Criminal Misc. No.M-14188 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-14188 of 2010 (O&M) Date of decision: 5.8.2010 Charanjit Singh ......Petitioner Versus State of Punjab .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.D.S.Pheruman, Advocate, for the petitioner. **** SABINA, J. This petition has been filed under Section 482 of the Code of Criminal Procedure (Cr.P.C. for short) for quashing of the commitment order dated 8.7.2009 (Annexure P-9), order dated 8.7.2009 (Annexure P-8), whereby the application of the petitioner under Section 169 Cr.P.C. has been dismissed, passed by the Additional Chief Judicial Magistrate, Hoshiarpur in FIR No. 65 dated 5.3.2009, under Sections 302/ 34/ 120-B of the Indian Penal Code read with Sections 25 and 27 of the Arms Act, 1959 at Police Station Sadar Hoshiarpur and further to quash the order dated 2.4.2010 Criminal Misc. No.M-14188 of 2010 (O&M) 2 (Annexure P-10) for framing charge and further to quash the charge sheet dated 2.4.2010 (Annexure P-11). Learned counsel for the petitioner has vehemently argued that the Additional Chief Judicial Magistrate had erred in dismissing the application moved by the prosecution for discharging the petitioner and by committing the case to the Court of Sessions for trial. Learned Additional Sessions Judge had further erred in framing charge against the petitioner. Although challan was presented against the petitioner but in further investigation, it was found that the petitioner was innocent and a supplementary challan was presented whereby the petitioner was placed in column No.2. No prior permission was required from the Court for conducting further investigation. In support of his arguments, learned counsel for the petitioner has placed reliance on Ramachandran vs. R.Udhayakumar and others 2008 (3) RCR (Criminal) 47, wherein in para 6, it was held as under:- “At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8) but not fresh investigation or re- investigation. This was highlighted by this Court in K.Chandrasekhar vs. State of Kerala and others, 1998 Criminal Misc. No.M-14188 of 2010 (O&M) 3 (2) RCR (Criminal) 719, it was, inter alia, observed as follows: “The dictionary meaning of “further” (when used as an adjective) is “additional; more; 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. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisage that on completion of further investigation the investigating agency has to forward to the Magistrate a “further” report or reports and not fresh report or reports- regarding the “further” evidence obtained during such investigation.” Learned counsel has further placed reliance on Rama Chaudahry v. State of Bihar 2009 (6)SCC346, wherein in para 13, it was held as under:- “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 Criminal Misc. No.M-14188 of 2010 (O&M) 4 Police. [vide K. Chandrasekhar v. State of Kerala and others,1998 5 SCC 223]. 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 Sec. 231 of the Code of Criminal Procedure 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.” Learned counsel has next placed reliance on Abhinandan Jha Versus Dinesh Mishra 1967 (0) AIJ-SC 409, wherein in para Nos. 17 and 18, it was held as under:- “We have to approach the question, arising for consideration in this case, in the light of the circumstances pointed out above. We have already referred to the scheme of Chapter XIV, as well as the observations of this Court in Rishbud and Inder Singh's Case, that the formation of the opinion as to whether or Criminal Misc. No.M-14188 of 2010 (O&M) 5 not there is a base to place the accused on trial before a Magistrate, is left to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, u/s 190(1) of the Code. That provision in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, u/s 190(1) (c), on the ground that, after having due regard to the final Criminal Misc. No.M-14188 of 2010 (O&M) 6 report and the police records placed before him, he has reason to suspect that an offence has been committed. Therefore, these circumstance will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to place the accused for trial, is that of the Officer in- charge of the police station and that opinion determines whether the report is to be u/s 170, being a 'chargesheet', or u/s 169, 'a final report'. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet, because the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. That will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report either u/s 169, or u/s 170, depending upon the Criminal Misc. No.M-14188 of 2010 (O&M) 7 nature of the decision. Such a function has been left to the police under the Code.” “We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority.” Learned counsel has next placed reliance on Zahira Habibulla H. Sheikh and Anr. V. State of Gujarat and Ors 2004(4) SCC 158, wherein in para 79, it was held as under:- “Sub-section (8) of Section 173 of the Code permits further investigation, and even de hors any direction from the Court as such, it is open to conduct proper investigation, even after the Court took Cognizance of any offence on the strength of a police report earlier submitted.” Learned counsel has further placed reliance on State of Criminal Misc. No.M-14188 of 2010 (O&M) 8 A.P. v. A.S. Peter 2008(3) RCR (Criminal) 131, wherein in para 5, it was held as under:- “Indisputably, the law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out of a further investigation even after filing of the charge-sheet is a statutory right of the police. A distinction also exists between further investigation and re-investigation. Whereas re- investigation without prior permission is necessarily forbidden, further investigation is not.” After going through the above judgments, the legal position that emerges is that under Section 173 (8) Cr.P.C., the investigating agency can further investigate the matter but cannot re- investigate or conduct fresh investigation. The present case is to be examined in this perspective as to whether the investigation carried out by the investigating agency, after presentation of challan, would amount to fresh investigation or further investigation. Admittedly, in the present case, the challan was presented against the petitioner and his co-accused and thereafter during the pendency of the challan a supplementary challan was presented by the prosecution, wherein the petitioner was kept in column No.2. Prosecution moved an application under Section 169 Cr.P.C. for discharge/release of the petitioner from the police custody. Criminal Misc. No.M-14188 of 2010 (O&M) 9 Section 169 Cr.P.C. reads as under:- Release of accused when evidence deficient:- If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.” Section 173 Cr.P.C. reads as under:- 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 Criminal Misc. No.M-14188 of 2010 (O&M) 10 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 170. (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 158, 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 Criminal Misc. No.M-14188 of 2010 (O&M) 11 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 170 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 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interest 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). Criminal Misc. No.M-14188 of 2010 (O&M) 12 (8) 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).” Thus, in case during investigation, it appears that there is no evidence against an accused, an application may be moved by the prosecution for release of the said accused from custody. As per Section 173 (8), the investigating agency can further investigate the matter after a report has been submitted under sub Section (2) to the Magistrate. The officer incharge shall forward to the Magistrate a further report regarding such evidence collected by him. Thus the investigating agency can only further investigate the matter but cannot conduct fresh investigation or re-investigation. The earlier investigation cannot be wiped out. In the present case, after completion of investigation, challan was presented against the petitioner and his co-accused and after a gap of about one month, supplementary challan has been presented whereby the petitioner Criminal Misc. No.M-14188 of 2010 (O&M) 13 has been shown in column No.2. The supplementary challan has been submitted on the basis of virtually fresh investigation. While doing so, the earlier investigation wherein recoveries were effected from the petitioner has been wiped out. In these circumstances, learned Sessions Judge rightly held that charge was liable to be framed against the accused. At this stage learned Sessions Judge was only required to see as to whether prima facie case was made out against the petitioner or not. Merely because in a later investigation, the petitioner has been found innocent does not lead to the inference that the earlier investigation conducted by the investigating agency had been wiped out. In these circumstances, the fresh investigation conducted by the investigating agency without the permission of the Court has been rightly ignored by the Courts below. Hence, no ground for interference by this Court is made out. The judgments relied upon by learned counsel for the petitioner fail to advance the case of the petitioner. Accordingly, this petition is dismissed. (SABINA) JUDGE August 05, 2010 anita