Allahabad High Court
Dharam Singh And Another vs State Of U.P. And Others on 8 January, 2010
A.F.R Court No.26 (Reserved) Criminal Misc. Application No. 29442 of 2009 Dharam Singh and another......................................................................Applicants Versus State of U.P. and others.................................................................Opposite Parties Hon. Ram Autar Singh,J Heard Sri Vivek Prasad Mathur, learned counsel for the applicants, learned AGA for O.P. No. 1 and perused the record.
This application has been moved under section 482 Cr.P.C. with prayer to quash order dated 6.11.2008, passed by Chief Judicial Magistrate, Mahoba, in criminal case no. 321 of 2004 and order dated 12.10.2009, passed by Sessions Judge in Sessions Trial No. 184 of 2008 (State Vs. Dharam Singh and others).
The brief facts of the case as mentioned in the record are that in the year 2003, a case was registered against applicants Dharam Singh as well as four other family members, under section 302/120-B IPC at P.S. Kotwali, District Mahoba at crime no. 966 of 2003, on the basis of report lodged by Ram Pratap Singh to this effect that his sister was murdered by her Jeth (applicant no. 1), Dewar (applicant no. 2) in connivance with her husband, father-in-law, sisters-in-law and also the son of the applicant.
The learned counsel for the applicants has contended that opposite party no. 3 Ram Pratap Singh has falsely implicated the entire family of the applicants as the case is based on circumstantial evidence, but prior to the date of alleged (2) incident, the applicants were already in jail in some other case registered against them at a different police station namely Baberu and the opposite party no. 3 has admitted this fact in his FIR and on this ground both the applicants have been granted bail in this case of murder.
The learned counsel for the applicants has further submitted that on 24.3.2004, the applicant no. 1 moved an application before the DIG Range, Chitrakoot Dham, Banda requesting him to transfer the investigation of the case crime no. 966 of 2003, under section 302/ 120-B of IPC to any other police station as the Investigating Officer was harassing them and the applicants had no hope of fare investigation. The DIG Range, Chitrakoot Dham, Banda vide his letter dated 25.3.2004 directed the Superintendent of Police, Mahoba to immediately transfer the investigation of criminal case no. 966 of 2003 along with all relevant documents to Superintendent of Police Hameerpur and the investigation of above case was transferred to Hameerpur and SI, Faiyyaz Ahmad was appointed as Investigating Officer on 15.4.2004 and directed to submit his report within one month. But the previous Investigating Officer of District Mahoba submitted a chargesheet dated 22.3.2004 and the Chief Judicial Magistrate, Mahoba took cognizance of the case on 27.3.2004. The applicants then approached this Court by way of filing a Criminal Misc. Application No. 10838 of 2004 with prayer to quash the chargesheet dated 22.3.2004 and this Court disposed of the said application with this direction to the court below that since the matter is under investigation, therefore before framing the charges the court concerned shall await the report of the Investigating Officer, Hameerpur in terms of the order dated 25.3.2004, passed by the DIG Range, Chitrakoot Dham, Banda. The Chief Judicial Magistrate called for the progress report which was to be submitted by SI, Faiyyaz Ahmad, Investigating Officer of District (3) Hameerpur and in pursuance of same Superintendent of Police, Mahoba also sent a letter to SHO, Mahoba to submit the details about the case by 3.10.2008 before the Chief Judicial Magistrate. The Chief Judicial Magistrate vide order dated 6.11.2008 committed the case no. 321 of 2004 (State Vs. Dharam Singh and others) to the court of Sessions, Mahoba for trial. The applicant no. 1 then moved an application 18 Kha under section 173(8) Cr.P.C. on 20.7.2009 before the Sessions Judge, Mahoba in Sessions Trial No. 184 of 2008 (State Vs. Dharam Singh and others) with prayer to proceed with the case only after further investigation being concluded by SI, Faiyyaz Ahmad. No report has been submitted by SI, Faiyyaz Ahmad, Investigating Officer so far. The Sessions Judge vide order dated 12.10.2009 has rejected the application no. 18 Kha moved by the applicants under section 173 (8) Cr.P.C.
The learned counsel for the applicants has vehemently contended that the Chief Judicial Magistrate, Mahoba has committed the case to the Court of Sessions vide his order dated 6.11.2008 in violation of the order passed by this Court as well as Sessions Judge has rejected the application of the applicants without perusing the complete record as the report of SI, Faiyyaz Ahmad has not yet been submitted and thus both the orders are liable to be quashed.
The learned counsel for the applicants has further cited the extract of the order dated 7.10.2004, passed by this Court in Criminal Misc. Application No. 10838 of 2004 as below:
"Considering the submissions and the allegations made in the First Information Report vide Annexure-1 of the affidavit, there is no question of quashing the same and the charge-sheet vide Annexure-1 of the affidavit as the allegations are there against the applicants for the alleged offence vide case no. 321/2003 (case crime no. 966/2003) State Vs. Dharam Singh and (4) others, under Sections 302 and 120-B IPC, P.S. Kotwali, Mahoba, District Mahoba and the charge-sheet has already been submitted in this case. Since the matter is under investigation, however, the court concerned shall await the report in terms of the order dated 25.3.2004, passed by DIG, vide Annexure-3 of the affidavit before framing the charges in this connection".
A perusal of above order goes to snow that the learned Chief Judicial Magistrate has not violated any order passed by this court as he has simply committed the case to the court of sessions for trial and he has not proceeded with the case to frame the charges against the applicants.
So far as this question is concerned that the learned Sessions Judge rejecting the application 18 Kha, moved by the applicants has proceeded with the case under section 226 Criminal Procedure Code, there must be some time limit for subsequent Investigating Officer to submit his report. It transpires from the record that DIG Range transferred further investigation of the case to Superintendent of Police, Hameerpur vide his order dated 25.3.2004, who in turn directed SI, Faiyyaz to proceed with further investigation of the case. The report was to be submitted by SI Faiyyaz Ahmad within one month vide order dated 25.3.2004, passed by DIG Range. The period of more than 5 years has already elapsed. It was not proper on the part of the court below to wait for the report of subsequent Investigating Officer for an indefinite period keeping the disposal of above case in abeyance without any proper reason or cause, while the previous Investigating Officer completing the investigation of case had already submitted charge-sheet in the court concerned on 22.3.2004.
The Apex Court in Kanhaiya Prasad Versus State of Jharkhand 2008 (4) East Criminal Code, at page 45 has observed that there is no provision (5) under the Code of Criminal Procedure under which the trial of a case, in which the police has already submitted final form under section 173 (2) of Code can be stayed or can be kept in abeyance, even after the investigating agency has taken up the further investigation in the matter under section 173 (8) of the Code.
It appears from the order passed by the learned Sessions Judge that on behalf of State the objections were filed against application 18 (Kha) to this effect that SI, Faiyyaz Ahmad conducted investigation of the case during the period from 15.4.2004 to 13.8.2004 and found no role of accused Rameshwar, Suneeta Singh and Man Singh in commission of offence and thus he completed his investigation. The learned Sessions Judge on the basis of case diary produced before him concluded that SI, Faiyyaz Ahmad completed investigation of the case on 28.5.2004 holding that no evidence was found against Rameshwar, Suneeta Singh and Man Singh and thus he complied with the orders passed by DIG.
The learned Sessions Judge discussing the facts of the case has relied on Shyam Charan Dubey Vs. State 1989 (1) Crimes 407. The learned counsel for applicants has relied on Manoj Agrawal Vs. Shashi Agrawal (2009) 6 SCC 385 wherein the Apex Court has held that when this Court has directed C.B. C.I.D. to complete the investigation, it is obligatory on its part to complete the investigation and submit an appropriate report to the Court. The Apex Court has relied on Ram Lal Narang Vs. State 1979 SCC (Crl.) 479, wherein it has been held that it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light. Notwithstanding that a Magistrate has taken cognizance of the offence upon a police report submitted under section 173 of Criminal Procedure Code, the right of the police to further investigate, is not exhausted and the police can exercise such right (6) when fresh information comes to light.
The Apex Court in Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj Vs. State of A.P. reported in (1999) 5 SCC 740 has observed that power of the police to conduct further investigation, after laying final report, is recognised under section 173 (8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation.
The Apex Court in Rama Chaudhary Vs. State of Bihar 2009 (65) ACC 962 has observed that mere reading of provision of section 173 makes it clear that irrespective of the report under sub-section (2) forwarded to the Magistrate, if the officer-in-charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with further report with regard to such evidence in the form prescribed. The above provision also makes it clear that further investigation is permissible, however, re-investigation is prohibited. The law does not mandate document of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of a chargesheet is statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible. There is no requirement under law to take prior permission of the Magistrate for further investigation. It can be done even after filing of chargesheet.
In the present case the police does not appear to have informed the court having jurisdiction and sought formal permission for further investigation. Even then the subsequent Investigating Officer Faiyyaz Ahmad SI, appears to have conducted further investigation and completed the same holding that no evidence has been found against Rameshwar, Suneeta Singh and Man Singh.
(7)
In view of above facts and circumstances of the case, the learned Sessions Judge has not committed violation of any order passed by this Court in above Criminal Misc. Application No. 10838 of 2004 and no illegality, irregularity or error has been committed by the learned trial judge in rejecting application 18 (Kha) and proceeding with sessions trial in accordance with law.
The learned Sessions Judge has rightly rejected application 18 (Kha) and proceeded with the above Sessions Trial in accordance with provision of Section 226 of Criminal Procedure Code. The impugned orders passed by learned Chief Judicial Magistrate and Sessions Judge are perfectly justified and do not require any interference. Such delaying tactics being adopted by litigants are liable to be curbed in order to impart justice to aggrieved persons. This application moved under section 482 of Criminal Procedure Code with sole purpose to delay the trial of the applicants being totally misconceived and devoid of merits is dismissed. The trial court is directed to proceed with the case expeditiously and decide the same preferably within six months.
The copy of this order is directed to be sent to the learned Sessions Judge, Mahoba for immediate compliance.
Dated: 8.1.2010 AR (8) (9)