Orissa High Court
Smt. Pusparani Samal vs Suretha Kumar Biswal And Ors. on 25 March, 1998
Equivalent citations: 1998(1)ALT(CRI)23, 1998CRILJ3764
ORDER R.K. Dash, J.
1. The petitioner, informant in CR. Case No. 385 of 1994 in the file of the learned S.D.J.M., Bhadrak, has assailed the order dated 7-6-1996 whereby the order taking cognizance of the offences under Sections 458, 323 and 307 read with Section 34 IPC against the opposite parties has been recalled. The grievance of the petitioner is that the Inspector-in-charge of Bhadrak Town Police Station usurped the power of both investigator and the magistrate and determined about culpability of the opposite parties leaving the learned S.D.J.M. to put his seal of approval to the said action which is impermissible in law.
2. In order to appreciate the question involved in the case a few facts need be stated thus :
On 1-4-1994 at about 11.30 a.m. an incident occurred in which it is alleged the opposite parties being variously armed came to the house of the informant, rebuked her and damaged her water pipe line. To their such action when her husband objected, he was severely beaten and thrown to the ground from the terrace of his house. On a written report being lodged, the Officer-in-charge of Bhadrak Town Police Station registered a case and proceeded with investigation and on completion thereof submitted charge-sheet against all the opposite parties under Sections 452, 323 and 307 read with Section 34, IPC. The learned S.D.J.M. on a scrutiny of the materials available in the case diary was satisfied that a prima facie case had been made out against the opposite parties and accordingly took cognizance of the offences as aforesaid. When the matter stood thus, the Investigating Officer approached the S.D.J.M. seeking permission to reopen the investigation. His application was, however, rejected being not pressed. Thereupon on the direction of the Superintendent of Police, Bhadrak, the Investigating Officer reopened the investigation, examined some witnesses and submitted supplementary charge-sheet only against Jitendra Biswal, opposite party No, 3 under Sections 294 and 323, IPC with a prayer to drop the case insofar as opposite parties I and 2 are concerned. As to the power of the police to reopen investigation and to submit a supplementary charge-sheet for minor offences and to delete the names of opposite parties 1 and 2 about whose complicity sufficient materials had been collected during in vestigation, challenge was made both by the State as well as the informant. The learned S.D.J.M. deriving support from Section 173(8), Cr. P.C. and relying upon the decision of the Apex Court reported in AIR 1979 SC 1791 : 1979 Cri LJ 1346, Ram Lal Narang v. State (Delhi Admn.) and two decisions of this Court reported in (1994) 7 OCR. 139. Siirendranath Sahoo v. State; and 1995 (2) C.LR 439, Ram Krus'hna Padhiary v. State of Orissa, held that power of the police to further investigate into the case is not exhausted or comes to an end after submission of the report under Section 173 and in that view of the matter, filing of supplementary charge-sheet by the Inspector In-charge of Bhadrak Town Police Station on the basis of further investigation cannot be faulted with. Resultantly, he ignored the charge-sheet which had been filed earlier, accepted the supplementary charge-sheet dropped the case against opposite parties 1 and 2 and took fresh cognizance of minor offences punishable under Sections 294 and 323, IPC against Jitendra Biswal. opposite party No. 3 alone.
3. Shri Mohapatra, learned Counsel for petitioners, contended that the Inspector In-chargc of Bhadrak Town P.S. exceeded his jurisdiction and without there being any further information necessitating further investigation, reopened the case with the sole intention to create evidence to support opposite parties and this having no sanction under law, the second charge-sheet filed by him in exercise of power conferred by Section 173(8), Cr. P.C, should not have been accepted by the learned Court below. Elaborating his argument, Shri Mohapatra urged that when there were sufficient materials collected during investigation which prima facie show about the complicity of all the opposite parties in the incident, there was no reason or occasion to reopen investigation and record the statements of some got-up witnesses who are henchmen of the opposite parties. His main thrust of submission was that when there are two sets of witnesses-one supporting the case of she prosecution and the second supporting the opposite parties, the learned S.D.J.M. without assigning any reason passed the impugned order which amounts to acquitting the opposite parties of the charge without there being any trial. According to him, the power conferred on the Investigating Officer by Section 173(8), Cr. P.C. has been misused and misapplied in the present case, inasmuch as by resorting to said section he has practically taken up the trial of the cases which is the exclusive function of the Court and recorded a verdict in favour of the opposite parties.
4. Shri Misra, learned Counsel for opposite parties, on the other hand, submitted with vehemence that the Investigating Officer acted within the parameter of law as envisaged in Section 173(8), Cr. P.C. and reopened investigation on being directed by his superior officer. Upon such investigation and on the basis of fresh materials he was of the opinion that only opposite party No. 5 was involved in the incident and committed certain minor offences and consequently submitted fresh charge-sheet against him. On going through the said charge-sheet the learned S.D.J.M. was prima facie satisfied that no offence was made out against opposite parties 1 and 2 and accordingly recalled/reviewed his earlier order whereby he had taken cognizance of the offences under Sections 452, 323 and 307 read with Section 34, IPC and took fresh cognizance of the offences under Sections 323 and 294, IPC against opposite party No. 3 and dropped the proceeding insofar as opposite parties 1 and 2 are concerned. This being in accordance with law, contended Shri Misra, the impugned order does not call for any interference by this Court in exercise of revisional power.
5. The rights and duties of both investigating agency and the Court are well defined and well demarcated in the Criminal Procedure Code. When a report is received relating to the commission of a cognizable offence, the police has a statutory right and duty to investigate the facts of the case and submit a report under Section 173(1), Cr. P.C. to the Magistrate having jurisdiction to take cognizance of the offence on such report. This duty cannot be interfered with or encroached upon by the Court. Upon receipt of such report, the Magistrate may take cognizance of the offence and thereafter if he is of the opinion that there is sufficient ground for proceeding, he may issue process to secure the attendance of the accused. These are in essence the powers and functions of the two machineries, namely, the investigating agency and the Court. In the Criminal Procedure Code of 1898 there was no provision empowering the police to further investigate into the case after submission of the report under Section 173(1) or after the Magistrate had taken cognizance of the offence. Judicial opinion on this aspect was not unanimous. Some High Courts were of the view that police had such power and others doubted. This Court in the case of Prosecuring Inspector, Keenjhar v. Minaketan Mahato AIR 1952 Ori 350 : 1952 Cri LJ 1635, held that the police have the right to reopen investigation even after submission of charge-sheet under Section 173, if fresh facts came to light. The Law Commission agreeing with the positive view opined that a provision should be made in the statute empowering the police to make further investigation and accordingly recomended in its' list report as under :
14.23. A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency which can be very unfair to the prosecution and for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused.
On the basis of the recommendation, a new provision, Section 173(8) was introduced in the Cr. P.C. which reads as under :
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 view of the aforesaid statutory provision the police have acquired a right to further investigate into the case after submission of report under Sub-section (2) of Section 173 and submit a supplementary report/charge-sheet to the Magistrate. In Ram Lal Narang (supra), their Lordships observed that it is in the interest of both the prosecution and the defence that the police should have the power to make further investigation and submit a report. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? Similarly where involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. A criticism was levelled that a further investigation by the police would trench upon the proceedings before the Court. But their Lordships did not accept the same since according to their Lordships, whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final wording with the Magistrate is sufficient to safeguard against any excessive use or abuse of the power of the police to make further investigation.
7. From the aforesaid authoritative pronouncement of the Apex Court which has been relied upon by this Court in Surendra Baboo (supra) and Ram Krushna Padbiary (supra), it is made clear that in view of the statutory provision contained in Section 173(8), Cr. P.C. the police after submission of the report under Sub-section (2) of the said section have power to further investigate into the case if fresh materials come to light and submit a supplementary report.
8. The above being the settled position of law, the question that arises in the present case is whether reopening of investigation by the Inspector in-charge of Bhadrak Town P.S. at the behest of the Superintendent of Police, Bhadrak was in exercise of power under Section 173(8), Cr. P.C. to collect further materials to ascertain involvement of the opposite parties in the offence or it was with an oblique motive to help the opposite parties to get rid of the case. The facts and circumstances clearly indicate that the Inspector in-charge of Bhadrak Town P.S. acted in a partisan spirit forgetting the duties and responsibilities enjoined upon him by the statute in the matter of investigation into the cognizable offences. Equally the Superintendent of Police, Bhadrak should be blamed for giving a direction to his subordinate officer to reopen investigation without there being any basis or material for doing so. Case diary does not reveal as to what prompted the Superintendent of Police to give such a direction. True it is, power of further investigation is there with the police. But that does not mean that the same can be exercised not for eliciting further materials but for helping either party to the case. It would appear from the record that the then Inspectorin-charge of Bhadrak Town P.S. after registering a case on receipt of F.I.R. proceeded with investigation, examined the eye-witnesses and on obtaining injury report, submitted charge-sheet against all the opposite parties under Sections 452, 323 and 307/34, IPC. The witnesses in their statements clearly implicated all the opposite parties in the incident, inasmuch as they stated that they (opposite parties) had assaulted the injured during the incident. However, in the subsequent investigation which was taken up pursuant to the order of the Superintendent of Police, statements of some other witnesses were got recorded who gave altogether a different story. According to them, opposite party Laxmipriya Biswal though was present at the scene of occurrence but had not taken part in the assault and the opposite party Suratha Kumar.Biswal had not at all come to the scene of occurrence. From the above what appears is that the opposite party Suratha Kumar Biswal took a plea of alibi. It may be noted that at the earliest opportunity when the first Investigating Officer examined him, he had not taken such plea of alibi. When one set of witnesses implicated all the opposite parties in the incident and another set of witnesses who were examined at a belated stage denied the complicity of opposite parties Suratha Kumar Biswal and his wife Laxmipriya Biswal, there was no justifiable reason for the inspector in-charge of Bhadrak Town P.S. who reinvestigated into the case on the orders of the Superintendent of Police, to opine that there being no case against opposite parties Suratha Biswal and Laxmi Priya Biswal, the proceeding against them should be dropped.
9. Coming to the case of opposite party Jitendra Biswal, the Inspector in-charge while submitting supplementary charge-sheet observed that there is a prima facie case against him under Sections 204 and 323, IPC. It may be noted that in the charge-sheet submitted against all the opposite parties one of the offences was under Section 307, IPC. While submitting the supplementary charge-sheet the Investigating Officer altered the said section to one under Section 323, IPC. The reason for doing so was that there was no injury on vital part of the injured. From this can it be said that he was fair to both sides? In my opinion he was not. When the learned S.D.J.M. on perusal of the case diary and the injury report was satisfied that there was a prima facie case under Section 307, IPC and accordingly took cognizance of the said offence it was for the competent Court to give a verdict after end of the trial, whether prosecution has been able to establish the offence under Section 307, IPC. But strangely enough the Inspector in-charge of Bhadrak Town P.S. usurped the power of the Court and practically decided the case holding the offence to be one under Section 323, IPC. This case is a glaring example where the police acted in a partisan spirit to help the opposite parties by taking the aid of Section 173(2), Cr. P.C. The power conferred under the said provision has been misutilised and mis-supplied. The learned S.D.J.M. in such circumstances should have been more vigilant and careful and uninfluenced by the materials collected during reinvestigation should have proceeded with the case in accordance with law against all the opposite parties because of the fact that at the earliest opportunity some eye-witnesses in their statements to the police had implicated all the opposite parties in the incident. Instead, he relied upon the subsequent report and without assigning any reason as to why he completely; ignored the earlier report opined that no offence has been made out against opposite parties Saratha Kumar Biswal and Laxmipriya Biswal. When two stories were before him it would have been legal and proper for him to leave the whole matter to be, considered during the trial. It was only during that stage it could have been considered whetherbelatedpleaof alibi taken by the opposite party Suratha Biswal could be accepted and whether the witnesses whose statements were recorded after long delay during re-investigation had in fact witnessed the incident and the reason for their non-examination at the earliest point of time. But surprisingly without there being a trial he exonerated accused parties Suratha Biswal and Laxmipriya Biswal from the case only basing on the subsequent report and altered the offence of Section 307 to one Section 323, IPC insofar as opposite party Jitendra Bis wal is concerned. This being contrary to law, the impugned order passed by him is unsustainable.
10. In the result, the revision is allowed and the orders of the learned S.D.J.M., Bhadrak, dropping the proceeding against opposite parties Suratha Kumar Biswal and Laxmipriya Biswal and taking cognizance of the offence under Sections 294 and 323, IPC against opposite party Jitendra Kumar Biswal are set aside. Resultantly the earlier order of taking cognizance of the offences against all the opposite parties under Sections 452, 323 and 307 read with Section 34, IPC revives. Before parting with the case, I would like to observe that anything said or any observation made in this order will not influence the mind of the trial Court while hearing the case on merit.