Prasun Kumar Deb, J.@mdashThis is an application under Articles 226 and 227 of the Constitution of India by the above named accused-applicants in connection with Jorapokhar P.S. Case No. 537 of 1993 now pending in the Court of the Chief Judicial Magistrate, Dhanbad, for an appropriate writ for the purpose of quashing, the order dated 9.3.1994 whereby the learned Chief Judicial Magistrate, Dhanbad had dismissed the application of the above named Petitioners for their release u/s 167(2) of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') and also forbearing from giving effect to the so-called charge sheet (?) dated 26.2.1994 and that the detention in the judicial custody of the Petitioners on illegal remand order passed by the Chief Judicial Magistrate, Dhanbad (Respondent No. 3) is without jurisdiction.
2. The prosecution was launched against the above named two Petitioners along with one Mahendra Yadav for causing murder and, as such, Jorapokhar P.S. Case No. 537 of 1993 was registered on 27.11.1993. During course of investigation, Mahendra Yadav was arrested and the above named accused-Petitioner surrendered before the Court below on 1.12.1993. They filed petition for their bail which was rejected and then on 1.3.1994 they filed a petition for their release u/s 167(2) of the Code as no charge-sheet was filed against them. That petition was considered by the learned Chief Judicial Magistrate on 9.3.1994 and rejected the same holding that charge-sheet against these two Petitioners had already been filed on 26.2.1994.
3. According to Mr. Majumdar, appearing on behalf of the Petitioners, the so-called charge-sheet filed on 26.2.1994 is not a charge-sheet in compliance of Section 173(2) of the Code. At best, according to him, the same may be considered as an interim charge-sheet. Such submission has been made on the ground that in paragraph 7 of the said charge-sheet (Annexure 1) the Investigating Officer mentioned in the following manner:
which means that charge-sheet was submitted against the Petitioners before the investigation was complete only to devoid the Petitioners from getting the benefit of Section 167(2) of the Code. No interim charge- sheet can be submitted u/s 173 of the Code as the same is unknown in the criminal jurisprudence. Referring to Section 167 of the Code, it is submitted that if charge-sheet is not submitted within 60/90 days, as the case may be, from the date of detention of the accused persons, then they are to get benefit of release on furnishing proper, bail bonds. After the period specified, there is no bar for the Magistrate to remand the accused persons during the continuance of the investigation unless cognizance is taken on the police report. The power of further remand only comes after cognizance is taken during the course of inquiry and trial as contemplated u/s 309 of the Code.
4. Mr. Majumdar''s submission is that the charge-sheet dated 26.2.1994 being not a charge-sheet u/s 173(2) of the Code and when the Petitioners had completed 90 days after their surrender in the judicial custody, their release ought to have been assented to by the learned Chief Judicial Magistrate by invoking the provisions of Section 167(2) of the Code, hence the order dated 9.3.1994 is without jurisdiction remanding the accused-Petitioners to the custody again. His further submission is that the final form of the investigation was still wanting as could be revealed from the subsequent orders as the Court passed orders awaiting the final form, then the detention of the Petitioners in the custody being illegal are entitled to release without furnishing bail bonds. For appreciating the submissions made by Mr. Majumdar, we are to go in deep of Sections 167 and 309 of the Code. Before elaborating our discussions on the points raised, some factual matters should also be mentioned here.
5. By order dated 9.3.1994, the learned Chief Judicial Magistrate has mentioned that he had gone through the police diary which revealed that investigation in respect of the accused Petitioners were complete but the same was wanting in respect of the other accused Mahendra Yadav. It should further be mentioned that the name of Mahendra Yadav the other accused was mentioned in column No. 2 of the charge-sheet (Annexure 1), meaning thereby he was not being sent up for trial. This Mahendra Yadav was released on bail by order dated 26.2.1994 as no charge-sheet was filed against him within a period of 90 days of his detention. The learned Magistrate has further mentioned in the impugned order dated 9.3.1994 that the name of Mahendra Yadav was wrongly or mistakenly or inadvertently mentioned in Column No. II as the case diary revealed that the investigation was still going on in respect of the said accused Mahendra Yadav as per the police diary. It could also be found from the fact that the investigation was not complete as there was prayer for making over of the investigation of the case to the G.R.P.S. Bhojudih, but the said prayer was rejected by the impugned order with reference to Section 156(2) of the Code. Mr. Majumdar has strenuously argued that from those facts, it could well be understood that the investigation was still going on and such charge-sheet submitted on 26.2.1994 was not on completion of investigation as contemplated u/s 167 of the Code and as such the Petitioners were entitled to relase.
6. Another submission is that till the date of filing of the writ petition, there was no cognizance taken by the Magistrate concerned as contemplated u/s 2(g) of the Code and as such it cannot be said that the stage of enquiry or trial had reached as contemplated u/s 309 of the Code and, hence, the further remand was totally illegal and without jurisdiction. Section 167(2) of the Code runs as follows:
167(2). The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days or sixty days, as the Case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.
7. If the charge-sheet as contained in Annexure 2 is not considered to be a charge-sheet on completion of investigation then definitely the Petitioners'' right has been infringed by not releasing them under the above proviso. Now whether Annexure 1 is a charge-sheet or not is to be considered in the light of Section 173 of the Code, the word "charge-sheet" is not there in any where in the Code but it is only mentioned as a police report. All reports by the police are the police reports but whether the said report is worth of taking cognizance or not would mean the word ''charge-sheet'' commonly mentioned or a final form of police report on completion of investigation.
8. It is true that on going through column No. 7 of Annexure 1, a first impression comes on its plain reading that the charge-sheet or final form was submitted only to devoid the Petitioners from getting the benefit of Section 167(2) of the Code, but scrutinising the same in its proper prospective it could be found that the said Annexure 1 had been filed in total compliance of Section 173(2) of the Code. All infomations that was to be submitted for the purpose of cognizance had been mentioned in Annexure 1 to the writ petition, so it is complete in its sense for the purpose of Section 173(2) of the Code. It is submitted by Mr. Majumdar that after amendment of the Code and inclusion of Sub-section (8) of Section 173, there is scope for the police officer or the investigating agency to submit an interim report and to submit final form afterwards on completion of investigation, we do not find much force in this submission. Sub-section (8) has been included for different purposes as is apparent from the wordings of the same. The Investigating agency has got power under this Sub-section to give further report either as addenda to the charge-sheet already submitted u/s 173(2) of the Code, if some new facts have been brought into the notice of the Investigating agency after the submission of charge-sheet under Sub-section (2) or some more evidence could be found out even after filing of the final form but it cannot be said that the report under Sub-section (2) can be an interim report during the tendency of the investigation. The very first beginning of Sub-section (2) runs with the wordings "as soon as it is complete". So no report in the final form can be submitted u/s 173(2) of the Code without completion of investigation. When there are many accused in a case, it might be that investigation might have been complete against some of the accused and against some other accused, some more evidence or materials might be wanting, in that case, there, perhaps, can be no bar in submitting final form u/s 173(2) of the Code in respect of those accused against whom investigation had already been completed but mentioning of the Investigating Officer to the effect that the charge-sheet was submitted against the accused Petitioners only for the purpose that they might not get the benefit of Section 167(2) of the Code should definitely be deprecated. When such mentioning was made, the learned Chief Judicial Magistrate had to consult the police diary and to scrutinise the same as to whether there are in fact completion of investigation in respect of the accused-Petitioners or not and it was found that practically investigation had been completed in respect of these two accused- Petitioners. Thus it could be found that the investigation had been completed in respect of the accused Petitioners and, as such, the final form submitted u/s 173(2) of the Code within a period of ninety days and so as per Section 167(2) of the Code does not give any liberty to the Petitioners for their release.
9. This Court in Suresh Singh v. The State of Bihar and Ors. (1977 PLJR 523) has observed rightly that the police should not be encouraged to submit any temporary or interim charge-sheet u/s 173(2)(ii) of the Code. Thus, Annexure 1, the charge-sheet cannot be said to be colourable document but a real one and the same is in the final form as contemplated u/s 173(2) of the Code although some remarks in the charge-sheer are uncalled for and unwarranted. As the investigation was still going on in respect of co-accused Mahendra Yadav, his name should not have appeared in Column No. 2 rather it ought to have been mentioned that "against whom investigation was still going on". There may be a question whether there can be submission of charge sheet against some accused in a case when Section 173(2) does not contemplate so. We are of the definite opinion that if the investigation is complete against some accused persons then there cannot be any bar in submitting a report in the final form in respect of those accused and keeping the same pending for some other accused persons and after completion of full investigation, the entire final form can be submitted against the rest of the accused persons. Code of Criminal Procedure has not barred so, hence, on this score the Petitioners have got no case. Rejection of their prayer for releasing them u/s 167(2) of the Code was rightly rejected by the learned Chief Judicial Magistrate vide his impugned order dated 9.3.1994.
10. The next question then comes in on form of the charge-sheet vide Annexure 1. The learned Chief Judicial Magistrate has not taken cognizance until now as the order sheet revealed that he was awaiting final form as against all the accused persons. As such, even after submission of charge-sheet when no cognizance has been taken, it is contended that the remand order of the Petitioners is without jurisdiction as the Code has not given any authority for remand after the charge-sheet is filed, unless cognizance has been taken and remand is made during the course of inquiry/trial as contemplated u/s 309 of the Code.
11. The word ''cognizance'' has not been specifically defined in the Code but by long user of the word and being interpreted on various occasions by the Apex Court followed by different High Courts, the expression ''taking cognizance'' means only application of judicial mind to the offence alleged. In that sense when the Magistrate takes note of the police report submitted against the accused concerned, it shall be deemed that cognizance has been taken and enquiry has commenced within the meaning of Section 2(g) of the Code. In the present case, by the impugned order dated 9.3.1994, the learned Chief Judicial Magistrate has virtually taken cognizance of the offences against the Petitioners as he had applied his judicial mind in respect of the charge-sheet vide Annexure 1 on going through the case diary even. Only because a formal order of taking Cognizance has not been passed, it cannot be said that the learned Court below has not taken cognizance of the offences against the Petitioners even after submission of charge-sheet vide Annexure 1, rather by the subsequent order, it can be well understood that the learned Court below was awaiting final form in respect of the remaining accused Mahendra Yadav against whom wrong mention was that of not sending him for trial and investigation was still running/continuing against him.
12. In view of the position that enquiry was going on as per meaning of Section 2(g) of the Code since the date of receipt of the charge-sheet and application of mind by the learned Magistrate as contemplated u/s 309 of the Code, hence, subsequent remand order against the accused Petitioners is not illegal and without jurisdiction but valid and within the jurisdiction and power of the learned Chief Judicial Magistrate, Dhanbad.
13. For the reasons stated above, this writ application is dismissed having no force in it but before conclusion, it must be said that the comments made in the charge-sheet (Annexure 1) regarding 167 (2) of the Code has been highly deprecated.
Ravi Nandan Sahay, J.
14. I agree.
