Punjab-Haryana High Court
Darshan Kumar And Others vs The State Of Punjab And Another on 28 October, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.M-11366 of 2009 (O&M)
Date of decision: October 28, 2013
Darshan Kumar and others
...Petitioners
Versus
The State of Punjab and another
...Respondents
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.Denesh Goyal, Advocate
for the petitioners.
Ms.Harsimrat Rai, Deputy Advocate General, Punjab
for the respondent-State.
Mr.J.P.Sharma, Advocate
for respondent No.2.
****
INDERJIT SINGH, J.
The petitioners have filed the present petition under Section 482 Cr.P.C. against the State of Punjab and Pushap Singla for quashing complaint under Sections 406, 419, 420, 427, 355, 506, 494, 465, 467, 468, 471 and 120-B IPC, pending before learned Sub Divisional Judicial Magistrate (SDJM), Sunam, challan dated 25.12.2007 in FIR No.133 dated 25.03.2002 as well as charge-sheet dated 11.12.2008 and all the subsequent proceedings arising therefrom, pending in the court of SDJM, Sunam.
The brief facts as stated in the petition are that marriage of petitioner No.1 was solemnized with respondent No.2 in the year 1985 Gulati Vineet 2013.12.17 13:57 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-11366 of 2009 -2- and out of this wedlock, two children were born. It is in the petition that respondent No.2 used to compel petitioner No.1 to live separately from his parents. Respondent No.2 left the matrimonial house and started living separately. Son of the petitioner No.1 started living with him and daughter with respondent No.2. Respondent No.2 also filed a civil suit for rendition of accounts. She also filed criminal complaint No.101 dated 20.05.1997 in the Court of learned SDJM, Sunam against the petitioner and his brother and two other persons under Section 323/34 IPC and the petitioners were convicted and sentenced but in the appeal, they have been acquitted. Petitioner No.1 filed divorce petition against respondent No.2 and Addl. District Judge, Patiala dismissed the said divorce petition. A appeal has been filed which is pending in this Court. It is further stated in the petition that respondent No.2 is a practicing lawyer and was adamant to ruin the petitioner No.1. She again filed complaint under Section 406 IPC etc. and the FIR No.133 dated 25.03.2002 was registered. The dowry articles were returned to respondent No.2. The petitioners were released on bail by the Court. One of the accused moved application before Senior Superintendent of Police, Sangrur for cancellation of said FIR. DSP Sunam enquired into the matter and gave well reasoned report dated 27.12.2002 and found the case to be totally false and recommended for filing of untrace report. Accordingly, police filed untraced report on 20.03.2003. Thereafter, respondent No.2 being complainant, appeared in the Court on 27.09.2003 and made statement that she does not agree with the investigation Gulati Vineet 2013.12.17 13:57 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-11366 of 2009 -3- conducted by the police and learned Judge sent back the untraced report to police for re-investigation. Police again submitted the untraced report. Respondent No.2 again appeared in the Court on 07.01.2004 and made statement that she does not agree with the investigation and she wants to file a private complaint. After passing of the order, the case was adjourned number of times and respondent No.2 filed a private complaint against eight persons. Thereafter, learned Judge passed the order to attach the untraced report with the aforesaid complaint. The case was adjourned number of times till the year 2006 on various grounds including for the compromise and later on after the close of the preliminary evidence, the case was adjourned for so many days for consideration and then adjourned to 23.11.2007. It is also stated in the petition that respondent No.2 with her malafide intention and in connivance with the police officials, without disclosing the fact that police has already submitted cancellation report and even after an order passed by the Court, re-investigation was conducted, on which the police has again submitted their cancellation report in the Court and moreover her private complaint is pending before the learned Court, moved an application dated 11.10.2007 before SSP, Sangrur for re-investigation and she succeeded in getting challan dated 25.12.2007 presented against the petitioners in the Court on 24.01.2008. On the basis of challan dated 25.12.2007, learned Judge framed charges against the petitioners, which the petitioners have challenged as illegal. Notice to respondent No.2 was given. She also filed reply, in which the main averments are denied. Gulati Vineet 2013.12.17 13:57 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-11366 of 2009 -4-
I have gone through the record minutely and have heard learned counsel for the parties.
From the record, I find that at the time of arguments, the main facts have been admitted and not contested. It is admitted fact that FIR in question has been registered and the police filed untraced report. As the complainant made statement in the Court regarding not agreeing with the cancellation report, the Court passed the order for re-investigation. The orders have been reproduced in the petition itself. Then the police again filed untraced report after re- investigation. Then again the complainant made statement in the Court regarding not agreeing with the cancellation report and stated that she will file a private complaint. The private complaint has been filed in the Court and the Court as per its order, attached the cancellation report with the complaint and preliminary evidence was recorded by the Court. When the proceedings were already pending in the complaint case before the Court and the untraced report is also pending and the Court had not passed any order and rather, attached it with the complaint, then the police re-investigated the case without any order from the Court and filed challan (report under Section 173 Cr.P.C.). This re-investigation challan dated 25.12.2007 was presented in the Court on 24.01.2008. When the untraced report is pending for consideration before the Court, re-investigation into the matter cannot be ordered. The order of SSP, Sangrur of the year 2007 is Annexure P-9, where he directed to again start investigation in the matter and accused persons be arrested and the case be decided Gulati Vineet 2013.12.17 13:57 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-11366 of 2009 -5- at the earliest. Annexure P-10 is second presentation of challan under Section 173 Cr.P.C., which nowhere shows that this challan/report has been presented under Section 173(8) Cr.P.C. i.e. after further investigation. Rather, it looks that a fresh challan has been presented after re-investigation of the matter. The Court after the presentation of challan on 24.01.2008, ordered its registration as per Annexure P-11. As per Annexure P-12, vide order of SDJM, Sunam dated 07.11.2008, the private complaint was clubbed with the challan/report under Section 173 Cr.P.C. As per Annexure P-13, accused were charge-sheeted vide charge-sheet dated 11.12.2008. The perusal of the record shows that no order was passed regarding challan (untraced report) filed earlier, rather that was pending before the Court. The fresh challan has been presented on the order of SSP Sangrur directing the police to investigate the matter, which means to re-investigation, which is prohibited under the law and cannot be ordered. The report filed on 24.01.2008 in the same FIR after re- investigation in the matter is under Section 173 Cr.P.C. and it is not the report under Section 173(8) Cr.P.C. i.e. after further investigation. It is settled law that further investigation can be conducted under Section 173(8) Cr.P.C. but neither Court nor any other police official can order re-investigation after the presentation of report under Section 173 (Cr.P.C.) in the Court. Learned counsel for the petitioners cited judgment passed by the Hon'ble Supreme Court in Reeta Nag vs. State of West Bengal and others, 2009(4) RCR (Criminal) 207, in which it is held that if an Investigating Officer submits charge-sheet Gulati Vineet 2013.12.17 13:57 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-11366 of 2009 -6- then filing of said charge-sheet did not preclude him from carrying on further investigation in terms of Section 173(8) Cr.P.C. and further investigation is admissible even if cognizance has been taken by the Magistrate on the charge-sheet filed under Section 173 Cr.P.C. It is further held that the Magistrate had no jurisdiction to order re- investigation on an application of de facto complainant. I have gone through above citation and it fully applies to the facts of the present case.
Learned counsel for the petitioners further cited 2006(4) RCR (Criminal) 538 titled as Tarsem Singh vs. State of Haryana. In this case also, the Court held that police presented cancellation report and subsequently asked for withdrawal of cancellation report. Police cannot be permitted to withdraw the cancellation report.
The Hon'ble Supreme Court in Ramachandran vs. R. Udhayakumar and ors., 2008 (5) SCC 413 has held as under:-
6. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or re-investigation. This was highlighted by this Court in K. Chandrasekhar v.
State of Kerala and Ors., 1998 (5) SCC 223. It was, inter alia, observed as follows:
"24. The dictionary meaning of "further" (when used as an adjective) is "additional; more;
supplemental". "Further" investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn Gulati Vineet inspiration from the fact that sub-section (8) 2013.12.17 13:57 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-11366 of 2009 -7- clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports - and not fresh report or reports - regarding the "further" evidence obtained during such investigation."
7. In view of the position of law as indicated above, the directions of the High Court for re-investigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173 (8) of the Code.
On the same point, the Hon'ble Supreme Court in Mithabhai Pashabhai Patel & ors. vs. State of Gujarat 2009 (6) SCC 332 has also referred the above cited judgment and held as under:-
17. It is, however, beyond any cavil that `further investigation' and `reinvestigation' stand on different footing. It may be that in a given situation a superior Court in exercise of its Constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a 'State' to get an offence investigated and/or further investigated by a different agency.
Direction of a reinvestigation, however, being forbidden in law, no superior Court would ordinarily issue such a direction."
Pasayat, J. in Ramachandran v. R. Udhayakumar, 2008 (3) RCR (Criminal) 47, 2008(3) RAJ 547, (2008) 5 SCC 413, opined as under :-
"7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or re-investigation.
18. A distinction, therefore, exists between a re-
investigation and further investigation.Gulati Vineet 2013.12.17 13:57 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-11366 of 2009 -8-
The Hon'ble Supreme Court while giving the distinction between investigation and re-investigation has discussed both the above cited judgments in Virender Prasad Singh vs. Rajesh Bhardwaj and others, 2010 (4) R.C.R (Criminal) 93.
Therefore, in view of the law cited above, it is clear that Senior Superintendent of Police, Sangrur has no power to re-
investigate the case when the cancellation report under Section 173 Cr.P.C. has already been pending before the Court. Only further investigation could have been ordered. As the complaint filed by the complainant and untraced report is pending before the Court, therefore, the presentation of report under Section 173 Cr.P.C., after re-investigating the matter is not as per law. The further proceedings taken on the basis of that report which was presented on 24.01.2008, for framing the charges etc., are illegal and not as per law and therefore, the report presented before the Court on 24.01.2008 and subsequent proceedings are hereby quashed. However, on the complaint and earlier untraced report, the Court can proceed as per law.
October 28, 2013 (INDERJIT SINGH)
Vgulati JUDGE
Gulati Vineet
2013.12.17 13:57
I attest to the accuracy and
integrity of this document
Chandigarh