The object of incorporating Section 173 (8) of CrPC was to give investigating agencies the power to put forward new evidence before the court after submitting the final report. But it is being misused

~By Aabad Ponda

There can be no fundamental right more precious than that of freedom and personal liberty. This is dear to the very existence of every human being. Liberty to a person is akin to light to the eyes, sound to the ears and smell to the nose. In the case of blind, deaf or otherwise impaired people who cannot enjoy these basic senses, there is always a sense of extreme uneasiness. Similarly, arrest and detention in custody is always extremely painful and difficult to endure for anyone.

The legislature has incorporated the provisions of Section 167 in the Criminal Procedure Code (CrPC). This provision inter alia stipulates that where investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, the maximum period for which a person arrested can be detained in custody is 90 days. In other cases, the maximum period is 60 days. On expiry of this maximum period, if the final report or chargesheet is not filed, then the accused has a statutory right to be released on bail. This is an indefeasible right and absolute in all senses.

Under the old CrPC, 1898, there was no analogous provision equivalent to Section 173(8) of the CrPC, 1973. Section 173(8) was engrafted by the legislature pursuant to the 41st Law Commission report which reads as follows: “14.23. A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot re-open the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused.”

PROVISION FOR POLICE

The object of incorporating Section 173(8) was to give the investigating agency the power to put before the court new evidence which it comes across even after filing the final report or chargesheet under Section 173(2) of the CrPC, 1973. This provision is more in the nature of a provision which helps the police to investigate or file a supplementary chargesheet if new evidence is unearthed which has a direct bearing on the innocence or guilt of an accused.

Under the old CrPC, as there was no specific provision authorising this action by the police, it caused prejudice to a fair trial as many courts did not permit the police to bring on record new evidence which would have a direct bearing on the guilt or innocence of an accused and also have an impact on the truth being disclosed as a result of the same. The outcome was that the ultimate purpose of conducting a criminal trial—the quest for truth—was frustrated by mechanically shutting out such new evidence. This resulted in complete failure of justice.

To overcome this as well as conflicting approaches of various high courts in the matter of whether such new material can be taken on record for want of a specific provision, the legislature incorporated Section 173(8) in the current CrPC, 1973. The said provision was incorporated only to keep alive the right to file a supplementary charge-sheet in the event of new material surfacing post the filing of the chargesheet and to incorporate a specific provision permitting the same in order to prevent rejection of such new material for want of a specific provision. This was particularly needed as unlike Section 151 of the Civil Procedure Code, courts on the criminal side, including that of the magistrate and the sessions court (all of which are subordinate to the high court), do not possess powers where they can resort to methods other than those expressly specified in the CrPC.

JUSTICE NOT DONE

Thus, though the incorporation of Section 173(8) of the CrPC, 1973 was done with the pious aim of securing a fair trial, achieving the quest for truth and doing complete justice, in reality this is not the case. The investigating agencies have a penchant for filing a set of documents and styling them as a final report just before the statutory period stipulated under Section 167(2) of the CrPC is about to be complete, only to prevent the absolute and indefeasible right from being exercised in favour of an accused in custody.

The investigating agency, in complete defiance of the object of Section 173(8), goes on making a prayer in almost every case where it files a final report that the probe is still going on and to allow this to go on for time immemorial. There is no period stipulated for exercising the power under Section 173(8). In practice, the police succeed in extending the period of detention by filing incomplete charge-sheets and banking upon the provisions of Section 173(8) to do this. This is nothing but a blatant violation of Article 21 of the Constitution which guarantees a fundamental right to life and liberty for all persons, whether citizens of India or otherwise.

Without there being any reference to new material surfacing, investigating officers in their final reports say that the investigation under Section 173(8) is at a crucial stage. This crucial stage remains undefined nor can it be questioned in any court of law as the limitation is not prescribed for completion of such investigation.

This results in the entire justice delivery system being a casualty as criminal trials do not kick off early, resulting in delay in granting bail because the matter remains at a crucial stage for long durations. This leads to the accused being in prison longer and due to the extreme overcrowding there, crime breeds infectiously. It only results in further pressure on criminal courts and makes the justice delivery system slow, supine and spineless. It virtually handicaps the provisions of law in the CrPC, 1973, like Section 167(2) and grant of mandatory, statutory bail.

UNFAIR APPROACH

Section 173(1) prescribes that every investigation under Chapter XII of the Code shall be completed without unnecessary delay. The right to speedy trial is handicapped because of this one-sided, unfair and biased approach of the investigating agencies which have made this the rule rather than the exception.

In spite of crime becoming more complex than it was a couple of decades ago and increasing with the passage of time, collection of evidence is becoming more cumbersome because of the use of electronic documents and the impact of technology on the average person’s life. Yet, the legislature has not increased the statutory period to complete the investigation in cases governed by Section 167 of the CrPC.

The resultant effect is that the police get away with doing something that drastically infringes on the rights of the accused. This is in contravention of the duties cast upon the police, with the result that the fundamental rights of life and liberty become casualties. Though this is the most precious fundamental right under the Constitution, it is most easily defaced and defiled in this manner.

The legislature and the Supreme Court and high courts must look into this serious problem as it has a dangerous cascading effect.

The need of the hour is to see how such misuse is taking place all over the country, fathom the problem and immediately suppress this unhealthy practice. Incomplete chargesheets should not be accepted and extension of the statutory period of completion of investigation by wrongly interpreting Section 173(8) should not be permitted.

—The writer is an advocate, Bombay High Court, practicing on the criminal side