Bombay High Court
Maheshkumar Hargovind Goyal vs State Of Mah. Thr. Pso, Ps, Wadi, Nagpur ... on 29 March, 2023
Author: G. A. Sanap
Bench: G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 502 OF 2022
PETITIONER : Maheshkumar Hargovind Goyal,
Aged about 47 years, Occupation : Agriculturist,
R/o Plot No. 560, Parichay Apartment,
2nd Floor, Ramdaspeth, Nagpur - 440 010.
Mo. No. 919423424699
VERSUS
RESPONDENTS : 1] State of Maharashtra,,
through Police Station Officer,
Police Station, Wadi, Nagpur City,
Nagpur.
2] V. D. Godbole
Police Inspector (Crime),
Police Station, Wadi, Nagpur City,
Nagpur.
3] The Commissioner of Police,
Nagpur City, Nagpur.
4] The Deputy Commissioner of Police,
Zone-I, Nagpur City, Nagpur.
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Mr. Anil S. Mardikar, Senior Advocate assisted by Mr. Digvijay
Singh, Advocate for the petitioner.
Mrs. M. H. Deshmukh, A. P. P. for respondent nos.1, 3 and 4
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CORAM : G. A. SANAP, J.
DATE : MARCH 29, 2023.
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ORAL JUDGMENT
1. RULE. Rule made returnable forthwith. Heard finally by consent of the learned advocates for the parties.
2. In this petition, filed under Article 227 of the Constitution of India, challenge is to the order dated 07.06.2022, passed below Exh.80 by learned Judicial Magistrate, First Class, Court no.10, Nagpur, whereby learned Magistrate was pleased to grant permission to the Investigating Officer to conduct further investigation and file supplementary charge-sheet against the petitioner under Section 173 sub-Section (8) of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C." for short).
3. The facts giving rise to this petition are as follows :
The petitioner is accused no.7 in a crime bearing No. 343/2016, registered at Police Station, Wadi, Nagpur City, Nagpur for the offences punishable under Sections 420, 465, 468, 471 read with Section 34 of the Indian Penal Code. The sum and substance of the ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 3 CRIWP502.22 (J).odt case of the prosecution is that on 18.06.2016, the Tahsildar, Nagpur Gramin, lodged a report at Police Station, Wadi. In his report, he has stated that the owners of land bearing survey Nos.103/1 and 103/2, admeasuring 6.27 HR, namely the Directors of Ankur Estate Private Limited, through Kamalkishor Agrawal and Ankur Brijkishor Agrawal, created forged NA (non-agriculture) order by using the rubber stamp and making signature of the Collector. It is stated that the owners of the land i.e. accused nos.1 and 2, did not make any application for conversion of their land for NA purpose. A photocopy of the said forged NA order was submitted before the Talathi, who is later on made accused in the crime, by the petitioner/accused no.7. On the basis of the report, the Investigating Officer conducted investigation.
The investigation inter-alia revealed the complicity of near about seven accused, including the petitioner, in commission of the crime.
4. The Investigating Officer on 14.05.2018 made an application under Section 169 of the Cr.P.C. before the learned Magistrate and submitted that the evidence against the petitioner/ accused no.7 is deficient and therefore, he is required to be released/ ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 4 CRIWP502.22 (J).odt discharged in the crime. Learned Magistrate issued notice to the informant. The informant filed his say. This application remained pending for four years without any order.
5. The earlier Investigating Officer was changed in the year 2022. The newly appointed Investigating Officer, on 07.06.2022 not pressed the application dated 14.05.2018 made for release/ discharge of the petitioner/accused no.7 as per the provisions of Section 169 of the Cr.P.C. The application was disposed of as not pressed. Similarly, on the same day i.e. 07.06.2022, the Investigating Officer made an application (Exh.80) before the learned Magistrate and stated that the investigation vis-a-vis accused no.7 was not fairly conducted. He pointed out that there has been ample evidence against the petitioner/accused no.7. According to the Investigating Officer, accused no.7 had produced photocopy of forged NA order before the Talathi and based on the said order, mutation entry was carried out. The Investigating Officer, therefore, prayed for permission to conduct further investigation and to file supplementary charge-sheet by invoking section 173, sub-section (8) of the Cr.P.C. against the ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 5 CRIWP502.22 (J).odt petitioner/accused no.7. Learned Magistrate, by order dated 07.06.2022 granted the prayer made by the Investigating Officer. The petitioner/accused no.7, being aggrieved by this order, has come before this Court by filing this petition.
6. The main grievance of the petitioner is that once the report under Section 169 of the Cr.P.C. was submitted and it was under
consideration for four years, the learned Magistrate was not justified firstly, to allow the Investigating Officer to not press the earlier application, and secondly, to grant the prayer for carrying out further investigation and filing of supplementary charge-sheet against the petitioner.
7. I have heard Mr. Anil S. Mardikar, learned Senior Advocate for the petitioner and Mrs. Mayuri H. Deshmukh, learned Additional Public Prosecutor for respondent nos.1, 3 and 4. Perused the record and proceeding.
8. Learned Senior Advocate submitted that the initial ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 6 CRIWP502.22 (J).odt application made by the Investigating Officer under Section 169 of Cr.P.C., with a request to release/discharge accused no.7 from the crime for want of evidence, was not decided for four years and therefore, the learned Magistrate was not justified in entertaining the prayer made by the Investigating Officer after four years to not press that application and to grant the prayer made by him for conducting further investigation in the crime and file supplementary charge-sheet against accused no.7. Learned Senior Advocate submitted that the Investigating Officer, on the basis of the material collected during the course of investigation, recorded his satisfaction that accused no.7 was not involved in commission of the crime and therefore, learned Magistrate was duty bound to accept the initial report submitted under Section 169 of Cr.P.C. and to release/discharge accused no.7. Learned Senior Advocate further submitted that before passing the order on application dated 07.06.2022, learned Magistrate was duty bound to issue notice to accused no.7 and grant him an opportunity of hearing. Learned Senior Advocate submitted that the permission granted by learned Magistrate for further investigation and filing supplementary charge-sheet against the petitioner is not in accordance with law. ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 :::
7 CRIWP502.22 (J).odt Learned Senior Advocate submitted that the legal position settled by catena of decisions clearly provides that learned Magistrate has no power to direct the investigation by the police in this manner. Learned Senior Advocate, therefore, submitted that the order in question is required to be quashed and set aside.
9. Learned Additional Public Prosecutor submitted that accused no.7 was the brain behind commission of the crime. Learned APP submitted that accused no.7 was looking after the property matters in Revenue Department on behalf of accused nos.1 and 2. Learned APP submitted that the investigation prima facie revealed that a photocopy of the fabricated NA order was submitted in the office of Talathi by petitioner/accused no.7. Learned APP submitted that the Talathi, before he was made accused in the crime, has stated in his statement recorded by the learned Magistrate under Section 164 of the Cr.P.C. that accused no.7 had produced before him a photocopy of the forged NA order. Learned APP further submitted that the Investigating Officer, who had filed an application for discharge of accused no.7, was guilty of misconduct. A departmental proceeding ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 8 CRIWP502.22 (J).odt has been initiated against him for his misconduct.
10. Learned APP, on the basis of the record, pointed out that in order to save accused no.7, the Investigating Officer made an application under Section 169 of Cr.P.C., which learned Magistrate was not empowered to entertain. Learned APP while supporting the impugned order submitted that even without obtaining permission of the learned Magistrate, the Investigating Officer has a right and prerogative to conduct further investigation and file supplementary charge-sheet. Learned APP submitted that the order impugned in this case could not be said to be an illegality. In the submission of learned APP, at the most it could be said to be an irregularity. Learned APP submitted that the application made by the erstwhile Investigating Officer was not pressed and therefore, there was no question of passing any order on this application by learned Magistrate. Learned APP, in short, submitted that even if the order in question is quashed and set aside, the Investigating Officer cannot be divested of his right and prerogative to conduct further investigation and proceed further in the matter by filing supplementary charge-sheet in terms of the provisions ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 9 CRIWP502.22 (J).odt of Section 173, sub-section (8) of the Cr.P.C., depending upon the evidence collected during the course of investigation.
11. In order to appreciate the rival submissions, I have gone through the record and proceeding. At the outset, it would be necessary to consider the settled legal position on the point of powers of the police officer under Section 169 of Cr.P.C., similarly the powers of the Magistrate under Section 169 of Cr.P.C. and also the powers of the Magistrate to order investigation and the contingencies in which the Magistrate can order further investigation. A useful reference can be made to the decision of the Hon'ble Supreme Court in Abhinandan Jha and others .vs. Dinesh Mishra, reported at 1968 AIR 117. This is a landmark judgment on the point of powers of a police officer in the matter of investigation and the powers of a Magistrate to order further investigation. In this case, it is held that as per Section 169 of Cr.P.C., in case of deficiency of the evidence, a police officer or Investigating Officer has power to release the accused. The police officer, if satisfied that the evidence is deficient, then he has to take a bond from the accused to appear before the Magistrate as and when required. It is ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 10 CRIWP502.22 (J).odt held that this provision is obviously to meet the contingency when the Magistrate considers the report of the Investigating Officer and judicially takes a view different from the police. It is further held that under Section 169 of Cr.P.C., the Magistrate has no power to release/ discharge the accused. It is held that the Magistrate, after submitting final report under section 173 of the Cr.P.C., has two options. If it is found by the Magistrate that the person, who is supposed to be sent to trial, has not been sent by the police for trial for one reason or the other, the Magistrate can take cognizance of the said offence by invoking his power under Section 190 of the Cr.P.C. or direct the police to conduct investigation by invoking Section 156(3) of Cr.P.C. This decision has been followed in number of subsequent decisions and particularly, in the case of Gangadhar Janardan Mhatre .vs. State of Maharashtra and others, decided on 28.09.2004.
12. The Division Bench of this Court at Principal Seat, in case of Shahnaj Taj. Mohd. Hashmi .vs. Senior Inspector of Police , reported at 2017 Cri.L.J. 3644, has considered this issue in great detail. Paragraphs 8, 9, 10 and 17 of the judgment illuminates the legal ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 11 CRIWP502.22 (J).odt position. It is necessary to reproduce the same. Paragraphs 8, 9, 10 and 17 of the said judgment read thus -
8. A plain reading of Sections 169 and 170 Cr.P.C reveals that these Sections can be invoked when the accused is in custody. Section 169 comes into operation when there is no sufficient evidence to proceed against the accused. This Section empowers the officer-in- charge of the concerned police station to release such accused person on bail on executing bond, with or without surety to appear before the concerned Magistrate, if and when so required. Whereas, Section 170 comes into play when there is sufficient evidence or reasonable ground to send the accused for trial. In such circumstances, the Officer-in-charge is required to forward the accused to the concerned Magistrate, and in case the offences are bailable, to release the accused on bail upon taking surety for his appearance before such Magistrate.
9. Section 173 Cr.P.C contemplates filing of a report upon completion of investigation, which should contain all the particulars mentioned in sub Section (2) of Section 173 of Cr.P.C. Such report includes the cases covered under Section 169 as well as 170 of Cr.P.C. Sub-Section (4) of Section 173 relates to Section 169 of Cr.P.C., where the accused has been released on his bond for want of sufficient evidence or reasonable grounds to send him for trial. This provision empowers the Magistrate either to discharge the bond, or to order further investigation, or to take cognizance of the offence, as the Magistrate thinks fit. Sub Section 5 of Section 173, which relates to the cases under Section 170 of Cr.P.C. mandates that the police officer shall forward to the Magistrate along with the report, all relevant documents and the statements recorded under Section 161 of Cr.P.C. Thus, the investigation, which commences with registration of FIR under Section 154 of Cr.P.C concludes with filing of report under Section 173 of Cr.P.C, subject to further investigation as contemplated under Section 173(8) of Cr.P.C.
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10. The report under Section 173 has been classified in Bombay Police Manual, 1959 as - "Charge-sheet"- to be filed when the accused is sent for trial and "Final Report"- to be filed when the accused is not sent for trial. It would be therefore advantageous to refer to Rules 218 and 209 of Bombay Police Manual which prescribes the procedure and guidelines for filing Charge-sheet and the final report under Section 173 of Cr.P.C. Rule 218 states that the reports required by Section 173 Cr.P.C., to be submitted on the completion of an investigation are of two kinds viz. (1) Chargesheet in Form C.P.C.20 and (ii) Final reports in Form C.P.C.19. Sub-rule 2 of Rule 218 states that when there is sufficient evidence to justify the sending of an accused person to the Magistrate, the charge- sheet shall be sent to the Magistrate directly. The said sub- Rule (2) specifies further details/points which are required to be observed in addition to the information to be filled up in the columns of the charge-sheet.
17. From the aforesaid provisions and the principles laid down by the Apex Court, it is clear that release of the accused under Section 169 of Cr.P.C. cannot be equated with filing a report under Section 173 Cr.P.C., which has to be filed after completion of investigation. In fact,Section 169 Cr.P.C. does not contemplate filing of such report. All that Section 169 Cr.P.C stipulates is the release of the accused upon taking bonds (with or without surety) to appear before the Magistrate when so required, when there is no sufficient material to send the accused for trial. Whether the accused is released on bonds under Section 169 Cr.P.C. and sent for trial under Section 170 Cr.P.C., upon completion of investigation the police officer has to submit the report under Section 173 Cr.P.C. which would include a charge-sheet under Rule 218 and a final report under Rule 219 of Bombay Police Manual. It is only upon filing of the report under Section 173 which would include final report under Rule 219 of Bombay Police Manual, that the Magistrate has to either agree with the report and discharge the bond, or not agree with the police report and order further investigation, or in the alternative take cognizance of the offence ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 13 CRIWP502.22 (J).odt complained of. In the light of above provisions and principles, the procedure allegedly followed by the investigating agency in submitting the closure report under Section 169 of Cr.P.C. against the aforesaid petitioners is apparently not in consonance with the provisions of law.
13. The coordinate bench of this Court in the case of Mohd. Rafique S/o Abdul Rahman and others .vs. State of Maharashtra , reported at 2012 All M.R. (Cri.) 3872, has held that the powers under Section 169 of Cr.P.C. are exclusive powers of the police officer. He is not required to make a report to the Magistrate under Section 169 of Cr.P.C. He is also not even required to intimate to the Magistrate about such release till he files final report under Section 173 of Cr.P.C. In this case decision of other coordinate bench in the case of Abdul Razak Abdul Gani Dunge .vs. State of Maharashtra and others , reported at 2007 All M.R. (Cri.) 3084, has been followed.
14. It is, therefore, crystal clear that Sections 169 and 170 of Cr.P.C. can be invoked when the accused is in custody. Section 169 of Cr.P.C. comes into operation when there is no sufficient evidence to proceed against the accused. This section empowers the officer in- charge of the concerned police station to release such accused person ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 14 CRIWP502.22 (J).odt on bail on executing bond (with or without surety) to appear before the concerned Magistrate, if and when so required. As against this, Section 170 of Cr.P.C. comes into play when there is sufficient evidence or reasonable ground to send the accused for trial. Section 173 of Cr.P.C. contemplates filing of a report upon completion of investigation, which inter alia, should contain the necessary particulars mentioned in sub- section (2) of Section 173 of Cr.P.C. Such a report must also contain the action taken by the police under Section 169 as well as under
Section 170 of Cr.P.C. Sub-section (4) of Section 173 of Cr.P.C. contemplates the information with regard to Section 169 Cr.P.C., where the accused has been released on his bond for want of sufficient evidence. Section 173 of Cr.P.C. empowers the Magistrate either to discharge the bond or to order further investigation or to take cognizance of the offence as the Magistrate thinks fit. It is, therefore, apparent that the investigation commences with registration of the first information report under Section 154 of Cr.P.C. and culminates into filing of report under Section 173 of Cr.P.C., subject to further investigation as contemplated under Section 173(8) of Cr.P.C. On submission of report under Section 173 Cr.P.C., the Magistrate is ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 15 CRIWP502.22 (J).odt required to appreciate the same on the basis of the several situations arising in the case as contemplated in Section 173 of Cr.P.C. In a given case, where there is relase of accused by the police, under Section 169 Cr.P.C. and the said fact has been mentioned in the charge-sheet as provided under Section 174(4) of the Cr.P.C., the Magistrate has two options. First option is to accept the report submitted by the police officer and the second option is that if the Magistrate is satisfied that there is material to establish complicity of the accused in the commission of a crime, the Magistrate can take cognizance of the offence against the said accused released by the police, by exercising his powers under Section 190 of the Cr.P.C.
15. In view of above settled legal position, the controversy in this case is required to be addressed. The Investigating Officer had submitted the report dated 14.05.2018 purporting to be under Section 169 of Cr.P.C. and requested the Magistrate to release/discharge the accused under Section 169 of Cr.P.C. This action on the part of the Investigating Officer, if examined in the teeth of the above stated legal position, would show that it was not in accordance with law. Learned ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 16 CRIWP502.22 (J).odt Magistrate was not empowered to entertain such a report and exercise the powers under Section 169 of Cr.P.C. It is to be noted that if learned Magistrate had accepted the said report, then the order passed by the Magistrate would have been a grave illegality. The powers under Section 169 Cr.P.C. have been conferred on the Investigating Officer. The Magistrate is required to consider and scrutinize this action on the part of police officer when a final report under Section 173 of Cr.P.C. is produced. Prior to submission of the final report, the Magistrate has no power to release or discharge the accused or to entertain any such application under Section 169 of Cr.P.C. In this background, it has to be held that the action taken by the Investigating Officer being illegal, no importance or no legal sanction can be accorded to the same. It is to be noted that learned Magistrate, in order to ensure observance of the principles of natural justice, issued a notice to the informant. The informant filed his say. However, by the time this application was decided, the Investigating Officer not pressed the same on 07.06.2022. It is, therefore, apparent that if the application dated 14.05.2018, had not been withdrawn by the Investigating Officer and decided and granted by the learned Magistrate, then it ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 17 CRIWP502.22 (J).odt would have resulted into grave illegality.
16. Coming back to the application at Exh.80, it is seen that the Investigating Officer, after not pressing the application under Section 169 of Cr.P.C., dated 14.05.2018, sought permission of the learned Magistrate to conduct further investigation against accused no.7 and file supplementary charge-sheet against him by invoking the provisions of Section 173, sub-section (8) of the Cr.P.C. Learned Magistrate, by one line order, granted permission as sought by the Investigating Officer. If this order is examined in the teeth of the above stated legal position, it would show that this order is not in accordance with law.
17. There are more than one reason for the same. It is to be noted that the power under Section 169 of Cr.P.C. has to be exercised exclusively by the police officer and not by the Magistrate. The investigation in a crime is a right and prerogative of the Investigating Officer. The Magistrate or the Court is not entitled to interfere in the right or prerogative of the Investigating Officer to conduct the ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 ::: 18 CRIWP502.22 (J).odt investigation. The Magistrate comes into picture when report under Section 173 of Cr.P.C. is submitted. On submission of the report, learned Magistrate has powers as stated above. Learned Magistrate cannot direct the Investigating Officer to conduct the investigation. In this case, the Magistrate granted permission to the Investigating Officer to conduct further investigation as per his request. In the above background, the Investigating Officer was not required to obtain permission of the Magistrate for conducting further investigation and filing the supplementary charge-sheet. It was the prerogative of the Investigating Officer. In fact, in this case after having not pressed the application under Section 169 of Cr.P.C., the Investigating Officer on his own could have exercised his power of investigation and after investigation depending upon the material collected during the investigation, could have filed the supplementary charge-sheet against accused no.7, by invoking the provisions of Section 173, sub-section (8) of Cr.P.C. In the facts and circumstances, the order passed by the learned Magistrate, if examined in the teeth of settled legal position as above, cannot be sustained. The order is, therefore, required to be set aside.
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18. It is the case of the prosecution that the approach of the erstwhile Investigating Officer while submitting the report under Section 169 Cr.P.C. was unfair. He was biased and therefore, the report was submitted to favour accused no.7. It has been stated in the affidavit-in-reply that on account of this, disciplinary proceeding was initiated against him and he has been found guilty of serious misconduct. It has come on record that the statement of Talathi under Section 164 of Cr.P.C. was recorded by the Magistrate. In his report, he has categorically stated that accused no.7 had produced before him a photocopy of the forged NA order and based on the said order with the permission of Mandal Adhikari (Zonal Officer), mutation entry was taken. However, the fact remains that further investigation revealed direct complicity of the Talathi in commission of the crime and therefore, he was added as accused. In the facts and circumstances, the new Investigating Officer, seized with the investigation thought it appropriate to conduct further investigation and take this issue to a logical conclusion. Therefore, the Investigating Officer not pressed the application made by the earlier Investigating Officer under Section 169 of Cr.P.C.
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19. It is to be noted that the Investigating Officer during the course of investigation would be required to apply his mind independently to the statement recorded under Section 164 of Cr.P.C. and its evidentiary value. Similarly, the Investigating Officer would be required to conduct further investigation and verify whether the Talathi, who is the accused, is still firm on his statement and ready to confess it. The investigation is a tool to go to the root of the matter and unearth the commission of offence. The Investigating Officer, therefore, has been given this prerogative to conduct fair investigation by law. It is therefore, apparent that the Magistrate or the Court has not been given powers to interfere in the investigation. In this case, even after setting aside the impugned order passed by the learned Magistrate, which has been found to be contrary to the provisions of law, the Investigating Officer has a right to carry out the investigation. The Investigating Officer can collect the evidence and based on the said evidence can file supplementary charge-sheet against accused no.7 by invoking Section 173, sub-section (8) of Cr.P.C. In the facts and circumstances, I am of the view that the order passed by the Magistrate is required to be set aside.
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20. Accordingly, the Criminal Writ Petition is allowed.
i] The order dated 07.06.2022, passed by learned Judicial Magistrate, First Class, Court no.2, Nagpur, below application (Exh.80) in Regular Criminal Case No. 1990/2018, is quashed and set aside.
ii] At the same time, it is made clear that setting aside of the impugned order shall not stand in the way of the Investigating Officer to conduct further investigation in the matter and collect the evidence and depending upon the result of the investigation, file supplementary charge-sheet against the petitioner/accused no.7 by invoking the provisions of Section 173, sub section (8) of Cr.P.C.
iii] The petition stands disposed of. Rule is made absolute.
( G. A. SANAP, J. ) Diwale ::: Uploaded on - 10/04/2023 ::: Downloaded on - 13/06/2023 04:18:37 :::