2016 (4) TMI 1464 - HC - Indian Laws

Power under Section 482 of Cr.P.C. - Magisterial Court has taken cognizance against the applicants of the offence under Sections 147, 148, 323, 325, 307 and 302 read with Section 149 of IPC - right of investigating officer to keep the investigation pending - HELD THAT - Investigation would be complete if the investigation officer would be in a position to opine that crime was found committed and hence charge sheet is filed with the final conclusion of the investigation officer. A clear distinction needs to be drawn amongst power under Section 173(8) of Cr.P.C. for further investigation, which would not result in subsequent reinvestigation. An investigation officer cannot be allowed to reinvestigate his own conclusions. As held by the Apex Court in cases of MITHABHAI PASHABHAI PATEL AND ORS. VERSUS STATE OF GUJARAT 2009 (5) TMI 1004 - SUPREME COURT and VINAY TYAGI VERSUS IRSHAD ALI @ DEEPAK AND ORS 2012 (12) TMI 1130 - SUPREME COURT , that under the power of Section 173(8) of Cr.P.C. only further investigation can be done by the investigation officer though the investigation agency is changed, but re-investigation or de novo investigation cannot be done. Hence when chargesheet is filed, the investigation officer has no right to reserve the investigation for few accused under Section 173(8) of Cr.P.C. because he is not permitted under that provision to reopen the case or reinvestigate the matter. The provisions of Section 173(8) of Cr.P.C. does not give any right to the investigating officer to keep the investigation pending against few accused persons. It is for him to complete the investigation of the case within a period prescribed under S. 167 of Cr.P.C. and if he wants to ensure as to whether any offence is made out against any person or not then such conclusion should be obtained prior to filing of charge-sheet against any of the accused persons. After due investigation, it is a right of the police to declare some of the accused persons as absconding or at the time of filing of charge-sheet he may file the report under Section 169 of Cr.P.C. against some of the accused persons with the opinion that no offence is made out against them but the police has no right to reserve the investigation against few accused persons under the residuary provisions of Section 173(8) of Cr.P.C. either to give advantage to a particular accused person or otherwise. If such procedure is not followed then the Magistrate can refuse to take cognizance of the case because the investigation is incomplete and arrested person can be released on bail under Section 167(2) of Cr.P.C. There is no reason to invoke the inherent power of this Court in favour of the applicants. It would be apparent that the applicants have challenged the order dated 01-11-2013 in a revision as well as with the petition before this Court and again started re-agitating that order by filing of application where such procedure could not be adopted. A litigant cannot be permitted to agitate a particular objection again and again. In such circumstances, looking to the conduct of the applicants, present petition is hereby dismissed at motion stage with imposition of costs of Rs. 5,000/- against the applicants. The costs be deposited before the High Court Legal Services Committee within a month from the date of this judgment.

Summary

Issues Involved:
1. Challenge to the order of taking cognizance by the Magistrate.
2. Legality of reserving investigation against certain accused.
3. Applicability of Section 173(8) of Cr.P.C. for further investigation.
4. Jurisdiction and powers of Magistrate and higher courts regarding investigation and cognizance.
5. Legality of examining witnesses while considering a closure report.
6. Re-agitation of settled issues and procedural propriety.

Issue-wise Detailed Analysis:

1. Challenge to the order of taking cognizance by the Magistrate:
The applicants challenged the order dated 01-11-2013 passed by the Magistrate taking cognizance of offences under Sections 147, 148, 323, 325, 307, and 302 read with Section 149 of IPC. The revision petition against this order was dismissed, and subsequent petitions under Section 482 of Cr.P.C. were also dismissed or withdrawn. The court held that the order dated 01-11-2013 attained finality and could not be challenged further before the committal court by filing new applications. The liberty granted in the order dated 12-09-2014 was misunderstood, as it only allowed the applicants to prove their alibi at the trial stage, not to re-agitate settled points.

2. Legality of reserving investigation against certain accused:
The court discussed the misconception that investigating officers can reserve investigation for certain accused while filing charge-sheets against others. It clarified that under Section 173(2) and 173(8) of Cr.P.C., the investigation must be completed without unnecessary delay, and a final report should be filed. The practice of filing part charge-sheets and reserving investigation for some accused is not permissible, as it leads to multiplicity of trials and defeats the purpose of Section 167(2) of Cr.P.C., which mandates bail if the investigation is not completed within a specified period.

3. Applicability of Section 173(8) of Cr.P.C. for further investigation:
The court emphasized that Section 173(8) allows for further investigation but not reinvestigation or de novo investigation. The investigating officer cannot reopen or reinvestigate the case after filing the charge-sheet. The court cited several judgments, including "Joginder Singh v. State of Punjab," "K. Chandrasekhar v. State of Kerala," and "Vinay Tyagi v. Irshad Ali," to support this distinction. The court held that the charge-sheet should be filed after the complete investigation of the entire case, not just part of it.

4. Jurisdiction and powers of Magistrate and higher courts regarding investigation and cognizance:
The court clarified that subordinate courts do not have inherent powers under Section 482 of Cr.P.C., which are vested only in the High Court. The Magistrate cannot review its own order once it has attained finality. The court also highlighted that the power to order re-investigation or change the investigating agency lies with higher courts under Articles 226 and 32 of the Constitution, and even then, re-investigation is not ordinarily permitted.

5. Legality of examining witnesses while considering a closure report:
The applicants contended that the Magistrate exceeded his jurisdiction by examining witnesses while considering the closure report. The court held that it is the duty of the Magistrate to hear the complainant and record objections on the closure report. In this case, the Magistrate considered the named FIR and statements under Section 161 of Cr.P.C. The plea of alibi raised by the applicants was not conclusive, and the Magistrate was justified in taking cognizance based on available evidence.

6. Re-agitation of settled issues and procedural propriety:
The court criticized the applicants for repeatedly challenging the order dated 01-11-2013 through various petitions and applications. It held that a litigant cannot be permitted to agitate the same objections repeatedly. The court dismissed the present petition with costs, emphasizing that the order dated 01-11-2013 was legally sound and did not suffer from any infirmity or illegality.

Conclusion:
The court dismissed the petition, imposed costs on the applicants, and directed the dissemination of the judgment to ensure proper understanding and compliance with the legal provisions regarding investigation and cognizance. The judgment reinforces the principles of finality of orders, proper procedure in criminal investigations, and the limited scope of inherent powers under Section 482 of Cr.P.C.