IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Restoration Application No. 194 / 2010 In Crl. Misc. Application No. 338 of 2003 1. Mohan Singh Dosad S/o Guman Singh 2. Krishna Singh S/o Ratan Singh Both R/o Patwari Area Chani Thana Someshwar, District Almora. ...…………. Petitioners / applicants Versus State of Uttaranchal ...…………. Respondent Mr. B.S. Adhikari, Advocate for the petitioners / applicants. Mr. M.A. Khan, Brief Holder present for the respondent State. Hon’ble Prafulla C. Pant, J. This is Restoration Application MCRC No. 194 of 2010, for restoration of Criminal Misc. Application (C- 2 482) No. 338 of 2003, which was dismissed for non- prosecution on 27.03.2010. 2) Heard, and perused the affidavit accompanying the application, wherein absence has sufficiently been explained for the absence on the date fixed. 3) Therefore, in view of the principle of law laid down in Madhumilan Syntex Limited and others Vs. Union of India and another, 2007 A.I.R. S.C.W. 1971, the restoration application is allowed, on the condition that the petitioner shall argue the petition under Section 482 of the Code of Criminal Procedure, 1973 (for brevity hereinafter referred as Cr.P.C.), today itself. The application is allowed on above condition, and Criminal Misc. Application (C-482) No. 338 of 2003, is restored to its original number. 4) Heard learned counsel for the parties on the petition. 5) Learned counsel for the petitioners submitted that on the first information report No. 04 of 2000, lodged against the petitioners Mohan Singh, Krishna Singh and Chandra Singh, the Investigating Officer (Patwari Kausani) filed final report on 24.11.2000. Said report was sent to the court of the Chief Judicial Magistrate, Bageshwar, through Assistant Prosecuting Officer. It is pleaded on behalf of the petitioners that Asstt. 3 Prosecuting Officer, at his end, sent back the final report and directed the Investigating Officer to file the charge sheet. Consequently, the Investigating Officer has filed the impugned charge sheet (Annexure –6 to the petition) against the petitioners in respect of offences punishable under Section 323, 504 of I.P.C. It is pertinent to mention here what has been mentioned in the charge sheet by the Investigating Officer. The same reads as under: “egksn;] fnaukd 03-10-2000 dks Jh y{e.k flag lroky us ,d fjiksZV is’k dh ftlesa esjs iwoZ vf/kdkjh }kjk vuqla/kku dj vfUre fjiksZV izf"kRk dh x;h Fkh ftlesa lgk0 vfHk0 vf/kdkjh egksn; ckxs’oj ds vkns’k fna 22-a11-2001 ds vuqlkj ekeys ds vfHk;qDr eksgu flag o d`".k flag ds foijhr /kkjk 323@504 ds rgr vkjksi Ik= izsf"kr fd;k tkrk gS fuosnu gS fd lcwr ryc dj lqudj vfHk;qDrx.kksa dks nf.Mr djus dh d`ik dh tk;A Sd./-” 6) The aforesaid endorsement made by the Investigating Officer does not disclose whether new material was collected or not by the Investigating Officer before filing the charge sheet. Apart from this, in view of principle of law laid down in R Sarala Vs. T.S. Velu and others, 2000 CRI. L. J. 2453 (S.C.), the Apex court has held that investigation and prosecution are two different facets in the administration of criminal justice. The role of Public Prosecutor is inside the 4 Court, whereas investigation is outside the Court. Normally the role of Public Prosecutor commences after investigating agency presents the case in the Court on culmination of investigation. The Apex court has further taken the view that involvement of the Public Prosecutor in investigation in unjudicious. In Para 10 of the aforesaid judgment, the Apex court has observed: “Section 173(1) casts an obligation for completing the investigation without unnecessary delay and sub- section (2) enjoins on the officer-in-charge of the police station to forward to the Magistrate a report in the form prescribed by the State Government, on completion of such investigation. The aforesaid power of the officer-in-charge of the police station is subjected only to the supervision of superior police officers in rank as envisaged in Section 36 of the Code. There is no stage during which the investigating Officer is legally obliged to take the opinion of a Public Prosecutor or any authority, except the aforesaid superior police officer in rank.” 7) In view of the above observation, filing of impugned charge sheet, merely on the asking of the Public Prosecutor, is erroneous in law, and such charge sheet is liable to be quashed. 8) Therefore, the petition under Section 482 of Cr.P.C. is allowed. The proceedings of impugned 5 Criminal Case No. 441 of 2003, State Vs. Mohan Singh and another (arisen out of charge sheet No. 01 of 2001), relating to offences punishable under Section 323, 504 of I.P.C., pending in the court of Chief Judicial Magistrate, Bageshwar, are hereby quashed. (Prafulla C. Pant, J.) Dt. April 06, 2010. H. Negi