1. This revisional application is directed against an order of Shri S. C. Choudhury, Magistrate, 1st Class, Alipore, rejecting the petitioner's application for supply of copies, free of cost of statements of witnesses and documents on which the prosecution proposes to rely.
2. The facts are briefly as follows: On 6th June, 1959, an Information was lodged at Khardah Police Station that 8 girl aged about 15 years named Sandhyarani Das Gupta, was missing from the house of her mother at 317, Ghola Government Colony for refugees. A copy of the Information was sent to the Enforcement Branch of Police, Calcutta, and the girl was recovered from the house of Ganesh Dey, within the jurisdiction of Tollygunge P. S., and her statement was recorded on 11th June, 1959, by the officer-in-charge, Tollygunge P. S. A copy of the statement was sent to the Enforcement Branch, Calcutta, and was treated as the F.I.R., and Inspector Bamdeb Das of the Enforcement Branch investigated the case. According to the conclusion reached by the Inspector, there was a conspiracy entered into by Manibala alias Maniprova Mazumdar of 83A, Ashutosh Mukherjee Road, Ganesh Dey of Tollygunge Police Station, Chittaranjan Das of 29A, Kailash Bose Street, Calcutta, and others, in pursuance of which the girl was kidnapped from her mother's house at Ghola within Barrackpore Subdivision and brought to Manibala's house at 88A, Ashutosh Mukherjee Road, and taken on several occasions by. Ganesh Dey to the house of Chittaranjan Das at 29A, Kailash Bose Street, where Chittaranjan Das committed rape on her, after promising to find employment for her. Chittarajan Das was an officer employed in the Relief and Rehabilitation Department at an office at Tollygunge, and Ganesh Dey was a peon employed at the same office. Inspector Bamdeb Das, through the officer-in-charge, Amherst Street Police station (29A, Kailash Bose Street being within the jurisdiction of Amherst Street Police Station) submitted a charge-sheet on 1st September, 1959, against Chittaranjan Das and others in respect of charges under sections 376, 376/109, 366 and 120B/366 I.P.C. before the Additional Chief Presidency Magistrate, Calcutta. The learned Additional Chief Presidency Magistrate after perusal of the case diary refused to take cognizance of the offences under sections 366 and 120B/ 366 I.P.C., as the offences appeared to have been committed outside his jurisdiction; he took cognisance of the charges under Section 376 and 376/109 I.P.C., and it may be mentioned that Chittaranjan Das and Ganesh Dey have been convicted at a Sessions trial of charges under Section 376 and Section 376/109 I.P.C. respectively.
3. A supplementary charge-sheet in respect of the charges under Sections 366A and 120B/366 I.P.C. was submitted before the Presidency Magistrate, Sri N. K. Sen who was holding the commitment Inquiry in respect of the charges under Sections 376 and 376/109 I.P.C., but the Presidency Magistrate by an order dated 5th October, 1959, refused to take cognisance, for want of territorial Jurisdiction. The High Court was moved against that order, but a Bench of this Court by an order dated 19th January, 1960 (in Cr. Rev. No. 1415 of 1959) upheld the order ot the Presidency Magistrate, observing that the prosecution might very well file a charge-sheet before the Magistrate having territorial jurisdiction over the offence.
4. Thereafter, instead of filing a charge-sheet, inspector Bamdeb Das on 29th February, 1960, filed an application purporting to be a petition of complaint in respect of charges under section 366 and 120B/366 I.P.C., before the Police Magistrate Alipore, against the petitioner Chittaranjan Das and three others. The Magistrate took cognisance and directed issue of warrants against the accused. After the appearance of the accused, the accused asked Tor copies of the statements and documents on which the prosecution wanted to rely, contending that the application filed on 29th February, 1960, by Inspector Bamdeb Das was virtually a report after investigation under Section 173 of the Code. The learned Magistrate by his order dated 22nd July, 1960, rejected the prayer. There was a motion Before the Sessions Judge, 24-Parganas, but the learned Sessions Judge by his order dated 19th August, 1960, agreed with the Magistrate that the procedure as laid down In sections 208 to 213 of the Code must be followed In the cases and not the procedure under Section 207A, and that the accused were not entitled to free copies In terms of Section 173 (4) of the Code. Hence this revisional application to this Court by the petitioner Chittaranjan Das.
5. A complaint for the purpose of proceedings governed by the Criminal Procedure Code is defined in section 4(1) (h) of the Code, as follows:--
"Complaint" means the allegation made Orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown has committed an offence, but it does not include the report of a police officer."
6. Cognisance of offences Is taken by Magistrate under Section 190 of the Code; Sub-section (1) Clause (a) provides that a Magistrate may take cognisance of an offence upon receiving a complaint of facts which constitute such offence; and Sub-section (1), Clause (b) provides that a Magistrate may take cognisance of an offence upon a report in writing of such facts made by any police officer. Before the amendment of 1923, Clause (b) provides for taking cognisance "upon a police report of such facts." As pointed out by a Bench of this Court in Prem Chand Khetry v. State , by the decision of various High Courts, the
expression "police report" as used in the Code came to acquire a special meaning, viz., a report made under section 173 of a cognisable offence, or of a non-cognisable offence which the police had been directed to investigate under Section 155 (2), after investigation under Chapter XIV of the Code; cognisance could be taken under Section 190 (1) (b) only on such a police report; other police reports were treated as complaints coming under Section 190 (1) (a). When the legislature substituted a more general expression in Clause (b) of Section 190(1), viz., "a report in writing of such tacts made by any police officer", all kinds of reports by police officers (of facts constituting an offence) came under Section 190 (1) (b); and since the amendment in 1923 therefore, a statement of facts constituting an ottence contained in an application by a police officer cannot be treated as a complaint as defined in Section 4(1) (h), but must be deemed to be a report by the police, of which cegnisance is taken under Section 190 (1) (b). In Tarapada Sarkar v. State , it was held that when a police, officer investigates a non-cognisable offence without obtaining before-hand an order from a Magistrate under Section 155(2), the report which he submits after investigation cannot be treated as one under Section 173 and so a Magistrate taking cognisance on such a report has to follow the procedure under Sections 252 to 258. Since the amendment of the Code in 1923, the report of the Police officer cannot even in such a case be treated as a complaint, though it be submitted in the form of a petition of complaint. In respect of a cognisable offence, it follows, with stronger reason, that a statement of facts constituting the offence, made by the police, cannot be treated as a complaint, in whatever form it may be made, but it must be treated as a report coming under Section 190 (l)(b). No further authority is needed in support of this proposition; but it may be mentioned that the point was dealt with by the Judicial Commissioner of Tripura in the case P. K. Subbiah v. State, AIR 1952 Tripura I it feeing held that there Is no material irregularity If a complaint Is filed Instead of submitting a charge-sheet in a case Investigated by the police; and that a complaint attended by a schedule of prosecution witnesses and other relevant documents, if any, comes within the purview of Section 190 (1) (b), it making no difference whether It is in the form of a report or a complaint. It would logically follow therefore that where the police submit their report after investigation under Chapter XIV of the Code, in me form of a complaint, the complaint should be treated as equivalent to a police report under Section 173.
7. Mr. Guptabhaya has referred to a Division Bench decision of this Court, State of West Bengal v. Ramesh Chandra Pal, Cr. Revn. No. 186 of 1960, D/- 28-11-1960 (Cal), to which 1 was a party, in support of his contention that even after the amendment of the Code in 1923, there may be a complaint by a police officer. But that was a decision made In connection with taking of cognisance by a Special Court constituted under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (Act. XXI of 1949). In the course of that decision, it was pointed out that in special circumstances, in spite of definition or "complaint" in Section 4(1) (h) of the Code, there might be a complaint filed by an Inspector of Police on which cognisance could be taken, e.g. in respect of an offence under Section 121 or 121A of the Indian Penal code, where the State Government has under section 196 ot the Criminal Procedure Code empowered an Inspector of Police to file a complaint. That an Inspector of Police is occasionally empowered to file such a complaint is clear from cases like: In re S. S. Batliwala, 39 Cri. Lj 938: (AIR 1938 Mad 758). In cases tried under the Code where the special provision of Section 196 does not apply, the definition of complaint in Section 4(1) (h) will prevail, and report of a police officer cannot be treated as a complaint. But the procedure of trial by a Special Court is governed by the special provisions contained in the Special Courts Act, and a special Court obtains jurisdiction to try a case on the case being allotted to it by the State Government for trial, as held by the Supreme Court in Bhajahari Mandai v. State of west Bengal , the jurisdiction of a Special Judge does not arise on his taking cognizance under Section 190 of the Code. Section 190 relates to taking of cognisance by Magistrate and does not apply to Special Courts, which are deemed to be Courts of Session, but which under section 5(1) of Act XXI of 1949 may take cognisance ot offences without the accused being committed to them. In the circumstances, in view of two decisions -- now overruled--that there must be a complaint before the Special Court to which a case has been allotted by the state Government, before the Special Court could take cognisance, it was held in Cri. Revn. No. 186 of 1960 D/- 28-11-1960 (Cal) that a statement of facts made by an Inspector of Police in the form of a petition of complaint could be treated as a complaint on which the Special court might take cognisance. In other words, in connection with proceedings before a Special Court, it was held that a complaint need not be limited by the strict terms of Section 4(1) (n), but could be given a wider meaning, as in a case coming under section 196 of the Code.
8. The above decision is therefore of no assistance in the present case, when we are concerned with cognisance taken by a Magistrate under the Code, and with the procedure for inquiry or trial under the Code and not under any special provision. In the present case, for reasons already indicated, the application by Inspector Bamdeb Das filed before the Police Magistrate, Alipori, must be deemed to be a police report; and the Police Magistrate must be deemed to have taken cognisance under Section 190 (1) (b) of the Code. It is true that even when cognisance is taken under section 190 (1) (b), the report may not be a pelice report under Section 173, e.g. in the case when the police officer has investigated a non-cognisable case without obtaining a prior order under Section 155(2); or where the investigation is held not under Chapter XIV of the Code but under some other law; or where the police officer because of his rank or territorial Jurisdiction is not competent to investigate the case. But where a police officer is competent to Investigate, and has held the investigation under Chapter XIV of the Code, the report submitted by him in whatever form must be treated as a police report under section 173.
9. Mr. Guptabhaya has advanced three reasons why the application by Inspector Bamdeb Das should not be treated as a police report under Section 173:-- viz,, (1) it is not in the prescribed form, (2) it is not submitted by the officer-in-charge of a Police Station, and (3) a charge-sheet or report under Section 173 having already been filed after the investigation before the Additional Chief Presidency Magistrate, Calcutta, a second charge-sheet could not be filed before another Magistrate.
10. The question of form is however not material; the application contains all the informations required by Section 173, e.g., the names of the parties, the nature ot the information and the names of the witnesses; the omission to use the prescribed form is only an irregularity that does not affect the question of jurisdiction.
11. As regards the submission of the application oy the Inspector of Police, Enforcement Branch, Calcutta, and not by the Officer-in-charge, Tollygiinge P. S., this also at the worst is only an irregularity. Under Section 157 of the Code, when an Officer-in-charge of a Police station receives information as to commission of cognisable offence, he may investigate the case himself, or depute any otner officer subordinate to him, to investigate; in the latter case, the report of the Officer investigating the case, sent through the Officer-in-charge, is treated as the report of the Officer-in-charge. Under Section 551 of the Code, Police Officers superior in rank to any officer-in-charge of Police Station may exercise the same powers throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his Station. Thus the Commissioner or the Deputy Commissioner of Police may direct that an investigation, whether or not spread over the jurisdiction of two or more Police Stations, be held by an Officer of a Special Branch or Enforcement Branch the report under Section 173 of the Code being submitted through the Officer-in-charge within whose jurisdiction the oftence was committed. In the present case, the investigation was held by Inspector Bamdeb Das but the charge sheet was submitted to the Additional Chief Presidency Magistrate by the Officer-in-charge of Amherst Street Police Station, i.e., the report was countersigned by him and submitted through him. In respect of the subsequent report submitted to the Police Magistrate, Alipore, it would have been proper to submit it through the Officer-in-charge, Tollygunge Police Station, within whose jurisdiction the conspiracy Is alleged to have been hatched and the girl was recovered; but the emission to do so is a mere irregularity, a failure to observe the strict form; this does not convert a report submitted by a police officer, having power to investigate and after investigation under Chapter XIV, into something other than a police report under Section 173 of the Code.
12. As regards the third point, there is no substance in the same. A police officer may in suitable cases submit a supplementary report after further investigation, or in rectification of a mistake; in the present case, the police did submit a supplementary report or charge-sheet before Sri N. K. Sen, the Presidency Magistrate who was in seisin of the case under Section 376 and 376/109, I. P. C.; when it was found that the Presidency Magistrate could not take cognisance in respect of the offence ot conspiracy to kidnap the girl for an immoral purpose, the conspiracy having been hatched outside his Jurisdiction, It would be perfectly legal for the investigating officer to submit a supplementary charge-sheet before the Police Magistrate of Alipore who had territorial jurisdiction over the offences alleged.
13. In view of the decisions of the Supreme Court, Purushottamdas Dalmia v. State of West Bengal and L. N. Mukherjee v. State of Madras , it must be held that the Presidency Magistrate had the jurisdiction to try the charge under Section 120-B/366 or 366-A, I. P. C., even though the conspiracy was hatched outside his jurisdiction. But at the time when the Presidency Magistrate' was invited to take cogni sance of the offence, in view of the Full Bench decision liban Banerjee v. State , he naturally had to hold that he had no jurisdiction; and in view of the same decision, the view was upheld by this Court in Cr. Rev. No. 1415 of 1959; the Supremo Court laid down the law on the point subsequent to tnese orders. In any case, the Magistrate having territorial jurisdiction in respect of the charge of conspiracy may alse take cognisance of it, for even when joinder of two charges for offences committed in different jurisdictions Is legal, separate enquiry or trial for the offends in the Courts having territorial jurisdiction is also legal.
14. There was therefore nothing to bar the filing ot a supplementary charge-sheet for the offences under Section 120-B/366 and Section 366, I. P. C. before the Police Magistrate, Alipore. It is difficult to understand how a complaint on the same facts could be filed if a supplementary charge sheet were legally barred,
15. Hence in my opinion, there is no substance in any of the three objections urged by Mr. Guptabhaya in the way of the application filed by Inspector Bamdeb Das being treated as a police report under Section 173 of the Code. To say that as it was not in form a police report under Section 173, the procedure prescribed by Section 20/-A would not apply, is to lay stress on the form and ignore the substance; and to do so would enable police officers to avoid the procedure prescribed by Section 207-A and Section 251-A, and escape the liability to furnish copies free of cost by submitting, even after full legal investigation, a report which in form is not a report under Section 173 i.e., by getting the police officer who investigaed the case, not being the Officer-in-charge, to submit a report direct to the Magistrate, instead of doing so through the officer-in-charge. It cannot be laid down that the Magistrate should not take cognisance in such a case; under Section 190 (1) (b), a Magistrate may take cognisance on any report in writing of the facts mad; by a police officer, as indeed the Police Magistrate, Alipore has done in the present case : this Court has not held and cannot hold that the cognisance was not legally taken. Hence it is necessary to lay down that in such cases, the Court ' must look to the substance and not the form. In substance, the application filed by Inspector Bamdeb Das before the Police Magistrate, Alipore is a report submitted by a police officer after full investigation under Chapter XIV; hence the petitioner is entitled to copies, free of cost ol the statements and documents mentioned in Sub-section (4) of Section 173 of the Code.
16. This Rule Is therefore made absolute; the learned Magistrate will follow the procedure laid down In Section 207-A of the Code, and will see that the petitioner nas got copies free of cost of the statements and documents on which the prosecution seeks to rely.
Amaresh Roy, J.
17. I agree with the order proposed by my Lord out on reasons which are not exactly similar as his. The question raised in this Revisional application is one of proce dure before the learned Magistrate in whose Court a case is now pending. The Rule in this Court was first heard by our learned brother D. N. Das Gupta J. who by a Judgment dated the 16th August, 1951 has referred the case for disposal by a Division Bench. The facts upon which the question arose shortly stated are these Upon an allegation that a girl named Sondhya Rani Das Gupta said to be a minor had been kidnapped an information was lodged with the police and an investigation started. During that investigation the girl Sondhya Rani was recovered and a report under Section 173, Cr. P. C. was submitted by the Police in the Court of Additional Chief Presidency Magistrate, Calcutta alleging offences under Section 366-A/120-B I. P. C. against Chitta Ranjan Das and three other persons including one Ganesh and also under Section 376, I. P. C. against Chitta Ranjan and 376/109, I. P. C., against Ganesh. The learned Additional Chief Presidency Magistrate, Calcutta by an order dated the 9th September, 1959 took cognizance of alleged offences against Chitta Ranjan ana Ganesh and transferred that case to Shri N. K. Sen, Presidency Magistrate, 8th Court for disposal. The other two persons Moni Bala and Anil Chatterjee were discharged by the same order of the learned Additional Chief Presidency Magistrate holding that the said Court had no territorial jurisdiction in respect of the offence alleged against those two persons. Before N. K. Sen, Presidency Magistrate an application was made on behalf of the prosecution praying for processes against those two persons Moni Bala ana Anil Chatterjee but that prayer was refused by an oraer dated the 22nd September, 1959. Two days thereafter, that is, on 24th September, 1959 police submitted a supplementary chalan against those two persons and the learned Presidency Magistrate thereupon by his order dated the 5th October, 1959 again refused to issue process against those two persons. Against that order of the learned Presidency Magistrate an application was made to this Court by the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal and a Rule issued. At the hearing of that Rule his Lordship N. K. Sen, J. discharged the Rule on the view that on the authority of the Full Bench decision in the case of , it could not be said that the Presidency
Magistrate's Court had territorial jurisdiction to take cognizance of an offence of conspiracy which did not take place within his jurisdiction. This order of this Court was made on 19th of. January, I960. It may be mentioned that in that judgment N. K. Sen, J. observed;
"If it is the prosecution allegation that there was a conspiracy to commit abduction the prosecution may very well file charge-sheet before the Magistrate having territorial jurisdiction over the offence."
I may also mention here that in the recent case of
Supreme Court has held that the Full Benon decision of this Court in Jiban Banerjee's case , is not good law. On 29-2-1960 Bamdeb Das, an Inspector of Police Enforcement Branch, Calcutta filed a petition of complaint in the court of Police Magistrate, Alipore against four persons including Chitta Ranjan alleging offences under Sections 368/120-B and 366, I. P. C. In that petition of complaint reference was made to the order of this Court dated the 19th January, 1960 and a copy thereof was enclosed. Upon that petition of complaint learned Police Magistrate directed issue of process against the four accused persons named therein, one of whom, as I have already said, is the present petitioner Chitta Ranjan Das. All tiie accused persons surrendered before the learned Magistrate and they have been released on hail. It appears from the order-sheet of the learned Magistrate that on 28th of June, 1960 on behalf of the defence a prayer was made for supply of copies, obviously copies of documents mentioned fn Sections 173(4), Cr. P. C. and 207-A(3), Cr. P. C., and the learned Magistrate said in his order dated the 28th June, 1960 "defence prays for supply of copies, I.O. to arrange for copies on 21st of July". By that order, dated the 25th July, 1960 had been fixed for evidence. The learned Magistrate heard both the parties on the point of procedure to be adopted in the case for enquiry and supply of copies on 21st July, 1960 and by his order dated the 22nd July, 1960 held:
"As this is a complaint case and not a case instituted on a Police report the procedure laid down under Section 208, Cr. P. C. should be followed and not under Section 207-A, Cr. P. C. The accused may take copies of statements on payment of prescribed fees under the two rules. They are only entitled to get copies of petition of complaint free of cost and nothing else."
Against that order Chitta Ranjan Das moved the Court of Sessions Judge in Criminal Motion No. 172 of 1960 on 29th July, 1960. But that application was rejected by the learned Sessions Judge by his order dated the 19th August, 1960 holding that the Magistrate took cognizance of the offence of conspiracy otherwise than on a Police report. Thereupon the petitioner Chitta Ranjan Das moved this Court and obtained the present Rule praying that the order of the learned Sessions Judge dated the 19th August, 1960 and the order of the learned Magistrate dated i.e 22nd July, 1960 be set aside and rescinded.
18. From the facts recounted it clearly appears that the proceeding out of which the present Rule has arisen is a new proceeding that has commenced in the Court of the Police Magistrate of Alipore on 29th of February, 1960. It is not a continuation of the other proceeding in the Court of the Presidency Magistrate, Calcutta which was instituted upon a Police Report as a result of an investigation under Chapter XIV, Cr. P. C. The whole question in the present Rule is whether this is a "proceeding instituted on a Police report" within the meaning of Section 207 (a), Cr. P. C. so as to attract the procedure specified in Section 207-A or whether it is a "proceeding instituted otherwise than on a Police report" within the meaning of Section 208(1), Cr. P. C. In support of the Rule Mr. Dwijendra Math Das has relied on the definition in Section 4 (1) (h), Cr. P. C. which says that complaint "does not include the report of a Police Officer". He, therefore, argues that the petition that was tiled by Bamdeb Das who is admittedly a Police Officer could not be a 'complaint' within the meaning of Section 190 (1) (a) and It can only be a report in writing of tacts made by a Police Officer as mentioned In Section 190 (1) (b), Cr. P. C. In that view of the matter according to Mr. Das's contention the cognizance of the case having been taken by the learned Magistrate under Section 190 (1) (b), Cr. P.C. it should be held that this is a "proceeding instituted upon a Police report" within the meaning of Section 207-A (a) and Section 207-A (1), Cr. P. C. On behalf of the State Mr. Guptabhaya has contended that there is no warrant for the assumption that anything that emanates from a Police Officer must be a report and cannot be a complaint. According to Mr. Guptabhaya's argument what Section 4 (1) (h), Cr. P. C. excludes from the definition', of complaint is "the report of a Police Officer" only, ana it does not exclude a petition of complaint when instead of making a report, the Police Officer makes a petition of complaint For this contention of his Mr. Guptabhaya has relied on an unreporfed Bench decision of this Court in Criminal Revn. No. 186 of I960, DA 28-11-1960 (Cal), the judgment in which was delivered by my learned brother S. K. Sen, J. and the other learned member of the Bench K. C. Sen, J. concurred. The question in that case was one of taking cognizance of an offence under Act 11 of 1947 triable by a Special Court under Act XXI of 1949. Though their Lordships were not considering in that case directly the question involved In the present case, their Lordships did consider Section 190, Cr. P. C. and also definition in Section 4 (1) (h), Cr. P. C. and held :
''Accordingly, it is clear that there may be a complaint filed by an officer of police and that such complain: may be distinguished from a report in writing of the facts made by a police officer falling within Section 190 (1) (b) of the Code of Criminal Procedure."
No doubt the reasons underlying that decision support Mr. Guptabhaya's contention to a large extent. Apart from the authority of that decision under Act XXI of 1949, the question that has arisen in the present case can be decided on the authority of the two well-known decisions of this Court in the cases of Manik Chand Chowdhury v. State and Prem Chand Khetry , which are mere apposite and
directly on the point. In delivering the judgments in Manik Chand's case at page 109 (Cal WN) : (at p. 334 of AIR) of that report and also at page 202 (of Cal WN) : (at pp. 215-216 of AIR) In Prem Chand Khetry's case , Chlet Justice Chakravartti has very
clearly pointed out the distinction that is to be kept in mind between "a Ponce report" and "a report by a Police Officer".
it was pointed out by the learned Chief Justice that even before the amendment of the Criminal Procedure Code in 3323, the words "Police report" had by a long series of Judicial decisions acquired a technical meaning to be a report under Section 173, Cr. P. C. after completion ot MI investigation under Chapter XIV of the Code. It was also pointed out that in the amendments introduced in 1923 the legislature replaced the words "Police report" in Section 190 (1) (b), Cr. P. C. by the elongated phrase "a report in writing of such facts made by any Police Officer" but in other sections like Sections 169, 170 and 173, Cr. P. C. the words "Police report" were retained. the effect of such adherence to the two distinct languages has been analysed by Chief Justice Chakravarty in those two judgments and his Lordship further pointed out that when by the amendments introduced in 1956 the Parliament in Sections 207 and 207-A (1) used the word "a Police report" as distinct from the other phrase "report by a Police Officer", it must have to be understood that be those two sections the Parliament has intended the same restricted meaning as the judicial decisions had given to the word "Police report" that is, a report under Section 173, Cr. P. C. after completion of an investigation under Chapter XIV of the Code and not "any report of the Police Officer", nor "a report in writing of such facts made by any Police Officer". If this effect Is kept in mind then it necessarily follows that when a Magistrate takes cognirance under Section 190 (1) (b), Cr. P. C. "upon a report in writing of such facts made by any Police Officer" it is not necessarily a "proceeding instituted on a Policereport" within the meaning of Section 207 (a) and Section 207-A, Cr.P.C. as those sections now stand. Chief Justice Chakravartti also pointed out in that very judgment that "institution of a proceeding" is not the same thing as taking cognizance by a Magistrate of an offence under Section 190, but is an event preceding the action of the Magistrate, t respectfully agree that a Magistrate takes cognizance after a proceeding has been instituted either by a petition of complaint or by a report of a Police Officer. The report of a Police Officer is the genus of which "Ponce report", understood in the technical sense abovementioned is only a specie. Therefore, when a Magistrate takes cognizance under Section 190 (1) (b). Cr. P. C. upon a report in writing of such facts made by any Police Officer it may be or may not be "a proceeding instituted upon a. Police report." The same view appears to have been taken by my learned brother Sen, J. sitting singly in the case .
19. It must be conceded that effect of this interpretation has given rise to an apprehension that the Police even after starting a case upon a First Information Report under Section 154, Cr. P. C. and upon completion of the investigation under Chapter XIV of the Code may purposefully refrain from making a report under Section 173, Cr. P. C. which will be a "Police report", but may choose to make a complaint, compelling thereby the Magistrate, upon taking cognizance on such complaint, to follow the procedure of a proceeding instituted otherwise than on a Police report. But to my mind such apprehension is not a real apprehension at all. Because, although a proceeding may be instituted either by a complaint or a Police report, the case does not commence until the Magistrate has taken cognizance of the offence. If upon completion of an investigation under Chapter XIV a report under Section 173, Cr. P. C. is not submitted as is the duty upon Police enjoined by the Code, the Magistrate is not compelled to take cognizance on a complaint filed by the Police Officer or even upon a report of facts by the Police Officer which is not a "Police report" and the Magistrate may insist that the Police performs the duty of submitting the report under Section 173, Cr. P. C. and only when such "Police report" is submitted he may take cognizance ensuring thereby Section 207-A or Section 251-A to be applicable. Importance of this function of the Magistrate has been emphasised and elaborated in the Full Bench decision of this Court in the case of A. K. Roy v. State of WesT Bengal, . If the Magistrate discharges the function as the active authority by applying his mind to the particular facts in each case, then the apprehension that the Police may compel the Magistrate to follow one particular procedure instead of another should not ana cannot arise at all. Mr. Das has emphasised that in the case before us a First Information Report had been recorded upon statement of the girl (alleged to have been abducted) within the territorial jurisdiction of Tonygunge Police Station or in Kanchrapara which are both within 24 Parganas and that an investigation had been carried out by the Police Inspector, Bamdeb Das; yet instead of Tiling a report under Section 173, Cr. P. C. by the officer in charge of the Police station where the First Information Report had been recorded. Inspector Bamdeb Das has chosen to file before the Magistrate a petition of complaint. According to Mr. Das's argument this should not be permitted and the document filed before the Police Magistrate, Alipore should be taken to be a "Police report". As I have said above, in the particular facts of 'the present case the Magistrate might have insisted that an investigation under Chapter XIV 'having been completed a report under Section 173, Cr. P. C. should be filed by the Police before he would take cognizance under Section 190, Cr. P. C. Whether the Magistrate should have done so or whether the Magistrate not having done so the proceeding commenced in the Court of the Police Magistrate, Alipore has suffered any legal defect or impropriety is not in question in the present Rule. The Magistrate having taken cognizance under Section 190 (1) (b), Cr. P. c. "upon a report in writing of such facts made by any Police Officer" in the form of a complaint the only question in the present Rule is which of the two procedures should be followed, in strict view of law Mr. Guptabhaya has argued that the Magistrate having taken cognizance on what is not "Police report", the proceeding in this present case can be thought to be one "instituted otherwise than on a Police report" and the consequences enjoined by Section 207, Cr. P. C. would follow, Clause (a) of that Section not being applicable and clause (b) being definitely applicable.
20. 1 do not see any force or valid reason behind Mr. Guptabhaya's contention that Police having submitted a charge-sheet before the Calcutta Presidency Magistrate, it was not possible to submit another charge-sheet betore the Polios Magistrate of Alipore and if Police had submitted one, that would have been a supplementary charge-sheet arising out of same investigation under Chapter XIV Cr. P. C. This argument is based on a misapprehension arising from misappreciation of the Supreme Court decision reported in Tara Slngh v. The State , where second or supplementary charge-sheet in tne
same case though deprecated was held not to vitiate tne trial. In the present case if a charge-sheet had been submitted to the Police Magistrate, Alipore, that would not be a charge-sheet In the same case because tne necessity had arisen as the particular offences of which present case before Police Magistrate Alipore' was being asked to take cognizance had been thought to be not within the jurisdiction and competence of the Calcutta Presidency Magistrate to take cognizance of and to try. The two cases and proceedings before the two Magistrates were not the same. Therefore no apprehension of a supplementary or second charge-sheet should have arisen. in my view out of same F. I. R. and investigation tacts of different offences triable in different territorial jurisdictions may very well and do arise and in such circumstances it is proper for the Police to submit more than one report under Section 173, Cr. P. C. to each of Magistrates having jurisdiction and competent to try such different offences, giving rise to different and separate proceedings, though F. I. R. and investigation were same, I do not find any illegality or impropriety in that.
21. There is force in Mr. Das's contention that a report of a Police Officer is not included in the definition of complaint. Because the exclusion made in the definition in Section 4 (1) (h) is not merely of a "Police report" but is of the larger thing the "report of a Police Officer", on the other hand Mr. Gupta Bhaya's contention that a Police Officer instead of making a report may make a petition of complaint finds support in the Division Bench judgment I have already referred to. Even assuming that everything that emanates from a Police Officer is a repon by that Police Officer and so is excluded from the definition of complaint, the only effect thereof, is that in taking cognizance upon such material the learned Magistrate takes cognizance under Section 190 (1) (b) and not under Section 190 (1) (a), Cr. P. C. Even then, as 1 have already mentioned, all proceedings in which cognizance has been taken under Section 190(l)(b) is not a "proceeding instituted upon a Police report". In the present case tne petition upon which cognizance has been taken by tne learned Police Magistrate is not strictly a report under Section 173, Cri. P. C. because it has neither been made by an Officer In charge of any Police station nor is it in trie form prescribed for such a report on completion of investigation under Chapter XIV. It has been suggested during argument before us that by Section 551, Cri. P. C., Police Officers superior in rank may exercise the same powers throughout the local area to which they are appointed as may be exercised fay such officer within the limits of his situation and the present complainant Bamdeb Das as an Inspector of Police had himself conducted an investigation under Chapter XIV and as a result thereof a challan had been submitted in the Court of Presidency Magistrate at Calcutta on the same facts, From all that it has been argued that Bamdeb Das though not an otficer-in-charge- 011 a Police Station must be deemed to be empowered to exercise a function of submitting a "Police report" under Section 173, Cr. P. C. On the materials available on the records in the present case, however, it cannot be said that Bamdeb Das, an Inspector of Police of the Enforcement Branch, Calcutta is an officer superior in rank to an officer-in-charge of a Police Station in 24-Parganas. Moreover, even if he were so, Section 551, Cr. P. C. does not compel but only empowers exercise of powers. It has been held by this Court in the case of Emperor v. Maturanath De , that 'may1 in Section 551, Cr. P. C. does not mean "must". A superior Police Offices who is empowered and enjoined with the duty of submitting a "Police report" upon completion of an investigation under Chapter XIV to a Magistrate having territorial jurisdiction is not, in my view, disabled by any provision in the Code from lodging a petition of complaint to another Magistrate in another district having territorial jurisdiction in respect of different offences although such other offences may be alleged to have been committed by the same persons arising out of same set of facts. It was therefore possible to think that the petition that was tired by Bamdeb Das in the Court of Police Magistrate, 24 Parganas could not strictly be a "Police report" under Section 173, Cr. P. C. and that the present proceeding is not "a proceeding instituted upon a Police report" within me meaning of Section 207 (a) and 207-A, Cr. P. C. Even if that petition cannot be a 'complaint' within the definition of Section 4(l)[h), Cr. P. C. it could be taken to be a "proceeding instituted otherwise than on a Police report" within the meaning of Section 208, Cr. P. C. One cannot overlook that the particular language used in Section 208, Cr. P. C. by the Parliament is not a "proceeding instituted upon a complaint" but is "proceeding instituted otherwise than on a Police report." In Section 417 (3) introduced by the same amendment the phrase "case Instituted upon a complaint" has been used. Significance of the particular language occurring not only in Section 208 but also in Section 252 and the language used in Section 417 (3), Cr. P. C. lends support to the view that although cognizance is taken in a particular case under Section 190 (1) (b), Cr. P. c. it may not be "a proceeding instituted upon a Police report" and may be "a proceeding instituteo: otherwise than on a Police report, according to the strict view of law.
22. But on the particular facts of this case, It is abundantly clear that the Police Officer Bamdeb Das had himself completed the investigation under Chapter XIV of [he Code and on the same facts had not only submitted B charge sheet under Section 173, Cr. P. C. through the officer-in-charge of Amherst Street P. S. in the court of the Presidency Magistrate, Calcutta but he also similarly submitted a supplementary charge sheet against these accused persons for the offences which are subject-matter of the present proceedings. Only because the Presidency Magistrate did not take cognizance of these offences tor what was thought to be a difficulty of territorial Jurisdiction, necessity of commencing a proceeding in the court of Police Magistrate at Alipore was thought of. In doing so however, Inspector Bamdeb Das filed a petition In the form of a complaint instead of submitting a charge-sheet only on a misapprehension that to do so may not be strictly legal. For all those reasons instead of adhering to the form the substance should properly be looked to and it is proper on the particular facts of this case to treat the petition submitted by inspector Bamdeb Das as a report by a Police Officer upon investigation under Chapter XIV of the Code, that is, a Police report under Section 173, Cr. P. C. In that view of the matter Section 207-A, Cr. P. C. would apply to this case and the accused persons should be given copies of document mentioned in Section 173 (4), Or. P. C. For that reason I agree with in order proposed by my learned brother.