IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51657 of 2007 1. BHIRU KUSHWAHA @ BHRIRUG KUSHWAHA 2. TRILOKI KUSHWAHA 3. GANGA KUSHWAHA ALL SONS OF LATE RAMAVTAR KUSHWAHA 4. DILIP KUSHWAHA SON OF SHYAM SUNDAR KUSHWAHA ALL RESIDENT OF VILLAGE MANJHWARI, P.S. SIMARI, DISTRICT-BUXAR. --PETITIONERS Versus 1. THE STATE OF BIHAR 2. VISHWANATH SAO SON OF LATE SHIV JATAN SAH RESIDENT OF VILLAGE-MAJHWARI, P.S. SIMARI, DISTRICT-BUXAR. --OPPOSITE PARTY FOR THE PETITIONERS : M/S SURAJ NARAIN PD.SINHA & MIRA KUMARI FOR THE STATE : MR. AJOY MISHRA, APP FOR INFORMANT : MR. NITYANAND TIWARY 6 15.04.2010 This is an application seeking quashing of entire proceeding passed in the order dated 10th September, 2007 in G.R. no. 19 of 2006 arising out of Simri P.S. Case no. 2 of 2006 by the learned Chief Judicial Magistrate, Buxar, taking cognizance for the offences under Sections 341, 323, 324, 326, 307 and 504/34 of the Indian Penal Code against the petitioners. The learned counsel for the petitioners, while 2 assailing the impugned order, submitted that initially, after investigation, Police submitted final form in this case. Some time thereafter sought permission for re-investigation but without collecting any material, regarding evidence of any witness or receiving any document, submitted charged sheet in the case whereupon the cognizance has been taken and on this solitary ground alone the entire proceeding is vitiated. It is also contended that there is no material to constitute offences under Sections 304, 324, 326 and 307 of the Indian Penal Code. The learned counsel appearing on behalf of opposite party no.2 and State supported the order and submitted that it was not at all necessary for the Investigating Agency to seek permission for further investigation and after obtaining such permission investigation was commenced, direction of supervising authorities was received, charge sheet was submitted, there is no wrong on the part of Investigating Agency as well as by the Court who, accepting the report of the investigation, took cognizance in the case and other matters may be considered by the trial court at appropriate stage. 3 The facts of the case, as appear from the written application submitted by informant-opposite party to the Police Station concerned, is that on 2nd January, 2006 at about 3.45 P.M., he arrived at his field, found the petitioners no.1, 2 and 3 cutting earth from his field. It was objected, in retaliation the accused persons caught hold of him and assaulted by bat of spade causing bleeding injury adjacent to his left eye and petitioner no.2 uttered to damage his eyes and petitioner no.1 assaulted by fist. It is also stated that two days before petitioner no.4 had threatened to get the informant assaulted. The Police instituted the case and after investigation submitted final form finding the case to be true. Thereafter, vide order dated 01st August, 2006 notice against the informant was ordered to be issued. Before anything could be done on 15th February, 2007 the Investigating Officer filed a petition along with supervision note of Circile Officer, Berhampur, before the court below seeking permission for further investigation. Permission was granted and, thereafter, on 17th July, 2007 charge sheet in this case was submitted for the offences under Sections 341, 323, 324, 326, 307 and 504/34 of the Indian Penal Code against all the 4 petitioners and cognizance was taken. It is undisputed position of law as contemplated under Sub-section (8) of Section 173 of the Code of Criminal Procedure which reads as follows: “Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) 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 sub- sections (2) 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 Sub-section (2).” That Investigating Agency is not precluded from further investigation of the case inspite of earlier submission of report under Sub-section (2) of Section 173 and from obtaining further evidence, oral or documentary, it is mandatory for the Investigating Agency to submit his report along with such collected materials. In the instant case, earlier investigation was continued till paragraph 26 dated 24th June, 2006 and final form no.88 dated 24th June, 2006 finding the case untrue was submitted. Again further investigation continued from 5 paragraph 27 dated 30th April, 2007 and on receipt of wireless message from the Superintendent of Police and obtaining permission from the court below it continued till paragraph 42 dated 30th June, 2007, that is, for two months and on the basis of supervision note and directions of the superiors charge sheet was submitted. Statement of the witnesses were recorded earlier and likewise solitary injured, the informant, was examined by the doctor who submitted injury report, as contained in paragraphs 16 and 17 of the case diary which reads as such: “(1) Cut injury near inner cauttey of LT eye 1”x ½” x skin deep (2) Ecchymosis over bridge of nose. (3) Ecchymosis in occipital area (2” x 2”) (4) Ecchymosis on Rt. Side of back in 2” x 2” Area OPD No. 04 dt. 2.1.06 time 5.25 P.M. Injury (1) X-ray skull A.P. lateral Opinion (1) Sharp cut injury near inner cauthing Of (LT) eye. (2) evidence of blunt injury (3) final report after X-ray report.” On receipt of X-ray report the Doctor has further opined that : “X-ray Plate (signed by me) show a trivial breach Of bone (Lt orbital area) represented by arrow on the film suggesting Lt orbit which exhibits grievous nature of injury. Nature of injury – Grievous.” 6 It is to be noticed that compliance of the provision as contemplated under Section 173 Sub-section (8) of the Code of Criminal Procedure has already been done by observing direction of the superiors. It is not necessary to record statement of any other witness by way of documentary evidence there is supervision note of the superiors. Every thing was submitted along with charge sheet before the court below and now it was his turn to do what the law requires. On submission of final form / charge sheet by the Investigating Agency it is open for the court, having power to take cognizance, to examine the materials so collected during investigation and, thereafter, either to accept or reject the conclusion of the Investigating Agency by a reasoned order. In the instant case, initially final form, finding the case false, was submitted. Accordingly, the informant was ordered to be noticed for hearing. In the meantime, further investigation commenced and charge sheet was submitted. Learned Chief Judicial Magistrate was to pass appropriate order considering the materials so collected. The allegation, as leveled in the complaint petition, is with respect 7 to use of bat of spade to assault the informant causing one single injury near his left eye. The edged portion of the weapon was not used further inspite of utterances to cause harm to the eyes by means of fist informant was further assaulted. Injury no.1 was, in the opinion of Doctor, grievous in nature. All such materials could have been noticed and considered by the court below at the time of taking cognizance but the petitioner shall have opportunity to raise all such matters at the time of hearing on the point of charge before the trial court where, after hearing the parties, appropriate order may be passed. Taking into consideration all such aspects, the application stands disposed of with the liberty and observation made above. (Akhilesh Chandra, J.) AAhmad