Karnataka High Court
K A Uma Devi vs State Of Karnataka on 7 June, 2018
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
CRL.P. NO.2120/2018
BETWEEN
K A UMA DEVI
W/O DR.V.NARAYANSWAMY
AGED ABOUT 43 YEARS,
R/AT NO.50/1, 18TH CROSS
MALLESHWARAM
BANGALORE-560 055 ... PETITIONER
(BY SRI. ASHOK HARNAHALLI, SR. COUNSEL FOR
SRI. SRINIVAS RAO S.S., ADVOCATE)
AND
1. STATE OF KARNATAKA
BY MALLESHWARAM POLICE STATION
BANGALORE-560 003, REP. BY ITS SPP.,
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
2. DR GOPINATH R
DIRECTOR NIRBAYA SUPERSPECIALITY
HOSPITAL, 18TH CROSS, MALLESHWARAM
BANGALORE-560 055
3. DR BALAJI RAO A
DIRECTOR NIRBAYA SUPERSPECIALITY
HOSPITAL, 18TH CROSS, MALLESHWARAM
BANGALORE-560 055
... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP FOR R-1;
PETITION DISMISSED AGAINST
R2 & R3 V.O.DT. 7.6.2018)
2
THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO
QUASH THE FIR IN CRIME NO.124/2016 OF THE FIRST
RESPONDENT POLICE, AGAINST THE PETITIONER
HEREIN, FOR THE OFFENCES P/U/Ss. 143, 147, 341,
323, 504, 506 R/W 149 OF IPC.
THIS CRL.P COMING ON FOR ADMISSION ALONG
WITH IA NO.1/2018 FOR STAY THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the learned HCGP for the Respondent-State. Perused the impugned order dated 17.01.2018 passed by LVI Addl. CMM, Bengaluru, in C.C. No. 22441/2016, which reads as under:-
"The DCP, Crime-II, Bengaluru, filed a requisition seeking permission to investigate the matter under Section 173(8) of Cr.PC. and prays for order. Perused the papers. The accused is directed to appear after further final report. Await report. Call on 19.1.2018"
2. The said order is called in question by the petitioner herein, who claims that, during further investigation by the respondent-Police, they have arrested the petitioner and contemplating to file further 3 final report against this petitioner. The learned counsel has brought to the notice of this court that the order passed by the learned Magistrate is bereft of any reasons and further there is no opportunity given even to the Investigating Officer to ascertain as to what exactly the reason to go for further investigation in this particular case. Learned counsel also attacks the order on the ground that under Section 173(8) of Cr.PC., the Magistrate has no power even to order for further investigation. In this regard, the learned counsel has relied upon a decision of Hon'ble Apex Court reported in (2017) 4 SCC 177 [Amruthbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Pate and Ors.], wherein it has been observed at Para-49 to 51 thus:
49. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and 4 obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.
50. The un-amended and the amended sub-Section (8) of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorized to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings.
The recommendation of the Law Commission in its 41st Report which manifesting heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone.
51. In contradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate 5 and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the pre-cognizance stage even after a charge- sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the cognizance is taken, accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having 6 regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in the trial, and more 7 particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable, as has been rightly held by the High Court."
3. On meaningful understanding of the above said observation of the Hon'ble Apex Court, the Investigating agency can request for further investigation and that too in the circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand. Therefeore, it goes without saying that the Magistrate has got power to order for further investigation only on the request of the Investigating Agency, not on the requisition of the complainant or any other person. However, the sad decision makes it abundantly clear that, as the course is open to the Magistrate only grant permission for further investigation only on the request of the Investigating Agency, that too in the circumstances warranting further investigation on the detection of material evidence to secure fair investigation and trial. Therefore, what is incumbent 8 upon the Investigating Agency is to establish the circumstances warranting further investigation and the detection of material evidence before the Magistrate and after going through such circumstances and the materials on record, the Magistrate has to apply his judicious mind and if necessary permit the Investigating agency for further investigation.
4. As could be seen from the order passed by the learned Magistrate in this particular case, it is bereft of any reason. Even the order extracted above does not show any permission is actually granted for further investigation. However, this Court has to presume that such permission has been granted, because the Magistrate has directed the accused to appear after further investigation and submitting of further final report. However, the order does not disclose that, any request has been made by the Investigating Officer explaining the reason for further investigation and explaining the circumstances warranting for further investigation, and what are all the materials detected or materials available to secure 9 fair investigation and trial. The application filed by one Mr.Jinendra Khanagavi, Dy. Commissioner of Police, Crime-II, Bengaluru, also does not disclose as to under what circumstances, he would like to investigate the matter further. It is simply stated that the charge sheet has already been filed in this case and the Police Inspector, Malleswaram Police Station has handed over the papers to the concerned officer and he would like to investigate further. Except that, the said letter is not inconsonance with the direction of the Hon'ble Apex Court as noted above, in the said decision. As I have already noted that the Magistrate even though has powers to permit the Investigating Agency for further investigation, however, that order should be judicious and only after application of judicious mind and that sort of judiciousness, is absent in this case.
5. In the above circumstances, the petition is allowed. The order dated 18.01.208 passed by the LVI Addl. CMM, Bengaluru, in C.C. No. 22441/2016 permitting the Investigating agency to further investigate the matter is hereby quashed. However, 10 the Investigating Agency is at liberty to make necessary fresh application to the Magistrate explaining the circumstances warranting further investigation and furnishing materials for further investigation. After such an application being filed, the learned Magistrate has to apply his judicious mind in the light of the decision of the Hon'ble Apex Court cited supra, particularly in the light of Paras 49 to 51 and pass appropriate orders in accordance with law.
In view of disposal of this case, the application-IA No.1/2018 filed for stay, does not survive for consideration. Accordingly, the said application stands disposed of.
Sd/-
JUDGE KGR*