Gujarat High Court
National Multi Commodity Exchange Of ... vs State Of Gujarat & on 21 April, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/1359/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1359 of 2014
With
SPECIAL CRIMINAL APPLICATION NO. 995 of 2014
With
CRIMINAL MISC.APPLICATION NO. 5997 of 2014
In
SPECIAL CRIMINAL APPLICATION NO. 1359 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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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NATIONAL MULTI COMMODITY EXCHANGE OF INDIA LTD....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR PM THAKKAR, SR ADVOCATE for MRS SANGEETA N PAHWA,
ADVOCATE for the Applicant(s) No. 1
Page 1 of 26
R/SCR.A/1359/2014 CAV JUDGMENT
MR LB DABHI, APP for the Respondent(s) No. 1
MR MIHIR THAKORE, SR ADVOCATE with MR BIJAL CHHATRAPATI
ADVOCATE with MR MITESH AMIN ADVOCATE with MR AM AMIN
ADVOCATE for SINGHI & CO, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 21 /04/2015
CAV JUDGMENT
1 Since the issues raised in the three captioned petitions are interrelated, those were heard analogously and are being disposed of by this common judgment and order.
2 The Special Criminal Application No.1359 of 2014 has been filed by the original first informant of C.R. No.I27 of 2012 registered with the D.C.B. Police Station, Ahmedabad for the offence punishable under Sections 406, 408, 409, 420, 465, 467, 468, 471, 477(A), 120B read with 34 of the Indian Penal Code, praying for the following reliefs:
"8(A) Your Lordships may be pleased to issue an appropriate writ, order or direction quashing and setting aside the impugned order dated 29.01.2014 passed below Exh. 4 in Criminal Case No.135/2013 by the Ld. Metropolitan Magistrate, Ahmedabad as being illegal, unjust, unreasonable and contrary to the law, in the interest of justice;
(B) Your Lordships may be pleased to stay the implementation, operation and execution of impugned order dated 29.01.2014 passed below Exh.4 in Criminal Case No.135/2013 by the Ld. Metropolitan Magistrate, Ahmedabad, pending the admission, hearing and final disposal of this petition;
(C) Your Lordships be pleased to grant such other and further orders, Page 2 of 26 R/SCR.A/1359/2014 CAV JUDGMENT as may be deemed fit and proper by this Hon'ble Court in the interest of justice;"
3 It appears from the materials on record that the First Information Report, referred to above, lodged by the petitioner herein, on conclusion of the investigation, resulted in filing of a chargesheet, which culminated as a Criminal Case No.135 of 2013 pending as on today in the court of the learned Metropolitan Magistrate, Court No.11, Ahmedabad.
4 To put it briefly, the case of the petitioner against the respondent No.2 - the original accused is that the accused in his capacity, as the Vice Chairman of the petitionerexchange, indulged into various acts of misappropriation and embezzlement of public funds to the extent of 28 Crore. It is the case of the petitioner that all the family members including his wife, son and daughter were a part and parcel of the criminal conspiracy. The Forward Market Commission being the Regulatory Body under the provision of the Forward Contract (Regulation) Act in respect of the commodity exchanges, conducted a detailed inquiry / investigation and passed an order in that regard dated 23rd July, 2011 holding the respondent No.2 and his family members, prima facie, guilty and misappropriation of public funds by forging various documents also tampering with the I.T. System of the exchange.
5 It appears that six months after the registration of the criminal case i.e. after taking cognizance by the court, the respondent No.2 - original accused submitted an application dated 30.12.2013 being Exh.4 under Section 173(8) of the Code of Page 3 of 26 R/SCR.A/1359/2014 CAV JUDGMENT Criminal Procedure, 1973 for further investigation.
6 The learned Additional Chief Metropolitan Magistrate, Court No.11, Ahmedabad, vide order dated 29.01.2014, allowed the application and directed the investigating officer to carry out further investigation and file an appropriate report in that regard within a period of thirty days.
7 The petitioner herein, being dissatisfied with such order passed by the court below, has come up with this petition challenging the same.
8 On 04.04.2014, a learned Single Judge of this Court passed the following order;
"It is mainly argued that the Honble Supreme Court is monitoring the investigation in the present case, which fact, however, could not be brought to the notice of the learned Magistrate as the petitioner was not heard. The question that is being raised is as to whether in a case where the Honble Supreme Court is monitoring the investigation, the learned Magistrate would be competent to exercise the powers under Section 173(8) of the Code of Criminal Procedure.
Notice for final disposal returnable on 05.05.2014. In the meanwhile adinterim relief in terms of para 8(B).
9 Mr. P. M. Thakkar, the learned senior advocate appearing for the petitioner submitted that the trial court committed a serious error in passing the impugned order. Mr. Thakkar submitted that once the court takes cognizance in the matter, the accused has no right to file an application for further investigation under Section Page 4 of 26 R/SCR.A/1359/2014 CAV JUDGMENT 173(8) of the Code. Mr. Thakkar submitted that Section 173(8) of the Code is an enabling provision in favour of the investigating agency. Mr. Thakkar submitted that the impugned order on the face of it is not tenable in the eye of law. Mr. Thakkar placed reliance on the decision of the Supreme Court in the case of Reeta Nag v. State of West Bengal and others reported in (2009) 9 SCC
129. 10 This petition has been vehemently opposed by Mr. Mihir Thakore, the learned senior advocate appearing for the respondent No.2 - the original accused. Mr. Thakore submitted that no error, not to speak of any error of law could be said to have been committed by the court below in passing the impugned order. Mr. Thakore submitted that the accused has a right to pray for further investigation under Section 173(8) of the Code even while the trial is pending. Mr. Thakore submitted that there are many aspects on which further investigation is necessary and if the same is permitted to be carried out, then probably his client would not have to face the trial. Mr. Thakore drew a fine distinction between the investigation under Sections 156(3) and 173(8) of the Code. Mr. Thakore placed reliance on the decision rendered by this Court in the case of Ghanshyambhai Madhavlal Patel v. State of Gujarat in Special Criminal Application No.5012 of 2014 on 11.12.2014 and on the decision rendered by the Supreme Court in the case of Sundeep Kumar Bafna v. State of Maharastra and another reported in 2013 AIR SCW 2115. Mr. Thakore pointed out that against the assessment order dated 24.03.2014 passed under Section 143(3) of the Income Tax Act, his client has preferred an Page 5 of 26 R/SCR.A/1359/2014 CAV JUDGMENT appeal before the Commissioner of Income Tax (Appeals), in which also, he has raised the grounds of disallowing depreciation of software purchased from a company amounting to Rs.8,78,10,806/ in order to protect the interest of Revenue.
11 In such circumstances, referred to above, Mr. Thakore prays that there being no merit in the application, the same be rejected.
12 Mr. L.B. Dabhi, the learned additional public prosecutor appearing for the State submitted that the impugned order deserves to be quashed. He submitted that the court below ought not to have allowed the application for further investigation filed by the accused on mere asking. He submitted that no grounds worth the name are made out to carry out further investigation in the matter. He submitted that the further investigation should not be ordered for a fishing inquiry. In such circumstances, referred to above, he prays that the impugned order be quashed.
13 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the court below committed any error in passing the impugned order.
14 At this stage, it may not be out of place to state that against the interim order passed by a learned Single Judge of this Court dated 04.04.2014, referred to above, the accused had preferred a Special Leave to Appeal (Cri) No.3157 of 2014 before the Supreme Court. The Supreme Court, vide order dated 16.04.2014, dismissed Page 6 of 26 R/SCR.A/1359/2014 CAV JUDGMENT the S.L.P. with necessary observations. The order reads thus:
"Upon hearing counsel the court made the following O R D E R Heard.
This Special Leave Petition assails as interim order passed by the High Court with which we do not see any reason to interfere at this stage especially when Special Criminal Application (Quashing No.1359 of 2014) in which the same has been passed is fixed for final disposal by the High Court on 05.05.2014.
Mr. Mukul Rohtagi, learned senior counsel for the petitioner submits that since the High Court may close for summer vacation soon after the date fixed, any delay in the disposal of the case by the High Court may unnecessary prolong the matter. He offers to file his objections to the Special Criminal Application mentioned above within four days to facilitate an early disposal of the matter. In case the needful is done, he can approach the High Court to take up the matter for final hearing on 05.05.2014 or on an earlier date if otherwise convenient for all concerned.
The Special Leave Petition is accordingly dismissed with the above observations."
15 Coming to Subsection (8) of Section 173, Cr.P.C., it may be noted that it only lays down a deeming provision. The necessity for providing such a deeming provision as is contained in the said Sub section is to be found in the 41st Report of the Law Commission of India which is quoted as under : "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 sent 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 reopen the investigation. This places a hindrance in the way of the Investigating agency which Page 7 of 26 R/SCR.A/1359/2014 CAV JUDGMENT can be more 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.... "
(emphasis supplied)
16 The underlined portions in the aforesaid Report are indicative of a situation where a final report having been forwarded by the Investigating Officer and accepted by the Court further investigations were held to be barred. This view was sought to be undone.
17 All that was initially recommended was that the Investigating Officer should have that right of further investigation in a given case if he thinks that further material should be collected by him and placed before the Magistrate.
18 Reverting back to the said subsection as enacted by the Legislature, it has to be noted that it is only permissive in character. The Investigating Officer (or OfficerinCharge of Police Station) may undertake a further investigation even after filing of a charge sheet. If he does so, the further evidence collected by him shall be forwarded to the Magistrate along with a further report. Therefore, I am clearly of the view that neither the prosecution, i.e. the informant nor the accused can claim as a matter of right a direction from a Court commanding further investigation by the Investigating Officer under Subsection (8) of Section 173 after a chargesheet was filed after investigation.
Page 8 of 26 R/SCR.A/1359/2014 CAV JUDGMENT19 An additional reason for coming to the aforesaid conclusion is that even for investigation there must be a point of finality. The law expects the discharge of duties by the Investigating Officer properly resulting in a report under Section 173(2). It may only be in some exceptional case where the Investigating Officer may have to collect some further evidence/materials and submit it to the Magistrate along with his further report. Such an exceptional case will only prove the general rule that normally the investigation gets terminated with filing of the chargesheet in the Court. In other words, the Investigating Officer believes and places reliance on the evidence and material collected by him by then.
20 Though there was no express provision like subSection(8) of Section 173 of the new Code statutorily empowering the police to conduct further investigation into an offence in respect whereof, a chargesheet had already been filed and cognizance had already been taken under Section 190(1)(b), existence of such a power was recognized, in respect of cases covered by the old Code, in Ram Lal Narang v. State, Delhi Administration (AIR 1979 SC 1791), wherein the Supreme Court, observed, at para 22, as follows:
"22. As observed by us earlier, there was no provision in the Cr.PC., 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated 'investigation's on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the Page 9 of 26 R/SCR.A/1359/2014 CAV JUDGMENT offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further "investigation", the police could express their regard and respect for the court by seeking its formal permission to make further "investigation"."
21 Illustrating the situations, which may warrant further investigation by police, and the procedure, which the Court may have to follow on receipt of supplemental report of such further investigation, the Supreme Court, in Ram Lal Narang (supra), observed, at para 21, as follows:
"21. Anyone acquainted with the daytoday working of the criminal courts will be alive to the practical necessity of the police possessing the power to make "further investigation" and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused Page 10 of 26 R/SCR.A/1359/2014 CAV JUDGMENT and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the CrPC in such situations is a matter best left to the discretion of the Magistrate.
22 In the light of what have been observed and held in Ram Lal Narang (supra), it becomes crystal clear that a further investigation is not necessarily aimed at finding out materials against the accused. A further investigation may subserve the interest of the prosecution and, at times, even of the defence. There may be fresh materials, which may, on coming to light, necessitate further investigation either for strengthening the case against the accused or for exonerating him.
23 Coupled with the above, what also needs to be noted is that in Ram Lal Narang (supra), the Court had observed 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 into light".
24 The word 'ordinarily', appearing in the observations, made in Ram Lal Narang (supra), clearly indicates that in all cases and in all circumstances, it is not necessary for the police to obtain formal permission from the Magistrate to conduct 'further investigation', for, SubSection (8) of Section 173 gives statutory power to the police to conduct further investigation.
25 Exceedingly important, therefore, it is to recognize and bear it in mind, while considering the scope of further investigation in the realm of Section 173(8), is that long before Section 173(8) came to be introduced by way of amendment of the Code, the right Page 11 of 26 R/SCR.A/1359/2014 CAV JUDGMENT and duty of the police to register every information relating to the commission of a cognizable offence and also their statutory right and duty to investigate into such information were recognized to be not circumscribed by any power of superintendence or interference by the Magistrate so far as the cognizable offences are concerned. A reference, in this regard, may be made to the case of King Emperor v. Khwaja Nazir Ahmed, (AIR 1945 PC 18), wherein the Privy Council observed as follows:
"Just as it is essential that every one accused of a crime should have free access to a Court of justice, so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rules by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Courts, to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of Habeas Corpus. In such a case as the present, however, the Court's function begin when a charge is preferred before it and not until then....... In the present case, the police have under Sections 154 and 156 of the Criminal Procedure Code, a statutory right to investigate a cognizable offence without requiring the sanction of the Court........."
26 Correctly, therefore, points out that as far back as in Abhinandan Jha and others vs. Dinesh Mishra (AIR 1968 SC 117), the Supreme Court had held that the Magistrate could not direct Page 12 of 26 R/SCR.A/1359/2014 CAV JUDGMENT the course of 'investigation' and had no power to direct the police to submit a charge sheet, when the police had submitted a final report stating that no case was made out for sending the accused to trial. In such circumstances, the Magistrates role remained, if so required, to take cognizance of the offence. The relevant observations, made in Abhinandan Jha and others (supra), read as under:
"19. ....The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe (sic. Impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.
20. Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a chargesheet, when they have sent a report under section 169 of the Code, that there is no case made out for sending up an accused for trial."
27 No wonder, therefore, that the Supreme Court held, in Ramlal Narang v. State (Delhi Admn.), reported in (1979) 2 SCC 322, that the right and duty of the police is, ordinarily, to submit a report under Section 173(1) of the 1989 Code and it was, then, up to the Magistrate to take or not to take "cognizance" of the offence, because there was no provision, in the 1989 Code, allowing the police to conduct "further investigation" on fresh facts coming into light. There was, thus, as observed in Ramlal Narang (supra), no express provision prohibiting the police from launching investigation into the fresh facts coming into light after submission of police report or after the Magistrate had taken "cognizance" of the offence. The Supreme Court also observed, in Ramlal Narang Page 13 of 26 R/SCR.A/1359/2014 CAV JUDGMENT (supra), that there were differences in the judicial opinion as regards power of the police to conduct "further investigation", and the Law Commission, accordingly, in its 41st report, recommended that the police shall be given the right to make "further investigation" and it is this recommendation which has come to be embodied in the form of subSection (8) of Section 173, which empowers, now, the police to conduct "further investigation", but 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.
28 It may, however, be noted that, in the light of the decision, in Ramlal Narang (supra), although the police is free to conduct "further investigation" on fresh facts coming to light, yet the police is, ordinarily, required to obtain formal permission from the Court for the purpose of conducting such further investigation.
29 The word, "ordinarily", appearing in the observations, made in Ram Lal Narang (supra), clearly indicate, if we may repeat, that in all cases and in all circumstances, it is not necessary for the police to obtain formal permission from the Magistrate to conduct "further investigation", for, subSection (8) of Section 173 gives statutory power to the police to conduct "further investigation".
30 In Hasanbhai Valibhai Qureshi vs. State of Gujarat and others, reported in (2004) 5 SCC 347, the Supreme Court goes a step further and clarifies that police has the power to conduct "further investigation" de hors any direction from the Court even Page 14 of 26 R/SCR.A/1359/2014 CAV JUDGMENT after the Court has already taken "cognizanc"e. The relevant observations made by the Supreme Court, in Hasanbhai Valibhai Qureshi (supra), read as under :
"12. Subsection (8) of Section 173 of the Code permits further investigation and even de hors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted."
31 In Randhir Singh Rana vs. The State of Delhi, reported in (1997) 1 SCC 361, the Supreme Court took note of the fact that the Code has compartmentalized the powers to be exercised at different stages of a case, namely, (i) at the time of taking "cognizance", (ii) after" cognizance" is taken, (iii) after appearance of the accused and (iv) after commencement of trial on the charges being framed. It was urged, in Randhir Singh Rana (supra), that the power of the Court to direct "further investigation", undoubtedly, exists at the first stage (i.e., at the time of taking "cognizance"), it may exists at the second stage (i.e., after the "cognizance" is taken), but no such power exist in the intermediate (i.e., third stage). After taking of "cognizance", when an accused has appeared pursuant to the process issued against him, what the Court is required to do at that stage, is to look into the materials already on record, and either frame charge or discharge the accused depending upon the nature and adequacy of the materials on record and also the relevant provisions of the Code and that at the third stage, it is the power given to the Court under Section 311, which permits it on commencement of the trial, to examine any witness, at any stage, before the judgment is pronounced. This contention was upheld by the Supreme Court in Randhir Singh Page 15 of 26 R/SCR.A/1359/2014 CAV JUDGMENT Rana (supra) and it was held that a Magistrate, of his own, cannot order "further investigation" after an accused, pursuant to the process issued against him, has already appeared in the case. This aspect of the law becomes abundantly clear if one takes note of the observations of the Supreme Court in Randhir Singh Rana (supra). The relevant observations, made by the Supreme Court, in this regard, in Randhir Singh Rana (supra), read as under:
"11. The aforesaid being the legal position as discernible from the various decisions of this Court and some of the High Courts, we would agree, as presently advised, with Shri Vasdev that within the grey area to which we have referred the Magistrate of his own cannot order for further investigation. As in the present case the learned Magistrate had done so, we set aside his order and direct him to dispose of the case either by framing the charge or discharge the accused on the basis of materials already on record. This will be subject to the caveat that even if the order be of discharge, "further investigation" by the police on its own would be permissible, which could even end in submission of either fresh chargesheet."
32 At this stage, I should now look into the decision of the Supreme Court in the case of Reeta Nag (supra), on which strong reliance has been placed by the learned counsel appearing for the applicantaccused to contend that the application at the instance of the de facto complainant was not maintainable.
33 In Reeta Nag (supra), on the basis of a chargesheet filed, the SubDivisional Judicial Magistrate took "cognizance" and framed charges against six of the accused persons and discharged ten of them, the "chargesheet" having been filed altogether against sixteen persons. Subsequent thereto, an application was made by Page 16 of 26 R/SCR.A/1359/2014 CAV JUDGMENT the de facto complainant, under Section 173(8) CrPC, praying for "reinvestigation" of the case. Based on this application, the learned Magistrate directed the police to "reinvestigate" the case and submit a report. This was put to challenge by filing an application under Section 482 CrPC and the High Court set aside and quashed the learned Magistrates order, whereby "reinvestigation" had been directed to be conducted by the police. The order, passed by the High Court, was put to challenge by way of a Special Leave Petition.
34 In the fact situation, as mentioned above, it was contended, on behalf of the de facto complaint, that his application, made under Section 173(8), was an application for "further investigation", though it was styled as an application for "re investigation". The Supreme Court disagreed with the submission so made and held that the application was really an application for "reinvestigation" and the Magistrate had no power to direct "re investigation". While taking this view, the Supreme Court took notice of a number of decisions including the decision, in Randhir Singh Rana (supra), and pointed out that Randhir Singh Ranas case (supra) makes it clear that upon taking of "cognizance" of the offence on the basis of "police report" when accused appears, a Magistrate cannot, on his own, order "further investigation" in the case, though an order for further investigation can be made on the application of the investigating authorities. The relevant observations, appearing at paragraph 21, reads as under:
"21. In addition to the above, the decision of this Court in Randhir Page 17 of 26 R/SCR.A/1359/2014 CAV JUDGMENT Singh Rana case also mekes it clear that after taking cognizance of an offence on the basis of a police report and after appearance of the accused, a Judicial Magistrate cannot of his own order further investigation in the case, though such an order could be passed on the application of the investigating authorities."
35 What is, however, crucial to note is that in Reeta Nags case (supra), the Supreme Court has concluded that once chargesheet is filed under Section 173(2) CrPC, either a charge has to be framed or the accused has to be discharged. The Supreme Court has also pointed out, in Reeta Nags case (supra), that on the basis of a protest petition made by a complainant the Court can take cognizance of offence on complained of or, on the application made by the investigating authorities. The Magistrate may direct "further investigation", but the Magistrate cannot, suo motu, direct a "further investigation" or direct a " reinvestigation" into a case.
36 In Reeta Nags case (supra), since the investigating authorities had not applied for "further investigation", and it was only upon the application made by the de facto complainant under Section 173(8), that the direction for "reinvestigation" had been ordered by the Magistrate. The Supreme Court held that the course of action, which the Magistrate had adopted, was beyond his jurisdictional competence. The Court has further pointed out in Reeta Nags case (supra), that since the investigating authorities had not made any application seeking permission for "further investigation" under Section 173(8), the other course of action open to the Magistrate, was to take recourse to the provisions of Section 319 of the Code, at the stage of trial, if any material Page 18 of 26 R/SCR.A/1359/2014 CAV JUDGMENT surfaced during examination of the witnesses at the trial warranting exercise of power under Section 319. The Supreme Court observed in Reeta Nags case (supra), that not only was the Magistrate wrong in directing a "reinvestigation" on the application made by the de facto complainant, the Magistrate had also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant. The relevant observations, appearing at paragraph 25, 26 and 27 of Reeta Nag (supra), read as under:
"25. What emerges from the abovementioned decisions of this Court is that once a chargesheet is filed under Section 173(2) CrPC and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authorities permit further investigation under Section 173(8). The Magistrate cannot suo motu direct a further investigation under Section 173(8) CrPC or direct a reinvestigation into a case on account of the bar of Section 167(2) of the Code.
26. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173(8) was a direction given by the learned Magistrate to reinvestigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant.
27. Since no application had been made by the investigating authorities for conducting further investigation as permitted under Section 173(8) CrPC, the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of Section 319 of the Code at the stage of trial. We, therefore, see no reason to interfere with the order of the High Court since it will always be available to the Magistrate to take recourse to the provisions of Section 319 if any material is disclosed during the Page 19 of 26 R/SCR.A/1359/2014 CAV JUDGMENT examination of the witnesses during the trial."
37 Having reiterated in tune with Randhir Singh Ranas case (supra) that Magistrate cannot suo motu or on his own motion, direct "further investigation" under Section 173(8), the Supreme Court, in clear terms, has held at para 20, that since it was the de facto complainant and not the investigating authority who had applied for "further investigation" under Section 173(8), the Magistrate could not have directed reinvestigation, because such a course of action is beyond jurisdictional competence of the Magistrate. The conclusions, appearing in para 26 of Reeta Nag (supra), read as under:
"26. In the instant case, the investigating authorities did not apply for "further investigation" and it was only upon the application filed by the de facto complainant under Section 173(8) was a direction given by the learned Magistrate to reinvestigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant."
38 Having regard to the decision of the Supreme Court in the case of Reeta Nag (supra), and if the same is read with the decision of the Supreme Court in the case of Randhir Singh Rana (supra), then Mr. Trivedi, the learned counsel appearing for the applicant, is right in submitting that the application for further investigation by the de facto complainant before the trial Court was not maintainable.
Page 20 of 26 R/SCR.A/1359/2014 CAV JUDGMENT39 The remedy available with the accused or the de facto complainant if any, lies in filing an appropriate application before this Court invoking the inherent powers under Section 482 of the Code or writjurisdiction under Article 226 of the Constitution of India.
40 A learned Single Judge of this Court in the case of Nitinbhai Mangubhai Patel v. State of Gujarat and others reported in 2013 LawSuit(Guj) 1124 had the occasion to consider the issue on hand. I may quote the relevant observations of the learned Single Judge as under:
"Considering section 173(8) of the CrPC, there cannot be any further investigation at the instance of the accused on the on the grounds which infact are their defences which are required to be considered at the time of trial and that too after the IO has submitted the charge sheet against the accused having found prima facie case which requires further trial and more particularly on the very grounds the accused submitted the discharge applications which not only came to be rejected by the learned CJM but even the same was confirmed by the learned Sessions Court. Section 173(8) of the CrPC permits the IO / officer in charge of the police station for furtherinvestigation in respect of an offence after report under subsection (2) of section 173 has been forwarded to the Magistrate. Therefore, there cannot be a furtherinvestigation as provided under section 173(8) of the CrPC after a report under subsection (2) of section 173 of CrPC has been forwarded to the Magistrate and that too on the grounds which are the defences of the accused. The powers which are available for furtherinvestigation under section 173(8) of the CrPC would be available only to the IO/officer in charge of the police station. Under the circumstances and in the facts and circumstances of the case, as such the learned CJM was right in rejecting the applications Exhs.28 & 31 the applications which were submitted by the accused for furtherinvestigation under section 173(8) of the CrPC and consequently the learned 2nd Additional Sessions Judge, Surat has materially erred in interfering with the orders passed by the learned CJM below Exhs.28 & 31 and consequently ordering further Page 21 of 26 R/SCR.A/1359/2014 CAV JUDGMENT investigation.
At this stage the decision of the Honble Supreme Court in the case of State of Orissa vs. Debendra Nath Padhi reported in (2005)1 SCC 568 is required to be referred to. In the said decision the Honble Supreme Court has observed and held that at the time of framing charge or taking cognizance the accused has no right to produce any material. It is further observed that no provision of CrPC grants to the accused any right to file any material or documents at the stage of framing of the charge. It is further observed that that right is granted only at the stage of trial. If that be so, there cannot be any further investigation at the instance of the accused and that too after the chargesheet is filed on the grounds which infact are their defences, which are required to be considered at the time of trial.
[8] It cannot be disputed that even the learned Magistrate does not possess any powers and/or inherent powers for ordering further investigation under section 173(8) of the CrPC and as stated hereinabove, the powers for furtherinvestigation are only vested in the officer incharge of the police station / IO only. In the present case, the learned Revisional Court has materially erred in not appreciating the scope of furtherinvestigation under section 173(8) of the CrPC that too at the instance of the accused and when the chargesheet was already filed and even the grounds which are infact the defences of the accused. The revisional court has also not properly appreciated the fact that in the present case, CrPC does not confer any right on the Magistrate to pass an order under section 173(8) of the CrPC and that right is exclusively with the investigating agency and therefore, in absence of specific provision, the learned Magistrate has no power to pass order for furtherinvestigation.
[8.1] It is also required to be noted at this stage that in the present case chargesheet was filed against the accused persons on 22.04.2010 and the learned CJM took cognizance against the accused and even the learned CJM issued the summonses against the accused on 23.04.2010 and after the learned CJM took cognizance and issued summonses against the accused, the accused persons submitted the application Exhs.28 & 31 for furtherinvestigation after a period of one year and two months. Therefore, the question which is required to be considered by this Court is, whether after the IO has submitted that chargesheet against the accused persons and the learned Magistrate has taken the cognizance and issued the summonses against the accused, an application for furtherinvestigation that too at the instance of the accused is permissible or not?Page 22 of 26 R/SCR.A/1359/2014 CAV JUDGMENT
Considering section 173(8) of the CrPC and for the reasons stated hereinabove, as such the aforesaid would not be permissible. In the case of Randhir Singh Rana (Supra), the Honble Supreme Court has observed and held that a Judicial Magistrate, after taking cognizance of an offence on the basis of the police report and after appearance of the accused, cannot order of his own, furtherinvestigation under section 173(8) of the CrPC in the case.
In the case of Reeta Nag (Supra), the Honble Supreme Court has specifically observed and held that when no application has been made by the investigating authorities for conducting further investigation as permitted under section 173(8) of the CrPC, other course of action open to the Magistrate is to take recourse to the provisions of section 319 of the Code at the stage of trial.
In the case of Miteshkumar Rameshbhai Patel and Anr. (Supra), the learned single Judge of this Court had an occasion to consider the courts powers to direct furtherinvestigation under section 173(8) of the CrPC and it is held that court cannot, after cognizance is taken, direct furtherinvestigation by police. It is further held, however, the Court has power to direct furtherinvestigation before cognizance is taken. It is further observed that however, the powers of the police under section 173(8) of the CrPC to investigate further even after chargesheet is filed or cognizance is taken is unfettered.
Thus, considering the aforesaid decisions of the Honble Supreme Court as well as this Court, the learned Magistrate has no jurisdiction and/or powers to order furtherinvestigation under section 173(8) of the CrPC, after submitting the chargesheet by the police, on his own. Similarly, there cannot be any furtherinvestigation after the report is submitted against the accused, at the instance of the accused and more particularly when the learned trial Court has taken cognizance and issued the summonses against the accused and that too on the grounds which can be said to be the defences of the accused, which are required to be considered at the time of trial.
[8.2] Now, so far as the decisions relied upon by the learned advocates appearing on behalf of the accused referred to hereinabove and with respect to the fair investigation etc. are concerned, as such there cannot be any dispute with respect to proposition of law laid down in the aforesaid decisions. However, the question is with respect to exercise of powers of furtherinvestigation under section 173(8) of the CrPC that too after the report has been submitted by the IO Page 23 of 26 R/SCR.A/1359/2014 CAV JUDGMENT against the accused and the learned CJM has taken the cognizance and issued the summonses against the accused. Under the circumstances, the aforesaid decisions relied upon by the learned advocates appearing for the original accused would not be of any assistance to them in the facts of the present case and more particularly with respect to the controversy in the present revision application."
41 So far as the two decisions relied upon by Mr. Thakore are concerned, they are not helpful in any manner and are of no avail to the accused.
42 Apart from the issue of maintainability of an application filed by the accused for further investigation during the pendency of the trial, I have noticed that the impugned order has been passed in a very slipshod manner and on mere asking by the accused. There is no discussion worth the name as to why the further investigation is necessary. The further investigation should not be ordered because the accused wants to create any defence in his favour. In my view, the reasonings assigned by the learned Judge in the context of Section 313 of the Code are also untenable in law. I would rather say that the impugned order is a nonspeaking order. Having gone through the grounds on which further investigation was prayed for, it appears that the accused wants to create evidence in his favour at any cost.
43 I may quote with profit a decision of the Supreme Court in the case of Popular Tuthiah v. State reported in (2006) 7 SCC 296, wherein the Supreme Court, in paragraph No.48, made the following observations:
Page 24 of 26 R/SCR.A/1359/2014 CAV JUDGMENT"The High Court while passing the impugned judgment did not bear the said principles in mind. It went beyond its jurisdiction in directing the prosecution of the appellant before us. In a case of this nature, where a superior court exercises its inherent jurisdiction, it indisputably should remind itself about the inherent danger in taking away the right of an accused. The High Court should have been circumspect in exercising the said jurisdiction. When a power under subsection (8) of Section 173 of the Code of Criminal Procedure is exercise, the court ordinarily should not interfere with the statutory power of the investigating agency. It cannot issue directions to investigate the case from a particular angle or by a particular agency. In the instant case, not only the High Court had asked reinvestigation into the matter, but also directed examination of the witnesses who had not been cited as prosecution witnesses. It furthermore directed prosecution of the appellant which was unwarranted in law."
44 The accused wants the investigating officer to investigate the case from a particular angle which suits him and that includes even levelling allegations against other persons who have not been arrayed as accused.
45 In the overall view of the matter, I am convinced that the impugned order deserves to be quashed.
46 In the result, the Special Criminal Application No.1359 of 2014 is allowed. The impugned order dated 29.01.2014 passed by the learned Additional Chief Metropolitan Magistrate, Court No.11, Ahmedabad, below Exh.4, in the Criminal Case No.135 of 2013, is hereby quashed and set aside.
47 I shall now proceed to consider the second petition, which has been filed by the accused.
Page 25 of 26 R/SCR.A/1359/2014 CAV JUDGMENT48 The Special Criminal Application No.995 of 2014 is filed by the wife of Shri Kailash Gupta, praying for the following reliefs:
"11(A) That this Hon'ble High Court may issue an appropriate writ, order or direction, direction for transfer of the investigation of the case from DCB Police Station, Ahmedabad to CID Crime, or any other independent investigating agency as this Hon'ble Court may deem fit and proper.
(B) Pending hearing and final disposal of this petition this Hon'ble court may be pleased to stay further proceedings qua the accused in Charge Sheet No.19/2013 and 38 of 2013 pending in the Court of Additional Chief Metropolitan Magistrate, Ahmedabad.
(C) Pending hearing admission and final disposal of the present petition, Your Lordships may be pleased to grant orders in terms of prayer (A) & (B) above;
(D) That this Hon'ble High Court may issue adinterim exparte order in terms of prayer (A), (B), & (C).
(E) For such other relief as this Hon'ble High Court may deem fit."
49 In view of the order passed in Special Criminal Application No.1359 of 2014, the Special Criminal Application No.995 of 2014 should fail and is hereby rejected.
50 In view of the order passed in the main petitions, the connected applications, if any, have become infructuous and are disposed of accordingly.
(J.B.PARDIWALA, J.) chandresh Page 26 of 26