By means of this petition, petitioner is praying to quash the orders dated 01.10.2011 and 11.01.2012 passed by the courts below, whereby an application moved on behalf of the petitioner for addition of an offence in Case Crime no.1203 of 2011 during investigation was rejected by the learned Magistrate and the revision filed against the rejection order was also dismissed.
Petitioner Bhurey is the complainant and in short, at his instance a case at crime no. 1203 of 2011 was registered at Police Station- Sahaswan, District- Badaun against the accused persons namely Raees Ahmad, Wakeel Ahmad, Monu, Tahjeev and Khaleel, who are respondents herein. The accused persons moved an application for their surrender in the aforesaid case before the concerned Magistrate. On the said application, learned Magistrate called for a report from the Police. The Investigating Officer of the case reported back that the aforesaid accused persons were wanted in the aforesaid case under sections 147, 323, 324, 325 of Indian Penal Code, 1860 (hereinafter referred to as IPC). It reflects from the record that before the learned Magistrate would pass necessary orders on the application of the accused persons, the complainant Bhurey moved an application before the Magistrate praying therein that the offence under section 326 of IPC be also added along with aforesaid sections, as one of the injuries caused to him by the assailants accused persons was with a sharp-edged weapon, which fractured his nasal bone. The learned Magistrate declined the prayer of the complainant and rejected the application of the complainant vide his order dated 01.10.2011 and on the application of accused persons, directed that they be taken into custody under sections 147, 323, 324, 325 of IPC. Feeling aggrieved, the complainant preferred a revision before the Sessions Judge, Budaun, which also met the same fate and was dismissed vide order dated 11.01.2012. In this backdrop of the facts, the instant petition has been filed. Both the aforesaid orders dated 01.10.2011 and 11.01.2012 passed by the learned Magistrate and Sessions Judge respectively are impugned in this petition. It is prayed that the learned Magistrate be directed to add the offence under section 326 of IPC also along with the offences mentioned in the report furnished by the Investigating Officer in Case Crime no. 1203 of 2011 under sections 147, 323, 324, 325 of IPC.
It is contended on behalf of the petitioner that in view of the allegation made in the FIR supported by medical evidence, an offence under section 326 of IPC was also made out against the accused/respondents, but the learned Magistrate without applying judicial mind rejected the application moved by the petitioner in mechanical manner causing gross injustice to the cause of the petitioner. It is further contended that the learned revisional court also did not consider the aspect whether jurisdictional power was exercised with material irregularity or not by learned Magistrate and merely suggesting that this question can be raised at so many other stages of enquiry and trial of the case, dismissed the revision. It is further submitted that the effect of both the impugned orders can not be said to be sound and will lead to an unnecessary prolongation to reach the justice, therefore, both the impugned orders are bad in law and are liable to be set aside and as such, this petition is liable to be allowed.
On the other hand, learned A.G.A. submitted that the impugned orders are just and legal and have been passed after due application of mind. Hence, the present petition has no merit and is liable to be dismissed.
I have heard learned counsel for the petitioner, learned A.G.A. and perused the entire record.
On the facts narrated above, a question emerges as to whether the complainant is entitled to move such application during the course of investigation for adding the offence along with offence under other sections? and whether the Magistrate is empowered to consider such an application during the course of investigation?
It may be noticed that Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) does not provide for any provision, under which complainant has any right to file such an application during the course of investigation. It would also be highly against the judicial prudence to allow such application as it will hamper the investigation as every informant will file such applications at different stages of investigation, which in turn will increase unnecessary pendency in both i.e. investigating agency and the courts. Even if, in far stretch of imagination, if it is allowed, then it would amount to directing the investigating agency to investigate a particular offence. If that be the case, then the police officer will have to confine himself to that particular offence as a result of which, if he finds evidence regarding some other offence committed by the accused in the same transaction or different transaction, the investigating authority cannot take into consideration these evidence related to other offence and this will be an obstacle to move further in the investigation and to consider other connecting link, which may involve other offences also. This will also lead to multiplicity of proceedings because one investigation will discover only particular offence, which would be indirect interference by the court in investigation proceedings and would be in direct conflict of the various judgments of the Supreme Court like A.R. Antule Vs. R.S. Nayak (1992) SC; P. Ramachandra Rao Vs. State of Karnataka (2002) SC.
It is well settled that investigation is the sole prerogative of the investigating agency and the Magistrate cannot interfere in the investigation except with some limitations under section 156(3) of Cr.P.C. as provided in Sakiri Vasu Vs. State of U.P., 2008 (1) ACR 4 (SC). In the aforementioned decision, it has been observed as follows:
"Section 156(3) states:
Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.
The words 'as abovementioned' obviously refer to Section 156(1), which contemplates investigation by the officer-in-charge of the Police Station.
Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII, Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same."
Thus under section 156(3) of Cr.P.C., the Magistrate can give the order for fair and effective investigation as it comes under his ancillary and incidental powers to make his orders effective, however, as can be gathered from the above decision, Magistrate cannot give direction in reference to the particular definition of the offence i.e. particular section in the Indian Penal Code or in any special law, as incidental and ancillary powers as explained in Sakiri Vasu Vs. State of U.P. (Supra) do not extend to this level.
Further Magistrate can give order of limited investigation in case of investigation ordered under section 202 of Cr.P.C. i.e. the cases of complaint by Magistrate to remove his doubts whether to issue process or not. Except few such examples, the Magistrate cannot give direction or interfere with the investigation conducted by the investigating agency. It may be pointed out that the Magistrate does not possess inherent powers as possessed by this Court under section 482 of Cr.P.C. and hence they cannot be allowed to interfere in investigation proceedings. However, the complainant may ventilate his grievance before the Magistrate either at the time of framing charge in the case or other stages of enquiry or trial, when the Magistrate is seized with the matter.
In view of above, I am of the considered opinion that the orders impugned dated 01.10.2011 and 11.01.2012 passed by the courts below in the aforesaid case do not suffer from any legal infirmity, illegality or procedural error. The petition lacks merit and is liable to be dismissed.
The petition is accordingly dismissed.
Date: 13.09.2012 N.S. Rathour