JUDGMENT
Madan Mohan Prasad, J.
1. This is an application for bail by the petitioner who is accused of an offence under Section 395 of the Indian Penal Code.
2. The petitioner has been named as one of the nine accused mentioned in F.I.R. from amongst several dacoits. He is alleged to have been armed with a gun and is said to have been identified by five witnesses. It is also said that there was a scuffle between the dacoits and the prosecution party resulting in injuries to some of the dacoits as a result of which one of them died. One of the injured dacoits is said to have made an extra-judicial confession before the villagers implicating the petitioner and others along with himself.
3. It appears that investigation was taken up and that a charge-sheet (styled as preliminary charge-sheet) was submitted recommending trial of this petitioner and one Chandrika Ahir for the offence aforesaid. Another charge-sheet (without the heading preliminary charge-sheet) was submitted in respect of six other co-accused showing there other accused (not mentioned in the F.I.R.) as absconders.
4. It appears that the petitioner unsuccessfully moved the Judicial Magistrate, Chief Judicial Magistrate and the Sessions Judge for bail.
5. In support of this application counsel for the petitioner has urged that a preliminary charge-sheet is no charge-sheet in law and it was filed merely with a view to defeat the provisions of Section 167(2) of the Code of Criminal Procedure and in such circumstance the petitioner is entitled to bail. Secondly that on merits of the case against the petitioner also he deserves to be released on bail.
6. I will first take of the contention regarding submission of preliminary charge-sheet. Counsel for the petitioner has placed reliance on a decision of a learned single judge of this Court in the case of Shiv Shankar Prasad Sao v. The State of Bihar 1976 B.B.C.J. N-11. From the brief order it appears that in that case an ad interim charge-sheet had been submitted and that it was said that the final charge sheet would be submitted after completion of the investigation. In such circumstance D.P. Sinha, J held that submission of such ad-interim charge-sheet was not warranted by law and this led the learned judge to come to the conclusion that the aforesaid device had been resorted to only with the intention of defeating the provision of Section 167(2) of the Code of Criminal Procedure, 1973, (hereinafter referred to as ‘the new Code’) Firstly, the facts of that case were different inasmuch as it was said there that a final charge-sheet would be submitted after completion of the investigation, obviously, thereby indicating that the report submitted had not been done on the completion of the investigation as laid down in Section 173(2) of the new Code. That apart, I regret to say that 1 am unable to concur in the view that there is no provision in the code for a preliminary charge-sheet, if the word ‘preliminary’ is to be understood as some report submitted before a second report is submitted on the point. The point is one of considerable importance and since the question has been raised in the present case 1 would like to express my own views thereon.
7. Before coming into force of the present Code Section 173(2) of the Code of Criminal Procedure, 1898, (hereinafter referred to as the ‘old Code) required submission of final form on the completion of an investigation. There is no difference between the old Code and the new Code in respect of this provision of law. There is, however, a difference which 1 will mention hereafter inasmuch, as, there has been the introduction of the new provision contained in Sub-section (8) of Section 173 of the new Code. Before I discuss this point, 1 would like to find out the law that was in existence before the coming into force of the new Code. Even though Section 173(2) of the old Code required submission of a final form after completion of the investigation, the law was well settled, at least so far as this Court is concerned, that the Police had the powers to investigate a case further even after submission of the final form under Section 173(2) and this was in spite of the fact that there was no provision enabling the police specifically to make further investigation. I might as well mention that on the other hand there was no provision in the old Code, prohibiting further investigation even after submission of the final form. It was in this background that in numerous cases it was held that the police had the power to investigate the case further even after completion of investigation and submission of final form. This will indicate the fact that for all practical purposes the first final form became preliminary, keeping in view the subsequent final form submitted in the case. It is not necessary for me to refer to these oases now at any length for the simple reason that in the present Code the Legislature has specifically provided in Sub-section (8) of Section 173(2) that nothing in that sub-section shall preclude the police from making further investigation and submitting further report even after submission of the final form under Section 173(2) of the new Code. In any easel would refer to a couple of cases of this Court. In the case of Rama Kant Singh v. State of Bihar Cri. Misc. No. 183 of 1972 and Crl. Revision No. 191 of 1970, disposed of on 16.3.1971 by Wasiuddin, J. a final report (a report not recommending the accused for trial and loosely so called) was first submitted by the police and thereafter the investigation was reopened by the order of the Superintendent of Police and even in absence of any fresh material and only on the basis of the different opinion of the police arrived at hereafter it was held that it was open to the police to submit second final form. Similarly, in the case of Raghunath Sharma v. The State S.N.P. Singh, J. as he then was, in more or less similar circumstances held that the superior police officer had the authority to direct submission of charge-sheet even though the officer-in-charge of the police station had already submitted ‘final report’ under Section 173(2) of the old Code. In this case also final report had been submitted first and charge-sheet next. Both the learned Judges placed reliance on a decision of the Allahabad High Court in Rama Shankar v. State of Uttar Pradesh A.I.R. 1956 Alld. 525. In the case Rama Kant Singh (supra) Wasiuddin, J. also placed reliance on a Bench decision of this Court in the case of State of Bihar v. Sher Bahadur Cr. Rev. No. 673 and 675 of 1957 disposed of on 2.2.1960, where also a similar view was taken. S.N.P. Singh, J., as he then was, placed reliance on a decision of the Supreme Court in the case of H.N. Rishbud v. State of Delhi for the proposition that taking all steps for filing of a charge-sheet and the formation of opinion on the matters already collected are themselves steps towards the investigation of a case, obviously indicating that would mean further investigation. I would content myself with these decisions and point out that even under the law as it obtained prior to the coining into force of the new Code it was open to the police after submission of the report under Section 173(2) to submit another report after holding further investigation. With utmost respect to the learned Judge I am unable to concur in the view expressed in the case of Shiva Shankar Prasad Sao (Supra) that the law does not envisage filing of a final form which may be tentative in character if further investigation is directed or envisaged. I venture to think that the purpose of Section 173(2), which provides that a report shall be submitted by the police on completion of the investigation is not one which affects the statutory right of the police to investigate a case and to mean that it comes to an end with the submission of the aforesaid report and that the police has no more such power as soon as the report under Sub-section (2) of Section 173 is submitted.
8. In the light of what I have stated earlier it is obvious that merely becaue a charge-sheet is preliminary of is said to be preliminary, it cannot be brushed aside as of no consequence. The question for the Magistrate would be whether it is in substance final form inviting the Magistrate to act upon its basis. If the accused has been sent up for trial by this final form called ‘preliminary charge-sheet’, it is open to the Magistrate to take cognizance of the offence even on the basis of such charge-sheet which is described as a preliminary charge-sheet. There is nothing in law, I venture to think, which prohibits the Magistrate from taking cognizance on the basis of such charge-sheet. A reference to Section 190 of the Code would show that a Magistrate can take cognizance of an offence either upon receiving a complaint of facts which constitutes such offence or upon a police report of such facts or upon information received from any person other than police officer or upon his own knowledge that such offence has been committed. Question had arisen in many cases as to whether if the report submitted by the police is not a report coming within the purview of Section 173(2) a Magistrate can take cognizance in this connection I would refer to the case of Prabin Chandra Modi v. State of Andhra Pradesh . In that case it was contended before their Lordships that a prosecution under Section 251-A of the Code of 1898 could only commence on a report under Section 173 of the Code and that the report made in that case could not be treated as a report under Section 173. Their Lordships held that the report if it fell within Section 190(1)(b), must attract the provisions of Section 251-A of the Code. The words ‘Police report’ in Section 251-A of the Code of 1898 and the words, report by a police officer, in Section 190(1)(b) means the same thing and that in both the cases the words include any report by a police officer whether falling under Section 173 or not. Thus for the purpose of taking cognizance it has to be found out whether the report comes within the purview of Section 190(1)(b) of the Code. A preliminary charge-sheet has, therefore, to be Judged from that point of view and if it contains facts which disclose an offence, a Magistrate is certainly entitled to take cognizance on its basis if that be so, can this charge-sheet be ignored. The answer is obvious.
9. Coming to another aspect of the matter, the question is whether the report sent by the police under Section 173(2) conforms to the requirement of law. In other words, whether it amounts to final form. The report has to be judged on this basis and not on the heading as to whether it is preliminary or final and the basis is to be found in Section 173(2) which itself lays down as to what the police report ought to contain. It should contain in the prescribed form the names of the parties, nature of the information, the names of the persons who appear to be acquainted with the circumstances of the case, whether any offence appears to have been committed and, if so, by whom, whether the accused has been arrested, whether he has been released on his bond and if so, whether with or without sureties and whether he has been forwarded in custody under Section 170. If a police report–whether called by the name of preliminary or final charge-sheet, contains all these materials, it is a final form irrespective of the name by which it is described. Therefore, it is the substance of the report which has to be looked into and not merely the name given to it and it is not the time of filing the report which will be the main criterion to decide as to whether it is a final form or not. There may be a case where the police after collection of any part of the evidence, may feel justified in submitting a report recommending prosecution of a particular accused without waiting for subsequent evidence. In such a case the police has the right to hold further investigation thereafter and submit yet another report under Section 173 and no objection can be taken to such a procedure now in view of Sub-section (8) of Section 173 of the new Code. Therefore, in my view, merely because a charge-sheet has been submitted while investigation is not complete for one reason or the other it cannot be said that it is a document which has no effect in law being not in accordance with law and that for that reason alone it must be deemed to be one with a view to circumvent or defeat the provision of Section 167(2) of the Code.
10. In the view which I have taken with regard to the question as to whether such a report is in final form or not I find support from some of the decisions of this Court which I shall presently refer to. In the case of Rajoo alias Raj Kishore Singh and Ors. v. State of Bihar Cr.W.J. C. No. 25 and 591 of 1976 decided by a Division Bench of this Court consisting of B.D. Singh and M.P. Singh, JJ, a preliminary charge-sheet had been filed and the argument was similar to that made before D.P. Sinha, J. In the case of Shiv Shankar Prasad Sao (supra). The learned Judges held that simply because a charge-sheet is headed as a preliminary one it should not be considered that it is not a charge-sheet in substance. In fact the decision in the case of Shiv Shankar Prasad Sao was also brought to the notice of the learned Judges. They, however, distinguished it from the case before them. In any case, I have come to my own views as expressed above after consideration of the question in all its aspects. In that case before the Division Bench reliance was placed by the counsel on the decisions of the Andhra Pradesh High Court in T.V. Sharma v. Smt. Durga Kamla Devi 1976 Cr.L.J. 1247 as also the decision in the case of the same court in Bandi Kotayya v. State and Ors. . In the first mentioned case a learned single judge of that court held that the so-called preliminary charge-sheet, filed in the case was not a police report because investigation had not been completed. In the second mentioned case also it was observed that a preliminary charge-sheet cannot be regarded as a report under Section 173 of the Code. The learned judges of this Court distinguished these decisions.
11. In another case, Sardar Dilip Singh v. The State of Bihar Cr. Misc. No. 4052 of 1976 disposed of on the 9th February, 1977 by B.D. Singh and C.N. Tiwary, JJ. the same question was raised with regard to the submission of preliminary charge-sheet. In that case investigation was not yet completed and the police had submitted a preliminary charge-sheet on the basis of which the Chief Judicial Magistrate had taken cognizance and the order of cognizance was being assailed on the ground that the preliminary charge-sheet was not a report within the meaning of Section 173(2) and the Magistrate could not, therefore take cognizance on that basis. In that case again the learned judges held that “simply because the charge-sheet is headed as ‘preliminary’ it would not be considered as bad, and the substance and not the form will matter….” They relied on the decision in the case of Rajoo, alias Raj Kishore Singh (supra). The learned judges did. as I have done here, point to the new provision in Sub-section (8) of Section 173 of the new code and observed that in view of that provision final form submitted under Section 173(2) did not have that ‘sense of finality’ as contended by the counsel for the petitioner in that case. In the case of Sudhakar Tiwari v. The State of Bihar Cri. Misc. No. 287 of 1977 disposed of on 28th March, 1977, Lalit Mohan Sharma, J. held that although the investigation had not been closed in view of the fact that there were other accused persons, apart from the petitioner, a charge-sheet had been submitted against the petitioner. The learned judge held that so far as that petitioner was concerned, the investigation must be deemed to have been completed. The decision in the case of Shiv Shankar Prasad Sao (supra) was cited before him but the learned judge placed reliance on the decision of the Division Bench in the case of Sardar Dilip Singh (supra). It would appear from this decision that the learned judge has taken the same view as I have expressed earlier that an investigation may be completed with regard to one person and yet it may not be complete as a whole.
12. Speaking for myself, I cannot persuade myself to accept that simply because a charge-sheet has been submitted before completion of an investigation as a whole it, cannot be termed as a report under Section 173(2). I will do well to give reasons for the contrary view of mine. There may be a case against, say–half a dozen accused, which the police may be investigating and sufficient material may have been collected against one of them, the investigation, so far as that person is concerned, may therefore, be complete and thus the report submitted during the investigation as against that particular accused would be a report after completion of the investigation so far as he is concerned. Merely because the investigation is yet proceeding against other accused persons it cannot be said that the report submitted with regard to that particular accused would not be a report under Section 173(2) nor can it be said that the Magistrate would not be entitled to take cognizance on the basis of that report. What is investigation in law? It is a collection of evidence against particular person or persons and once the police has done it, forms an opinion on its basis and either recommends the accused to be sent up for trial or says, that there is no case made out against him or them, as the case may be. There is nothing sacrosant about the words “as soon as it is completed” occurring in Section 173(2) indicating the time when the police is to submit final form. It will appear that Chapter XII of the new Code, relates to information to the police and their powers to investigate. It deals mainly with the procedure to be adopted by the police and the Magistrate in different cases during investigation and the submission of the report on completion thereof. Thus, the Chapter deals mainly with the period prior to time of taking of cognizance by the Magistrate. Section 173(1) provides for investigation to be completed as soon as possible and Section 173(2) provides for submission of the report on completion of the investigation. These two provisions are thus only indicative of the procedure and appear to be only directory, when read together, laying guide-lines for the police officer. It would appear that there is no penal clause to the effect that the investigation would be null and void if not completed early or the report would be so if not submitted at the completion of the investigation. I am conscious of the provision in Section 167(2)(a) regarding release of the accused on bail after a period of 60 days and 167(5) providing that in a summons case a Magistrate may stop investigation after six months. But those provisions are not of general application and would not lead to the conclusion that in all oases, violation of Section 173(1) or Section 173(2) h penal. Considering the scheme of the Code and the nature of the provisions under Chapter XII it is apparent that the purpose behind the words used by the Legislature in Section 173(2) “as soon as it is completed” do not affect the statutory right of the police in respect of the power of investigation thereafter but is merely directory and indicative of the time when the police officer has to submit the report.
13. Keeping in view the aforesaid principle of law I turn to the facts of the present case. In this case, so far as the petitioner and one more accused are concerned, evidence had been collected and charge-sheet (though the heading calls it ‘preliminary charge-sheet’) was submitted against this petitioner and one other accused. Thereafter, a second charge-sheet (without heading aforesaid) was submitted against the other accused persons. It is stated in the first charge-sheet that upon the evidence collected a prima facie case Under Section 395 of the Indian Penal Code had been made out against those two accused persons, and a preliminary charge-sheet was submitted against them. In the second charge-sheet against other accused persons, it is stated again that there was sufficient evidence against all the accused named therein and therefore, they were sent up for trial. It appears obvious that since second charge-sheet had yet to be submitted as against other accused persons, the first one against the petitioner and one another was given the heading of ‘preliminary charge-sheet’. It is further obvious that the petitioner and the other accused had not been mentioned as accused sent up for trial in the second charge-sheet which was against the remaining ones (sic). The circumstances clearly, therefore, bring oat that so far as this petitioner, and one other accused are concerned, the charge-sheet aforesaid was final. Therefore, there is no question of this charge-sheet being a document devoid of any legal effect, or being one which can be deemed to be merely for the purpose of circumventing the provisions of Section 167(2)(a) of the new Code. The contention of learned Counsel, therefore, must be rejected.
14. I now come to the question in respect of merits of the case. In this respect learned Counsel has urged (i) that no overt act has been alleged to have been committed by this petitioner; (ii) that although the prosecution story is that prosecution witnesses had a scuffle with the accused with a dagger, there was no external injury found on his person, and (iii) that his alibi to the effect that he was at Calcutta at the relevant time ought to be accepted. I am afraid, I am unable to accept any of these contentions. It appears from the prosecution case that the petitioner was known to the witnesses, was alleged to have taken a leading part in the dacoity and that he was armed with a gun. There was scuffle between him and the witnesses. With regard to the injury on his person it appears that the occurrence had taken place on 25.1.1976 and the accused surrendered on 3.3.1976. He appears to have got himself examined by a doctor, a certificate to which effect his been filed in this Court on 21.3.1976 and it is said that no mark of injury was found on his person. It is not clear from the statements in the F.I.R. or the statement of any particular person as to whether dagger blow given to him had resulted in an injury to him. Secondly, it was nearly two months after the occurrence that he got himself examined and not immediately thereafter. Thirdly, it would appear from the aforesaid certificate of the Civil Surgeon (Annexure ‘3’) that for the purpose of identification he found one scar on the top side of chest of the petitioner, Although he took it as an identification mark, I am not in a position to say whether this scar was the result of the injury met with during the occurrence or some other scar of a different nature and previous in origin. With regard to the question of alibi the petitioner has produced a certificate (Annexure 2) from a doctor at Calcutta saying that he was suffering from enteric fever from 22.1.76 to 4.2.76. That means, since three days before the occurrence and for long thereafter. I do not wish to make any observation with regard to this as to whether it can be relied upon, for, that would be a matter to be decided at the time of trial. I am not in a position, however, at the present stage on the basis of this certificate to hold that the petitioner cannot be deemed to be involved in the present case and, therefore, ought to be released on bail.
15. On the other hand, it has been pointed out that the petitioner has been identified by no less than five prosecution witnesses as taking part in the dacoity and in support thereof there is another material, namely, confession of the other accused forwarded for trial along with the petitioner on the basis of the same preliminary charge-sheet, who, in the extra judicial confession inculpating himself also inculpated the petitioner and other accused. Confession of co-accused is a material which has to be taken into consideration at the trial along with other evidence.
16. On the merits of the case, therefore, I am not inclined to admit this petitioner to bail. This application is accordingly, rejected.