosecution was opposed by the accused. The learned Chief Judicial Magistrate by its order dated 18-12-2000 returned the charge sheet back to the prosecution saying:
"P.P. CBI, Mr. S.K. Bhatt and V.P. Sharma, Dy. S.P, CBI/SKU-XVI, Jammu has presented the challan along with photocopy in presence of accused Vikram Malhotra in terms of Section 173 Cr.P.C. along with an application for accepting the charge-sheet without documents and permitted him to produce the documents and seized articles of the case as per list enclosed on the next date of hearing on the plea that the documents and seized articles are lying in Malkhana of CBI and the Malkhana incharge is not available today,
At this stage, Mr Sunil Sethi Advocate appeared on behalf of accused and filed vakalatnama. Ld. Counsel for the accused submitted that the application is not maintainable. Learned P.P, submitted that the charge-sheet is incomplete as the same is not accompanied with documents and seized articles and the same may be returned to the investigating Officer.
In view of the submission made by learned PP, CBI and in view of the fact that the charge-sheet is incomplete, as such, the same is hereby returned to the Investigating Officer after retaining the photo-copy of challan and be produced along with documents at appropriate time. Let a copy of this order be furnished to the PP, CBI, for necessary action."
8. The prosecution then filed the instant charge-sheet with a difference that now instead of Section 304B the offences under Section 306 and 498A were stated to have been made out against the accused and it is in this charge-sheet the charge has been framed.
9. I have heard Mr. Sethi, learned counsel for the accused/petitioner and Mr. Bhat, learned counsel for the CBI/respondent and perused the record of the case minutely.
10. Mr. Sethi has raised two fold contentions. Firstly, he has argued that charge sheet once filed in the Court could not have been returned and if it was returned for filing it again with the necessary documents then the prosecution was bound to produce the same challan without effecting any change. He has drawn my attention to the opinion of an Officer of C.B.I obtained by the investigator who had opined that case under Section 306 R.P.C was not made out an accepting that opinion, charge sheet for trial of the accused under Section 304B was filed. According to Mr. Sethi, prosecution could not have legally changed its stance and say subsequently that offence under Section 306 R.P.C was made out. So according to Mr. Sethi, the challan being not the same which was filed earlier deserves to be quashed.
Per contra, Mr. Bhat has argued that there is no such legal bar as canvassed by Mr. Sethi. He has submitted that the opinion of the Investigating agency regarding the making out of the case under particular penal provision is only tentative and not binding upon the Court. It is the prerogative of the trial Court only to say as to whether any or what offence on the given facts is constituted. Therefore, it is without any legal consequence if the offences shown to be made out against the accused are different than the offence, which was so stated earlier.
11. After conclusion of the investigation by the Police, the investigation report is submitted under Section 173 Cr.P.C to a Magistrate who is empowered to act under Section 190 Cr.P.C and then to follow the procedure as prescribed in Section 204 to 205 E, If the offence is triable by a Magistrate then the accused is required to be tried by following the procedure prescribed for trial of such offence in the Code and if the offence is exclusively triable by a Court of Sessions then the case is to be committed for trial. A Magistrate can refuse to accept a charge sheet filed by the Police only if ex facie it appears to him that he has no competence under law to entertain the challan. Section 173 Cr.P.C provides that police report can only be filed before a Magistrate empowered to take cognizance. This is one aspect of the matter. Section 173 Cr.P.C prescribes the mode and the form in which a police report is to be submitted to the Magistrate who is competent to take cognizance on the offence/offences alleged to have been committed. It reads:-
"173. Report of police Officer on completion of investigation.
-- (1) Every investigation under this Chapter shall be completed without necessary delay:
(Provided that investigation into offences under Sections 152, 153-A, 295, 295-A, 296, 297, 298, 435, 436 and 505 of the State Ranbir Penal Code shall be completed within two weeks, and if the investigation is not so completed the investigating Officer shall report the cause of the delay to the District Superintendent of Police who shall issue necessary instructions for completing of the investigation).
(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 Government stating-
(a) the name of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstance 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 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 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) Wherever 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 along with the report-
(a) all documents or relevant extracts thereof on which the prosecution purposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under Section 161 of all the persons whom the prosecution purposes to examine as its witness.
(6) If the police officer is pf 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 interest of justice and is keen expedite in the public interest, he shall indicate that part of the statement and append a not 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 950.
(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 may be, apply in relation to such report or reports as they apply bin relation to a report forwarded under Sub-section (2).)"
From the bare reading of the Section 173 Cr.P.C, it is manifest that section requires such police report to be in a particular form and supported by specified documents. Unless police report submitted does not fulfill the legal requirements as incorporated in the section, it cannot be a valid report under Section 173 Cr.P.C If such is the case, what is the course open to the Magistrate. Can such Magistrate return the police report for submitting it again after complying with the legal requirements of Section 173 Cr.P.C? There is no provision in the Cr.P.C enabling such Magistrate to return the charge sheet. Once a charge sheet is filed before a Magistrate, he is required to act under Section 190 Cr.P.C and consider the question whether he should take cognizance thereon. If the police report is incomplete, he can defer the taking of the cognizance till such time the deficiency in the police report/challan is removed by the Prosecution. In no case a Magistrate who is competent to take cognizance can legally return the police report for completion of the formalities.
12. In the present case the prosecution had requested the learned Chief Judicial Magistrate to accept the charge sheet without insisting for submitting along with it the necessary documents and seized property. Learned Magistrate should have accepted the prayer of the prosecution and ought to have deferred cognizance till such time the documents and seized articles were produced before him. Be it so, since the challan has been re-instituted after completion of the formalities, therefore, no prejudice can in any manner appears to have been caused to the accused. Since the challan was returned without any trial of the accused as such, there was no legal bar for filing a fresh charge sheet, the question of double jeopardy being not involved. The second charge sheet thus can be treated as a fresh charge sheet.
13. As the second charge sheet can be treated as fresh charge sheet, there was no bar upon the prosecution to state additional facts or say as to which offences in the opinion of the investigating agency were made out against the accused. The opinion of the Investigating Agency as to which of the offences is made out against the accused from its investigation being not conclusive and binding upon the trial Court as such could be changed by the Investigating Agency. Therefore, first challenge of Mr. Sethi, learned counsel for the petitioner has no force or merit.
14. It has been next contended by the learned counsel for the accused that even if the allegations of the prosecution are accepted at their face value, no offence under Section 306 or 498A is made out against the petitioner. Learned trial court has framed the charge against the accused being of the opinion that prima facie commission of offences under Section 306, 498A and 201 made out.
15. In Munna Devi v. State of Rajasthan, 2001 AIR SCW 4663, their Lordship of the Supreme Court has held as follows:
"2. Aggrieved by the framing of charges against him under Sections 376, 511, 451 and 354 of the Indian Penal code, the respondents-accused filed a revision petition in the High Court which was allowed vide the order impugned in this appeal by quashing the charges framed against him. The
appellant-complainant-prosecutrix has filed this appeal submitting that the impugned order is against the provisions of law as the High Court could not prevent the holding of trial by sitting in appeal against the order of framing of charge by sifting and weighing the evidence recorded during the investigation.
3. We find substance in the submission made on behalf of the appellant. The revision power under the Code of Criminal Procedure Cannot be exercised in a routine and casual manner. While exercising such powers the High court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged. This Court in Kanti Bhadra Saha and Anr. v. State of West Bengal has held that there is no legal requirement for the trial court to write a reasoned or lengthy order for framing the charges."
For finding out as to whether offences under Section 306 and 498A are prima facie made out against the accused, the allegations made in the police report were to be taken at their face value. Learned trial court on the alleged facts has come to the conclusion that said offences are prima facie constituted. So the question arises whether on the alleged facts the conclusion of the trial Court is correct?
16. Section 114C of the Evidence Act reads as under:--
"114-C. Presumption as to abetment of suicide by a married woman. -- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation. -- For the purposes of this section, "cruelty shall have same meaning as in Section 498-A of the State Ranbir Penal Code, Samvat 1989.)."
And Section 498A R.P.C reads :
"498A. Husband or relative of husband of a woman subjecting her to cruelty. -- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation: -- for the purposes of this section "cruelty" means
(a) any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman;
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.)"
17. In the case in hand the deceased Ashu has died just after six months of her marriage with the accused. The accused is alleged to have been beating and manhandling the deceased on her taking objection to his drinking. Can such conduct be a cruelty within the meaning of Clause (a) of explanation to Section 498A? In my view, prima facie, it would for the purposes of framing a charge because charge can be framed even where there is grave suspicion. The answer to question as to whether the alleged conduct of the accused was sufficient to drive the deceased for committing suicide would also depend upon the psychological status of the deceased beside the surrounding circumstances in which she committed suicide which may be proved by the prosecution during trial. But the allegations leveled against the accused by the prosecution in my considered opinion prima facie points to a possibility that the deceased may have committed suicide after being fed up with the accused just in six months of her marriage because of the conduct of the accused. As Clause (a) of explanation to Section 498A RPC as well as Section 114A of Evidence Act Prima Facie appear to be attracted in the present case, therefore, prima facie both the offences i.e. under Section 306 RPC and 498A would be made out for the purposes of charge.
18. Viewed thus the order impugned of the trial Court does not call for any interference nor a case for quashing the challan is made out.
The petition is dismissed.
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