P L D 1973 Lahore 304 (PLP)

ANWARUL HAQ, C. J.‑The following questions have been referred to this Bench by a learned Single Judge of this Court by his order dated the 2nd of February 1970 :‑ (1) Whether a Court takes cognizance by a judicial action ; (2) Whether a Court takes cognizance under section 173.. Cr. P. C. alone or also under section 190 o f the Code ; and (3) Whether the police is debarred from making further investigation after having submitted the final report under section 173, Cr. P. C.‑ (a) before a Court has taken cognizance by an overt judicial act ; (b) after a Court has taken cognizance but , before the recording of evidence ; and (e) after the recording of evidence has commenced.

2. The questions have arisen in the following circumstances. The petitioner Alam Din lodged a first information report at Police Station Kanganpur, in the Lahore District, on the 7th of April 1969, in connection with the murder of one Muhammad Hussain. He charged Ghulam Sarwar and four others. The case was registered under sections 148 and 302/149, P. P. C. After completing the investigation, the police submitted a report under section 173, Cr. P. C. to the Court of the Magistrate 1st Class at Chunian who commenced the recording of evidence by way of commitment proceedings. In the meantime, however, the accused party agitated for the re‑investigation of the case, and the matter was thereupon entrusted to the Crimes Branch. The complainant, apprehending that the case had been re‑opened by the police with a view to favouring the accused, has come up with this petition praying that the Crimes Branch be restrained from re‑opening the investigation. It is contended on his behalf that once cognizance has been taken by the Magistrate, further investigation by the police is illegal, opposed to canons of justice and amounts to interference with judicial proceedings in a Court of law.

3. The first two questions may be taken up together. Chapter XIV of the Code of Criminal Procedure contains provisions relating to the investigation of offences by the police. Section 154, which is the first section in this Chapter, directs that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction. The next 14 sections outline the procedure to be followed by the Police Officer in carrying out the investigation, recording statements, and conducting searches etc. Section 169 then lays down that the police officer concerned may release the accused person on bail, if upon investigation he finds that sufficient evidence is not forthcoming. Section 170 prescribes the procedure to be followed by the police officer in cases where sufficient evidence is available against the accused person. It directs that the accused person shall be forwarded in custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or if the offence Is bailable and the accused is able to give security, the police officer shall take security from him for his appearance before such Magistrate then comes section 173 which enjoins that every investigation under this chapter shall be completed without unnecessary delay, and, 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 fn the prescribed form. Subsection (3) of this section contemplates that‑ Whenever 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.

4. From the preceding summary of the relevant provisions of the Code it would be seen that police investigation in a cognizable offence culminates in the report prescribed under section

173. It is clear, however, that the mere submission of this report to the Magistrate having jurisdiction fn the matter does not by itself amount to taking cognizance of the offence. Section 173 of the Code does not say what steps the Magistrate has to take with regard to the case itself, although subsection (3) empowers the Magistrate to make an order for the discharge or otherwise of the bond executed by an accused person released on bail by the Investigating Officer.

5. The subject of the jurisdiction of the Criminal Courts in inquiries and trials is dealt with in the next Chapter of the Code, namely, Chapter XV commencing with section

177. Section 190 directly deals with the taking of cognizance by Magistrates. Subsection (1) of this section lays down that a Magistrate may take cognizance of any offence‑ (a) upon receiving a complaint of facts which constitute such offence ; (by upon a report in writing of such facts made by any police officer ; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. Section 193 prohibits a Court of Session from taking cognizance of any offence as a Court of original jurisdiction unless an accused has been committed to it by a Magistrate duly empowered fn that behalf. Section 194 deals with the power of the High Court to take cognizance of .any offence upon a commitment made to it in the prescribed manner. Section 195 spells out certain limitations on the power of a Court to take cognizance of certain specified offences. Similarly, sections 196 and 196‑A contain certain restrictions in the matter of taking cognizance of certain offences.

6. Although the terms 'cognizance' or the phrase "taking cognizance" is not defined in the Code, yet the nature of the provisions embodied in sections 190, 193, 194, 195, 196 and 196‑A leaves no doubt that the process of taking cognizance 4 implies a conscious application of the mind to the facts disclosed in the complaint or the police report, as the case may be. A remarked by the Full Bench in Wazir v. State (P L D 1962 Lah. 405), "the police report by itself, when received by the Magistrate, does not constitute the taking of cognizance, and it is reasonable to expect that something more will be done to show that the Magistrate intends to start the proceedings. In a case where a Magistrate cannot take cognizance of an offence, without the sanction of Government to prosecute and the sanction arrives a day after the police report is received by the Magistrate, it will be unreasonable to argue that the Magistrate had taken cognizance of the offence before the sanction had arrived. He may keep the case waiting until the sanction arrives and then pass some order to show that he intends to hold a trial." It will thus appear that cognizance is taken not under section 173 of the Criminal Procedure Code, but as a judicial act under section 190 of the Code when the Magistrate takes a step indicating that he intends to commence R the enquiry or trial in accordance with the provisions of the Code. The issuance of a miscellaneous order for conducting a search or continuing investigation may not amount to taking o cognizance in the judicial sense.

7. This view has held the field for a long time. Reference in this behalf may be made to Sourindra Mohan Chuckerbutty v. Emperor (11 Cr. L J 217), Nagendra Nath Chakrabard v. Emperor (25 Cr. L J 732), Bholanath Das and others v. Emperor (26 Cr. L J 68), In re: Shivlingappa Bhag appa (31 Cr. L J 1142), Chuni Lal v. Emperor (34 Cr. L J 761), Haranarayan and others v. Govindram (41 Cr. L J 645), Gopal Marwari and others v. Emperor (A I R 1943 Pat. 245), Superintendent and Remembrancer of Legal Afairs, West Bengal v. Kumar Banerjee (A I R 1950 Cal. 437), R. R. Chari v. The Stale of Uttar Pradesh (AIR 1951 SC207), Asha Das and others v. The State ((A I R 1953 Assam 1), Abdus Sattar Molla v. The Crown (P L D 1953 F C 145), Kali Charon v. State (A I R 1955 All. 462), Dukhi and another v. State and another (A I R 1955 All. 521), Badsha Mia and others v. The State (P L D 1958 Dacca 598), The State v. Samiullah Khan and others (P L D 1959 Kar. 157), Azizur Rahman and others v. The State (P L D 1960 Dacca 631), Azizur Rahman and others v. The State (P L D 1960 Dacca 1054), Mirza Muhammad Abbas v. The State (P L D 1964 Lah. 7), Muhammad Nawaz Khan v. Noor Muhammad and others (P L D 1967 Lah. 176), Falak Sher and another v. The State (P L D 1967 S C 425) and Muhammad Arif v. The State (1970 S C M R 178).

8. During the course of arguments it was submitted by the learned counsel that in some of the cages, referred to above, there was an indication that the learned Judges did not regard the taking of cognizance as involving a judicial act, and attention in this behalf was drawn to 11 Cr. L J 217, 26 Cr. L J 68, 41 Cr. L J 645, A I R 1943 Pat. 245 and A I R 1955 All.

462. We find however that this impression is not correct, and is easily dispelled by a careful reading of these decisions. For instance, what was said in the case of Sourindra Mohan Chuckerbutty was that the taking of cognizance did not involve any formal action of indeed action of any kind but occurred as soon as a Magistrate, as such, applied his mind to the suspected commission of an offence. It will be seen that the learned Judges have not laid down that cognizance is not a judicial act ; on the contrary, they have merely observed that it need not be a formal act.

9. In the case cited as 26 Cr. L J 68 the point we are considering here was not directly in issue, and there is no indication that the learned Judges did not regard the taking of cognizant as a judicial act. On the contrary, all that was said was that a Magistrate was empowered by section 193(1)(b) of the Criminal Procedure Code to take cognizance both of cognizable and non‑cognizably offences upon a report such as is mentioned in the section, and that once a Magistrate had taken cognizance of a case, his powers of postponement and adjaurnment were regulated by section 344, Criminal Procedure Code. These observations are clearly susceptible of only one interpretation, namely, once cognizance has been taken, the Magistrate has to act judicially in accordance with the relevant provisions of the Code. In 41 Cr. L J 645 the view expressed in 1 I Cr. L J 543 was followed and it was stated that ‑ "taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Thus it occurs as soon as he reads the complaint and even before he examines the complainant which he is bound to do. Having taken cognizance he proceeds to enquire into the charge." It will be seen that the taking of cognizance was regarded by the learned Judge, who decided this case, as the commencing point of judicial procedure enjoined upon the Magistrate by the Code.

10. The observations appearing in A I R 1943 Pat. 245 are in fact very explicit as regards the nature of the process of taking cognizance. While discussing the meaning of the words "taking cognizance" as used in section 190 of the Code, the learned Judges of the Special Bench repeated the observations appearing in 11 Cr. L J 217 and added that‑ "the word 'cognizance' is used in the Code to indicate the point when a Magistrate or a Judge first takes judicial notice of an offence." In the presence of these observations this case cannot be cited as authority for the view that taking of cognizance is not a judicial act.

11. The two Allahabad cases reported as A I R 1955 All. 462 and A I R 1955 All. 521 differ from each other on the point whether the power of remand under section 167 of the Code and the power of granting adjournments under section 344 of the Code can be exercised by the Magistrate before taking cognizance or only after be has taken cognizance, but in either of these cases there is nothing to show that the process of taking cognizance was regarded by the learned Judges as being anything else than judicial in nature.

12. We may now turn to the third question, namely, whether the police is debarred from making further investigation after having submitted the final report under section 173 of the Code. We find that this question has been answered in the v affirmative in Shit, Nath v. Emperor (7 Cr. L J 202). Emperor v. All an another (A I R 1932 Lah. 611), Hanuman and another v. Raj (A I R 1951 Raj. 131), Asha Das and others v. The State and In re : N. Krishnaswamy and others (A I R 1956 Mad. 592). The reasoning adopted in these cases is fully reflected in the following observations appearing in the judgment of Jai Lal, J. in the Lahore case mentioned above‑ ". . . it would appear that when an information of the commission of a cognizable offence is conveyed to a police officer competent to investigate the same he must either decline to investigate the case, if he considers that there is no ground to suspect that an offence has been committed, or he must commence an investigation ; and if in the course of his investigation, he finds that there is sufficient evidence to, justify the forwarding of the accused to a Magistrate he must send up the case under section 170, Criminal P. C., even if the investigation has not been completed. If on the other hand the investigation is completed then he must send up the case under section 173, and then he has no power to resume the investigation. I am aware of no legal sanction for further investigation by a police officer if he has sent up the case for trial under section 173, especially with a view to find evidence in favour of the accused. This view is fully supported by a judgment of the Chief Court of the Punjab reported as Shiv Nath v. Emperor 7 Cr. L J 202=86 P L R 1908=(1908) 4 P R 1908."

13. On the other hand, the opposite view has found favour in Divakar Singh v. A. Ramamurthi Naidu (A I R 1919 Mad. 751), Mohindar Singh v. Emperor (A I R 1932 Lah. 103), Hanumantha Gowd v. Official Receiver, Bellary (A I R 1946 Mad. 503), Muhammad Niwaz v. The Crown (48 Cr. L J 774), Tara Sing v. Tile State (A I R 1951 S C 441). Prosecuting Inspector, Keonjhar v. Minaketan Mahato and another (A I R 1952 Orissa 350), Kati Charan v. State, In re: Rajagopala Ayyar (A I R 1952 Orissa 350), Abu v. Haji Abdul Gani and others (P L D 1963 Dacca 618), Righunath Sharma and others v. The State (A I R 1963 Pat. 268) and Ata Muhammad v. Inspector General of Police, West Pakistan, Lahore and others (P L D 1965 Lah. 734).

14. It is not necessary to refer at any length to the observations appearing in these judgments, and it would suffice 9f we quote from the judgment delivered by Sajjad Ahmad, J. in the last mentioned case of Ata Muhammad. Dissenting from the view taken by Jai Lal, J. In ,Emperor v. Ali and another, the learned Judge has observed as under :‑ There is no statutory prohibition in the Code of Criminal Procedure for the police not to embark on a fresh investigation of the case after the conclusion of the first and the submission of the final report, whatever the defects in the first investigation or the flaws in the final report given in the wake of it, that might subsequently be detected. The first investigation may be utterly unsatisfactory for many reasons. It may be due to non‑availability of the evidence, or the successful induction of false evidence during the investigation, or the reason may be the corrupt behaviour of the police officers concerned. To say that the same police officers or their superiors on receipt of further information or on the availability of better evidence cannot revive the investigation already done, leading to a contrary or a varied result, would virtually amount to putting a seal on human errors and frailties once committed, whether by design or by inadvertence, with no opportunity m make amends, although it be possible to do so. The police, as an agency of the State, should be as much interested as any other agency concerned in the administration of justice, to find out the truth in respect of a crime and lay the whole facts bare for determination by the competent tribunals as honestly and correctly as possible. The statutory functions of the police and the Courts in this respect are complementary to each other and do not overlap. The fact that the previous investigation had yielded certain results should not act as a hurdle or a deterrent for the police in reaching the truth if additional facts and additional circumstances brought to light help in its discovery. The Magistrate himself does not have legal powers to direct a further investigation by the police after he himself has taken cognizance of the case and has himself launched an inquiry or trial but there is no bar for the police to pursue its own investigations and submit their results to the Court to find the guilt or innocence of the accused persons before it becomes too late. There is no bar to the investigation by the police after the submission of a final report under section 173 of the Criminal Procedure Code, 1898, nor is the: police not competent to file, if it is so disposed, a second report as a result of its subsequent investigation into the case.

15. We find ourselves in respectful agreement with the view taken by the learned Judges in the case of Ata Muhammad and the other cases mentioned in the preceding paragraph. While it is, no 'N doubt, desirable that there should be finality in investigation, yet this finality at the investigation stage cannot be allowed to prevail at the expense of truth and justice unless there is an imperative legal bar in this behalf. As rightly pointed out by Sajjad Ahmad, J., there does not appear to be any such statutory prohibi tion in the Code of Criminal Procedure. It should therefore be possible to rectify errors and omissions attending the first investigation while there is still time to do so, namely, before the trial is concluded. In several judicial systems there is provision for retrial on the discovery of new evidence, but under our Code of Criminal Procedure, section 403 contains certain safeguards against double jeopardy once a valid trial has resulted in acquittal or conviction. Such being the case, we should not, in the absence of a specific provision to this effect, import a prohibition against further investigation, even if the police has already submitted its final report or charge‑sheet under section 173 of the Criminal Procedure Code and the enquiry or trial has commenced. As long as the trial is not concluded, it appears to be possible under the Code to receive additional evidence having a bearing on the guilt or innocent of accused.

16. As the question of the legal permissibility of further investigation is in fact directly related to the powers of the police after a final report has been submitted under section 173 of the Code, and is not affected by the stage of the judicial proceedings before a Magistrate or a Judge, we find that the answer to the third question has to be in the negative in respect of all the three stages of the proceedings enumerated in the question.

17. Once further investigation is held to be permissible after a final report or charge‑sheet has been submitted under section 173 of the Criminal Procedure Code, and even after cognizance has been taken by a criminal Court, the question arises about the use that can be made of the further evidence collected by the Investigating Agency. It seems to us that if the result of the further investigation is available before cognizance is taken by the Court, then there can be no difficulty in presenting the entire evidence before the Court in the same manner as if it had ail been collected at one stage or in one continuous process of investigation. If, on the other hand, cognizance has already been taken by the Court, then the matter rests entirely in the discretion of the Court, for the reason that the Code does not permit any outside agency to interfere with judicial proceedings which have once commenced with the taking of cognizance by the Judge of the Magistrate. The only provision, which can then be invoked to permit additional evidence collected as a result of further investigation is section 540 of the Code which enjoins that :‑ Any Court may, at any stage of any enquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re‑examine any person already examined; and the Court shall summon and examine or recall and re‑examine any such person if his evidence appears to it essential to the just decision of the case: The powers conferred by this section are wide enough to permit the Court to do full justice in the cause.

18. In the light of the foregoing discussion our answers to the three questions referred to us are :‑ (1) A Court takes cognizance by a judicial action which need not necessarily involve any formal act, but occurs as soon as the Court applies its mind to the suspected commission of the offence, as disclosed in the police report or the private complaint, for the purpose of proceeding in a particular way in accordance with the provisions contained in the Code for holding an enquiry or a trial, as the case may be; (2) The Court does not take cognizance under section 173 of the Cr. P. C. but under section 190 of the Code ; and (3) the police is not debarred from making further investiga tion after having submitted the final report under section 173 of the Cr. P. C., and the same position obtains irrespective of the fact whether cognizance has or has not been taken by an overt judicial act, and whether the recording of evidence has, or has not commenced after the taking of cognizance. It should however be added that if cognizance has not been taken before the result of the further investigation becomes available, then the entire evidence can be presented before the Court as if it were a part of the final report under section 173 of the Code if on the other hand cognizance has been taken then it is entirely in the discretion of the Court to admit additional evidence under the provisions of section 540 of the Code.

18. The case shall now be laid before a learned Judge for the final disposal of this and other connected petitions out of which this reference has arisen. S. A. H. Reference answered accordingly.