1987L58 (PLP)

This is a petition under section 561-A, Cr. P. C. by Nazir Ahmad, petitioner, for the quashment of an order passed by a First Class Magistrate of Depalpur on 13-I1-1986 discharging Waqar Hussain Shah, accused/ respondent No. 3, from the case F.

1. R. No. 168 registered at Police Station Hujra Shah Muqeem, Tehsil Depalpur, on 6-7-1986.

2. The brief facts leading to this petition are that Nazir Ahmad, petitioner, registered a case vide F. I. R. No. 168 at Police Station Hujra Shah Muqeem on 6-7-1986 against Waqar Hussain Shah, respondent No. 3, and Inayat Shah, Javed-ul-Hassan and Muratab Shah, co-accused, under section 302/34, P. P. C. in respect of the double murder of Yasin and Khadim Hussain, deceased. During the course of investigation, the local police submitted a report before the Ilaqa Magistrate at Depalpur, respondent No. 2, stating that during the course of investigation they had found Waqar Hussain Shah, respondent No. 3, innocent and prayed for his discharge. On receipt of the said report, the llaqa Magistrate, respondent No. 2, discharged Waqar Hussain Shah, respondent No. 3, vide his order dated 13-11-1986. Being aggrieved by the said order, Nazir Ahmad, petitioner, filed a petition under section 561-A, Cr. P. C. before this Court for the quashment of the same, which petition is now before me for disposal.

3. On behalf of the petitioner it is submitted that the police could not have filed an application under section 169, Cr. P. C. for the discharge of Waqar Hussain Shah, respondent No. 3, without first having filed a complete or incomplete challan under section 173, Cr. P. C. and since no challan under the said section was filed, the Ilaqa Magistrate had no power to discharge Waqar Hussain Shah, respondent No.

3. In this connection the learned counsel relies upon Habib v. The State (1), and Muhammad Alam and another v. Additional Secretary to Government of N.-W. F. P. (2).

4. On behalf of the State it is submitted that the Ilaqa Magistrate under section 167, Cr. P. C., read with section 63 thereof, has the power (1) 1983 S C M R 370 (2) POL D 1987 S C 103 lggy NAZiR AHMAD V. STATE (Rustam_ S'. Sidhwa, J) LAHORE 241 of discharging an accused found innocent by the police, if a written request for his discharge was filed by the local police. In this connection, the learned counsel relies upon Muhammad Ibrahim v. Qudrat Ullah Ruddy (1), Gularn Muhammad Azimuddin v. The State (2) and Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan (3).

5. I have given my anxious consideration to the arguments addressed by the learned counsel for the petitioner and the State. Where some, but not all, accused named in an F. I. R. are found innocent during police investigation, it is' the practice of the police to submit a report before the Magistrate showing that they have been found innocent, that the Senior Police Officer conducting the investigation, or in charge of the investigation of the case, or the Superintendent of Police has,A proposed that such accused be got released and that the Magistrate may discharge them. On receipt of such a report and after examination of the police diaries, such accused are sometimes discharged. Such a report is usually filed before any complete or incomplete challan has been filed. The question is, under what provisions of law, the Magistrate can justify such an order. There are two views to this case. When an Investigating Officer requires authority to detain an accused person in custody beyond the limits prescribed in section 61 of the Code of Criminal Procedure, he has to make an application therefor in accordance with the provisions of section 167 of the said Code. If there are genuine grounds for continuing his detention, section 167 enables the Magistrate to pass an order extending the detention for a term not exceeding fifteen days in the whole. The Magistrate has a discretion to grant the remand. If the Magistrate finds that no case at all is made out against the accused, he is justified in not granting the remand and discharging the accused from the case. The power of discharging an accused from a case is, therefore, inherent in section

167. If the Investigating Officer finds that the said accused is innocent or that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the said accused to Magistrate for trial, there is nothing to prevent him from applying under section 167 of the Code, read with section 63 thereof, for his discharge from the case. Section 63 clearly states that no person who has been arrested by a Police Officer can be discharged except on his own personal bond, or on bail, or under the special order of a Magistrate. Since the power of discharging an accused from a case during investigation is inherent in section 167 of the Code, an order under the said section can be passed on the report of ~a Police Officer praying for his discharge. Such an order would be the special order of a Magistrate", as contemplated in section

63. The scheme of sections 167 to 173 of the Code, read with the Police Rules, gives the impression that all investigations must be under taken and finalised within fifteen days, whereafter a challan or chargesheet should be filed, so that if later also the police want a remand of the accused, they may be able to secure the same under section 344 of the Code. If this be the view, any delay in the investigation over the fifteen days provided, should itself provide a ground for the discharge of an accused from the case, if the police neither produce the accused no apply for his fresh remand, but release him (See Dr. Niranjan v. Manipur (1) P L D 1986 Lah. 256 (2) A I R 1959 Madh. Pra. 147 (3) 1985 P Cr. L J 244 Administration (1), or apply for his discharge from the case on the ground that there are no reasonable grounds to connect him with the commission) of the offence. The above view is supported by a number of cases. In Parul Baba v. State (2), it was held that section 63 of the Code empowered the Magistrate in a special case to make an order discharging the accused at a time when investigation was in progress and that in special circumstances a Police Officer could fortify himself with an order of the Magistrate, and in such a case the Magistrate could direct the person to be discharged on bond or on bail, when the investigation was in progress. In Muhammad Wasim v. The Additional Sessions Judge where an accused, on the third application by the police for his judicial remand, was discharged by a Magistrate under section 63 read with section 344 of the Code, as the police had not been able to find any incriminatory material against him, which order was set aside in revision on the ground that the Magistrate was not competent to order the discharge of the accused before the police had submitted its final report under section 173, it was held that section 63 permitted a Magistrate to release an accused person without a formal bail order when he came to the conclusion that the police was not justified in arresting him, or when the Magistrate found that there was no justification for remanding him to custody. The order of the learned Additional Sessions Judge was therefore, set aside. It was further held that the order under section 63 of the Code would not be held to stifle police investigation, which could continue In Muman Kamal Sabedi Patel v. State of Gujrat (3), (Agrawal's All India Criminal Digest, 1971-80, 1983 Ed), where it was found during police investigation that there was no sufficient evidence against an accused and a report was put for hi discharge, it was held that the proper provision which could be invoked by the police for this request was section 63 read with section 167 of the Code and that if the Magistrate agreed with the police report, he could discharge the accused under the said section and if he found that a prima facie case stood made out against him, he could take cognizant of the offence under section 190(l)(c). However, there is the other view, that if the police wish to get an accused discharged from the case against whom there is not sufficient evidence or reasonable ground of suspicion to justify forwarding him to the Magistrate for trial, the Police Officer should act under section 1691 of the Code, release him on his bond or bail, with a direction to him to appear before the Ilaqa Magistrate, if and when so required by him' and then apply under section 173(3) and get his bond discharged by the' Magistrate, after a complete or incomplete challan or final report is submitted. Where such a challan or final report is submitted showing the particular accused as not liable for the offence imputed to him and an order for the discharge of his bond is prayed, the Magistrate may, after inspecting all the papers, discharge him from the bond, or disagreeing with the report of the police, take cognizance of the case. The above view is supported by a number of cases. In Abdul Rahman v. Sultan (4), where the police during investigation found that the accused was not present at the spot, when the occurrence was alleged to have taken place, it submitted a release report under section 169, Cr. P. C, to the Magistrate praying for the release of the accused under (1) A I R 1958 Manipur 33 (3) A I R 1971 Guj. L R 481 the said section, which was accepted by the Magistrate, who released the accused under the said section, but then later when the challan under section 173, Cr. P. C. was filed, the name of the accused released was shown in column No. 3 thereof and the Magistrate issued summons against him, it was, held that the Magistrate could not have earlier discharged the accused under section 169, Cr. P. C., but could only have done so under section 173(3), Cr. P. C., on receipt of a report from the police under section 173, Cr. P. C. In Bashir Ahmad v. llaga Magistrate (1), it was held that where a Police Officer was satisfied that there was not sufficient evidence or reasonable ground of suspicion justifying the sending of the accused to a Magistrate, it could release him under section 169 of the Code on the execution of a bond, with or without sureties, or produce him in custody with such a request, whereupon the Magistrate would have the power to discharge and release him under section 173(3), Cr. P. C. In Habib v. The State (2), where the police moved an application for the cancellation of the case against a sole accused, through an application under section 169, Cr. P. C. filed before the learned Sessions Judge, which prayer was rejected and the learned Sessions Judge directed the police to submit the challan after preparation of the report under section 173, Cr. P. C., it was held that sections 169, 170 and 173, Cr. P. C. only came into play on the completion of the investigation and that whatever course the Investigating Officer adopted i. e. whether to act under section 169, Cr. P. C., or under section 170, Cr. P. C., it was incumbent upon him to submit a final report under section 173, Cr. P. C. with regard to the result of his investigation to a competent Magistrate and the said Magistrate only then had the jurisdiction to take action as he considered proper under section 173(3), Cr. P. C. or under section 190, Cr.P.C., as the case may be. In Muhammad Alam v. Additional Secretary to Government of N.-W. F. P. (3) where the Additional Deputy Commissioner took cognizance of a case against three accused on a report submitted to him under section 173, Cr. P. C. and summoned the accused, but the police later submitted another report purporting to be under section 169, Cr. P. C. for the release and discharge of two accused, on the ground that the case against them was weak and the higher authorities had desired their discharge, which application was allowed by the Additional Deputy Commissioner under section 169, Cr. P. C., it was held that as an earlier report had been filed under section 173, Cr. P. C., the subsequent report could be presumed to be a second report under section 173, and not under section 169, which was not permissible in law, and as the Additional Deputy Commissioner had already taken cognizance of the case, he neither could have discharged the two accused under section 169, Cr. P. C., nor, could have cancelled the case under section 173, Cr. P. C. 1934, states that when an In to detain an accused person in prescribed in section 61, Cr. P. C., he has take an application therefor in accordance with the provisions of section 167, Cr. P. C:, on the basis of an incomplete charge-sheet to be furnished in Form 25.56 (1), to which he should attach the case diary or copies thereof. Under this sub-rule, the Magistrate has to record his order granting or refusing remand on the incomplete charge-sheet, which has not to be returned to the police, but has to be retained by the Magistrate to form a part of his proceedings. A copy of the Magistrate's (1) P L D 1980 Lah. 28 (2) 1983 S C M R 370 ~3)PLD1987SC103 order has to be made by the Police Officer and attached to the police file and the said copy has to be attached to the complete charge-sheet, when the case is finally sent for trial. Under rule 25.56 (3), in serious cases, where prima facie evidence appears against the accused, it is incumbent upon the Investigating Officer to send the case for trial without delay, whether the investigation is complete or not, and the Court has to take up the case at the earliest opportunity in order to record the evidence and'' thereafter to grant such detention or remand under the provisions of section 167 or 344, Cr. P. C., as may be found necessary. The evidence collected subsequently by the police, has to be produced before the Court by a subsidiary challan. Where, however, the police are unsuccessful in solving a case or tracing the accused, or find no case made out and wish to file the case as untraced or desire to have the same cancelled, a final report under rule 25.57 (2) (i) in Form 25.57 (2) has to be submitted, as required by section 173, Cr. P. C. In final (untraced or cancelled) reports, the police under rule 25. 57 (3) has to submit a summary of the facts of the case, which the investigating officer believes to be correct, together with the grounds for his belief. The Code of Criminal Procedure does not refer to any incomplete charge-sheet or challan. It only refers to a police report sent by the police in the form prescribed by the Provincial Government. This is in section 173 of the Code and is only to be submitted after the completion of the police investigation. The police report to be submitted after the completion of the investigation is the charge-sheet or challan in Form 25.56 (1). Since in any serious case, it is not possible to expect that the police within twenty four hours would have even been able to collect evidence to connect any accused with any offence imputed to him, so as to justify the submission of an incomplete charge-sheet or challan of the nature specified in section 173, Cr. P. C. on which a Magistrate may be able to take cognizance, it must be assumed that the incomplete challan referred to in this rule is not necessarily one of the category referred to in section 173, Cr. P. C. If it is to be so treated, sub-rule (1) of rule 25.5E would only be ultra vires of section 167 of the Code, which does not insist on any police report of the nature referred to in section 173, being produced at the time of claiming remand. The incomplete challan, therefore, referred to in sub-rule (1) of rule 25.56 could perhaps ins~ be a statement giving the bare facts of the case submitted on the ususa charge-sheet or challan Form, with a request for the remand, giving reason; for the request. However, when an investigation stands completed, if thf case is fit to go for trial, a final charge-sheet or challan is filed it Form 25.56(1) and if the case is untraced or deserves to be cancelled, final report is submitted in Form 25.57(2). Even when submitting the final charge-sheet or challan, the same is sometimes sent up as incomplete It may be because evidence on a few matters has yet to be collected, e. g the handwriting expert's opinion, or the chemical examiner's report It may be because the investigation is complete with regard to a giver set of accused, but not with regard to those who have absconded and it is not possible to hold up the charge-sheet or challan indefinitel3 till those who have absconded are arrested. In these cases, when the balance investigation is completed, a supplementary or final charge-sheer or challan is filed. Basically, these incomplete charge-sheets or challan; are those on which a Magistrate can take cognizance under section 190 They are those filed on the completion of the investigation. The completion of the investigation does not necessarily mean as covering all the accused named in the F.i.R. in respect of all the offences imputed to them. Investigation may have been completed against some and may have been temporarily suspended or held up against the rest. As against those against whom the investigation is complete, the case is figuratively one of completion of investigation in the case and the charge-sheet or challan! filed, though termed `incomplete', is sufficient to permit the Magistrate to take cognizance of the offence and to start with the trial. Of course, a Magistrate may withhold taking cognizance, till the case is completed, for sufficient reasons to be recorded by him. In the present case, the investigation disclosed that no case was made out against Waqar Hussain Shah, respondent No.

3. The police could not have submitted an incomplete challan qua him alone showing his innocence, as a challan is submitted when some case fit to go for trial is made out against some person. The investigation qua the other accused was not complete to justify submission of a complete or incomplete challan against any one of them. As such, the power of securing the discharge of the said respondent from the case obviously fell under section 167, Cr. P. C., read with section 63, Cr. P. C. Had the investigation! been completed against the remaining accused, discharge could have been secured under section 173, Cr. P. C. Habib's case (supra) is distinguishable as it relates to the case of a sole accused, in respect of whom investigation stood completed and revealed that no case was made out. Thus, discharge could only have been secured under section 173(1), Cr. P. C. on a final report. Muhammad Alam's case (supra) is also distinguishable, as challan had been filed and cognizance taken against two of the accused, in respect of whom later the police submitted a report under section 169, Cr. P. C., for their discharge. It was held in this case that as investigation had been completed, police should only have submitted a report under section 173, Cr. P. C. However, due to cognizance having been taken earlier against the said two accused, it was held that no order could be passed under section 173, Cr. P. C. Thus, both Habib's case and Muhammad Alam's case cover cases where investigations stood completed. The rule stated in these cases, therefore, does not apply to the instant case. This case can be approached from another angle. The petitioner has a right of filing a private complaint to bring to trial the discharged accused. He can avail the said remedy. I do not think the Magistrate in the instant case acted in flagrant disregard of any provision of the Code of Criminal Procedure to cause any deliberate harm to the complainant, so as to justify any interference by this Court. I would not, therefore, interfere in this case. This petition is, therefore, dismissed. M. s. A./N-14/t. Petition dismissed.