Delhi High Court
Bikash Ranjan Rout vs State on 20 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 01st August, 2014
% Date of Decision: 20th August, 2014
+ CRL. M.C. No.3386/2013
BIKASH RANJAN ROUT ........Petitioner
Through: Mr. Gautam Kumar & Mr. Niranjan Behera,
Advocates.
Versus
STATE .......Respondent
Through: Mr. Praveen Bhati, APP for the State
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
JUDGMENT
1. By way of present petition under Section 482 of Code of Criminal
Procedure, 1973 (hereinafter referred to as ‗Cr.P.C.'), the petitioner has
assailed the order dated 05.02.2013 passed by learned Additional Chief
Metropolitan Magistrate (West), Delhi and letter dated 22.04.2013 under
Section 160 Cr.P.C sent by District Investigation Unit, West District, Police
Post MIG Flats, J-Block, Rajouri Garden, New Delhi.
2. Shorn off unnecessary details the facts of the case are that the
complainant, Akshay Jain lodged a complaint dated 28.09.2007 on the basis
of which FIR No.426/2007 under Sections 420/468/471 IPC was registered
at P.S. Janakpuri, Delhi. On completion of investigation, charge-sheet for
the offence under Sections 420/468/471 IPC was filed.
3. After hearing arguments on charge and considering the charge sheet,
the petitioner was discharged by learned Additional Chief Metropolitan
Magistrate (West) Delhi vide impugned order dated 05.02.2013 and
Additional Commissioner of Police (West) Delhi was directed to make
appreciation of quality of investigation done in this case and to analyze the
process of efficacy of sending any charge-sheet before the prosecution
branch for the purpose of scrutiny as in fact, nothing is done by the
investigating officer to comply with the objections raised so as to present a
viable case of any offence against any accused and even higher officers
approve the filing of charge-sheet without sufficient materials. It was also
observed that the case required further investigation to reach a logical
conclusion. Thereafter, notice under Section 160 of Cr.P.C. dated 22.4.2013
was issued by District Investigation Unit, West District, New Delhi.
4. Vide impugned order dated 05.02.2013 and notice under Section 160
Cr.P.C., the petitioner has preferred the present petition.
5. Learned counsel for the petitioner contended that the Trial Court was
not empowered to order for further investigation in terms of Section 173 of
Cr.P.C. In support of his submission, he has relied upon judgment in ‗Reeta
Nag vs. State of West Bengal and Ors.', (2009) 9 SCC 129.
6. Per contra, learned APP for the State argued that sub-section (8) of
Section 173 of Cr.P.C. permits the investigating agency to further
investigate the matter and file the supplementary charge-sheet.
7. I have bestowed my thoughtful consideration to the submissions
made by learned counsel for the petitioner as well as learned APP for the
State and perused the material placed on record.
8. The short question which comes up for consideration is whether the
Magistrate has jurisdiction under Section 173(8) Cr.P.C. to direct further
investigation.
9. Chapter XII of Cr.P.C. deals with the information to the police and
their powers to investigate. Section 173 of Cr.P.C. envisages the report of
police officer on completion of police investigation, which reads as under: -
―173. Report of police officer on completion of
investigation-
(1) Every investigation under this Chapter shall be
completed without unnecessary delay.
[(1A) The investigation in relation to rape of a child may be
completed within three months from the date on which the
information was recorded by the officer in charge of the
police station.]
(2) (i) As soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the
form prescribed by the State Government, stating--
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be
acquainted with the circumstances of the case;
(d) whether any offence appears to have been
committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if
so, whether with or without sureties;
(g) whether he has been forwarded in custody under
section 170;
[(h) whether the report of medical examination of the
woman has been attached where investigation relates
to an offence under section 376, 376A, 376B, 376C
[section 376D or section 376E of the Indian Penal
Code (45 of 1860)].]
(ii) The officer shall also communicate, in such manner as
may be prescribed by the State Government, the action taken
by him, to the person, if any, by whom the information
relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed
under section 158, the report, shall, in any case in which the
State Government by general or special order so directs, be
submitted through that officer, and he may, pending the orders
of the Magistrate, direct the officer in charge of the police
station to make further investigation.
(4) Whenever it appears from a report forwarded under this
section that the accused has been released on his bond, the
Magistrate shall make such order for the discharge of such
bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which
section 170 applies, the police officer shall forward to the
Magistrate along with the report--
(a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to
the Magistrate during investigation;
(b) the statements recorded under section 161 of all the
persons whom the prosecution proposes to examine as its
witnesses.
(6) If the police officer is of opinion that any part of any such
statement is not relevant to the subject-matter of the
proceeding or that its disclosure to the accused is not essential
in the interests of justice and is inexpedient in the public
interest, he shall indicate that part of the statement and append
a note requesting the Magistrate to exclude that part from the
copies to be granted to the accused and stating his reasons for
making such request.
(7) Where the police officer investigating the case finds it
convenient so to do, he may furnish to the accused copies of
all or any of the documents referred to in sub-section (5).
(8) 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)‖.
10. On a bare perusal of sub-section (2) and (8) of Section 173 Cr.P.C., it
is evident that even after submission of police report under sub-section (2)
on completion of the investigation, the investigating agency has a right to
‗further investigation' under sub-section (8) of Section 173 Cr.P.C. but not
‗fresh investigation' or ‗re-investigation'. The meaning of ‗further' is
additional, more or supplemental. ‗Further' investigation, therefore, is the
continuation of the earlier investigation and not a fresh investigation or re-
investigation to be started ab initio wiping out the earlier investigation
altogether.
11. Sub-section (8) of Section 173 Cr.P.C. clearly provides that a
completion of further investigation, the investigating agency has to forward
a ‗further' report to the Magistrate and not a fresh report regarding ‗further'
evidence obtained during such investigation.
12. It is beyond any cavil that ‗further investigation' and ‗re-
investigation' stand on different footing. The direction of a ‗re-
investigation' is prohibited, however, ‗further investigation' is permissible.
The law does not mandate taking of prior permission from the Magistrate
for further ‗further investigation'. Carrying out a further investigation even
after filing of the charge-sheet is a statutory right of the police.
13. In ‗Minu Kumari vs. State of Bihar', (2006) 4 SCC 359, it was
observed that the powers are vested in a Magistrate upon filing of a report in
terms of Section 173(2)(i) of Cr.P.C. and the kind of order that the Court
can pass. It was further held that when a report is filed before a Magistrate,
he may either (i) accept the report and take cognizance of the offences and
issue process; or (ii) may disagree with the report and drop the proceedings;
or (iii) may direct further investigation under Section 156(3) Cr.P.C. and
require the police to make a further report.
14. In view of the dictum of the Apex Court in Minu Kumari's case
(supra), it is clear that the Court of Magistrate has a power to direct further
investigation when a report is filed under Section 173(2) of Cr.P.C. and may
also exercise such powers with the aid of Section 156(3) of Cr.P.C.
15. In ‗Hemant Dhasmana vs. CBI', (2001) 7 SCC 536, it was held that
although Section 173(8) of Cr.P.C. does not, in specific terms, mention
about the power of the Court to order further investigation, the power of the
police to conduct further investigation envisaged therein can be triggered
into motion at the instance of the Court. When any such order is passed by
the Court, which has the jurisdiction to do so, then such order should not be
interfered with in exercise of a higher Court's revisional jurisdiction. Such
orders would normally be an advantage to achieve the ends of justice. It
was clarified that the Magistrate, in exercise of powers under Section 173(8)
of Cr.P.C. can direct CBI to further investigate the case and collect further
evidence keeping in view the objections raised by the appellant to the
investigation and the new report to be submitted by the investigating officer,
would be governed by sub-section (2) to (6) of Section 173 of Cr.P.C.
There is no occasion for the Court to interpret Section 173(8) of Cr.P.C.
restrictively. After filing of the final report, the learned Magistrate can also
take cognizance on the basis of material placed on record by the
investigating agency and it is impermissible for him to direct further
investigation. The conduct of proper and fair investigation is the hallmark
of any criminal investigation. Reference with advantage may be made to
judgments in ‗UPSC vs. S Papaiah', (1997) 7 SCC 614; ‗State of Orissa
vs. Mahima', (2007) 15 SCC 580; ‗Kishan Lal vs. Dharminder Bafna &
Ors.', 2009 (3) JCC 2273; ‗State of Maharashtra vs. Sharatchandra
Vinayak Dongre', (1995) 1 SCC 42.
16. A similar question cropped up before the Apex Court in ‗Bhagwant
Singh vs. Commissioner of Police', (1985) 2 SCC 537. The three Judge
Bench of Hon'ble Supreme Court of India observed as under: -
―4. Now, when the report forwarded by the officer-in-charge
of a police station to the Magistrate under sub-section (2)(i) of
Section 173 comes up for consideration by the Magistrate, one
of two different situations may 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 do one of three things: (1) he may accept the report and
take cognizance of the offence and issue process or (2) he
may disagree with the report and drop the proceeding or (3)
he may direct further investigation under sub-section (3) of
Section 156 and require the police to make a further report.
The report may on the other hand state that, in the opinion of
the police, no offence appears to have been committed and
where such a report has been made, the Magistrate again has
an option to adopt one of three courses: (1) he may accept the
report and drop the proceeding or (2) he may disagree with
the report and taking the view that there is sufficient ground
for proceeding further, take cognizance of the offence and
issue process or (3) he may direct further investigation to be
made by the police under sub-section (3) of Section 156.
Where, in either of these two situations, the Magistrate
decides to take cognizance of the offence and to issue process,
the informant is not prejudicially affected nor is the injured or
in case of death, any relative of the deceased aggrieved,
because cognizance of the offence is taken by the Magistrate
and it is decided by the Magistrate that the case shall proceed.
But if the Magistrate decides that there is no sufficient ground
for proceeding further and drops the proceeding or takes the
view that though there is sufficient ground for proceeding
against some, there is no sufficient ground for proceeding
against others mentioned in the first information report, the
informant would certainly be prejudiced because the first
information report lodged by him would have failed of its
purpose, wholly or in part. Moreover, when the interest of the
informant in prompt and effective action being taken on the
first information report lodged by him is clearly recognised by
the provisions contained in sub-section (2) of Section 154,
sub-section (2) of Section 157 and sub-section (2)(ii) of
Section 173, it must be presumed that the informant would
equally be interested in seeing that the Magistrate takes
cognizance of the offence and issues process, because that
would be culmination of the first information report lodged by
him. There can. therefore, be no doubt that when, on a
consideration of the report made by the officer-in-charge of a
police station under sub-section (2)(i) of Section 173, the
Magistrate is not inclined to take cognizance of the offence
and issue process, the informant must be given an opportunity
of being heard so that he can make his submissions to
persuade the Magistrate to take cognizance of the offence and
issue process. We are accordingly of the view that in a case
where the Magistrate to whom a report is forwarded under
sub-section (2)(i) of Section 173 decides not to take
cognizance of the offence and to drop the proceeding or takes
the view that there is no sufficient ground for proceeding
against some of the persons mentioned in the first information
report, the Magistrate must give notice to the informant and
provide him an opportunity to be heard at the time of
consideration of the report. It was urged before us on behalf of
the respondents that if in such a case notice is required to be
given to the informant, it might result in unnecessary delay on
account of the difficulty of effecting service of the notice on
the informant. But we do not think this can be regarded as a
valid objection against the view we are taking, because in any
case the action taken by the police on the first information
report has to be communicated to the informant and a copy of
the report has to be supplied to him under sub-section (2)(i) of
Section 173 and if that be so, we do not see any reason why it
should be difficult to serve notice of the consideration of the
report on the informant. Moreover, in any event, the difficulty
of service of notice on the informant cannot possibly provide
any justification for depriving the informant of the
opportunity of being heard at the time when the report is
considered by the Magistrate.‖
17. In Reeta Nag's case (supra) relied upon by learned counsel for
petitioner, it was held that a Magistrate cannot suo motto direct further
investigation under Section 173(8) Cr.P.C. or direct re-investigation into
case on account of the bar contained in Section 167(2) of Cr.P.C. and that a
Magistrate can direct filing of charge-sheet where the police submits a
report that no case had been made out for sending an accused for trial.
18. In another case ‗Vinay Tyagi vs. Irshad Ali @ Deepak and Ors.',
(2013) 5 SCC 762, Hon'ble Supreme Court of India after considering the
judgment in Reeta Nag's case (supra) and ‗Randhir Singh Rana vs. State
(Delhi Admn.)', (1997) 1 SCC 361, observed that the ambit and scope of
the power of a Magistrate in terms of Section 173 of Cr.P.C. was squarely
debated before the Supreme Court in Bhagwant Singh's case (supra). The
Hon'ble Supreme Court after analyzing the provisions of the Cr.P.C. and the
aforesaid judgments observed as under: -
―40. Having analysed the provisions of the Code and the
various judgments as aforeindicated, we would state the
following conclusions in regard to the powers of a Magistrate
in terms of Section 173(2) read with Section 173(8) and
Section 156(3) of the Code:
40.1. The Magistrate has no power to direct ―reinvestigation‖
or ―fresh investigation‖ (de novo) in the case initiated on the
basis of a police report.
40.2. A Magistrate has the power to direct ―further
investigation‖ after filing of a police report in terms of Section
173(6) of the Code.
40.3. The view expressed in Sub-para 40.2 above is in
conformity with the principle of law stated in Bhagwant Singh
case by a three-Judge Bench and thus in conformity with the
doctrine of precedent.
40.4. Neither the scheme of the Code nor any specific
provision therein bars exercise of such jurisdiction by the
Magistrate. The language of Section 173(2) cannot be
construed so restrictively as to deprive the Magistrate of such
powers particularly in face of the provisions of Section 156(3)
and the language of Section 173(8) itself. In fact, such power
would have to be read into the language of Section 173(8).
40.5. The Code is a procedural document, thus, it must receive
a construction which would advance the cause of justice and
legislative object sought to be achieved. It does not stand to
reason that the legislature provided power of further
investigation to the police even after filing a report, but
intended to curtail the power of the court to the extent that
even where the facts of the case and the ends of justice
demand, the court can still not direct the investigating agency
to conduct further investigation which it could do on its own.
40.6. It has been a procedure of propriety that the police has to
seek permission of the court to continue ―further
investigation‖ and file supplementary charge-sheet. This
approach has been approved by this Court in a number of
judgments. This as such would support the view that we are
taking in the present case.‖
19. What emerges from the aforesaid decisions of the Hon'ble Supreme
Court of India is that the Magistrate can direct for further investigation in
the interest of justice. The provisions of Section 173 Cr.P.C. makes it clear
that re-investigation is prohibited, however, further investigation is
permissible.
20. In the instant case, the complainant lodged a complaint that two
cheques bearing Nos.006775 and 002022 pertaining to his account
Nos.008701508622 and 008701509672 respectively maintained at ICICI
Bank, Janak Puri Branch, New Delhi, bear the forged signatures. The Trial
Court observed that the signatures were not made on the cheques in the
name of the accused and false signatures in the name of the complainant
were put on the aforesaid two cheques. The specimen handwriting/
signature of accused were not obtained for their comparison with signature
on the said two cheques. The Trial Court also observed that during scrutiny,
the question was raised by the prosecution department that why specimen
signatures of accused were not taken after obtaining permission of the
Court. The objection was also raised to say that the charge-sheet does not
explain that how the cheques were obtained by the accused. Even the initial
complaint made by the complainant has not been placed on record despite
such objections. The initial Investigating Officer of this case did not take
any step to connect the accused with alleged offence of forgery. In these
circumstances, the Trial Court directed that the case requires further
investigation to reach at a logical conclusion.
21. For the aforementioned reasons, the impugned order cannot be
faulted. There is no illegality or infirmity in the impugned order dated
05.02.2013 passed by learned Additional Chief Metropolitan Magistrate
(West), Delhi. The petition, being without merit, is dismissed.
Crl.M.A. No. 12462/2013
The application is dismissed as infructuous.
(VED PRAKASH VAISH)
JUDGE
AUGUST 20th , 2014
hs
