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TMI Blog2024 (5) TMI 1541X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Adv.,, Mr. Rajesh Srivastava, AOR, Mr. Gaurav Verma, Adv., Mr. Dushyant Parashar, AOR. JUDGMENT SANJIV KHANNA, J. Leave granted in the above matters. 2. The concerns which have arisen during the course of hearing the present appeals are of particular significance for meeting the ends of criminal justice, and relate to the nature of chargesheets filed in some jurisdictions by the state/police. For the sake of convenience, we would divide the judgment into two parts. The first part relates to the legal issue, that is, the contents of the chargesheet in terms of Section 173(2) of the Code of Criminal Procedure, 1973 ["Code", for short]. The second part deals with the factual aspects of each of the cases, and our decision. PART I 3. The issue in the first part relates to chargesheets being filed without stating sufficient details of the facts constituting the offense or putting the relevant evidence on record. In some states, the chargesheets merely carry a reproduction of the details mentioned by the complainant in the First Information Report ["FIR", for short], and then proceed to state whether an offence is made out, or not made out, without any elucidation on the evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l forthwith send a report of the same to the Magistrate empowered to take cognisance of the offence. Further, he shall proceed in person or depute any of his subordinate officers to proceed to the spot to investigate the facts and circumstances of the case, and if necessary, to take measures for discovery and arrest the offender. Such report is in the nature of a preliminary report. As per Section 169 of the Code, if it appears to the officer in-charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify forwarding the accused to the Magistrate, then the officer shall release the person if he is in custody on his executing a bond, with or without sureties, with a direction to such person to appear if and when so required, before the Magistrate empowered to take cognisance of the offence from the police report[1] 5. Section 170 of the Code deals with the cases where it appears to the officer that there is sufficient evidence or reasonable ground to proceed. In such an event he is required to submit a police report or chargesheet under Section 173(2) of the Code. Elucidating on Section 173(2) of the Code in Dablu Kujur (supra), thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate on certain aspects, as submission of the chargesheet is for taking cognisance and summoning of the accused by the Magistrate, which stages are of considerable importance and significance. 7. Section 173 of the Code reads: "173. Report of police officer on completion of investigation.- (1) Every investigation under this Chapter shall be completed without unnecessary delay. (1A) The investigation in relation to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the officer in charge of the police station. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e after a report under sub-section (2) has been forwarded to the Magistrate and, where upon 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)". 8. Sub-section (2) to Section 173 makes a considered departure from sub-Section (1) to Section 173 of the Code of Criminal Procedure, 1898 ["1898 Code", for short]. Subsection (1)(a) to Section 173 of the 1898 Code had stipulated that as soon as the investigation is completed, the officer in-charge of the police station shall forward to the Magistrate, a report in the form prescribed by the local government, sending forth the names of the parties, nature of the information and the names of the people who appear to be acquainted with the circumstances of the case and state whether the accused person has been forwarded in custody or released on a bond. 9. We have referred to Section 173 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standard of evidence to be elucidated in a chargesheet should prima facie show that an offence is established if the material and evidence is proven. The chargesheet is complete where a case is not exclusively dependent on further evidence. The trial can proceed on the basis of evidence and material placed on record with the chargesheet. This standard is not overly technical or fool-proof, but a pragmatic balance to protect the innocent from harassment due to delay as well as prolonged incarceration, and yet not curtail the right of the prosecution to forward further evidence in support of the charges [See also, para 21 below on the power of the police to investigate under Section 173(8) of the Code]. 14. In the context of the present issue, it would be apt to refer to Section 190 and Section 204 of the Code, along with the provisions relating to contents of charge, namely, Sections 211 to 213 and Section 218 of the Code, which read as under: "190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cogniza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular case. (6) The charge shall be written in the language of the Court. (7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed. 212. Particulars as to time, place and person.-(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sufficient ground for proceeding further, take cognizance of the offence and issue process, or (iii) he may direct further investigation to be made by the police under sub-section (3) of Section 156." It is in this context that the provisions of Sections 190 and 204 of the Code become important. Clause (a) of Section 190 states that the Magistrate can take cognisance of an offence on receiving a complaint of facts which constitute such offence. Clause (b) relates to a situation where the Magistrate receives a police report carrying such facts, i.e., facts which constitute such offence. In Minu Kumari and Another v. State of Bihar and Others [(2006) 4 SCC 359] this Court referred to the options available to the Magistrate on how to proceed in terms of Section 190(1)(b) of the Code, and held: "11...The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred charge, final report or summary. Section 173 in terms does not refer to any notice to be given to raise any protest to the report submitted by the police. Though the notice issued under some of the Police Manuals states it to be a notice under Section 173 of the Code, there is nothing in Section 173 specifically providing for such a notice." 16. This Court in Bhushan Kumar and Another v. State (NCT of Delhi) and Another [(2012) 5 SCC 424] while referring to Sections 190 and 204 of the Code has observed that the expression "cognisance" in Section 190 merely means "becoming aware of", and when used with reference to a court or a judge it connotes "to take notice of judicially". It indicates the juncture at which the court or Magistrate takes judicial notice of the offence with a view to initiate proceedings in respect of such an offence. This is different from initiation of proceedings. Rather, it is a condition precedent to the initiation of proceedings by a Magistrate or judge. At this stage, the Magistrate has to keep in mind the averments in the complaint or the police report, and has to evaluate whether there is sufficient ground for initiation of proceedings. This is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nden duty of the trial court to carefully go through the allegations made in the charge-sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code." 19. Sections 211 to 213 and Section 218 of the Code deal with the contents of the charge. The object and purpose of these provisions is to bring the nature of allegations against the accused to his notice. These allegations have to be proved and established by leading evidence. The accused should not be taken by surprise or be unbeknownst so as to cause prejudice to him. The provisions of the Code also prescribe how to interpret the words used in the charge in terms of Section 214 of the Code, the effect of defects in the charge in terms of Section 215 of the Code, the power of the court to alter the charge and recall of the witnesses when a charge is altered in terms of Sections 216 and 217 of the Code. 20. There is an inherent connect betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation. The duty of the investigating officer is to collate every relevant information/material during the investigation, which he must believe to be the actual course of events and the true facts unraveling the commission of the alleged crime and the person involved in committing the same. He is expected to examine the materials from all angles. In the event, there is sufficient evidence or reasonable ground that an offence appears to have been committed and the person committing such offence has been identified, the investigating officer is obliged to record his opinion in that regard, as required by Section 173(2)(i)(d) of the Code. In other words, if the investigating officer intends to send the accused for trial, he is obliged to form a firm opinion not only about the commission of offence, but also about the involvement of such person in the commission of crime. 12. Such opinion is the culmination of the analysis of the materials collected during the investigation - that there is "strong suspicion" against the accused, which eventually will lead the concerned Court to think that there is a ground for "presuming" that the accused "has" committed the alleged offence; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facilitate the concerned Court to take cognizance of the crime and then frame charge if it is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX of the Code." 23. In K. Veeraswami (supra), K. Jagannatha Shetty, J. pronounced the judgment for himself and M.N. Venkatachaliah, J. (as His Lordship then was) on the question of contents of the chargesheet and observed: "75. In the view that we have taken as to the nature of the offence created under clause (e), it may not be necessary to examine the contention relating to ingredient of the offence. But since the legality of the charge-sheet has been impeached, we will deal with that contention also. Counsel laid great emphasis on the expression "for which he cannot satisfactorily account" used in clause (e) of Section 5(1) of the Act. He argued that that term means that the public servant is entitled to an opportunity before the Investigating Officer to explain the alleged disproportionality between assets and the known sources of income. The Investigating Officer is required to consider his explanation and the charge-sheet filed by him must contain such averment. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Minu Kumari (supra). 24. It is the police report which would enable the Magistrate to decide a course of action from the options available to him. The details of the offence and investigation are not supposed to be a comprehensive thesis of the prosecution case, but at the same time, must reflect a thorough investigation into the alleged offence. It is on the basis of this record that the court can take effective cognisance of the offence and proceed to issue process in terms of Section 190(1)(b) and Section 204 of the Code. In case of doubt or debate, or if no offence is made out, it is open to the Magistrate to exercise other options which are available to him. 25. In support of our reasoning, we would refer to the very next paragraph in the judgment of Shetty, J. in K. Veeraswami (supra) which reads as under: "76. The charge-sheet is nothing but a final report of police officer under Section 173(2) of the CrPC. The Section 173(2) provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (a) the names of the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd correctness of which is thereupon decided by the court. 27. In H.N. Rishbud and Inder Singh v. State of Delhi [(1954) 2 SCC 934], this Court notes that the process of investigation generally consists of: 1) proceeding to the concerned spot, 2) ascertainment of facts and circumstances, 3) discovery and arrest, 4) collection of evidence which includes examination of various persons, search of places and seizure of things, and 5) formation of an opinion on whether an offence is made out, and filing the chargesheet accordingly. The formation of opinion is therefore the culmination of several stages that an investigation goes through. This Court in its decision in Abhinandan Jha and Others v. Dinesh Mishra [AIR 1968 SC 117] states that the submission of the chargesheet or the final report is dependent on the nature of opinion formed, which is the final step in the investigation. 28. The final report has to be prepared with these aspects in mind and should show with sufficient particularity and clarity, the contravention of the law which is alleged. When the report complies with the said requirements, the court concerned should apply its mind whether or not to take cognisance and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-A, 23,072 sq. ft., forming a part of Khasra no. 1016/647 and 645, situated within Chandrawli/Shahdara, now in Abadi, at Circular Road, Shahdara, Delhi- 110032 ["subject property", for short] * Appellant No. 2 - Sharif Ahmad and Appellant No. 3 - Anwar Ahmad (since deceased), purchased a part in the subject property on behalf of their partnership firm Dream Land & Co., while Appellant No. 1 - Vakil Ahmad (since deceased) had done so in his individual capacity. * To avoid prolixity, we would refrain from setting out the facts of the litigation in detail. * The challenge before us relates to the First Information Report No. 108/2016 dated 23.05.2016, filed by Respondent No. 2/complainant - Mohd. Iqbal, under Sections 420, 406 and 506 IPC at police station Hafizpur, Hapur, U.P. against the appellants. The FIR stated that the appellants had agreed to sell the subject property to Respondent No. 2 and had received part payment for the registry of the subject property. However, the appellants did not register the property and also failed to refund the concerned amount to Respondent No. 2. * The Police recorded the statements of Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.K. Jain, by not refunding a sum of Rs. 1 crore of the complainant and his partner, grabbing by doing breach of trust, making pretexts on demanding again and again and the threat to kill, hence the offence under section 406, 506 I.P.C. is thoroughly proved upon the accused persons Sharif Ahmed, Anwar Ahmed, Vakil Ahmed, Aadil Ahmed, the occurrence of section 420 I.P.C. is not found, hence the challan of the accused persons, by charge sheet No. 153/16 is filled in the court, it is prayed that punishment may be given by calling the proof." 35. A reading thereof would indicate that it refers to the complaint made by Respondent No. 2 - Iqbal on 23.05.2016 relating to the deal of a plot in respect of which part consideration was paid as earnest money. But thereafter, the appellants had sold the plot and were not refunding the earnest money and by doing so have committed breach of trust under Section 406 of the IPC. It also refers to the alleged pretexts being made by the appellants on money being demanded and a threat to kill being extended. It is also recorded that an offence under Section 506 has been proved to have been committed. At the same time, the chargesheet st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to inflict punishment, loss or pain on the other. Injury involves doing an illegal act. 39. This Court in Manik Taneja and Another v. State of Karnataka and Another [(2015) 7 SCC 423], had referred to Section 506 which prescribes punishment for the offence of 'criminal intimidation' as defined in Section 503 of the IPC, to observe that the offence under Section 503 requires that there must be an act of threating another person with causing an injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested. This threat must be with the intent to cause alarm to the person threatened or to do any act which he is not legally bound to do, or omit to do an act which he is entitled to do. Mere expression of any words without any intent to cause alarm would not be sufficient to bring home an offence under Section 506 of the IPC. The material and evidence must be placed on record to show that the threat was made with an intent to cause alarm to the complainant, or to cause them to do, or omit to do an act. Considering the statutory mandate, offence under Section 506 is not shown even if we accept the allegation as correct. 40. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " * By an order dated 10.05.2021, the Allahabad High Court granted interim anticipatory bail to the appellant till 03.01.2022, in terms of the conditions mentioned in the order, and observed that the appellant herein may approach the High Court again if so advised, in case of a change in circumstances. * On 23.03.2022, Allahabad High Court dismissed the Criminal Misc. Anticipatory Bail Application No. 2235/2022 filed by the appellant, on the grounds of non-bailable warrants having been issued against the appellant and the chargesheet having been filed. * Hence, the appellant has filed the present appeal. 41. We have already referred to the facts and also to the ingredients of the offence under Section 420 IPC. The assertions made in the FIR allege that the accused are frauds who have taken bainama (earnest money on the property), but thereafter are making excuses. The complainant had visited the accused at their house who had then threatened them to implicate them in false cases. They denied having received the money. 42. We allow the present appeal and direct that in the event of the appellant being arrested, he shall be released on bail by the arresting officer/inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellant - Manager Singh was also present during this altercation. He had abused him and stated - "maaro sale ko, bahut imandaar banta hai" i.e., "hit him, he wants to be too honest". Bachhan Singh Rawat and Mahendra Kumar had hit him till he fainted. When he regained consciousness, they had left the place. * Manager Singh, as the Director General of the NRLC, claims that he had noticed several discrepancies and administrative errors committed by Rajesh Wangvelu, who was working as the Library and Information Officer. * After issuing show-cause notices to Rajesh Wangvelu and considering his response, the Ministry of Culture issued a letter dated 02.08.2019, under the signature of appellant, indicating that Rajesh Wangvelu prima facie appeared to have committed temporary embezzlement of Rs. 38,338/- and for which action should be taken. * A decision to shift the library was also confirmed by a committee, to which Rajesh Wangvelu had expressed his displeasure. On the day of shifting, i.e. 23.12.2019, a physical altercation occurred between Rajesh Wangvelu and the officers Bachhan Singh Rawat and Mahendra Kumar. * Manager Singh has relied upon written communicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh has come into light, in which Bachan Sing Rawat and Mahendra Kumar were sent in judicial custody on 24.12.19. Till the filing of charge sheet, the accused Manager Singh has been granted stay of arrest by the court. The offences under Section 323/504/506/120B/308/325 IPC are duly proved against the accused Bachan Singh Rawat, Mahendra Kumar and Manger Singh. Therefore, charge sheet is filed against the accused Bachan Singh Rawat, Mahendra Kumar and Manager Singh under Section 323/504/506/120B/308/325 IPC before the Hon'ble Court. It is requested to summon the proof and punish and accused." * On the chargesheet being submitted in the court of the Magistrate, order dated 10.02.2020 was passed recording that the chargesheet has been submitted for offences under 323, 504, 506, 120B, 308, 325 of the IPC against Bachhan Singh Rawat, Mahendra Kumar and Manager Singh. The order, taking cognisance and issuing summons, reads: "The chargesheet was filed under the offence number 556/2019, Section 323, 504, 506, 120B, 308, 325, IPC, Police Station Aliganj against the accused Bachan Singh Rawat, Mahendra Kumar and Manager Singh. Reviewed all prosecution forms. The grounds for taking cogn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mahendra Kumar, to M/s. V.K. Singh Construction Company, Punjab, in which case a final report has been submitted to the court. He has also referred to an office order dated 03.09.2021 passed by the Government of India, Ministry of Culture, terminating services of Manager Singh with immediate effect. 45. Having regard to the facts of the present case, including the chargesheet as filed, which in our opinion is bereft of all details and particulars, we quash the summoning order against Manager Singh. The Special Chief Judicial Magistrate, would re-examine the entire matter in terms of the observations made in the present judgment and thereupon proceed in accordance with law. 46. We, however, would allow the present appeal to the extent that the nonbailable warrants issued against Manager Singh are unsustainable and should be quashed. It is a settled position of law that non-bailable warrants cannot be issued in a routine manner and that the liberty of an individual cannot be curtailed unless necessitated by the larger interest of public and the State. While there are no comprehensive set of guidelines for the issuance of nonbailable warrants, this Court has observed on several oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts etc. by the court of Special Chief Judicial Magistrate. CONCLUSION 49. In view of the aforesaid discussion, (i) the appeal arising out of SLP (Crl.) No. 1074/2017 preferred by Sharif Ahmed and Adil is allowed and the criminal proceedings are quashed; (ii) the appeal arising out of SLP (Crl.) No. 5419/2022 is allowed with the direction that in the event of being arrested, the appellants - Imran and Kamaluddin shall be released on anticipatory bail in connection with the chargesheet under Sections 420 and 120B IPC arising out of FIR No. 519/2019 dated 26.07.2019 registered at Police Station Chandpur, District Bijnor, Uttar Pradesh on terms and conditions to be fixed by the trial court. In addition, the appellants - Imran and Kamaluddin shall comply with the conditions mentioned in Section 438(2) of the Code; (iii) the appeal arising out of SLP (Crl.) No. 9482/2021 preferred by Manager Singh is partly allowed by - (a) quashing the summoning order issued against Manager Singh, with an order of remand to the Magistrate in terms of the observations in this judgment; (b) quashing the non-bailable warrants issued against Manager Singh; and (c) directin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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