Patna High Court
Manilal Keshri And Ors. vs The State Of Bihar on 3 August, 2006
Equivalent citations: 2006CRILJ3981, 2006 CRI. L. J. 3981, 2007 (2) AIR JHAR R 56, (2006) 48 ALLINDCAS 943 (PAT), (2006) 4 EASTCRIC 221
Author: Mridula Mishra
Bench: Mridula Mishra
JUDGMENT Mridula Mishra, J.
1. Heard the counsel for the petitioners, opposite party No. 2 as well as the State.
2. The question involved in the present case is whether on completion of the investigation, submission of the chargesheet and order taking cognizance, supplementary chargesheet can be submitted without their being any fresh material for submission of second chargesheet and without any investigation in relation to the fresh material. Another question which has been raised is whether the supervision note of the Deputy Superintendent of Police, Barh, will be deemed to be a statement recorded under Section 161 of the Criminal Procedure Code and sufficient for submission of supplementary chargesheet.
3. Petitioners have filed this application for quashing the order, dated 07.04.2004, passed by the Additional Chief Judicial Magistrate, Barh, in Barh P.S. Case No. 186 of 2001 and also for quashing the supplementary Chargesheet No. 184 of 2003, dated 23.09.2003, on the basis of which cognizance of offence under Sections 302, 322, 307 and 34 of the Indian Penal Code and 27 of the Arms Act has been taken against the petitioners.
4. The first information report of Barh P.S. Case No. 186 of 2001 was instituted on 12.08.2001 on the basis of fardbeyan of Mahesh Kumar @ Lallu Kumar, who is petitioner No. 2 in this application. The prosecution story, in the first information report, is that the informant along with his servant, Chhotu @ Suraj Kumar, was going to his shop located at Barh Bazar. As soon as they reached near the house of one Navin Sao, Sanjay Kumar Sao and Vijay Kumar Sao, sons of Navin Sao, pounced Upon them and asked the informant why he has persuaded and gained over his servant. The informant replied that he has not pursuaded his servant and if Chhotu wants he is free to go and work for them. The servant, Chhotu @ Suraj Kumar, was not ready to go and work for them as he was not paid properly and also regularly beaten by them. Vijay Kumar Sao and Sanjay Kumar Sao caught hold of informant and his servant and started assaulting and abusing. This was protested by the informant, One Ram Sevak Sao came to intervene, on this Vijay Kumar Sao took out pistol and fired upon the informant, but it hit at the stomach of Ram Sevak Sao. He sustained injury, fell down and started bleeding profusely. On the sound of firing several people gathered and accused persons fled away. The injured was taken to Barh Hospital from where he was recommended for his treatment to Patna Medical College Hospital where he died in course of his treatment. Initially the case was registered under Section 307/34 and other allied sections of the Indian Penal Code as well as 27 of the Arms Act. After the death of the injured, Ram Sevak Sao, Section 302 of the Indian Penal Code was added in the case.
5. The case was investigated, statement of several witnesses, including the wife and son of the deceased, were also recorded. They supported the case of the prosecution. Subsequently, Navin Sao, father of the accused. Vijay Kumar Sao and Sanjay Kumar Sao, filed Complaint Case No. 300(C) of 2001 naming petitioner No. 2 and other petitioners as accused. Navin Sao also influenced the. son and wife of the deceased promising them substantial money and they also filed Complaint Case. No. 335(C) of 2001 as the petitioners refused to pay them money demanded by them.
6. On completion of investigation, the investigating officer closed investigation, ;js mentioned in paragraphs 130 and 131 of the case diary and submitted Chargesheet No. 44 of 2002 on 27.03.2003 against Vijay Kumar Sao and Sanjay Kumar Sao, cognizance was taken and the case was committed to the Court of sessions vide Sessions Trial No. 128 of 2003.
7. After the submission of the chargesheet, the father of the accused influenced the Deputy Superintendent of Police, Barh. On 31.05,2002, the Deputy Superintendent of Police without their being any direction of the superior authority or without taking any permission of the Court, submitted a report to the Superintendent: of Police, Rural, Patna, seeking permission to arrest the petitioners. The Superintendent of Police, Rural, Patna, refused to give such permission and directed that no further investigation is needed as chargesheet has already been submitted. Again on 23.09.2002, the Deputy Superintendent of Police, Barh, submitted another supervision note. In this supervision report, he mentioned that wife and son of the deceased have named petitioners. The Senior Superintendent of police, Patna, vide memo No. 1262, dated 26.02.2003, approved for prosecution of the petitioners and directed to submit supplementary chargesheet. Supplementary chargesheet No. 1 84 of 2003 was submitted on 23.09.2002 and cognizance was taken against the petitioners by order, dated 07.04.2005.
8. The wife of the deceased has entered appearance without any notice and filed a counter affidavit. In paragraph 7 of the counter affidavit it has been admitted by the opposite party that after submission of the first, chargesheet no further investigation was done, The investigating officer did not record statement of any witness.
9. Counsel for the petitioners submits that since there was no direction of any superior authority for further investigation, the Deputy Superintendent of Police, at his own instance, without seeking permission of the Court, could not have submitted fresh chargesheet on the basis of supervision notes, which is not even part 61 investigation. Sections 207 and 208 of the Criminal Procedure Code deals with supply of documents to the accused, which are commonly known as police papers. Police papers includes statement recorded under Section 161 of the Criminal Procedure Code of those persons whom the prosecution proposes to examine as witness, confessions and statements recorded under Section 164 of the Criminal Procedure Code and relevant documents extract thereof is forwarded to the Magistrate with police report under Section 173 of the Criminal Procedure Code. Supervision note is not included in the police papers as it is not part of investigation. This is the reason that it is not supplied to the accused. Supervision notes are only confidential official documents exchanged among the officials as informations/recommendations. The Apex Court lias put strong objection to such cases where reliance is placed on supervision note. In Eastern India Criminal Cases 2005 (1), 1 (Sukhu Beldar and Ors. v. The State of Bihar) it has been held that "supervision notes can not be utilised by the prosecution as piece of material evidence against the accused. At the same time the accused can not make any reference to them for any purpose. If any reference is made before any Court, the supervision note as has noted above, they are not to be taken note of by the concerned Court." In this circumstance, submission of second chargesheet, relying on supervision note, without any further investigation and without any fresh evidence, is patently illegal. Subsequent order ... of cognizance is also without jurisdiction. I find substance in .the submission of the counsel for the petitioners.
10. Counsel appearing for opposite party has submitted supervision by the Deputy Superintendent of Police is as good as investigation by the investigating officer. It is an investigation by superior police official other than investigating officer under Section 36 of the Criminal Procedure Code. Under Section 36 of the Criminal 'Procedure Code any police officer, superior in rank other than Officer-in-Charge of the police station, can investigate a case like. the Officer-in- Charge on the investigating officer. The Section confers power upon the superior police officer to investigate a case. This power can be exercised either suo moto or under the direction of the superior officer or the Government. In the present case though there was no direction of the superior officer to the Deputy Superintendent of Police, the Deputy Superintendent of Police has suo moto submitted supervision notes in exercise of jurisdiction under Section 36 of the Criminal Procedure Code. It has also been submitted that so far the submission of the chargesheet is concerned, it is on the basis of the direction of the superior authority, the Superintendent of Police, as the opposite party had approached the State Government. complaining about the investigation. The Deputy Secretary in the Secretariat of the Chief Minister had issued a letter to the Superintendent of Police to look into the matter. The Superintendent of Police, thereafter, directed the Deputy Superintendent of Police to submit supplementary chargesheet. The reports of the Deputy Superintendent of Police, in this view, is nothing but investigation under Section 36 of the Criminal Procedure Code. Accepting that there was such direction of the Deputy Secretary of the Chief Minister Secretariat to the Superintendent of Police, in that case he could have investigated the case himself in exercise of jurisdiction under Section 36 of the Criminal Procedure Code. This was not done, There is nothing to show that show that after receiving this direction the Superintendent of Police either interrogated any of the witness or collected any evidence, justifying the submission of second chargesheet. Supervision note of the Deputy Superintendent of Police can not be considered as investigation under Suction 36 of the Criminal Procedure Code, submission of second chargesheet as well as cognizance in any view can not be taken as legal and it is bad.
11. Admittedly, there is no legal bar against further investigation. Section 173(8) of the Criminal Procedure Code does not. restrict reopening of the case in which chargesheet has already been submitted and cognizance has been taken. Only precondition is that the reopening must be on the basis of fresh material, which were not available earlier and also that permission should be taken from Court. In (Ram Lal Narang v. The State of Bihar), 1996 (2) P.L.J.E., 158 (S.N. Singh v. The State of Bihar) 1994(2) P.L.J.R., 96 (Yamuna Pathak v. The State of Bihar and Anr.). In , it has been held "neither Section 173 nor Section 190 lead us to say that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance by the authority, permits repeated investigations on discovery of fresh facts. Police can exercise such right as often as necessary when fresh information comes to the light." In 1994(2) P.L.J.R., 96 also it has been held "supplementary chargesheet submitted by police on basis of material already collected. submission of supplementary chargesheet not on the basis of fresh evidence but only on reconsideration of evidence already collected at time of earlier submission of chargesheet is not contemplated under Section 173(8) of the Criminal Procedure Code."
12. In the present case, admittedly, there was no fresh material for submission of the second chargesheet. The second chargesheet was submitted only on reconsideration of evidence already collected at the time of earlier submission of the chargesheet. In this view the second chargesheet as well as order taking cognizance can not be considered in consonance with the provision of Section 173(8) of the Criminal Procedure Code
13. In the written argument, opposite party No. 2 has if tried to make out a case that the proceedings of complaint Case No. 335(C) of 2001 filed by opposite party No. 2 was stayed under Section 210 of the Criminal Procedure Code. Now when the police, has submitted the supplementary chargesheet in Barh P.S. Case No. 186 of 2001 . under Section 173(8) of the Criminal Procedure, Code complaint Case No. 335(C) of 2001 will be deemand to be merged/amalgamated with the police case the trial of accused, Mahesh 'Kumar @ Lallu, Mani Lal Keshri , Rajesh Kumar, Ganesh Kumar, who are accused in complaint case as also in the supplementary chargesheet would proceed separately and parallel to the trial of: Barh P.S. Case No. 186 of 2001. This submission can not be accepted considering the fact that the complaint case has got an independent status. The second chargesheet. submitted under Section 173(8) of the Criminal Procedure Code can not be deemed to have been amalgamated with the complaint case. The submission of the second chargesheet on the basis of stale material can not he justified on the basis of such argument for which there is no provision under Criminal Procedure Code.
14. Considering all this, I an of the view that two separate trials in same police; case on the basis of two chargesheets can not proceed specially when the second chargesheet is completely illegal and without jurisdiction.
15. Accordingly, the order taking cognizance, dated 07.04.2004, second chargesheet No. 184 of 2003 as well as the order of commitment passed in the 'case committing the case to the Court of sessions is quashed. Sessions Trial which is being conducted on the basis of first chargesheet will proceed. So far the complaint case is concerned, it will proceed on its own merit in accordance with law.
16. This application is allowed, accordingly.