Punjab-Haryana High Court
Ajay Kumar vs State Of Haryana on 12 November, 2014
Author: Anita Chaudhry
Bench: Anita Chaudhry
Crl. Revision No.1843 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Crl. Revision No.1843 of 2012 (O&M)
Date of decision : 12.11.2014
Ajay Kumar
......Petitioner(s)
Versus
State of Haryana & another
...Respondent(s)
CORAM: HON'BLE MS. JUSTICE ANITA CHAUDHRY
Present: Dr. Sushil Gautam, Advocate
for the petitioner.
Mr. Jai Narain, DAG, Haryana.
Dr. Anmol Rattan Sidhu, Sr. Advocate with
Mr. R.K. Chugh, Advocate
for respondent no.2.
****
ANITA CHAUDHRY, J(ORAL) The instant revision petition has been directed against the order dated 23.05.2012 passed by Sessions Judge, Karnal.
Reference to the brief facts is necessary to understand the issue raised by the complainant. The petitioner lodged a complaint with the police on the basis of which, a case was registered under Section 12 of the Prevention of Corruption Act at Police Station Civil Lines, Karnal. A case had been registered against brother of the SUNIL SEHGAL 2014.11.21 09:58 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No.1843 of 2012 (O&M) 2 complainant under Section 376 IPC. A lawyer, Rajbir Rana, was a neighbour of the complainant. The complainant spoke to the lawyer and told him the name of the officer who was dealing with the case, he revealed that he (Rajbir Rana) knew the Judge and another lawyer Surender Chauhan from Karnal also knew him well and they could speak to him regarding bail. Rajbir Rana, Advocate spoke to Surender Chauhan in the complainant's presence from his mobile phone and was told that Surender Chauhan would verify whether it was the same judge. In November, 2007 Rajbir Rana asked the complainant to accompany him and and they went to meet Surender Chauhan, Advocate. The complainant was accompanied by Krishan Singla, resident of Cheeka. Rajbir Rana and Surender went inside the cabin and came out after 15 minutes and told him that he could speak to the judge as Rajbir Rana was his relative and his work could be done. On 09.11.2007, Surender Chauhan called Rajbir Rana that the Judge had called him. On 10.11.2007 Krishan and Rajbir Rana went to the house of Surender Chauhan in a hired vehicle. From there they went to the house of the Judge and took Surender Chauhan along with him. The vehicle was parked outside the house of the officer and Surender Chauhan went inside. He returned after half an hour. They left that place and after covering some distance Surender Chauhan told them that the Judge had agreed and had demanded Rs.2,00,000/- in advance. On 17.11.2007, the complainant and Krishan went with the money to the house of SUNIL SEHGAL 2014.11.21 09:58 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No.1843 of 2012 (O&M) 3 Surender Chauhan who asked them to apply for bail and was assured that bail would be granted. Surender Chauhan rang up the officer in the presence of the complainant and told them that payment had been received. The bail application was filed on 27.11.2007 which was adjourned to 03.12.2007. The matter was not decided and was adjourned for 08.12.2007. The complainant asked Surender Chauhan the reason for the adjournments. Surender Chauhan told him that there was some mistake in communication as the judge had demanded Rs.2,00,000/- each. The complainant discussed the matter with his family and told him that they could not arrange for more money. Surender Chauhan then told them that he would get the matter adjourned. The case was adjourned to 13.12.2007. On 08.12.2007, the complainant spoke to Surender Chauhan and asked for his money and was told that the money was lying with the judge. The complainant started recording the conversation between him and Surender Chauhan and engaged another lawyer from Kaithal. On 18.12.2007, the complainant Krishan and Surender Chauhan went to the house of judge and Surender Chauhan went inside and returned and told them that the amount would not be returned. The complainant returned to Karnal where Surender Chauhan gave Rs.1,00,000/- to him and said that only one lac had been given. Surender Chauhan returned Rs.85,000/- later and told him that a sum of Rs.15,000/- had been spent. He also told him that now the case would end in conviction as it had annoyed the officer. It was SUNIL SEHGAL 2014.11.21 09:58 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No.1843 of 2012 (O&M) 4 decided that a petition for transfer of the petition would be filed in the High Court so that proceedings could be got stayed.
The police on receipt of this complaint started the investigation. The matter was handed over to the Crime Branch. The police called Surender Chauhan and some officials of the Court. The mobile phone of the officer was taken into custody. Ultimately the police submitted a report in the Court that there was not enough material to challan the Additional District Judge. However, they placed the name of Surender Chauhan in column no.2 and a prayer was made that witnesses be summoned in accordance with law to initiate the action against the persons mentioned in column no.2.
The facts which are unfolded further are that an application under Section 173(8) Cr.P.C. was moved by the complainant which was forwarded by the public prosecutor. A prayer was made by the complainant that half hearted investigation was done and there was ample material to nail the persons named by him and the matter should be got further investigated. That application was dismissed by the then Sessions Judge, Karnal on 23.05.2012. The reasoning given are contained in para nos.14, 16 & 21 and read as under:-
"14. In view of above discussed case law, it is evident that investigation officer can well collect more evidence even after filing of final report in the court and even after taking cognizance by the court on the report. The present case is not the one in which investigating and in fact, SUNIL SEHGAL 2014.11.21 09:58 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No.1843 of 2012 (O&M) 5 to may mind, even after collecting more evidence of the like nature, he can well submit report in the court, which would be taken into consideration at the appropriate time. Before filing final report the aforesaid fact was very much within the knowledge of the investigating officer and after thorough investigation, the final report was submitted. As such, now I see no reason for sending this case back for further investigation.
16. In State through CBI Vs. Dawood Ibrahim Kaskar 1997(3) RCR (Crl.) 567, it was laid down that after the police had submitted the challan and the Magistrate had taken cognizance, the police has statutory power to further investigate in the offence and submit a report to the Magistrate in respect of the involvement of other persons in the commission of offence. What procedure should be followed by the Magistrate in such a situation has been explained in this case. The fact remains that this was a case where further investigation of the case focused the involvement of other accused who had not initially been sent for trial when the report was submitted by the police. Likewise, in the case in hand, as well, in case the police collects evidence/material regarding involvement of other accused in this case, it is always open for the police to submit report to that effect. In fact the police has investigated the case from the point of view of call details of aforementioned mobile phones etc. but even otherwise in case the police collects more call details and evidence relevant for the purpose of this case, the same can well be produced in the Court by involving the relevant provisions of law including the one under Section 311 and 319 Cr.P.C.
21. Under the above discussed circumstances, it is evident that in the case in hand under the garb of further investigation, in fact the applicant and the prosecution wanted this court to order reinvestigation/fresh investigation into the case which cannot be done by the court."SUNIL SEHGAL 2014.11.21 09:58 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No.1843 of 2012 (O&M) 6
Notice was issued to the respondents and respondent no.1 filed their reply and have pleaded that FIR was got registered against Surender Chauhan and after completion of investigation final report had been submitted and the name of Surender Chauhan was kept in column no.2. It was pleaded that the complainant had filed an application under Section 173(8) Cr.P.C. which was dismissed on 23.05.2012. It was pleaded that they had requested the DGP, Haryana for reinvestigation and they had asked for action that was taken on the complaint on which the Director General of Police had directed to take appropriate action and submit the report to the Superintendent of Police and all the relevant papers had been handed over to the DSP, State Crime Branch for further investigation vide letter dated 28.10.2014 and the investigation had been transferred to DSP, State Crime Branch, Madhuban.
I have heard the submissions made on behalf of both the sides.
The counsel for the petitioner contends that the complainant had wanted further investigation for which he had filed an application and respondent no.1 has no objection and they have already moved the papers for further investigation but the order passed by the Sessions Judge is coming in the way and said order should be set aside. It was urged that since the police was making further investigations and if they find any material, they will have to take the necessary approval from the Magistrate before filing any SUNIL SEHGAL 2014.11.21 09:58 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No.1843 of 2012 (O&M) 7 further report and there is ample material with the complainant which has been handed over but the matter was not properly investigated. It was urged that for the police to conduct further investigation, the power is recognized under Section 173(8) Cr.P.C. and the police can conduct further investigation even after the Court had taken cognizance and the only rider was that police should inform the Court and seek formal permission to take further investigation. Reliance was placed upon Virender Prasad Singh Vs. Rajesh Bhardwaj & Ors. 2010(9) SCC 171, Vikas Gupta Vs. State of Punjab 2002(2) RCR (Crl.) 12, Kishan Lal Vs. Dharmendra Bafna and another 2009 7 SCC 685.
On the other hand, State has submitted that the DSP, Headquarters had requested the DGP, Haryana to send the file to the State Crime Branch for further investigation and the DGP had asked as to what action had been taken on the complaint made by Ajay Kumar vide order dated 27.08.2014 and all relevant documents have been handed over to the DSP, State Crime Branch for further investigation and they would inform the Court and seek formal permission if some material appears in the investigations.
A complaint had been filed by Ajay Kumar. The police investigated the case and prepared a challan and presented the same before the Court and showed Surender Singh Chauhan's name in column no.2. Dis-satisfied with the report, the complainant SUNIL SEHGAL 2014.11.21 09:58 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No.1843 of 2012 (O&M) 8 approached the Court with an application under Section 173(8) Cr.P.C. that the investigation was defective and ineffective and had been done in a half hearted manner with distorted facts. That application was only forwarded by the Public Prosecutor. The then Sessions Judge, Karnal referred to the various judgments and the case law and noted that the Investigating Officer was not precluded for further investigation.
The contention of the State counsel is supported by the petitioner as well the State's response is that the file has been marked to DSP, State Crime Branch for further investigation but the order dated 23.05.2012 would come in the way, therefore, it was necessary that the order should be set aside and they would approach the Court for permission for further investigation at the right time after they are able to collect the material for presentation of the same before the Court.
It is true that after a Magistrate has taken cognizance of the offence upon a police report submitted under Section 173 Cr.P.C. of the Court, the right of the police for further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes in. There is no provision in the Criminal Procedure Code which expressly or by necessary implication bars the right of the police to further investigate after cognizance has been taken by the Magistrate. The controversy had arisen as the State failed to approach the Magistrate with an SUNIL SEHGAL 2014.11.21 09:58 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No.1843 of 2012 (O&M) 9 application under Section 173(8) Cr.P.C. Instead the complainant moved an application, the application was simply signed by the Public Prosecutor.
Now that the State has expressed its intention to further investigate the matter, the petition has to be allowed. The order passed by the Sessions Judge is set aside. The police shall seek permission of the Court at the appropriate juncture when it seeks to further investigate the matter in terms of the provisions laid down under Section 173(8) Cr.P.C.
The petition is disposed of accordingly.
12.11.2014 (ANITA CHAUDHRY)
sunil JUDGE
SUNIL SEHGAL
2014.11.21 09:58
I attest to the accuracy and
authenticity of this document
Chandigarh