VIHABHAI RAMDAS PATEL Vs. HEMTUJI SHIVAJI DABHI AND ANR.
LAWS(GJH)-1983-10-14
HIGH COURT OF GUJARAT
Decided on October 27,1983

VIHABHAI RAMDAS PATEL Appellant
VERSUS
Hemtuji Shivaji Dabhi And Anr. Respondents

JUDGEMENT

M.B.SHAH, J. - (1.) Hemtuji Shivaji Dabhi against whom a first information report has been lodged stating that he had given dagger blow to one Gopalbhai Ramdas at about 9-15 a.m. on 29-5-83 at village Zulasan is released on bail by the learned Sessions Judge, Mehsana, by his judgment and order dated 29-8-83 solely on the ground that the investigating officer had submitted interim charge-sheet and there is no provision in the Criminal Procedure Code for submission of interim charge-sheet.
(2.) The learned Advocates appearing on behalf of the applicant (brother of the deceased) and on behalf of opponent No. 2 submitted that the view taken by the learned Sessions Judge is on the face of it illegal. It was their submission that there is no question of submitting interim charge-sheet in the present case merely because along with the charge-sheet report of the Chemical Analyser was not annexed. As the investigating officer was awaiting the said report, he had submitted a charge-sheet under Section 173(4) along with the documents which are required to be submitted as prescribed under Section 173(5). This submission of the learned Advocates, in my view, is correct. The learned Sessions Judge has committed an error of law by holding that merely because the Chemical Analyser's report was not annexed with the charge-sheet, it would amount to an interim charge-sheet.
(3.) Under Section 173(2) of the Criminal Procedure Code the investigating officer is required to submit report in the prescribed form and the details are to be mentioned as specified in Section 173(2) which would include whether in his opinion any offence appears to have been committed and, if committed, by whom it is committed. Sub-section (5) of Section 173 prescribes that along with the said report all documents or relevant extracts thereof on which prosecution proposes to rely other than those already sent to the Magistrate during investigation and the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses are required to be forwarded to the Magistrate. The learned Advocate appearing on behalf of opponent No. 1accused submitted that in view of this Sub-section (5) the investigating officer was required to submit the Chemical Analyser's report along with it because the prosecution proposes to rely upon the said report and as the said report was not submitted, the charge-sheet cannot be said to be complete. He relied upon the decision in the case of Satya Narain v. State of Bihar, A.I.R. 1980 S.C. 506 In the said case, after receiving the report under Section 173 of the Criminal Procedure Code the Sub-Divisional Magistrate took cognizance of the offence and transferred the case for disposal to Munsif Magistrate, First Class. The Munsif Magistrate recorded the evidence of P.W. 1 Mahesh Kant Jha and on perusal of the evidence he was of the opinion that other two persons, who were not disclosed in police report as accused, were also involved in the commission of the offence and hence he took cognizance against them and directed the trial to commence denovo. That order was challenged before the Patna High Court and the Division Bench rejected the application by holding that on the facts found in the case there arose no doubt because Section 11 of the Act (Essential Commodities Act) was fully complied with before taking cognisance. In the said case a contention was raised that before taking cognisance of the case the Court can rely upon the report submitted under Section 173(5) of the Criminal Procedure Code and Court has no jurisdiction to take into consideration the documents or statements submitted under Section 173(1) of the Criminal Procedure Code. Negativing the said contention the Supreme Court held that the report as envisaged by Section 173(2) has to be accompanied as required by Sub-section (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by Sub-section (2) from its accompaniments which are required to be submitted under Sub-section (5). The Court has further held that if the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence, it would be sufficient compliance and 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. The relevant discussion on this point is as under: "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 cognisable offence 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 procure 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 witnesses, 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 accompanied as required by Sub-section (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report 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. In view of this decision it is clear that when the investigating officer had submitted the report under Section 173(2) which discloses that in his opinion the offence appears to have been committed by the accused and that he has collected the necessary evidence connecting the accused with the said offence and that he has forwarded the said report along with the relevant documents as prescribed under Section 173(5), in my opinion that would be sufficient compliance with the provisions of Sections 173(2) and (5) of the Criminal Procedure Code. After submitting this report he is entitled to make further investigation depending upon facts and circumstances of each case under Section 173(8) and if he obtains further evidence, oral or documentary, he is required to forward further report or reports to the Magistrate regarding such evidence in the manner as prescribed under Sections 173(2) to (6). So, in my view, the aforesaid decision would in no way assist the contention of opponent No. 1. ;


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