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TMI Blog2017 (2) TMI 1539X X X X Extracts X X X X X X X X Extracts X X X X ..... Shamik Sanjanwala, learned Counsel for the Respondent Nos. 1, 2 and 3 respectively. 3. The facts indispensable for the present adjudication, portray that the Appellant had lodged a First Information Report (for short hereafter referred to as "FIR") against the Respondents Under Sections 406, 420, 426, 467, 468, 471, 477B and 120B of the Indian Penal Code (for short also referred to as "Indian Penal Code"). The materials offered in the FIR and the investigation by the police that followed, divulged that there was a dispute between the parties relating to agricultural land and that the Appellant/informant had alleged forgery of the signatures and thumb impression of his as well as of his family members in the register maintained by the Notary (Public). After the charge-sheet was submitted, charge was framed against the Respondents and they stood the trial accordingly, as they denied the imputations. As would be gleanable from the records, the oral evidence of the Appellant/first informant was concluded on 03.07.2012 followed by that of the investigating officer of the case on 10.09.2013. Subsequent thereto, the statements of the Respondents were recorded Under Section 313 Code of Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of Section 173(8) as a sequitur thereof held that it was permissible for the investigating officer or the officer-in-charge of the police station to undertake a further investigation even after the filing of the charge sheet, but neither the informant nor the Accused could claim as a matter of right, any direction from the Court directing such further investigation under the said provision after a charge-sheet was filed. The High Court traced the law as expounded by this Court from its renderings in Ram Lal Narang v. State (Delhi Administration), (1979) 2 SCC 322 vis-à-vis the scope and purport of Section 173 of Code of Criminal Procedure in particular, qua further investigation by the police after it had submitted charge-sheet in a case. The exposition by this Court in Ram Lal Narang (supra) that neither Sections 173 nor 190 of the Code of Criminal Procedure, 1898 did suggest exhaustion of the power of the police to further investigate even after the Magistrate had taken cognizance of the offence already on record and that the police could exercise such right as often as necessary when fresh information would come to light and it desired to make further investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court had erred in allowing the application filed by the Appellant/informant for the same. 11. Without prejudice to this finding, the High Court was further of the view that having regard to the sequence of events and the delay on the part of the informant to make such a prayer at the closing stages of the trial, it was not entertainable. In arriving at this determination, the High Court, amongst others marked that the evidence of the Appellant/informant had been recorded in the year 2012 when he did have sufficient opportunity to scrutinise the document in question but for inexplicable reasons did wait for more than two years to register the prayer for further investigation. It was of the view that the attendant factual setting did not demonstrate any defective investigation which demanded curation through a further drill and that in any view of the matter, additional report from the Forensic Science Laboratory had not been called for. This is more so, as in the view of the High Court, the entire register of the Notary (Public) had been seized by the investigating officer and that any unusual or suspicious feature therein would have been certainly examined by the FSL and findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates to an offence Under Section 376, 376A, 376B, 376C or 376D 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first given. (2) Where a superior officer of police has been appointed Under Section 158, the report shall, in any cases 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. (3) 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. (4) After forwarding a report under this section, the officer in charge of the police-station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under Sub-section (1) and of the first information report recorded Under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any recorded Under Section 164 and the statements recorded under Sub-section (3) of Section 161 of all the persons whom the prosecution proposes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17. The Commission in the above perspective proposed a revision of Section 173 of Code 1898 in the following terms: 14.24: We propose that Section 173 should be revised as follows: 173. (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) 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 Under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (2). 18. The Bill to consolidate and amend the law relating to criminal procedure followed and was circulated in the Gazette of India, Extraordinary, Part II, published on December 10, 1970 proposing, the Code of Criminal Procedure, 1970. The Statement of Objects and Reasons clearly disclosed that the recommendations of the Commission to overhaul the Code 1898 as made were accepted and vis-a-vis Section 173, which corresponded to Section 176 in the aforementioned report, the amendment proposed was to facilitate collection of evidence by the police after filing the charge-sheet and production thereof before the Court, subject to the Accused being given usual facilities for copies. The remodelled Section 173 was identical in form and substance to the one, as proposed by the Commission in chime with its recommendation as contained in the Report. Sub-clause (7) of the new Section 173, as proposed by the Commission and integrated in the Bill, however eventually appeared as Sub-clause (8) to the Section under Code 1973. 19. The newly added Sub-section (8), as its text evinces, permits further investigation by the concerned officer in-charge of the police station in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no offence has been committed, the Magistrate if is inclined to accept the same, can drop the proceeding without issuing notice to the first informant or to the injured or in case where the incident has resulted in death, to the relatives of the deceased. This Court in its adjudicative pursuit, embarked upon a scrutiny of the provisions of Chapter XII of the Code of Criminal Procedure, dealt with Sections 154, 156, 157 thereof before eluding to Section 173 of the Code. It noticed that under Sub-section (1) of Section 154, every information relating to the commission of a cognizable offence, if given orally to an officer in-charge of a police station has to be reduced into writing by him or under his direction and is to be read over to the informant and every such information whether given in writing or reduced to writing, shall be signed by the person giving it and that a copy thereof shall be given forthwith to the informant, free of cost. It noticed that Under Section 156(1), the officer in-charge of a police station is vested with the power to investigate any cognizable case without the order of the Magistrate and that Sub-section (3) authorized the Magistrate empowered Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e police on the completion of the investigation. It was enunciated that if the report submitted by the police divulged that no offence had been committed, there again, the Magistrate would be left at liberty to adopt one of the three courses, namely; he could accept the report and drop the proceeding, or he could disagree with the report and taking the view that there was sufficient ground for proceeding further, take cognizance of the offence and issue process or he could direct further investigation to be made by the police under Sub-section (3) of Section 156. Noticeably, these three courses referred to hereinabove are at the pre-cognizance stage and can be opted for by the Magistrate depending on his satisfaction on an assessment of the materials then on record. 26. Be that as it may, this Court held that whereas neither the informant nor the injured nor the relative of the deceased in case of death, would be prejudicially affected in case the Magistrate decides to take cognizance of the offence and to issue a process, they would certainly be prejudiced in case, the Court holds the view that there is no sufficient ground for proceeding further and is inclined to drop the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting further investigation in the case i.e. after the appearance of the Accused in pursuance of the process already issued. This Court reiterated that such power was available to the police, after submission of the charge-sheet as was evident from Section 173(8) in Chapter XII of the Code, 1973. That it was not in dispute as well that before taking cognizance of the offence Under Section 190 of Chapter XIV, the Magistrate could himself order investigation as contemplated by Section 156(3) of the Code was noted as well. This Court also noticed the power Under Section 311 under Chapter XXIV to summon any person as a witness at any stage of an inquiry/trial or other proceedings, if the same appeared to be essential to the just decision of the case. 29. It recalled its earlier rendering in Tula Ram and Ors. v. Kishore Singh (1977) 4 SCC 459 to the effect that the Magistrate could order investigation Under Section 156(3) only at the pre-cognizance stage Under Sections 190, 200 and 204 Code of Criminal Procedure and that after he decides to take cognizance under the provisions of Chapter XIV, he would not be entitled in law to order any investigation Under Section 156(3), and further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an investigation for the purpose of deciding whether or not, there is sufficient ground for proceeding. It was thus exposited that the object of an investigation Under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing the proceedings already instituted upon a complaint before him. It was thus concluded on an appraisal of the curial postulations above referred to, that the Magistrate of his own, cannot order further investigation after the Accused had entered appearance pursuant to a process issued to him subsequent to the taking of the cognizance by him. 32. The scope of the judicial audit in Reeta Nag (supra), to reiterate, was whether, after the charge-sheet had been filed by the investigating agency Under Section 173(2) Code of Criminal Procedure, and charge had been framed against some of the Accused persons on the basis thereof, and other co-accused had been discharged, the Magistrate could direct the investigating agency to conduct a re-investigation or further investigation under Sub-section (8) of Section 173. The recorded facts revealed that the Magistrate had in the contextual facts directed for re-investigation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recourse to the provisions of Section 319 Code of Criminal Procedure at the stage of trial. 33. This decision reinforces the view that after cognizance is taken by the Magistrate on the basis of a report submitted by the police on the completion of the investigation, no direction for further investigation can be made by the Magistrate suo motu and it would be permissible only if such a request is made by the investigating authority on the detection of fresh facts having bearing on the case and necessitating further exploration thereof in the interest of complete and fair trial. 34. The query in Vinay Tyagi v. Irshad Ali @ Deepak and Ors. (2013) 5 SCC 762 was whether in exercise of powers Under Section 173 Code of Criminal Procedure, the Trial Court has the jurisdiction to ignore any of the police reports, where there was more than one, whether by the same or different investigating agencies submitted in furtherance of the orders of a Court. The Respondents therein were sought to be prosecuted by filing a First Information Report Under Sections 120B, 121 and 122 of the Indian Penal Code read with Section 25 of the Arms Act and Sections 4 and 5 of Explosives Substance Act, 1908. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court in continuation of the latter, and that on an examination thereof and following the application of mind, it ought to proceed to hear the case in the manner prescribed. It was elaborated that after taking cognizance of the offence, the next step was to frame charge in terms of Section 228 of the Code unless the Court found, upon consideration of the record of the case and the documents submitted therewith, that there did exist no sufficient ground to proceed against the accused, in which case it would discharge him on reasons to be recorded in terms of Section 227 of the Code. Alluding to the text of Section 228 of the Code which is to the effect that if a Judge is of the opinion that there is ground for presuming that the Accused had committed an offence, he could frame a charge and try him, this Court propounded that the word "presuming" did imply that the opinion was to be formed on the basis of the records of the case and the documents submitted therewith along with the plea of the defence to a limited extent, if offered at that stage. The view of this Court in Amit Kapoor v. Ramesh Chander and Anr. (2012) 9 SCC 460 underlining the obligation of the Court to consider t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d been submitted, cognizance had been taken, Accused had appeared and trial is underway, the Court either suo motu or on the prayer of the informant had directed further investigation Under Section 173(8) in absence of a request to that effect made by the concerned investigating officer. 40. The rendition in Bhagwant Singh (supra) was also relied upon. It was eventually held, by drawing sustenance from the pronouncement in Bhagwant Singh (supra) that a Magistrate before whom a report Under Section 173(2) of the Code had been filed, was empowered in law to direct further investigation and require the police to submit a further or a supplementary report. To reiterate, in Bhagwant Singh (supra), this Court had in particular dealt with the courses open to a Magistrate, once a charge-sheet or a closure report is submitted on the completion of investigation Under Section 173(2) of the Code and thus did essentially concentrate at the pre-cognizance stage of the proceedings. 41. From the issues sought to be answered in this decision and having regard to the overall text thereof, it is not possible to discern that the power of the Magistrate, even at the post cognizance stage or after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view, having regard to the scheme of the Section 173(8) of the Code that the investigating officer only could request for further investigation. 44. While disapproving the approach of the High Court in reappreciating the facts in the exercise of its revisional jurisdiction, this Court adverting, amongst others to the three Judge Bench exposition in Bhagwant Singh (supra) reiterated that a Magistrate could disagree with the police report and take cognizance and issue process and summon the accused, if satisfied as deemed fit in the attendant facts and circumstances. The rendition in Vinay Tyagi (supra) was also alluded to. It was ultimately expounded that the learned Magistrate had really intended to direct further investigation, but as a different investigating agency had been chosen, the word re-investigation had been used. This Court thus construed the direction for investigation by the CBI to be one for further investigation and upheld the same, but nullified the selection of a new investigating agency therefor. As a corollary, the investigating agency that had investigated the case earlier and had submitted the final report, was directed by this Court to undertake further inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age and thus logically before the issuance of process to the Accused and his attendance in response thereto. As adverted to hereinabove, whereas Section 311 of the Code empowers a Court at any stage of any inquiry, trial or other proceeding, to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if construed to be essential to be just decision of the case, Section 319 authorizes a Court to proceed against any person, who though not made an Accused appears, in course of the inquiry or trial, to have committed the same and can be tried together. These two provisions of the Code explicitly accoutre a Court to summon a material witness or examine a person present at any stage of any inquiry, trial or other proceeding, if it considers it to be essential to the just decision of the case and even proceed against any person, though not an Accused in such enquiry or trial, if it appears from the evidence available that he had committed an offence and that he can be tried together with the other Accused persons. 47. On an overall survey of the pronouncements of this Court on the scope an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated Under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by the Code of Criminal Procedure to order further investigation even after the cognizance is taken, Accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Code of Criminal Procedure adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173 of the Code of Criminal Procedure would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in both the contingencies, namely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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