Heard Mr. K.S.Rastogi, learned counsel for the petitioner as well as Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State.
This petition under Article 226 of the Constitution of India has been filed by the petitioner challenging the order dated 3rd December, 2010, passed by the Judicial Magistrate, Mohammadi, District Kheri in Case Crime No. 1152 of 2010, under Sections 419, 420 I.P.C., Police Station Mohammadi, District Kheri whereby the Magistrate has permitted allegedly for reinvestigation of the case.
Briefly the facts of the case as set out by the petitioner, are that even after submission of final report, the Investigating Officer submitted an application before the learned Judicial Magistrate, Mohammadi, District Kheri seeking permission for reinvestigation of the case. The learned Magistrate by means of order dated 3rd of December, 2010 permitted so.
Learned counsel for the petitioner Mr.K.S.Rastogi, invited the attention of this court towards Section 173 of the Code of Criminal Procedure and submitted that the Investigating Officer is empowered only to make further investigation and thus he submits that the direction for reinvestigation is not permissible under law. In support of his submission, he cited several decisions, which are referred hereunder:-
(1)K.Chandrasekhar Vs. State of Kerala and others AIR 1998 SC 2001.
(2)Abhinandan Jha & Ors. Versus Dinesh Mishra, AIR 1968 SC 117.
(3)Bhagwant Singh Vs. Commissioner of Police and another reported in (1985) 2 SCC 537.
(4)Ramachandran versus R.Udhayakumar and others reported in (2008) 2 SCC (Cri.) 631.
(5)Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj versus State of A.P.and others reported in (1999) 5 SCC 740.
The provisions of investigation are provided under Section 173 of the Code of Criminal Procedure under the different sub-sections. However, in the context of present case, I am very much concerned about sub-Section (8) of Section 173 of the Code of Criminal Procedure, which reads as under:-
"173.(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 documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (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)."
A mere reading of the above provision makes it clear that irrespective of the report under sub-section (2) forwarded to the Magistrate, if the officer in charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed. The abovesaid provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited.
The Hon'ble Supreme Court in the case of Rama Chaudhary Vs. State of Bihar, reported in (2009) 6 Supreme Court Cases 346, has held that even after submission of police report under Sub-section (2) of Section 173 of the Code of Criminal Procedure on completion of investigation, the police has a right to further investigate the case under Sub-section (8) of Section 173 of the Code of Criminal Procedure. The relevant paragraphs 16, 17, 18 and 22 of the judgment are reproduced herebelow:-
"16. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible.
17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under sub-section (2) on completion of the investigation, the police has a right to "further" investigation under sub-section (8) of Section 173 but not "fresh investigation" or "reinvestigation". "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.
18. Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a "further" report and not a fresh report regarding the "further" evidence obtained during such investigation.
22. 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 police (vide K.Chandrasekhar v. State of Kerala). The material collected in further investigation cannot be rejected only because it has been filed at the stage of the 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 Section 231 Cr.P.C. That the prosecution is entitled to produce any person as witness even though such person is not named in the earlier charge-sheet.
Though, the learned counsel for the petitioner has given much emphasis for direction of re-investigation but keeping in view the facts of the case, it is obvious that after coming some new facts in light relating to the offence, the Investigating Officer sought permission for investigation which is incontinuation of the earlier investigation and the report submitted by him shall be an additional report only.
In the case of Kishan Lal Vs. Dharmendra Bafna and another, reported in (2009) 7 Supreme Court Cases 685, the Hon'ble Supreme Court has expressed the same opinion. The relevant paragraph 16 of the judgment is extracted herebelow:-
"16. The investigating officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to his notice; when certain aspects of the matter had not been considered by him and he found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to his notice. Apart from the aforementioned grounds, the learned Magistrate or the superior courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice. The question, however, is as to whether in a cause of this nature a direction for further investigation would be necessary.
In the case of Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj Vs. State of A.P. and others, reported in (1999) 5 Supreme Court Cases 740, the Hon'ble Supreme Court has held in paragraphs 10 and 11 of the judgment which are being extracted herebelow:-
"10. Power of the police to conduct further investigation, after laying final report, is recognized under Section 173 (8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang V. State (Delhi Admn.). The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation.
11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173 (8) to suggest that the court is obliged to here the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it, we would not burden the Magistrate with such an obligation."
In the case of Reeta Nag Vs. State of West Bengal and others, reported in (2009) 9 Supreme Court Cases 129, the Hon'ble Supreme Court has expressed the opinion in paragraph 25 of the judgment which is being extracted herebelow:-
"25. What emerges from the abovementioned decisions of this Court is that once a charge-sheet is filed under Section 173 (2) CrPC and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authorities permit further investigation under Section 173 (8). The Magistrate cannot suo motu direct a further investigation under Section 173(8) CrPC or direct a reinvestigation into a case on account of the bar of Section 167(2) of the Code.
The same question has been considered by the Hon'ble Supreme Court in the case of State of Andhra Pradesh Vs. A.S. Peter, reported in (2008) 2 Supreme Court Cases 383. The relevant paragraphs 9 and 18 of the judgment are being reproduced hereunder:-
"9. 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 reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not.
18. Reliance placed by the High Court as also by Mr. Rai on K. Chandrasekhar is misplaced. Therein investigation had been carried out by the Central Bureau of Investigation with the consent of the State. However, the State withdrew the same. The question which arose for consideration therein was as to whether it was permissible for the State to do so. The said issue was answered in the negative stating that the investigating officer must be directed to complete the investigation. In the aforementioned situation it was opined: (SCC p 237, para 24).
" 24. From a plain reading of the above section it is evident that even after submission of police report under Section (2) on completion of investigation, the police has a right of 'further' investigation under sub-section(8) but not 'fresh investigation' or 'reinvestigation.' that the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their Notification dated 27.6.1996 that the consent was being withdrawn in public interest to order a 'reinvestigation' of the case by a special team of the State police officers, in the amendatory Notification it made it clear that they wanted in 'further investigation of the case' instead of 'reinvestigation of the case'. 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 envisages 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. Once it is accepted- and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji- that an investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent and that 'further investigation' is a continuation of such investigation which culminates in a further police report under sub-section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State Police, to further investigate into the case. To put it differently, if any further investigation is to be made it is CBI alone which can do so, for it was entrusted to investigate into the case by the Stage government. Resultantly, the Notification issued withdrawing the consent to enable the State Police to further investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the questions, whether Section 21 of the General Clauses Act applies to the consent given under Section 6 of the Act and whether consent given for investigating into Crime No. 246 of 1994 was redundant in view of the general consent earlier given by the State of Kerala".
Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate reminded that this Court had an occasion to deal with the same question in the case of Nandan Singh Bora Vs. State of U.P. and another (Criminal Misc. Case No. 2882 of 2008, under Section 482 Cr.P.C., decided on 18.12.2008), in which the observation of Hon'ble Supreme Court referred in the case of Popular Muthiah Vs. State, reported in 2006 (7) SCC 296 as well as K.Chandrasekhar Vs. State of Kerala and others, reported in AIR 1998 SC, 2001, has been considered and submits that keeping in view the facts of the case, the order for re-investigation issued by the learned Magistrate has been considered as of further investigation.
Similarly, in this case also, the court has issued direction for investigation which is a direction for only further investigation and not for re-investigation of the case. Therefore, I am of the view that the impugned order dated 3rd December, 2010, passed by the Judicial Magistrate, Mohammadi, District Kheri does not suffer from any error and the petition is liable to be dismissed.
The petition is, therefore, dismissed.
Order Dated:25th of February, 2011 Sanjay/