M. C. JAIN, J. - (1.)THIS is an application for bail under Sec. 439, Cr. P. C. Presented by the accused applicants Bhagwan Singh and Diwansingh. I may state a few relevant material facts necessary for examining the controversy, which is the main bone of contention in the present application.
(2.)ON the report of one ONkarsingh, a case under Sections 147, 148, 149,450,302,307, 201, I. P. C. and 27 of the Arms Act was registered against the ten accused-persons viz. Bhagwansingh s/o Arjunsingh, Diwansingh s/o Arjunsingh, Gurmukhsingh s/o Gurdutt Singh, Dulasingh s/o Gurmukhsingh, Jodhasingh s/o (Iarsingh, Jeetsingh s/o Panjasingh, Jogendra Singh s/o Jeet Singh, Arjunsingh s/o Gurduttsingh, Smt. Haro w/o Arjunsingh and Smt. Budha w/o Jeetsingh on October 16, 1983 at 10. 30 P. M. in respect of the occurrence, which took place on that day at 5 P. M. vide C. R. . No. 80 at Police Station, Hindumalkot, in which it was alleged that the accused-persons committed the murders of Kartarasingh s/o Karansingh, Lalsingh s/o Kartarsingh and Mst. Gura w/o Kartarsingh. The Additional Superintendent of Police (C. I. D.) submitted a charge-sheet on January 25, 1984 against the accused-persons Bhagwansingh, Diwansingh and Mst. Haro Bai. It was stated in the charge-sheet that during the course of investigation, statements of witnesses viz. ONkarsingh s/o Karansingh, Mst. Dhamo w/o ONkarsingh, Kumari Jeeto d/o ONkar Singh, Mst. Dhanno w/o Bachansingh. Kumari Sarjeeto d/o Kartarsingh, Kumari Manro w/o Kartarsingh, Preetasingh s/o Kartarsingh and Ratansingh s/o Kartarsingh were recorded. Some of the witnesses had left for Punjab out of the fear of those persons, who have not been arrested and some of the witnesses were not available and these witnesses could not be examined and investigation from them is necessary. However, it was stated that other accused-persons are absconding and despite efforts could not be arrested. The arrested accused-persons viz. Bhagwansingh, Diwansingh and Mst. Haro are in judicial custody and 90 days of their detention are going to expire on January 27, 1984. It was stated in the charge-sheet that whatever the investigation was done so far the aforesaid offences are made out against the arrested accused-persons and also against the remaining seven unarrested-accused-persons on the basis of the statement of the aforesaid witnesses. It was further stated in the report under Sec. 173 (2), Cr. P. C. that a charge-sheet against the arrested accused-persons is submitted for being dealt with according to law continuing the investigation against the remaining seven unarrested accused-persons under Sec. 175 (8), Cr. P. C. ON the said charge-sheet, cognizance was taken by the Magistrate on January 25, 1984. Copies of the challan were supplied to the counsel for the arrested accused-persons-
A second charge-sheet was presented by the Circle Inspector as after presentation of the first charge-sheet, the investigation was handed over to him. He interrogated the witnesses viz. Mst. Kaushaliya w/o Lalsingh, Kumari Vimla d/o Kartarsingh, Arjunsingh and Sundersingh. The second charge-sheet was presented against the accused-persons viz. Arjunsingh s/o Gurdeepsingh, Gurmukhsingh s/o Gurdeepsingh, Dullasingh s/o Gurmuksingh, Jeetsingh s/o Panjasingh and Mst. Budha w/o Jeetsingh. The two accused-persons viz. Jodha-Singh s/o Ishwarsingh and Jogendrasingh s/o Jeetsingh were still absconding, so the charge-sheet was presented under Sec. 299, Cr. P. C.

Mr. M. L. Garg, Learned counsel for the accused-applicants submitted that the first charge-sheet was an incomplete charge-sheet and more than 90 days has expired from the date of the arrest of the applicants and a complete charge-sheet was not presented within a period of 90 days, so the applicants are entitled to be release on bail under proviso (4) of sub-sec. (2) of Section 167, Cr. P. C. Mr. Garg urged that the investigation was not complete inasmuch-0s, all the witnesses were not interrogated before the submission of the first charge-sheet although the interrogation from these witnesses was considered necessary. When the interrogation was considered necessary, the first charge-sheet was an incomplete charge-sheet and investigation by then was not completed, so the charge-sheet submitted on January 25, 1984, cannot be considered to be a report under sub-sec. (2) of Sec. 173, Cr. P. C. and in such a situation, proviso (a) to sub-sec (1) of Sec. 167 is attracted and the accused-applicants are entitled to be released on bail as the Magistrate is not authorised for a detention of the accused applicants in custody beyond a period of 90 days. The provision contained in the proviso (a) to sub-sec. (2) of Sec. 167, Cr. P. C. is mandatory.

The learned Public Prosecutor, on the other hand urged that the first charge-sheet is a report under Sec. 173 (2) Cr. P. C. The investigation was completed in the sense that whatever investigation was done by that time, the investigating officer had formed an opinion that the alleged offences are made out against the accused persons although by then, some of the witnesses were not interrogated as they were not available. In such a situation, it cannot be said that the investigation was incomplete. Under Sub-sec. (8) of Sec. 173, Cr. P. C. the police has ample power to make further investigation and if, the additional evidence, which was not available earlier is forthcoming during the course of investigation, a supplemental report or additional report can be submitted by the investigating agency and the provisions of sub-sections (2) to (6) of Sec. 173 will apply to such supplemental or additional report. According to the learned Public Prosecutor, sub-section (8) of Sec. 173, Cr. P. C. is not only applicable to further investigation relating to the unarrested accused-persons. The further investigation can be conducted in respect of an offence for which a report has been forwarded to the Magistrate and during the course of further investigation, the investigating officer may obtain further evidence. A further report can be submitted by him to the Magistrate regarding such evidence.

In order to appreciate the rival submissions of the parties, it is proper for the facility of reference to extract the relevant provisions of Sections 167 and 173, Cr. P. C. Sub-sec. (3) of Sec 167, Cr. P. C. as amended by the Code of Criminal Procedure (Amendment) Act, 1978 and relevant Sec. 173, Cr. P. C. read as under: - " (2 ). The Magistrate to whom an accused-person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorises the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial and considers further detention unnecessary he may order the accused to be forwarded to a Magistrate having such jurisdiction. Provided that - (a) the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police, beyond the period of the fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding - (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him. (2) No Magistrate of the second class, not specifically empowered in this behalf by the State Government shall authorise detention in the custody of the police. Explanation - I : For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation-II : If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention. 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 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 if any, by whom the information relating to the commission of the offence was first given. XXX XXX XXX (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 subsections (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)".

(3.)A perusal of the provisions of Sec. 173, Cr. P. C. extracted above would show that the investigation is required to be completed without the necessary delay and on completion of the investigation, a report has to be forwarded by the officer-in-charge of the police station to the Magistrate empowered to take cognizance against the accused in the form prescribed under subsection (2 ). Sub-sec. (8) empowers the officer-in-charge of Police Station to conduct further investigation in respect of an offence for which, a report under sub-sec. (2) has already been forwarded and whatever further evidence is obtained by him, a further report or reports regarding such evidence can also be forwarded to the Magistrate and to such report or reports, the provisions of sub-sections (2) to (6) shall apply. Sub-sec. (2) of Sec. 173 and sub-sec. (8) have to be read together and harmoniously if a report under sub-sec. (2) has been forwarded and still further investigation is open to be conducted than further evidence can be collected. It does not mean that the earlier report is an incomplete report and that investigation till the date of that report is an incomplete one. The accused-persons were sent up for trial by forwarding the report under sub-sec. (2) on the basis of investigation already conducted as on the material collected. The investigating officer may form an opinion that there is sufficient evidence against the accused-persons sent up for trial and in the course of further investigation, more evidence can be collected. Collection of further evidence under the enabling provisions of sub-sec. (8) of Sec. 173, Cr. P. C. would not render the earlier report as an incomplete one or the investigation is an incomplete one. Sub-sec. (8), in my opinion, is an enabling provision which empowers the officer-in-charge of the police station for conducting the further investigation. It would be profitable to refer to a decision of the Supreme Court, wherein the object and purpose of further investigation has been considered in a particular manner. In Ram Lal Norang vs. State (1), it was observed as under- "anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a ease 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 proceeded to some extent, he may take fresh cognizance of the offence disclosed against the offence 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. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the Magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light. As observed by us, earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Sec. 173 nor Sec. 190 lead as to held that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation. " Their Lordships considered the matter from the light of involvement of the other accused-persons not sent up for trial or non-involvement of the accused-persons already sent up for trial by a report under Sec. 173 (2) and their Lordships also considered that further investigation may even reveal wider range of the offence including those covered by the first investigation. It was categorically observed by their Lordships that submission of the report under Sec. 173 does not exhaust the further right of the police. Their Lordships were dealing the question under the old Code, so far as 1973 Code is concerned, a clear provision has been inserted in sub-sec. (8) of which, to my mind, clearly empowers the investigating officer to conduct further investigation despite the report under sub-sec. (2) of Sec. 173, Cr. P. C. by which, the accused-persons have been sent up for trial. Reference in this connection may also be made to Achchan vs. State of U. P. (2), it was observed asunder :- "it is not correct to say that a charge-sheet under S. 173, Cr. P. C. can be submitted only after completion of the entire investigation and that it is not open to the police to submit charge-sheet in piecemeal. The words "as soon as it is completed should be liberally construed and it should be held that, if in a given case, the police, after investigating the matter for a reasonable length of time, is able to complete the investigation with respect to a particular number of accused, it would be permissible to submit the charge-sheet as against them. Putting it differently, the words "completion of investigation" should have some relation to the offenders. In this connection, it can not be ignored that sub-sec. (8) of S. 173 expressly permits further investigation and states that on completion thereof a further report or reports may be given in the same form as provided in sub-sec. (2 ). " The above observations may not be taken to mean that the investigation should be considered completed with respect to a particular number of the accused and incomplete with respect to those who have not been arrested. Completion of the investigation, in my opinion, has relation to the offence or offences and further investigation can be conducted in relation to the offence or those offences and even wider range of the offence which may come to light during further investigation. The entire evidence may be collected and some accused-persons may be arrested and some accused-persons may not be arrested. The investigation may be complete so far as the arrested accused-persons are concerned and it may also be taken as complete so far as unarrested-accused-persons are concerned. The investigation may also be considered to be complete in respect of the arrested accused-persons, even when some evidence may not be available to the investigating officer by the time he submits the report under sub-sec. (2 ). Completion of investigation has relation with collection of such material evidence on which, the conviction can be founded and for that opinion can be formed. If some witnesses are not traceable or say, some witnesses are ignored to be interrogated, it can not be said that the investigation is incomplete. If the investigating officer has collected the overwhelming evidence and material against the arrested accused-persons and submits the report under sub-sec. (2) of Sec. 173, although stating in the report that some of the witnesses are either not traceable or it is impracticable to interrogate them, it cannot be said that the investigation is incomplete. Completion of investigation has a relation to the formation of opinion on the question of guilt of the accused-persons on the basis of the collected evidence or material. Under sub-sec. (8) of Sec. 173 Cr. P. C. emphasis has been placed on obtaining further evidence in respect of the offence for which a report has already been forwarded. This provision does not say that further investigation can only be done with respect to the unarrested accused-persons. Further material or evidence against the accused-persons, who have already been arrested and against whom a report under sub-sec. (2) has already been forwarded can be obtained during further investigation.
The provisions of sub-sec. (2) and sub-sec. (8) of Sec. 173 are not contrary to each other. The two can co-exist. The investigation can be taken as complete yet further investigation can be undertaken. Also it would mean that if any further investigation is made, the investigation done upto the submission of the first report would always be treated as incomplete and the accused would be entitled to be released on bail under the proviso (a) to sub-sec. (2) of Sec. 167, Cr. P. C. after the expiry of 90 days of their detention if the additional report is submitted under Sec. 173 (8) after 90 days If suppose some witnesses are abducted or held back from investigation by the accused-persons or at their instance and they are interrogated after 90 days and additional report is submitted, the accused would be entitled to be released on bail, although sufficient evidence had already been collected or obtained during investigation till the first report was submitted.

It is also a matter of everyday experience that charge-sheets are presented without the receipt of the reports of Chemical Examiner, Serologist or Ballistic Expert. It cannot be taken that the investigation is incomplete without them and when they are produced the accused may be entitled to be released on bail if such reports are produced after 90 days.