PL D 1959 (W (PLP)

ABDUL HAMID J.‑This is a revision application by the State against the order of the Sessions Judge, Karachi dated 9‑5‑1958 by which he released three persons, accused of an offence under section 302/34, P. P. C., on bail. The accused in this case were arrested on 15‑12‑1957, but until 9‑5‑1958 no attempt was made to bring the case before any Court for inquiry. Several remands were obtained by the investigating Agency but on none of those occasions was the Court granting remand allowed any opportunity to ascertain whether any evidence had been collected which could raise a suspicion that the accused had committed the offence with which they stood charged. When on application for bail the matter came before the Sessions Judge he was not satisfied that there was any evidence against the accused capable of raising suspicion against them and he enlarged them on bail. On the facts, as they were before the Sessions Judge, there was a good case for releasing the accused on bail, and under the circumstances of this case no exception can be taken to the order under revision. But on behalf of the State some important questions of law relating to the application of sections 170, 173, 190 and 344 of the Code of Criminal Procedure were raised. We were also asked to consider Darshan Singh's case (P L D 1957 Kar. 210) on which the trial Judge appears to have relied in granting bail to the accused. On behalf of the State it was contended that the propositions of law enunciated in that case should be revised, if they are found to be incorrect, so that the view of law as to the application of those provisions may be clear to the Investigating Agency. It is to answer that demand that we have preferred to discuss matters which perhaps are not strictly necessary for the decision of the case under revision. Provisions of law relating to arrest, deten tion, and remand to custody, have been spread over many sections of the Code of Criminal Procedure. Section 54, Cr. P. C. em powers a police officer to arrest a person who in his opinion has committed a cognizable offence and section 61 empowers him to keep him in detention for 24 hours. If during those 24 hours investigation is not complete he is bound to produce him before a Magistrate for obtaining under section 167 remand of the accused to custody. But he can remain in such custody not in excess of fifteen days in the whole. A remand under section 167, Cr. P. C. can be granted by any Magistrate irrespective of the fact whether he has jurisdiction to enquire into the offence or try the accused or is empowered to take cognizance of the offence. If during those fifteen days of remand under section 167, Cr. P. C. investigation by the police is complete and evidence sufficient enough to raise a presumption of his guilt has been collected he is to be forwarded under section 170 of the Code to the Magistrate empowered to take cognizance of the offence and to try the offender. But if evidence is insufficient for creating a presumption of his guilt he is to be released on bail under section 199, Cr. P. C. But if after the expiry of fifteen days' remand granted under section 167 of the Code, it is found that, as a result of the investigation, some evidence has been collected and further evidence is expected to come to hand, the police officer has to make a request to the Court possessing jurisdiction to try the offender, and empowered to take cognizance of the offence, to grant further remand under section 344, Cr. P. C. That section lies in the General Provisions of the Code of Criminal Procedure which ire applicable to inquiries and trials and not to investigation by police, and remand under that section can be obtained only if a request is made for the postponement of the commencement of inquiry or trial on the ground that either the witnesses are absent, or there is some other reasonable cause. According to the scheme of the Code commencement of enquiry or trial falls due after the expiry of the remand of fifteen days obtained under section 167, Cr. P. C. But if investigation is still not complete, because the evidence collected is not sufficient and further evidence is expected to be collected, then approach can be made under section 344, Cr. P. C. to the Court competent to hold inquiry, or to try the offender, and empowered to take cognizance of the offence, to postpone the commencement of the inquiry or trial and to remand the accused to custody. It then falls to the Court before whom the case is brought under that section to grant remand by post poning the commencement of inquiry or trial. But before granting remand he has to assure himself that evidence sufficient to raise suspicion, that the accused has committed the offence with which he is charged, has been collected and further evidence will be obtained if remand is granted. But the Court to which approach has to be made for this purpose should be a Court competent to hold enquiry or trial and to grant adjournments and must necessarily be one capable of taking cognizance of the offence. A Court cannot postpone the commencement of enquiry or trial, or adjourn an inquiry or trial, or remand the accused to custody, unless it takes cognizance of the offence first. The provision of law which empowers a Court to take cognizance of an offence lies in section 190 of the Code. Under that provision no cognizance can be taken by a Court, of an offence, unless there is before it a report in writing by the police containing facts which constitute the offence ; and if the nature of the case is such that in spite of police report before it, the Court is not capable of taking cognizance of the offence because other conditions arc to be satisfied before commencing proceedings, like previous sanction of some authority then such previous sanction must also be present before the Court. Reference in this connection shay he made to section 195 and 197 of the Code. Taking cognizance of an offence has been held to mean application of the mind to the case (see 37 Cal. page 412 and 18 Cr. L J 347). There are some provisions in the Code which contain clear indication as to when in a case cognizance begins to be taken. They are sections 200, 202, and

204. According to the language of those sections, no step like examination of the complainant (section 200), or holding preliminary enquiry through another Magistrate (section 202), or summoning the accused (section 204) can be taken unless the Magistrate is one who is competent to take cognizance of the offence. Judicial proceedings commence with those steps, but all those steps according to the language of these sections, follow upon taking cognizance of the offence. Mind has to be applied to the case before starting examination of the complainant and issuing of any process. If we apply these tests to section 344 of the Cr. P. Code we find that the postponement of the commencement of enquiry or trial, and remanding of the accused to custody are steps which can only be taken after mind is applied to the case and cognizance is taken of the offence. But no cognizance can be taken of the offence unless there is before the Court: (a) a police report in writing of facts constituting the offence (section 190 (1) (b) of the Code) and (b) a previous sanction required by section 195 or 197, Cr. P. C. or required by any special law, if under that law prosecution is dependent on previous sanction. In short in order to obtain remand under section 344, Cr, P. C. the following conditions require to be fulfilled. (1) Some evidence should be adduced before the Court which should be sufficient to raise a suspicion of accused's guilt, and the Court should be assured that further evidence to strengthen suspicion into belief is expected to be collected. (2) A police report in writing of facts constituting the offence must also be produced to enable the Court to take cognizance of the offence. (3) If the nature of the case is such that no cognizance can be taken of the offence without previous sanction then such sanction should be produced to enable the Court to take cognizance of the offence. The accused in this Court were not being represented by any advocate and we requested Mr. Tufail Ali advocate to appear as amicus curiae and enlighten us on the position of law on this subject. His arguments were entirely in support of the proposi tions which have been stated above, and he was in complete accord with them. But Mr. Raymond, who appeared for the State contended vehemently for a somewhat different view. His argument was that if after the expiry of fifteen days of remand obtained under S. 167, Cr. P. C. the investigation is still incomplete, recourse can be had to a Court under S. 344 for further remand and at that stage all that is necessary is that some evidence should be in the hands of the police to raise suspicion against the accused. A police report as is required under S. 190 (1) (b) of the Code need not be placed before the Court, nor is any previous sanction necessary even if the offence is not cognizable by the Court with out sanction. This contention we are unable to accept. In our view a police report of the tenor described in S. 190 (1) (b) of the Code is necessary to enable the Court to take cognizance of the offence ; and if the offence is one of which cognizance cannot be taken without previous sanction, then such sanction should also be pro duced before the Court in order to enable it to take cognizance of the offence. If access to the Court is sought for the purpose of remanding the accused to custody then remand can be obtained only if commencement of the enquiry or trial is postponed. But no enquiry can be postponed and much .less can remand be granted, if the Court is not in a position to take cognizance of the offence first. For taking cognizance of the offence a police report of the character described in S. 190 (1.) (b) of the Code is necessary and also previous sanction of the required authority, in cases which cannot be initiated without sanction, Mr. Raymond has cited a few cases in support of the view for which he canvassed. They are A I R 1931 All. 617, A I R 1949 Cal. 143, and A I R Pat. N U, C 5968 on unreported cases, which say that for an approach to the Magistrate for remand under S. 344, Cr. P. C. no police report contemplated by sections 170 and 173 is necessary. With great respect to the Judges who expressed that view we are unable to accept that pro position. Remand to custody under S. 344, Cr. P. C. can be obtained only if the Court postpones the commencement of enquiry or trial. But postponement of commencement of enquiry is a step in the judicial proceedings which can be taken only after cognizance is taken of the offence first. Unless cognizance is taken of a case, commencement of inquiry cannot be postponed, nor can an accused be remanded to custody. These are steps which follow upon cognizance and do not precede it. In order to postpone the commencement of the enquiry the Court has to come to a decision that in view of the existence of a reasonable cause it is advisable to do so. It is obvious that such decision involves application of the mind to the case. In order to grant remand the Court has also to study the evidence collected to ascertain that it raises suspicion against the accused and most obviously that result cannot ‑be achieved without applying mind to the case. When the Court applies its mind to the case for these purposes it takes cognizance of the offence. But no cogniz ance can be taken unless a police report, in the terms of S. 190 (1) (b), is before the Court. Mr. Raymond also relied on A I R 1955 All. 521 for the view that postponement of commencement of inquiry tantamounts to postponement of taking cognizance of the offence, and it is not necessary that at the time of remand the Court must be in a position to take cognizance of the offence. In our view there is no warrant for that reading. The argument which the learned Judges in that case adduced was that in order to hold that taking of cognizance is a condition precedent to postponement of the commencement of inquiry or trial, and remanding of the accused to custody, it will become necessary to presume that the words to the effect "after taking cognizance of the offence" exist in S. 344 of the Code, and since those words are absent, commencement of inquiry or trial can be deferred and accused can be remanded to custody without taking cognizance of the offence. We are of opinion that although those words are absent from 4S. 344 of the Code, but their effect is present. We have already referred to sections 200, 202 and 204 of the Code in another place in this judgment to show that judicial proceedings cannot be com menced without taking cognizance of the offence first. If taking of cognizance is precedent to commencement of inquiry it should be precedent to postponement of commencement of inquiry as well. When a case is put before a Court for postponing the commencement of inquiry or trial there is nothing in law to prevent the Court from commencing the inquiry. There is also nothing to prevent it from recording evidence to satisfy itself, within the terms of the Explanation, that there is some evidence which can raise suspicion as to accused's guilt. Can the Court do all this without taking cognizance of the offence ? No, certainly not. Postponement of inquiry or trial when it is sought on the ground of the existence of a reasonable cause invokes the appli cation of the Court's mind to the case, and in that application of mind lies taking cognizance of the offence. It is thus obvious that commencement of inquiry can be deferred and accused can be remanded to custody only when the Court acquires competence to make those orders. Competence is acquired only when the Court comes into power to take cognizance of the offence. In Darshan Singh's case (P L D 19577 Kar. 210), which is the learned Judges held that for taking action under section 344, Cr. P. C. there should be before the Court some police report to enable it to take cognizance of the offence (section 190 (1) (b) of the Code) ; and if cognizance is dependent on previous sanction, there should be before it that sanction as well. With that view we are in full agreement. The order under revision, in our opinion, was correctly passed and this revision application is dismissed. We take this opportunity to express our gratitude, to Mr. Tufail Ali Advocate for his valuable assistance in this case. INAMULLAH, J.‑I agree with the reasons and the conclusions arrived at by my brother Abdul Hamid, J. MUNSHI, J.‑I concur. I would however add a few lines in elaboration of what my brother has said in his learned judgment. S. 344, Cr. P. C., worded as it is does not exclude the possi bility of the request for remand being turned down, and in that event, the section contemplates that the Court should be in a position to commence inquiry or trial. The contention of Mr. Raymond that it will be open to the investigating agent to approach the Court under S. 334, Cr. P. C. for remand, without submitting a report under S. 190 (1) (b), Cr. P. C., is obviously untenable. The language of the section clearly shows that in case the Court is not inclined to grant the request for remand, it should be in a position to commence the inquiry or trial. This the Court will not be able to do, if it is not in a position to take cognizance of the offence, and the cognizance can be taken only when a report under S. 190 (1) (b), Cr. P. C. is submitted. In fact it is this feature of S. 344, Cr. P. C., which distinguishes it from S. 167, Cr. P. C. by abolishing this distinction between the two sections, which will be the result if the contention of Mr. Raymond is allowed to prevail, S. 344, Cr. P. C. will be reduced to the level of S. 167, Cr. P. C. and the provisions of detention for investigation for not more that 15 days, will thus be nullified. A. H. Petition dismissed.