Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri I.K. Chaturvedi, learned counsel for the petitioner, Sri D.R. Chaudhary, learned counsel for respondent no.5 and learned Additional Government Advocate for the State-respondents.
Petitioner, before this Court, seeks quashing of the order dated 6th May, 2014 passed by the Senior Superintendent of Police, Jhansi with reference to the letter of the Deputy Inspector General of Police, Jhansi Range, Jhansi dated 22nd April, 2014, where-under the Circle Officer, Moth, Jhansi, Sri Avinash Kumar Gautam, has been directed to conduct further investigation of Case Crime No. 374 of 2013, under Sections 387, 323, 504 and 506 of the Indian Police Code, Police Station-Prem Nagar, District Jhansi and to submit his report before the Superintendent of Police.
Facts on record of this petition are as follows:
Petitioner lodged a first information report against Dinesh Gautam i.e. respondent no.5 and two other unknown persons on 31st October, 2013 at Police Station-Prem Nagar, District Jhansi being Case Crime No. 374 of 2013, under Sections 387, 323, 504 and 506 of the Indian Penal Code.
It is the case of the petitioner that he was manhandled on 25th October, 2013 by respondent no.5 and two other accused. He suffered injuries. He was medically examined by the Emergency Medical Officer of M.L.B. Medical College Hospital, Jhansi on 25th October, 2013 and the medical examination report mentioned that the petitioner has received five injuries. The petitioner supported his case with his statement under Section 161 of the Code of Criminal Procedure. The prosecution story was also supported by the statement of Saurabh Rai, Tejendar Rathaur and the affidavits of independent persons. The Investigating Officer, after completion of the investigation, submitted a charge-sheet with the Magistrate concerned. The Chief Judicial Magistrate, after taking cognizance, issued summon on 28th March, 2014 requiring the presence of respondent no.5 on 2nd April, 2014. Despite service of summons, respondent no.5 did not respond. Consequently, the Magistrate issued bailable warrant for ensuring his presence on 9th April, 2014.
Respondent no.5 filed an application under Section 482 of the Code of Criminal Procedure for quashing of the charge-sheet and the entire proceedings of Criminal Case No. 2147 of 2014 arising out of Case Crime No. 374 of 2013, referred to above being Criminal Misc. Application No. 19186 of 2014. The High Court, vide order dated 26th May, 2014, refused the prayer for quashing of the proceedings as well as the charge-sheet, which had been submitted and directed respondent no.5 to surrender and seek bail within 45 days from the date of the order. The Court further recorded that if respondent no.5 does not respond to the directions issued, it shall be open to the police authorities to take coercive action, as required under law.
In between what has happened is that on 3rd January, 2014, the Deputy Inspector General of Police passed an order referring to the complaints received from respondent no.5, which were much prior to the submission of the charge-sheet before the competent court and directed that a fresh report may be obtained from Rajesh Kumar, Circle Officer, Tehroli, who was a gazetted officer, in the matter. Sri Rajesh Kumar submitted his report on 13th February, 2014 pointing out certain facts, which are alleged to have been taken note off by the Investigating Officer, while submitting the charge-sheet. On the report of Sri Rajesh Kumar, the Deputy Inspector General of Police wrote a letter to the Senior Superintendent of Police dated 22nd April, 2014 for issuing orders for further investigation in exercise of power under Section 173 (8) of the Code of Criminal Procedure and for report being submitted in this regard within seven days. It is with reference to this order of the Deputy Inspector General Police that the Senior Superintendent of Police has issued the order on 6th May, 2014. This order does not make mention of the proceedings, which had taken place, before the Magistrate concerned, subsequent to the submission of the charge-sheet, namely, taking of the cognizance, summoning of the accused and issuance of the bailable warrant as well as the order passed by the High Court on the application filed by respondent no.5.
This Court vide order dated 23rd May, 2014 required the Deputy Inspector General of Police and the Senior Superintendent of Police to file their respective affidavits disclosing the reasons and the material on which the order impugned had been made.
An affidavit has been filed by the Deputy Inspector General of Police, Jhansi Range, Jhansi, wherein it has been stated that further investigation was directed on the basis of several complaints, for maintaining transparency in the investigation. Reference may be made to paragraph-7 of the affidavit filed by respondent no.2.
In paragraph-8 of the said affidavit, it has been stated that the learned Magistrate was apprised of the need for further investigation vide communication dated 12th May, 2014. It is not his case that formal permission from the Magistrate was asked for, for further investigation in the matter.
What we find from the document, which is said to be information to the Magistrate concerned about need for further investigation that the same is a letter written by the Circle Officer, Sri Avinash Kumar Gautam to the Chief Judicial Magistrate, Court No. 10, Jhansi to the effect that further investigation has been directed under Section 173 (8) of the Code of Criminal Procedure by the Senior Superintendent of Police, Jhansi under his order dated 6th May, 2014 and thereafter the relevant records including Case Diary, Medical Report, Naksha Najri and charge-sheet, may be provided to the under signed.
The endorsement on the letter reflects that it was submitted on 13th March, 2014 before the Magistrate. An order was passed on the same date to the effect that photocopy of the records, charge-sheet along with the other documents may be made available in accordance with the rules. The last endorsement dated 14th May, 2014 on the same application reads as under :-
"Sir, vkjkasi i= RW 27/8.5.2014 ds lkFk Hkstk x;k gSA fjiksVZ lknj izsf"kr gSA SD 14.5.2014"
From the aforesaid, it is apparent that the relevant documents, which were required for further investigation by the Circle Officer were made available to him on 14th May, 2014 itself and not on any date prior to it.
It is the case of the Deputy Inspector General of Police himself that further investigation report was submitted by the same Circle Officer on 14th may, 2014, which in our opinion, is an impossibility, except when the report had been prepared, even prior to the receipt of the charge-sheet and other documents from the Court of the Magistrate concerned.
We have no hesitation to record that practically no permission was applied for or obtained for further investigation from the Court of the Magistrate concerned by the police authorities before submitting the police report of further investigation dated 14th May, 2014.
Sri D.R. Chaudhary, learned counsel for respondent no.5 and the Additional Government Advocate, supporting the action taken by the police authorities, submitted that Section 173 (8) of the Code of Criminal Procedure does not mandate taking of prior permission from the Magistrate for further investigation, even in cases, where the Court has taken cognizance of an offence on the basis of police report submitted earlier. For the purpose, they have placed reliance upon the judgements of the Apex Court in the cases of (a) State of Andhra Pradesh vs. A.S. Peter reported in (2008) 2 SCC 383, paragraph-6, (b) Hasanbhai Valibhai Qureshi vs. State of Gujarat reported in 2004 (4) J.T. 305, paragraph-6,(c) Rama Chaudhary vs. State of Bihar reported in AIR 2009 SC 2308, and (d) Ram Lal Narang vs. State (Delhi Administration) reported in AIR 1979 SC 1791.
They further submit that it is the duty of the superior police officers to ensure fair investigation and further that it is a right of the accused also of have a fair investigation.
For the aforesaid submission, they relied upon the judgements of the Apex Court in the case of Hasanbhai Valibhai Qureshi (supra), in the case of State of West Bengal vs. Committee For Protection of Domestic Rights, reported in 2010 (68) ACC 985 and in the case of R.N. Mishra vs. State of U.P. reported in 2011 Crl. Law Journal 4579.
At the very outset we may record that the exhausted power of superior police officers to direct further investigation is not even after cognizance has been taken by the Magistrate concerned, and the law in that regard has been settled by the Apex Court in the case of State of Andhra Pradesh vs. A.S. Peter (Supra), which has been so heavily relied upon by the learned counsels for the respondents, but the availability of the power is one thing and there being material facts for exercise of such powers and the procedure prescribed for such exercise of powers being adopted is the other issue.
The Apex Court in the case of State of Andhra Pradesh vs. A.S. Peter (supra) itself had taken note of the judgement in the case of Ram Lal Narang (Supra) specifically paragraphs-20 and 21, which have been quoted with approval in paragraphs 14 and 15 of the judgement in the case of State of Andhra Pradesh vs. A.S. Peter (Supra), and read as follows:
"14. In Ram Lal Narang this Court was concerned with a case where two conspiracies were alleged; one being part of a larger conspiracy. Two investigations were carried out. This Court, while opining that further investigation is permissible in law, held that the Magistrate has a discretion in the matter to direct further investigation, even if he had taken cognizance of the offence, stating : (SCC pp. 337-38, para 20) " 20. ......... The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.".........."
"15. While acknowledging the power of the police authorities to carry out further investigation in terms of Section 173 of the Code of Criminal Procedure, an observation was made therein to the following effect: (Narang case, SCC p. 338, para 21) "21. ... In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation." ....."
It is in the aforesaid legal background that the Apex Court in paragraph-17 of the judgement in the case of State of Andhra Pradesh vs. A.S. Peter (supra) proceeded to hold that permission for further investigation was granted by necessary implications by the Magistrate.
Therefore, in our opinion it is well established that once the Magistrate has taken cognizance of an offence on the basis of a police report submitted earlier and the police does desire on certain fresh information coming to light to conduct further investigation, the minimum required is that the police should express their regard and respect for the Court by seeking its formal permission to make further investigation.
In the facts of the present case, the situation is worst. Respondent no.5 had not only challenged the police report and the charge-sheet submitted earlier before the Magistrate concerned by filing an application before the High Court under Section 482 of the Code of Civil Procedure referred to above and the said application was rejected, he had further not responded to the warrants, which had been issued by the Magistrate concerned. In fact, it was on the complaints of respondent no.5 that the Deputy Inspector General of Police has chosen to exercise his powers for directing further investigation and not on any fresh facts having come to its knowledge after submission of police report under Section 173 (2) of the Code of Criminal Procedure. It is further clear from the facts on record that police report after further investigation had been submitted on the very date the charge-sheet and other documents were provided to the police officer by the Court of Magistrate i.e. on 14th May, 2014, which in itself is sufficient to establish that there has been misuse of powers in name of further investigation at the hands of the police authority concerned.
We may also refer to the judgement of the Apex Court in the case of Vineet Narain And Others vs. Union of India And Another reported in (1996) 2 SCC 199, where-under in paragraph-5 it has laid down as follows:
"5. In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with law."
We may also refer to the judgement of the Apex Court in the case of Narmada Bai vs. State of Gujarat & Others reported in (2011) 5 SCC 79. In paragraph-68 of the said judgement the Apex Court after referring to the judgements in the case of Vineet Narain (Supra) and in the case of Union of India vs. Sushil Kumar Modi reported (1998) 8 SCC 661, has laid down as follows:
"68. ........................
By relying on the decision in Vineet Narain Case, this Court reiterated that once a charge-sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making CBI and other investigating agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused, including mattes falling within the scope of Section 173 (8) of the Code. "
We may also refer to the judgement of the Apex Court in the case of Professor K.V. Rajendran vs. Superintendent of Police, CBCID South Zone, Chennai & Others, reported in 2013 Crl.L.J. 4464 and in paragraph-6 the Apex Court has held as follows:
"6. The issue involved herein, is no more res integra. This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. Where the investigation has already been completed and charge sheet has been filed, ordinarily superior courts should not reopen the investigation and it should be left open to the court, where the charge sheet has been filed, to proceed with the matter in accordance with law. Under no circumstances, should the court make any expression of its opinion on merit relating to any accusation against any individual. (Vide: Gudalure M.J. Cherian & Ors. v. Union of India & Ors., (1992) 1 SCC 397; R.S. Sodhi v. State of U.P. & Ors., AIR 1994 SC 38; Punjab and Haryana Bar Association, Chandigarh through its Secretary v. State of Punjab & Ors., AIR 1994 SC 1023; Vineet Narain & Ors., v. Union of India & Anr., AIR 1996 SC 3386; Union of India & Ors. v. Sushil Kumar Modi & Ors., AIR 1997 SC 314; Disha v. State of Gujarat & Ors., AIR 2011 SC 3168; Rajender Singh Pathania & Ors. v. State (NCT of Delhi) & Ors., (2011) 13 SCC 329; and State of Punjab v. Davinder Pal Singh Bhullar & Ors. etc., AIR 2012 SC 364)."
From the facts, which we have noted herein above, it is apparent that not only the order for further investigation was made on 6th May, 2014 at the dictates of the Deputy Inspector General of Police without taking notice of the fact that the cognizance on the charge-sheet filed by the police had been taken and bailable warrant against the accused had been issued but also without asking for permission even formally from the Magistrate concerned for such further investigation.
The Deputy Inspector General of Police also failed to consider that respondent no.5 had made an attempt to challenge the charge-sheet and the proceedings, which were pending before the Magistrate concerned by filing an application under Section 482 of the Code of Criminal Procedure before the High Court, which application had been rejected by the Court as noted above and the accused was directed to surrender.
Lastly the submission of the further investigation report on the very date the charge-sheet and other documents were provided to the police officer by the Court of Magistrate i.e. on 14th May, 2914 also speaks volumes about the unfair manner in which the authority had acted in garb of exercise of powers under Section 173 (8) of the Code of Criminal Procedure.
We are of the considered opinion that in the facts of the case, the impugned orders are an abuse of powers by the Deputy Inspector General of Police and the Senior Superintendent of Police, Jhansi.
The order impugned virtually has the effect of undermining the faith of the complaint in fair investigation of the offence alleged at the hands of the Superior Police Officers for the reasons best known to them.
In view of what has been recorded above, we hold that the present writ petition deserves to be allowed. It is ordered accordingly. Order passed by the Senior Superintendent of Police, Jhansi dated 6th May, 2014 and the order passed by the Deputy Inspector General of Police, Jhansi Range, Jhansi dated 22nd April, 2014 are hereby quashed with cost of Rs. 50, 000/-.
The present writ petition is, accordingly, allowed.