Gujarat High Court
Sumanbhai Kantibhai Patel & vs Amrutbhai Shambhubhai Patel & on 10 April, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/2268/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2268 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 ?
Circulate to all JMFCs & Sessions Judges
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SUMANBHAI KANTIBHAI PATEL & 1....Applicant(s)
Versus
AMRUTBHAI SHAMBHUBHAI PATEL & 1....Respondent(s)
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Appearance:
MR UMESH A TRIVEDI, ADVOCATE for the Applicant(s) No. 1 - 2
MR TATTVAM K PATEL, ADVOCATE for the Respondent(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 10/04/2015
CAV JUDGMENT
By this writ-application under Article 227 of the Constitution of India, the applicants - original accused call in Page 1 of 22 R/SCR.A/2268/2014 CAV JUDGMENT question the legality and validity of the order dated 27 th May 2014 passed by the Chief Judicial Magistrate, Gandhinagar, below Exh.432 in Criminal Case No.4293 of 2011, by which the learned Magistrate allowed the application filed by the respondent no.1 herein - original first informant under Section 173(8) of the Code of Criminal Procedure, 1973, for further investigation.
The facts giving rise to this petition may be summarised as under :
The respondent no.1 - original first informant lodged a First Information Report against the applicants herein for the offence punishable under Sections 406, 420, 426, 467, 468, 471, 477B and 120B of the Indian Penal Code.
The dispute between the parties appears to be one relating to an agricultural land. It is the case of the first informant that the applicants herein have committed forgery by forging the signatures and thumb impressions of the family members of the first informant including the first informant in the register maintained by the Notary (Public). It also appears from the materials on record that in the past the first informant had complained of perfunctory investigation being carried out by the Investigating Officer. In that regard, a writ-application was filed before this Court and the same was ordered to be disposed of accordingly.
It appears that practically at the fag end of the trial when the matter was posted for final arguments, the first informant filed an application Exh.432 before the trial Court and prayed for further investigation under Section 173(8) of the Code on the ground that it is necessary to call for the report of the FSL Page 2 of 22 R/SCR.A/2268/2014 CAV JUDGMENT as regards one particular page in the register maintained by the Notary (Public) because, according to the first informant that one particular page appeared to have been stuck with one another page.
The application for further investigation came to be allowed by the trial Court vide order dated 27th May 2014. In the impugned order, there is a reference of the order passed by the Supreme Court in SLP (Cri) No.9106 of 2010, wherein the Supreme Court had issued directions to expeditiously dispose of the entire trial.
The application Exh.432 for further investigation was opposed by the applicants herein.
Feeling dissatisfied with the impugned order passed by the trial Court, the applicants have come up with this application. It appears that on 10th June 2014, notice was issued to the respondents. The trial Court was directed not to proceed further pursuant to the impugned order.
Mr.Trivedi, the learned advocate appearing for the applicants vehemently submitted that the trial Court committed a serious error in passing the impugned order. He submitted that at the fag end of the trial, and more particularly, without any valid ground the trial Court ought not to have ordered further investigation on mere asking by the first informant.
The principal submission of Mr.Trivedi is that the application filed by the first informant for further investigation before the trial Court under Section 173(8) of the Code was not Page 3 of 22 R/SCR.A/2268/2014 CAV JUDGMENT maintainable. He submitted that it is a settled position of law that even the Court cannot on its own direct further investigation after the charge-sheet is filed and cognizance is taken upon the same. He submitted that if the Investigating Officer wants to carry out any further investigation, then it is always open for him to carry out the same at any stage by bringing it to the notice of the Court concerned. To put it in other words, by formally informing the Court about the further investigation. In such circumstances, according to Mr.Trivedi, the first informant as a de-facto complainant had no right to file any application for further investigation at the fag end of the trial i.e. at the stage of final arguments. In support of his submission, Mr.Trivedi has placed strong reliance on the decision of the Supreme Court in the case of Reeta Nag v. State of West Bengal, (2009)3 SCC 1051. He submitted that the impugned order deserves to be quashed.
This application has been vehemently opposed by Mr.Tattvam Patel, the learned advocate appearing for the respondent no.1 - original first informant. He submitted that no error, not to speak of any error of law, could be said to have been committed by the trial Court in passing the impugned order. He submitted that the further investigation on the aspect stated in the application Exh.432 is very much necessary in the interest of justice. He submitted that the Investigating Officer failed to carry out the investigation in that direction. He also submitted that as such the accused has no right to oppose such application for further investigation and no prejudice would be caused if the further investigation on the limited grounds is carried out. Mr.Patel has placed reliance on few decisions of the Supreme Court so far as the law governing the subject of further investigation under Section Page 4 of 22 R/SCR.A/2268/2014 CAV JUDGMENT 173(8) of the Code is concerned. He submitted that in such circumstances referred to above, the application deserves to be rejected.
Mr.Dabhi, the learned APP appearing on behalf of the State submitted that in the course of investigation, the Investigating Officer has obtained the report of the FSL as regards the disputed document. He submitted that in view of the FSL report already on record, no fresh report of the FSL is required. He, however, submitted that since the trial Court has directed the further investigation, the Investigating Officer is otherwise duty-bound to carry out the same.
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 trial Court committed any error in passing the impugned order.
Coming to Sub-section (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 Page 5 of 22 R/SCR.A/2268/2014 CAV JUDGMENT a hindrance in the way of the Investigating agency which 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) 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.
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.
Reverting back to the said sub-section as enacted by the Legislature, it has to be noted that it is only permissive in character. The Investigating Officer (or Officer-in-Charge 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 Sub-section (8) of Section 173 after a charge-sheet was filed after investigation.
Page 6 of 22 R/SCR.A/2268/2014 CAV JUDGMENTAn 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 charge-sheet in the Court. In other words, the Investigating Officer believes and places reliance on the evidence and material collected by him by then.
Though there was no express provision like sub- Section(8) of Section 173 of the new Code statutorily empowering the police to conduct "further investigation" into an offence in respect whereof, a charge-sheet 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 Page 7 of 22 R/SCR.A/2268/2014 CAV JUDGMENT of the 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"."
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 day-to-day 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 Page 8 of 22 R/SCR.A/2268/2014 CAV JUDGMENT 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 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."
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.
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."
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, Sub-Section (8) of Section 173 gives statutory power to the police to conduct 'further investigation'.
Page 9 of 22 R/SCR.A/2268/2014 CAV JUDGMENTExceedingly 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 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 Page 10 of 22 R/SCR.A/2268/2014 CAV JUDGMENT 156 of the Criminal Procedure Code, a statutory right to investigate a cognizable offence without requiring the sanction of the Court.........."
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 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 Magistrate's 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 charge-sheet, 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."
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, Page 11 of 22 R/SCR.A/2268/2014 CAV JUDGMENT 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 (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 sub-Section (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.
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".
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, sub-Section (8) of Section 173 gives statutory power to the police to Page 12 of 22 R/SCR.A/2268/2014 CAV JUDGMENT conduct "further investigation".
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 after the Court has already taken "cognizance". The relevant observations made by the Supreme Court, in Hasanbhai Valibhai Qureshi (supra), read as under :
"12. Sub-section (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."
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 Page 13 of 22 R/SCR.A/2268/2014 CAV JUDGMENT 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 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 charge- sheet."
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 Page 14 of 22 R/SCR.A/2268/2014 CAV JUDGMENT appearing for the applicant-accused to contend that the application at the instance of the de facto complainant was not maintainable.
In Reeta Nag (supra), on the basis of a "charge-sheet"
filed, the Sub-Divisional Judicial Magistrate took "cognizance"
and framed charges against six of the accused persons and discharged ten of them, the "charge-sheet" having been filed altogether against sixteen persons. Subsequent thereto, an application was made by the de facto complainant, under Section 173(8) CrPC, praying for "re-investigation" of the case. Based on this application, the learned Magistrate directed the police to "re-investigate" 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 Magistrate's order, whereby "re-investigation" 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.
In the fact situation, as mentioned above, it was contended, on behalf of the de facto complainant, 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 "re-investigation" 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 Rana's case (supra) makes it clear that Page 15 of 22 R/SCR.A/2268/2014 CAV JUDGMENT 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 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."
What is, however, crucial to note is that in Reeta Nag's case (supra), the Supreme Court has concluded that once charge-sheet 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 Nag's 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 "re-investigation" into a case.
In Reeta Nag's 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 "re- investigation" had been ordered by the Magistrate. The Supreme Court held that the course of action, which the Magistrate had adopted, was beyond his jurisdictional Page 16 of 22 R/SCR.A/2268/2014 CAV JUDGMENT competence. The Court has further pointed out in Reeta Nag's 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 surfaced during examination of the witnesses at the trial warranting exercise of power under Section 319. The Supreme Court observed in Reeta Nag's case (supra), that not only was the Magistrate wrong in directing a "re-investigation" 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 charge-sheet 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 Page 17 of 22 R/SCR.A/2268/2014 CAV JUDGMENT 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 examination of the witnesses during the trial."
Having reiterated in tune with Randhir Singh Rana's 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 re- investigation, 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."
Having regard to the decision of the Supreme Court in Page 18 of 22 R/SCR.A/2268/2014 CAV JUDGMENT 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.
The remedy available with the de facto complainant, if any, lies in filing appropriate application before this Court invoking the inherent powers under Section 482 of the Code or writ-jurisdiction under Article 226 of the Constitution of India.
In the aforesaid context, assuming for the moment that the application for further investigation by a de facto complainant was maintainable, still I am of the view that the trial Court should not have exercised its discretion in the facts and circumstances of the case.
In the present case, the following facts are not in dispute :
(1) The oral evidence of the first informant got concluded on 3rd July 2012.
(2) The evidence of the Investigating Officer got concluded on 10th September 2013.
(3) The further statements of the applicants - original accused were recorded on 3rd December 2013.
(4) The application Exh.432 came to be filed on 13th February 2014.
(5) The impugned order came to be passed on 27th May Page 19 of 22 R/SCR.A/2268/2014 CAV JUDGMENT 2014.
The above referred dates would indicate that practically when the trial was on the verge of being concluded, the first informant thought fit to file the application Exh.432 for further investigation. As noted above, the evidence of the first informant got concluded way back in the year 2012. When the first informant was in the witness-box, it appears that he had a close look at the document in question, and while the same was in his hand, he could feel something unusual about the same because he felt that one of the pages in the register of the Notary (Public) was stuck with some other page. I am unable to understand why it took more than two years for the first informant to file the application for further investigation, more particularly, when he had doubts as regards the document way back in the year 2012 while he was in the witness-box. This is nothing but appears to be a figment of the imagination of the first informant as regards the document in question. I am of the view that on mere asking, and that too, at such a belated stage, the trial Court ought to have been very slow in exercising the discretion. I am conscious of the fact that further investigation is permissible at any stage, but that does not mean that it could be ordered without any application of mind, and that too, on mere asking by the first informant. The prime consideration for further investigation is to arrive at the truth and do real and substantial justice.
In the present case, the Investigating Officer has not thought fit to pray for further investigation. It is the first informant who is interested to see that the accused persons Page 20 of 22 R/SCR.A/2268/2014 CAV JUDGMENT are convicted, thought fit to file the application Exh.432. I am also conscious of the fact that the mere delay in concluding the trial also should not stand in the way of the further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. However, the moot question which remains unanswered is, whether the ground on which the further investigation has been ordered is a genuine and a justifiable ground.
I am also not impressed by the submissions canvassed on behalf of the first informant that the accused has no locus to oppose the further investigation. Well, it may be true that it was not necessary for the trial Court to hear the accused persons while deciding the application Exh.432, but having ordered the further investigation, I am of the view that atleast it is always open for the accused to challenge the same if it is otherwise not in accordance with law.
This is not a case where it could be said that defective investigation has come to light and the same should be cured by further investigation. This is a case in which the first informant has a doubt in his mind as regards the document in question. Such doubt was harboured by him in the year 2012 while he was in the box and he prayed for further investigation in the year 2014. For the time being, I am also willing to condone the delay on his part. However, there is no necessity of any further FSL report in that regard. I may only say that the entire register of the Notary (Public) came to be collected by the Investigating Officer in the course of the investigation and was forwarded to the FSL for its opinion. The report of the FSL Page 21 of 22 R/SCR.A/2268/2014 CAV JUDGMENT is very much on the record. Had there been anything doubtful or suspicious about any of the pages in the register, the same would have been definitely looked into by the FSL.
In the overall view of the matter, I am convinced that the impugned order deserves to be quashed.
In the result, this application is allowed. The impugned order passed by the trial Court below Exh.432 in Criminal Case No.4293 of 2011 is hereby ordered to be quashed. The trial should proceed further expeditiously in accordance with law.
(J.B.PARDIWALA, J.) After the order is pronounced, Mr.Tattvam Patel, the learned counsel appearing for the respondent-original complainant prays for stay of the operation of the order. For the reasons stated in the judgment, the prayer is rejected.
(J.B.PARDIWALA, J.) MOIN Page 22 of 22