Varla Krishna Chinna Krishna & Others v. State Of A.P C.B.C.I.D Vijayawada .

(1) The petitioners filed crl. M. P. Nos. 1360, 1369, 1409 and 1511 of 1988 in crime no 46/88 of chilakaluripet police station under sec. 167 (2) cr. Pc to release them on bail on the ground that the statutory period of 90 days of their judicial custody expired by the time the charge - sheet is filed into court, as the petitioners are ready to produce sureties to the satisfaction of the magistrate. The case of the petitioners is that the police report was filed before the magistrate on 18 - 7 - 1988 at 12 - 20 p. M. But the court did not take cognizance of the case set out in the charge - sheet and it was returned. The charge - sheet was again filed on 1 - 8 - 1988 which was also returned for compliance of omissions and the same was filed on 17 - 8 - 1988 and the court took cognizance of the same. The contention of the state was that the police report was filed on 18 - 7 - 1988 at 12. 20 p. M. Setting out the offences alleging against the accused. The court took cognizance of the offence set out in the charge - sheet against the accused on 20 - 7 - 1988, but returned the charge - sheet to supply some omissions that were found in the charge - sheet. Since the court applied its mind judiciously to the police report, it is deemed that the court has taken cognizance of the offences against the accused. The magistrate held that the court has taken cognizance of the offence set out in the charge - sheet already filed on 18 - 7 - 1988, but it was returned to comply with some omissions that were found by the court by applying its judicial mind and the petitions for the release of the petitioners under sec. 167 (2) cr. P. C. 'are not maintainable. Against that order, the present petition has been filed.

(2) The accused were produced before the magistrate on the following dates and the 90 days period had expired as detailed below: produced on period of 90 days a - 11 22 - 4 - 88 20 - 7 - 88 a - 7 27 - 4 - 88 26 - 7 - 88 a - 10 27 - 4 - 88 26 - 7 - 88 a - 8 3 - 5 - 88 31 - 7 - 88 a - 13 3 - 5 - 88 31 - 7 - 88 a - 15 3 - 5 - 88 31 - 7 - 88 a - 1 18 - 5 - 88 15 - 8 - 88 a - 6 18 - 5 - 88 15 - 8 - 88 proviso (a) to sec. 167 (2) cr. Pc. Reads as under: " (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' the statutory period of remand under sec. 167 (2) cr. Pc is only 90 days,

(3) The point involved in this petition exactly is as to on what date the magistrate took cognizance of the offence taking cognizance of the case will indicate and include the intention of initiating judicial proceedings against the offender in respect of the offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. Taking cognizance of an offence is a judicial act, not involving any formal action of any kind and it occurs as soon as the magistrate applies his mind to the suspected commission of an offence. The magistrate may have jurisdiction to try the case, but taking of an offence is something quite different from jurisdiction to deal with a case.

(4) What is taking cognizance has not been defined in the code. Sec. 173 (2) (i) cr. Pc. Provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report in the form prescribed by the state government and stating therein (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; and (g) whether he has been forwarded in custody under s. 170, subsection (5) of sec. 173 makes is obligatory upon the police officer to forward along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely and the statements recorded under sec 161 of all the persons whom the prosecution proposes to examine as witnesses at the trial. Sec. 173 (2) cr, pc thus provides what the report in the prescribed form should contain.

(5) Sec. 2 (r) cr pc defines 'police report' as a report forwarded by a police officer to a magistrate under sub - section (2) of sec. 173 cr pc. It is only under sec. 173 (5) that all the documents or the relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the magistrate during investigation and the statements recorded under sec. 161 of all the persons whom the prosecution proposes to examine as its witnesses shall be forwarded along with the report.

(6) In this case, the report as such has been filed on 18 - 7 - 1988. What has been revealed from the order of the magistrate is that the charge - sheet filed on 18 - 7 - 1988 does not contain the original statements of the witnesses under sec. 161 cr pc and the original documents as per the memo of evidence on which the prosecution relies and the copies of the documents to be furnished to each accused. It is only for the purpose of complying with the omissions that have been required under sec. 173 (5) , the police report that has been filed under sec. 173 (2) cr. Pc. Has been returned. The question of taking cognizance on a subsequent date after complying with the provisions required under sec. 173 (5) cr. Pc does not arise. 1 the moment the police report as defined in i the code and as contemplated under sec. 173 (2) has been filed, it is for the magistrate to apply his mind judiciously. Mere return of the report on the ground of complying with certain omissions as contemplated under sec. 173 (5) does not mean that the police report as filed, detailing all the particulars as prescribed in the form under sec. 173 (2) is not a proper police report. There is a clear distinction in the words used in secs. 173 (2) and 173 (5) of the code. It is for the magistrate to apply his mind judiciously. The fact that the magistrate has taken cognizance does not necessarily mean that there will be proceedings against any one. For example where cognizance is taken upon a complaint, the complaint may be summarily dismissed or may be dismissed after inquiry under sec. 203 cr pc. The accused may never be summoned or made a party to the proceeding. In fact the person complained against may never become an accused person in the technical sense. Nevertheless having regard to the terms of sec. 200 cr pc it is clear that in such a case cognizance has been taken. Similarly where cognizance is taken upon a police report, the code seems to contemp' he that it shall be taken upon the preliminary report which is sent up by the police with the first information under sec. 157 cr pc. Cognizance of an offence in a cognizable case under clause (b) of sub - section (1) of sec. 190 cr pc can be taken by the magistrate after the police have completed investigation.

(7) In this case, the police report was filed on 18 - 7 - 1988 and the provisions of sec. 173 (2) cr. Pc have been complied with. Since the requirements under sec. 173 (5) have not been complied with, it was returned for compliance. Simply because the magistrate has mentioned that a skeliton charge - sheet has been filed, it does not mean that it prevented him from taking cognizance of the case, basing on the report that has already been filed.

(8) In this case, we are not concerned with the preliminary or final charge - sheet. With regard to filing of preliminary and final charge - sheets, we are having number of decisions. But on facts, in this case, the report is only one and that report has been returned for complying with certain omissions as required under sec. 173 (5) cr pc. The filing of the report and the returning of the same for complying with certain omissions under sec. 173 (5) shall be deemed that the magistrate has applied his mind judiciously. In a case where the party wants to claim benefit on the ground that the 90 days period has been expired during remand, they have to establish that the report as defined in the code and as contemplated under sec. 173 (2) of the code has not been filed within the time. The crucial date in this case is the date of return of the police report for compliance, i. E. 20 - 7 - 198r.

(9) In the result, the revision is dismissed.