HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Court No. - 45 Reserved on 04.07.2014 Delivered on 11.07.2014 Case :- CRIMINAL MISC. WRIT PETITION No. - 10874 of 2014 Petitioner :- [ENTITY] Respondent :- [ENTITY] And 4 Others Counsel for Petitioner :- [ENTITY] Counsel for Respondent :- Govt. Advocate Hon'ble [ENTITY],J.
Hon'ble [ENTITY],J.
[ENTITY], S/o Baijnath Pandey has approached this Court with following prayers:
"(a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 30.01.2014 passed by respondent no. 3/Circle Officer, Sadar, Chandauli and to letter dated 24.12.2013 of respondent no. 2 in [CASE NUMBER] under [SECTION], [SECTION] and [SECTION] [ACT] Police Station-Chandauli district Chandauli.
(b) Issue the writ of mandamus commanding the respondent police authorities, not to arrest or harass the petitioner."
Brief background of the case as is emanating from the record of the writ petition is that a FIR was lodged, in reference of an incident alleged to have taken place on 18.10.2013 at about 13.05 hours by [ENTITY] which was registered as [CASE NUMBER] under [SECTION], [SECTION] and [SECTION] [ACT] Police Station- Chandauli district Chandauli against the petitioner as well as [ENTITY], who is son in law of [ENTITY]. In the said criminal case, investigation has been carried out and thereafter Investigating Officer vide Parcha No. 6 dated 08.01.2014 concluded that petitioner was not involved in aforesaid crime in question and his complicity has not been found, and Investigating Officer further proceeded to find complicity of [ENTITY] only and accordingly after completing the investigation, charge sheet in question has been filed on 08.01.2014 and same has been submitted before the Chief Judicial Magistrate, Chandauli on 21.03.2014 and the concerned court has taken cognizance of the same and allotted [CASE NUMBER] to the same. Record in question further reflects that case in question has been committed to the court of session and has been received before the court of session on 04.04.2014 and thereafter date has been fixed for framing of the charges on 03.05.2014 and thereafter what has further transpired before the Trial Court is not at all reflected from the record as has been set out before this Court.
In the present case record in question reflects that charge sheet in question has been filed in the court 08.01.2014 and prior to it on 24.12.2013 Superintendent of Police had written a letter pointing out defects in investigation, but before any further action could be taken pursuance to the said letter of Superintendent of Police, charge sheet had been filed on 08.01.2014, as against only one of the two named accused persons, and the Superintendent of Police once again sent letter dated 25.01.2014 and then again detailed investigation was made from complainant and witnesses, and the said investigation in question reflected that rightful approach in investigation was not there, qua the petitioner and thereafter on 30.01.2014 order has been passed by Circle Officer, Sadar, Chandauli respondent no. 3 in exercise its authority under [SECTION] [ACT] asking for further investigation of the case in reference to the petitioner by getting call details of petitioner and the other co-accused who has been charge-sheeted, and the nature of talks interse, them and to find out details of transaction and specially how the sale consideration has been paid, and why death has taken place within 10 days from the date of transaction, and to find out co-relation in between the execution of sale deed and death of lady in question and now petitioner is before this Court questioning the validity of the aforesaid order.
Sri [ENTITY], Advocate appearing alongwith Sri [ENTITY], Advocate has attacked the validity of the order passed by Circle Officer, Chandauli dated 30.01.2014 on the premises that in the present case once charge sheet in question has been filed as against one accused person namely [ENTITY] and the matter has been committed to court of session and trial has been on going then without taking prior permission from the concerned court further investigation could not have been directed to be carried out and accordingly direction that has been so issued is per se bad, as such order in question is liable to be quashed.
Learned Additional Government Advocate, Sri [ENTITY] has resisted the request that has been made on behalf of petitioner by contending that further investigation is the inherent right of the Investigating Agency and there is no requirement of any prior permission as is being claimed by the petitioner before this Court, as such in the fact of the case no interference should be made.
To answer the issue raised this Court proceeds to examine the relevant provisions and scheme of the Code in relation to investigation by police. The criminal investigative machinery is set into motion by lodging of a First Information Report in relation to commission of a cognizable offence. Such report may be made orally, in writing or through any means by an officer in charge of a police station. Such officer is required to reduce the same into writing, read the same to the informant and wherever the person reporting is present, the same shall be signed by such person or the person receiving such information in accordance with the provisions of [SECTION] of the Code. A police officer can conduct investigation in any cognizable case without the orders of the Magistrate in consonance with the provisions of [SECTION] of Code and he has to conduct such investigation in accordance with the provisions of [SECTION], i.e., in accordance with [SECTION] of the Code. As per [SECTION] of Code where information as contemplated in law is received by an investigating officer and he has reasons to believe that an offence has been committed, which he is empowered to investigate, then he has to forthwith send a report of the same to the Magistrate and proceed to the spot to investigate the facts and circumstances of the case and take appropriate measures for discovery and arrest of the offender. Every report under [SECTION] has to be submitted to the Magistrate in terms of [SECTION] of the Code upon which the Magistrate may direct an investigation or may straight away proceed himself or depute some other magistrate subordinate to him to hold an inquiry and to dispose of the case in accordance with the provisions of the Code and the proceedings recorded by a police officer cannot be called into question at any stage on the ground that he was not empowered to conduct such investigation.
This Court, at this juncture takes note of provision as contained under [SECTION] [ACT], as same deals with the report of police officer on completion of investigation. Same provides for as follows:
"[SECTION]. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) 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 and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under [SECTION].
(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], 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] 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 investigation;
(b) the statements recorded under [SECTION] of all the persons whom the prosecution proposes to examine as its witness.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the sub-matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).
(8) Notwithstanding in this section shall be deemed to preclude further investigation in respect of an offence after a report under [SECTION] 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' [SECTION] 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 [SECTION].
After the investigation is completed by the Investigating Officer and he has proceeded to prepare a report without unnecessary delay in terms of [SECTION] of the Code, then he is required to forward his report to a Magistrate who is empowered to take cognizance on a police report. The report so completed has to satisfy the requirements stated under [SECTION] of the Code. Upon receipt of the report, the empowered Magistrate is obligated to proceed further in accordance with law. The Investigating Officer has been vested with some definite powers in relation to the manner in which the report should be completed and it is required that all the documents on which the prosecution proposes to rely and the statements of witnesses recorded under [SECTION] of the code accompany the report submitted before the Magistrate, unless some part thereof is excluded by the Investigating Officer in exercise of the powers vested in him under [SECTION] of the Code. A very wide power is vested in the investigating agency to conduct further investigation after it has filed the report in terms of [SECTION], under [SECTION].
The legislature has specifically used in [SECTION] the expression that 'nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under [SECTION] has been forwarded to the Magistrate', which unambiguously indicates the legislative intent that even after filing of a report before the court of competent jurisdiction, the Investigating Officer can still conduct further investigation and where, upon such investigation, the officer in charge of a police station gets further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the prescribed form. In other words, the investigating agency is competent to file a supplementary report to its primary report in terms of [SECTION]. The supplementary report has to be treated by the Court in continuation of the primary report and the same provisions of law, i.e., [SECTION] shall apply when the Court deals with such report.
Law does not mandate taking of prior permission from the Magistrate concerned for carrying out further investigation even after filling of the charge sheet in question as further investigation is the statutory right of the police. The statutory provisions are clear and categorical that there is no requirement of any permission from the Magistrate for carrying out the further investigation as further investigation is the domain of the Investigating Agency and prime consideration for further investigation is to arrive at truth from materials which helps in reaching rightful conclusion and to do real and substantial justice.
Under the [ACT] as already mentioned above, there is no provision provided for which talks and provides for any permission from the Magistrate concerned before proceeding for further investigation but in matters wherein charge sheet has been submitted, in order to see and ensure that there is coordination in between trial court wherein trial is proceeding vis-a-vis the Investigating Agency, Apex Court in its wisdom has proceeded to provide for, in the case [ENTITY] and another Vs. State (Delhi Administration) reported in AIR 1979 SC 1791, as follows:
"that further investigation is not altogether ruled out merely because cognizance has been taken by the Court and when defective investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offence found during course of proper investigation is as much relevant, desirable and necessary as an expedition disposal of the matter by the Courts. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law."
Apex Court in the case of [ENTITY] (Supra) mentioned that it would ordinarily be desirable that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offence found during course of proper investigation is as much relevant, desirable and necessary as an expedition disposal of the matter by the Courts.
By judicial pronouncement of Apex Court such a condition has been imposed and Apex Court was conscious of the fact that the [ACT], in the matter of further investigation does not talk of taking permission from Courts, and that is why, in the judgement word used is "formal permission" to make further investigation when fresh facts come to light.
Apex Court in the case of [PRECEDENT] took the view, "even if after conclusion of investigation pursuant to filing of the FIR and submission of report under [SECTION], the officer in charge of police station comes across any further information pertaining to same incident, he can make further investigation, normally with the leave of Court and forward the further evidence, if any collected, with further report or reports under [SECTION]."
Said view in question of taking formal permission, has been, subject matter of debate, and in the case of [PRECEDENT] Apex Court has proceeded to take the view that indisputably, the law does not mandate taking of prior permission from the Magistrate for further investigation, as carrying out further investigation even after filing of the charge-sheet is a statutory right of the police.
The Apex Court in the case of [PRECEDENT] (supra) itself had taken note of the judgement in the case of [ENTITY] (Supra) specifically paragraphs-20 and 21, which have been quoted with approval in paragraphs 14 and 15 of the judgement in the case of [PRECEDENT] (Supra), and read as follows:
"14. In [ENTITY] this Court was concerned with a case where two conspiracies were alleged; one being part of a larger conspiracy. Two investigations were carried out. This Court, while opining that further investigation is permissible in law, held that the Magistrate has a discretion in the matter to direct further investigation, even if he had taken cognizance of the offence, stating : (SCC pp. 337-38, para 20) " 20. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with 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 should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. 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." "
"15. While acknowledging the power of the police authorities to carry out further investigation in terms of [SECTION] of the [ACT], an observation was made therein to the following effect: (Narang case, SCC p. 338, para 21) "21. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under [SECTION] of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation." "
It is in the aforesaid legal background that the Apex Court in paragraph-17 of the judgement in the case of [PRECEDENT] (supra) proceeded to hold that permission for further investigation was granted by necessary implications by the Magistrate as in the said case, the court was informed, and the concerned Court had not passed any express order on the same, but had proceeded to stay the proceedings.
Time and again authority of Investigating Agency, to further investigate has been reiterated and it has been clarified that even after charge-sheet has been filed or cognizance has been taken the authority is neither taken away nor same is diluted in any manner.
In the case of [PRECEDENT]) page 36, Apex Court reiterated the authority of Investigating Agency to further investigate in terms of [SECTION] of the Code, and also clarified that said authority is intact and is not taken away, even in the contingency, when charge sheet has been filed or cognizance has been taken. In the said case, the issue of formal permission from the Magistrate for further investigation had not been raised and according, on the said score the judgement is completely silent.
View to the similar effect, has once again been expressed by the Apex Court in the case of [PRECEDENT], wherein authority of further investigation conferred on Investigating Agency under [SECTION] of Code has been reiterated, and in the said case as charge sheet had already been filed, matter was pending and engaging attention of Court, in between exercise of further investigation was taken up by the Investigating Agency and based on further investigation, supplementary report was submitted, and concerned Court took cognizance of supplementary report containing new material and based on the same persons named were called to appear as witness, and then challenge was made on the premises that further investigation was bad for not taking prior permission, by the Magistrate the said arguments have been repelled as follows:
9) The above said provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible.
10) From a plain reading of [SECTION] and [SECTION], it is evident that even after submission of police report under [SECTION] on completion of investigation, the police has a right to "further" investigation under [SECTION] but not "fresh investigation" or "reinvestigation". The meaning of "Further" is additional; more; or supplemental. "Further" investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. [SECTION] clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a "further" report and not fresh report regarding the "further" evidence obtained during such investigation.
(11) As observed in [PRECEDENT], the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. 12) If we consider the above legal principles, the order dated 19.02.2008 of the trial Court summoning the witnesses named in the supplementary charge-sheet cannot be faulted with. It is true that after enquiry and investigation charges were framed on 11.03.2004 and thereafter in the course of trial about 21 witnesses were examined. In the meantime, Police submitted supplementary charge-sheet with certain new materials and on the basis of supplementary charge- sheet, the prosecution filed an application on 12.01.2008 in a pending [CASE NUMBER] to the trial Court for summoning the persons named in the charge-sheet for their examination as prosecution witnesses. On a careful perusal of the application, the trial Court, by order dated 19.02.2008, allowed the same and has summoned those witnesses named in the supplementary charge-sheet.
13) The law does not mandate taking prior permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even after filing of the charge-sheet is a statutory right of the Police. [vide [PRECEDENT].] The material collected in further investigation cannot be rejected only because it has been filed at the stage of trial. The facts and circumstances show that the trial Court is fully justified to summon witnesses examined in the course of further investigation. It is also clear from [SECTION] of the [ACT] that the prosecution is entitled to produce any person as witness even though such person is not named in the earlier charge-sheet. All those relevant aspects have been taken note of by the learned Magistrate while summoning the witnesses based on supplementary charge-sheet. This was correctly appreciated by the High Court by rightly rejecting the revision. We fully agree with the said conclusion. 14) In the light of the above discussion, we do not find any valid ground for interference, consequently, the appeal fails and the same is dismissed."
Apex Court in the case of [ENTITY] Vs. Irshad Ali @ Deepak & others reported in 2013 (1) JIC 677 has reiterated the same view that as far as Investigating Agency are concerned wide power is vested in the Investigating Agency to conduct further investigation even after filing of report in term of [SECTION] [ACT] and the Investigating Agency is competent to file a supplementary report to its primary report in terms of [SECTION] and the said supplementary report has to be treated by the court in continuation of the primary report. In the said case, Apex Court has been dealing with the authority of the Magistrate, vis-a-vis power to be exercised by the police under [SECTION] of [ACT], in the said direction Apex Court after perusing the provisions of [ACT] as well as the various judgements, came to the conclusion having regard to the power of a Magistrate, in term of [SECTION] and [SECTION] of [ACT] as follows:
"Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of [SECTION] and [SECTION] of the Code :
1. The Magistrate has no power to direct 'reinvestigation' or 'fresh investigation' (de novo) in the case initiated on the basis of a police report.
2. A Magistrate has the power to direct 'further investigation' after filing of a police report in terms of [SECTION] of the Code.
3. The view expressed in (2) above is in conformity with the principle of law stated in [PRECEDENT]'s case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence.
4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of [SECTION] cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of [SECTION] and the language of [SECTION] itself. In fact, such power would have to be read into the language of [SECTION].
5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own.
6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue 'further investigation' and file supplementary chargesheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case."
[ENTITY] (Supra), concedes to this situation that under the [ACT] there is no requirement to take prior permission from the Magistrate concerned by the Investigating Agency but as a matter of propriety, the police has to seek permission of the court to continue further investigation and file supplementary charge sheet and further view has been taken that this approach has been approved by the Apex Court in a number of judgements.
Thus, from the bare reading of the provision as contained under [SECTION] of [ACT], it is clearly reflected that law does not mandate taking of prior permission by the Investigating agency before undertaking exercise of further investigation, as further investigation is nothing but continuance of earlier investigation and only on account of judgement of Apex Court, it has been accepted as procedure of propriety that the police has to seek permission of the court to continue further investigation and file supplementary charge-sheet. By judicial pronouncement such a requirement has been introduced and the reason for introduction of such requirement is that where police desired to make a further investigation, the police could express their regard and respect to the Court by seeking formal permission as mentioned in the case of [ENTITY] (Supra) and in addition to the same the idea of introducing such requirement is that there should be complete co-ordination in between the Court and Investigating Agency, so that complete justice is done, and the concern court is aware of the fact, that in certain direction further investigation is required to be undertaken or under way. The idea is one of cooperation in between investigating agency and adjudicating agency i.e the Court to achieve ultimate goal that the justice should not be defeated by any means.
Now coming to the case in hand, as to whether prayer made for quashing of the order impugned is liable to be accepted only on the ground that prior permission has not been taken from the concern court for carrying out further investigation.
Answer would be "no" for the simple reason that in the present case, this fact has not been disputed that under [SECTION] of [ACT], the Senior Superintendent of Police and Circle Officer are the competent authority to scrutinize the charge-sheet in question and to give further direction for carrying further investigation. [SECTION] provides that where a superior officer has been appointed under [SECTION], the report referred to in [SECTION] has to be submitted through such officer, and he may pending order of Magistrate, direct the officer in charge of police station to make further investigation. In the present case chargesheet has been filed on 08.01.2014 and prior to it, vide letter dated 24.12.2013 the Superintendent of Police had pointed out defect in investigation, and same was followed by subsequent letter dated 25.01.2014 and based on the said letter after taking statements from the witness and complainant, on 29.01.2014 the Circle Officer, clearly opined that superficial investigation has been carried out in the past and element of seriousness has been completely lacking and missing and in the said direction has proceeded to pass order for undertaking further investigation.
A bare perusal of the order dated 30.01.2014 passed by Circle Officer, [ENTITY] would go to show that it is an internal letter written by him addressed to the incumbent who will carry out the investigation and therein conscious of this fact that procedure of proprietary demands that permission from the court concerned is required, it has been mentioned therein that further investigation be carried out after all legal formalities of the court are got fulfilled. Thus, the order that has been so passed by the Circle Officer, [ENTITY] is strictly in consonance with the law and there is no fault in directing further investigation in the matter wherein charge-sheet has already been filed in court and the matter is pending.
Once such is the factual situation that letter dated 30.01.2014 written by Circle Officer, [ENTITY] clearly proceeds to mention that all required legal formalities of the court should be got fulfilled then grievance that has been raised before this Court cannot be entertained as in the entire body of the writ petition specially in paragraph-10, petitioner has proceeded to mention that copy of the order has not been served and vague and evasive statement of facts has been mentioned that concerned police came to the house of the petitioner and petitioner was not present at his house at the said point of time and the neighbour informed regarding act of police then petitioner enquired then he knew impugned order. All these averments have been made only for the purpose of the case .
Once such is the factual situation and it is clearly from the order impugned also that Circle Officer, [ENTITY] himself has asked the investigating Officer to undertake further inquiry after completing all legal formalities of the court and same is clearly reflective of the fact that he should inform the court and seek permission for undertaking further investigation in the matter and in view of this, this Court proceeds to direct that in case till date formal permission in question has not been taken then in that event Investigating Officer should approach the concern court and the concern court on being approached should pass appropriate orders on the same preferably within next three weeks from the date of presentation of certified copy of the order passed by this Court.
With the above direction present writ petition is disposed of.
([ENTITY] J.) ([ENTITY],J.) Order Date :- 11.7.2014 Dhruv