Allahabad High Court
Dinesh Chand Dubey vs State Of U.P. And Another on 12 December, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 18684 of 2005 Applicant :- Dinesh Chand Dubey Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sharique Ahmad Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. Heard Sri Sharique Ahmad, learned counsel for applicant and learned AGA for State of U.P.
2. Applicant has invoked inherent jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash charge sheet no. 63 of 2005 dated 28.06.2005 filed before the Court of learned Metropolitan Magistrate VI, Kanpur Nagar on 08.09.2005 in Case Crime No. 174 of 2004, under Sections 304, 427, 203, 211 IPC and Sections 133, 134, 184 of Motor Vehicle Act.
3. Facts, in brief, giving rise to the present application are that Chandra Bhan Singh, opposite party-2 lodged First Information Report (hereinafter referred to as "FIR") dated 14.08.2004 registered as Case Crime No. 174 of 2004, under Sections 279, 304-A, 427 IPC. Subsequently, sections 279, 303, 304 and 211 IPC read with Sections 133, 134, 184 of Motor Vehicles Act, 1988 have been added. After investigation, police submitted charge-sheet no. 118 of 2004 dated 26.08.2004, under Sections 279, 304-A and 407 IPC against Sudhir Kumar Pandey son of late Ramanand Pandey. Metropolitan Magistrate VIth, Kanpur Nagar took cognizance on 24.09.2004 and registered the case. Applicant Dinesh Chand Dubey in Junior Assistant in Chhatrapati Sahu Ji Maharaj University, Kanpur (hereinafter referred to as "University"). Applicant apprehended harassment on the part of police and, therefore, he submitted surrender application dated 29.11.2004 before Magistrate concerned. Thereagainst police submitted a report dated 02.12.2004 stating that applicant has no concern with crime in question. Later on, Investigating Officer submitted report dated 16.01.2005 before Magistrate concerned stating that he made further investigation in the matter under Section 173(8) of Cr.P.C. and on the basis of statement of witnesses, has found applicant to be guilty of offences under Sections 279, 304-A and 427 IPC and requested Magistrate to take him in custody and send in remand. On 31.01.2005, applicant again moved an application for surrender wherein report was submitted by police that by earlier report dated 31.01.2005 one Sudhir Kumar Pandey was wrongly charge-sheeted vide charge-sheet dated 28.06.2005 though it should have been Dhirendra Kumar Dubey. It is said that Sudhir Kumar Pandey was the person who was driving vehicle and submitted his affidavit admitting his guilt still police implicated applicant instead of Sudhir Kumar Pandey and completely ignored affidavit of Sudhir Kumar Pandey submitted in the Court of Magistrate concerned. Applicant filed Writ Petition No.2778 of 2005 before this Court which was disposed of vide order dated 21.03.2005 wherein Court stayed arrest of applicant till submission of police report subject to certain conditions mentioned in said order. Condition No.5 was a direction to Investigating Officer to make all efforts to conclude investigation within three months and submit report.
4. The only ground on which charge-sheet is challenged by learned counsel for applicant is that police made further investigation without obtaining permission of Magistrate concerned. He has placed reliance on a Supreme Court's judgement in Hasanbhai Valibhai Qureshi Vs. State of Gujarat and Others AIR 2004 SC 2078 and also a Division Bench judgement of this Court in Amar Nath Pandey Vs. State of U.P. and Others 2014 (7) ADJ 49 but in my view, both judgements does not help on the issue that Police has no authority to proceed for further investigation.
5. Here is not a case where power of Magistrate for directing re-investigation is under consideration, which can be one of the options available to Magistrate under Section 190 Cr.P.C., but further investigation in this case has been made by Police with reference to Section 173(8) Cr.P.C., which reads as under :
"173. Report of police officer on completion of investigation.-
...
(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- sections (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)."
6. In Randhir Singh Rana vs. State (Delhi Administration) (1997) 1 SCC 361 Court observed that power of further investigation is available to Police after submission of charge-sheet by virtue of Section 173(8) Cr.P.C.
7. In Ram Lal Narang vs. State (Delhi Administration) (1979) 2 SCC 322, Court considered the scope and purport of Section 173 Cr.P.C. and said that on the Magistrate taking cognizance on police report, right of Police to further investigate is not exhausted and it could exercise such right even if, as often as necessary, when fresh information comes to light. Further, it also observed that it is desirable that Police ordinarily should inform Court and seek its formal permission to make further investigation, if fresh facts come to light so as to maintain independence of judiciary, in the interests of purity of administration of criminal justice and in interests of comity of various agencies and institutions entrusted with different stages of such administration.
8. In Dinesh Dalmia vs. CBI (2007) 8 SCC 770, again Court held that Investigating Officer has power to make a prayer for conducting further investigation in terms of Section 173(8) Cr.P.C. and this power is not taken away only because a charge-sheet has been filed under Section 173(2) and cognizance has been taken by Magistrate.
9. In Vinay Tyagi vs. Irshad Ali @ Deepak and Ors. (2013) 5 SCC 762, Court recognized power of further investigation of Police suo motu with reference to Section 173 (8) Cr.P.C. and held that Investigating Agency was competent to file a report supplementary to its primary report and that the former was to be treated by Court in continuation of the latter.
10. In Hasanbhai Valibhai Qureshi (supra), Court has not held that if permission of Magistrate has not taken, further investigation made by police and the charge-sheet submitted thereafter would be illegal. Therein, a writ petition was filed by complainant seeking a writ of mandamus for re-investigation by an independent agency. Complainant alleged that local police had succumbed to pressure exercised by local MLA and investigation was not carried out in a straightforward manner. Complainant said that on 23.09.2003 around 12:30 AM, persons belonging to a particular community carried deadly weapon and combustible materials and pursuant to common object of an unlawful assembly caused destruction of shops belonging to persons of another community, by breaking them open and setting them ablaze. There was also a large scale of loot of articles. About 53 persons were arrested. Initially, FIR was lodged under various offences including Sections 395 and 120B of IPC and Section 135 of Bombay Police Act. Subsequently, after few hours of registration of earlier FIR, Sections 395 and 120B were deleted by prosecuting agency and on account thereof, some accused persons were managed to get bail.
11. In the aforesaid circumstances, Complainant further sought investigation by an independent investigating agency. High Court took the view that if further investigation is necessary, remedy is available in Cr.P.C. and further investigation can be carried out under the supervision of Trial Court. It also held that police was not the ultimate authority who can decide as to which sections are applicable. Complainant, therefore, must take appropriate steps along with prosecuting agency before Trial Court. For this reason, petition was dismissed. Complainant brought the matter to Supreme Court and it was argued that role of prosecuting agency from the beginning is tainted with suspicion and visible leaning of accused persons was evident and there was no urgency to delete Sections 395 and 120-B IPC without full and complete investigation. Investigation cannot be left at the mercy of Investigating Officer though complainant could have approached Trial Court but that is not the reason to gloss over partition approach and attitude of prosecuting agency, which was obliged to act independently and ensure that guilty are brought before Court for appropriate offences and it is for the Court to find out whether they are guilty or not. Supreme Court passed interim order on 19.03.2004 directing Director General of Police, Gujarat whether investigation taken by Investigating Officer was proper or there was need for further investigation or not. Director General of Police, Gujarat submitted report stating that deletion of section 120-B IPC does not appear to be proper. However, it was also brought to the notice of the Court that Additional Sessions Judge Xth, Fast Track Court at Veraval has framed charge in Sessions Case No. 64/2003 on 22.03.2004 against three of the accused persons under Section 120-B IPC. Report said that since Sessions Judge has already framed charge under Section 120-B IPC, nothing more required to be done. However, Director General of Police, Gujarat accepted few lapses in the investigation and departmental inquiry is likely to be held against Investigation Officer. Report also said that day to day hearing was going on and if further investigation is done, it would prove infructuous and would only delay process of trial unnecessarily. Supreme Court held that if during trial, Trial Court on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate. Court also held that if further investigation is warranted, hands of investigating agency or Court should not be tied down on the ground that further investigation may delay the trial, since ultimate object is to arrive at the truth. It also held that Section 173(8) of Cr.P.C. permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. It also stated that if Head of the Police Department is not satisfied, it is more good reason. Relevant extract of the judgement reads as under:-
"Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted."
12. Supreme Court relied on an earlier decision in Om Prakash Narang and another vs. State (Delhi Admn.) AIR 1979 SC 1791 wherein it was held that further investigation is not altogether ruled out merely because cognizance has been taken by Court. Court further said that:
"When defective investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the mater by the Courts."
13. The above judgement thus, clearly shows that power of further investigation of police under Section 173(8) Cr.P.C. is not circumscribed or restricted and even dehorse any direction of the Court, such power can be exercised. However, if trial is going on, it is desirable that police should inform the Court and seek formal permission when fresh facts comes to light instead of keeping silence on the ground that trial will be delayed. Court, however, nowhere said that if matter is not brought notice to the Court, further investigation conducted will be illegal and vitiated in law.
14. Similarly, in Amar Nath Pandey (supra), Court has formulated a question in para-24, "whether order passed by Police Authorities for further investigation can be quashed only on the ground that permission has not been obtained from Trial Court" and it has been held in para-25 in negative.
15. I find that a similar aspect has also been considered in Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel & Ors. (2017) 4 SCC 177 and Bikash Ranjan Rout vs. State through the Secretary (Home), Government of NCT of Delhi, New Delhi, AIR 2019 SC 2002.
16. In Amrutbhai Shambhubhai Patel (supra), an application for further investigation was filed by Informant seeking a direction to Police for further investigation under Section 173(8) Cr.P.C. whereupon order was passed by Court and this order was challenged before High Court who set aside the same, whereagainst, appeal came to Supreme Court. Court held that Section 173(8) would not be applicable for directing further investigation by Magistrate on an application made by complainant/Informant. This is evident from paras 46 to 49 of judgment, which are reproduced as under :
"46. As adumbrated hereinabove, Chapter XIV of the Code delineates the conditions requisite for initiation of proceedings before a Magistrate. Section 190, which deals with cognizance of offences by Magistrate, sets out that any Magistrate of the first Class and any Magistrate of the second class specially empowered, as contemplated, may take cognizance of any offence either upon receiving a complaint of facts which constitute such offence or upon a police report of such facts or upon information received from any person other than the police officer, or upon his own knowledge that such offence had been committed. Section 156, which equips a police officer with the power to investigate a cognizable case mandates vide Sub-Section 3 thereof that any Magistrate empowered Under Section 190 may order such an investigation. The procedure for dealing with complaints to Magistrate is lodged under Chapter XV of the Code. Section 202 appearing therein predicates that any Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance or which had 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 the issue of process against the Accused and either enquire 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. The contents of this text of Section 202(1) of the Code unmistakeably attest that the investigation that can be directed by the Magistrate, to be undertaken by a police officer would essentially be in the form of an enquiry for the singular purpose of enabling him to decide whether or another there is sufficient ground for proceeding with the complaint of an offence, of which he is authorised to take cognizance. This irrefutably is at the pre-cognizance stage and thus logically before the issuance of process to the Accused and his attendance in response thereto. As adverted to hereinabove, whereas Section 311 of the Code empowers a Court at any stage of any inquiry, trial or other proceeding, to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if construed to be essential to be just decision of the case, Section 319 authorizes a Court to proceed against any person, who though not made an Accused appears, in course of the inquiry or trial, to have committed the same and can be tried together. These two provisions of the Code explicitly accoutre a Court to summon a material witness or examine a person present at any stage of any inquiry, trial or other proceeding, if it considers it to be essential to the just decision of the case and even proceed against any person, though not an Accused in such enquiry or trial, if it appears from the evidence available that he had committed an offence and that he can be tried together with the other Accused persons.
47. 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 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.
48. 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.
49. In contradistinction, Sections 156, 190, 200, 202 and 204 of the Code of Criminal Procedure clearly outline the powers of the Magistrate 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 Code of Criminal Procedure 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 Code of Criminal Procedure adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173 of the Code of Criminal Procedure would have been worded accordingly to accommodate and ordain the same having 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 Code of Criminal Procedure, 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 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. (emphasis added)
17. In Bikash Ranjan Rout (supra) an FIR was registered under Sections 420, 468, 471, IPC and after investigation, Police filed charge sheet under the aforesaid sections. At the time of framing charge, Magistrate discharged accused vide order dated 05.02.2013. In the same order, Magistrate directed Additional Commissioner of Police (West) Delhi to make appreciation of quality of investigation and to analyse process of efficacy of sending any charge sheet before branch for the purpose of scrutiny. Magistrate also observed that case requires further investigation to reach a logical conclusion and the same should be done responsibly. It is this part of Magistrate's order, which was challenged in High Court by accused in Criminal Miscellaneous Case No.3386 of 2013. High Court declined to interfere with the order dated 05.02.2013 hence matter came before Supreme Court. Argument advanced before Supreme Court was that accused once discharged by Magistrate, he (Magistrate) had no jurisdiction to pass any order for further investigation under Section 173(8) Cr.P.C. It is argued that Magistrate becomes functus officio and had no jurisdiction. It is this question, which was considered by Supreme Court, which has been accepted by Court and if held that Magistrate had no such suo motu power to direct for further investigation. However, in this case Court has also said that before proceeding for further investigation, it is appropriate for Investigating Agency to file application before Magistrate for seeking permission for further investigation. Relevant observations reads as under :
"Section 173(8) of the Code of Criminal Procedure confers power upon the officer-in-charge of the police station to further investigate and submit evidence, oral or documentary, after forwarding the report Under Sub-section (2) of Section 173 of the Code of Criminal Procedure. Therefore, it is always open for the investigating officer to apply for further investigation, even after forwarding the report Under Sub-section (2) of Section 173 and even after the discharge of the Accused. However, the aforesaid shall be at the instance of the investigating officer/police officer-in-charge and the Magistrate has no jurisdiction to suo moto pass an order for further investigation/reinvestigation after he discharges the Accused."
(emphasis added)
18. Therefore, in the above Authorities also, there is no such law laid down that permission of Magistrate, if not obtained, further investigation conducted by Police and charge-sheet submitted would be illegal and unjustified and the same has to be quashed.
19. On the contrary, similar issue has been considered by this Court in Application u/s 482 Cr.P.C. No. 5156 of 2003 (Sunit Kumar Vs. State of U.P. and Others), decided on 03.07.2019 and while rejecting application, in para-17 of the judgement, Court said as under:-
"17. In the present case, I find that first charge sheet against Ram Niwas and Harpal dated 22.09.1999 was filed whereafter State Government issued order on 10/11th November, 1999, directing C.B.C.I.D. to make further investigation. Pursuant thereto, charge sheet against applicant and one Pooran Lal Gangwar was filed on 26.04.2002. Court held that normally further investigation by Police under Section 173(8) Cr.P.C. should have been done after bringing into notice of Magistrate but no authority has been brought to the notice of this Court that if such information was not given and Magistrate subsequently had taken cognizance of subsequent charge-sheet submitted after further investigation, this lapse of prior non-information to Magistrate would be such a patent illegality as to render, entire further investigation resulting in additional charge sheet, without jurisdiction. It may be an irregularity. I am not inclined to hold that it is an illegality going to the very jurisdiction of further investigation conducted by Police in exercise of power under Section 173(8) Cr.P.C., when such power has been recognized by Courts, time and again."
20. No other point has been argued.
21. Hence, I find no merit in this application. Rejected.
22. Interim order, if any, stands vacated.
Order Date :- 12.12.2019 Siddhant Sahu