Palanisamy @ Palani vs State Rep. By on 14 November, 2002

Madras High Court
Palanisamy @ Palani vs State Rep. By on 14 November, 2002
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 14/11/2002

CORAM

THE HON'BLE MR.JUSTICE. MALAI.SUBRAMANIAN

CRL.R.C.NO.1908 of 2002
AND
CRL.M.P.NO.11018 of 2002

1. Palanisamy @ Palani
2. Subramani
3. Narayanappa
4. Raja @ Rajappa
5. Naga @ Nagaraj
6. Senthil @ Senthilkumar               ....   Petitioners

-Vs-

State rep. By
Inspector of Police,
Thali Police
Dharmapuri District                     .... Respondent

        Revision filed under Sec.392 read with 401 Cr.P.C.  against the  Order
passed  in  Crl.M.P.No.1334/2002  dated  5.9.2002  on  the  file  of  District
Munsif-cum-Judicial Magistrate, Thenkanikottai.

!For petitioners :      Mr.K.  Gandhikumar

^For respondent :       Mr.O.  Srinath
                        Govt.  Advocate (Crl.  Side)

:ORDER

This revision has been directed against the Order passed by the
District Munsif-cum-Judicial Magistrate, Thenkanikottai in Crl.M.P.No.133
4/2002, whereby the learned Magistrate dismissed the bail application filed by
the petitioners under Sec.167(2) Cr.P.C.

2. The petitioners are accused in Cr.No.121/2002 on the file
of the Inspector of Police, Thali Police Station. They were remanded to
custody for offences punishable under Secs.147, 148 and 302 IPC and Sec.25(A)
of the Indian Arms Act. Investigation was completed and final report was
filed on 26.8.2002, but the learned Magistrate returned the final report
remarking that the prosecution under the Arms Act requires sanction from the
authorities concerned. The petitioners filed a petition under Sec.167(2)
Cr.P.C on 28.8.2002 requesting the Court to release them on bail, since
investigation was not concluded within a period of 90 days as per Sec.167 (2)
Cr.P.C.

3. The learned counsel appearing for the petitioners contends that
the learned Magistrate is wrong in dismissing the petition since on the date
when the petition was filed, no charge sheet was filed on the file of the
learned Magistrate concerned. In support of his contention he also relies on
a ruling of the Andhra Pradesh High Court reported in 1994 Crl.L.J. 257 in
the case of M.C. Venkatareddy vs State of Andhra Pradesh, wherein the learned
Judge has held as follows:

“In the instant cases, while the petitioners in Crl.P.341/93 are remanded to
judicial custody on 30.9.1992 and the period of 90 days expired on 28.12.1992,
the petitioner in Crl.P.No.559/93 was remanded to judicial custody on
29.10.1992 and the period of 90 days expired on 26 .1.1993. The application
was filed by the accused to release them on bail since the period of 90 days
expired and there is no police report before the Court and the Magistrate has
failed to take cognizance of the cases. The same was rejected by the
Magistrate on the ground that the petitioners are not entitled for bail under
Sec.167(2) Crl. P.C because the SHO (Station House Officer), filed the
charge-sheet already within 90 days on 28.12.1992 and that the same was
returned to comply the objections. From this, it is crystal clear that there
was no police report on record of the court and even on its own showing, the
prosecution has not filed the report conforming to the requirements of
Sections 173(2) and 173(5) and as such the same was returned. Inasmuch as the
charge-sheet was not in conformity with the procedure established by law and
as the same was returned, the action of the Magistrate in returning the same
was only administrative in nature and not judicial and the Magistrate was not
competent to take cognizance of the offence as the charge-sheet was not filed
as contemplated under law and was not there on record within the stipulated
time of 90 days. It is not sufficient for the prosecution to just file some
sort of police report not conforming to the provisions of Sections 173(2 ) and
173(5) Cr.P.C and then play fraud not only on the statute but also on the
Constitution. This kind of tactics by the police to water down and nullify
the constitutional and statutory guarantees cannot be countenanced and in
fact, the Courts should keep a strict vigil on this kind of unscrupulous acts
of officers to get over the constitutional and statutory mandate of filing a
charge-sheet within the stipulated time under the guise of filing defective
charge-sheet and then knowing fully well that it will be returned. Until a
charge-sheet with all specifications enumerated under Sec.173(2) Cr.P.C and
accompaniments under Section 173(5) Cr.P.C is filed into the court and the
court scrutinises it on its administrative side to satisfy that all such
documents are in order and unless the court takes it on record and keeps it on
its file for examination for taking cognizance or not, it cannot be said that
a police report (charge-sheet) is filed as contemplated under Section 173(2)
Cr.P.C. Once the police report is filed, it should be capable of examination
for the purpose of judicial determination to take cognizance of the offence
and to proceed further into Chapter XVI Cr.P.C and any act short of that
cannot be construed as “taking cognizance”.

4. That was a case where the charge sheet was returned for want of
material papers contemplated under Sec.173(5) Cr.P.C. That is why the learned
Judge (as he then was) has held that it is not sufficient for the prosecution
to just file some sort of police report not conforming to the provisions of
Sections 173(2) and 173(5) Cr.P.C and play fraud not only on the statute but
also on the Constitution. This kind of tactics by the police officer was
deprecated. But in this case, charge sheet was not returned for want of any
material papers contemplated under Sec.173(5) Cr.P.C. The Magistrate chose to
return the charge sheet on the ground of absence of sanction to prosecute the
petitioners under the Arms Act.

5. It is relevant to note that the documents referred to under Sec.1
73(5) have been submitted to the Court. It cannot be said that obtaining
sanction from the authorities concerned is part of investigation. Sanction is
required only to enable the Court to take cognizance of the offence. The
Court may take cognizance of the offence after the sanction order was produced
before the Court, but the moment the final report is filed along with the
documents that may be relied on by the prosecution, then investigation will be
deemed to have been completed. Taking cognizance is entirely different from
completing investigation. Completing investigation and filing a final report
is the duty of the Investigating Agency, but taking cognizance of the offence
is the power of the Court. Suppose the Court does not take cognizance of the
offence for some more time even after filing of the final report, the accused
concerned cannot claim their indefeasible right under Sec.167(2) Cr.P.C. What
is contemplated under Sec.167(2) Cr.P.C is that the Magistrate concerned has n
o powers to order detention of the accused beyond the period of 90 days or 60
days as the case may be. If investigation is concluded within the prescribed
period, no right accrues to the accused concerned to be released on bail under
the proviso to Sec.167(2) Cr.P.C.

6. Of course the learned Magistrate may not be right in returning the
charge sheet for want of sanction order to prosecute the petitioners under the
Arms Act. He could have kept the charge sheet on the file and could have
directed the investigating officer to file the sanction order so as to enable
him to take cognizance of the offence. Sec.1 97 Cr.P.C only says that no
Court shall take cognizance of offence except with the previous sanction of
the Government concerned. May be it is the duty of the Investigating Officer
or the Prosecuting Agency to obtain proper sanction and file the same before
the Court to enable the Magistrate to take cognizance of the offence, but it
does not entitle the Magistrate concerned to return the charge sheet. At any
cost, non filing of the sanction order does not make the investigation
incomplete. Once a final report has been filed with all the documents on
which the prosecution proposes to rely, the investigation shall be deemed to
have been completed. After completing investigation and submitting a final
report to the Court, the Investigating Officer can send a copy of the final
report along with the evidence collected and other materials to the
sanctioning authority to enable the sanctioning authority to apply his mind to
accord sanction. According sanction is the duty of the sanctioning authority
who is not connected with the investigation at all. In case the sanctioning
authority takes some time to accord sanction, that does not vitiate the final
report filed by the investigating agency before the Court. It is relevant to
note that Sec.197 Cr.P.C occurs in Chapter XIV which deals with conditions
requisite for initiation of proceedings. Sec.173 Cr.P.C does not speak about
the sanction order at all. Sec.167 also speaks only about investigation and
not about cognizance by the Magistrate. Therefore, once a final report has
been filed, that is the proof of completion of investigation and if final
report is filed within the period of 90 days from the initial date of remand
of accused concerned, he cannot claim that a right has accrued to him to be
released on bail for want of filing of sanction order.

7. Sec.173 (5) Cr.P.C of course requires all the documents or the
relevant extracts there of on which the prosecution proposes to rely to
accompany the final report. Sanction order cannot be brought within the
category of those documents contemplated under clause (5) to Sec.173 Cr.P.C.
According sanction is altogether a different act to be performed by the
Government concerned under Sec.197 Cr.P.C.

8. In view of the above discussions, I am of the view that the ruling
cited by the learned counsel for the petitioners will not apply to the facts
of the present case and the petitioners are not entitled to be released on
bail under Sec.167(2) Cr.P.C, since the final report has been filed by the
Investigating Agency on 26.8.2002 itself before the prescribed period while
the bail application was received by the Magistrate only on 28.8.2002.

9. Therefore, the revision stands dismissed. Consequently, the
connected Crl.M.P.11018/2002 is closed.

14-11-2002

sr
Index:Yes
Web site: Yes

To

1. The District Munsif-cum-Judicial Magistrate,
Thenkanikottai.

2. The Public Prosecutor, High Court, Madras.

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