Sindraj Singh And Anr vs State Of U.P. And Anr
2019 Latest Caselaw 160 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 72
 
Case :- APPLICATION U/S 482 No. - 2022 of 2019
 
Applicant :- Sindraj Singh And Anr
 
Opposite Party :- State Of U.P. And Anr
 
Counsel for Applicant :- Bratendra Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ajit Kumar,J.

1. This application under Section 482 of the Cr.P.C. is directed against the chargesheet dated 24.05.2018 submitted by the police and the entire criminal proceedings pending before the Additional Chief Judicial Magistrate, IInd Mainpuri, in pursuance thereof.

2. Briefly stated facts of the case are that the first information report was got lodged on 28.06.2009 reporting the alleged incident dated 30th April, 2009 at around 8:30 am with complaint of serious injuries caused to the informant's side. This first information report was lodged pursuant to the order passed by the Chief Judicial Magistrate, Mainpuri dated 28.06.2009 passed on an application under Section 156(3) of the Cr.P.C. The investigating officer conducted the investigation and after recording statement of the informant and other independent witness submitted report under Section 173(2) Cr.P.C. in the form of final report recommending for closer of the case.

3. Opposite party having come to know about the final report filed a protest petition before the learned Chief Chief Judicial Magistrate, Mainpuri and on the said application vide order dated 11.10.2013, the Magistrate directed for further investigation. It is after this order, the police conducted further investigation and ultimately submitted the chargesheet this time on 24.5.2018, on which learned Chief Judicial Magistrate, Mainpuri took cognizance vide order dated 18.10.2018 and hence the present 482 application.

4. The argument advanced on behalf of the counsel for the applicant is that Magistrate could not have ordered for further investigation after protest petition was filed against the final report. His power to order for investigation is only with reference to Section 156(3) of the Cr.P.C. and that power having been exercised once, the only course upon for the Magistrate was either to accept the report or to treat the protest petition as complaint case or to take cognizance rejecting the final report.

5. The argument, therefore, is that once the Magistrate exceed his authority in issuing direction for further investigation, the very chargesheet stands vitiated in law as no further investigation could have been ordered in the matter. In support of his argument, learned counsel for the applicant has relied upon the judgment of Apex Court in the case of H.S. Bains v. State (Union Territory of Chandigarh), 1981 SCC (Cri) 93, in which he has relied upon paragraph 6 of the judgment, which runs as under:

"It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Sec. 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Sec. 203. If in his opinion there is sufficient ground for proceeding he may issue process under Sec. 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Sec. 156(3). The police will then investigate and submit a report under Sec. 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Sec. 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Sec. 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Sec. 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Sec. 156(3) and received a report under Sec. 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Section 200,203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Sec. 156(3) and receives a police report under Sec. 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Sec. 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report: (3) he may take cognizance of the offence under Sec. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Sec. 200 If he adopts the third alternative, he may hold or direct an inquiry under Sec. 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be. "

6. Learned counsel for the applicant thereafter has relied upon judgment of this Court in case of Pakhandu v. State of U.P., 2002 CrLJ 1210 and has asserted on paragraph 15 of the said judgment, which runs as under:

"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 under Section 190(1) (b) and issue process straightway 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 is 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 under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued."

7. Learned counsel for the applicant has also relied upon another judgment of Apex Court in Tula Ram v. Kishore Singh, 1977 SCC (Cri) 621,1977, in which learned counsel for the applicant has put emphasis on paragraph 10 of the said judgment, which is reproduced hereunder:

"Mr. Mukherjee however submitted that the moment the Magistrate directed investigation he must be deemed to have taken cognizance, :and, therefore, be could not have taken any of the steps excepting summoning the accused straight-away or directing reinvestigation. We have already pointed out that Chapter 12 and Chapter 14 subserve two different purposes : One pre- cognizance action and the other post cognizance action. That fact was recognised by a recent decision of this Court in the case of Devarpalli Lakshminarayana Reddy & Ors. v. V.Narayana Reddy and Ors. 1976 SUPP SCR 524: (AIR 1976 SC 1672) where theCourt observed as follows: (at pp.1677,1678 of AIR):

"The power to order police investigation under section 156(3) is different from the power to direct investigation conferred by section 202(1). The two operates in a distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizance offence, the power under section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under section 190 (1 )(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-

cognizance stage and avail of section 156(3)."

8. Per contra, learned Additional Government has asserted that power of police and the Magistrate have come to be defined in Chapter XII of the Cr.P.C very clearly that neither these powers overlap with each other nor, Magistrate has been in any manner deprived of any supervisory power over the police while directing for any investigation. He has argued that though Magistrate does not have any power to call for chargesheet in a case but at the same time, he is not devoid of sufficient power to order for reinvestigation or further investigation in order to advance the cause of criminal justice if the facts and circumstances of the case so warrant. He has argued that there cannot be any straitjacket formula to define powers of the Magistrate in matters of directions if required for further investigation. It is further urged on behalf of the the State that while police can ask for further investigation, the Magistrate can also exercise such power suo motu on the basis of records available before it.

9. Learned Additional Government Advocate for this purpose has relied upon the judgment of the Supreme Court in case of Abhinandan Jha and Others v. Dinesh Mishra, AIR, 1968 SC 117. The emphasis is being placed on paragraphs 15,16 and 17 of the said judgment which are reproduced hereunder:

15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under section 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case in our opinion the Magistrate will have ample jurisdiction to give directions to the police, under section 156 ( 3 ), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under section 156 ( 3 ). The police, after such further investigation, may submit a charge-sheet, or,, again submit a final report, depending upon the further investigation made by them. If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he, can take cognizance of the offence under section 190(1) (c), notwithstanding the contrary opinion of the police, expressed in the final report.

16. In this connection, the provisions of section 169 of the Code, are relevant. They specifically provide that even though, on investigation, a police officer, or other investigating officer, is of the opinion that there is no case for proceeding against the accused, he is bound, While releasing the accused,, to take a bond from him to appear, 'If and. when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating officer, and judicially takes a view different from the police.

17 We have to approach the, question, arising for consideration in this case, in the light of the circumstances pointed out above. We have, already referred to the scheme of Chapter XXIV, as well as the observations of this Court in Rishbud and Inder Singh's Case(1) that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is 'left to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack; nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of tile police, to take cognizance, under section 190(1)(c) of the Code. That provision, in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be in- voked even where persons individually aggrieved are unwilling or unable to prosecute. or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence. not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under section 190(1) (c), on the ground that, after having due regard to the final report and the police records placed before him, be has reason to suspect that an offence has been committed. Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to, place the accused for trial, is that of the officer in-charge of the police station and that opinion determines whether the report is to be under section 170, being a 'charge- sheet', or under section 169 'a final report'.

doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet, because, the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. Thai will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report, either under section 169, or under section 170, depending upon the nature of the decision. Such a function has been left to the police, under the Code.

It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet, because, the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. Thai will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report, either under section 169 or under section 170, depending upon the nature of the decision. Such a function has been left to the police, under the Code.

10. Learned Additional Government Advocate has also relied upon the judgment in case of Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel and Others (2017) 4 SCC 177 wherein it is asserted that before Magistrate takes cognizance in the matter, the power of the Magistrate are wide enough to order for further investigation and, therefore, it is argued that in the present case neither order earlier issued by the Magistrate directing for further investigation nor, the chargesheet can be called in question. Learned Additional Government Advocate for this purpose has also placed reliance upon the judgment in the case of H.N.Bains (supra) putting emphasis on paragraph 7 of the judgment. Paragraph 7 of the judgment runs as under:

"In Abhinandan Jha & Ors. v. Dinesh Mishra, ((AIR 1968 SC 117)) the question arose whether a Magistrate to whom a report under Sec. 173(1) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the Police. This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet. It was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Sec. 156(3). If ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police the Court observed that the Magistrate could take cognizance under Sec. 190(1)(c)'. We do not have any doubt that the reference to 'Sec. 190(1)(c)' was a mistake for 'Sec. 190(1)(b)'. That appears to be obvious to us. But Shri Kapil Sibal urged that the reference was indeed to Sec. 190(1)(c) since at that time Sec. 190(1)(c) included the words 'or suspicion' and the Court had apparently taken the view that the Magistrate could take cognizance of the offence not under Sec. 190(1) (b) as if on a police report but under Sec. 190(1)(c) as if on suspicion'. We do not agree with this submission. Sec. 190(1)(c) was never intended to apply to cases where there was a police report under Sec. 173(1). We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the Magistrate and the Police arrived at different conclusions from the facts. The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Sec. 307 Indian Peanal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under Sec. 324 Indian Penal Code only and he may take cognizance of an offence under Sec. 324 instead of Sec. 307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. It could not be said in such a case that he was taking cognizance on suspicion. "

11. Having heard learned counsel for the applicant and learned Additional Government Advocate and having perused the records and the pleadings, I find that the basic argument advanced by learned counsel for the applicant is that once the Magistrate ordered for re- investigation exercising power under Section 156(3) of Cr.P.C. and the police thereafter submitted a report closing the case having not been able to collect any credible evidence to submit the charge-sheet, the Magistrate would not for the second time order for reinvesigation /further investigation. Learned counsel for the applicant has tried to distinguish the Supreme Court judgment in the case of Abhinandan Jha (supra) on the ground that there was no such consideration before the Court and the Court in the said case was chiefly dealing with issue whether the Magistrate was justfied in issuing direction to the police to submit the chargesheet or not while exercising power under Section 173(3) of the Cr.P.C. There are no two opinions about exercise of power of the Magistrate which is independent of power of investigating officer. Both Magistrate and Police can exercise power in two different directions. Once on receiving a report or under the directions of the Magistrate under Section 156(3) of the cr.P.C, it comes for the police to investigate,it is the sole domain of the police to conduct investigation and submit report.

11. Looking to the entire scheme of the provisions from Sections 154 to 172 as contained in the Code of Criminal Procedure, the police is not only vested with exclusive power to investigate but police has also been vested with sufficient power to call for witness to examine, and record its statement, of course in the cases of cognizable offences. Section 157 of the Cr.P.C. elaborately provides for the manner in which the police has to conduct investigation. The authority of the Magistrate comes after the police submits its report before the Magistrate under Section 173(2) and the provisions that are contained in various sub-sections of Section 173 provide for sufficient safeguards vesting sufficient power with the Magistrate to exercise in criminal justice system to advance cause of justice and, therefore, the Apex Court has held in the case of Abhinandan Jha (Supra) that the Magistrate would either accept the report or call for further investigation, virtually inviting the fresh report, or can even go ahead taking cognizance of the case even in the event of a closer report but in no case Magistrate is vested with any such power to direct the police to submit the chargesheet.

12. Vide paragraph 15 of the said judgment as quoted hereinabove in the earlier part of this judgment, the Supreme Court in absolutely unequivocal terms, has held that after the police has submitted a report, the Magistrate is fully empowered to call for further investigation as power lies very much with Magistrate vide relevant sections and provisions contained therein in Code of Criminal Procedure.

13. Learned Additional Government Advocate has rightly drawn the attention of the Court to paragraph 17 of the judgment in H.S. Bains case (supra) in which the law laid down in the case of Abhinandan Jha (supra) has virtually come to be reiterated and, therefore, in the case of H.S.Bains, it cannot be said that the judgment in the case of Abhinandan Jha in any manner got diluted or has been watered down.

14. Further in the case of Tula Ram(supra) vide paragraph 14 of the Judgment, the Apex Court has very categorically held that after receiving a report from the police the Magistrate can postpone the due process and direct for enquiry by any other person or an investigation by the police. Paragraph 14 of the judgment is reproduced hereunder:

In these circumstances we are satisfied that the action taken by the Magistrate was fully supportable in law and he did not commit any error in recording the statement of the complainant and the witnesses and thereafter issuing process against the appellants. The High Court has discussed the points involved thread-bare and has also cited number of decisions and we entirely agree with the view taken by the High Court. Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge

1. That a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under section 190,200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under section 156(3) though in cases not falling within the proviso to section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by section 202 of the Code.

2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives :

(a) He can pursue that complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of section 200 and record the evidence of the complainant or his witnesses. The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

3.In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.

4. Where a Magistrate orders investigation by the police, before taking cognizance under section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under section 190 as described above."

15. The argument therefore, of the learned counsel for the applicant that once the power has been exercised initially under Section 156(3), second time any such power cannot be exercised because source of power for ordering investigation is only under Section 156(3) application, in the considered opinion of the Court is misconceived. It must be clear in one's mind that if the Magistrate ordered for investigation disposing of application filed under Section 156(3), that stage is over. Now, it is investigating officer who is ceased with the investigation to conduct by virtue of such an order and there remains nothing pending before the Magistrate at that stage. If investigation is prolonged for any reason, it is sole liability of the police to submit report after due investigation and it is conduct and act of the police that can always be called in question. Now if the report has been submitted under Section 173(2) before the Magistrate, it is a fresh case before the Magistrate in terms of report of police on which he is to take action. Even in the case of Pakhandu v. State of U.P. (supra) vide paragraph 15, the Apex Court had reiterated the stand already taken by it that on receipt of the report of the police the Magistrate may further order for investigation if he is satisfied investigation was made in perfunctory manner. So the issue whether the Magistrate can order for investigation or further re- investigation is no more res integra and argument of learned counsel for the applicant that order for investigation initially issued on closure report was without jurisidction and is wholly misconceived and is hereby rejected.

16. Thus having found no illegality in the order impugned of which fresh investigation was ordered and thereafter the chargesheet was submitted, I do not find any wrongful act in it.. The court below has not taken cognizance over the matter as no process has been issued till date and so the applicant cannot be held aggrieved as well.

17. Writ petition lacks merit and is accordingly dismissed.

Order Date :- 26.2.2019

Sanjeev