Jammu & Kashmir High Court
State Through Special P.P. vs Nazir Ahmad Bhat And Ors. on 5 April, 2006
Equivalent citations: 2007(1)JKJ78
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. This revision petition is directed against the order dated 30.09.2005, hereinafter referred to as impugned order, passed by learned Principal Session Judge, Budgam, in the case titled as State v. Nazir Ahmad Bhat and Ors. FIR No. 17712003, P/S Sadder, whereby and where-under application filed by complainant in terms of Sub-section 8 of Section 173 Code of Criminal Procedure, hereinafter, for short "Code" came to be rejected.
Heard. Perused. Considered.
2. It appears that FIR No. 177/2003 under Section 306/34 of Ranbir Penal Code, hereinafter for short "RPC", was lodged in P/S Sadder and investigation was conducted by Shri Sardar Karan Singh, Sub-Inspector, P/S Sadder. Thereafter, the Crime Branch was directed to conduct investigation in the case and it directed Bashir Ahmad, Inspector, to conduct investigation who conducted the investigation and presented the charge sheet against the accused/respondents, herein, for the commission of offences punishable under Section 306/34 of RPC which came to be committed to the Court, of Session Judge, Budgam.
3. Mr. Mufti Mehraj-ud-Din, Special Prosecutor, moved an application in terms of Sub-section 8 of Section 173 of the Code. Accused filed objections. The learned trial court rejected the application.
4. While going through the application, it appears that complainant had prayed for re-investigation of the case by Central Bureau of Investigation (CBI).
5. It is necessary to notice Sub-section 8 of Section 173 of the Code, herein, which reads 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 (20 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 may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).]
6. A bare reading of this provision of law mandates that police can conduct further investigation even after charge sheet is presented before the Court of law and can file supplementary charge sheet provided some fresh or new material is collected.
7. The case of the complainant that Investigating Officer wrongly came to the conclusion that accused are prima facie involved in the commission of offence punishable under Section 306 of RPC but are involved in the commission of offence which is culpable homicide amounting to murder on the basis of evidence collected by the investigating officer. It is profitable to reproduce para-4 of the application herein, which reads as under:
4. The petitioner/complainant shall demonstrate on the basis of evidence collected by the prosecution that case does not fall under 306 but is a case culpable homicide amounting to murder.
8. Further, it was also averred that investigating agency had not addressed to and thrashed out four points enumerated in para-12 of the application. It is profitable to reproduce para-12 of the application herein, which reads as under:
12. The fact of the matter remains that investigating agency should have gone on the other aspect of the case i.e.
1. Whether the deceased was in possession of poison.
2. Whether the poison was held by deceased in a usual manner
3. Whether she brought it from somebody.
4. After satisfying above three condition whether the deceased was so desperate to have consumed the poison.
9. While going through the application, it was not pleaded that some fresh material(s) or some further evidence was discovered after filing of the report.
Whether, in the given circumstances, remedy under Sub-section 8 of Section 173 of the Code could be pressed into service?
10. The entire case as put-forth in the application was that material collected disclose commission of offence punishable under Section 302, 149, 201 of RFC. Accused were yet to be charge sheeted and that stage had yet to come. It was for the public prosecutor to address arguments and also for accused and thereafter the trial court had to frame opinion. It is profitable to reproduce Sections 267 and 269 of the Code herein, which read as under:
267. Opening case for prosecution. - When the accused appears or is brought before the Court in pursuance of a commitment of the case under Section 205-D the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.
269. Framing of charge. - (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-....
11. While going through the mandate of this provision, the Court had to record prima facie opinion that whether the accused are involved in the commission of offence(s).
12. Apex Court in case Randhir Singh Rana v. The State Being the Delhi Administration, , held as under:
10. The decision of this Court in State of Rajasthan v. Aruna Devi , to which our attention was invited by Shri Datta, learned senior counsel appearing for the State, also is not helpful, because in that case the power of the police to make further investigation after cognizance was taken by the Magistrate had come up for examination. The point involved in present appeal, however, is relatable not to the power of the police to make further investigation but of the Magistrate to order for such investigation.
11. The aforesaid being the legal position as discernible from the various decisions of this Court and some of the High Courts; we would agree, as presently advised, with Shri Vasdev that within the grey area to which we have referred the Magistrate of his own cannot order for further investigation. As in the present case the learned Magistrate had done so, we set aside his order and direct him to dispose of the case either by framing the charge or discharge the accused on the basis of materials already on record. This will be subject to the caveat that even if the order be of discharge, further investigation by the police on its own would be permissible, which could even end in submission of either fresh charge-sheet.
13. Apex Court in case Ram Lal Narang and Anr. v. State (Delhi Admn.) reported in 1979 Cri.LJ 1346, held as under:
18... This decision is a clear authority for the view that further investigation is not altogether ruled out merely because cognizance of the case has been taken by the Court; defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it.
21...We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.
22. As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh fact. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was no exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.
14. The trial court has rightly held that investigating officer had conducted investigation in fair manner and examined the case from all angles. The trial Court has rightly held that application in terms of Sub-section 8 of Section 173 of the Code could not be pressed into service in the given circumstances of the case. It is profitable to reproduce relevant portion of the impugned order herein, which reads as under:
Generally speaking, the Court can order re-investigation if fresh evidence is disclosed which had not come to the knowledge of the I.O. But in the instant case, no such fresh evidence or material is shown to have been discovered after filling of the final report under Section 173 Cr.P.C. No doubt Sub-section (8) of Section 173 Cr.P.C. gives power to re-investigate, but it equally enjoins that these powers should be exercised with due circumspection, lest such power may not be abused. It is only in exceptional cases that further investigation can be ordered to collect further evidence, and not in a routine manner on mere asking of the complainant. To sum up, in the present case no new material has been disclosed which could necessitate re-investigation.
Suffice to say, that in the present case full and complete investigation has been conducted by the Crime Branchy and that all the probabilities linked with the death of Shaheena have been examined by looking at from all angles. In these circumstances further investigation can not be ordered.
15. Keeping in view the discussion made hereinabove and the finding returned by the learned Session Judge, Budgam, I am of the considered view that impugned order is perfectly legal one, needs no interference.
16. Accordingly, revision petition merit dismissal and is, hereby, dismissed along with connected Cr.MP. However, petitioner/complainant is at liberty to address arguments and demonstrate how the case falls under Section 302, 149, 201 of RFC.
17. Any observation made by this Court or by the trial court while deciding the application under Sub-section 8 of Section 173 of the Code or application for grant of bail shall not influence the mind of the trial court and prejudice the rights of the parties in any way.
18. Registry is directed to send down the record along with a copy of this order. Parties are directed to cause appearance before the trial court on 29-04-2006.