Punjab-Haryana High Court
Vikas Gupta vs State Of Punjab on 10 January, 2002
Equivalent citations: 2002CRILJ4165, II(2002)DMC45
Author: R.C. Kathuria
Bench: R.C. Kathuria
JUDGMENT R.C. Kathuria, J.
1. Vikas Gupta, petitioner seeks quashing of the order dated 30.8.2001 passed by the Chief Judicial Magistrate, Ropar whereby while declining to take into consideration the discharge report submitted in the shape of supplementary challan under Section 173(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') a direction was given that the accused shall face trial in respect of the charge'; under Sections 406 and 498A of the Indian Penal Code already framed against the petitioner-accused as per order dated 4.7.2000 passed by the then Additional Chief Judicial Magistrate, Ludhiana.
2. The essential facts have to be noticed briefly for the adjudication of the present petition. Anu Gupta had made a written complaint dated 23.12.1999 in the Court which sent the same under Section 156(3) of the Code to the Police Station Division No. 5, Ludhiana for registration of the case under Sections 406 and 498A, I.P.C. on the basis of which FIR No. 496 dated 23.12.1999 was registered against Vikas Gupta-petitioner, Tarsem Lal Gupta, Kanta Gupta, Vivek Gupta, Monika, Raman Singla and Suman. After investigation of the case, challan was filed against above named accused persons. Thereafter, further enquiry was conducted by Hardev Singh, Deputy Superintendent of Police, Civil Lines, Ludhiana and he found involvement of only Vikas Gupta, petitioner in the commission of crime and rest of the persons named by the complainant were found to be innocent. Consequently, a supplementary challan was presented only ' against Vikas Gupta and the remaining accused were shown in Column No. 2 of the report. Taking into consideration the supplementary challan filed, the Additional Chief Judicial Magistrate, Ludhiana framed the charge under Sections 406 and 498A, I.P.C. against the petitioner-accused on 4.7.2000. Thereafter, application dated 12.3.2001 was addressed to the Senior Superintendent of Police, Ludhiana with a prayer to get a further enquiry conducted into the matter by a senior officer of integrity. The said application was entrusted to the Superintendent of Police (Detective), Ludhiana. On completion of enquiry, the Superintendent of Police (Detective), Ludhiana submitted a fresh supplementary challan dated 29.3.2001 under Section 173(8) of the Code wherein he had concluded that the petitioner-accused too was innocent and his discharge from the case was sought. The Chief Judicial Magistrate, Ropar, to whom the case stood transferred considered the supplementary challan but ignored the findings of the Superintendent of Police (Detective), Ludhiana and rejected the prayer made for the discharge of the petitioner-accused, aggrieved by the order dated 30.8.2001, the present petition was filed.
3. Notice of this petition was given to the respondents. Anu Gupta, respondent-complainant has filed detailed reply dated 4.12.2001. It is pleaded by her that the matter had been re-investigated earlier by Shri Hardev Singh, Deputy Superintendent of Police, Civil Lines, Ludhiana and a supplementary challan excluding the accused except the petitioner had been filed in view of the evidence with the police. It is further stated that the charge had already been framed against the petitioner-accused on 4.7.2000 and submission of another supplementary challan dated 29.3.2001 was an attempt on the part of the petitioner-accused to throttle the cause of justice and for that reason justified the impugned order of the Magistrate who had declined to take notice of the prayer made in the supplementary challan for discharge of the petitioner.
4. I have heard learned Counsel for the petitioner, learned Assistant Advocate General, Punjab and learned Counsel for the complainant.
5. During the course of arguments, learned Counsel representing the petitioner did not assail the direction of the learned Chief Judicial Magistrate in the order dated 30.8.2001 whereby it was directed that the trial against the petitioner in respect of officers under Sections 406 and 498A, I.P.C. shall continue in terms of order dated 4.7.2000 of the learned Additional Chief Judicial Magistrate, Ludhiana. His main plea is that refusal by the learned Chief Judicial Magistrate, Ropar to take into account and place on record the supplementary challan dated 29.3.2001 submitted in terms of Section 173(8) of the Code was against the mandate of law. It has been contended that the prayer of the petitioner is confined to the extent that the supplementary challan dated 29.3.2001 filed by the Superintendent of Police (Detective) should be allowed to be placed on record so that the petitioner may be able to refer to the statements recorded during the course of trial if need be. It has also been contended by him that merely because permission of the learned Magistrate was not obtained by the Superintendent of Police (Detective), Ludhiana, when he re-investigated the matter is inconsequential under the circumstances of the case. It has been urged that there is no requirement of law that such a permission should invariably be obtained by the police before reinvestigating the matter and submissions of further report in terms of Section 173(8) of the Code. In support of the stand taken, reliance has been placed by him on Ram Lal Narang v. State (Delhi Admtt.), AIR 1979 SC 1719; Sri Bhagivan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. Stale of Andhra Pradesh and Ors., III (1999) CCR 141 (SC)=V (1999) SLT 538=AIR 1999 SC 2332, and State through C.B.I, v. Dawood Ibrahim Kaskar, II (1997) CCR 46 (SC)=1997 (3) RCR 567.
6. The State Counsel as well as the Counsel representing the complainant contested the stand taken from the side of the petitioner on the ground that permission of the Court for reinvestigation of the case had not been sought by the Superintendent of Police (Detective), Ludhiana. It has been urged by Counsel for the respondents that the supplementary challan dated 29.3.2001 had been rightly ignored and rejected by the learned Chief Judicial Magistrate, Ropar as per order dated 30.8.2001 as the police had transgressed its powers because charge had already been framed against the petitioner-accused and by re-investigating the matter, it had sought to nullify the order of the Court which, on consideration of the material on record, had framed charges against the petitioner-accused as per order dated 4.7.2000. Reliance has been placed on K. Chandrasekhar and Anr. v. State of Kerala, III (1998) CCR 11 (SC)=V (1998) SLT 130=1998 (2) RCR 720 (SC); Sri Bhagxvan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh (supra); Vijay Kumar v. Kamarudhin (Kerala), 1999 (2) RCR (Criminal) 262; Surender Singh v. State of Haryana (P&H), 2000 (3) RCR (Criminal) 652, and Rajneesh Kr. Singhal v. The State (NCT of Delhi), I (2001) CCR 237 (FB)=2001 (2) RCR (Criminal) 123.
7. In order to appreciate the respective stands taken by the parties, it is essential to notice the observations made in the cases cited by Counsel for the parties. In Ram Lal Narang v. State (Delhi Admn.) (supra), it was observed that "notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. There was no provision in the Code of Criminal Procedure (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 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 of authority, permits repeated investigations on discovery of fresh facts".
8. In State through C.B.I, v. Dawood Ibrahim Kaskar (supra), it was laid down that after the police had submitted the challan and the Magistrate had taken cognizance, the police has statutory power to further investigate in the offence and submit, a report to the Magistrate in respect of the involvement of other persons in the commission of offence. What procedure should be followed by the Magistrate in such a situation has been explained in this case. The fact remains that this was a case where further investigation of the case focussed the involvement of other accused who had not initially been sent for trial when the report was submitted by the police.
9. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh and Ors. (supra), it was observed as under :
"Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.), AIR 1979 SC 1791. The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the Court and seek formal permission to make further investigation.
In such a situation the power of the Court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the Court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we would not burden the Magistrate with such an obligation."
10. In K. Chandrasekhar v. State of Kerala (SC) (supra), the relevant observations which have bearing on the controversy are contained in para 25 of the judgment which reads as under :
"From a plain reading of the above section it is evident that even after submission of police report under Sub-section (2) on completion of investigation, the police has a right of further investigation under Sub-section (8) but not "fresh investigation' or 're-investigation'. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated June 27,1996 (quoted earlier) that the consent was being withdrawn in public interest to order a 're-investigation' of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear that they wanted a 'further investigation of the case', instead of 're-investigation of the case'. 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 inspiration from the fact that Sub-section (8) 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. Once it is accepted - and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji, 1994 (2) RCR (Crl.) 553 (supra), that an investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed notwithstanding withdrawal of the consent, and that "further investigation' is a continuation of such investigation which culminates in a further police report under Sub-section (8) of the Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State police to further investigate into the case. To put it differently, if any further investigation is to be made it is the C.B.I, alone which can do so, for it was entrusted to investigate into the case by the State Government. Resultantly, the notification issued withdrawing the consent to enable the State police to further investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the questions, whether Section 21 of the General Clauses Act applies to the consent given under Section 6 of the Act and whether consent given for investigating into Crime No. 246/94 was redundant in view of the general consent earlier given by the State of Kerala."
11. In Vijay Kumar v. Kamarudhin (Kerala) (supra), it was reiterated that the police has to obtain formal permission of the Court to carry out further investigation in the case.
12. In Surendcr Singh v. State of Haryana (P&H) (supra), the police after investigation had submitted the report to the Magistrate under Section 173 of the Code. Thereafter, it came across fresh evidence. Under these circumstances, it was observed that the police officer should be allowed to carry out further investigation of the case with the permission of the Court despite the fact that earlier it had submitted the cancellation report.
13. In Rajneesh Kr. Singhal v. The State (NCT of Delhi) (supra), the Court-observed that after the Magistrate takes cognizance the further investigation of the case under Section 173(8) of the Code can be directed by the Magistrate. It was also stated that restricting the power of the Magistrate would affect the administration of justice and the Magistrate cannot be made so powerless that it becomes incapable of correcting a wrong to advance the cause of justice.
14. From the principles laid down in the above mentioned cases, it is clearly spelled out that after the challan is submitted to the Court, the Magistrate can order further investigation of the case. Even the police has been invested with the power to further investigate the case despite the challan having been filed in the Court, the only limitation for exercise of such power is that prior permission of the Magistrate is required. The learned Counsel for the petitioner has contended that the Hon'ble Supreme Court in the above mentioned cases has only desired that ordinarily such a permission would be obtained. It has been urged that in cases where such permission is not obtained, the supplementary report submitted under Section 173(8) of the Code by the police should not be allowed to be discarded by the Magistrate because such a mandate does not flow from the above stated decisions. It is manifest that the submissions made by the learned Counsel for the petitioner as such cannot be accepted because that would not advance the cause of justice and would lead to anomalous situation as had happened in the present case. The police had already filed the challan and thereafter the matter was re-investigated by Hardev Singh, Deputy Superintendent of Police who found that involvement of other accused except the petitioner was not substantiated and consequently taking into account that report, the learned Magistrate had decided to frame charge against the petitioner-accused only under Sections 406 and 498A, I.P.C. Thereafter, on the application filed by the petitioner the police again re-investigated the matter and sought to exonerate the petitioner-accused as well. It is for that reason that in K. Chandrasekhar v. State of Kerala (SC) (supra), the Hon'ble Supreme Court has clearly observed that police has a right of "further investigation" under Sub-section (8) of Section 173 of the Code but not "fresh investigation" or "re-investigation". It is for that reason that the permission of the Court would be required by the police where it seeks to further investigate the matter in terms of the provisions laid down under Section 173(8) of the Code. Therefore, the supplementary challan dated 29.3.2001 submitted by the Superintendent of Police (Detective), Ludhiana had rightly not been taken into consideration by the learned Chief Judicial Magistrate as no such prior permission of the Court was obtained in this regard.
For the aforesaid reasons, there is no merit in the petition and the same is accordingly dismissed.