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TMI Blog2016 (4) TMI 1464X X X X Extracts X X X X X X X X Extracts X X X X ..... E 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of warrant. The respondent No. 2 thereafter preferred a petition under Section 482 of Cr.P.C. registered as M.Cr.C. No. 3111/2013 in which vide order dated 26-04-2013 it was directed that fair investigation be done against the applicants and to file final report within 3 months. The review petition was also filed against that order and the same was dismissed on 15-05-2013. During pendency of various petitions, the Single Bench of this Court had stayed filing of charge-sheet against the applicants and therefore, the charge-sheet was filed against other accused persons, except the applicants. Again the prosecution has filed the report under Section 173(2) and 173(8) of Cr.P.C. with the information that no offence was found constituted against the applicants. However, the Magistrate vide order dated 01-11-2013 took cognizance of the offence against the applicants under Section 190 of Cr.P.C. The Criminal Revision No. 55/2014 against that order was filed before the revisionary Court which was dismissed on 25-02-2014. Thereafter, a petition under Section 482 of Cr.P.C. was filed against the order dated 25-02-2014 and that petition bearing M.Cr.C. No. 2089/2014 was dismissed vide or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that order was challenged in a revision petition which was dismissed. That order of revisionary court was again challenged in a petition under Section 482 of Cr.P.C. and that petition was withdrawn which indicates that petition was to be dismissed after hearing the parties and no flaw was found in the order dated 01-11-2013, therefore, it was withdrawn, hence the liberty cannot be granted to re-agitate all the points against the order dated 01-11-2013 passed by the Magisterial Court before the same lowest Court. It should be clear in the mind of litigants as well as judges and magistrates that liberty can be granted within the permissible limit of provisions of various laws that are in force for the time being. Liberty cannot be given to agitate the same points before the trial Court which are already considered and decided by the superior Court. 6. The liberty which was granted vide order dated 12-09-2014 was only granted to the effect that the applicants would be free to prove their alibi before the trial Court at the time of defence evidence and therefore, it was clearly mentioned that the applicants may raise all the objections at appropriate stage before the trial Court and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her accused persons whereas the investigation was reserved against the applicants -Hargovind Bhargava and Santosh Bhargava under Section 173(8) of Cr.P.C. It is submitted by learned counsel for the applicants that when the subsequent charge-sheet was filed under Section 173(8) of Cr.P.C. and the application under Section 319of Cr.P.C. was pending before the trial Court relating to the applicants then the Magisterial Court was not competent to pass the order dated 01-11-2013 under Section 173 (8) of Cr.P.C. In support of this contention, attention of this Court is invited to the judgment passed by the Apex Court in the case of Jile Singh v. State of Uttar Pradesh and another { (2012) 3 SCC 383}. However, this judgment is related to the procedure relating to registration of complaint under Section 204 of Cr.P.C. and to exercise the power under Section 319 of Cr.P.C. at that stage. In the present matter the application under Section 319 of Cr.P.C. was pending before the trial Court and the Magisterial Court (the committal Court) was not dealing any matter under the provisions of Section 319 of Cr.P.C. and therefore, the law laid in the case of Jile Singh (supra) is not applicable in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, weather with or without sureties; (g) whether he has been forwarded in custody under section 170. (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. *** *** *** *** *** *** 173 (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 subsections (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). 12. In this connection, the provisions of Sections 167 of Cr.P.C. may be referred which are crysta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... few accused persons and in the meantime supplementary charge-sheet is filed by adding one or two accused and thereafter re-trial starts if previous trial is not completed and again a piecemeal charge-sheet is filed against remaining accused persons resulting in a retrial or a fresh trial. Such activities of police creates multiplicity of trial against the accused persons who were arrested earlier. 15. In this connection the judgment of Apex Court in the case of Joginder Singh and another v. State of Punjab and another (1979 Cr.L.J. 333) may be referred. A little portion of para 6 and 8 of that judgment is reproduced as under: 6.................. It will be noticed that both under Section 193 and S. 209 the commitment is of 'the case' and not of 'the accused' whereas under the equivalent provision of the old Code viz. s. 193(1) and Section 207 A it was 'the accused' who was committed and not 'the case'. 8. It will thus appear clear that under S.193 read with S.209 the code when a case is committed to the court of session in respect of an offence the court of session takes cognizance of the offence and not of the accused........... The legal position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 173(2) of Cr.P.C. shall be filed when investigation is complete. Hence, when charge-sheet is filed then it should be after the complete investigation of the case and not of a particular accused. In case of Joginder Singh (supra) it is held that it is a case that is committed to the court of Session and not the accused. If charge sheet is filed for few accused and investigation is reserved for few other accused then it is not a complete charge sheet of a case but it would be a part charge- sheet of the case and in that case, entire case cannot be committed to the court of Sessions. Hence, such part chargesheet can not be filed under Section 173(2) of Cr.P.C. by keeping the right of investigation reserved against remaining accused. Charge-sheet filed under Section 173(2) of Cr.P.C. can be filed when investigation of entire case is complete. 18. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 21. If such a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments of the charge-sheet filed against other accused persons which were available in the case diary and he took cognizance on the basis of evidence given under Section 161 of Cr.P.C. of various witnesses and if he recorded the evidence of Vinod in addition to the plea of complainant -Prakash Chand then it makes no difference. Such recording of evidence of Vinod shall not vitiate the merit of the order dated 01-11-2013. The Magistrate has quoted the judgment passed by the Apex Court in the case of Rajendra Singh v. State of U.P. and others { (2007) Cr.L.J. 4281} in which it is held that the plea of alibi has to be proved against the accused and by that plea the statement of various witnesses recorded under Section 161 of Cr.P.C. cannot be discarded. The plea of alibi should be proved by the accused at the stage of defence. Hence, it is apparent from the order dated 01-11-2013 that the Magistrate took cognizance against the applicants on the basis of evidence otherwise collected by the Investigating Officer and statements recorded under Section 161 of Cr.P.C. Hence, if the evidence of Vinod was recorded by the Magisterial Court while considering the final closure report then it m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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