Gujarat High Court
Pramodbhai Chaturbhai Patel vs State Of Gujarat on 21 March, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.RA/636/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 636 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PRAMODBHAI CHATURBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance :
MR AJAYKUMAR CHOKSI, ADVOCATE for the Applicant(s) No. 1
MS ADITI A CHOKSI, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM HONOURABLE MS JUSTICE SONIA GOKANI
:
Date : 21/03/2017
CAV JUDGMENT
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1. The applicant herein is the original complainant who has lodged a first information report being IC.R.No.322 of 2006 with Satellite Police Station for commission of the offences punishable under sections 143, 147, 148, 149, 395, 427 and 447 of the Indian Penal Code and section 135 of the Bombay Police Act. Prior to lodgment of the said first information report, an application was given by the applicant to the very Police Station apprehending forcible dispossession from the property of his wife by the respondentsaccused. It is the case of the applicant that his apprehension appears to be genuine and the respondentaccused made serious attacks with deadly weapons and two persons from the side of the applicant received grave injuries.
2. Subsequently, the offences under sections 307 and 397 of the Indian Penal Code, so also under section 25(1B)(a) of the Indian Arms Act, came to be added in the report dated April 02, 2006, submitted by the Investigating Officer. It is the grievance of the applicant that the investigation Page 2 of 47 HC-NIC Page 2 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT was not carried out in right direction and the Police Department was handinglove with the respondentsaccused. Several representations made to the higher officers failed to the deaf ears. Various instances have been given to substantiate such allegations. First and the foremost grievance of the applicant is that allegedly forged documents were used as genuine documents by one of the accusedKanubhai C. Bharwad and on the strength of which he filed the Civil Suit. They were not collected during the course of investigation. Likewise, the revolver of the applicant which was allegedly robbed away by the accused and the vehicle used in the commission of the offence were not recovered/ discovered. It is after many attempts that the accused were arrested.
3. After a number of representations, the investigation was transferred to the State CID Crime, Gandhinagar. After such transfer, the warrant was issued against the said Kanubhai Bharwad under section 70 of the Code of Criminal Page 3 of 47 HC-NIC Page 3 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT Procedure, 1973, and his arrest on May 03, 2006, against the present applicant and others, the first information report came to be lodged being IC.R. No.450 of 2006 with Satellite Police Station, Ahmedabad, for the offences punishable under section 143, 148, 149, 395, 497 and 307 of the Indian Penal Code and section 135(1) of the Bombay Police Act as well as section 25(1B)(a) of the Indian Arms Act. It is also averred that the Investigating Officer concluded that the said accused Kanubhai Bharwad and others were not the owners/ purchasers of the land in question being the land bearing Survey Nos.1252 and 1253 situated at village Vejalpur. To establish their possession over the land, the assault was made for which the first information report being I C.R. No.322 of 2006 was lodged. It is also further noticed by the Investigating Officer that the FIR of the accused was a counterblast to the applicant's FIR and, therefore, 'B' summary has been filed. It is the grievance of the applicant that after nearly five years on April 07, 2011, a supplementary chargesheet came to be laid Page 4 of 47 HC-NIC Page 4 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT before the Court. The same had been committed to the Court of Sessions and the charges were framed against the accused.
4. During the course of pendency of the case, an application was made by the applicant under section 173(8) of the Code of Criminal Procedure for further investigation. The learned Presiding Officer called for the report of the Investigating Agency; and the Police Inspector, Satellite Police Station, in his report gave the details. Therefore, once again on March 05, 2013, the concerned police officer was directed to submit a report as per the earlier order dated December 26, 2012. Thereafter, the very officer filed a report at Exhibit 100 specifically contending that if the investigation is entrusted to the City Crime Branch, he has no objection. On April 04, 2013, the learned Presiding Officer asked the police to submit report after proper application of mind. It is alleged by the applicant that neither the learned Presiding Officer nor the Investigating Officer was ready Page 5 of 47 HC-NIC Page 5 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT to take any responsibility with regard to the direction of further investigation and, therefore, they made an attempt to shift the burden on each other.
5. Shri Pandya, Police Inspector, Satellite Police Station, submitted his report dated April 29, 2013, stating therein that there is no necessity of any further investigation in the present matter. The main grievance raised by the applicant is that the very officer had reported that if further investigation is handed over to the Crime Branch, he had no objection and he only in the report at Exhibit 105 found no need to investigate any further. On the strength of the such a specific report, the impugned order dated April 29, 2013, is passed by the trial Court and the aggrieved applicant has approached this Court raising various grounds.
6. This Court admitted the matter on October 22, 2013 and granted interim relief in terms of paragraph 6(B) and stayed further proceedings of Page 6 of 47 HC-NIC Page 6 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT Sessions Case Nos.43 of 2009 and 164 of 2011, pending before the learned 4th (Adhoc) Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad.
7. Shri Ajay Choksi, learned counsel appearing for the applicant, urged that in an offence with regard to use of the vehicle used in the commission of the offence, so also the licensed revolver of the applicant, which was robbed away by the respondentaccused, the trial Court would proceed on every week basis. He further urged that the offence of forgery though is prima facie made out from the very contents of the first information report, no documents have been recovered. Further, no procedure has been undertaken for verification of handwritings. In absence of the report of the handwriting expert, even if the witnesses would speak of details of these documents, the provision of the Evidence Act would require the proof of those documents. The Call Detail Records (CDRs) of some of the accused persons although collected by the Investigating Agency have not been placed on Page 7 of 47 HC-NIC Page 7 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT record along with the chargesheet and none of the officers of the concerned telephone company has been cited as a witness. He urged that these faulty and improper investigation is carried out deliberately to help the cause of the accused and this has surely resulted into miscarriage of justice. He, therefore, urged that the impugned order dated July 29, 2013, denying further investigation on the strength of the report of the Investigating Officer requires quashment.
8. The learned Additional Public Prosecutor appearing on behalf of the respondentState, urged that a detailed investigation has already been carried out. Some of the lacunas attempted to be pointed out by the learned counsel appearing for the applicant Shri Ajay Choksi, are not such that it may be termed as manifest illegality in the order deserving indulgence. The impugned order being a discretionary one, in absence of any grave miscarriage of justice, this Court may not interfere in the revisional jurisdiction.
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9. Upon thus hearing both the sides and upon close perusal of the record, at the outset, the scope of further investigation under section 173(8) of the Code of Criminal Procedure requires a reference.
10. Section 173 requires a final report of the Police Officer no sooner does the investigation get completed. Three kinds of reports are to be made by the Police Officer at different stages of the investigation. The preliminary report from the officer Incharge of the Police Station under section 157 of the Code of Criminal Procedure. A report under section 168 of the Code of Criminal Procedure from subordinate officer to the Officer Incharge of the Police Station, whereas this section 173 contemplates a final report from the Police Officer after the investigation. The Magistrate is not bound to follow the police report and he can take cognizance of the offence even if the police report is to the effect that no case is made out. The Officer Incharge of the Page 9 of 47 HC-NIC Page 9 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT Police Station is required to forward to the Magistrate empowered to take cognizance on a police report, the report as provided under section 173(2)(1) of the Code of Criminal Procedure. The action taken by the Police Officer is also to be communicated as prescribed by the State Government to the complainant. Along with such report, the Police Officer is also bound to forward to the Magistrate all the documents or relevant extracts thereof on which the prosecution proposes to rely upon, other than those already sent to the Magistrate; as also the statements recorded under section 161 of the Code of Criminal Procedure, of all the persons whom the prosecution proposes to examine as witness. If the police officer is of opinion that any part of any such statement is not relevant to the subjectmatter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies Page 10 of 47 HC-NIC Page 10 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT to be granted to the accused and stating his reasons for such request.
11. Subsection (8) of section 173 of the Code of Criminal Procedure enumerates that nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (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 further report or reports regarding such evidence in the form prescribed; and the provisions of subsections (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 subsection (2). Even after the Court denies cognizance of an offence on the strength of a police report submitted, the police can still conduct further investigation and file a supplementary chargesheet on the basis of further investigation. This section confers specific Page 11 of 47 HC-NIC Page 11 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT powers upon the police to carry out further investigation even after the cognizance is taken by the Court. Further investigation is also not ruled out merely because it may delay the trial as the ultimate objective of the Court is to arrive at the truth.
12. In the decision of the Apex Court in the ace of Hasanbhai Valibhai Qureshi v. State of Gujarat and others, reported in AIR 2004 SC 2078, wherein the Apex Court held that when the defective investigation come to light during the course of trial, it may be cured by further investigation as far as possible. Of course, what is empowered by subsection (8) of section 173 is the further investigation and not the re investigation. Sufficient powers are conferred upon the Investigating Agency for such purpose if fresh facts come to light or if the investigation carried out requires further probing. It is often held by the Courts that the circumstances mentioned in subsection (8) are only enumerative and not exhaustive in character.
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13. Applying the very decision to the facts of the present case, it appears that the wife of the applicant before giving application prior to lodging of the complaint apprehending forcible possession of the property and also requesting the police to avail protection to the life and property of the wife of the applicant. Such application was moved on April 01, 2006. The first information report came to be lodged with Satellite Police Station on the next day i.e. April 02, 2006, for the offences punishable under sections 143, 147, 148, 149, 395, 427 and 447 of the Indian Penal Code. Such complaint came to be lodged being IC.R. No.322 of 2006. Later on, the offences punishable under sections 307 and 397 of the Indian Penal Code and section 25(1B)(a) of the Arms Act, were also added. There are serious allegations levelled against the Investigating Agency for having lodged the complaint of the main accused Kanubhai Bharwad while he was in police custody after his arrest on May 03, 2006, against the applicant being IC.R. No.450 of 2006 Page 13 of 47 HC-NIC Page 13 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT for the offences punishable under sections 143, 148, 149, 395, 497 and 307 of the Indian Penal Code and section 135 of the Bombay Police Act as also section 25(1B)(a) of the Arms Act. Such first information report was investigated by the Crime Branch, Ahmedabad City and 'B' summary report came to be filed on October 31, 2007, which was granted by the Court on February 08, 2012. As could be noticed, the investigation thereafter was transferred to the State CID (Crime), Gandhinagar, at the behest of the request made by the applicant. A supplementary chargesheet came to be filed on April 07, 2011, after nearly five years.
14. It is also discernible from the record that the complainant moved an application vide Exhibit 85 on December 26, 2012, during the course of trial under section 173(8) of the Code of Criminal Procedure. The trial Court directed the Police Inspector, Satellite Police Station, whether further investigation is necessary. This application was moved by the complainant through Page 14 of 47 HC-NIC Page 14 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT the learned Additional Public Prosecutor. According to the trial Court, the Police Inspector is empowered to carry out further investigation and one such application ought to have been firstly given to the concerned Police Officer. It was desirable for the officer to report as to whether further investigation is necessary and whether he was inclined to carry out such investigation.
15. Shri A.S. Pandya, Police Inspector, Satellite Police Station, submitted a report dated April 04, 2013 vide Exhibit 100, stating therein as under :
(i) On inquiring with the applicantPramodbhai Chaturbhai Patel, the revolver of the complainant as well as cash of Rs.4000/ have not been found during the course of investigation and it is a matter of fact.
(ii) On April 01, 2006, the applicant had made an application for police protection, which is also true.Page 15 of 47
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(iii) During the course of investigation, addition of offence punishable under section 307 of the Indian Penal Code and section 25(1B)(a) of the Arms Act, was made. However, when the revolver was found not to have been used, on May 04, 2006, such provision was requested to be deleted by the Investigating Officer.
(iv) According to the applicant, the vehicles in which the accused travelled have not been seized. No numbers of the vehicles were been given by the complainant and during the course of remand of the accused, no details of the vehicles have been found. Moreover, except the call details of Mukesh Bharwad, the call details of the other accused have been obtained and the investigation has been carried out in relation thereto.
(v) According to the applicant, the numbers of the Call Detail Records (CDRs) have not been obtained by the Investigating Officer. It is so alleged by the applicant, however, the CID Crime did not find it necessary and, therefore, they Page 16 of 47 HC-NIC Page 16 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT have not been obtained.
(vi) As per the newspaper report, at the scene of offence, Govind Kalaji Thakor had fired in the air, whereas in the investigation, the air gun was found at the scene of the offence and, therefore, the same has been seized for the purpose of investigation.
(vii) The applicant was not happy with the investigation by the local police as well as of the CID Crime and, therefore, if the investigation is handed over to the City Crime Branch, the Satellite Police Station has no objection.
16. Later on, on April 29, 2013, the very officer repeated all these points parawise and, at the end of the same, he reported that the applicant insists that further investigation may be carried out by the City Crime Branch as he was not satisfied with the investigation by the local police and CID Crime. However, on examination of Page 17 of 47 HC-NIC Page 17 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT the papers of investigation, the further investigation is not required as all these issues are duly investigated.
17. Such report has come in the wake of the order of the Court on April 04, 2013 itself. The Court noted that it has taken into account the report and that was seen as an attempt to shift the burden upon the Court. It is a serious matter as well, if the investigation is not sufficiently done and if the concerned officer of the Police Station is of the opinion that further investigation under section 173(8) of the Code of Criminal Procedure was desirable, it has all the powers to so do it and, therefore, the concerned Police Officer shall need to report bona fide. Taking cue from such order possibly, he gave the report verbatim on all points as was given on April 04, 2013. However, in the last line, he changed his conclusion.
18. However, the CID Crime gave report which is produced before the trial Court vide Exhibit 108 and also negatived the need of any such further Page 18 of 47 HC-NIC Page 18 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT investigation. It further opined that because request of the complainant was to hand over the investigation to the city crime branch, no further investigation is necessary. The trial Court denied the request on the ground that there are no new evidence and after taking cognizance on the ground that the Investigation Officer has not collected the evidence properly and sufficiently, the application of the complainant under section 173(8) of the Code cannot be directed. According to the learned Presiding Officer, admittedly the revolver and the cash along with the mobile, were searched. However, the same have not been found. It is not necessary that the investigation should continue till these items are found by the Investigating Agency.
19. With regard to the vehicles also, the Court was of the opinion that sufficient investigation has already been done and, therefore, there is nothing to presume that if the further investigation is directed, such vehicles could be seized. Both the reports at Exhibits 105 and 108 indicate the obtaining of CDRs. Admittedly, the Page 19 of 47 HC-NIC Page 19 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT CDRs of Mukesh Bharvad and Govind Thakor and those of the Police Officers Shri Gehlot and Gajipara, and the DCP, have not been obtained. That per se, may not be necessary to prove the charges of the complaint, according to the Court. It is also the opinion of the trial Court that it is not for the Court to direct investigation in a particular angle. The Court also held that if on the basis of authenticated details new facts are revealed before the CID Crime, the officer concerned can surely consider further investigation under section 173(8) of the Code. With these observations, it had filed an application.
20. The following three questions arise in the aforementioned circumstances before this Court :
(i) Whether further investigation at the behest of the complainant is permissible in post cognizance period.
(ii) Whether the powers of further investigation can be exercised by the Court independent of the request of the Investigating Officer.Page 20 of 47
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(iii) Whether this is a fit case for interference by way of revisional jurisdiction for there being an apparent and manifest illegality in the order impugned.
21. Taking firstly the first question of sustainability of the application for further investigation at the behest of the complainant, it is the prerogative of the Investigating Agency to make a request for further investigation. In all the cases, where serious offences are alleged, it is the State which prosecutes. So as not to give rise to personal vendetta, as the security of the subjects is the duty of the State, in all serious offences, the State is the prosecuting agency. Any request of the complainant when merges in the request of the prosecution, the Court shall have to treat this as a request of the State. The prosecution would have right to route its request through the State and due weightage is required to be given to such a request.
22. It is the prerogative of the State to further investigate. The investigating officer if Page 21 of 47 HC-NIC Page 21 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT is desirous in the changed circumstances to exercise powers of further investigation, the statute empowers him and such powers are ordinarily exercised after seeking a formal permission of the Sessions Court, although in stricto senso under the law, it is not desirable. Any new material found, de hors any direction from the Court, the Police has power to conduct further investigation in postcognizance period. In precognizance stage, the Court for advancing the cause either suo motu or acting upon the say of the complainant can direct further investigation, of course, without specifying that the investigation to be done in a particular fashion.
The Court cannot act in the hyper technical manner when the substantive justice is being defeated. For the ends of justice, the Court can direct the prosecuting agency to carry out further investigation and submit a report at any stage of the trial as held by the Apex Court in the case of Kishan Lal v. Dharmendra Bafna, reported in (2009) 7 SCC 685. The Apex Court Page 22 of 47 HC-NIC Page 22 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT held that an order of further investigation can be made at various stages, including the stage of trial.
Necessary would it be to refer to the decision of the Apex Court rendered in the case of Kishan Lal (supra), the relevant observations of which are reproduced as under :
"14. We are, however, not oblivious of the fact that recently a Division Bench of this Court in Sakiri Vasu vs. State of Uttar Pradesh and Ors. [(2008) 2 SCC 409] while dealing with the power of the court to direct the police officer to record an FIR in exercise of power under Section 156(3) of the Code observed that the Magistrate had also a duty to see that the investigation is carried out in a fair manner (correctness whereof is open to question).
15. An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence.
Although some decisions have been referred to us, we need not dilate thereupon as the matter has recently been considered by a Division Bench of this Court in Mithabhai Page 23 of 47 HC-NIC Page 23 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT Pashabhai Patel and Ors. vs. State of Gujarat [2009 (7) SCALE 559] in the following terms :
"16. This Court while passing the order in exercise of its jurisdiction under Article 32 of Constitution of India did not direct reinvestigation. This Court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of subsection (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon.
17. It is, however, beyond any cavil that 'further investigation' and 're investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a 'State' to get an offence investigated and/or further investigated by a different agency. Direction of a re investigation, however, being forbidden in law, no superior court would ordinarily issue such a direction.
Pasayat, J. in Ramachandran v. R. Page 24 of 47 HC-NIC Page 24 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT Udhayakumar, [(2008) 5 SCC 413], opined as under : "7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under subsection (2) of Section 173 of the Code, the police has right to further investigate under sub section (8), but not fresh investigation or reinvestigation..."
We have referred to the aforementioned decision only because Mr. Tulsi contends that in effect and substance the prayer of the appellant before the learned Magistrate was for reinvestigation but the learned Magistrate had directed further investigation by the Investigating Officer inadvertently."
23. In the latest decision of the Apex Court in the case of Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel and others, reported in 2017(2) SCALE 198, the Court held that in postcognizance period, no such direction can be issued for further investigation by the Presiding Officer suo motu at the behest of the complainant. Such a cause would be open only at the request of Investigating Agency, if the circumstances so warrant. Of course, there is no reference of decision in the case of Kishan Lal (supra). This latest decision shall govern the Page 25 of 47 HC-NIC Page 25 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT field so far as powers of trial Court are concerned.
It would be profitable to regurgitate the relevant observations of the said decision, which read as under :
"39. Noticeably, none of these decisions, however pertain to a situation where after the final report had been submitted, cognizance had been taken, accused had appeared and trial is underway, the Court either suo motu or on the prayer of the informant had directed further investigation under Section 173(8) in absence of a request to that effect made by the concerned investigating officer.
40. The rendition in Bhagwant Singh (supra) was also relied upon. It was eventually held, by drawing sustenance from the pronouncement in Bhagwant Singh (supra) that a Magistrate before whom a report under Section 173(2) of the Code had been filed, was empowered in law to direct further investigation and require the police to submit a further or a supplementary report. To reiterate, in Bhagwant Singh (supra), this Court had in particular dealt with the courses open to a Magistrate, once a charge Page 26 of 47 HC-NIC Page 26 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT sheet or a closure report is submitted on the completion of investigation under Section 173(2) of the Code and thus did essentially concentrate at the pre cognizance stage of the proceedings.
41. From the issues sought to be answered in this decision and having regard to the overall text thereof, it is not possible to discern that the power of the Magistrate, even at the post cognizance stage or after the accused had appeared in response to the process issued, the suo motu power of the Magistrate to direct further investigation was intended to be expounded thereby. Significantly, the adjudication was essentially related to the precognizance stage.
42. In Chandra Babu alias Moses v. State through Inspector of Police and others, (2015) 8 SCC 774, the appellant had filed a FIR with the Kulasckaram Police Station against the respondentsaccused alleging unlawful assembly and assault resulting in multiple injuries. After the initial investigation, the same was transferred to the District Crime Branch Police, Kanyakumari which eventually filed a final report in favour of the respondentsaccused, which was accepted by the learned Page 27 of 47 HC-NIC Page 27 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT Magistrate. Meanwhile, however the appellant/informant filed a protest petition before the Magistrate praying for a direction to the CBCID to reopen the case and file a fresh report. As before any decision on this protest petition, the final report filed by the police had already been accepted, the appellant approached the High Court, which called for the report from the learned Magistrate and finally interfered with the order accepting the final report and directed the Magistrate to consider the same along with the protest petition. The Magistrate next held that there was no justification for ordering reinvestigation of the case and directed that the protest petition be treated as a separate private complaint.
43. This order being challenged again before the High Court, the matter was remanded to the learned Magistrate with a direction to consider the final report and the other materials on record and pass appropriate orders after hearing both the public prosecutor and the de facto complainant. This time, the learned Magistrate returned a finding that the investigation by the District Crime Branch was a biased one and that the final report was not acceptable and consequently Page 28 of 47 HC-NIC Page 28 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT forwarded the complaint for further investigation by the CBCID, which was a different investigating agency. The matter was taken to the High Court by one of the respondents/accused, whereupon it annulled the direction of the learned Magistrate for reinvestigation, holding that not only there were material discrepancies in the evidence brought on record, but also there was no exceptional circumstance for such a course to be adopted by the Magistrate. It was also of the view, having regard to the scheme of the Section 173(8) of the Code that the investigating officer only could request for further investigation.
44. While disapproving the approach of the High Court in reappreciating the facts in the exercise of its revisional jurisdiction, this Court adverting, amongst others to the three Judge Bench exposition in Bhagwant Singh (supra) reiterated that a Magistrate could disagree with the police report and take cognizance and issue process and summon the accused, if satisfied as deemed fit in the attendant facts and circumstances. The rendition in Vinay Tyagi (supra) was also alluded to. It was ultimately expounded that the learned Magistrate had really intended to direct further investigation, but as a different investigating agency had been Page 29 of 47 HC-NIC Page 29 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT chosen, the word reinvestigation had been used. This Court thus construed the direction for investigation by the CBI to be one for further investigation and upheld the same, but nullified the selection of a new investigating agency therefor. As a corollary, the investigating agency that had investigated the case earlier and had submitted the final report, was directed by this Court to undertake further investigation to be supervised by the Superintendent of Police and to submit a report before the learned Chief Judicial Magistrate to be dealt with in accordance with law.
45. This decision too was concerned with a fact situation, pertaining to the pre cognizance stage of the proceedings before the learned Magistrate and therefore, does not, in our comprehension, further the case of the appellant.
46. As adumbrated hereinabove, Chapter XIV of the Code delineates the conditions requisite for initiation of proceedings before a Magistrate. Section 190, which deals with cognizance of offences by Magistrate, sets out that any Magistrate of the first Class and any Magistrate of the second class specially empowered, as Page 30 of 47 HC-NIC Page 30 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT contemplated, may take cognizance of any offence either upon receiving a complaint of facts which constitute such offence or upon a police report of such facts or upon information received from any person other than the police officer, or upon his own knowledge that such offence had been committed. Section 156, which equips a police officer with the power to investigate a cognizable case mandates vide sub section 3 thereof that any Magistrate empowered under Section 190 may order such an investigation. The procedure for dealing with complaints to Magistrate is lodged under Chapter XV of the Code. Section 202 appearing therein predicates that any Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance or which had been made over to him under Section 192, may, if he thinks fit and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. The contents of this text of Section 202(1) of the Code unmistakeably Page 31 of 47 HC-NIC Page 31 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT attest that the investigation that can be directed by the Magistrate, to be undertaken by a police officer would essentially be in the form of an enquiry for the singular purpose of enabling him to decide whether or another there is sufficient ground for proceeding with the complaint of an offence, of which he is authorised to take cognizance. This irrefutably is at the pre cognizance stage and thus logically before the issuance of process to the accused and his attendance in response thereto. As adverted to hereinabove, whereas Section 311 of the Code empowers a Court at any stage of any inquiry, trial or other proceeding, to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re examine any person already examined, if construed to be essential to be just decision of the case, Section 319 authorizes a Court to proceed against any person, who though not made an accused appears, in course of the inquiry or trial, to have committed the same and can be tried together. These two provisions of the Code explicitly accoutre a Court to summon a material witness or examine a person present at any stage of any inquiry, trial or other proceeding, if it considers it to be essential to the just decision of the case Page 32 of 47 HC-NIC Page 32 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT and even proceed against any person, though not an accused in such enquiry or trial, if it appears from the evidence available that he had committed an offence and that he can be tried together with the other accused persons.
47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to Page 33 of 47 HC-NIC Page 33 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT secure fair investigation and trial, the life purpose of the adjudication in hand.
48. The unamended and the amended sub Section (8) of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorized to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings. The recommendation of the Law Commission in its 41st Report which manifesting heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone.
49. In contradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the precognizance stage even after a charge sheet or a closure report is submitted, once cognizance is taken and the accused person Page 34 of 47 HC-NIC Page 34 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a postcognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the cognizance is taken, accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on Page 35 of 47 HC-NIC Page 35 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant.
Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the Page 36 of 47 HC-NIC Page 36 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT developments in the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by the High Court.
50. In the result, the appeal, being devoid of any merit, fails and is dismissed."
24. In the wake of the law on the subject referred to hereinbefore, it would be necessary to refer to the facts of the present case to decide whether it would warrant interference in the order impugned. Unless there is a manifest illegality in the order which would lead to grave miscarriage of justice, the Court would be loathed to interfere in the revisional jurisdiction even if with same facts different reasons are possible. Ordinarily, the Court would not interfere in the revisional jurisdiction.
25. It surely can be noted that the case is quite old. Two Investigating Agencies have already worked on this case. Firstly, it was the Page 37 of 47 HC-NIC Page 37 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT Satellite Police Station, where a complaint was lodged, investigated the matter and thereafter, the case was handed over to the CID Crime. The order impugned if is minutely looked at, the Court did not interfere and chose not to grant further investigation as it did not find any element of additional or new evidence. After the report was submitted under section 173, no new facts or new evidence was found to have come to the fore. Moreover, according to the trial Court, it is not for the Court to direct the Police to investigate in a particular manner. It is also not desirable that till all the articles mentioned in the complaint are recovered by discovery, the investigation should continue. It is a fact that the protracted investigation has already delayed the matter and it is essentially the duty of the Investigating Agency to collect the evidence, documentary evidence or otherwise and also to discover and recover all the articles. Moreover, if any additional aspects are noticed subsequent to the report under section 173 or the new facts emerge, it is their Page 38 of 47 HC-NIC Page 38 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT prerogative to further investigate and make a report to the Court, but in the event of Investigating Agency failing to carry out its work, there are means and ways to get the directions from the competent Court and to remind them of their obligations towards criminal justice system. One of the modes adopted is of making a request to the Court to direct the Investigating Agency when apparent lacunas could be noticed. The complainant has chosen to adopt this mode and when an application was made through the learned Additional Public Prosecutor, the same was sent to the concerned Police Station and the Investigating Officer of the Satellite Police Station in his report dated April 04, 2013, as mentioned hereinabove, did agree with the version of the complainant by parawise comments and also shown the need of referring the matter for further investigation to City Crime Branch if the complainant was dissatisfied with the investigation by Local Police or the CID Crime itself.
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26. The revolver of the complainant and the cash have not been recovered. Even no cartridge was found and the investigation concluded that the weapon was not fired and, therefore, section 307 of the IPC was deleted. The trial Court is not wrong in saying that the investigation cannot continue till all the articles are recovered. Even if it reflects at lacuna in investigation, mere nonrecovery cannot be the ground for further investigation. The vehicles also have not been recovered and according to the Investigating Agency, no particulars have been given, it is not necessary for the complainant to remember the number of members in a time when the accused were covered with deadly weapons and offence punishable under sections 143, 147, 148, etc. are alleged. In any case, what is far more serious is nonproduction of call detail records of some of the accused. It is also unacceptable that because the CID Crime did not deem it fit to get the proofs of the CDRs, the same have not been adduced before the Court.
27. In every ordinary criminal matter also, Page 40 of 47 HC-NIC Page 40 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT collecting of CDRs is found to be a very useful tool to prove whereabouts of parties and also to link and resolve many unexplained links. CDRs are held to be the effective tool by a Division Bench of this Court in the case of State of Gujarat v. Sureshkumar alias Tino Ranjansinh Baria and another, while dealing with Criminal Miscellaneous Application No.8036 of 2014, by holding thus :
"It would be apt to refer to certain vital details CDR, which known as Call detail record as also Call Data record, available on the internet [courtesy Wikipedia ]. The CDR contains data fields that describe a specific instance of telecommunication transaction minus the content of that transaction. CDR contains attributes, such as [a] calling party; [b] called party; [c] date and time; [e] call duration; [f] billing phone number that is charged for the call; [g] identification of the telephone exchange; [h] a unique sequence number identifying the record; [i] additional digits on the called number, used to route the call; [j] result of the call ie., whether the same was connected or not; [k] the route by which call left the exchange; [l] call type [ie., voice, SMS, etc.].
Call data records also serve a variety of functions. For telephone service providers, they are critical to the production of revenue. For law enforcement, CDRs provide a wealth of information that can help to identify suspects, in that they can reveal details as to an individual's relationships with associates, communication Page 41 of 47 HC-NIC Page 41 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT and behavior patterns and even location data that can establish the whereabouts of an individual during the entirety of the call. For companies with PBX telephone systems, CDRs provide a means of tracking long distance access, can monitor telephone usage by department; including listing of incoming and outgoing calls.
Relevant would be also to refer to Mobile Phone Tracking and phone positioning briefly at this stage.
The mobile phone tracking refers to attaining of the current position of a mobile phone, stationary or moving. Localization may occur either via multi lateration of radio signals between the radio towers of the network and the phone or simply via GPS. To locate the phone using multilateration of radio signals, it must emit atleast the roaming signal to contact the next nearby antenna tower, but the process does not require an active call. GSM is based on the signal to nearby antenna masts. Mobile positioning includes locationsbased services that disclose the actual coordinates of a mobile phone bearers and it is the technology used by telecommunication companies to approximate the location of a mobile phone and thereby also its user. It is more properly termed as locating rather than positioning. The technology of locating is based on measuring power levels and antenna patterns and uses the concept that a powered mobile phone always communicates wirelessly with one of the closest base stations, so knowledge of the location of the base station implies the cell phone is nearby. Whereas, the advanced systems determine the sector in which the mobile phone resides and roughly estimate also the distance to the base station. Further proximation can be done by Page 42 of 47 HC-NIC Page 42 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT interpolating the signals between adjacent antenna towers. Qualified services may achieve a precision of down to 50 meters in urban areas, where mobile traffic and density of antenna towers is sufficiently high. Rural and desolate areas may see miles between base stations and therefore possibly determine locations a little less precisely.
In order to route calls to a phone, the cell towers listen for a signal sent from the phone and negotiate which tower is best able to communicate with the phone. As the phone changes location, the antenna towers monitor the signals and phone is roamed to an adjacent tower as appropriate. By comparing the relative signal strength from multiple antenna towers, a general location of a phone can be roughly determined. Other means make use of the antenna pattern, which supports angular determination and phase discrimination. Newer phones may also allow the tracking of the phone even when turned on and not active in a telephone call.
In a simpler language, it can be said that the technology can be best put to use in the form of CDRs which contains data fields describing various details, which also includes not only the phone number of the subscriber originating the call and the phone number receiving such call etc., but, the details with regard to the individual's relationships with associates, the behavior patterns and the whereabouts of an individual during the entirety of the call.
The whole purpose of CDR is not only to establish the number of phone calls which may be a very strong circumstance to establish their intimacy or behavioral conduct. Beyond that, such potential evidence also can throw light on the location of the mobile phone and in turn Page 43 of 47 HC-NIC Page 43 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT many a times, the position and whereabouts of the person using them with the aid of mobile phone tracking and phone positioning, location of mobile phone and its user is feasible. As the mobile phone ordinarily communicates wirelessly with the closest base station. In other words, ordinarily, signal is made available to a mobile phone from the nearest Mobile tower. In the event of any congestion or excessive rush on such mobile tower, there is an inbuilt mechanism of automatic shifting over to the next tower and if access is also not feasible there, to the third available tower. This being largely a scientific evidence it may have a material bearing on the issue, and therefore, if such evidence is established scientifically before the Court concerned, missing link can be provided which more often than not get missed for want of availability of credible eyewitnesses. We have noticed that in most of the matters these days, scientific and technical evidence in the form of Call Data Record is evident. However, its better and further use for the purpose of revealing and establishing the truth is restricted by not examining any witness nor bringing on record the situation of the mobile towers. Such kind of evidence, more particularly in case of circumstantial evidence will be extremely useful and may not allow the truth to escape, as the entire thrust of every criminal trial is to reach to the truth."
28. This would not only provide insight into the crime, but gives the location of the person whose call details have been recorded. Therefore, the complainant was justified in asking for CDRs to be on record. To that extent, in the opinion of Page 44 of 47 HC-NIC Page 44 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT this Court, the impugned order requires interference.
29. As further investigation in post cognizance period necessarily should be the prerogative of the Investigating Officer, the complainant's application would avail no reason to direct further investigation.
The trial Court when called for the report of the Investigating Officer when application was made, the first one as mentioned above received from the Investigating Officer on April 03, 2013 left it to the Court the issue of further investigation. The Court's tone and tenor in the order passed on that day was to direct the Investigating Officer to take a call as provided under the law and hence, in the report dated April 29, 2013, with those very grounds, he denied such a need. These two reports in a short span of 25 days makes the approach of the Investigating Officer questionable. In the first report, he had virtually agreed and had left the Page 45 of 47 HC-NIC Page 45 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT issue of further investigation to the Court and later, the very officer strangely changed his stand completely and fully. As such, the trial Court committed no error in not directing further investigation as discussed above, without further delving into the factual aspects. Suffice to direct that since the CDRs of some of the co accused are not collected as mentioned in the reports of officers also and as discussed above, they should be directed to be collected.
30. For the foregoing reasons, the present Revision Application partly succeeds and the same is, accordingly, allowed. Further investigation is permitted in relation to the CDRs of the concerned coaccused, if not already collected as stated in the reports of the Investigating Agency dated April 04, 2013 and April 29, 2013, which shall be collected within a period of one month from the date of receipt of a copy of this order. The order impugned dated April 29, 2013 is modified only to the extent aforesaid. Additional report be submitted in that respect to the Page 46 of 47 HC-NIC Page 46 of 47 Created On Wed Mar 22 01:40:51 IST 2017 R/CR.RA/636/2013 CAV JUDGMENT concerned trial Court.
Disposed of accordingly. The interim relief, if any, stands vacated on completion of period of four weeks from today.
Direct Service is permitted.
(MS SONIA GOKANI, J.) Aakar Page 47 of 47 HC-NIC Page 47 of 47 Created On Wed Mar 22 01:40:51 IST 2017