Criminal Miscellaneous No.6462 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure --------------- 1. Era Surekha daughter of Devi Dayal Sureka @ Devi Dutt Sureka 2. Deepak Surekha @ Deepak Kayal son of Devi Dutta Sureka @ Devi Dayal Sureka 3. Devi Dutta Sureka @ Devi Dayal Sureka Son of Ghanpat Rayji Sureka @ Ghanpat Rayji Kayal 4. Motilal Kayal Sureka @ Moti Lal Kayal son of Late Laxmi Narayan Sureka All are residents of T.R. Phukan Road, Fancy Bazar, Guwahati, Assam ------------ Petitioners Versus 1. THE STATE OF BIHAR 2. Baleshwar Mandal S/O Sitaram Mandal, Waiter of Hotel Satkar, Frazer Road,Patna 3. Mr. Ravi Shankar Sharma S/O Late Bhaskar Sharma, Village- Geeta Art Press, H.B.Road , Fancy Bazar, P.S. Para Bazar, District- Kamrup ,Guwahati ( Assam) ------------- Opp.Parties. ---------------- For the petitioners: S/ Sri Shrawan Kumar, Sr.Advocate Satish Kumar Singh, Advocate For the State: Mr. A.M.P.Mehta, A.P.P. ------------------- P R E S E N T THE HON'BLE SHRI JUSTICE RAKESH KUMAR Rakesh Kumar, J In a room of Hotel ‘Satkar’ on 19.5.1997 a murder had taken place. Accordingly, an F.I.R. vide Kotwali P.S. Case No.169 of 1997 was registered against two named accused persons, namely Purshottam Kumar Singh and Rakesh Kumar Agrawal. In the said case after investigation, the police submitted interim chargesheet on 14.8.1997 against the two accused persons and further investigation was kept pending. On the same date, the 2 learned Magistrate took cognizance of offences and subsequently on 20.9.1997, the case of two accused persons were committed to the court of Sessions. Sri Shrawan Kumar learned Senior Counsel for the petitioners has submitted that the second chargesheet was submitted on 20.5.1998 and thereafter investigation by the police was closed. 2. Four petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 26.2.1999 passed by the learned Chief Judicial Magistrate. By the said order, the learned Magistrate had directed for issuance of warrant of arrest against the petitioners on the request of the Investigating Officer of Kotwali P.S. Case No.169 of 1997. After issuance of warrant of arrest, it appears that the petitioners appeared before a Magistrate Court in the State of Gauhati for grant of bail, but the petitioners were taken into custody and remanded to jail custody. Thereafter the petitioners approached Gauhati High Court and the Gauhati High Court by its order dated 11.3.1999 passed in Cr.Revision No.106 of 1999 granted conditional bail to the accused petitioners only up to 31.3.1999. It was further directed by the Gauhati High Court that after release on bail, the petitioner shall appear before the Chief Judicial Magistrate (Patna) on or before 31.3.1999. The order of Gauhati High Court has been annexed as Annexure-3, which is at pages 31-37 of the present petition. After getting the conditional bail, the 3 petitioners instead of appearing before the Chief Judicial Magistrate, Patna in compliance with the order of Gauhati High Court chose to invoke the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure and a petition was filed on 30.3.1999 and on 31.3.1999, the petition was heard under the heading for admission. At the time of admission, it was submitted on behalf of the petitioners that the case having been committed to the court of Sessions on 20.9.1997, the Chief Judicial Magistrate had no jurisdiction to issue process against the petitioners. It was further submitted that after the case was committed to the court of Sessions, it was only the sessions Court which could have summoned the petitioners ,who were not sent up for trial under Section 319 of the Code of Criminal Procedure. On the submissions made on behalf of the petitioners, this Court by its order dated 31.3.1999 passed an order for issuance of notice to Opp.Party no.2 and it was directed that till further orders the execution of process issued by the Chief Judicial Magistrate,Patna vide order dated 26.2.1999 in connection with Kotwali P.S. Case No.169 of 1997 shall remain stayed. Subsequently, on 2.3.2000 this case was admitted for hearing and it was observed that pending disposal of this application, operation of order dated 26.2.1999 passed by the Chief Judicial Magistrate, Patna in Kotwali P.S. Case No.169 of 1997/ G.R.No.1813 of 1997 so far petitioners are concerned shall remain stayed and order of stay is still continuing. 4 3. Learned Senior Counsel appearing on behalf of the petitioners at the time of hearing of this petition has produced a copy of the Judgment dated 21.7.2003 passed in Sessions Trial No.1013 of 1997, whereby two accused persons, who were earlier put on trial, namely, Purshottam Kumar Singh and Rakesh Agrawal were acquitted by the trial court. It has also been submitted that two witnesses, namely, Ravi Kumar Sharma and Smt. Uma Devi were examined on behalf of the prosecution. He submits that though the case was pending for trial in respect of the two accused persons, two witnesses were examined by the Kotwali Police and the police got their statements recorded under Section 164 of the Code of Criminal Procedure and on such statements the police approached the court of the learned Chief Judicial Magistrate for issuance of warrant of arrest against the petitioners. 4. Learned Senior Counsel for the petitioners has further submitted that had there been any materials available before the said two witnesses, they would have stated and deposed during the trial of two accused persons and, thereafter, the prosecution was having ample opportunity to make a prayer to summoning these petitioners under Section 319 of the Code of Criminal Procedure. He submits that on the basis of same evidence, the police was not authorized to further investigate the case. 5. It may be indicated that though at the initial stage of admission, the ground was taken that the Chief Judicial 5 Magistrate had got no authority to pass order for issuance of warrant of arrest against the petitioners when the case was already committed to the court of Sessions in respect of other accused persons. Learned senior counsel at the time of hearing of this petition left his earlier submission and now he has confined his argument on the basis of judgment of acquittal passed in favour of two accused persons, who were acquitted by the trial court. He has further submitted that the present proceeding has been initiated without any legitimate purpose and no purpose would be served by allowing the police to further investigate the case. He submits that only with a view to prolong the proceeding, the police had taken the step for further investigation of the case. He also submits that after the Judgment of acquittal of two accused persons now nothing survives to be inquired into. He has further submitted that whatever situation was already available on the day one of the registration of the F.I.R. in the present case there is no change in the situation and he submits that this amounts to abuse of the process of the court, which should be prevented, while exercising power under Section 482 of the Code of Criminal Procedure. On these ground, he has prayed for quashing of the proceeding against these petitioners. 6. Sri A.M.P.Mehta, learned counsel appearing on behalf of the State has opposed the prayer of the petitioners and submits that the order, which was challenged in the present petition ,i.e. order dated 26.2.1999, was passed by the learned 6 Chief Judicial Magistrate, while the police was investigating the case. He further submits that merely by way of passing an order for issuance of process against the accused persons, it cannot be termed as a proceeding pending before the concerned court. He submits that it was a purely an investigation and during the investigation on the prayer made by the Investigating Officer on the basis of materials collected during further investigation ,the learned Magistrate has passed an order for issuance of process. He further submits that in view of Section 173 (8) of the Code of Criminal Procedure, the police even after closure of the investigation was fully entitled to further investigate the case. He further submits that the Judgment of acquittal passed in favour of two accused persons has got no relevance in the facts and circumstances of the present case and on this ground he has made a prayer to reject the petition outright. 7. I have examined the materials available on the record. In this case after investigation, as submitted by the learned counsel for the petitioners, police had submitted second chargesheet on 25.9.1998 and the investigation was closed. It is evident from the materials available on record of the case that after collecting further evidence, the police started further investigation of the case and during further investigation , police got the statements of two witnesses recorded under Section 164 of the Code of Criminal Procedure and for the purpose of doing complete investigation, the police approached the learned Chief 7 Judicial Magistrate for issuance of warrant of arrest against the accused persons, i.e. petitioners . The learned Chief Judicial Magistrate, on the basis of application of the Investigating Officer, by its order dated 26.2.1999 passed an order for issuance of warrant of arrest. So far issuance of warrant of arrest in the present case is concerned, the order has been passed in accordance with law under the provisions contained in the Code of Criminal Procedure and during further investigation after collecting some materials, a prayer was made by the police. So far as right of investigation by a police is concerned, I am of the view that the power of police to further investigate the case is unbridled, the same cannot be interfered with, save and except in exceptional and rarest or rare cases. So far as the power to further investigate the case is concerned, after amendment of Section 173(8) in the new Code, the same has been set at rest. The police under Section 173(8) of the Code of Criminal Procedure is fully competent to further investigate the case. In the present case, during further investigation, the Investigating Officer has requested the learned Chief Judicial Magistrate for issuance of process and, as such, neither the Investigating Officer has committed any error nor has the learned Chief Judicial Magistrate committed error in passing the order for issuance of warrant of arrest. So far as the ground taken by Sri Kumar, learned Senior Counsel for the petitioners that after the judgment of acquittal , nothing remains further to proceed with the case is concerned, I am of the view that the same 8 submission is completely misconceived and the same is liable to be turned down, particularly in view of the fact that the further investigation was taken up by the Investigating Officer long back and what materials would be collected by the Investigating Officer during investigation, one cannot predict. In this case on 26.2.1999 impugned order for issuance of warrant of arrest was passed, however judgment of acquittal in respect of other two accused was passed on 21.7.2003. It will be dependent on the basis of investigation of a case. Similarly, the submission of Sri Kumar , learned Senior Counsel for the petitioners that whatever materials was available on day one of the registration of the F.I.R. is continuing till date is concerned, I am of the view that the same cannot be examined by this Court in a case where the investigation is going on. 8. Similarly, so far as the submission of the learned senior counsel for the petitioners that further proceeding against the petitioners may be quashed is concerned, I am of the view that when the investigation is going on and no further chargesheet has been submitted pursuant to further investigation, it cannot be said that any proceeding is pending before the court below. In absence of pendency of any proceeding before the court below it would not be appropriate for this Court to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure. Moreover, in absence of any proceeding before the court below the argument of learned Senior Counsel for the petitioner that to prevent the abuse 9 of the process of the court, this Court may intervene into the matter, I am of the view that since there is no proceeding before the court below, there is no question for intervening to prevent an abuse of the process of the court. 9. In view of the facts and circumstances mentioned herein above, I am of the view that the petition is devoid of any merit and is liable to be rejected. This petition stands rejected. 10. In view of rejection of the present petition, the interim order of stay stands automatically vacated. Let a copy of this order be sent to the court below forthwith. Patna High Court,Patna Dated : the 13th April,2010 Nawal Kishore Singh/N.A.F.R. ( Rakesh Kumar, J )