Bombay High Court
At The Instance Of Senior vs Prataprao @ Mahesh Baban on 20 September, 2010
Author: S.C. Dharmadhikari
Bench: V. M. Kanade, S.C. Dharmadhikari
1
WP 3233/09
with APPLN 237/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3233 OF 2009
The State of Maharashtra )
(At the instance of Senior )
Inspector of Police, City )
Police Station, Karad Taluka )
District Satara) ) .... Petitioner.
v/s
1. Prataprao @ Mahesh Baban )
Bhosale, Residing at Datta Mandir )
5th lane, Agashiv Nagar, Tal: Karad,)
Dist: Satara )
)
2. Dhananjay Tukaram Patil, )
Residing at post Atake, Tal: Karad, )
Dist: Satara )
)
3. Sagar Babu Parmar )
Residing at Karve Naka, Trimurti )
Colony, Karad. )
)
4. Hamid Rahim Shaikh, )
Residing at Bapuji Salunke Nagar, )
Goleshwar, Karve Naka, Karad. )
)
5. Salim Mohammed Shaikh )
Residing at Shivraj Apartment, )
125, Shaniwar Peth, Shinde Galli, )
Karad, Dist : Satara )
)
6. Lazam Alladin Hodekar, )
Residing at post Bote, Tal: Karad, )
Dist: Satara. )
)
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2
WP 3233/09
with APPLN 237/10
7. Babasaheb Raghunath More, )
Residing at post Pachputewadi, )
Tal: Karad, Dist: Satara. )
)
8. Ashfaq Mubarak Sonde, )
Residing at 93, Mangalwar Peth, )
Karad, Dist: Satara )
)
9. Sambhaji Khashaba Patil, )
Residing at post Undale, Tal:Karad,)
Dist: Satara )
)
10. Sachin Laxman Chavan, )
Residing at post Dhamane, Tal.
ig )
Paltan, Dist : Satara )
)
11. Muddassar Nizam Momin )
Residing at post Malkapur, Tal: )
Karad, Dist : Satara ) ..... Respondents.
----
Shri Ravi Kadam, Advocate General with Shri P.A. Pol, Public
Prosecutor & Mr S.R. Shinde, APP for the Petitioner - State.
Shri A.V. Anturkar, Senior Counsel i/b Shri Dilip Bodake for
Respondent Nos. 1 and 2.
Shri V.V. Purwant for Respondent Nos. 7 and 9.
Shri Sanjeev Kadam for Respondent Nos. 3, 4 and 5.
Shri Siddheshwar Kale i/b Smt. Savita Yadav for Respondent
Nos. 6, 10 and 11.
----
ALONGWITH
CRIMINAL APPLICATION NO.237 OF 2010
IN
CRIMINAL WRIT PETITION NO.3233 OF 2009
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3
WP 3233/09
with APPLN 237/10
Shri Dinkar Tukaram Pawar, )
Aged 48 years, residing at )
514/B, Mangalwar Peth, Satara ) ...Applicant.
V/s
State of Maharashtra ) .... Respondent.
Shri S.R. Borulkar i/b Mr. Vinod Jadhav for the applicant.
CORAM: V. M. KANADE, J.
DATE : 20th September, 2010
ORAL JUDGMENT:
1. The aforesaid Writ Petition was admitted on 23/2/2010 by my brother B.R. Gavai, J. who was pleased to pass the following order:-
"An important question of law as to 'whether the learned Sessions Judge has a jurisdiction to transfer the investigation from one agency to another' arises for consideration in the present matter. Hence, issue Rule. Ad interim relief in terms of prayer clause (b).
Taking into consideration the ::: Downloaded on - 09/06/2013 16:27:17 ::: 4 WP 3233/09 with APPLN 237/10 important issue involved in the present mater, the hearing is peremptorily fixed on 27.04.2010."
2. On 27/04/2010, the aforesaid Writ Petition was mentioned before this Court and a grievance was made by the learned Counsel appearing on behalf of Respondent Nos.
1 and 2 that the State Government, after rule was granted, was not taking any steps to serve the other accused. The State Government was, therefore, directed to take adequate steps to serve the other respondents and the matter was kept for final hearing on 22/06/2010. Thereafter, the aforesaid Writ Petition was adjourned from time to time and was taken up for final hearing along with Criminal Application No. 237 of 2010 which has been taken out by the Public Prosecutor and in the said application he has prayed that the strictures which are passed against him by the learned Sessions Judge in the impugned order may be expunged.
3. Brief facts are as under:-
::: Downloaded on - 09/06/2013 16:27:17 ::: 5 WP 3233/09 with APPLN 237/104. An FIR was registered on 15/1/2009 on a complaint filed by Respondent No.1 in which he has alleged that when one Sanjay Tukaram Patil and others came out of Hotel Shiv Darshan at Karad, two unknown persons opened fire with their fire arms and fired about 10-12 rounds towards Sanjay Tukaram Patil who sustained grievous injuries and collapsed on the spot and subsequently died as a result of the said injuries.
5. On 16/1/2009, the Investigating Officer recorded the statement of Respondent No.2, a brother of the deceased and also his wife Shubhangi S. Patil. The statements of other witnesses were recorded who stated that one of the assailants was Respondent No.3 - Sagar Parmar. Thereafter, the statements of other witnesses were recorded on 17/1/2009 viz. Vaibhav Bhimrao Patil, Abhay Dinkar Patil and Suryakant Jaising Jamle who stated that there was some altercation between the deceased and one Babasaheb R. More and Salim Mohammed Shaikh during the period of election of A.P.MC., Karad. The Investigating Officer ::: Downloaded on - 09/06/2013 16:27:17 ::: 6 WP 3233/09 with APPLN 237/10 arrested accused/Respondent Nos. 3 to 11 after 19/01/2009 and also recovered fire arms used in the commission of the offence. On 24/1/2009, Respondent Nos. 1 and 2 in their supplementary statements disclosed their suspicion against one Uday V. Patil and Anandrao @ Rajendra J Patil and, according to them, panel of this person was defeated by the panel headed by the deceased in the elections of A.P.M.C., Karad.
The Investigating Officer, after completing the investigation, filed a charge-sheet in the court of J.M.F.C. Karad.
6. The Respondent Nos. 1 and 2, after the charge-sheet was filed, filed Criminal Writ Petition No.770 of 2009 in this Court seeking transfer of investigation to CBI or any other agency. The said Petition was withdrawn by the Respondents and the following order was passed:-
"CORAM: SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI, J.
DATE : 7TH MAY, 2009 P.C. ::: Downloaded on - 09/06/2013 16:27:17 ::: 7 WP 3233/09 with APPLN 237/10 Learned Counsel appearing for the Petitioner wishes to withdraw the present Petition with liberty to move the learned Trial Court as the charge sheet is stated to have been filed before Court of competent jurisdiction. All the contentions sought to be raised in this writ petition are kept open.
The Petition is allowed to be withdrawn with liberty as prayed."
7 Thereafter, Respondent Nos. 1 and 2 filed an application in the Court of Additional Sessions Judge, at Karad under section 173(8) of the Criminal Procedure Code in which they prayed that further investigation or reinvestigation of the case be entrusted with equivalent higher police authority or to State CID or to CBI under the supervision of the Court as per the provisions of section 173(8) of the Cr.P.C. Reply was filed by the prosecution on 10/10/2009. The learned Sessions Judge heard the said ::: Downloaded on - 09/06/2013 16:27:17 ::: 8 WP 3233/09 with APPLN 237/10 application and by his judgment and order dated 24/11/2009 was pleased to allow the said application and a direction was given for further investigation under section 173(8) of the Cr.P.C which was entrusted to the State CID, Pune by withdrawing it from Karad Police Station. Further, direction was given to the Additional Commissioner of Police, State CID, Pune to supervise the further investigation by appointing a responsible Officer as the Investigating Officer who shall submit status report within fifteen days from receipt of the said order. Being aggrieved by the said order, State Government has filed this Writ Petition under Article 227 of the Constitution of India.
8. Shri Ravi Kadam, the learned Advocate General appearing on behalf of the State submitted that the important questions which fall for consideration before this court are (i) whether the original complainant had locus standi to file an application for further investigation by CID or CBI after the charge-sheet was filed before the Session Court, (ii) Whether the Session Court had jurisdiction to order further investigation under section 173(8) of the Cr.P.C ::: Downloaded on - 09/06/2013 16:27:17 ::: 9 WP 3233/09 with APPLN 237/10 and (iii) whether the Session Court, after committal of the cognizable case after the charge-sheet was filed, could direct the Government to change Investigating Agency and further direct either CID or CBI to carry out further investigation and, thereafter monitor the said investigation.
9. So far as the first question is concerned, it is submitted by the learned Advocate General appearing on behalf of the Petitioner - State that the complaint/FIR is registered under section 154 of the Cr.P.C. He submitted that the Police alone have right to investigate and submit a report to the Magistrate under section 173(1) of the Cr.P.C and that the original complainant, thereafter, does not have any say in the matter. Even at the time of trial, he can, at the most, engage his own lawyer who can watch the proceedings which are conducted by the Public Prosecutor. He submitted that, therefore, after committal of the case to the Session Court, there was no question of the original complainant filing an application for further investigation since that right was conferred by the State only on the Public Prosecutor or Investigating Officer.
::: Downloaded on - 09/06/2013 16:27:17 ::: 10 WP 3233/09 with APPLN 237/1010. So far as the second and third questions are concerned, the learned Advocate General, firstly, invited my attention to the power of the Police Officer to investigate the cognizable offence which is provided under section 156 of the Criminal Procedure Code. He submitted that in view of section 156(1) any Officer in charge of a Police Station could investigate any cognizable offence which the Court having jurisdiction over local area within the limits of the said Police Station would have power to inquire into or try under the provisions of Chapter XIII and, secondly, under sub-clause (3) of section 156 the Magistrate could order investigation under section 190. It is submitted that the Magistrate being a creature of the Statute viz Criminal Procedure Code, his power to direct the investigation is circumscribed by the provisions of Cr.P.C and he has no inherent power to give independent directions of investigation. He then invited my attention to the definition of the term "officer in charge of a police station" which is defined under section 2(o) of the Cr.P.C. It is submitted that the said term does not include any one who is not an officer in the said Police Station and ::: Downloaded on - 09/06/2013 16:27:17 ::: 11 WP 3233/09 with APPLN 237/10 only the State Government can direct any other officer to be an officer in charge of a police station. He then invited my attention to the definition of the term "police station" which defines the police station as any post or place declared generally or specially by the State Government. He submitted that, otherwise, Notification has to be issued by the State Government under section 2(s) for declaring any area as a police station. He submitted that the Head Quarters of the CID has not been declared as police station by the State Government. He invited my attention to one such Notification issued by the State of Maharashtra dated 17/11/2004 declaring that the office of the Anti-Terrorist Squad, Maharashtra State, Mumbai situated at Traffic Institute Building, Sir J.J. Road, Byculla, Mumbai shall be the Police Station with effect from the 17th November 2004 for various offences under the Indian Penal Code, Narcotic Drugs and Psychotropic Substances Act, 1985, the Explosive Substances Act, 1908 and the Official Secrets Act, 1923. It is, therefore, submitted that the State CID which is one of the Departments set up by the Police for its own internal administration could not fall under the definition of the term ::: Downloaded on - 09/06/2013 16:27:17 ::: 12 WP 3233/09 with APPLN 237/10 "police station" and, therefore, the State CID could not be said to be the officer in charge of a police station. He then invited my attention to sections 3 and 4 of the Bombay Police Act, 1951 and submitted that superintendence and control of organization of police force vests in the State Government. He, therefore, submitted that the State CID being one of the Branches of the Police Force, the State Government alone is competent to transfer the investigation from the police officer in charge of a police station to the State CID Branch. He then invited my attention to section 173(2) of the Cr.P.C. and submitted that only the Officer in charge of a police station could forward the charge-sheet after completion of investigation for the purpose of taking cognizance of the offence. He then invited my attention to section 173(8) and submitted that the said sub-clause was in the nature of clarification that even after submitting a report under sub-clause (2), power of the officer in charge of a police station to obtain further evidence is not taken away and it will continue in spite of the report being filed and he could forward the further report after further investigating the matter. He submitted that, therefore, original source of ::: Downloaded on - 09/06/2013 16:27:17 ::: 13 WP 3233/09 with APPLN 237/10 power to investigate and submit a report or to further investigate after filing of the charge-sheet was vested in the police officer in charge of a police station and the learned Magistrate could not order reinvestigation or further investigation on his own or on the application by the original complainant or direct another agency such as CID or CBI to further investigate the case. He submitted that this power of transferring the investigation from the officer in charge of a police station to the CID or CBI could alone be exercised by the High Court or Supreme Court while exercising its writ jurisdiction. He submitted that this power could not be exercised by the Magistrate and, therefore, there was no question of the Session Court exercising such power after committal of the proceedings by the Magistrate to the Session Court.
11. The learned Advocate General firstly relied on the Judgment of Division Bench of this Court in The State of Maharashtra vs. Ibrahim Adamwall Patel delivered in Writ Petition No.1781 of 2004 on 10/12/2007. He then invited my attention to the judgment of the Apex Court in Central ::: Downloaded on - 09/06/2013 16:27:17 ::: 14 WP 3233/09 with APPLN 237/10 Bureau of Investigation, Jaipur vs. State of Rajasthan and another 1. He then invited my attention to the judgment of the Apex Court in Reeta Nag vs. State of West Bengal and others 2 for the purpose of canvassing the proposition that, even suo motu, the Magistrate could not order investigation under section 173(8). He then invited my attention to the judgment of the Apex Court in Randhir Singh Rana vs. State (Delhi Administration) 3 which was referred to in the judgment of Reeta Nag4 (supra) and more particularly para 11 of the said judgment. He then invited my attention to the judgment of the Apex Court in Mithabhai Pashabhai Patel and others vs. State of Gujarat 5 on the question of investigation, reinvestigation and further investigation. He also relied on the judgment of the Apex Court in Rana Chaudary vs. State of Bihar6 delivered on 02/04/2009. He then invited my attention to the Judgment of the Apex Court in Hemant Dashmana vs. Central Bureau of Investigation and another 7 in respect of the power of the Magistrate to 1 AIR 2001 SC 668 2 (2009) 9 SCC 129 3 (1997) 1 SCC 361 4 (2009) 9 SCC 129 5 (2009) 2 SCC (Cri) 1047.
6 Criminal Appeal No.619 of 2009 arising out of SLP (Crl.) No.370 of 2009 7 (2001) 7 SCC 536 ::: Downloaded on - 09/06/2013 16:27:17 ::: 15 WP 3233/09 with APPLN 237/10 order further investigation under section 173(8). Then he invited my attention to the judgment in Ramachandran vs. R. Udhayakumar and Others1 wherein the question as to whether fresh investigation or reinvestigation could be done at the instance of directions given by the Single Judge of the High Court was considered. On the question of locus standi of the accused, the learned Advocate General relied on two judgments; one of the Apex Court in Sanjay Bansal and another vs. Jawaharlal Vats and others 2 and the another in J.K. International vs. State (Govt. of NCT of Delhi) and others 3. He also distinguished the judgments on which reliance is placed by the learned Counsel appearing on behalf of Respondent Nos. 1 and 2.
12. Shri Anturkar, the learned Senior Counsel appearing on behalf of Respondent Nos. 1 and 2 on the point of locus of the complainants who filed an application in the Session Court, firstly submitted that the de facto complainant has the locus standi not only at the time when no offence report 1 (2008) 5 SCC 413 2 (2007) 13 SCC 71 3 2001 SCC (Cri) 547 ::: Downloaded on - 09/06/2013 16:27:17 ::: 16 WP 3233/09 with APPLN 237/10 is submitted under section 169 of the Criminal Procedure Code but he also has locus standi for making protest application against the tainted and defective investigation.
In support of the said submission, he relied upon the judgment in J.K. International 1(supra) and particularly on paragraph Nos. 9, 10, 11, 12, 13 and 14 of the said judgment. He also relied upon the observations made by the Apex Court in Bhagwant Singh vs. Commr of Police 2 which is referred to in J.K. International 3(supra) case - para 13 and
14. He then relied upon the judgment of the Apex Court in Manohar Lal vs. Vinesh Anand and others 4. Lastly, he relied upon the judgment of the Apex Court in Kishan Lal vs. Dharmendra Bafna and another5.
13 The learned Counsel appearing on behalf of Respondent Nos. 1 and 2 then submitted on the second point as to whether the Session Court has power to give direction for further investigation that after the case is committed to the Session Court, in view of section 193 of the Cr.P.C., it 1 2001 SCC (Cri.) 547 2 (1985) 2 SCC 537 3 2001 SCC (Cri) 547 4 2001 CRI.L.J. 2044 5 (2009) 3 SCC (Cri) 611 ::: Downloaded on - 09/06/2013 16:27:17 ::: 17 WP 3233/09 with APPLN 237/10 becomes the court of original jurisdiction having unfettered discretion and, therefore, a direction for further investigation could be given by the Session Court under section 173(8).
He relied upon the judgment of the Apex Court in Nisar and another vs. State of U.P.1. He then submitted that the definition of the term "officer in charge of a police station"
as defined under section 2(o) and the word "investigation"
as defined in section 2(h) are both inclusive definitions. He then submitted that in view of definition of the word "investigation" as defined in section 2(h), the Magistrate, in an appropriate case, could direct investigation to be conducted even by non-police officer and, therefore, he submitted that even assuming that CID is not an officer in charge of a police station, still that would not prohibit the Magistrate to order CID investigation. He relied upon the judgment of the Apex Court in Nirmal Singh Kahlon vs. State of Punjab and others2 and another judgment of the Apex Court in Directorate of Enforcement vs. Deepak Mahajan and another 3. Then while repelling the contentions of the 1 (1995) 2 SCC 23 2 (2009) 1 SCC 441 3 (1994) 3 SCC 440 ::: Downloaded on - 09/06/2013 16:27:17 ::: 18 WP 3233/09 with APPLN 237/10 learned Advocate General, he submitted that the ratio of the judgment of the Division Bench of this Court (Coram: SRI R.M.S. Khandeparkar & SRI A.A. SAYED, JJ) dated 10/12/2007 in The State of Maharashtra vs. Ibrahim Adamwall Patel and of the judgment in Central Bureau of Investigation, Jaipur vs. State of Rajasthan and another 1 would not apply to the facts of the present case since the said judgments were on the power of the Magistrate to issue directions under section 156(3) only and the said judgments cannot be stated to be an authority for the proposition that the Magistrate cannot direct CID investigation under section 173(8). He submitted that there is essentially a basic difference between the scope of section 156(3), 202, 173(8) and 319 of the Code and, therefore, the judgments under section 156(3) could not be used for interpreting section 173(8). He then submitted that the language used in section 156(3), particularly the word "such" and the word "as above-
mentioned" are restrictive in nature and no such restrictive words could be found in section 173(8) and in that context the word "investigation" defined in section 2(h) is also 1 AIR 2001 SC 668 ::: Downloaded on - 09/06/2013 16:27:17 ::: 19 WP 3233/09 with APPLN 237/10 required to be seen. He also relied upon the judgments in Wasudeo Madhaorao Asarkar and another vs. State of Maharashtra 1, in S.P. Khanna, Dy. Official Liquidator, Laxmi Bank Ltd., Nagpur vs. S.N. Ghosh 2 and the judgment of the Supreme Court in Devarapalli Lakshminarayana Reddy and others vs. V. Narayana Reddy and others3 which was followed in Kishan Lal vs. Dharmendra Bafna and another 4.
He then submitted that submission of the learned Advocate General that direction to carry out further investigation by CID or CBI could be given by the High Court and the Supreme Court alone, is also not correct. In support of his submission, he relied upon the judgment in Kishan Lal vs. Dharmendra Bafna and another5. He also tried to distinguish the judgment in Reeta Nag vs. State of West Bengal and others 6 and in Randhir Singh Rana vs. State (Delhi Administration) 7 relied upon by the learned Advocate General. He relied upon the judgments in Hemant Dhasmana vs. Central Bureau of Investigation and another 8, 1 1975 Mh.L.J. 404 2 1976 Mh.L.J. 150 3 (1976) 3 SCC 252 4 (2009) 3 SCC (Cri) 611 5 (2009) 3 SCC (Cri) 611 6 (2009) 9 SCC 129 7 (1997) 1 SCC 361 8 (2001) 7 SCC 536 ::: Downloaded on - 09/06/2013 16:27:17 ::: 20 WP 3233/09 with APPLN 237/10 Kashmeri Devi vs. Delhi Administration and another 1 - para 7 and in Kishan Lal vs. Dharmendra Bafna and another 2 - para
14. He submitted that so far as judgment in Reeta Nag3(supra) is concerned, it was only on the point of reinvestigation and not for further investigation and that the judgment in Randhir Singh Rana4(supra) was only on the point as to whether the court of its own could order reinvestigation and this judgment was not on the point as to whether the court on an application of de facto complainant could order investigation or not. He submitted that the argument that if the court of its own cannot order further investigation then the court on an application also cannot do it is the only extension of the ratio which by itself would not form part of the ratio in the light of the judgment reported in S.P. Khanna5(supra).
15. I have heard both the Counsel at length and I have given my anxious consideration to the submissions made by 1 1988 SCC (Cri) 864 2 (2009) 3 SCC (Cri) 611 3 (2009) 9 SCC 129 4 (1997) 1 SCC 361 5 1976 Mh.L.J. 150 ::: Downloaded on - 09/06/2013 16:27:17 ::: 21 WP 3233/09 with APPLN 237/10 them after having gone through the relevant provisions of the Criminal Procedure Code, Bombay Police Act and the judgments on which reliance is placed by both sides.
16. I am of the view that the order passed by the Session Court directing further investigation under section 173(8) on an application filed by the original complainant cannot be sustained for the reasons mentioned hereinbelow:-
17. The controversy and the facts in this case fall in a narrow compass. The next of kin of the person who was murdered suspected involvement of two persons; one of whom was the son of Ex-Law Minister of the State.
According to them, police did not carry out fair investigation and protected those two persons and their names were not included in the charge-sheet which was filed by the police.
Being aggrieved by the said fact, they approached this Court under its writ jurisdiction. However, they chose to withdraw the said Petition with liberty to file an application before the Session Court and, accordingly, an application was preferred by de facto complainants before the Session Court seeking a ::: Downloaded on - 09/06/2013 16:27:17 ::: 22 WP 3233/09 with APPLN 237/10 direction of further investigation by the CID or CBI which prayer was granted by the learned Sessions Judge.
18. The controversy which is therefore raised is
(i) whether the de facto complainant can file an application to the Session Court seeking a direction for further investigation, (ii) whether power under section 173(8) can be exercised by the Session Court for directing further investigation and (iii) whether the Session Court can give direction to CID or any other person or CBI for further investigation under section 178.
19. In order to decide the aforesaid three questions, it will be necessary to consider relevant provisions under the Cr.P.C. and under the Bombay Police Act. If the scheme of the Cr.P.C. is taken into consideration from the provisions of the Code, it can be seen that the power of the police to prosecute an accused in a cognizable criminal offence has to be monitored by the Magistrate at each and every stage.
Secondly, a provision is also made that in the event the police do not or refuse to investigate the case, the aggrieved ::: Downloaded on - 09/06/2013 16:27:17 ::: 23 WP 3233/09 with APPLN 237/10 person can, thereafter, approach the Magistrate who can thereafter direct the police to investigate into the case and submit its report before taking cognizance or after taking cognizance can ask any other person to investigate. The police, after recording a complaint under section 154 of the Cr.P.C., have to inform the learned Magistrate about registration of the offence and, if an arrest is made without warrant, have to produce the accused within 24 hours from the date of arrest and seek police custody by filing a remand application and the remand cannot be granted for more than 15 days by the Magistrate. Thereafter, report has to be submitted by the police to the Magistrate. The said report can either be positive report or negative report. In the case of negative report under section 169 of the Cr.P.C, the complainant has right to be heard and he can file a protest petition which has to be again decided by the learned Magistrate and appropriate directions can be given by him in the event of positive report. Under section 173(2), the Magistrate can take cognizance and summon the accused and if it is a case triable by the Court of Session, he can commit the case to the Court of Session which can then take ::: Downloaded on - 09/06/2013 16:27:17 ::: 24 WP 3233/09 with APPLN 237/10 cognizance of the offence under section 193 of the Cr.P.C.
and act as a Court of original jurisdiction. Though a right of the police to investigate is unfettered, it still has to report about its investigation from time to time either to the Magistrate or to the Session Court. However, so far as cognizance of the offence is concerned which is investigated by the police on a complaint under section 154, duty is on the State to prosecute the accused since the criminal offence is considered as a crime against the society at large and the duty is cast upon the Public Prosecutor to prosecute the accused in criminal court. The role of the original complainant, therefore takes back seat. The prosecutor is appointed by the State and, at the best, de facto complainant can assist the Public Prosecutor by appointing a watching counsel to assist the Public Prosecutor. In the Session Court, the original complainant, practically, does not have any role to play in conducting trial and the Public Prosecutor alone can conduct the case in the Session Court.
The de facto complainant, therefore, if he is aggrieved on account of faulty or tainted investigation can always approach the superior courts viz High Court and Supreme ::: Downloaded on - 09/06/2013 16:27:17 ::: 25 WP 3233/09 with APPLN 237/10 Court who can give appropriate directions of transferring the investigation from the officer in charge of a police station to another agency such as CID or CBI. The provisions of Cr.P.C., however, do not appear to empower the Magistrate or Session Court to give direction to CID or CBI to investigate into the case. Though, therefore, it cannot be said that de facto complainant has no locus standi in the criminal proceedings initiated on the police report, at the same time it cannot be said that at each and every stage the de facto complainant has a locus for seeking directions in the conduct of criminal proceedings by the State. This can be seen from various provisions of Cr.P.C. and the Bombay Police Act and it would be relevant to consider the said provisions.
20. Under sections 3 and 4 of the Bombay Police Act, the State Government has absolute control and superintendence over the entire Police Force and, therefore, the State Government alone can decide which agency has to investigate in a particular cognizable offence. The State Government is, therefore, empowered under the Act to transfer the investigation to any of its agencies such as the ::: Downloaded on - 09/06/2013 16:27:18 ::: 26 WP 3233/09 with APPLN 237/10 officer in charge of a police station or State CID or Anti-
terrorist Squad. The power to decide the agency which can investigate, however, is not given to the Magistrate or Session Court after committal of the case which is evident from the following provisions of the Cr.P.C. The Magistrate has a power to direct the police to investigate under the provisions of section 156(3) or under section 202. It will be relevant to examine the provisions of section 156(3) and section 202 which read as under:-
"156(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."
"202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone ::: Downloaded on - 09/06/2013 16:27:18 ::: 27 WP 3233/09 with APPLN 237/10 the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for
(a) investigation shall be made.-
where it appears to the
Magistrate that the offence
complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-
section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon ::: Downloaded on - 09/06/2013 16:27:18 ::: 28 WP 3233/09 with APPLN 237/10 the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-
section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
From the aforesaid provisions, it can be seen that the said power can be exercised by the Magistrate on a private complaint being filed by the complainant in cognizable case.
The said provisions would not apply in a case where the police have recorded the complaint under section 154 and have started investigation. In the present case, the FIR was registered by the Police on the complaint filed by Respondent No.1 and the report was filed by them under section 173(1) and not on a private complaint filed under section 190 of the Cr.P.C. by the complainant. In such a case, therefore, the entire discretion as to who should carry out the investigation vests in the State Government in view of the provisions of sections 3 and 4 of the Bombay Police ::: Downloaded on - 09/06/2013 16:27:18 ::: 29 WP 3233/09 with APPLN 237/10 Act. Reliance, therefore, which is sought to be placed on the said provisions of section 156(3) or section 202 for the purpose of contending that the Magistrate has a power to order investigation to be made by any other person including CID, therefore, is totally misconceived. Such a direction can only be given by the High Court while exercising its jurisdiction under Article 226 of the Constitution of India or by the Apex Court.
21. It is evident from the provisions of Cr.P.C. that there are two Channels which can be adopted by the complainant who is aggrieved by any action of an individual who has subjected him to any injury which is a triable criminal offence. In case of cognizable offence. he has to first approach to police station in whose jurisdiction such offence is committed and in the event the police officer in charge of a police station does not record his complaint, he can move his Superior Officer and even if the Superior Officer does not record his complaint, he can take recourse to the second Channel viz of filing private complaint to the Magistrate.
These two Channels, therefore, are separate and distinct. If ::: Downloaded on - 09/06/2013 16:27:18 ::: 30 WP 3233/09 with APPLN 237/10 the police record the complaint of a cognizable offence, they can carry out the investigation in their own way in order to arrive at the conclusion whether allegation made in the complaint is correct or false and the power of the police therefore on FIR being recorded under section 154 and the procedure which is to be followed in such a case is laid down from sections 156 to 173 of the Cr.P.C. The Magistrate or Session Court, therefore, cannot give direction to the police to change the investigating officer or investigating agency or direct any other person to investigate since that is the sole prerogative of the State in view of provisions of section 4 of the Bombay Police Act. What cannot be done, therefore, by the Magistrate in the procedure of investigation under section 156 to 173(1), he cannot definitely give a direction at the stage of further investigation under section 173(8), after the charge-sheet is filed. The provisions of section 156(3) can be exercised by the Magistrate only in case where private complaint is filed before him under section 190 in respect of the cognizable offence. Section 156(3) reads as under:-
::: Downloaded on - 09/06/2013 16:27:18 ::: 31 WP 3233/09 with APPLN 237/10"156(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."
Therefore, in my view, the entire submission made by Shri Anturkar the learned Senior Counsel appearing on behalf of Respondent Nos. 1 and 2 is misconceived since, in the present case, the investigation has been done by the police on a complaint which is registered by the police under section 154 of the Cr.P.C. It is a well settled position in law that an authority created by the Statute can exercise its authority only within the ambit and power given to it by the Statute and such an authority, therefore, cannot assume power which is not vested in it by the Act or the Statute. In the present case, admittedly, the complainant did not file a private complaint before the Magistrate though such a course of action was available to the original complainant if the complainant had a doubt about the fairness of the investigation by the police and in such a case, the Magistrate can then have some power to supervise the investigation which is evident from section 210 of the ::: Downloaded on - 09/06/2013 16:27:18 ::: 32 WP 3233/09 with APPLN 237/10 Cr.P.C., which reads as under:-
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.-(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is ig made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted ::: Downloaded on - 09/06/2013 16:27:18 ::: 33 WP 3233/09 with APPLN 237/10 on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provision of this Code."
However, unfortunately, this course was not adopted by the complainant and instead of pursuing the writ petition in this Court, the complainant chose to withdraw the said Writ Petition and approached the Session Court after matter was committed by the Magistrate and, thereafter, an application was filed under section 173(8). Therefore, under these circumstances, in respect of investigation carried out by the police, neither the Magistrate nor the Session Court could have directed that fresh investigation or further investigation should be carried out by the CID which prerogative vested with the State Government alone or the High Court or the Supreme Court would have given such direction to the State Government.
::: Downloaded on - 09/06/2013 16:27:18 ::: 34 WP 3233/09 with APPLN 237/1022. It will have to be seen now the extent and scope of power of the police to carry out further investigation under section 173(8). It will be profitable to have a look at provision of section 173(8) which read as under:-
"173(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)."
Perusal of the said provision clearly indicates that right of ::: Downloaded on - 09/06/2013 16:27:18 ::: 35 WP 3233/09 with APPLN 237/10 the police officer to investigate the cognizable offence under section 156(1) is not restricted after the charge-sheet is filed and even, thereafter, he still has power to collect the evidence by carrying out further investigation. Perusal of the said section also indicates that the said section does not prescribe that he has to take permission of the Magistrate.
However, the Apex Court has observed in number of cases that, as a matter of courtesy, before embarking on further investigation, he has to inform and take permission of the Magistrate. Section 173(8), therefore, does not in any manner empower the Magistrate to order further investigation on his own or even on an application filed by the original complainant. The said section 173(8) is, in fact, in the nature of clarification that merely because police officer files charge-sheet under section 173(2) that does not take away his right of carrying out further investigation. If the Magistrate does not have this power to do so on his own, the question of ordering further investigation under this provision on an application filed by the original complainant does not arise and, for the same reason, even the Session Court also, after committal of the case, cannot do so. The ::: Downloaded on - 09/06/2013 16:27:18 ::: 36 WP 3233/09 with APPLN 237/10 impugned order passed by the Session Court, therefore, is clearly illegal and he has further committed an error of law which is apparent on the face of the record.
23. As pointed out by me earlier, the second Channel for the purpose of prosecuting the case on the refusal by the police to investigate the case is to file a private complaint before the Magistrate under section 190 of the Cr.P.C. If this Channel is adopted by the complainant, the Magistrate then has discretion of either directing the police to investigate under section 156(3) and ask the Officer to submit a report and upon negative report being filed, the complainant would be allowed to file the protest petition, which, if accepted by the Magistrate, he can postpone the issuance of process under section 202 and, therefore, in that case, can order any other person to investigate. This course of action, therefore, can only be adopted if a private complaint is filed. The said section also prescribes that if the case is triable by the Session Court then he has to ask the complainant to examine his witnesses and then he can decide whether process should be issued or not. Therefore, in the present ::: Downloaded on - 09/06/2013 16:27:18 ::: 37 WP 3233/09 with APPLN 237/10 case, the question of examining provisions of section 156(3), 202 does not arise since that is not the Channel which has been chosen by the complainant in this case and, as such, therefore, the original complainant in such a case cannot have locus to file an application for further investigation under section 173(8) before the Session court and, obviously, the Session Court, not having power to issue direction for further investigation in a case instituted on an FIR under section 154, cannot order further investigation much less direct the Government to transfer the investigation to CID and, thereafter, monitor the investigation.
24. The two Channels, therefore, which can be adopted by the complainant for the purpose of bringing the criminal to book are separate and distinct and are like two parallel lines and two, therefore, cannot over lap with each other. One is unfettered power of the police to investigate after an FIR is lodged under section 154 and the State Government alone, in this case, can decide the investigating agency. In other case, the Magistrate may have some discretion. However, ::: Downloaded on - 09/06/2013 16:27:18 ::: 38 WP 3233/09 with APPLN 237/10 since facts of this case pertain to the first Channel which is adopted, I do not propose to examine whether the Magistrate or Session Court would have power to order investigation by the CID since the said issue does not arise in the facts of the present case.
25. It will now be necessary to examine judgments of the Apex Court and other High Courts on this point. It has to be noted here that, unfortunately, there is no direct judgment of the Apex Court or this Court on the question raised in this Petition. Both the Counsel, however, have relied on number of judgments and I, therefore, propose to examine the ratio and applicability of those judgments to the facts of this case.
26. The first judgment on which the reliance has been placed by the learned Advocate General appearing on behalf of the Petitioner - Sate is in Reeta Nag1(supra). In this case, after the charge-sheet was filed by the Investigating Officer and a charge was framed against the accused and the co-accused were discharged, the learned Magistrate 1 (2009) 9 SCC 129 ::: Downloaded on - 09/06/2013 16:27:18 ::: 39 WP 3233/09 with APPLN 237/10 directed investigating authorities to conduct reinvestigation under sub-section (8) of section 173 of the Cr.P.C. This was done on the application filed by the de facto complainant. In this case, the learned Magistrate ordered further investigation under section 173(8). The Apex Court, after taking into consideration various judgments held that such a course of action upon the application by the de facto complainant was beyond the jurisdictional competence of the Magistrate and it was further held that he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant. The Apex Court in the said case observed in paras 26 and 27 as under:-
"26. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173(8) was a direction given by the learned Magistrate to reinvestigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence ::: Downloaded on - 09/06/2013 16:27:18 ::: 40 WP 3233/09 with APPLN 237/10 of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant."
"27. Since no application had been made by the investigating authorities for conducting further investigation as permitted under Section 173(8) CrPC, the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of Section 319 of the Code at the stage of trial. We, therefore, see no reason to interfere with the order of the High Court since it will always be available to the Magistrate to take recourse to the provisions of Section 319 if any material is disclosed during the examination of the witnesses during the trial."
The ratio of the said judgment, therefore, in my view clearly ::: Downloaded on - 09/06/2013 16:27:18 ::: 41 WP 3233/09 with APPLN 237/10 applies to the facts of the present case. The only difference in the case of Reeta Nag1 (supra) was that the charge-sheet was already filed by the police. However, the Apex Court clearly observed that an application under section 173(8) would not be entertained by the Magistrate on an application by the de facto complainant.
27. In the present case, the learned Session Court, after committal of the case, has not only entertained the application of the de facto complainant but also has directed different agency viz CID to carry out further investigation which is clearly illegal in view of ratio of the said judgment in Reeta Nag's case2(supra).
28. The second judgment on which reliance is placed by the learned Advocate General is in Central Bureau of Investigation through S.P. Jaipur3(supra). In this case, issue which was raised was whether the Magistrate in a private complaint filed by the complainant could direct Central 1 (2009) 9 SCC 129 2 (2009) 9 SCC 129 3 AIR 2001 SC 668 ::: Downloaded on - 09/06/2013 16:27:18 ::: 42 WP 3233/09 with APPLN 237/10 Bureau of Investigation to conduct the investigation into any offence. The Apex Court held that such a course of action was not open for the Magistrate while exercising his powers under section 156(3) and the Apex Court observed that these powers would not be stretched beyond directing the officer in charge of a police station to conduct the investigation. The ratio of this judgment, in my view, strictly will not be applicable to the facts of the present case since the question before the court was when the complaint is filed by adopting the second Channel, as discussed hereinabove, whether Magistrate could direct another agency such as CBI to investigate. In the present case since the complaint has been filed before the police, ratio of the said judgment would not be strictly applicable. However, it has to be noted here that the Apex Court has observed that even when a complaint is filed before Magistrate after exhausting other remedies even in such a case he cannot direct investigation through another agency. Relying on this judgment, Division Bench of this Court in Ibrahim Adamwall Patel 1(supra) also held that a direction could not be given by 1 Judgment dated 10/12/2007 passed by the Division Bench of this Court in Criminal Writ Petition No.1781 of 2004 ::: Downloaded on - 09/06/2013 16:27:18 ::: 43 WP 3233/09 with APPLN 237/10 the Magistrate to CID to investigate while exercising his power under section 156(3) in a private complaint. In both these judgments i.e in Central Bureau of Investigation through S.P. Jaipur 1(supra) and in Ibrahim Adamwall 2(supra),it has been observed that such a direction could be given only to the officer in charge of a police station after examining the provisions of sections 2(o), 2(s) and 2(h) of the Cr.P.C. The learned Counsel appearing on behalf of Respondent Nos. 1 and 2, however, has argued that this was a case arising under section 156(3) and, therefore, could not apply to the power of the Magistrate or Session Court in directing further investigation under section 173(8). He has also relied upon section 202 which empowers the Magistrate to get the investigation done through any other person and, therefore, has laid emphasis on the definition of the word "investigation" as defined in section 2(h) and the term "officer in charge of a police station" as defined in section 2(o) being inclusive definitions. It is therefore urged that such a direction could be given even to CID.
1 AIR 2001 SC 668 2 Judgment dated 10/12/2007 passed by the Division Bench of this Court in Criminal Writ Petition No.1781 of 2004 ::: Downloaded on - 09/06/2013 16:27:18 ::: 44 WP 3233/09 with APPLN 237/10
29. In my view, as observed earlier, all these cases pertain to power of the Magistrate under section 156(3) and, as such, in a case where police complaint is filed, the Magistrate has no power as laid down under section 202. In any case, the Apex Court has, even in such cases, held that CBI cannot be directed by the Magistrate to investigate and the Division Bench of this Court has observed that such a direction cannot be given to CID by the Magistrate.
30. The next judgment on which the reliance is placed by the learned Advocate General appearing on behalf of the Petitioner - State is in Randhir Singh Rana vs. State (Delhi Administration) 1(supra). Here again, a complaint was filed with the Magistrate under section 190 and the Magistrate, after taking cognizance of the offence on the basis of the police report and, after appearance of the accused, on his own directed further investigation in the case. The Apex Court, again, after taking into consideration various judgments of the Apex Court observed that the power to 1 (1997) 1 SCC 361 ::: Downloaded on - 09/06/2013 16:27:18 ::: 45 WP 3233/09 with APPLN 237/10 carry on further investigation was available to the police under section 173(8). However, this was not available to the Magistrate and he could not on his own direct further investigation. This was again a case which was filed under section 190 of the Cr.P.C. and, therefore, the Apex Court has observed that, under section 202, the Magistrate could within the limits circumscribed by that section direct the investigation for the purpose of deciding whether or not there is sufficient ground for proceeding.
31. The next judgment on which reliance is placed by the learned Advocate General appearing on behalf of the Petitioner - State is in Mithabhai Pashabhai Patel1(supra) Here, the question before the Court was whether on change of investigating authority, police custody of the accused on remand can be sought for. In my view, ratio of the said judgment would not apply to the facts of the present case and would not be of any assistance to either side.
32. The next judgment on which reliance is placed by the 1 (2009) 2 SCC (Cri) 1047 ::: Downloaded on - 09/06/2013 16:27:18 ::: 46 WP 3233/09 with APPLN 237/10 learned Advocate General appearing on behalf of the Petitioner - State is in Sanjay Bansal 1(supra). Here, a Petition was filed praying for direction to the investigating agency to proceed with the fair and proper investigation in a case which was registered by it. The High Court directed the Petitioner to lodge protest petition with the Magistrate and further directed the Magistrate to pass appropriate orders in accordance with law taking into account the statement of the injured and injury report and further directed that final report of the police under section 173(2) of the Cr.P.C was not accepted and, if accepted, it be treated as rejected and, thereafter, kept the matter pending to see what order was being passed by the Magistrate. The Apex Court set aside the direction given by the High Court and observed that it was for the de facto complainant to decide whether he should file protest petition or not. Here again, the issue before the Court was about desirability of giving intimation to the de facto complainant on a negative report being filed by the police. In my view, the said judgment cannot be of any assistance to either side since the facts in that case 1 (2007) 13 SCC 71 ::: Downloaded on - 09/06/2013 16:27:18 ::: 47 WP 3233/09 with APPLN 237/10 were entirely different.
33. Reliance was then placed by the learned Advocate General appearing on behalf of the Petitioner - State on the judgment in Rama Chaudhary 1(supra). In this case, the Apex Court had again considered distinction between further investigation and reinvestigation in the context of section 173(8) and, therefore, observed that sub-section (8) of section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a further report and not fresh report. Again, ratio of this judgment is not relevant for the purpose of deciding the controversy in this case.
34. The next judgment on which reliance is placed by the learned Advocate General for the Petitioner is in Hemant Dashmana 2(supra). In this case, after report was filed under sub-section (2) of section 173, the learned Magistrate had ordered CBI to reinvestigate the matter by DIG level Officer, as, according to him, investigation was not properly 1 Criminal Appeal No.619 of 2009 arising out of SLP (Crl.) No.370 of 2009 2 (2001) 7 SCC 536 ::: Downloaded on - 09/06/2013 16:27:18 ::: 48 WP 3233/09 with APPLN 237/10 conducted. The Apex Court observed that it was not within the province of the Magistrate while exercising power under section 173(8) to specify any particular officer to conduct such investigation and also could not even suggest the rank of the officer who should conduct such investigation.
35. Reliance was then placed by the learned Advocate General appearing on behalf of the Petitioner - State on the judgment in Ramchandran 1(supra). Here, the High Court had directed the Inspector of Police nominated by Deputy Superintendent of Police, CB CID to investigate the case afresh and, thereafter, file a fresh report. It was held in this case that while exercising power under section 482 of the Cr.P.C., the choice of the investigating agency could be decided by the High Court but instead of fresh investigation, there could be further investigation which is required under section 173(8). The ratio of the said judgment has some relevance to the facts of the present case since the Apex Court clearly observed that the power of deciding choice of the agency would be with the High Court under its inherent 1 (2008) 5 SCC 413 ::: Downloaded on - 09/06/2013 16:27:18 ::: 49 WP 3233/09 with APPLN 237/10 jurisdiction and not with the subordinate courts which is also observed by the Apex Court in Randhir Singh Rana1(supra).
In view of the said two judgments also, the Session Court could not have directed CID to carry out further investigation which power could be exercised only by the High Court under Article 226 of the Constitution of India or under section 482 of the Cr.P.C or by the Apex Court under Articles 32 and 142 of the Constitution of India.
36. The last judgment on which the reliance is placed by the learned Advocate General for the Petitioner - State is in J.K. International 2(supra). This judgment was relied upon on the question of locus of the de facto complainant in filing an application for further investigation. The Apex Court, after taking into consideration the scheme envisaged under Cr.P.C., took into consideration the scope of private person participating in the conduct of the prosecution before the Magistrate's Court and while doing so observed that right of private individual to participate in the conduct of prosecution in the Session Court is very much restricted and is made 1 (1997) 1 SCC 361 2 2001 SCC (Cri) 547 ::: Downloaded on - 09/06/2013 16:27:18 ::: 50 WP 3233/09 with APPLN 237/10 subject to the control of the Public Prosecutor.
37. On the other hand Shri Anturkar, the learned Senior Counsel appearing on behalf of Respondent Nos. 1 and 2 strongly urged that High Court or the Supreme Court alone would not have power to direct investigation and it is also urged that even the Session Court has power to give directions under section 173(8) after the matter is committed by the Magistrate. On the first proposition, reliance was placed on the judgment of the Apex Court in Kishan Lal1(supra). In this case, criminal complaint was filed against the accused before the Commissioner of Police, Chennai City, Chennai. A charge-sheet was, however, filed only against accused Nos. 1 and 2. The complainant filed an application in the High Court under section 482 on the premise that the Magistrate has not taken cognizance against the other accused. The learned Single Judge of the High Court directed that the Petitioner was at liberty to file an appropriate Petition before the learned Metropolitan Magistrate incorporating his grievances and alleged lapses 1 (2009) 3 SCC (Cri) 611 ::: Downloaded on - 09/06/2013 16:27:18 ::: 51 WP 3233/09 with APPLN 237/10 on the part of investigating agency and seek further investigation of the case. Further direction was given that on such Petition being filed, the learned Magistrate, if satisfied, my also order further investigation under section 173(8) of the Cr.P.C. Pursuant to the said directions, the learned Magistrate directed further investigation under section 173(8). Against this order, revision application was filed in the High Court and the said revision application was allowed. The Apex Court, however, observed that the Magistrate should consider the matter on its own merits and the Magistrate should not be influenced by the observations made by the High Court. Shri Anturkar the learned Senior Counsel relied upon the observations made by the Apex Court in Kishan Lal's case1(supra) in para 16 in which the Apex Court has observed that the Magistrate could direct further investigation if the investigation is found to be tainted or otherwise unfair or is otherwise necessary in the ends of justice. Para 16 of the said judgment reads as under:-
1 (2009) 3 SCC (Cri) 611 ::: Downloaded on - 09/06/2013 16:27:18 ::: 52 WP 3233/09 with APPLN 237/10 "16 The investigating officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to his notice; when certain aspects of the matter had not been considered by him and he found that further investigation is necessary to be carried out from a different angle(s) keeping in view the to his fact that new or further materials came notice. Apart from the aforementioned grounds, the learned Magistrate or the superior courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice. The question, however, is as to whether in a case of this nature a direction for further investigation would be necessary."
38. The learned Advocate General appearing on behalf of the Petitioner - State submitted that the ratio of the said judgment in Kishan Lal's case 1(supra) would not apply to the 1 (2009) 3 SCC (Cri) 611 ::: Downloaded on - 09/06/2013 16:27:18 ::: 53 WP 3233/09 with APPLN 237/10 facts of the present case since counsel for the accused had conceded that the learned Magistrate had the requisite jurisdiction to direct further investigation. He invited my attention to para 9 of the said judgment wherein the said concession was recorded. In my view, the said judgment would not be of any assistance to Respondent Nos. 1 and 2 since the Court was not called upon to consider whether the Magistrate or Session Court could order further investigation by separate agency such as CID under section 173(8).
39. The next judgment on which reliance is placed by the learned Counsel for Respondent Nos. 1 and 2 is in Kashmeri Devi1(supra). In this case, the complainant's husband was taken by two Sub-Inspectors to the Police Station and was mercilessly beaten up with the help of iron rods, as a result of which he succumbed to the injuries and died. Proper investigation was not made and although on a complaint the case was registered under section 302/342 of the Indian Penal Code, it was converted to section 304 and, thereafter to section 323 after police report was filed. In these 1 1988 SCC (Cri) 864 ::: Downloaded on - 09/06/2013 16:27:18 ::: 54 WP 3233/09 with APPLN 237/10 circumstances, the complainant Kashmeri Devi filed a Petition under Article 226 of the Constitution of India for transferring the investigation of the case from the Crime Branch of the Delhi Police to Central Bureau of Investigation..
The ratio of this judgment, in my view, will not help Respondent Nos. 1 and 2 since there is no dispute that the High Court could give such direction while exercising its writ jurisdiction.
40. Reliance is also placed by the learned Counsel for Respondent Nos. 1 and 2 on the judgment in Union Public Service Commission vs. S. Papaiah and others 1 In this case, a complaint was lodged against the official of the UPSC of malpractice in conducting exams. The investigating agency filed final report without informing the complainant. The Apex Court in this case held that notice in such case had to be issued to the original complainant and the Magistrate would thereafter if the protest petition is filed could order further investigation. This judgment also does not answer the question which is in issue in this case.
1 (1997) 7 SCC 614 ::: Downloaded on - 09/06/2013 16:27:18 ::: 55 WP 3233/09 with APPLN 237/10
41. It is also vehemently urged by the learned Counsel appearing on behalf of Respondent Nos. 1 and 2 that after committal of the case to the Session Court under section 193, the Session Court becomes a Court of original jurisdiction and has unfettered jurisdiction. Reliance was placed on the judgment in Nisar1(supra). It is, therefore, urged that the Session Court could pass an order under section 173(8). Reliance was placed on para 9 of the said judgment which reads as under:-
"9. As regards the other contention of the appellants we may mention that this Court has in Kishun Singh v. State of Bihar 2 categorically rejected a similar contention with the following observations: (SCC p.30, para 16) "Thus, on a plain reading of Section 193, as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session 1 (1995) 2 SCC 23 2 (1993) 2 SCC 16 : 1993 SCC (Cri) 470 ::: Downloaded on - 09/06/2013 16:27:18 ::: 56 WP 3233/09 with APPLN 237/10 to take cognizance of an offence as a court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record."
42. In my view, the judgment in Nisar 1(supra) also does not help Respondent Nos. 1 and 2 since it does not state that the Session Court under section 173(8) can also direct another agency such as CID or CBI to carry out further investigation.
The reliance placed by the learned Counsel appearing on behalf of Respondent Nos. 1 and 2 on other judgments, in my view, is not relevant and, therefore, it is not necessary to refer to the facts of the said cases.
1 (1995) 2 SCC 23 ::: Downloaded on - 09/06/2013 16:27:18 ::: 57 WP 3233/09 with APPLN 237/10
43. So far as the question of locus of the complainant in filing the application under section 173(8) is concerned, though it has been held that at various stages the complainant could have locus standi and would have a right to be heard, it is not possible to accept this position in view of the judgment of the Apex Court in Reeta Nag 1 (supra) and the observations made in para 26 of the said judgment which is reproduced hereinabove and also in view of the judgment of the Apex Court in Randhir Singh Rana2(supra) the de facto complainant would not have right to file an application for further investigation under section 173(8) for changing the investigating agency. In J.K. International 3(supra) the Apex Court has observed that the person who is aggrieved by the offence committed is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge-sheet was filed by them. The Court has observed that right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much 1 (2009) 9 SCC 129 2 (1997) 1 SCC 361 3 2001 SCC (Cri) 547 ::: Downloaded on - 09/06/2013 16:27:18 ::: 58 WP 3233/09 with APPLN 237/10 restricted and is made subject to the control of the Public Prosecutor. Similar view has been taken by the Apex Court in Bhagwant Singh vs. Commr of Police1. Reliance was also placed by Shri Anturkar, the learned Senior Counsel on the judgment in Manohar Lal 2(supra) wherein it is observed by the Apex Court that the doctrine of locus standi is totally foreign to Indian jurisprudence. Lastly, he relied upon the judgment of the Apex Court ig in Kishan Lal3 wherein complainant's rights and options against the accused in criminal trial were stated. The judgments on which the reliance is placed by the learned Counsel appearing on behalf of Respondent Nos. 1 and 2, in my view, would not apply to the facts of the present case.
44. For the aforesaid reasons, therefore, in my view, (i) the complainant will not have locus standi to file an application for further investigation in the Session Court, (ii) the Session Court does not have power or jurisdiction to entertain an application filed by the de facto complainant after police 1 (1985) 2 SCC 537 2 2001 CRI.L.J. 2044 3 (2009) 3 SCC (Cri) 611 ::: Downloaded on - 09/06/2013 16:27:18 ::: 59 WP 3233/09 with APPLN 237/10 report is filed under section 173(2) seeking further investigation, seeking further investigation by CID under section 173(8).
45. Writ Petition is allowed in terms of prayer clauses (b) and (c). Rule is made absolute accordingly.
46. Application also has been filed for quashing the strictures passed against the Public Prosecutor by the learned Session Judge more particularly in paras 76 and 77 of the impugned order. It is submitted that the learned Session Judge ought not to have passed strictures and made observations against the Public Prosecutor since the Public Prosecutor was doing his job in arguing the case on behalf of the State. Reliance was placed on the judgment in Prakash Singh Teji vs. Northern India Goods Transport Co. Pvt. Ltd. 1 It would be relevant to reproduce the observations made by the Session Court in its order in paras 76 and 77 which read as under:-
1 AIR 2009 SC 2304 ::: Downloaded on - 09/06/2013 16:27:18 ::: 60 WP 3233/09 with APPLN 237/10 "76. The applicants have pressed that the prosecution against the accused is half baked and investigation is deliberately left incomplete by the investigating officer, due to political reasons. The local MLA has strong influence in Karad Taluka.
Complainant has been said to have been kicked from the police station and made to keep his mouth shut by the investigating officer.
Hence, he has approached this Court for justice. The answer of the learned APP - Shri D.T. Pawar, to this is that the investigating officer did not find it necessary to connect more accused, so he filed the charge sheet. Only the investigating officer has statutory powers to investigate further and this Court cannot interfere. Accused are not having rivalry with the deceased, etc., shows clearly that the learned APP is acting as a "mouthpiece" of the investigating officer or else, he is also apparently under some pressure of power. However, he is not acting in a fair and unbiased manner, as required. The learned APP appears to be titling more towards the accused, than towards the victims of crime, as can be ::: Downloaded on - 09/06/2013 16:27:18 ::: 61 WP 3233/09 with APPLN 237/10 seen from his stand of shielding the investigating officer and is fiercely opposing further investigation for reasons known best to him. Hence also I find that the investigation has to be transferred to another suitable agency of the State i.e., State C.I.D., in the interest of justice and fair play."
"77.
The vehement manner of opposing this application for further investigation by the investigating officer, the prosecution leave no doubt in the mind of this Court that they are impeding and frustrating the case of their own making due to bias and apparent pressure from the influential strata in Karad. Therefore, the further investigation will have to be carried out by a different machinary of the State, which may not succumb to political pressure and act in a fair and unbiased manner.
Therefore, I am of the view that if this case be entrusted to the State C.I.D., for further investigation under section 173(8) of the Cr.P.Code, it would be just and proper. Hence, I pass the following order......"::: Downloaded on - 09/06/2013 16:27:18 ::: 62 WP 3233/09 with APPLN 237/10
In my view, the Session Court ought to have refrained itself from making these observations particularly casting aspersions on the learned Public Prosecutor by observing that the learned APP was tilting more towards the accused than towards the victims of crime, as can be seen from his stand of shielding the investigating officer and fiercely opposing further investigation. The Session Court also observed that the vehement manner of opposing the application for further investigation by the investigating officer was due to bias and apparent pressure from the influential strata in Karad. The Apex Court in Prakash Singh Teji1 (supra) has observed in paras 11 to 13 as under:-
"11. We are not undermining the ultimate decision of the High Court in remitting the matter to the trial Court for fresh disposal. However, we are constrained to observe that the higher Courts every day come across orders of the lower courts which are not justified either in law or in fact and modify them 1 AIR 2009 SC 2304 ::: Downloaded on - 09/06/2013 16:27:18 ::: 63 WP 3233/09 with APPLN 237/10 or set them aside. Our legal system acknowledges the fallibility of the Judges, hence it provides for appeals and revisions. A Judge tries to discharge his duties to the best of his capacity, however, sometimes is likely to err. It has to be noted that the lower judicial officers mostly work under a charged atmosphere and are constantly under psychological pressure. They do not have the benefits which are available in the higher courts. In those circumstances remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put forth his reasonings."
"12. In the matter of : `K' A Judicial Officer, (2001) 3 SCC 54, it was held that any passage from an order or judgment may be expunged or directed to be expunged subject to satisfying the following tests : (i) that the passage complained of is wholly irrelevant and unjustifiable, (ii) that its retention on the records will cause serious harm to the persons to whom it refers; (iii) that its ::: Downloaded on - 09/06/2013 16:27:18 ::: 64 WP 3233/09 with APPLN 237/10 expunction will not affect the reasons for the judgment or order. In para 12, it was further held that though the power to make remarks or observations is there but on being questioned, the exercise of power must withstand judicial scrutiny on the touchstone of following tests: (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve."
13. In the light of the above principles and in view of the explanation as stated by the appellant for commenting the conduct of the plaintiff, we are satisfied that those observations and directions are not warranted. It is settled law that hard or disparaging remarks are not to be ::: Downloaded on - 09/06/2013 16:27:18 ::: 65 WP 3233/09 with APPLN 237/10 made against persons and authorities whose conduct comes into consideration before Courts of law unless it is really necessary for the decision of the case as an integral part thereof. The direction of the High Court placing copy of their order on the personal/service record of the appellant and a further direction for placing copy of the order before the that Inspecting Judge of the officer for perusal too without giving him an opportunity would, undoubtedly, affect his career. Based on the above direction, there is every possibility of taking adverse decision about the performance of the appellant. We hold that the adverse remarks made against the appellant was neither justified not called for."
47. In view of the ratio of the judgment of the Apex Court in Prakash Singh Teji1 (supra) , in my view, the Session Court ought not to have made those observations doubting the integrity of the Public Prosecutor who was merely doing his 1 AIR 2009 SC 2304 ::: Downloaded on - 09/06/2013 16:27:18 ::: 66 WP 3233/09 with APPLN 237/10 job and representing the State Government. The said strictures made against the said Public Prosecutor are quashed, expunged and set aside.
48. Criminal Application is allowed in terms of prayer clause 14(a). The said remarks made against the Public Prosecutor in paragraph Nos. 76 and 77 of the order of the Session Court are expunged.
49. Criminal Writ Petition and Criminal Application both are accordingly disposed of.
(V.M. KANADE, J.) ::: Downloaded on - 09/06/2013 16:27:18 :::