1 HIGH COURT OF MADHYA PRADESH : JABALPUR SINGLE BENCH: HON.SHRI JUSTICE RAJEEV KUMAR DUBEY, J. M.CR.C. No.3474/2013 [ENTITY] Versus The [ENTITY] & another Shri [ENTITY], Advocate for the applicant. Shri [ENTITY], Dy. Govt. Advocate for the respondent no.1/State. Shri [ENTITY], Sr. Counsel with Shri [ENTITY], Advocate for the respondent no.2. O R D E R
(Reserved on 23/08/2018 (Delivered on 28/08/2018) This petition has been filed under [SECTION] of the [ACT] against the order dated 14/2/2013 passed by XIXth Additional Sessions Judge, Jabalpur in [CASE NUMBER], whereby learned ASJ rejected the applicant's application filed under [SECTION] of the [ACT] to direct the investigation agency for further investigation of the Crime no.237/12 registered at P.S Cantonment Jabalpur.
2. Brief facts which are relevant to the disposal of this case are that the non-applicant no.2 is facing trial in [CASE NUMBER] which was registered on the charge-sheet filed by the police after investigation of the Crime no. 237/12 and presently pending before XIXth ASJ, Jabalpur for the offence punishable under [SECTION] of the [ACT]. It is alleged that the non- applicant no.2 murdered [ENTITY], son of the applicant. During trial of the case, applicant filed an application under [SECTION] of the [ACT] before the trial Court averring that during investigation, police seized mobiles of deceased [ENTITY] and [ENTITY], wife of the non-applicant no.2 and in the investigation, police also found that before the incident, deceased had talked with [ENTITY] and [ENTITY] had also talked with non-applicant no.2 [ENTITY] on mobile phone and [ENTITY] also admitted during investigation that she had relations with deceased [ENTITY] and police seized one scooty and mobile phones from near the spot so, it is appropriate to direct the investigating agency to conduct further investigation of the crime and took data of mobile of deceased [ENTITY] and [ENTITY] and documents regarding ownership of the said scooty and filed supplementary charge sheet.
3. Learned ASJ, after hearing both the parties by order dated 14/2/2013, rejected that application filed under [SECTION] of [ACT] observing that the applicant is only entitled to assist the public prosecutor during trial and file the written final arguments. He has no right to file any application for further investigation of the crime. Neither public prosecutor nor investigating officer sought permission for further investigation so held that the application was not maintainable and rejected the same. Being aggrieved from that order, the applicant filed this petition.
4. Learned counsel for the applicant submitted that the applicant is the father of the deceased, so he is an injured person and has a right to file application for further investigation of the crime before the Court. Learned trial Court committed mistake in rejecting his prayer. In this regard, he also placed reliance on the Apex Court judgments passed in [PRECEDENT] and in Hasanbhai Valibhai Qureshi Vs. State of Gujarat and another reported in AIR [SECTION]4 SC 2708.
5. On the other hand, learned counsel for the non-applicant no.2/accused submitted that in this case, charge sheet was filed by the police after investigation of the crime and trial was conducted by the public prosecutor and in the cases wherein police files charge-sheet after investigation of the crime, complainant or injured has no right to file the application for further investigation under [SECTION] of the [ACT] after Magistrate has taken cognizance from the charge sheet. While in this case trial is going on. He further submitted that in the instant case, learned trial Court permits the applicant under [SECTION] of [ACT] only to assist the public prosecutor in charge during trial of the case and for submission of written arguments at the stage of final hearing. So, the applicant has no authority to file an application for further investigation. In this regard, he also placed reliance on Apex Court judgments passed in [PRECEDENT], [PRECEDENT] and [PRECEDENT].
6. This Court has gone through the record and arguments put forth by the learned counsel of both the parties. The facts of the cases relied by the learned counsel of the applicant do not match with the present case. In the first case, applicant filed the application for further investigation at the stage of investigation of the crime. While in this case investigation is over and trial is also on advanced stage. In the second case, Hon'ble Apex Court only held that even after Court has taken cognizance of the offence, Police may seek permission for further investigation of the crime. While in this case, police did not file any application for further investigation of the crime. So, these judgements do not help applicant much.
7. Apex Court in the case of [PRECEDENT] after considering its numerous decisions observes as thus :-
" 49. On an overall survey of the pronouncements of this Court on the scope and purport of [SECTION] of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and the accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant can direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.
50. The un-amended and the amended [SECTION] of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorised to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings. The recommendation of the Law Commission in its 41st Report which manifestly heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone.
51. In contradistinction, [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under [SECTION] at the pre- cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under [SECTION], while dealing with a complaint, though is at a post-cognizance stage, 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] of the Code. If the power of the Magistrate, in such a scheme envisaged by [ACT] to order further investigation even after the cognizance is taken, the 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 [ACT] adumbrated hereinabove. Additionally, had it been the intention of the legislature to invest such a power, in our estimate, [SECTION] [ACT] 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 [PRECEDENT], the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of [SECTION] and [SECTION] [ACT], whereunder any witness can be summoned by a court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by the High Court."
8. From the above judgement of Apex Court, it is clear that once the Magistrate has accepted the report submitted by the police and trial has proceeded, the learned Magistrate can neither suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial. So, in the considered opinion of this Court learned trial Court did not commit any mistake in rejecting the applicant's application.
Hence petition is rejected.
([ENTITY]) Judge m/-
Date: 2018.08.28 17:12:34 +05'30'