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Surendrabhai Babubhai Patel Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1986)1GLR313
AppellantSurendrabhai Babubhai Patel
RespondentState of Gujarat
Cases ReferredDeepak Dwarkadas v. State
Excerpt:
.....ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the..........court has held that notwithstanding that a magistrate had taken cognizance of the offence upon a police report submitted under section 173 of the code (old), the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. the right to further investigation is specifically given by sub-section (8) of section 173 of the criminal procedure code. the court has taken into consideration 1st report of the law commission with regard to this aspect which is reproduced as under:14.23. a report under section 173 is normally the end of the investigation. sometimes, however, the police officer after submitting the report under section 173 comes upon evidence bearing on the guilt or innocence of the.....
Judgment:

M.B. Shah, J.

1. The petitioner was working as an Accountant in Dharamsinh Desai Foundation since 1971. Against him one Vithalbhai Section Patel filed a complaint before the Chief Judicial Magistrate, Nadiad. The Chief Judicial Magistrate passed an order under Section 156(3) of the Criminal Procedure Code for investigation by the police. In the complaint it was alleged that the petitioner had committed an offence punishable under Section 408 of the Indian Penal Code as he had misappropriated the amount alleged in the complaint. The investigating officer submitted the charge-sheet on 18-1-83 for the offence punishable under Section 408 of the Indian Penal Code. Thereafter the case was registered as Criminal Case No. 350 of 1983. It is the say of the petitioner that his plea was recorded and some evidence was also taken by the learned Magistrate.

2. Thereafter an application Ex. 31 was filed on behalf of the prosecution contending that investigating officer had not seized certain important documents and that it was necessary that investigating officer may be directed to make further investigation in the matter and should be directed to submit further charge-sheet in the interest of justice and till then further proceedings in the matter may be stayed. This application was resisted by the petitioner-accused. It was contended by him that on behalf of the prosecution the complainant is examined and he has produced certain documents on record. He further submitted that by granting the application filed by the prosecution, the accused would be prejudiced. After considering the fact that the investigating officer has not recorded the statements of the important witnesses and that important documents were not seized, the learned Chief Judicial Magistrate ordered on 1-10-84 that investigating officer should make further investigation and submit his further report.

2A. Against the said judgment and order, the petitioner has filed this revision application. In this revision application it was vehemently contended by the petitioner that once the Court had taken cognizance of the matter, the Court has no jurisdiction to direct the investigating officer to make further investigation in the matter and make further report or charge-sheet.

3. In my view, the said contention of the learned advocate is without any substance because under Section 173(8) of the Criminal Procedure Code it has been made clear that after a report under Sub-section (2) of Section 173 is forwarded to the Magistrate, it would not preclude further investigation in respect of an offence for which a report is already submitted. The said Sub-section empowers the investigating officer to obtain further evidence, oral or documentary, and it further requires that he shall forward a further report or reports regarding such evidence in the form prescribed under the provisions of Sub-section (2) to (6) as they apply in relation to a report forwarded under Sub-section (2). In Special Criminal Application No. 293 of 1984 decided by me on 21st August 1984, I have taken the view that even after taking cognizance of the matter the Court is entitled to direct the investigating officer to make further investigation in the case. In the case of Ram Lai Narang v. State Delhi Admn. : 1979CriLJ1346 the Supreme Court has held that notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the Code (old), the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. The right to further investigation is specifically given by Sub-section (8) of Section 173 of the Criminal Procedure Code. The Court has taken into consideration 1st report of the Law Commission with regard to this aspect which is reproduced as under:

14.23. A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in 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.

The Supreme Court in paragraph 20 had disapproved the Full Bench decision of the High Court of Punjab and Haryana in the case of State v. Mehar Singh reported in 1974 Cri. L.J., 970 wherein the Full Bench had held that the police became functus officio once the Court took cognizance of an offence on the filing of a charge-sheet by the police and thereafter further investigation by the police was not permissible. It further held that it would be open to the Magistrate to 'suspend cognizance' and direct the police to make further investigation into the case and submit a report. In paragraph 21 the Court has held that after all the investigating agency has greater resources at its command than a private individual. Similarly where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. Thereafter it is further held as under:

It is their duly to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him if he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial... What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate.... That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation.... We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.

From this decision it is clear that the permission of the Magistrate in charge of the matter the investigating officer can make further investigation. Therefore, if the investigating officer is entitled to carry on further investigation with the permission of the Court, there would be hardly any reason to hold that the Magistrate is not empowered to direct the investigating officer to make further investigation once he takes the cognizance. In my opinion, that would be a totally unreasonable view.

4. In the case of State of Bihar v. J.A.C. Saldanna : 1980CriLJ98 , the Supreme Court after considering the provisions of Section 3 of the Indian Police Act and Section 173(8) of the Criminal Procedure Code has held that there is no conflict between the two provisions. Power to direct investigation or further investigation is entirely different from the method and procedure of investigation and the competence of the person to investigate. The Supreme Court held that Section 3 of the Police Act empowers the State Government to direct further investigation into the case to the Police Officer-in-charge of a Police Station or by a superior officer in rank to the officer-in-charge of a police station. The Court held that the superior officer could also direct further investigation under Section 173(8) of the Code or the superior officer himself could as well undertake further investigation on his own. In paragraph 19 the Court has further held that the power conferred upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation.

5. The learned advocate for the petitioner, however, submitted that in the case of Tula Ram v. Kishore Singh : 1978CriLJ8 , the Supreme Court has laid down that once the Magistrate has taken cognizance of the offence, he has no jurisdiction to direct the investigating officer to make further investigation. In my view, this contention of the learned advocate is totally misconceived because in the said case the Supreme Court has not considered the ambit and scope of Section 173(8) of the Criminal Procedure Code. The question which was considered by the Supreme Court was whether the Magistrate was at all in law entitled to revive the complaint and take cognizance of the matter after having referred the matter for investigation to the police and having received the report. After considering the provisions of Sections 156(3) and 190 of the Criminal Procedure Code and the various Supreme Court decisions the Court laid down the following legal propositions in paragraph 14 of the judgment:

1. That a Magistrate can order investigation under Section 156(3) only at the pro-cognizance stage, that is to say, before taking cognizance under Sections 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 peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway 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.

(b) 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 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 straightway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above.

This decision nowhere lays down that under Section 173(8) Court has no jurisdiction to direct further investigation if necessary once the cognizance of the case is taken.

6. The learned Magistrate in this case has rightly relied upon the decision of this Court in the case of Bachubhai v. State reported in 25 (2) G.L.R. 897, where the Court has also taken the similar view of the provisions of Section 173(8) and held that if there is an authority which is competent to make additional report or reports there does not appeal to be any reason why the Court should not have power to direct the authority to make further report. In the case of Deepak Dwarkadas v. State reported in 21 G.L.R. 135 the Court has negatived the contention that after submitting a charge-sheet the investigating officer becomes functus officio and held that an additional charge-sheet could be submitted by a Police Station Officer if and only if there was further investigation in the course of which some further evidence, oral or documentary, was available. The Court further held that Section 173(8) is added to negative such controversy beings raised and to set at rest the earlier controversy that once a charge-sheet was filed, a Police Officer becomes functus officio.

In the result, the revision application is rejected. Rule discharged.


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