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Babeeta & Others v/s State of U.P. & Another

    Criminal Misc. Application No. 4450 of 2014

    Decided On, 25 February 2014

    At, High Court of Judicature at Allahabad


    For the Appellants: Anil Kumar Shukla, Advocate. For the Respondents: --------------.

Judgment Text

Karuna Nand Bajpayee, J.

1. This application u/s 482 Cr.P.C. has been filed on behalf of the applicants for quashing the entire Criminal proceeding of Crime No. 48 of 2012 Sunita v. Babeeta and others, in Case No. 199 of 2012 under Sections 420, 467, 468, 471, 506 and 120B IPC P.S. Kotwali Nagar District Saharanpur. Heard learned counsel for the applicants and learned A.G.A. Record including the impugned order has also been perused.

Shorn of unnecessary details the relevant facts relating to the controversy in question are like this. A case u/s 420, 467, 468, 471, 506 and 120B IPC appears to have been registered on the application of first informant Sunita on which the investigation was taken up. Result of the investigation was the submission of final report. Aggrieved by the submission of the final report, a protest petition was filed on behalf of the first informant alleging that certain papers submitted on her behalf to the investigating officer have not been included as part of the record and certain witnesses of fact have not been examined. The validity of the investigation was challenged on certain other grounds also. After hearing the first informant the Magistrate concerned substantially agreed with the submission made on behalf of the first informant and disagreeing with the inference drawn by the I.O. decided not to accept the final report and thought it fit to order reinvestigation (PUNAH VIVECHANA) in the case.

2. The contention of the counsel is that the learned Magistrate has committed a fatal error of law while ordering reinvestigation into the case as he had no such power to adopt such a course. Submission is that the Magistrate was empowered only to order further investigation and not reinvestigation into the case. It has been prayed that reinvestigation into the matter shall adversely effect the rights of the applicant and therefore, must be stopped.

3. Learned A.G.A. Sri Vimlendu Tripathi has been heard on behalf of the State who stated fairly that the contentions raised by the applicant are substantially correct as it has also been held in Catena of decisions given by the Apex Court that Magistrate at the time of adjudicating upon the fate of the final report may choose a number of courses and one of the courses open to him is to direct further investigation. According to learned A.G.A. the use of the term "further investigation" in Apex Court's decision should be taken as the final word on the point of law and if the Magistrate concerned has instead of directing further investigation, ordered reinvestigation, the order shall be bad in law.

4. I have considered the submissions made by learned counsel for the applicant and have also gone through relevant facts on record and also the cases cited on the point of law involved in the matter.

After submission of the Final report in any case there are several options open before the Magistrate which he may choose to adopt. It is possible that he may accept the final report as such in agreement with the inference drawn by the Investigating Officer. It is equally possible that he may entirely differ and disagree with the inference drawn by the Investigating Officer and may find that the case diary contains enough material on the basis of which cognizance may be taken by him. Such a cognizance shall be deemed to be a cognizance u/s 190(b) of Cr.P.C. and the case shall proceed as a State case and everything shall be just the same as if the Magistrate has taken cognizance on the charge-sheet or police report. A third option is still open for him and the same is in the form of his decision to treat the protest petition filed by the complainant of the case as a complaint and take cognizance on the same. In such a situation the Magistrate shall proceed by adopting the procedure of a complaint case provided under law. Such type of cognizance shall be the cognizance u/s 190(a) of Code of Criminal Procedure. There is yet another option open for the Magistrate to adopt. There may be a case in which the case diary may reflect that the state of investigation is such which requires further probe in the crime. In fact the aforesaid option is the hub of the controversy involved in the matter. The reason is that the power to order investigation at the time of not accepting it as such may be traced either to the exist-enc e of the provisions u/s 156(3) Cr.P.C. or at the most to 173(8) Cr.P.C. There is no other provision to which such a power may be traceable. In fact so far as Section 173(8) Cr.P.C. is concerned it deals with the power of the police to do further investigation even after the submission of the charge-sheet in the case. It is a kind of saving clause or enabling clause which even after the submission of the charge-sheet does not denude the police from its power to enter into further investigation into the crime. It has been taken care of by the legislature that there may be circumstances in which even after submission of the charge-sheet it may be found expedient or justly needed that the matter should be further probed into. In such a situation the police should not find itself divested of the power to further investigate into the offence simply because it has already submitted the charge-sheet. But this power is the power of the police and not of judiciary. It may be observed at this stage that as the law of the land has evolved itself it has become an accepted norm and the call of propriety requires that before entering into further investigation the police ought to inform the Magistrate in whose Court the charge-sheet has already been submitted. It has also been found to be in keeping with the decorum of the Court and in the best interest of upholding the majesty of the judicial institution if the police seeks permission from the Court to enter into further investigation of the case. But inspite of the observance of these norms of deference by the police towards judiciary, if a Magistrate in some case at the time of not accepting the final report directs the police to investigate again, it is doubtful to describe such an order to have been done in exercise of powers provided u/s 173(8) Cr.P.C. The police may have the power to further investigate into the offence under the aforesaid section. But there must be a distinct specific provision in the exercise of which the Magistrate may direct or ask the police to do such an investigation. The Magistrate has no such inherent power as is vested in the High Court u/s 482 Cr.P.C. in the exercise of which it may issue such a direction in order to meet the ends of justice. Now even if for the sake of argument it is presumed that the Magistrate at the time of rejecting the final report may invoke the aforesaid provision and order investigation into the case u/s 173(8) Cr.P.C. then too it has to be only " further investigation" and not reinvestigation or an investigation of any other description. If the Court subscribes to such a view then in that situation also the impugned order whereby the police has been directed to Ye investigate' the case would be palpably wrong in law.

5. In this regard it may be necessary to refer the Apex Court decision given in case of Ramachandran Vs. R. Udhayakumar and Others, and the case of K. Chandrasekhar Vs. The State of Kerala and Others, . It has been observed by the Apex Court in the later case as follows:

24. The dictionary meaning of "further" (when used as an adjective) is "additional; more; supplemental"; "Further" investigation therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports-and not fresh report or reports-regarding the "further" evidence obtained during such investigation.

The only other section left out to which the power of the Magistrate to direct investigation may be traceable is 156(3) of the Criminal Procedure Code.

6. At this stage the Court may also usefully refer to the case of Gangadhar Janardan Mhatre Vs. State of Maharashtra and Others, After referring to the case of Abhinandan Jha and Others Vs. Dinesh Mishra, it was observed by the Apex Court as follows:

9. When a report forwarded by the police to the Magistrate u/s 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation u/s 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open, i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police u/s 156(3).

From the aforesaid observations given by Hon'ble Supreme Court it is clear that the term further investigation has been used by the Apex Court with regard to the investigation which the Magistrate is empowered to direct at the time of rejection of the final report.

7. It may also be apt to refer to the case of Pakhando and others v. State of U.P. and another, 2001 (43) ACC 1096, in which the Division Bench of this Court had the occasion to observe as follows:

15. From the aforesaid decisions, it is thus clear that where the Magistrate receives final report, the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require: (i) he may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (ii) he may take cognizance u/s 190(1)(b) and issue process straightaway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (iii) he may order further investigation, if he satisfied that the investigation was made in a perfunctory manner; or (iv) he may, without issuing process or dropping the proceedings decide to take cognizance u/s 190(1)(a), upon the original complaint or protest petition treating the same as complaint and proceed to act u/s 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

Here too the term "further investigation" has been used by the Court with regard to the investigation which the Magistrate may feel inclined to order in case he finds the existing investigation, on the basis of which the final report has been submitted, to be perfunctory in nature.

8. In the light of aforesaid discussions this Court is of the view that in the matter at hand it was beyond the power of the Magistrate to order reinvestigation or an investigation afresh even though he felt disinclined to accept the final report as such, and felt inclined that further probe ought to be done in the matter.

Ordinarily this Court ought to have issued notice to the opposite party and without doing so it would not have proceeded to quash the impugned order or to have passed any other adverse order to the prejudice of the opposite party, but in the facts and circumstances of the case where the error is so apparent on the face of record and the illegality so palpable, if this Court adopts such a course it shall have to stay the

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operation of the impugned order and which shall imply the stopping of the investigation of the case. The dockets of the pending cases are already bursting on their seams and if this Court at the time of issuing notice puts the operation of impugned order in abeyance, there is hardly any likelihood for this application to get decided on merit in a measurable distance of time. Such a course shall be more detrimental to the cause of the opposite party and shall have very adversely affected his interest. Therefore, in the interest of justice this Court deems it fit not to adopt such a course and has preferred to straightaway decide the matter on merit after hearing the counsel and learned A.G.A. and also after perusing the record and the entire case law on the point. As has already been discussed in detail hereinabove it is demonstrably clear that the impugned order, inasmuch as it contains the direction to undertake a fresh investigation or a reinvestigation into the case, is patently against the law and the same cannot be sustained. Application is allowed. Impugned order is quashed and the matter is remanded back to the Court concerned so that learned Magistrate may pass correct order in accordance with law and make necessary amendment in the same in the light of the observations made by this Court.