Jammu & Kashmir High Court - Srinagar Bench
Mohammad Younis Bhat vs State And Ors. 2010(2) Slj on 28 February, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Cr. Rev. No. 08 of 2013 Cr. MP. No. 53 of 2013 Mohammad Younis Bhat Petitioners State of J&K & others Respondents !Mr. M. M. Iqbal, Advocate ^None, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date: 28/02/2013 : J U D G M E N T :
1. The victim of alleged sexual assault, as per prosecution case was abducted by Shri Javed Ahmad Rather alias Jab Kasai Son of Abdul Rehman Rather Resident of Kanjiwar, Shopian and his accomplices in a red coloured Santro on 10th November, 2012 at 7.p.m, when she came out of her residence to answer call of nature. The matter was reported on the day of occurrence itself to Police Station Shopian. The report lead to registration of case FIR No. 345/2012 under Sections 366, 376, 109 RPC. The victim was recovered on 11th November, 2012 allegedly in a semi naked and semi conscious condition. Her medical examination revealed that she was sexually assaulted. It is important to note that in the First Information Report, while Shri Javed Ahmad Rather was nominated as accused, it was also alleged that he was aided and assisted by three other boys, in commission of the crime. The investigation was concluded as proved against Shri Javed Ahmad Rather alias Jab Kasai Son of Abdul Rehman Rather Resident of Kanjiwar, Shopian and a Charge-sheet alleging commission of offence under Sections 366, 376, 109 RPC presented before the local Magistrate. The case was committed to the Court of Sessions on 30.11.2012.
2. Before the matter was taken up by Learned Trial Judge in terms of Section 267 Cr. PC, the victim through her Counsel filed an application for further investigation. The victim pleaded that the investigating agency conducted the investigation in a casual and lifeless manner and avoided to identify three other accomplices of the accused involved in the crime and array them as accused before the Court. She insisted that Investigating Officer by concluding investigation as proved against Shri Javed Ahmad Rather, attempted to give an impression that the matter was investigated and alleged culprit brought to book, while the officer as a matter of fact had allowed other three accused equally involved in the crime, to go scot- free. The Investigating Officer, according to the victim had not bothered to trace the red Santro in which the victim was abducted, avoided to get the call details of the Cell-phone used by Shri Javed Ahmad Rather and to trace and identify his accomplices in the crime. The victim on the strength of grounds set out in the application, sought a direction under Section 173 (8) Cr.PC to the police concerned for further investigation of the matter, so that all those involved in the crime were brought to book and punished in accordance with law.
3. Learned Trial Judge rejected the application, opining that it had no jurisdiction to direct further investigation in the matter. In arriving at the above conclusion, learned trial judge placed reliance on case reported as Abdul Khaliq and Ors. Vs. State and Ors. 2010(2) SLJ-
625.
4. The Trial Court order dated 07.12.2012 is questioned in the instant petition under Section 435/561-A Cr. PC on the grounds set out therein.
5. Heard and Considered.
6. Society takes serious view of transgression that poses threat to its security, public order or the values on which the society has its edifice. It does not leave it for the victim of the transgression, to seek compensation or damages from wrongdoer but because of its gravity, and fall out on society at large, declares such transgression as offence punishable with fine, imprisonment of either description, or even death sentence.
7. The Penal Law defines offences and prescribes punishment for each of the offences, depending on seriousness or gravity of offence. The expression Offence is defined by Section 4 (k) of Code of Criminal Procedure as an act or omission made punishable by law for the time being in force. The offences are classified as cognisable and Non- cognisable. Section 4(d) defines expression Cognizable offence, and Cognizable case. Cognizable offence, means an offence for, and Cognizable case means a case in which, a police-officer may, in accordance with Second Schedule or under any law for the time being in force, arrest without warrant. Non-cognizable offence as defined by Section 4 (j) means an offence and Non-cognizable case means a case, in which a police officer may not arrest without warrant.
8. Second Schedule of the Code tabulates the offences punishable under the penal code and other penal laws indicating against each offence whether it is cognizable or Non-cognizable. The Code in part V Chapter XIV lays down mode and mechanism of registration of a cognizable case at a Police Station and its investigation as also investigation in a Non-cognizable case. The Scheme set out in Chapter (XIV) of the Code carves out role of Magistrate at every stage of investigationfrom the date the case is registered till the investigation concludes. Section 156(3) confers power on a Magistrate to order investigation of cognizable case. The Officer In- charge of a Police Station in terms of Section 157 of the Code is under an obligation to forthwith send a report of registration of case to the Magistrate, empowered to take cognizance of such offence upon a report. The object is to keep the Magistrate having jurisdiction over the matter informed of registration of a case so that he can exercise his power to control the investigation and issue directions from time to time and investigation proceeds on the right track. The other purpose is to leave no room for any concoction or after thought. The Magistrate on receiving the report in the matter may in terms of Section 159 of the Code direct an investigation or even to depute from any magistrate subordinate to him to hold a preliminary inquiry or otherwise dispose of the case in a manner provided in the Code. Sections 164 and 164-A Cr PCof the Code confer power on the Magistrate to record statements of the witnesses or confession made by the accused during investigation in accordance with the procedure laid down therein. The search and seizure, if any, made by the Investigating Officer during investigation is in terms of Section 165 of the Code to be reported to the Magistrate. In case the Investigating Officer, during investigation arrest an accused such accused is to be produced by the Magistrate within 24 hours of his arrest and the Magistrate as laid down in Section 167, may authorise his custody-remand him to police custody, if he satisfied that the arrested person is to be subjected to custodial interrogation or to judicial custody in case investigation is over. The report on conclusion of the investigation in terms of 169 or 170 of the Code is again to be laid before the Magistrate. The brief survey of the Scheme laid down in Chapter XV of the Code is to emphasise role of a Magistrate during investigation so as to examine whether the Magistrate looses power available under Chapter XV of the Code to direct further investigation once the investigation concludes and Charge-sheet or the final report submitted to Competent Court. The investigation, after passing different stages, culminates either in a Charge-sheet wherein the evidence collected is catalogued, the offence commission whereof such evidence reveals mentioned and the accused responsible for commission of crime identified, or a negative report showing alleged cognizable offence untraced or not proved.
9. The Code lays down procedure to be followed by the Court before which a person accused of commission of offence is brought for trial. The Code does not lean in favour of either of the parties i.e. prosecution or accused. Its object is that the trial is conducted in fair, transparent and effective manner so that neither accused brought for trial is denied an opportunity to defend himself nor does accused guilty of offence go unpunished and off hook. A person alleged to have committed an offence is may be to be brought before the Court by the victim of the offence, by filing a complaint before the Court. However, a good number of such transgressions are so grave, complex and serious that it may not be possible for the victim to collect the evidence and bring it on record to prove guilt of accused. The society necessarily has to take responsibility, step into shoes of victim, evolve a mechanism to unravel and dig out true facts relating to the commission of offence and thereafter bring such evidence before the Court so that the accused does not go unpunished.
10. This is the reason that social planners do not feel satisfied only with making transgressions that pose threat to the society and are lethal to law and order penal. A mechanism has been laid down to enquire into and investigate such offences so that all facts with evidence in support thereof and the conclusions drawn are laid before the Court. In case such a mechanism would not have been provided for at public expense, a large number of perpetrators of crime would go off the hook and escape punishment because of non-availability of evidence against them. The victim in such case would hardly be expected to gather and piece together evidence and bring it before the Court.
11. The question arises whether the conclusion drawn by the Investigating Officer at the end of investigation is final word on subject and cannot be reopened or given a second look after the Charge-sheet reflecting such conclusion is presented before the Magistrate. The cases can be visualised where post investigation revelations lead to the conclusion that important evidence was overlooked by the Investigating Officer while finalising investigation. The Code takes care of such an eventuality Section 173 (8) needs to be notified. It reads;
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section(2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).
12. A bare look at the above provision makes it evident that the Charge- sheet presented before a Magistrate on conclusion is not last word on the matter as regards investigating agency. The Investigating Officer, may proceed on further investigation if the facts and circumstances so warrant and forward evidenceoral or documentary collected during such further investigation to the Magistrate. The provision of 173(2) & 173(6) are to govern such report in the same manner as these apply to Charge-sheet presented in terms of Section 173(2) of the Code. The power given to the Investigating Officer to make further investigation is not dependant on the permission of the Magistrate seized of the matter, In other words the Investigating Officer is not required to seek permission from the Magistrate to proceed on further investigation. However once he decides to go for further investigation, he is expected to keep the Magistrate aware of the matter so that the proceedings on the Charge-sheet are conducted in a smooth manner and are not rendered inconsequential because of the material that may be placed before Magistrate after the further investigation is concluded.
13. The question that is pivotal to the fate of the petition on hand, is whether the Magistrate or the Court to which the case is committed can order further investigation even where the Investigation Officer does not on his own embark on such an exercise. The view taken by the Learned Sessions Judge is that the Court lacks jurisdiction to direct further investigation and such power exclusively belongs to the Investigating Officer, Learned Sessions Judge, while so opining has drawn support from Abdul Khaliqs case (supra).
14. Section 173 (8) of the Code lays down that filing of a Charge-sheet in terms of Section 173(2) Cr.PC shall not be deemed to preclude further investigation. It in other words leaves scope for further investigation even after the Charge-sheet in terms of Section 173(2) Cr.PC is filed. It does not say that the power to make further investigation would be exercisable exclusively by the Investigating Officer. It also does not prohibit a direction from the Magistrate or the Court to which the case is committed to order further investigation,. The expression used in the aforesaid provision is essentially enabling in character. It visualises a situation where some aspects of the matter under investigation, for one or other reason, escape attention of the Investigating Officer and come to surface, either through information received by the Investigating Officer or to the Magistrate/Court and deserve to be looked into even if the investigation stands culminated in a Charge-sheet. We need to be reminded that the end game of investigation is to unravel a crime and dig out all the facts that resolve it and with all possible clarity such un veil the accused responsible for commission of crime. It would be irrational to conclude that the Magistrate before whom a Charge-sheet under Section 173(2) is presented or even the Court to which the case committed, would be powerless to issue a direction for further investigation, even where it is convinced that some of the aspects of the alleged crime have been ignored or some evidence has been excluded therefore rendering it impossible to proceed against the accused involved in the commission of the crime. The legal proposition that while Investigating Officer has power to proceed with further investigation even after he has concluded investigation and filed Charge-sheet before Competent Court, but the Magistrate or the Court to which the case is committed would not have such power even where it is satisfied that further investigation is called for, is on the face of it preparations without merit. The power of a Magistrate to order further investigation independent of Section 175(8)can be even located in Section 156(3) of the Code.
15. Supreme Court in Hemant Dassmana Vs. Central Bureau of Investigation and Another AIR 2011 Supreme Court 2721 examining the power of Special Judge Ant-Corruption to order further investigation after the Charge-sheet under Section 173(2) Cr.PC is filed, has held the Special Judge to have such a power and allowed the Appeal against judgement of the High Court whereby the order of the Special Judge was set aside. It would be advantageous to reproduce hereunder para 16 of the judgement, it reads;
16. Although the said sub-section does not in specific terms, mention about the powers of the Court to order further investigation the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the Court. When any such order is passed by a Court which has the jurisdiction to do so it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. After the further investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back to that track. If they come to the same conclusion it is of added advantage to the persons against whom the allegations were made, and if the allegations are found false again the complainant would be in trouble. So from any point of view the Special Judges directions would be of advantage for the ends of justice. It is too premature for the High Court to predict that the Investigating Officer would not be able to collect any further material at all. That is an area which should have been left to the Investigating Officer to survey and recheck.
16. The issue of further investigation de novo/fresh investigation and reinvestigation again surfaced before the Supreme Court in Vinay Tyagi Vs. Irshad Ali 2013 AIR SCW 220. The Court dilating on ambit of scope of further investigation observed;
15.Further investigation is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a further investigation. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as Supplementary report. Supplementary report would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a reinvestigation, fresh or de novo investigation.
17. The Court proceeded to observe;
Magistrate has the power to direct further investigation after filing of a police report in terms of Section 173(6) of the Code. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8). The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own. The settled view that the police as a matter of procedural propriety has to seek permission of the Court to continue further investigation and file supplementary charge-sheet clearly supports the view that the Magistrate has power to direct further investigation. The Magistrate however has no power to direct reinvestigation or fresh investigation in the case initiated on the basis of a police report.
18. The Court after scanning case law on the subject summarised the principles emerging from the discussion in para 30 of the judgement. It would be advantageous to reproduce aforesaid para of the judgement hereunder: -
30. Having analysed the provisions of the Code and the various judgements as afore-indicated, we would state the following conclusions in regard to the powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code:
1. The Magistrate has no power to direct reinvestigation or fresh investigation (de novo) in the case initiated on the basis of police report.
2. A Magistrate has the power to direct further investigation after filing of a police report in terms of Section 173(6) of the Code.
3.The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singhs case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence.
4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate.
The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own.
6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue further investigation and file supplementary charge sheet. This approach has been approved by this court in a number of judgements. This as such would support the view that we are taking in the present case.
19. From the above discussion and case law on the subject it is abundantly clear that the Magistrate has power to direct further investigation and in the event such direction is passed the Investigating Officer has to submit a supplementary report, detailing oral or documentary evidence it has been able to collect on such further investigation and spelt out conclusion deducible therefrom. The supplementary report so filed is to be read as part of the Charge- sheet or primary report and the Magistrate has to proceed in the matter accordingly.
20. It is pertinent to point out that amendment to the Code by Act XXXVII of 1978 has done away with committal proceedings. The Charge-sheet in a case exclusively triable by Court of Sessions, presented before the Magistrate is to be committed in terms of Section 205-D of the Code to the Court of Sessions without any proceeding before the Magistrate except recording satisfaction that the case is triable exclusively by the Court of Sessions. In the circumstances the case is committed by the Magistrate more often on the very date the Charge- sheet is presented by the Station House officer Incharge Police Station. The complainant of the victim obviously may not have an opportunity to approach the Magistrate with an application seeking further investigation on the ground that some important evidence oral or documentary has been deliberately or otherwise left out and that a direction is required to be given to the Investigating Officer to further investigate the matter. It would be irrational and against the object of the Code to restrict the power to direct further investigation to the Magistrate and not to the Court to which the case is committed.
21. In the present case the victim of alleged abduction and sexual assault approached the trial Court with an application for further investigation at the very outset, before the Public Prosecutor would open or introduce the prosecution case and the Court hear Public Prosecutor and defence Counsel to decide whether the accused was to be charged/ discharged. The trial Court therefore was not right in rejecting the application for further investigation, moved by the victim, more so when there were cogent and convincing reasons set out in the application in support of the prayer for further investigation. Against the said back drop exercise of inherent powers is called for to secure the ends of justice.
22. For the reasons discussed, the petition is allowed and the Trial Court order dated 07.04.2012 set aside in exercise of inherent powers under Section 561 A Cr PC. Resultantly, the application filed by the victim is allowed and the Investigating Officer S.H.O P/S Shopian directed to make further investigation in the matter against the backdrop of the averments made in the application and submit supplementary report based on such further investigation within four weeks from the date of receipt of this order. The Trial Court shall thereafter proceed in the matter having regard to the supplementary report so submitted with the evidence collected and conclusions drawn, of course in accordance with law.
(Hasnain Massodi)
Srinagar Judge
Yousf
28.02.2013