Patna High Court
Nagendra Singh vs State Of Bihar And Ors. on 21 November, 1990
Equivalent citations: 1991(1)BLJR419
JUDGMENT S.H.S. Abidi, J.
1. Petitioner has filed this application under Section 482 of the Code of Criminal Procedure (for short Cr.P.C.) for quashing the order dated 13.12.1988 passed by the learned Special Judge, Chhapra in Chhapra Town P.S. case No. 142/88 whereby he has summoned the petitioner-accused in P.S. Case No. 142 and allowed the petitioner for reinvestigation of the said case under Section 173 (8), Cr.P.C.
2. On 8.4.1988 at about 7 P.M. a written report had been given by Shri Anand Bihari Prasad, Anchal Adhikari, Sadar Chhapra, to the officer-in-charge, Chhapra Town to the effect that on 8.4.1988 under the order of the Collector, Saran, the informant i.e. the Anchal Adhikari alongwith the Deputy Collector Land Reforms, Chhapra supply Inspector Brahmdeo Shah had raided the Coal Dump of Nagendra Singh (Petitioner) at about 12.30 noon. During the raid neither the licensee nor his representatives were found in the business premises with the result that no papers for inspection were available. But on the information given by the Supply Department from "January, 1987 to March, 1988 coal had been continuously allotted to the licensee but the petitioner has not furnished the monthly reports to the Supply Office regarding the lifting and distribution of the allotted coal and so non-submission of the monthly report from September, 1987 to March, 1988 is sufficient to establish that the coal has been sold in black-market. A copy of the first information report has been annexed as Annexure-1 to this petitioner.
3. The police investigated the case and submitted a final form on 1.5.1988 in favour of the accused. The learned Special Judge by order dated 19.8.1988 after considering the case diary accepted the final form and the supervision note and discharged the petitioner. Against this order dated 19.8.1988 no appeal or revision appears to have been filed.
4. On 7.10.1988 petition was filed by the State to the effect that the investigating officer submitted the final form and the court has accepted the same, but investigation done by the local police was not proper and the Inspector, Food Department, has been entrusted to investigate the case afresh under the orders of the Deputy Inspector General of Police (E.W.W.) C.I.D. Bihar, Patna, and the Superintendent of Police (Food) C.I.D. Bihar, Patna to supervise the case and they have started their work and so it was necessary that the accused be summoned. There is also another petition annexed as Annexure-B in Hindi to the effect that the investigation had been done and final report had been submitted on 1.5.1988. But it has been found that the investigation had not been properly done and that the Deputy Inspector General of Police (for short D.I.G.) has entrusted the investigation to the Food Inspector. In the end it was prayed in the application that the acceptance of final form should be stayed till final report is submitted.
5. On these two applications, the court passed order dated 7.10.1988 directing the accused to be informed and the matter be put up on 21.11.1988 for hearing. A petition appears to have been filed on behalf of the accused-petitioner for recalling of the order for further investigation on which the court passed order dated 18.11.1988, to place the said petition with record on 30.11.1988. On 21.11.1988 there is order-sheet to the effect that no pairing had been done on behalf of any party. The case diary has been received by the learned P.P. and the case was ordered to be put up on 30.11.1988 and the learned Counsel for the petitioner was asked to be informed for hearing accordingly. On 30.11.1988 learned Counsel of the petitioner and the learned Special P.P. were heard and it was ordered to be put up on 9.12.1988. On 9.12.1988 the court was on leave and so the case was taken up on 13.12.1988 and the learned Special Judge passed the order to the effect that the petition for recall of the order was put up. He had already heard the learned counsel for the parties and the order dated 7.10.1988 was to the effect that the defence counsel may be heard on the petition on behalf of the prosecution by which investigation under Section 173 (8), Cr.P.C is to be permitted. The Food Inspector has been directed to investigate the case afresh as directed by the D.I.G. and the Superintendent of Police concerned. The final form has been accepted on 18.8.1988 and accused had been discharged. Learned Counsel for the petitioner had submitted that no further investigation under Section 173 (8) could be done and this further investigation was possible after charge-sheet had been submitted under Section 173 (2), Cr.P.C. After considering this contention the learned Special Judge held that Sub-section (8) of Section 173 does not limit the scope for reopening of the further investigation after final form has been accepted and that the discharge due to acceptance of final form does not preclude a criminal case against on fresh fact. There is difference between discharge of the accused and acquittal of the accused after charge and so the objection of the defence counsel is not tenable and, therefore, the petition for prosecution should be allowed and the accused be summoned again fixing 5.1.1989. Against this order dated 13.12.1989 this application has been filed whereby further proceeding the court below stayed.
6. Learned Counsel for the petitioner has urged that after discharge the petitioner cannot be harassed again on fresh investigation, specially, when the final form has been accepted. Further it was contended that the power under Section 173 (8), Cr.P.C. has been given to the officer-in-charge of the police Station, if he obtains further evidence in the case. But in the instant case Food Inspector has been asked to investigate who has no jurisdiction under Cr.P.C. without disclosing any evidence. Learned Counsel for the State has contended that any police officer superior in rank can make further investigation and reopen the investigation as provided under Section 173 (8) and apparently the D.I.G. C.I.D. and the Superintendent of Police are empowered under Section 36, Cr.P.C.
7. As to the first contention that after the discharge the petitioner cannot be asked again to appear, it is settled that the discharge of the accused on the basis of the final form under Section 173, Cr.P.C. does not amount to acquittal and so there is no bar to summon him again even if the final form has been accepted. Once a final form has been accepted and if there is protest petition which is no bar to taking cognizance. In the case of Gopal Vijoy Verma v. Bhuneshwar Pd. Sinha , the Supreme Court has observed:
The High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on police report. The order the High Court is set aside and the matter is remitted to the Chief Judicial Magistrate, Patna for disposal according to law. If the accused has any further objection to raise, they may do so before the Chief Judicial Magistrate.
A Division Bench of this Court in Chandra Shekhar Choudhary v. State 1982 BLJR 627 has said that the complaint filed by the complainant had been sent by the Magistrate for investigation by police under Section 156(3), Cr.P.C. Thereafter protest petition was filed by the informant. During the pendency of the investigation the police filed final report after a few days which was accepted by the Magistrate. Thereafter the Magistrate considered the protest petition. This procedure was not illegal and the Magistrate took cognizance of the offence. Another Division Bench of this Court in Atiqu Ahmad and 13 Ors. v. Muneshwar Ram 1985 BLJR 913 has held that a Magistrate even after accepting the final form can still take cognizance of the offence upon a complaint or protest petition on same or similar allegation of fact. Similarly was the view by the two other Division Benches of this Court in the case of Munilal Thakur v. Nawal Kishore Thakur 1985 Cr. LJ 437 and Lalu Mahto v. State 1988 PLJR 922 in which it has been held that the Magistrate even after accepting final form can take cognizance on complaint or protest petition on same or similar allegations of fact. In the instant case the protest petition has been filed on 7.10.1988 in which the allegations had been made against the police. The court, therefore, could treat the same as a protest petition and it has rightly been treated and that is why it had ordered for information to the counsel of the accused and for appearance.
8. As regards the power to investigate again under Section 173(8), Cr.P.C. in the case of Rang Lal Narang v. Delhi Administration 1979 Cr. LJ 1346, the Supreme Court after referring to the observations made in the case of H.N. Rish Bud v. State of Delhi observed in paragraph 18 at page 1355:
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 the light during the course of a trial may be cured by a further investigation, if circumstances permit it.
Their Lordships farther observed in paragraphs 20 and 22 as follows:
20. "Some High Courts took the view that with the submission of a charge-sheet under Section 173 the power of the police to investigate came to an end the Magistrat's cognizance of the offence started. It was said that any further investigation by the police would trench upon the magisterial cognizance. Vide Ram Gopal v. State of West Bengal . In Hanuman v. Raj , it was held that when a case was pending before a Magistrate, the action of the police in resuming investigation and putting up a new challan against a person not originally an accused as a result of the further investigation was unauthorized and unlawful. In State v. Mehar Singh ILR. (1973) 2 Punj and Har 551 : 1974 Cr. LJ 970, a Full Bench of the High Court of Punjab and Harayana held that the police became functus officio once the Court took cognizance of an offence on the filing of a charge-sheet by the police and thereafter further investigation by the police was not permissible. The police, it was said, could not 'thinker' with the proceedings pending in the Court. It was, however, observed that it would be open to the Magistrate to 'suspend' cognizance' and direct the police to make further investigation into the case and submit a report. The High Court of Punjab and Haryana acknowleded the existence of the practice of submitting supplemental charage-sheets but was of the view that such practice was not sanctioned by the Code. Faced with the impracticality of banning all further investigation once cognizance of an offence was taken by the Court, the High Court tried to find a solution to the problem by suggesting the procedure of the Magistrate suspending cognizance and ordering further investigation. The procedure of 'suspending cognizance' suggested by the High Court of Punjab and Haryana does not appear to us to be warranted by the provisions of the Criminal Procedure Code.
'22'. ...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 not 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.
9. A Full Bench of this Court in the case of Shankar Ram v. State 1986 PLJR 287 has held that there was no legal bar to afresh investigation and filing charge-sheet upon such investigation even after the first charge-sheet has been submitted and there was no restriction with the reopening on fresh materials or on the same material. The Full Bench has overruled the three decisions of this Court in the case of Suresh Singh v. State 1977 PLJR 523 : Phulena Rai v. State of Bihar and Ors. 1979 BCJ 219 and Resham Lal Yadav and 13 Ors. v. State of Bihar 1981 Cr. LJ 976, Their Lordships have followed the decision of the Supreme Court in the case of Ram Lal Narang v. State and have also approved the decision in the case of P.G. Periasamy v. Inspector of Police 1984 Cr. LJ 239.
10. Thus under Section 173(8) the police has got power to investigate afresh and submit report after the final form may be submitted on the material available to it and is not necessary that there should be fresh investigation. This provision has definitely to prevant the misuse of the power by the investigating agency at the initial stage and if it is found that the very material has been misused by the police and later on further light and direction has been received by the superior officers under Section 36, Cr.P.C. then to serve the interest of justice fresh charge-sheet may be submitted by the police. Even without fresh investigation and without disclosing fresh material. As a respect and regard to the Court the police must seek permission of the court for making further investigation, if and when circumstances warrant for the same.
11. In the instant case even after acceptance of the final form the petition dated 7.10.1988 against the irregularities committed by the investigating agency is a protest petition and it could be treated as a protest petition and the court was not barred from proceeding against the accused on the same material and same allegations on which final form has been accepted. Further in the application in Hindi seek permission to investigate afresh as the D.I.G. C.I.D. has directed the Food Inspector to investigate the case. The investigation could have been done by the police under supervision of the D.I.G. and that fresh charge, if at all, filed after this investigation, could be under the supervision of the D.I.G. This application for permission was only a respect and regard to the court for permission to do the same.
12. As regards the contention that the Inspector of Food could not investigate the case, it is apparent that the direction was from the D.I.G. for fresh investigation as the material given in the final form earlier by the police has been misunderstood and misquoted. Under the Essential Commodities Act Section 11 provides that no court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offences made by a person who is a public servant as defined in Section 21 of the Indian Penal Code. The Food Inspector is definitely a public servant. The D.I.G. himself becomes an inspecting officer under Section 36, Cr.P.C. and after collecting the material and getting the same himself or through his agency he should submit fresh report to the court by way of a charge-sheet or final form. So there is no bar for the Food Inspector to investigate and report and it will be for the D.I.G. on the basis of that report or on his own investigation to submit the charge-sheet. Hence the court was right in summoning the accused on the dates. Even au investigation could be reopened and if it is found that on the basis of investigation case ought to have been proceeded then even after discharge the court could take cognizance if the case was made out. Similarly on the application, that is the protest petition, the court could proceed on the basis of the said petition treating it to be a complaint and could have asked the complainant to proceed in accordance with the provisions contained under Sections 201 to 204, Cr.P.C.
13. In the result, this application has got no force and is dismissed in view of the observations made above. The interim order granted on 27.2.1989 is vacated and the L.C. record is directed to be sent back to the court below to proceed in accordance with law.