The State has approached this Court with this Criminal Revision Application, on being aggrieved by an order passed by the Special Judge, Banaskantha at Palanpur on 3rd May, 2006, below the Report filed by Police Inspector, ACB, Palanpur, Banaskantha, seeking Summary 'A', in respect of a trap conducted against the present respondent, who was then Sub Divisional Officer Telegraph, Palanpur ('SDOT' for short). 2. The case against respondent was that he had demanded a bribe amount of Rs.500/- from one Muslim Nizamuddin Ansari, who, in turn, lodged a complaint with the ACB, Palanpur. Summary 'A' was sought on the ground that the complainant as well as panch – Rajeshkumar Gaurishankar Rawal had given inconsistent statements and therefore, the accused was not required to be sent for facing trial. The Principal District Judge has passed following order :
“Heard, Accused is traceable. There is no question of granting “A” Summary. It is nobody's case that accused is absconding. If at all, I.O. fact that evidence is not sufficient to prosecute the accused. He may apply under Section 169 of Cr.P.C. Hence rejected as it is not tenable at law.“
3. The above order is challenged by the State in this revision application on the ground that though the accused was traceable, there was insufficient material to prosecute the accused and therefore, 'A' Summary was required to be granted, which the learned Judge has refused to do on the ground that in such a situation, Summary 'A' cannot be granted and that the investigating officer may apply under Section 169 of the Code of Criminal Procedure ('Code' for short) for releasing the accused when evidence is deficient. Learned APP Mr. Kodekar submitted that both the grounds, on which, the prayer was rejected by the Special Court, are not legally justified and hence, this revision.
4. The revision application is opposed to by learned advocate Mr. Hriday Buch for the respondent – original accused.
5. Having heard both the sides, this Court is of the view that this revision application deserves to be allowed for the reason that the lower Court, while passing the order, has erred in interpreting the provisions contained in law.
6. Before proceeding to discuss the law, certain factual aspects need to be stated first.
6.1 On the basis of a complaint of demand of bribe, a trap was conducted and thereafter, when the statements were recorded, complainant as well as the panch witness gave inconsistent statements and therefore, the investigating officer tendered the said application for grant of Summary 'A' before the Special Court. Thus, it was not a case where the accused was not traceable, but, Summary 'A' was sought on the ground that there is no evidence to justify the accused being sent up to the Court for trial.
7. The provisions contained in various statutes are required to be seen in backdrop of above indisputable and undisputed facts.
7.1 In the first instance, reference may be made to the Code of Criminal Procedure, where, Chapter XII deals with information to the police and their powers to investigate. Upon receiving information as to congizable offence under Section 154, the investigating officer has to register the offence and start the investigation. If during the course of investigation he arrests a suspect, it is expected that he produces the suspect before Magistrate within twenty four hours. Section 167 of the Code contemplates the procedure when investigation cannot be completed in twenty-four hours. It also contemplates default bail. Section 169 of the Code contemplates the situation where the accused is required to be released by the investigating officer on his personal bond if the investigating officer finds that there is no material to send the accused for trial. Section 170 of the Code deals with situation of cases which are required to be sent to Magistrate when evidence is sufficient. Section 173 of the Code is a section which deals with various situations including further investigation.
8. For the purpose of this case, Section 169 of the Code is relevant, which runs as under :
“Section 169. Release of accused when evidence deficient - If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.”
9. A reading of this section would make it amply clear that it does not contemplate making of any application or report to the Court by the investigating agency. On the contrary, it contemplates the situation where, upon an investigation, the investigating officer or the officer in-charge of the police station finds that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond with or without sureties, as such officer may direct, requiring the accused to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or to commit the case for trial.
9.2 Thus, the above provision does not contemplate making of any application to the Court or any report. On the contrary, a duty is cast upon the investigating officer or the officer in-charge of a police station to release the accused on bond with or without sureties requiring the accused to appear before the Court, if and when so required, if after the investigation, the officer finds that there is no evidence or reasonable ground of suspicion forwarding the accused for trial to the Magistrate.
10. In this context, paragraph 232 of the Gujarat Police Manual makes a relevant reading. It classifies the report into four categories; (i) “A” where the complaint is true, undetected (where there is no clue whatsoever about the culprits or property) or where the accused is known but there is no evidence to justify his being sent up to the Magistrate for trial;
(ii) “B” where the complaint is maliciously false; (iii) “C” where the complaint is neither true nor false, e.g., due to a mistake of facts or on account of the dispute being civil nature, etc.; and (iv) “D”, non-cognizable cases, where the case is for an offence and the police investigation reveals commission of only a non-cognizable offence.
10.1 These first three categories are known as 'summary' and the provision requires the investigating officer to request the Magistrate to classify the case and issue an appropriate summary of the order. The said provision runs as under :
“232. Final reports – (1) When there is no sufficient evidence to justify the forwarding of the accused to a Magistrate the Police Station Officer or the investigating officer will release the accused person on bail, if he is in custody.
(2) The Police Station Officer will then submit a final report to the Magistrate empowered to take cognizance of an offence on a Police report through the Sub-Divisional Police Officer in the following three classes of cases :-
(a) Those in which it appears from the Police investigation that no offence has been committed.
(b) Those in which it appears from the Police investigation that only a non- cognizable offence has been committed.
(c) (i) Those in which there are grounds for believing that an offence has been committed, but in which, in the opinion of the officer-in-charge of the Police Station, there are not sufficient grounds t investigate or there is not sufficient evidence to justify sending any accused for trial, or in which the offender is not known or cannot be arrested and sent for trial.
(ii) In cases referred to the Police by a Magistrate, the final report will be sent direct to the Magistrate.
(3) The final report should be written up carefully by the officer-in-charge of the Police Station personally and should be accompanied by all the case papers numbered and indexed methodically. If the accused has been released on bail, the Magistrate should be requested to cancel the bail bond. He should also be requested to pass orders regarding the disposal of property attached, unless any of the articles, e.g., blood stained clothes, are required for further use in true but undetected cases. A request should also be made to the Magistrate to classify the case and to issue an appropriate summary of his order, viz., :-
(i) “A” True, undetected (where there is no clue whatsoever about the culprits or property or where the accused is known but there is no evidence to justify his being sent up to the Magistrate (for trial).
(ii) “B” Maliciously false.
(iii) “C” Neither true nor false, e.g., due to mistake of facts or being of a civil nature.
(iv) “Non-cognizable” Police investigation reveals commission of only a non-cognizable offence.
(4) A Sub-Divisional Officer is not bound to forward a final report to the Magistrate immediately. He may of his own motion direct further enquiry or he may for special reasons permit a case to remain pending under investigation.
(5) When any further investigation is ordered and made subsequent to the submission of the final report the papers should, at each stage upto final disposal, be sent through the Sub- Divisional Officer. In urgent cases, however, the Magistrate may return the papers direct to the investigating officer.
(6) When a final report of an officer-in- charge of a Police Station is returned to him for further investigation or other purpose, the date of the submission of the final report in its last and complete form should be taken as the date of its submission to the Magistrate for the purpose of determining the beginning of the period of 14 days within which a summary of the Magistrate's final order should be sent.
(7) It is not competent to a Magistrate to return investigating officer's report made to him under Section 173, Criminal Procedure Code, with an order to make a case against the accused and to send it up for trial. If the Magistrate considers that there is a prima facie case against the accused he should take action under Section 204 of the Code. A reference should also be made to instruction contained in sub-rules (2) & (2) of rule 230.“
11. Paragraph 40 of Gujarat Criminal Manual is also on the same line and it runs as under :
“40. The following rule 246 of the Bombay Police Manual, 1959, has been reproduced for the information and guidance of the Judges and Magistrates :
Summaries of final orders – (1) Each Magistrate shall, immediately after disposing of a cognizable case, forward through the Police Station from which the case came, to the Superintendent or Sub-Divisional Police Officer concerned, a summary of a final order in Form E. It should be sent in all cases, whether disposed of by trial or otherwise brought to an end by the death, lunacy or escape of the accused or in other way whatever. When a case has been tried by Magistrate he will issue the summary. In cases tried by the Court of Session, the Committing Magistrate will forward the required summary after the disposal of that case by that court or by the High Court. When the result of a case is changed on appeal or revision, the Magistrate who sent the original summary will send a summary of the amendment in Form F.
(2) If an accused in a case dies after a charge sheet has been sent up against him but before any evidence is recorded by the trying Magistrate, the Magistrate should be requested to issue an “A” summary.
(3) Summaries in cases not sent up for trial but disposed of on final reports should be issued by a Magistrate who is empowered to take cognizance of the offence on a Police report.
(4) To reports in cases in which investigation has been refused by the Police under section 157(1)(b), Code of Criminal Procedure, a Magistrate's reply is necessary. It is sufficient to enter in question 4 of the summary (Form E) that the case is “not investigated by the Police acting under section 157(1)(b), Code of Criminal Procedure, with Magistrate's approval.” The Magistrate should also include in his summary the value of property alleged to have been stolen in such cases, unless investigation was refused on the ground that the complaint was of a Civil nature.
(5) If the case is “true” it should be classed as “A”. This applied even where an accused is tried and, in the absence of conclusive evidence, is acquitted. The classes “B” and “C” are reserved for cases in which it is found that no offence has been committed at all either by the accused or by any one else. In such cases, if the complaint is found to be “false and maliciously false”, the case should be classed as “B”. If the case is found to be “neither true nor false” or “false but not maliciously false”, it should be classed as be classed as “non-cognizable”. A case where Police report made under rule 203 reveals commission of only a non-cognizable offence may also be classed as “Non-cognizable”.
(6) If the case has been compounded, Magistrate should make no attempt to characterize the complaint, but should simply record against entry No.3 of the summary (Form 3) that the case has been compounded. Similarly, when an accused person dies, or becomes a lunatic or escapes, this fact should be mentioned against entry No.3 of the summary form.
(7) Magistrate should send direct to the officer-in-charge of the Police Station for record summaries of their final orders in the prescribed form in cases referred to the Police for enquiry under Sections 156 and 202, Code of Criminal Procedure.
(8) Section 6 of the Criminal Law Amendment Act, 1952 provides for the appointment of Special Judge for trying the following offences :
(i) An offence punishable under section 161, section 165, or 165-A of the Indian Penal Code or sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947;
(ii) Any conspiracy to commit or any attempt to commit or any abatement of any of the offences specified in clause (a); and
(iii) Any other offence connected with any of the offences specified at (a) and (b) above with which the accused may, under the Criminal Procedure Code, be charged at the same trial.
Police Station Officers or the officers of the Anti Corruption Bureau, as the case may be, should make their investigation reports with regard to the above offences to the Special Judges, in the same way as they make their reports to Judicial Magistrates under section 173 of the Criminal Procedure Code, and obtain summaries, from the Special Judges after the cases are decided.
(9) In cases in which Government has ordered prosecution the further orders of the Government should invariably be obtained, if for lack of evidence etc., no prosecution can be launched and “C” summary has to be asked for.“
11.1 Clause 5 is relevant for the purpose of this case, which says that if the case is 'true”, it should be classed as “A”. This applies even where an accused is tried and, in the absence of conclusive evidence, is acquitted. The classes “B” and “C” are reserved for cases, in which, it is found that no offence has been committed at all either by the accused or by any one else. In such cases, if the complaint is found to be “false and maliciously false”, the case should be classed as “B”. If the case is found to be “neither true nor false” or “false but not maliciously false”, it should be classed as “C”.
12. It is, therefore, clear that Section 169 of the Code does not contemplate making of any report to the Court. It only requires investigating officer to release an accused on bond, where there is no sufficient material to send him for trial. Police Manual and the Gujarat Criminal Manual contemplate different types of summaries. Summary Class “A” is contemplated, where the complaint is true, but, undetected, and, where there is no clue whatsoever about the culprits or the property or where the accused is known but there is
no evidence to justify his being sent up to the Magistrate for trial. The present case would fall in this category, where the accused is known, but, in the opinion of the investigating officer, there is no sufficient evidence to justify his being sent up to the Magistrate (Court) for trial. The investigating officer, therefore, was justified in praying for Summary “A” before the Special Court and the Special Court ought to have considered the application on merits. The order of the Special Court, if seen, reflects that the Court believed that in such a situation, Summary “A” cannot be granted, because, the accused was not absconding. The Court also believed that if in the opinion of the investigating officer, the evidence is not sufficient to prosecute the accused, he may apply under Section 169 of the Code, which was also not correct, because Section 169 of the Code does not contemplate making of such application or granting of such summary. The lower Court ought to have examined the case on merits.
13. It would also be appropriate then to refer to Section 173 of the Code, which deals with making of report by the police officer on completion of investigation. For the purpose of this case, sub-section 4 of Section 173 of the Code is relevant, which runs as under :
“Sec.173 (4). 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.”
14. The report made to the Court below by the investigating officer was, therefore, made under Section 173 of the Code and the Court was required to pass an order under Section 173(4) of the Code, which the Special Court has failed to do. The order passed by the learned Principal District and Sessions Judge, Banaskantha at Palanpur, dated 03.05.2006 is, therefore, set aside. The prayer sought by the investigating officer for Summary “A” is allowed. Accordingly, present revision application is allowed. Rule is made absolute to the aforesaid extent. Muddamal currency note be confiscated to the State.
Sd/-
[A.L. Dave, J.] #MH Dave