IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.3746 OF 2018 BETWEEN:
MR.ESHAN JOSHI S/O LATE P.C.JOSHI AGED ABOUT 45 YEARS C/O MERCER CONSULTING THE MILLENIA, ULSOOR BANGALORE-560 008 NOW RESIDING AT A-602 PRESTIGE ST. JOHN’S WOOD 80 ST. JOHN’S CROSS ROAD BANGALORE-560 029 ...PETITIONER (BY SRI.V.N.NANDAN, ADVOCATE ) AND:
1. STATE OF KARNATAKA BY STATION HOUSE OFFICER HSR LAYOUT POLICE STATION BANGALORE-560 102 REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA HIGH COURT BUILDING BANGALORE-560 001 2. MRS.SUMAN JOSHI W/O MR.ESHAN JOSHI AGED ABOUT 40 YEARS HOUSE NO.693, SECTOR 20A CHANDIGARH, PUNJAB-147 001 …RESPONDENTS (BY SRI.S.RACHAIAH, HCGP) THIS PETITION IS FILED UNDER SECTION 482 CR.P.C. BY THE ADVOCATE FOR THE PETITIONERS PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO ORDER TO CONDUCT FURTHER INVESTIGATION UNDER SECTION 173 (8) OF CRPC IN C.C.NO.25662/2017 FOR THE OFFENCE P/U/S 384, 385, 386, 389, 420, 506 OF IPC WHICH IS PENDING BEFORE THE VI A.C.M.M., BANGALORE BY A DIFFERENCE POLICE STATION IN A STIPULATE PERIOD OF TIME AND ETC.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner who is the complainant in PCR No.8829/2016 now numbered as C.C.no.25622/17 is before this Court seeking for a direction to the jurisdictional police to further investigate under Section 173(8) of Criminal Procedure Code.
2. I have heard the arguments of Sri.Nandan, learned counsel appearing for the petitioner and Sri Rachaiah, learned HCGP appearing for respondent No.1/State.
3. No notice is issued to respondent No.2 as the petition is being disposed of at the threshold for the reasons indicated herein below.
4. The foundational facts which has led to filing of this petition are:
Marriage between petitioner and respondent No.2 is said to have been solemnized on 20.01.2010 which is later said to have run into rough weather and as a consequence thereof, it has resulted in several disputes between them. The present dispute is one such viz., petitioner/husband filed a complaint under Section 200 Cr.P.C. before the jurisdictional Magistrate against respondent No.2 alleging that she has committed an offence punishable under Sections 420, 384, 385, 386, 389 of IPC. The said complaint came to be referred to the jurisdictional police for investigation under Section 176(3) who registered FIR in Crime No.174/2017 and after investigation charge sheet came to be filed for the offence punishable under Sections 384, 385, 386, 389, 420, 506 IPC.
5. It is the contention of Sri Nandan, learned counsel appearing for petitioner though certain documents were provided to the investigating officer during the course of investigation, he has not considered or taken on record said material and as such, it is just and necessary that further investigation is to be made which would establish the fact of extortion made by the respondent.
6. Per contra, learned HCGP appearing for the State would submit that provision under Section 173(8) does not enable the complainant to seek for a direction to the jurisdictional Court to direct further investigation that too, by a different police station.
7. Having heard the learned advocates appearing for parties and on perusal of the records, it would disclose that charge sheet has already been filed against accused person. Issue regarding further investigation to be undertaken at post cognizance stage is no more res integra. The Hon’ble Apex Court in the case of AMRUTBHAI SHAMBHUBHAI PATEL vs SUMANBHAI KANTIBHAI PATEL AND OTHERS reported in AIR 2017 SC 774 has held that once cognizance is taken and accused persons appears pursuant thereto, Magistrate would be bereft of any competence to direct further investigation either suo motto or acting on request or prayer of complainant/informant on the basis of earlier report. It has been further held directions for investigation by Magistrate under Section 202 Cr.P.C., while dealing with complaint, though is at a post cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceeding initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8). It has been further held:
47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.
49. In contradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the pre-cognizance stage even after a charge- sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the cognizance is taken, accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh (AIR 1985 SC 1285) (supra), the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by the High Court.
8. In the light of aforestated authoritative pronouncement of the Hon’ble Apex Court, prayer of the petitioner cannot be acceded to and as such, it would be open for the learned Magistrate to take such steps as he deems fit keeping in mind the observations of the Hon’ble Apex Court referred to herein above.
With these observations, petition stands disposed off.
SD/-
JUDGE brn