Tripura High Court
Sri Sujan Sutradhar & Others vs State Of Tripura on 11 December, 2019
Author: Akil Kureshi
Bench: Akil Kureshi
Page 1 of 5
HIGH COURT OF TRIPURA
AGARTALA
Crl.Petn. No.47/2019
Sri Sujan Sutradhar & others
----Petitioner(s)
Versus
State of Tripura
-----Respondent(s)
For Petitioner(s) : Mr. D.J. Saha, Advocate.
For Respondent(s) : Mr. Ratan Datta, P.P.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
Order
11/12/2019
This petition is filed by the original accused to challenge an order dated 06.05.2019 passed by the learned Judicial Magistrate First Class, Agartala, West Tripura in case No.PRC(W/P) 117/2017.
Brief sequence of events may be noted:
On 21.12.2016 police had filed an information report alleging offence punishable under Section 325 read with Section 34 of the Indian Penal Code against unnamed persons. Father of one Biswajit Debnath, claiming to be victim of the said incident filed a cross F.I.R. on 22.12.2016 in which the petitioner along with two others were named as accused persons. During the course of the trial, 12(twelve) witnesses were examined. On behalf of the victim, an application was moved on 16.05.2018 for summoning 4(four) witnesses not named in the charge-sheet. This application was rejected by the learned Magistrate on 16.05.2018. According to the petitioner, the investigating agency thereafter submitted a Page 2 of 5 supplementary charge-sheet dated 18.07.2018 under Section 173(8) of the Criminal Procedure Code (Cr.P.C., for short). The learned Magistrate did not accept such supplementary charge-sheet by passing an order on 19.01.2019. On 28.02.2019 the investigating agency moved an application before the learned Magistrate for permitting further investigation. On this application, the impugned order came to be passed. The learned Magistrate was of the opinion that it is always open for the investigating agency to carry out further investigation and present a supplementary charge-sheet for which no permission of the Court is needed. Further even the Judicial Magistrate during the course of the trial can order further investigation. On such grounds in the impugned order the learned Magistrate passed the following order:
"Considering the same the prayer for further investigation is allowed and O/C East Agartala P/S is directed to submit the report in the proper form and not merely the statement of the witnesses after conducting further investigation by himself or designated police officer under him.
Fix 10/06/19 for report by O/C East Agartala P/S." Appearing for the petitioner original accused learned counsel Mr. D.J. Saha submitted that in fact of the present case the Magistrate ought not to have exercised the powers for permitting further investigation. These are the very 4(four) witnesses whom the victim wanted to examine for which purpose application for summoning the witness was filed but rejected by the Magistrate. The attempt on the part of the investigating agency to file a supplementary charge-sheet including statements of these Page 3 of 5 witnesses which were subsequently recorded was also not permitted by the Magistrate. These orders are brought to a naught by allowing the subsequent application of the investigating agency by the impugned order. He submitted that there are no valid grounds shown why statements of these so called eye witnesses were not previously recorded.
On the other hand, learned Public Prosecutor opposed the petition contending that the learned Magistrate has exercised discretionary powers. Facts of the case warranted further investigation which has been allowed. Previously there was no supplementary charge-sheet filed by the police. He produced on record a communication dated 28.06.2018 from the Sub Inspector, East Agartala Police Station to the learned Magistrate in which after referring to the statements of 4(four) additional witnesses recorded by the police liberty sought for collecting evidence and filing supplementary charge-sheet under Section 173(8) of the Cr.P.C.
It would thus appear that previously there was no supplementary charge-sheet submitted by the police. The question of accepting or non-accepting such supplementary charge-sheet, therefore, did not arise. Based on the application filed by the investigating agency, the Magistrate has exercised his discretionary powers and called for further investigation and supplementary charge-sheet. I see no error in the order passed by the learned Magistrate. Learned Public Prosecutor correctly pointed out a decision of Supreme Court in case of Bikash Ranjan Rout vs. State through the Secretary (Home), Government of NCT of Page 4 of 5 Delhi, New Delhi reported in AIR 2019 SC 2002 in which it is held that after taking cognizance of an offence the Magistrate cannot suo motu order further investigation. However, the Investigating Officer is at liberty to file application for such further investigation. This is what has been done in the present case.
For the record one may also take note of the recent decision of Supreme Court in case of Vinubhai Haribhai Malaviya and others vs. State of Gujarat and another reported in AIR 2019 SC 5233 in which three Judge Bench of the Supreme Court has expanded this proposition and clarified that the Magistrate even at the post-cognizance stage has the power to order further investigation under Section 156(3) of the Cr.P.C. However, in the present case we are not concerned with this controversy.
The contention of the learned counsel for the petitioner that the statements of 4(four) so called eye witnesses were recorded much later under inexplicable circumstances would be a relevant consideration if these persons are cited as witnesses in the ongoing trial and are examined by the investigating agency. Surely the facts that these witnesses did not come forward earlier to give the statements before the police and the investigating agency also did not record their statements for a long time, would be relevant considerations while judging the reliability of these witnesses and the very question whether they can be trusted to be genuine eye witnesses. Since the trial is pending, it would not be appropriate on my part to make any further observations. Leave the issues for Page 5 of 5 consideration by the learned Magistrate during the course of the trial.
With these observations, petition is disposed of. Pending application(s), if any, also stands disposed of.
(AKIL KURESHI), CJ Pulak