Judgment:
P. Ramakrishnam Raju, J.
1. This criminal petition is posted before us on a reference made by a learned single Judge.
2. This criminal petition turns on the true meaning and interpretation of sub-sections (2) and (5) of S. 173, Cr.P.C., viz., whether filing of incomplete charge-sheet within 60 days or 90 days as the case may be would enable the accused to seek for his release from custody. In view of conflicting decisions of this Court, this reference is made.
3. Before we answer the reference, it is pertinent to note some of the relevant provisions of the Code of Criminal Procedure - hereinafter called 'the Code'. Police Report is defined under Section 2(r) of the Code, as a report forwarded by a Police Officer to the Magistrate under sub-section (2) of S. 173. Section 173 deals with filing of report by a Police Officer on completion of investigation which is popularly called as filing of charge-sheet. Investigation is defined under S. 2(h) as including all proceedings for the collection of evidence conducted by a police officer or by any person who is authorized by a Magistrate in this behalf. Sub-section (2) of S. 173 prescribes what the report of a police officer should contain viz., names of parties, nature of information, names of persons acquainted with the facts of the case; whether any or by whom offence is committed; whether the accused is arrested; whether the accused is released on bail; and whether he has been forwarded in custody. Sub-section (5) contemplates that all documents or relevant extracts on which the prosecution proposes to rely and the statements recorded under S. 161 should be forwarded to the Court. Section 173 is relevant in the context of seeking bail under S. 167(2), since the sub-section mandates that when investigation is not completed within the period of 90 days where the investigation relates to an offence punishable with death or imprisonment for life, for 10 years or above and 60 days where investigation relates to other offences, the accused is entitled to seek for bail. Therefore, S. 167(2) prohibits custody of the accused more than 90 days or 60 days as the case may be for purposes of investigation. In view of the command of legislature under S. 167(2) investigation into the alleged offence should be completed within the prescribed period and filing of police report or charge-sheet under S. 173 is a proof positive of completion of the investigation. After the filing of police report the Magistrate takes cognizance of the offence under S. 190, Cr.P.C. The Magistrate can be said to have taken cognizance of the offence when he applies his mind for proceeding further with the case (D. Lakshminarayana v. V. Narayana, : 1976CriLJ1361 . Section 41, Cr.P.C. enables the investigating officer to arrest the accused; while S. 57 empowers him to detain him in custody. The power of remand by the Magistrate under section 167(2) is intended to be exercised to enable collection of evidence during the process of investigation by the police officer. Section 156(1) vests in an offer in charge of the police station the power to investigate into any cognizable offence without the order of the Magistrate. The report under S. 173 is an intimation to the Magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and necessary information is being sent to it. The report under S. 173 is nothing more than an opinion of the police officer that, as far as he is concerned, he has been able to procure evidence during his investigation about the commission of the offence. The Magistrate may or may not accept the report as it is not binding on him. If the report discloses prima facie material that an offence has been committed and it should be inquired into the Magistrate may take cognizance of the same by proceeding further with the inquiry. Taking cognizance of an offence under S. 190, Cr.P.C. is a judicial act and therefore, application of mind is necessary. In other words, taking cognizance of the offence means judicial application of mind by the Magistrate to the facts mentioned in the police report for taking action there on. Therefore, if the report as filed by the police officer contains necessary particulars like the names of the accused, nature of the offence and upon a reading of the same if the Magistrate is able to come to a prima facie conclusion that the alleged offence requires to be inquired into, he will proceed further in the matter.
4. In the light of the above discussion, it is necessary to consider the scope and the ambit of S. 173. No doubt, sub-section (1) of S. 173 mandates that investigation under this Chapter shall be completed without unnecessary delay. Sub-section (2) gives certain guidelines as to what information the police report should contain. Sub-section (5) further elaborates that the police report should also contain all documents or relevant extracts on which the prosecution proposes to rely upon and also the statements recorded under S. 161 of all the persons. The police report contemplated under S. 173(2) has to be filed after completion of the investigation. So, the crucial test is completion of investigation preceding filing of the police report. No doubt, several details of information which are necessary to be disclosed in the police report shall also be indicated under sub-section (2) of S. 173. The main thrust of the Parliament in amending S. 167(2) seems to be to avoid undue delay in investigation of offences by the police officers and to ameliorate the plight of the accused in custody for unlimited period. Therefore, S. 167(2) is a step in the right direction to control long pending investigations and to pin down completion of investigation with speed and promptness. Section 173 is also complementary to S. 167(2). Even sub-section (1) of Section 173 directs that every investigation shall be completed with promptness and without unnecessary delay. This is in conformity with the constitutional directives under Arts. 21 and 22 securing personal liberty and protecting against arrest and detention without prompt intimation to the nearest Magistrate. Therefore, the whole idea seems to be that the investigation should be completed within the prescribed period and the charge-sheet is filed in time. As already noticed investigation as defined under S. 2(h) means collection of evidence by the police officer and when this is done investigation is complete. The guidelines as to what a charge-sheet should contain cannot be said to be mandatory in nature. Substantial compliance of the directives is enough and if the police report or charge-sheet contains necessary details so as to enable the Magistrate to take cognizance of the offence and proceed further, it cannot be said that there is failure of compliance of this section. If the police report is filed in time with certain omissions which are of trivial in nature or minor particulars or inadvertent omissions, it cannot be said that the police report is not filed in accordance with S. 173 of the Code. Sub-section (8) lends support to the above view of ours which is extracted hereunder :
'Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, whereupon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).'
So, what has to be looked into at this stage by the Magistrate is only to see whether any offence was disclosed in the police report and whether the names of the accused, witnesses etc., are furnished. If the names of the accused and the nature of the offence is not disclosed or cannot be culled out on a reading of the police report, then perhaps it may be a case of non-compliance of the provisions of S. 173 of the Code. But, where it is fairly made clear about the names of the accused, the offence involved in the case together with similar other necessary details, even if there are some omissions in some minor particulars like the age of the accused, father's name etc., it cannot be said that there is failure of compliance with S. 173. For this view of ours, reliance can be placed on a decision of the Supreme Court reported in Satya Narain v. State of Bihar, : 1980CriLJ227 , wherein the Supreme Court observing that if the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence it would be sufficient compliance, stated as follows :-
'Turning now to the charge-sheet submitted in this case it sets out all the details as required by S. 173 of the Code. The name of the accused is mentioned. The nature of the offence is mentioned. It is further stated that the information of the offence was given by Mahesh Kant Jha. It is also stated that there was sufficient evidence to proceed against Satya Narain Musadi appellant herein under S. 7 of the Act. May be that the charge-sheet could have been more informative or the information set out in the charge-sheet could be styled as scanty. Some more details may have been helpful. It, however, could not be said that it did not disclose an offence of which the Magistrate could take cognizance under section 190. Ultimately when a Magistrate looks at police report also styled as charge-sheet under S. 190 he takes cognizance of an offence upon a police report and prima facie he does so of the offence or offences set out in the report (Vide Darshan Singh Ram Kishan v. State of Maharashtra, : 1971CriLJ1697 . And the report under discussion does disclose an offence under S. 7 of the Act.'
If all the necessary details as contemplated under S. 173, Cr.P.C. are not disclosed in the police report in the first instance, but they are furnished at a later date, perhaps it is for the Court to consider the probative value of those details furnished later during the trial of the case, but to say that the police report filed with certain omissions or gaps is not a valid report contemplated under S. 173 is reading something more into the section. Consequently we hold that non-filing of all the enclosures under S. 173 along with the report filed under S. 173 is not a ground to release the accused on the premise that full charge-sheet is not filed within the stipulated time.
5. The view taken by the learned single Judge in a decision reported in Matchumari China Venkata Reddy v. State of Andhra Pradesh, 1993 (1) Law Summary 277, that the police report filed under S. 173 is not complete unless the same is filed in complete from complying with all the formalities prescribed under S. 173(2) and (5), and the accused shall have absolute right for being released cannot be accepted. With respect we cannot agree to the said view, and consequently, the view expressed by one of us (Radhakrishna Rao, J.) in a decision reported in V. Krishna v. State of Andhra Pradesh, 1989 (1) ALT 16, has to be affirmed.
6. Turning to the facts of this case, the petitioner was arrested on June 15, 1993 and the 1st Additional Munsif Magistrate, Narsaraopet remanded him to judicial custody. Charge-sheet was filed on August 28, 1993, of course with certain omissions or gaps, the same was returned. It was represented on September 10, 1993, but it was again returned and it was represented after complying with the defects on September 17, 1993. It is admitted that the original charge-sheet was filed well within 90 days, but the same was represented after complying with certain objections on the 95th day. As the stipulated 90 days time has elapsed, the contention of the learned counsel for the petitioner is that the petitioner is entitled to bail as of right since the charge-sheet in full shape was not filed within the stipulated period of 90 days. Therefore, he filed an application on September 17, 1993 seeking for bail. The learned Magistrate in our view has rightly dismissed the application holding that the charge-sheet was already filed on August 28, 1993 well within 90 days. Aggrieved by the said order, this criminal petition is filed.
7. It is indisputable that the amendments or corrections relate back to the date of filing of the original document. In this view the rectification of defects or compliance with the objections will relate back to the date of filing as if the corrections are made at the time of filing the charge-sheet in the first instance and it cannot be said that presentation was made on the date when the defects are rectified and represented.
8. Sri G. Peddababu, the learned Counsel for the petitioner relied upon a decision reported in Aslam Babalal Desai v. State of Maharashtra, 1992 Cri LJ 3712 : 1992 AIR SCW 2621. In the said decision, the Supreme Court has observed that an order of bail granted for default of filing charge-sheet within the time prescribed cannot be cancelled after filing of the charge-sheet. This decision is not an authority for the proposition that the charge-sheet when filed with certain omissions cannot be treated as compliance with Section 167(2) of the Code. Therefore, what follows from our discussion is that every omission in the charge-sheet is not fatal when the police report is filed within the time prescribed, but only such omissions due to which on a plain reading of the police report no offence is disclosed in clear terms so as to take congnizance of the offence and proceed further by the Magistrate.
9. Before parting with the case it is necessary to mention about the practice prevalent in some of the criminal Courts in the State. Instances have come to light where the learned Magistrates or the Judges are disposing of bail applications filed under Section 167(2) Cr.P.C. on the 90th day or 60th day in the fore-noon session forgetting the fact that the police officer has got time to file the police report or the charge-sheet during the course of the day. Strictly speaking it can be filed before 12 mid night on the last day. Therefore, it is but proper to take up such applications for disposal on the next day after clear 90 days or 60 days have elapsed and after verifying about the filing or non-filing of the same before the last day had expired instead of disposing them on the last day.
10. In view of our discussion, the Criminal petition fails and is accordingly, dismissed.
11. Petition dismissed.