Madhya Pradesh High Court
Brijesh Singh Bhadoriya vs The State Of Madhya Pradesh on 19 July, 2017
MCRC-3789-2016
(BRIJESH SINGH BHADORIYA Vs THE STATE OF MADHYA PRADESH)
19-07-2017
Shri Prashant Sharma, Counsel for the applicant.
Shri Girdhari Singh Chauhan, Public Prosecutor for the respondent
no.1/State
Ms. Minu Sharma, Counsel for respondent no.2.
Heard Finally.
This application under Section 482 of Cr.P.C. has been filed against the
order dated 28-1-2016 passed by 2nd A.S.J., Bhind in Criminal Revision
No.14/2016 affirming the order dated 9-12-2015 passed by J.M.F.C.,
Mehgaon, Distt. Bhind in Criminal Case No. 331/2015 by which the
application filed by the applicant under Section 173(8) of Cr.P.C. has been
rejected.
The necessary facts for the disposal of the present application in short are
that a F.I.R. was lodged on 9-4-2015 for offence under Sections 323, 324,
294, 427, 506, 34 of I.P.C. on the allegation that the applicant along with
other co-accused persons had assaulted the complainant. The Police after
completing the investigation, filed a charge-sheet against the applicant and
other co-accused persons.
The applicant filed an application under Section 173(8) of Cr.P.C. before
the Court of Magistrate, alleging inter alia that the applicant was not present
on the place of incident and in fact he was at Indore which can be confirmed
from the CCTV footage of the locality. The applicant had given various
applications to the senior police officers, however, no action has been taken
on his applications. Thus, in short, it was the case of the applicant that he
was at Indore at the time of incident and he has been falsely implicated.
The Magistrate by order dated 9-12-2015, rejected the application filed by
the applicant.
Being aggrieved by the order of the Magistrate, the applicant filed a
Criminal Revision, which too has suffered dismissal by order dated
28-1-2016 passed by 2nd A.S.J., Bhind, in Criminal Revision No.14 of 2016.
Being aggrieved by the orders of the Courts below, the present application
under Section 482 of Cr.P.C. has been filed.
It is submitted by the Counsel for the applicant, that free and fair
investigation is the fundamental right of the accused and when the applicant
had made several applications to the police authorities giving sufficient
evidence to prove his plea of alibi and to prove his innocence, then it was
obligatory on the part of the police authorities to conduct the investigation
and should have come to a right conclusion that whether the applicant was
really involved in the commission of offence, or he has been falsely
implicated. It is further submitted that any innocent person should not be
allowed to face the agony of Trial, merely because, the first informant has
named him in the F.I.R.
Per contra, it is submitted by the Counsel for the respondent no.1/State as
well as the Counsel for the complainant, that the police had investigated the
matter thoroughly and investigation is within the domain of the police and
therefore, unless and until, some mala fides are alleged against the
investigating officer, the investigation cannot be directed to be conducted as
per the sweet wishes of the accused. It is further submitted that the Courts
below did not commit any illegality by rejecting the application filed by the
accused under Section 173(8) of Cr.P.C.
Heard learned Counsel for the parties.
The question for consideration is that whether the Magistrate can direct for
further investigation in exercise of power under Section 173(8) of Cr.P.C.,
on the application of the accused or not?
The Supreme Court in the case of Amrutbhai Shambhubhai Patel Vs.
Sumanbhai Kantibhai Patel and Others reported in (2017) 4 SCC 177 has held as
under :
''49 On an overall survey of the pronouncements of this Court
on the scope and purport of Section 173(8) of the Code and the
consistent trend of explication thereof, we are thus disposed to
hold that though the investigating agency concerned has been
invested with the power to undertake further investigation
desirably after informing the Court thereof, before which it had
submitted its report and 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 the accused has entered appearance in response
thereto. At that stage, neither the learned Magistrate suo motu
nor on an application filed by the complainant/informant direct
further investigation. Such a course would be open only on the
request of the investigating agency and that too, in
circumstances warranting further investigation on the detection
of material evidence only to secure fair investigation and trial,
the life purpose of the adjudication in hand.
50. The unamended and the amended sub-section (8) of Section
173 of the Code if read in juxtaposition, would overwhelmingly
attest that by the latter, the investigating agency/officer alone
has been authorized to conduct further investigation without
limiting the stage of the proceedings relatable thereto. This
power qua the investigating agency/officer is thus legislatively
intended to be available at any stage of the proceedings. The
recommendation of the Law Commission in its 41st Report
which manifesting heralded the amendment significantly had
limited its proposal to the empowerment of the investigating
agency alone.
51. In contradistinction, Sections 156, 190, 200, 202 and 204
CrPC clearly outline the powers of the Magistrate and 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 CrPC to order further investigation
even after the cognizance is taken, the 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 CrPC adumbrated herein-
above. Additionally had it been the intention of the legislature
to invest such a power, in out estimate, Section 173(8) CrPC
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 vs.
Commissioner of Police (1985) 2 SCC 537, the Magistrate, in
both the contingencies, namely; when he takes cognizance of
the offence or discharges the accused, would be committed to a
course, where-after 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 CrPC, 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.â
Thus, it is clear that after the charge-sheet is filed and the Court has taken
cognizance, then the further investigation can be directed by the Magistrate
only on the application made by the investigating officer and the further
investigation cannot be directed even on the application of the
informant/complainant.
In the present case, the application has been filed by the accused/applicant,
seeking further investigation to prove that he was at Indore at the time of the
commission of offence and thus, the applicant is seeking further
investigation to prove his plea of alibi.
It is well established principle of law that it is for the investigating agency to
decide that on which document, it wants to place reliance or not? The
investigating agency cannot be directed to investigate the matter from a
particular point of view as the same is within the domain of the investigating
officer.
The Supreme Court in the case of D. Venkatasubramaniam Vs. M.K. Mohan
Krishnamachari reported in (2009) 10 SCC 488 has held as under :
''2. It is well settled and this Court time and again reiterated
that the police authorities have the statutory right and duty
to investigate into a cognizable offence under the scheme
of Code of Criminal Procedure (for short âthe
Codeâ). This Court, on more than one occasion, decried
uncalled for interference by the courts into the domain of
investigation of crimes by police in discharge of their
statutory functions. The principle has been succinctly stated
way back in King Emperor v. Khwaja Nazir Ahmad AIR
1945 PC 18 and the same has been repeatedly quoted with
respect and approval.
3. The Privy Council observed that: (Khwaja Nazir Ahmad
case AIR 1945 PC 18, IA p. 212)
â⦠Just as it is essential that every one accused of a
crime should have free access to a court of justice so that he
may be duly acquitted if found not guilty of the offence
with which he is charged, so it is of the utmost importance
that the judiciary should not interfere with the police in
matters which are within their province and into which the
law imposes on them the duty of inquiry.â
4. The Privy Council further observed: (Khwaja Nazir
Ahmad case AIR 1945 PC 18, IA pp. 212-13)
â⦠In India, as has been shown, there is a statutory
right on the part of the police to investigate the
circumstances of an alleged cognizable crime without
requiring any authority from the judicial authorities, and it
would, as Their Lordships think, be an unfortunate result if
it should be held possible to interfere with those statutory
rights by an exercise of the inherent jurisdiction of the
court. The functions of the judiciary and the police are
complementary, not overlapping, and the combination of
individual liberty with a due observance of law and order is
only to be obtained by leaving each to exercise its own
function, always, of course, subject to the right of the court
to intervene in an appropriate case when moved under
Section 491, Criminal Procedure Code to give directions in
the nature of habeas corpus. In such a case as the present,
however, the courtâs functions begin when a charge is
preferred before it, and not until then. It has sometimes been
thought that Section 561-A has given increased powers to
the court which it did not possess before that section was
enacted. But this is not so. The section gives no new
powers, it only provides that those which the court already
inherently possesses shall be preserved and is inserted, as
Their Lordships think, lest it should be considered that the
only powers possessed by the court are those expressly
conferred by the Criminal Procedure Code, and that no
inherent power had survived the passing of that Act.â
(emphasis supplied)
5. In State of W.B. v. S.N. Basak AIR 1963 SC 447 a
Division Bench of three Judges of this Court, while
referring to the observations of the Privy Council referred to
herein-above, observed: (AIR p. 448, para 3)
â3. ⦠With this interpretation, which has been put
on the statutory duties and powers of the police and of the
powers of the Court, we are in accord.â
and it was further held: (AIR p. 448, para 3)
â3. ⦠The powers of investigation into cognizable
offences are contained in Chapter XIV of the Code of
Criminal Procedure. Section 154 which is in that Chapter
deals with information in cognizable offences and Section
156 with investigation into such offences and under these
sections the police has the statutory right to investigate into
the circumstances of any alleged cognizable offence â¦
and this statutory power of the police to investigate cannot
be interfered with by the exercise of power under Section
439 or under the inherent power of the court under Section
561-A of the Criminal Procedure Code.â
This Court, having found that the High Court had exceeded
its jurisdiction in interfering with the investigation,
interfered with the orders of the High Court by allowing the
appeal preferred by the State.
6. In State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 ,
a three-Judge Bench, speaking through Desai, J., after
referring the precedents including Khwaja Nazir Ahmad
AIR 1945 PC 18, held: (J.A.C. Saldanha case (1980) 1 SCC
554 , SCC pp. 572-73, paras 25-26)
â25. There is a clear-cut and well demarcated sphere of
activity in the field of crime detection and crime
punishment. Investigation of an offence is the field
exclusively reserved for the executive through the Police
Department, the superintendence over which vests in the
State Government. The executive which is charged with a
duty to keep vigilance over law and order situation is
obliged to prevent crime and if an offence is alleged to have
been committed it is its bounden duty to investigate into the
offence and bring the offender to book. Once it investigates
and finds an offence having been committed it is its duty to
collect evidence for the purpose of proving the offence.
Once that is completed and the investigating officer submits
report to the Court requesting the Court to take cognizance
of the offence under Section 190 of the Code its duty comes
to an end. On a cognizance of the offence being taken by
the Court the police function of investigation comes to an
end subject to the provision contained in Section 173(8),
there commences the adjudicatory function of the judiciary
to determine whether an offence has been committed and if
so, whether by the person or persons charged with the crime
by the police in its report to the Court, and to award
adequate punishment according to law for the offence
proved to the satisfaction of the Court. There is thus a well-
defined and well-demarcated function in the field of crime
detection and its subsequent adjudication between the
police and the Magistrate. This has been recognized way
back in King Emperor v. Khwaja Nazir Ahmad AIR 1945
PC 18â¦.
***
26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary.â
7. M.C. Mehta (Taj Corridor Scam) v. Union of India (2007) 1 SCC 110 was a public interest litigation in which this Court, after noticing the precedents, held that when a cognizable offence is reported to the police, they may after investigation take action under Section 169 or Section 170 of the Code. If the officer in charge of the police station forms an opinion that there is no sufficient evidence against the accused, the officer-in-charge may, under Section 169 of the Code, release the accused from custody or, if the officer forms an opinion that there is sufficient evidence, he may, under Section 170 of the Code, forward the accused to a competent Magistrate.
8. After analysing the earlier judgments, this Court observed: (Taj Corridor Scam case (2007) 1 SCC 110, SCC p. 128, para 26) â26. ⦠that there is a clear-cut and well-demarcated sphere of activities in the field of crime detection and crime punishment. Investigation of an offence is the field reserved for the executive through the Police Department, the superintendence over which vests in the State Government. The executive is charged with a duty to keep vigilance over the law and order situation. It is obliged to prevent crime. If an offence is committed allegedly, it is the Stateâs duty to investigate into the offence and bring the offender to book. Once it investigates through the Police Department and finds an offence having been committed, it is its duty to collect evidence for the purposes of proving the offence. Once that is completed, the investigating officer submits report to the court requesting the court to take cognizance of the offence under Section 190 CrPC and his duty comes to an end.â ************
25. It is the statutory obligation and duty of the police to investigate into the crime and the courts normally ought not to interfere and guide the investigating agency as to in what manner the investigation has to proceed. In M.C. Abraham v. State of Maharashtra (2003) 2 SCC 649 this Court observed: (SCC pp. 657-58, para 14) â14. ⦠Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a Magistrate and without a warrant. The section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant, arrest any person in the situations enumerated in that section. It is open to him, in the course of investigation, to arrest any person who has been concerned with any cognizable offence or against whom reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. Obviously, he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged. In appropriate cases, after some investigation, the investigating officer may make up his mind as to whether it is necessary to arrest the accused person. At that stage the court has no role to play. Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised. It depends inter alia upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. Obviously, the power has to be exercised with caution and circumspection.â
26. It is further observed: (M.C. Abraham case (2003) 2 SCC 649, SCC pp. 659-60, para 17) â17. The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.â
27. This Court while observing that it was not appropriate for the High Court to issue a direction that the case should not only be investigated but a chargesheet must be submitted, held: (M.C. Abraham case (2003) 2 SCC 649, SCC p. 660, para 18) â 18. ⦠In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside. While it is open to the High Court, in appropriate cases, to give directions for prompt investigation, etc. the High Court cannot direct the investigating agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency.â The Supreme Court in the case of Manohar Lal Sharma Vs. Principal Secretary, reported in (2014) 2 SCC 532 has held as under :
â'39.However, the investigation/inquiry monitored by the court does not mean that the court supervises such investigation/inquiry. To supervise would mean to observe and direct the execution of a task whereas to monitor would only mean to maintain surveillance. The concern and interest of the court in such âCourt-directedâ or âCourt- monitoredâ cases is that there is no undue delay in the investigation, and the investigation is conducted in a free and fair manner with no external interference. In such a process, the people acquainted with facts and circumstances of the case would also have a sense of security and they would cooperate with the investigation given that the superior courts are seized of the matter. We find that in some cases, the expression âCourt-monitoredâ has been interchangeably used with âCourt-supervised investigationâ. Once the court supervises an investigation, there is hardly anything left in the trial. Under the Code, the investigating officer is only to form an opinion and it is for the court to ultimately try the case based on the opinion formed by the investigating officer and see whether any offence has been made out. If a superior court supervises the investigation and thus facilitates the formulation of such opinion in the form of a report under Section 173(2) of the Code, it will be difficult if not impossible for the trial court to not be influenced or bound by such opinion. Then trial becomes a farce. Therefore, supervision of investigation by any court is a contradiction in terms. The Code does not envisage such a procedure, and it cannot either. In the rare and compelling circumstances referred to above, the superior courts may monitor an investigation to ensure that the investigating agency conducts the investigation in a free, fair and time-bound manner without any external interference."
Further, it is a well established principle of law that the Constitutional Courts should not normally supervise the investigation. Furthermore, the plea of alibi is a defence which has to be proved by the accused by leading cogent and reliable evidence. He cannot seek direction to the police or investigating agency to collect and rely upon the evidence in support of its defence. It is well established principle of law that once a document is filed by the prosecution along-with the charge-sheet, then it becomes the document of the prosecution and the accused can rely on the said document even if the said document remains unexhibited or proved in the Trial. Thus, even otherwise, the prosecution cannot be directed to file those documents, on which it does not want to place reliance. Thus, in the considered opinion of this Court, the Magistrate as well as the Revisional Court did not commit any illegality in rejecting the prayer made by the accused for further investigation. Accordingly, the orders dated 9-12-2015 passed by the J.M.F.C.,Mehgaon, Distt. Bhind in Criminal Case nd No.331/2015 as well as the order dated 28-1-2016 passed by 2 A.S.J., Bhind in Criminal Revision No.14/2016 are hereby affirmed. This application fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE MKB